REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS – Procedural Issues

Single Topic for Decision J028H

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The Board declined to join in an employer’s request for judicial review where the issue, application of the ten percent rule for proof of majority support in unit modifications, was neither “novel” nor one of “special importance” unique to HEERA. HEERA section 3564, subdivision (a), makes PERB unit determinations immune from judicial review except when, in response to a petition for judicial review from an employer or employee organization, the Board agrees that the case is one of “special importance” and joins in the request for review; or when the issue is raised as a defense to an unfair practice complaint. (PERB Reg. 32500.) The Board has joined in a request for judicial review only when: (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. The Board applies this strict standard because the fundamental rights of employees to form, join and participate in the activities of employee organizations could be jeopardized if PERB’s unit determinations were routinely subject to legal challenges.