Bassett Unified School District * * * VACATED by Bassett Unified School District (1979) PERB Order No. Ad-63 (PERB A057E)

VACATED by Bassett Unified School District (1979)PERB Order No. Ad-63
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BASSETT UNIFIED SCHOOL DISTRICT,
Employer,
and
BASSETT EDUCATORS ASSOCIATION,
CTA/NEA,
Employee Or ganization,
and
BASSETT FEDERATION OF TEACHERS,
AFT LOCAL 727, AFL-CIO,
Employee 	Or ganization,
APPELLANT.
)
)
)
)
)
)
) 	Case No. LA-R-587
PERB Order No. Ad-57
Administrative Appeal
January 30, 1979
)
)
)
)
)
)
)
)
)
)
)
)
Appearances: Richard N .Fisher , Attorney ( O'Melveny & Myers)
for Bassett Unified School District; Charles R. Gustafson,
Attorney for Bassett Educators Association, CTA/NEA;
Lawr ence Rosenzweig, Attorney 	(Levy, Koszdin, Goldschmid &
Sroloff) for Bassett Federation of Teachers, AFT Local 727,
AFL-CIO.
Before: Gluck , Chairperson; Gonzales and Cossack Twohey,
Members.
DECISION
This case is an appeal from the Los Angeles regional
director's dismissal of a decertification peti tion filed by
Bassett Federation of Teachers, AFT Local 727, AFL-CIO
(hereafter Federation) . The regional di r ector held that since
Bassett Unified School' District (hereafter District) and
Bassett Educators Association, CTA/NEA (hereafter Association)
had not terminated their 1977-80 agr eement, the Feder ation's
petition was barred by section 3544.7(b)(1) of the Educational

Employment Relations Act (hereafter EERA).1 	For the reasons
set forth below, we reverse the regional director's decision.
FACTS
On January 24, 1977, an election for exclusive
representation of cer tificated employees in the District was
conducted between the Associ ation, the Feder ation and "no
representation ." 	A majority of employees voting cast ballots
for the Association. 	On Febr uary 2, 1977, the Association was
cer tified as the exclusive representati ve of certificated
employees in the District.
On December 1, 1977, the District and the Association
executed a written agr eement covering wages, hours and other
terms and conditions of employment.
lThe Educa ional Employment Relations Act is codified at
Government Code sections 3540 et seq. 	All references are to
the Government Code unless otherwise noted.
Section 3544.7(b) (1) .and (2) states:
(b) 	No election shall be held and the
petition shall be dismissed whenever:
(1) 	There is currently in effect a lawful
written agr eement negotiated by the public
school employer and another employee
or ganization covering any employees included
in the unit described in the request for
recognition, or unless the request for
recognition is filed less than 120 days, but
more than 90 days, prior to the expiration
date of the agreement; or
(2) 	The public school employer has, within
the pr evious 12 months, lawfully recognized
an employee or ganization other than the
petitioner as the exclusi ve representative
of any employees included in the unit
descri bed in the peti tion.
Hereafter , section 3544.7(b)(1) may be referred to as
the "contract bar" provision of the EERA.
2

The agreement contained four particularly r elevant
provisions . Article XXI stated:
This Agr eement shall become effecti ve
pursuant to its terms upon ratification and
Board of Education adoption, and shall
remain in full force and effect up to and
including June 30, 1980, unless earlier
terminated pursuant to the express terms of
Article XVII - Salaries, and shall
thereafter remain in.full force and effect
year-by-year unless one of the parties has
notified the other in writing , no later than
Febr uary 1, of its intention to terminate
effective on June 30.
While it is understood that negotiations on
limi ted matters are (sic) requi red under
Article XI and XIV, such negotiations are
not to aff ect in any way the duration,
validity or enforceability of the remai nder
of this Agreement , regar dless of the outcome
of such negoti ations. 	(Emphasis added.)
Article XVII stated:
1. 	Effective as of September 1, 1977, each
step .of the following salary schedules is to
be incr eased 7% over the previously
effective amounts, rounded off to the
nearest dollar •••.
2. 	Effecti ve July 1, 1978, and again on
July 1, 1979, each step of the followi ng
salary schedules is to be increased 6%
(rounded as before), subject to the
following 	contingency: 	The District's
salary obligation for each of the second and
third years of this Agreement is contingent
upon receipt of anticipated State income,
reasonable staffing r atios and upon the
availability of sufficient unallocated
general funds . In this regard the District
has commi tted itself to a diligent effort to
make such funds available by appropriate
cost-cutti ng efforts, so long as educational
programs are not jeopardized. 	In the event
that adequate unallocated funds are not
deemed available for such increases, the
District shall not be obligated hereunder ,
but the Agreement shall in such an event be
terminated 	in its entirety as of June 30.
If this occurs, the Associ ation shall not be
3

