Decision J027E – California Virtual Academies

(While PERB has not previously concluded that multiple public agencies have comprised a single employer, the Board has considered the “single employer” doctrine under EERA on prior occasions and determined under the facts of those cases that the “single employer” theory did not apply. The Board’s analysis of the doctrine clearly indicates that the “single employer” concept is not novel to the Board. There is nothing “unprecedented” about the Board’s finding that the 11 CAVA schools constitute a single employer.) (The Board’s conclusion that Education Code section 47611.5, subdivision (b) did not preclude a finding that a charter school with multiple sites was a single employer does not present a novel issue warranting judicial review. The fact that CAVA disagrees with the Board’s legal and factual conclusions does not make for a “novel” issue. If such disagreements did determine a “novel issue,” every case involving conflicting statutory interpretations, no matter their merit, would satisfy this element, rendering meaningless the policy considerations that counsel for a very strict standard in joining in requests for judicial review.)

(Representation matters generally should not be subject to unwarranted delay through pursuit of judicial review. If an election is not to be stayed pending judicial review, a fortiori, a unit determination and certification of exclusive representative is not to be stayed pending a party’s pursuit of judicial review.)

(The Board applies a strict standard when reviewing requests for judicial review, and will join in a request only in cases of special importance. The Board has held that: A case has “special importance” if the Board determines that (1) there is a novel issue presented; (2) the issue primarily involves construction of a statutory provision unique to EERA; and (3) the issue is likely to arise frequently. PERB joins in requests for judicial review only in the narrowest of circumstances. The three-part test for determining “special importance” is phrased in the conjunctive, and therefore all three parts must be satisfied before PERB will join in the request for judicial review. If the first two prongs of the Board’s three part test for seeking judicial review are not met, it is not relevant whether the issues presented in this case are likely to arise frequently.) (While PERB has not previously concluded that multiple public agencies have comprised a single employer, the Board has considered the “single employer” doctrine under EERA on prior occasions and determined under the facts of those cases that the “single employer” theory did not apply. The Board’s analysis of the doctrine clearly indicates that the “single employer” concept is not novel to the Board. There is nothing “unprecedented” about the Board’s finding that the 11 CAVA schools constitute a single employer.) (The Board’s conclusion that Education Code section 47611.5, subdivision (b) did not preclude a finding that a charter school with multiple sites was a single employer does not present a novel issue warranting judicial review. The fact that CAVA disagrees with the Board’s legal and factual conclusions does not make for a “novel” issue. If such disagreements did determine a “novel issue,” every case involving conflicting statutory interpretations, no matter their merit, would satisfy this element, rendering meaningless the policy considerations that counsel for a very strict standard in joining in requests for judicial review.) (The decision’s discussion of the meaning of the phrase “exclusive public school employer” contained in Education Code section 47611.5, subdivision (b). in addressing CAVA’s argument does not turn this fact-intensive case into one of statutory construction.) (Simply because CAVA asserts that charter schools are likely to proliferate does not demonstrate that the particular issues in this case are likely to arise frequently, especially given the fact-intensive nature of the decision.) (When the requestor’s arguments address “issues of fact and factual interpretation” upon which the underlying PERB decision is based, “[t]hey do not meet the standard necessary to justify approval of the request for judicial review.) (Representation matters generally should not be subject to unwarranted delay through pursuit of judicial review. If an election is not to be stayed pending judicial review, a fortiori, a unit determination and certification of exclusive representative is not to be stayed pending a party’s pursuit of judicial review.)

(The Board’s conclusion that Education Code section 47611.5, subdivision (b) did not preclude a finding that a charter school with multiple sites was a single employer does not present a novel issue warranting judicial review. The fact that CAVA disagrees with the Board’s legal and factual conclusions does not make for a “novel” issue. If such disagreements did determine a “novel issue,” every case involving conflicting statutory interpretations, no matter their merit, would satisfy this element, rendering meaningless the policy considerations that counsel for a very strict standard in joining in requests for judicial review.) (The decision’s discussion of the meaning of the phrase “exclusive public school employer” contained in Education Code section 47611.5, subdivision (b). in addressing CAVA’s argument does not turn this fact-intensive case into one of statutory construction.)