Alliance Judy Ivie Burton Technology Academy High, et al. (PERB J030E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALLIANCE JUDY IVIE BURTON
TECHNOLOGY ACADEMY HIGH SCHOOL
ET AL.,
Employers,
and
UNITED TEACHERS LOS ANGELES,
Petitioner.
Case Nos. 	LA-RR-1281-E
LA-RR-1282-E
LA-RR-1283-E
Request for Judicial Review
PERB Decision No. 2719
PERB Order No. JR-30
October 14, 2020
Appearances: Sloan Sakai Yeung & Wong by Jeffrey Sloan and Timothy G. Yeung,
Attorneys, for Alliance Judy Ivie Burton Technology Academy High School, Alliance
College-Ready Middle Academy No. 5, and Alliance Gertz-Ressler/Richard Merkin
6-12 Complex; Bush Gottlieb by Erica Deutsch and Dexter F. Rappleye, Attorneys, for
United Teachers Los Angeles.
Before Banks, Shiners, Krantz and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request filed pursuant to PERB Regulation 32500 that the
Board join Alliance Judy Ivie Burton Technology Academy High School, Alliance
College-Ready Middle Academy No. 5, and Alliance Gertz-Ressler/Richard Merkin 6-
12 Complex (collectively Charter Schools) in seeking judicial review of the Board’s
decision in Alliance Judy Ivie Burton Technology Academy High School, et al. (2020)
PERB Decision No. 2719 (Alliance). In the underlying decision, we certified United

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Teachers Los Angeles (UTLA) as the exclusive representative of certain certificated
employees at the Charter Schools. For the reasons that follow, we deny the request.1
In Alliance, the Board found that UTLA had demonstrated majority support in
presumptively appropriate units and that the Charter Schools had failed to rebut this
presumption. Specifically, we found that each of the Charter Schools was a “public
school employer” for purposes of the Educational Employment Relations Act (EERA),
and that the petitioned-for units were statutorily appropriate under section 3545,
subdivision (b)(1), because they included all certificated employees.2 We further
concluded that the Charter Schools had failed to rebut this statutory presumption by
showing they belonged to a single employer consisting of all charter schools under the
aegis of a non-profit charter management organization (CMO) called Alliance College-
Ready Public Schools (Alliance). In reaching this conclusion, we held that the Charter
Schools were judicially and equitably estopped from asserting that they were part of a
single, integrated enterprise by virtue of prior inconsistent factual representations they
and Alliance made in other cases. Additionally, and regardless of principles of
estoppel, we held that those inconsistent representations fatally undermined the
Charter Schools’ ability to use the single-employer construct to rebut the
appropriateness of the petitioned-for units. As a third independent basis for our
decision, we concluded that the Charter Schools had not demonstrated that a single,
1 In a separate order issued today, we also deny the Charter Schools’ request
for reconsideration of Alliance.
2 EERA is codified at Government Code section 3540 et seq.

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systemwide unit consisting of all schools was more appropriate than the petitioned for
units.
The Charter Schools argue that the Board should join their request for judicial
review of the underlying decision because it allegedly concerns a legal question of
“special importance” within the meaning of section 3542, subdivision (a) of EERA. We
disagree.
DISCUSSION
Under EERA section 3542, subdivision (a):
“No employer or employee organization shall have the right
to judicial review of a unit determination except: (1) when
the board in response to a petition from an employer or
employee organization, agrees that the case is one of
special importance and joins in the request for such review;
or (2) when the issue is raised as a defense to an unfair
practice complaint. A board order directing an election shall
not be stayed pending judicial review.”
(Emphasis added.)
Under PERB Regulation 32500, the Board has sole discretion to determine
whether a case is one of special importance. The regulation states, in pertinent part:
“The Board may join in a request for judicial review or may decline to join, at its
discretion.” (PERB Reg., § 32500, subd. (c).) 3
The Board has strictly construed these provisions in order to ensure “that the
fundamental rights of employees to form, join and participate in the activities of
employee organizations is not abridged. Further, the standard is also employed to
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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prevent employee organizations’ rights from being inhibited because if unit
determinations by PERB are subject to numerous legal challenges, delays of
implementation of the Board’s decisions could occur.” (St. HOPE Public Schools
(2019) PERB Order No. JR-29 (St. HOPE); California Virtual Academies (2016) PERB
Order No. JR-27, at pp. 3-4, internal citations omitted.)
Consequently, the Board will join a request for review only if: (1) there is a novel
issue presented; (2) the issue primarily involves construction of a statutory provision
unique to the statute under consideration; and (3) the issue is likely to arise frequently.
(Burlingame Elementary School District (2007) PERB Order No. JR-24, p. 3.) All three
parts must be satisfied before PERB will join in the request for judicial review,
meaning that PERB joins in requests for judicial review only in the narrowest of
circumstances. (California Virtual Academies, supra, PERB Order No. JR-27, p. 4.)
The Charter Schools argue that this case presents a novel question of law with
respect to the application of Peralta Community College District (1978) PERB
Decision No. 77 (Peralta) to charter schools. A principle basis for this argument rests
on the fact that the decision drew a dissent. But many of our representation cases
elicit dissenting opinions, and we see nothing in this matter (or the dissent) that
warrants judicial review at this juncture. (See, e.g., St. HOPE, supra, PERB Decision
No. JR-29 at p. 6 [Member Shiners concurring in denial of judicial review].)
The Charter Schools also seem to argue that the Board did not apply Peralta to
this case. That is untrue. Rather, the Board concluded that the petitioned-for units
were presumptively appropriate under Peralta precisely because they sought all
certificated employees of the public school employers, i.e., the Charter Schools.