limited in i ts proposals to the amounts set
forth hereinabove. 	The District shall by
March 1 of each year hereunder give the
Association tentative notice of its
percei ved ability to fund the above salary
provision, and shall also give notice of its
posi tion as of June 1.
Any disputes with respect to whether ther e
is an availability of funds for the second
and third-year salary increases are to be
handled pursuant to applicable statutory
negotiation and , if necessary, impasse
procedur es r ather than through the grievance
procedures of Article VI, and disputes with
r espect to whether the District has made an
adequate effort to make such funds available
are to be handled pursuant to the
consultation provision s of Article VIII (2]
rather than through the grievance procedures
of Article VI . 	(Emphasis added.)
Article VI set forth the grievance procedure applicable to
certificated employees. 	It provided for binding arbitration of
disputes not resolved during thr ee intermediate steps. Article
XVII, supra, 	pecifically excluded from binding arbi tration
disputes concerning both the availability of funds to pay salary
increases and the adequacy of the District's efforts to make
such funds available.
2Article VIII states in per ti nent par t:
1. The District shall upon request consult
with the Association with respect to the
following matters, and shall give good faith
consideration to Associati on input regar ding
such matters : (1) 	The def i nition of
educational objectives, •••; (2)
Determination of course content and
curriculum; {3) Selection of textbooks; (4)
Determination of ed ucational materials,
suppli es and equipment, including
communications equipment; (5) Pupil cond uct
and discipline policies and practices; (6)
Testing methods and development of tests;
(7) Utilization of education aides; and (8)
Determination of in-service training
programs, includ ing content thereof.
4

Article XX enabled the parties to meet and negotiate on
items contained within the contract "if they mutually desire to
do 	SO • II
On March 1, 1978, the District gave tentative notice
pursuant to Article XVII of its perceived inability to pay the
salary increases established by the contract.
On April 3, 1978,3 the Federation filed a peti tion to
decertify the Association pursuant to Board rule 33240.4 	The
petition was accompanied by proof that at least 30 percent of
3At first glance it would appear that the Federation's
petition was not filed within the 120-90 day window period
which technically closed on April 1. However , April 1 was a
Saturday, and thus the filing on April 3, a Monday , was
timely.
4cal. Admin. Code, ti t. 8, sec. 33240, which states :
(a) 	A petition for an election to decertify
an ex1sting exclusi ve repr esentati ve may be
filed with the regional office pursuant to
section 3544.5(d) of the Act by an employee
within the unit or an employee organization.
(b) 	The petition shall contain the
following information:
(1) 	The name, address and telephone
num ber of the petitioner , and the name,
address and telephone of the agent to be
contacted if any;
(2) 	The name, address and county of
the employer;
(3) 	The name and address of the
incumbent exclusi ve representati ve;
(4) 	A descr iption of the established
unit;
(5) 	The approximate number of
employees in the unit;
(6) 	The date the incumbent exclusi ve
repr esentative was recognized or certified;
5

the employees in the established unit no longer desired that
the Association conti nue to be their exclusive representative.
It stated:
The existing contract will "... be
terminated in its entirety as of June 30.••"
if the District does not gr ant the incumbent
exclusive agent a six (6) percent raise.
(Article XVII A-2)
By letter to the PERB regional off ice in Los Angeles on
April 12, the District reacted to the petition. 	It stated:
Although the information r eqgarding (sic)
the AFT request for decertification did not
come as a total surprise, I am unable to
react since the cer tificated collective
bargaining still has more than two years to
go until it expires.
Fn. 4 Cont'd.
(7) 	The eff ecti ve date and the expi ration date
of a curr ent agreement covering employees in the
established unit;
(8) 	A statement that the employees in the
established unit no longer desire the recognized or
certified employee or ganization as their exclusi ve
representati ve.
(c) 	The petition shall be accompanied by proof that
at least 30 percent of the employees in the
established uni t ei ther:
(1) 	No longer desire to be represented by the
incum bent exclusi ve r epr esentati ve; or
(2) 	Wish to be repr esented by another employee
organization.
(d) 	The peti tioner shall concurrently serve a copy of
the petition, excluding the proof of at least 30
percent support on the employer, the incumbent
exclusive representative, and any other employee
organization known to claim to repr esent employees in
a unit. 	A statement of service shall be sent to the
r egional office with the peti tion.
6

