PERB recently affirmed a decision denying a petition to add a job classification to Fremont Unified District Teachers Association. The classification, Behavioral Intervention Specialists (“BIS” or “behavioral specialists”) complete special education assessments and plans for behavior management. Under the Educational Employment Relations Act (“EERA”), the bargaining unit can only be made up of teachers and other employees who are considered “certificated employees.”

EERA does not say whether the BIS are “certificated employees” but the ruling hinged on EERA’s discussion of what certifications may be required of BIS. PERB held that the statutory scheme plainly indicates that BIS are not “certificated employees” because EERA defines “certificated” as holding a credential or license conferred by the county education board or the state education commission. Teachers are required to hold such a credential. EERA states that BIS are not required to hold any license—not even one conferred by a private organization.

The union raised several arguments PERB found thin. It primarily argued that EERA and the district’s conduct indicate that BIS are “certificated.” The union argued that EERA states BIS can hold a license issued by a professional organization; the district, in fact, does require its BIS to hold such a license; and, therefore, BIS are “certificated.” PERB held this argument is meritless because the statute expressly states that the BIS licensure is not required and that a district may require it, but does not have to do so. More fundamentally, PERB noted, the district’s conduct does not bear on the analysis of legislative intent.

Comment: In this case, Fremont Unified School Distirict v. Fremont Unified District Teachers Association, CTA/NEA, PERB determined the union’s other arguments were similarly meritless partly because it was unnecessary to consider any evidence other than the statute to determine its meaning. PERB also held that even if the statute was somehow unclear, it would still rule against the union because the evidence was lacking. (E.g., the regulations on which the union relied were not in effect because they had been repealed; and the district’s definition of BIS is irrelevant because it does not bear on the interpretation of the legislature’s definition of “certificated employees.”)

PERB (and other courts) will interpret a statute solely based on its language if it is sufficient to answer the question at hand. Moreover, it is rare for PERB to overturn its plain-language interpretation of a statute, but it has been known to do so. It occurred in Castaic Union School District in (2010) PERB Decision No. A384E. In that case, PERB overturned 30 years of precedent when it determined that part-time employees have no representational rights under EERA.

If you have any questions, please contact Jonathan Yank at jonathan@majlabor.com.