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(Alliance, supra, PERB Decision No. 2719 at p. 25.) The Board declined to interpret
Peralta and its progeny to mean that “a single unit of all employees of the [asserted]
single employer is the only appropriate bargaining unit, regardless of the union’s
objection and despite the Charter Schools’ past representations in other cases.” (Id. at
p. 26.) Thus, far from overruling Peralta, the decision applied its holding to the unique
facts of this case.4 In any event, since nearly all representation cases involving
certificated employees require the Board to interpret section 3545 and apply Peralta,
the fact that we did so here is insufficient to warrant judicial review. (St. HOPE, supra,
PERB Decision No. JR-29 at p. 4.)
The Charter Schools further argue that the Board’s conclusion that the Charter
Schools’ prior inconsistent factual representations fatally undermined their own case
somehow “abrogate[d] PERB’s jurisdiction over unit determination issues in direct
contravention of EERA section 3545.” (Gov. Code, § 3545 [“In each case where the
appropriateness of the unit is an issue, the board shall decide the question . . .”].) This
argument is undeveloped but appears tethered to a footnote in the dissent in the
underlying decision, which makes a similar assertion. (See Alliance, supra, PERB
Decision No. 2719 at p. 55, fn. 43.) However, insofar as section 3545 requires the
Board to make unit determinations based on the parties’ “established practices,”
4 The dissent believes Peralta prevents the Board from certifying the otherwise
presumptively appropriate charter school units in this case. It therefore takes issue
with our application of Peralta to charter school cases presenting more than one
appropriate unit. But the dissent’s belief is not supported by the Board’s interpretation
of Peralta or EERA. Rather, it seeks to create new law requiring single-employer units
in cases involving charter school networks such as Alliance. For the reasons set forth
in the underlying decision, this would contravene the purposes of EERA and make a
millstone of Peralta for the benefit of these employers.

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among other criteria, there is no reason to believe that the Charter Schools’ historical
conduct is statutorily irrelevant, especially since it centers on their very status as
public school employers under EERA.
While the Charter Schools and dissent believe these issues are destined to
arise frequently, given the number of unorganized Alliance-affiliated schools, we
believe the facts of this case are unusual and unlikely to recur. Indeed, few if any
public employers will repeat the sort of legal gamesmanship we encountered here.5
For all these reasons, we cannot conclude that the Charter Schools satisfied the
three-part test and we therefore decline to grant the request.
ORDER
The request filed by Alliance Judy Ivie Burton Technology Academy High,
Alliance College-Ready Middle Academy No. 5, and Alliance Gertz-Ressler/Richard
Merkin 6-12 Complex that the Public Employment Relations Board join in a request for
judicial review of Alliance Judy Ivie Burton Technology Academy High, et al. (2020)
PERB Decision No. 2719 is hereby DENIED.
Members Krantz and Paulson joined in this Decision.
Member Shiners’ dissent begins on page 7.
5 Because there are some number of CMO-affiliated charter schools in
California, the dissent claims the issues in this case will likely arise with the requisite
frequency to warrant immediate judicial review. However, throughout the Board’s
history, no other litigants asserted contradictory facts in multiple cases concerning
their status as public school employers. Thus, it was the Charter Schools’
unprecedented conduct that brought us to this result. We do not believe such conduct
is likely to become frequent.