It is true that the prov1s1ons of Article
XVII provide for termination of the
agreement as of June 30 of either of the
first two years (see page 51), i t is
premature for the District to be certain as
to its ability to pay the provided
increase . The District's budget for 1978-79
has not yet been developed.
On April 20, 1978, the r egional director requested the
District, the Association and . the Federation to file points and
authoriti es addr essing the issue of the timelines s of the
Federation's petition . All parties complied with her request.
The record does not.indicate clearly whether the District gave
the Association notice of its position on June 1.
On June 29, the District and the Association executed a
document entitled "June 1978 Addendum to 1977-80 Agreement."
See Appendix A. The addendum "deleted and replaced" Articles
XI and XIV of the 1977-80 contr act with two new Articles of the
same numbers . It also stated:
...The District and Association agree that
the District would have been able to meet
the tentati ve salary agreement for the
1978-79 school year as provi ded in Article
XVII (Salaries) but for the legal and fiscal
constraints posed by the passage of
Proposition 13 and Senate Bill 154.
Accordingly, the Association has determined
that it should not cause the Agreement to be
prematurely terminated pursuant to Article
XVII-A, and that instead the contract should
be continued in full force and effect,
except as modified herein, for the balance
of i ts stated term (until June 30, 1980).
All 1977-78 salary schedules and rules
(including step and column ad vancement
rules} shall be continued in effect for the
1978-79 school year, unless amended pursuant
to continuing negotiations between the
Distri ct and Associ ation as provided
her einafter.
7

DISCUSSION
The collective negotiations model is designed to enhance
employer-employee relations5 by creati ng a stable
relationship between the employer and its employees acting
through their freely chosen repr esentati ve. 	Chula Vista City
School District (9/18/78) PERB Decision No. 70; Oakland Unified
School District (10/19/78) PERB Order No.Ad-48. Stability is
achieved when the employer and employees, through their freely
chosen representati ve, execute and cooper atively administer a
comprehensi ve agreement governing employees ' terms and
conditions of employment.
The election of an exclusive repr esentative is a necessary
first step in the collecti ve negotiations process . The EERA
accordingly sets for th a comprehensive elections process.
Section 3544 	t seq. 	It prohibits a broad spectrum of employer
conduct that would impi nge on employees' free choice of a
collective repr esentati ve . Section 3543.5.
5Gov. Code sec. 3540 states in pertinent part:
It is the pur pose of this chapter to promote
the improvement of personnel management and
employer-employee relations within.the
public school systems in the State of
California by providing a uniform basis for
recognizing the right of public school
employees to join organizations of their own
choice, to be represented by such
organizations in their professional and
employment relationships wi th public school
employers, to select one employee
organization as the exclusive representati ve
of the employees in an appropriate uni t, and
to afford certificated employees a voice in
the formulation of ed ucational policy •..•
8

Once an exclusi ve repr esentative has been selected , the
EERA guarantees it a one-year period free from organizational
challenge. 	Section 3544.7(b)(2). This provision gi ves the
employer and exclusive r epr esentati ve a reasonable per iod of
time to negoti ate a collecti ve agr eement.
If the par ti es execute a collective negotiations agr eement,
section 3544.7 (b) (1) gener ally bars ri val organizations from
filing a peti tion .to decertify the exclusi ve repr esentative
until 120 days befor.e expiration of the agreement.6 	Through
this provision, the signatories to the contract ar e enabled to
cooperate for the lif e of the agr eement without threat of
external disruption . See Kheel, Labor Law, section 13.04 et
seq. In this way, the goal of stability in labor relations is
achei ved.
In the event that the exclusive repr esentative and the
employer do not reach an agreement within 12 months after
certification, the EERA agai n gives weight to employee free
choi ce and allows the filing of a petition for
decer tification. 	Section 3544.7(b) (2), supra.
In recognition that stability in labor relations must not
be had fully at the expense of the r epr esentational desires of
the employees, the EERA places a three-year limi tation on the
permissible duration of collective negotiati ng agr eements.
Section 3541.3(h).
6section 3544.7(b) (1) does not necessarily apply to all
collecti ve negotiating 	agreements. 	It is within the province
of the Boar d to decline to protect collecti ve negoti ati ng
agr eements that are in conflict with the purposes of the EERA.
See discussion infra.
9

