San Benito Joint Union High School District (PERB 0406E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION
AND ITS 	SAN 	BENITO CHAPTER #173,
Charging 	Party,
v .
SAN BENITO JOINT UNION HIGH 	SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-776
PERB Decision No. 	406
September 13, 	1984
Appearances; 	Edward Lieberman 	for 	the California 	School
Employees Association and 	its 	San Benito Chapter 	#173.
Before Hesse, Chairperson; 	Jaeger and Morgenstern, Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before 	the Public
Employment Relations Board 	(PERB or 	Board) 	based on an appeal
by 	the 	California School Employees Association and 	its 	San
Benito Chapter 	#173 	(CSEA) 	in which 	it contends 	that 	the
Board's 	San Francisco 	regional 	attorney 	erred 	in dismissing 	its
charge 	against 	the 	San Benito Joint Union High 	School 	District
(District). 	CSEA charged 	that 	the District violated
subsections 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA or 	Act)1 in 	the course of
1EERA 	is 	codified at Government Code 	section 	3540 	et
seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	indicated.
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reopener 	negotiations by 	linking 	its 	higher 	salary offers 	to 	a
provision which, 	in CSEA's view, 	contravened EERA's prohibition
against contracts of more 	than three years 	in duration. 	For
the reasons discussed below, 	we affirm the 	regional 	attorney's
dismissal of 	the 	charge.
FACTUAL 	SUMMARY
On May 	2, 	1983, 	CSEA filed the 	instant unfair 	practice
charge. 	According 	to the undisputed facts, 	at the 	time of
filing, 	the parties were engaged 	in 	reopener 	negotiations as
permitted by the terms of the parties' 	agreement, 	effective
September 1, 	1981 until August 31, 	1984. 	On September 	1, 	1982,
CSEA had 	submitted 	its 	reopener 	proposals 	which 	focused 	on
employees' 	vacations, 	job duty specifications and wages.
In its counterproposal #4, 	dated February 8, 	1983, 	the
District 	responded 	with 	counterproposals 	regarding 	contract
reopeners, 	contract duration, 	vacation and wages. 	The
District's wage offer 	was 	a one-time bonus payment of 	4 	percent
contingent 	upon CSEA's 	acceptance 	of 	the District's 	proposal
which 	sought 	to extend 	the duration of 	the contract 	for 	an
additional year. 	Without 	the one-year 	extension, 	the District
offered 	a 3 percent salary 	increase. 	In subsequent
counterproposals, 	the District continued 	to link 	its higher
salary proposal 	to 	CSEA's 	acceptance of 	the 	extended 	contract
duration. 2
2Attached 	to CSEA's 	unfair 	practice charge 	is District
counterproposal #5, 	dated March 9, 	1983, 	which linked a 4.5
percent 	salary 	increase 	to 	a 	one-year 	extension 	or 	3.5 	percent
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Based on 	these 	facts, 	CSEA charged 	that 	the District acted
unlawfully by attaching 	its highest wage offers 	to an 	illegal
condition, 	i.e., 	that the contract be extended for 	a fourth
year. 	It contends 	that the District's contract duration
proposal contravenes EERA's 	prohibition against contracts 	in
excess of three years 	in duration.w
In dismissing this charge, 	the regional attorney determined
that 	unlawful conditional 	bargaining 	occurs 	when a party
insists 	to 	the point of 	impasse 	that 	it will not bargain
further 	until 	the other party either 	negotiates 	or 	agrees 	to a
without the extension; 	District proposal #6, 	dated March 24,
1983, 	which proposed a 5 percent salary 	increase with a
one-year extension, 	a 4 	percent increase with no extension, 	or
one additional vacation day, 	no salary 	increase and no
extension; 	District counterproposal #8, 	dated April 25, 	1983,
which offered either 	a 5 percent salary 	increase with a
one-year 	extension, 	a 4 	percent salary 	increase with no
extension, 	or 	a 3 percent salary increase with one additional
vacation day and no extension.