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SHINERS, Member, dissenting: I dissent from the majority’s refusal to join in
the request for judicial review of Alliance Judy Ivie Burton Technology Academy High,
et al. (2020) PERB Decision No. 2719 (Alliance) filed by Alliance Judy Ivie Burton
Technology Academy High, Alliance College-Ready Middle Academy No. 5, and
Alliance Gertz-Ressler/Richard Merkin 6-12 Complex (collectively Charter Schools). In
my view, the underlying decision is a case of special importance that warrants judicial
review.
The Educational Employment Relations Act permits judicial review of a unit
determination decision “when the board in response to a petition from an employer or
employee organization, agrees that the case is one of special importance and joins in
the request for such review.” (EERA, § 3542, subd. (a).) “The Board may join in a
request for judicial review or may decline to join, at its discretion.” (PERB Reg. 32500,
subd. (c).) Currently, the Board’s discretion to join in a request for judicial review is
constrained by precedent requiring the requesting party to establish that: (1) the case
presents a novel issue; (2) the issue primarily involves construction of a statutory
provision unique to the statute under consideration; and (3) the issue is likely to arise
frequently.6 (Burlingame Elementary School District (2007) PERB Order No. JR-24,
p. 3.) I agree with the Charter Schools that all three factors are met here.
6 In adopting this standard, the Board appears to have transformed three
factors that weighed in favor of judicial review in one particular case into a three-part
test that must be met in every case. (See Los Angeles Unified School District (1985)
PERB Order No. JR-13, p. 3 [noting that in a prior decision addressing the meaning of
“same employee organization” in EERA section 3545, subdivision (b)(2), the presence
of the three factors convinced the Board the case was one of special importance];
compare Palomar Community College District (1992) PERB Order No. JR-14, p. 4

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First, this case presents a novel issue—whether the presumption adopted by
the Board in Peralta Community College District (1978) PERB Decision No. 77
(Peralta) should apply differently in the charter school context.7 In the underlying
decision in this case, the Board majority found “the Peralta presumption has less
weight in the charter school context than in traditional public school districts.”
(Alliance, supra, PERB Decision No. 2719, p. 31, fn. 28.) Yet in three prior decisions
where the Board applied the Peralta presumption to charter school unit
determinations, it made no mention of giving the presumption “less weight”—or
[concluding the petitioning district failed to meet the “standard” set out in Los Angeles
Unified School District, supra, PERB Order No. JR-13.) The Board has never
explained why these three factors—and no others—appropriately define what
constitutes “special importance” in every case, particularly when earlier precedent
considered additional factors. (E.g., Fairfield-Suisun Unified School District, et
al. (1980) PERB Order No. JR-8, pp. 2-3 [finding a case of special importance where
an issue of statutory interpretation was “significant and novel,” likely to arise
frequently, and there was no alternative method for the requesting party to obtain
judicial review]; San Francisco Unified School District (1977) EERB Order No. JR-3,
p. 1 [declining to find a case of special importance where the requesting party has an
unfair practice remedy available]; Grossmont Union High School District (1977) EERB
Order No. JR-2, pp. 1-2 [finding a case of special importance where the issue was
novel; arose frequently; and the requesting party, having lost its exclusive
representative status, could not draw an unfair practice charge to obtain judicial
review].) Given that PERB has granted only one judicial review request in the 28 years
since the current standard was adopted, I believe the Board should reevaluate
whether the standard properly serves the objective of determining which cases are of
“special importance.” Nonetheless, because the three factors are met here, I join my
colleagues in applying the current standard in this case.
7 In Peralta, supra, PERB Decision No. 77, the Board harmonized subdivisions
(a) and (b)(1) of EERA section 3545 by creating a rebuttable presumption that all of a
public school employer’s classroom teachers should be placed in a single bargaining
unit unless the resulting unit would be inappropriate under the criteria in subdivision
(a). (Id. at p. 10.) Prior to the underlying decision in this case, PERB had applied this
presumption even-handedly to all parties subject to EERA, including charter schools.