At first glance, the 1977-80 agr eement in this case would
appear to be protected by the contract bar provision of the
EERA. 	However , the National Labor Relations Board (hereafter
NLRB} has made clear that not all collective bargai ning
agreements are protected by the NLRB's contract bar rule.
While this Board is not bound by NLRB decisions, it takes
cognizance of them in analogous areas of law. 	Fire Fighters
Union v. City of Vallejo 	{1974} 12 Cal.3d 608 	[87 LRRM 	2453];
Sweetwater Union High School District 	{11/23/76} EERB Decision
No . 4 .
The NLRB generally will not direct an election when 	valid
contract is in existence . 	Polar ware Co. {1962} 139 NLRB 1006 ,
[51 LRRM 1452]; Road Materials, 	Inc. (1971) 193 NLRB 990 	[78
LRRM 1448]. 	However , such a contract must meet certain
requirements. 	It must be in wri ting and signed by the
parti es. 	Pittsburg 	Plate Glass Co. {1957} 118 NLRB 	961 	[40
LRRM 1296]; Peter Paul Inc. (1973} 	204 NLRB 	241 	(83 LRRM
1310]. 	It must provi de for exclusi ve recogni tion of the
bar gai ning agent 	(Dover Ceramic Co. (1956) 115 NLRB 1040 	[37
LR.RM 1488], J.P. Sand and Gr avel Co. (1976) 222 NLRB 83 	[91
LRRM 	1187]) 	cover an appropri ate uni t {Central General
Hospital 	(1976) 223 NLRB 110 [91 LRRM 14331 	provide
substantial terms and conditions of employment (Consolidated
Cement Corp. 	(1957) 117 NLRB 492 [39 LRRM 1262], Appalachian
Shale Products Co. (1958) 121 NLRB 	1160 	[42 LRRM 1506); and
a
1

extend for a definite and reasonable term (Nash-Kelvinator
Corp. (1954) 110 NLRB 447 [35 LRRM 1074], Pacific Coast
Association of Pulp & Paper Manufacturers 	(1958) 121 NLRB 990
[42 LRRM 	1477]).
It is undisputed that the collective negotiations agr eement
in this case is sufficiently comprehensi ve in scope to meet the
above 	requi rements. 	The parties consider the crucial issue to
be whether this case is governed by the NLRB's decfsion in
Deluxe Metal Furniture Company (1958) 121 NLRB 995 (42 LRRM
1470), which held that a midterm modifications provision does
not remove the contract bar unless the contract actually has
been terminated. 	The District and the Associ ation argued , and
the regional director found, that Article XVII was a
"modifications" clause . They argue that the Deluxe rule
applies her e 	o bar the Feder ation's petition . The Federation
argues, however , that the article calls not for modification,
but for "termination in the event that a six percent raise does
not occur."7
7The Federation ar gues:
If the parties had desired to negotiate a
modification clause or a r eopener clause,
they would have done so. But Article XVII,
by provi ding for terminati on, obviously
contemplates something other than
negotiations toward the modified contract.
The only possible interpretation of the
clause is that, if the teachers did not
recei ve the six percent increase which they
were expecting , then they are free to take
whatever action they deem appropri ate in
or der to obtai n what they consider to be
proper compensation from the school
district.
1

Whether a "modifications" clause is involved in this case
is at best questionable. The clause at issue here, Article
XVII, does not provide for modification .8 	Rather , it gives
the District the option to terminate the contract at the end of
the first or second year. 	It equally may be consider ed to
create a one year contract, renewable for a second and a third
year at the District's option . These unilateral options are
not equi valent to the bilateral power to modify addressed in
Deluxe. 	Technical disti nctions, however , ar e inessential to
our disposition of this case. 	For even if this contract
involves a modifications clause identical to the one in Deluxe,
we are not obliged to follow the ruling of that case.
The NLRB adopted Deluxe after more than 20 years of
experimentation concerning contract bar principles. 	In i ts
earliest days, the NLRB permitted employees to change
bargaining repr esentati ves, even in the face of valid
contracts. 	New England Transportation Company (1936) 1 NLRB
130 	[l LRRM 97]; Swayne and Hoyt, Ltd. 	(1936) 2 NLRB 282 (1
LRRM 99] . The NLRB reversed this position in 1939. 	It then
held that repr esentation elections generally would not be
conducted during the lifetimes of collective bargai ning
agreements. National Sugar Refining Co. (1939) 10 NLRB 1410 [3
LRRM 544].
8Article XX of the contract, which is not put in issue by
the parties, enables the contr acting parti es to meet and
negotiate on items contained within the contract "if they
mutually agr ee to do so."
1

