All notes for Subtopic 1311.02000 – Procedural Issues

DecisionDescriptionPERC Vol.PERC IndexDate
J028H Regents of the University of California and University Professional and Technical Employees, Communications Workers of America Local 9119
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
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. more or view all topics or full text.
4211102/27/18
A405E Mount Diablo Unified School District
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
In reviewing whether a Board agent has conducted a proper investigation, the Board looks at whether or not the Board agent abused his or her discretion. Our procedures afford no guarantee or entitlement to an evidentiary hearing in a representation proceeding. As stated in PERB Regulation 33237(a). Whenever a petition regarding a representation matter is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election or take such other action as deemed necessary to decide the questions raised by the petition. more or view all topics or full text.
3812101/14/14
A402E Children of Promise Preparatory Academy
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
In reviewing whether a Board agent has conducted a proper investigation, the Board generally has looked at whether or not the Board agent abused his or her discretion. Our procedures provide no guarantee or entitlement to an evidentiary hearing in a representation proceeding. Whenever a petition regarding a representation matter is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election or take such other action as deemed necessary to decide the questions raised by the petition. (PERB Regulation 33237(a).) PERB Regulation 33300 requires that a Board agent serve a notice of hearing if he or she determines that a hearing is necessary. Board agents routinely use an order to show cause in representation investigations to determine if there are material facts in dispute and whether or not there is sufficient evidence to decide a disputed matter without convening an evidentiary hearing. The order to show cause process balances the interests of the parties by providing an employer the means to demonstrate the existence of a material factual issue, while protecting employee representation rights by assuring that a hearing and the accompanying delay in the exercise of employee representation rights will occur only where a material factual issue exists. A “fixed anticipatory prejudgment” against a party must be shown to establish bias sufficient for Board agent disqualification. Prejudgment is established through statements or conduct by the Board agent indicating a clear predisposition against a party. Erroneous legal or factual rulings, in themselves, do not indicate bias. PERB Regulation 32155(c) requires that any request that a Board agent disqualify himself or herself be made under oath and specifically set forth all facts supporting it. PERB Regulation 32155(c) does not require the concurrence of the parties to the identity of a replacement Board agent. The Board agent’s statement in the order to show cause, that the academy had failed thus far to provide sufficient evidence to rebut the presumption that the proposed unit was appropriate, did not indicate bias but rather a candid and appropriate appraisal of the academy’s position. more or view all topics or full text.
387611/06/13
A390M City of Inglewood
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
PERB has authority to conduct representation proceedings for parties subject to the MMBA in such cases where a public agency has not adopted local rules under which severance could be achieved without placing an undue burden on petitioner; Board dismissed a severance petition for lack of jurisdiction where notwithstanding fact that local rules did not provide for a “severance” proceeding, severance could be, and has been, achieved under local rules for establishing a recognized employee organization of an appropriate bargaining unit; under PERB procedures, severance and certification processes have similar requirements and purposes in that both processes are designed to allow an employee organization to become the recognized employee organization of an appropriate bargaining unit, and only difference is that the certification process is used to create a new bargaining unit of unrepresented employees whereas the severance process is used to create a bargaining unit of employees already members of an existing bargaining unit; where public agency’s local rules for establishing a recognized employee organization makes no distinction between whether the employees in the proposed unit are unrepresented or whether they are part of an existing barraging unit, local rule is one under which severance could be achieved and PERB has no jurisdiction to entertain the petition. more or view all topics or full text.
365309/28/11
J024E Burlingame Elementary School District
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
Unit modification petition does not rise to level of special importance necessary to establish basis for Board to request judicial review. more or view all topics or full text.
316102/14/07
A336M Coachella Valley Mosquito and Vector Control District
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
The 30-day time period under PERB Regulation 60000 is not a jurisdictional statute of limitations. Late filings may be excused for good cause under Regulation 32136. Good cause was not established here because filing party failed to read Regulation 60000. more or view all topics or full text.
2813705/12/04
J023H California Faculty Association
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
Unit clarification request does not rise to level of special importance necessary to establish basis for Board to request judicial review. more or view all topics or full text.
295112/29/04
A311E San Diego Community College District
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
Board declines to exercise discretion to grant a stay pending a PERB decision regarding judicial review request as the issues raised in the stay will be addressed through a pending unfair practice proceeding. Board declines to clarify the effective date of the Board's underlying decision and declines to clarify which exclusive representative represents the affected unit members as the issues raised in these requests will be addressed through a pending unfair practice proceeding. more or view all topics or full text.
263301511/28/01
J017S State of California (Museum of Science and Industry)
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
It is within the Board's sole discretion to determine whether a case is one of "special importance," justifying its joining in a request for judicial review; p. 3. The party seeking judicial review must satisfy all three prongs of the special importance test; p. 5. more or view all topics or full text.
202704602/23/96
J018H Regents of the University of California and Association of Student Employees, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al.
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
With regard to issues not presented in the case at hand, PERB declines to reach the determination that a case is of special importance based on consideration of a state constitutional issue not addressed in the case before appeal; p. 8. more or view all topics or full text.
222915209/01/98
A083E Redondo Beach City School District
1311.2000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
Where District asserts that its request for PERB to join it in seeking judicial review of unit determination was untimely filed due to modification of PERB order determining appropriate unit, late filing not excused under extraordinary circumstance standard of prior PERB Regulation 32133, now Regulation 32136, where the modification of the Board order did not bear on any substantative issue under consideration; time for filing an appeal of unit determination runs from the service date of Board's original order under PERB Regulation 32500; pp. 3-4. more or view all topics or full text.
41105704/01/80