3 EERA subsection 3540.l(h) 	provides:
"Meeting and 	negotiating" 	means meeting,
conferring, 	negotiating, 	and discussing by
the 	exclusive 	representative 	and 	the public
school employer 	in a good 	faith effort 	to
reach 	agreement on matters within 	the 	scope
of representation and the execution, 	if
requested by either party, 	of a written
document 	incorporating 	any 	agreements
reached, which document shall, 	when accepted
by 	the 	exclusive 	representative 	and 	the
public school employer, 	become binding upon
both parties and, 	notwithstanding Section
3543.7, 	shall not be subject to subdivision
2 	of Section 1667 	of the Civil Code. 	The
agreement may be 	for 	a period 	of not 	to
exceed 	three years. 	(Emphasis 	supplied.)
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non-mandatory or 	unlawful 	item. 	Merely proposing 	a
non-mandatory 	or 	unlawful 	item is 	to be distinguished 	from
insisting 	to 	the point of 	impasse 	that 	it be negotiated 	or
agreed 	to. 	On 	the facts of the 	instant case, 	he found no prima
facie 	violation of 	conditional 	bargaining 	since he 	determined
that 	the District was merely proposing 	the contract duration
extension for 	negotiations.
On appeal, 	the thrust of CSEA's argument is that the
regional 	attorney's 	decision 	improperly 	attached 	some
significance 	to 	the 	fact 	that 	the District's 	counterproposals
included offers of 	lesser 	wage 	increases not 	tied 	to 	the
illegal duration proposal. 	CSEA contends 	that, 	in spite of the
other wage offers not connected to 	the contract extension, 	the
wage 	offer 	coupled with 	the 	illegal 	extension demand 	in 	itself
evidenced 	bad 	faith 	bargaining.
DISCUSSION
The 	gravaman 	of CSEA's 	claim rests 	on 	its contention 	that
the District's 	contract duration proposal was 	illegal.
Resolution of 	the parties' 	dispute 	thus 	rests on our
interpretation and application of subsection 3540.l(h).
Contrary to CSEA's assertion, 	none of 	the District's
proposals 	sought 	approval of an agreement 	that would 	have
exceeded 	the 	three-year 	limitation. 	The District's 	first
counterproposal, 	tendered February 8, 	1983, 	would have amended
the contract duration article 	(9/1/81 	- 	8/31/84) 	and would have
made 	the 	agreement 	effective 	" . . . 	from the 	first 	day 	of
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September 	1982 	up to and 	including 	the 	last day of August
1985." 	While 	the effect of 	such an amendment would have been
to 	extend 	the contract expiration date 	from August 	1984 	until
August 	1985, 	the District's proposal would also have altered
the beginning effective date. 	Thus, 	the end result would still
have been a contract of only three years' 	duration.
The 	language 	of EERA 	is clear. 	A contract's 	duration
cannot exceed 	three years. 	The District proposals, 	with equal
clarity, 	seek 	an agreement with 	a duration 	that 	falls within
the specific mandate of 	the code. 	That 	is, 	under 	the
District's proposals, 	there would never 	be an agreement 	in
effect which would 	exceed 	the 	three-year 	legal maximum.
Therefore, 	it 	is 	incorrect 	to say that 	the District 	sought CSEA
approval 	of an 	illegal agreement.
Because 	we 	find 	that 	the 	contract 	duration counterproposal
did not conflict with 	the 	letter 	of 	the 	law, 	the only 	remaining
concern 	is whether 	the District's 	proposal was 	rendered 	illegal
because 	it circumvented 	the purpose of 	subsection 3540.l(h).