For fifteen years following its decision in National Sugar , the
Board increasingly weighted contract bar pr inci ples in favor of
stability in bar gaining relationshi ps.
This basic approach was applied to numerous types of
contract clauses. As the NLRB evolved , it gave protection to
contracts containing automatic renewal clauses (see Mill B,
Inc. (1942) 40 NLRB 346 [10 LRRM 62], reversing American Oak
Leather Furniture Co. (1941) 31 NLRB 1155) . It applied the
contract bar principle to pr ematurely extended contracts 	(see
Republic Steel Corporation (1949) 84 NLRB 483 [24 LRRM 1286],
and compare Northwestern Publishing Co. (1946) 71 NLRB 167
[18 LRRM 1476] and Wichita Union Stockyards Co. (1942)
40 NLRB 369 [10 LRRM 65]). It also applied the principle to
modifications of collective bargai ni ng agr eements (see Western
Electric Compa?y 	(1951) 94 NLRB 54 [28 LRRM 1002], S & W Fine
Foods (1947) 74 NLRB 1316 [20 LRRM 1269], and compar e Chapman
Valve Manufacturing Co. (1942) 40 NLRB 800 [10 LRRM 79] and
Duquesne Light Co. {1946) 71 NLRB 336 	[18 LRRM 	1498]).
This trend, however , was reversed in General Electric
Company (1954) 108 NLRB 1290. 	General Electric confronted a
collective bargai ning contract that contained a modifi cations
clause enabling either party to renegotiate any aspect of the
agreement within prescribed time periods. In the event that
the parti es failed to reach agreement , the contract author i zed
the union to strike, in which event the employer could
termi nate the contract. 	The NLRB held that such a contract did
not merit the protection of the contract bar rule. 	The Board
held:
1

We fail to perceive how a contract which
contains such a broad provision for midterm
modification, and which contains no
inhibitions on the Union's right to str ike
to enforce its demands, and expressly
provides the privilege of termination by one
party only, can be said to have stabilized
the relationship between the parties for the
full nominal term of their contracto 	Under
this provision, once notice is given nothing
remains of the entire contract but the
meaningless terminal date, which is i tself
subject to extinction.
The Board continued:
Viewed realistically, this contractual
provision i nsures no greater degree of
stabili ty than does the usual
automatic-renewal clause, which the Board
has consistently held opens a contract to a
timely rival peti tion. In ei ther situation,
until the time for giving notice has passed ,
or the parti es have executed a new or
modified contract, the degree of ind ustrial
stability which the Board's contract-bar
principles were designed to preser ve does
not exist. 	In neit her situation, therefore,
is there any r ational basis for denying to
the employees, on the basis of a timely
petition, an immediate opportunity to
exercise their franchise. 	(General Electric
Company (1954) supra, 108 NLRB at pages
1291, 1292. 	(Emphasis added.)
General Electric remai ned the policy of the NLRB for four
years. In 1958, the NLRB reversed itself in Deluxe Metal
Furniture Co. (1958) supra, 121 NLRB 995 [42 LRRM 1470]. 	It
held:
A midterm modification provision, regar dless
of its scope, will not remove a contract as
a bar unless the parties actually terminate
the contract • ••• (121 NLRB at page 1003.)
The Board theorized that the modifiability of a collective
negotiations agreement only impacts on labor stability when the
contract actually has been terminated. 	It stated:
1

••.[I]t is clear that the parties i ntend and
expect that their bargaining r elationship
will continue for the full specified period,
and that the termination part of the clause
is one to be exercised , if at all, as a last
resort. 	It should not be assumed that
because one or more of the conditions
precedent have been met the parties will
exercise their right to terminate the
contracts. 	On the contrary, having engaged
in bargaining sessions which are frequently
long and arduous, and having f inally arri ved
at an agr eement, the parties in all
probability would be unwilling, duri ng
midterm modification negoti ations, to
abandon their contract ther eby sacrificing
the mutual benefi ts achi eved. 	Such a
contract is as effective in stabilizing
labor relations, until the parties actually
elect to terminate, as any other contract.
For, even without such a provision, a
contract may be terminated by mutual assent
of the parti es. 	(121 NLRB at page 1004.)
Apart from these policy considerations, the decision also gave
great weight to consideration s of administrati ve conveni ence ,
predictability of result, and speedy resolution of questions
concerning 	repr esentation. 	See Deluxe Metal Furniture Co.
(1958) supra, 121 NLRB at page 1004. 	And see BNA, 1967 Labor
Relation s Yearbook 210.
That the NLRB curr ently follows a policy favoring stability
in bargaining relationships does not persuade us that this
Board should strike a similar balance. 	The NLRB decided Deluxe
more than three decades after private sector collective
bargaining 	began. 	In Califor nia, however , the pr inciple of
public employee collecti ve negotiations is a new one. 	Publi c
school employees have had li ttle exposure to the system of
collecti ve negotiations instituted by the EERA. They have had
little experience with which to gauge the repr esentational
1