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otherwise modifying the presumption—in the charter school context. (St. HOPE Public
Schools (2018) PERB Order No. Ad-472, pp. 4-5; California Virtual Academies (2016)
PERB Decision No. 2484, p. 79; Orcutt Union Elementary School District (2011) PERB
Decision No. 2183, pp. 7-8.) The underlying decision in this case is the first time the
Board has found that the Peralta presumption applies differently to charter schools,
making this a novel issue.8
Second, the novel issue is primarily one of statutory construction. In one of the
rare instances where the Board joined in a request for judicial review, the underlying
decision addressed the interplay between Education Code section 45103, subdivision
(b)(4), which excludes part-time playground positions from the classified service, and
EERA section 3540.1, subdivision (e), which defines “exclusive representative” as an
employee organization that represents a bargaining unit of “certificated or classified
employees.” (Castaic Union School District (2011) PERB Order No. JR-25, p. 4; see
Castaic Union School District (2010) PERB Order No. Ad-384, pp. 3-5, overruled by
Center Unified School District (2014) PERB Decision No. 2379.) Thus, judicial review
is not limited to cases that turn on the meaning of particular statutory language but
8 The majority mischaracterizes my application of Peralta to the facts of this
case as an attempt to “create new law requiring single employer units in cases
involving charter school networks such as Alliance.” That is not so. There may be a
future case where a charter school network does not constitute a single employer and
thus a network-wide unit would not be appropriate under Peralta. But that is not this
case.

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also encompasses cases where the Board must define the relationship between
statutory provisions.9
By giving the Peralta presumption “less weight” in charter school cases, the
underlying decision in this case allows PERB to certify a petitioned-for unit at a charter
school as long as the unit is an appropriate unit under the statutory criteria in EERA
section 3545, subdivision (a). This has the practical effect of writing EERA section
3545, subdivision (b)(1) out of the statute in charter school cases. Because this case
centers on the proper relationship between subdivisions (a) and (b)(1) of EERA
section 3545 in the charter school context, it raises primarily an issue of statutory
construction.10
Third, how the Peralta presumption applies to charter schools affiliated with a
charter management organization (CMO) is an issue likely to arise frequently. During
9 To the extent California Virtual Academies (2016) PERB Order No. JR-27
suggests the statutory construction factor is met only where the meaning of particular
statutory language is at issue (id. at p. 7), I disagree with such a limitation as contrary
to court and Board precedent. (See, e.g., Johnston v. Sonoma County Agricultural
Preservation and Open Space Dist. (2002) 100 Cal.App.4th 973, 985 [determining the
proper interplay between statutory provisions is “an issue of statutory construction”];
Castaic Union School District, supra, PERB Order No. JR-25, p. 4 [joining in request
for judicial review of decision determining interplay between provisions of EERA and
the Education Code].)
10 The majority’s claim that it merely “declined to interpret Peralta and its
progeny” in a particular way understates what it actually did—reinterpreted EERA
section 3545 to allow PERB to ignore subdivision (b)(1) in charter school cases.
Though my colleagues obviously dislike the Peralta presumption (see Alliance, supra,
PERB Decision No. 2719, p. 31, fn. 28), they cannot under the guise of interpretation
rewrite EERA section 3545 to suit their notion of what the statute should say (Regents
of the University of California v. Public Employment Relations Bd. (1985) 168
Cal.App.3d 937, 944-945).

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the 2016-2017 school year, 24% of California’s 1,258 charter schools were affiliated
with a CMO. (National Alliance for Public Charter Schools, National Charter School
Management Overview 2016-17, p. 6.)11 In that same school year, 47 CMOs operated
in California, each affiliated with at least three charter schools. (Id. at pp. 7-14.) Thus,
it is likely PERB will continue to have to decide the appropriate certificated unit
configuration for charter schools affiliated with a CMO. Moreover, as the underlying
decision certified bargaining units at only three of the 25 schools affiliated with the
Alliance College-Ready Public Schools CMO, PERB will have to determine
appropriate units for other schools in the Alliance network as United Teachers Los
Angeles (UTLA) continues to organize them.12
In sum, each of the three factors for joining in the request for judicial review is
met here. Accordingly, I would join in the Charter Schools’ request for judicial review.
11 Available at https://www.publiccharters.org/sites/default/files/documents/2019-
06/napcs_management_report_web_06172019.pdf.
12 Instead of addressing the likelihood that PERB will have to apply Peralta in
future cases involving CMO-affiliated charter schools, the majority focuses on the
Charter Schools’ litigation conduct in the underlying cases, claiming such
“unprecedented conduct” is unlikely to recur. But even if “the facts of this case are
unusual and unlikely to recur” as to other CMO-affiliated charter schools, they will
continue to apply to petitions to represent certificated employees at the remaining 22
Alliance network charter schools, including the two petitions filed by UTLA in 2019 that
were placed in abeyance pending the outcome of this case. (See Bellflower Unified
School District (2017) PERB Decision No. 2544, p. 6 [PERB may take official notice of
its own records and files].)