It 	is readily apparent that a purpose of subsection 	(h) 	is 	to
insure 	that 	the parties not be permitted 	to enlarge 	the
contract bar period and, 	thus, 	foreclose or forestall the
possibility of decertification elections. 	In Hayward 	Unified
School District 	(6/10/80) 	PERB Order No. 	Ad-96, 	for example,
this 	Board 	found 	that an agreement between 	the parties 	to
prematurely 	extend 	a contract did 	not 	bar 	a decertification
election. 	See 	also 	Butte County 	Superintendent of 	Schools
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(8/22/83) 	PERB Decision No. 	338; 	San Ramon Valley Unified
School District 	(10/4/79) 	PERB Order No. 	Ad-75.
While 	the EERA provision specifically prohibiting parties 1
agreements 	from exceeding 	three years 	in duration does 	not
appear 	in the National Labor Relations Act 	(NLRA), 	federal
precedent has 	established a 	similar 	three-year 	limitation. 	See
Morris, 	Developing Labor Law, p. 	363. 	Thus, 	under the NLRA, 	to
effect that purpose, 	a five-year 	agreement operates to bar
rival petitions 	for 	a 	three-year 	period only. 	Deluxe Metal
Furniture Company 	(1958) 	121 NLRB 995 	[42 LRRM 1470]. 	However,
as stated 	in New England Telephone & Telegraph Co. 	(1969) 	179
NLRB 531 	[72 LRRM 1389]:
. 	. 	. 	the Board's rule is not an absolute
ban on premature extensions, 	but only
subjects 	such extensions 	to the condition
that 	if a petition 	is 	filed during 	the open
period 	calculated 	from the 	expiration 	date
of 	the old contract, 	the premature extension
will not be a bar. 	(Emphasis 	omitted.)
Thus, 	while we take note of the fact that EERA's duration
limit 	is 	statutorily 	imposed and 	the 	federal 	rule 	is one 	of
NLRA case precedent, 	both rules reflect 	the same contract bar
concern. 	With 	that concern 	in mind, 	we find that 	the
District's proposal does 	not conflict with 	the 	statutory
purpose of subsection 	(h) 	because 	there 	is no allegation that
the 	extension was sought 	for 	the purpose of barring 	a
decertification election, 	nor would 	it have such a 	result.
As 	the District's proposal, 	if agreed upon, 	would have
neither 	resulted 	in a contract of more 	than three years'
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duration nor 	circumvented 	the contract 	bar 	rules, 	we conclude
that 	the 	District's 	proposal 	to 	amend 	the 	beginning 	and 	ending
dates 	of 	the contract duration provision did not violate 	either
the letter or 	the spirit of subsection 	(h). 	Therefore, 	since
the proposal was not 	illegal, 	it 	is unnecessary 	to decide
whether 	or 	not 	the 	regional 	attorney correctly concluded 	that
it 	is permissible 	to 	"merely propose" 	an 	illegal 	subject.
The other 	basis 	for CSEA's 	appeal 	is 	its assertion 	that 	the
District 	violated 	the Act 	by presenting 	the 	contract 	duration
proposals because, 	under 	the terms of the parties' 	agreement,
contract duration was not 	specified 	as 	a 	subject which 	could 	be
raised during reopener discussions. 	On 	its face, 	however, 	the
contract 	at 	issue here gave 	each party 	the 	right 	to 	select
three 	articles 	to be 	reopened 	for 	negotiation. 	Since 	the
contract 	specifically precluded 	reopening 	only as 	to 	health 	and
welfare benefits, 	concerted activities and lockouts, 	CSEA's
claim lacks 	sufficient 	evidentiary 	support 	to 	sustain 	a prima
facie 	bad 	faith 	bargaining 	violation.
ORDER
Based upon 	the 	foregoing 	facts 	and conclusions of 	law, 	the
Board 	AFFIRMS 	the 	regional 	attorney's 	determination 	and
accordingly 	DISMISSES 	the 	instant 	unfair 	practice 	charge 	as 	set
forth 	in Case No. 	SF-CE-776 without leave 	to amend.
Chairperson 	Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.
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