abilities of their exclusi ve representatives. It ther efore
would be ill-advised to articulate a blanket rule disabling
employees frcm exercising their free choice in all instances
where a collective negotiations agreement is in place. 	We
accordingly decline to bind ourselves to the broad r ule
articulated 	in Deluxe.
The status of the collective negotiation s agreement in the
present case remains to be determined. 	It is beyond dispute
that a collective negotiations agreement is the sine gua .!12.!! of
stable labor relations. In apprising employees of the material
aspects of their work and in setting forth timeframes and
procedures to be followed in the event of employer-employee
conflict, collective negotiation s agreements eliminate many of
the uncertainti es and unstable elements of the labor-management
relationshipo 	Not all collective negotiations agr eements
effectuate stability, however. 	Those that do not should not be
gi ven the protection of the contract bar rule, regardless of
the convenience and timesaving that might result from
establishing a hard and fast administrative formula.
While that contract bar rule is statutory and asserts a
clear prohibition in the face of an existing "lawful written
agreement," the Board recognizes that an agr eement r esulti ng
from collective negotiations does not fit the common mold, but
has an identity and character of i ts own. 	That identity--and
the consequent test of "lawfulness"--is created by the language
of the EERA itself.
1

Section 3540 indicates that a fundamental purpose of the
EER 	is the improvement of personnel management and
employer-employee relations in the public school system
throughout the medi um of collecti ve negotiation s.
Section 3540.l(h) defines "meeting and negotiati ng" as the
mutual good faith effort to reach agreement on matters within
scope and the reduction of any agreement to a written document
which shall become binding on the parties when bilaterally
accepted.
Inherent in these two provisions is the concept that as
issues are resolved through negotiations, the r esulting mutual
accommodations of the parties, memor ialized in a bi ndi ng
agreement for some fixed period, will result in a stabilization
of the employment relationshi p. To give a purely technical and
narrow meaning_ to the phr ase "lawful written agr eement" would
be to give sanctification even to spurious arrangements and to
d eny to employees relief from purported agr eements which might
contain nothing more than a recogniti on clause and term of
dur ation. 	While this example may be extreme, it nevertheless
serves to illustrate that the phrase "lawful written agreement"
is not meant to apply to a document which fails to meet the
stated purposes of the EERA either because of the lapse of its
substantive provisions or because it is terminable at the will
of the employer.
The collective negotiations agreement in the present case
is an example of such a contract. 	On the one hand , it suppli ed
substantial terms and conditions of employment for the first
1

year of its purported three-year term. 	On the other hand ,
Article XVII significantly dimini shed the certainty and
stability of the parties ' collecti ve negoti ations r elationship
after the first year. 	It permi tted the employer unilaterally
to terminate the contract if it deemed funds not to be
available . The employer gave tentati ve notice of termination
in March of 1978. Thus, beginning in March, a cloud was cast
over the contract. 	The terms and conditions of employment for
the 1978-80 period were in suspension. 	The decision whether to
conti nue those terms agr eed upon in December 1977 rested in the
hands of the District alone . In this case, as in General
Electric (1954) supra, 108 NLRB 1290, "the degree of
stability which the .•. contract bar principles were designed
to preserve [did] not exist" once the District gave notice of
termination in March.
The employer's ability to r emold the contract particularly
undermined whatever stability may have been inherent in it.
Article XVII eff ectively changed the bilateral process of
negoti ations into a unilateral one at the end of its first and
second years of operation . It gave the District the power to
cast aside the par ties' thr ee-year agr eement over wages, hours
of employment, leave and safety polici es, procedur es for
processing grievances, tr ansfers and evaluations, and all else
contai ned withi n it. 	It allowed the District to use its power
of termination as a foil to force a r eduction in salary
incr eases. 	It effecti vely gave the District the option of
opening--or closing--the door for the filing of a
1

decertification petition by terminating the contract. 	In
essence, it gave the employer the power, after one year , to
determine the ad vantageousness of continuing wi th the contract ,
and to continue it, or not to continue it, as it saw fit. 	The
employee or ganization, on the other hand , was obliged to uphold
the terms of the contract, no matter how disadvantageous they
came to be, for the entire potenti al duration of the contract
per iod. 	We are hard pressed to see how this ar r angement
effectuated stable labor relations.
That the contract required the employer to make "diligent"
efforts to secure adequate funds does alter these findings .
Disputes arising under Article XVII were excluded specif ically
from the scope of Article VI, the binding ar bitration provision
of the agreement. 	This .exclusion precluded a neutral, thi rd
party determin?tion of the availability of funds . 	It is true
that Article XVII stated that disputes concerning the
availability of funds were "to be handled pursuant to
applicable statutory negotiation •.. •" 	However , the employer
is under no duty to make concessions in meeting and
negoti ating. 	In addition, the agreement gave the Associ ation
only a limited right of "consultation" in the event that it
disputed whether the District had made adequate efforts to make
funds available .9 	This scheme heightened the lack of
stability that inhered in the contract upon the employer's
giving tentati ve notice of termination.
9see footnote 2, ante.
1

Since the contract effectuated stable labor relations only
during the course of i ts first year , i t must be considered to
be for one year's duration for the pur pose of section
3544.?(b)(1).10 	The Federation' s peti ti on therefore was
timely filed d uring the appropri ate window. period. 	The
regional director's dismissal of the petition is reversed.
This decision, however , should not be read to extend carte
blanche to employee organization s desiring to oust exclusive
repr esentati ves when collective negotiating agr eements are in
effect. 	Where valid collecti ve negoti ating agr eements ar e
oper ational, the Board gener ally will not process a petition to
decertify unless it is filed within the "window period" between
120 	and 90 days prior to the expi ration date of the agr eement.
Section 3544.?(b)(1). This case establishes an exception to
that rule when the collecti ve negotiating agr eement in question
gives the employer the unilater al power to terminate or modify
i ts terms. The r esolution of contract-bar related issues
arising outsi de of this limited context is left to later
cases.
lOin view of this conclusion, it is unnecessary to
determine whether the legal effect of Article XVII was to cause
the contract to be one for one year's dur ation, renewable at
the option of the District. 	See discussion supra at page 12.
20

ORDER
The Los Angeles regional director's dismissal of the
decertification petition filed by Bassett Federation of
Teachers, Local 727, AFL-CIO, against Bassett Educators
Associ ation, CTA/NEA, is reversed. 	The regional di r ector is
directed to process the decertification peti tion filed by the
Feder ation .
By: 	Harry/GI 	jirilou Cossack Twohey, ME£filber
Raymond J. Gonzales, Member, dissenting:
I dissent from the majority's decision to allow the
Federation's decertification petition to be processed. 	The
plain languag 	of Government Code section 3544.7(b)(l)requires
the Board to dismiss this petition.
Section 	3544.7(b)(l)provides:
No election shall be held and the petition
shall be dismissed whenever:
There is currently in effect a lawful written
agreement negotiated by the public school
employer and another employee organization
covering any employees included in the unit
described in the request for recognition, or
unless the request for recognition is filed
less than 120 days , but more than 90 days,
prior to the expiration date of the agreement.
No party has disputed the fact that a lawful written agreement
was in effect when the decertification petition was filed.1
1r will discuss the majority's implication that this
agreement was not a "lawful written agreement" infra.
uck , Chair person
21

The parties only dispute whether Article XVII of that agreement2
constitutes a modification clause or a termination clause. 	Thus,
the only question is whether or not June 30, 1978 should be
considered the expiration date of the agreement.
As of the date the petition was filed, the District had
given tentative notice of its· perceived inability to fund a six
percent salary increase. 	This, however, did not make a contrapt
termination inevitable. 	It merely set in motion a bilateral
negotiations process as to whether funds were in fact available.
Until the agreement actually terminated, we cannot say that it
would inevitably terminate prior to its stated expiration date.3
The.parties gave themselves ample time to negotiate modificati ons
to the agreement, and in fact did modify the agreement so as to
avoid terminating it. 	Therefore, on its face, I do not think
that the March 1 tentative notice causd the expirc;tion date of
the contract to change.
I also do not think that midterm modification clauses should
be cause for PERB to drop the contract bar. 	While I have always
agreed with the majority that NLRB decisions are not binding on
PERB, I find the reasoning in Deluxe Metal Furniture Co. (1958)
2Article XVII is set forth at pp. 3-4 of the majority
opinion, ante.
3This case is distinguishable from South East Ohio Eg
Producers (1956) 116 NLRB 1076 [38 LRRM 1406), cited by t e
IIFederation in its appeal. 	In that case, a specific event
occurred which automatically set a new termination date for
the contract. 	In the present case, a new termination date did
not automatically arise when the District gave tentative notice;
the District still had to provide notice on June 1, and even
then termination was not inevitable.
22

121 NLRB 995 [42 LRRM 1470] persuasive, particularly in view
of the plain statutory language of section 3544.7	(	b)l	().
Deluxe Metal held that "[a)midterm modification provision,
regardless of its scope, will not remove a contract as a bar
unless the parties actually terminate the contract . . 	"
This seems consistent with section 3544.7(b)(l)'s requirement
that decertification petitions shall be dismissed whenever
there is currently in efect a lawful written agreement.
The majority argues that the contract provision in this
case is not really a modification clause of the type discussed
in Deluxe Metal since it gives the District the option to
terminate the contract at the end of the first or second year.
The District, however, cannot exercise this option without
negotiating and, if necessary, participating in impasse
procedures in good faith,4 that is, with a subjective intent
to reach agreement.5 The NLRB, in Deluxe Metal, stated:
Modification clauses containing provision for
unilateral termination by notice if agreement
is not reached . . . will be treated in the
same manner as any other request for mid-term
modification and will not remove the contract
as a bar.
4Article XVII provides that "[a]ny disputes with respect
to whether there is an availability of funds for the second
and third-year salary increases are to be handled pursuant to
applicable statutory negotiation and, if necessary, impasse
procedures . . ." 	Applicable 	statutory procedures require good
faith. 	Government Code section 3543.S(c) and (d).
5see Pajaro Valley Unified School District (5/27/78)PERB
Decision No. 51.
23

The clause in question in the present case seems to me to fall
within the purview of this language. 	Therefore, I would find
the reasoning of Deluxe Metal clearly relevant even though it
deals with a private sector case.
The majority, however, declines to bind itself to the
reasoning in Deluxe Metal. 6 After going through a lengthy
analysis of the evolution of the Deluxe Metal rule, my colleagues
reason that since public employee collective negotiating is new
in California, PERB, in effect, should be less protective of
negotiated agreements than the Deluxe Metal rule requires.
I believe that the majority gives itself more flexibility
in dealing with the contract bar provision of the EERA than is
permitted by the statute. 	Unlike the NLRB, which, in developing
its own contract bar rule, was able to modify the rule in
response to its changing perceptions of labor relations, PERB
is bound by a statutory contract bar provision, the interpretation
of which is controlled by legislative intent. 	Yet the majority
seems to imply that the Legislature's intent with respect to
the application of section 3544.7(	b) (l) is a flexible concept
which may change as public employees gain more exposure to
collective negotiations. 	The majority is apparently trying to
gain the flexibility of a case-made rule in spite of the fact
that it is dealing with statutory language.
6My colleagues, who are generally the ones to rely on
private sector decisions, find it convenient in this instance
to ignore the obvious applicability of Deluxe 1 Metal.
24

The majority refers to overruled NLRB cases in making its
argument that the agreement in this case is not sufficiently
stable. 	Is it not more logical to assume that the Legislature,
in creating a contract bar, had the current NLRB policy, in
existence since 1958, in mind rather than overruled policies?
Thus, I think the policy set forth in Deluxe Metal is an
appropriate guide to legislative intent in this case. 	This is
particularly so since that policy comports with the language
of section 3544.7(	b)(l)requiring the Board to dismiss petitions
when a lawful written agreement is in effect.
The majority, trying to get around the statutory language
apparently finds the agreement negotiated by the parties in
this case "unlawful." 	It seemingly believes the agreement is
not "lawful" because it does not result in a stabilization of
the employment relationship.
I totally disagree with the majority's interpretation of
the phrase "lawful written agreement." 	I cannot believe that
the Legislature in using that term intended to give PERB the
authority to evaluate the content of collective negotiation
agreements to ensure that they meet PERB standards for stability.
I cannot believe that the Legislature intended an agreement
which sets terms and conditions of employment to become unlawful
merely because it contains a clause giving one party the
ability to terminate the contract when specific conditions are
met. 	The majority's notion of lawfulness gives it almost
unlimited freedom to refuse to enforce the contract bar provision
in the face of otherwise perfectly valid written agreements.
25

The majority, in effect, is imposing its judgment on the terms
of the contract rather than limiting its role to that of
interpreting and applying the EERA. 	I do not believe that the
Legislature intended the use of the word "lawful" to give the
Board such discretion in deciding when to apply section 3544,7(b)(l).
The majority's notion of stability, which it equates with
lawfulness, is also quite flexible. 	Stability apparently does
not only go to whether the terms and conditions of employment
are likely to continue, but also to who has the power to decide
whether the agreement will continue. 	Thus, stability, and·hence
lawfulness, is equated with one-sidedne ss. 	This seems to me to
be an inexcusable interference with the parties' ability to
make agreements to fit their needs.
The agreement in this case is an ·example. 	The clause in
question is a'reasonable contract modification clause, given
the exigencies of public school finance. 	The parties wanted a
three-year agreement and wanted to increase salaries six percent
each year. 	They recognized, however, that circumstances might
arise which would preclude such an increase, and therefore tried
to develop a reasonable solution. 	They agreed that if the
District could not pay the contractual increase, contract
negotiations should start from scratch, with both parties free
to make new proposals on all subjects. 	While the District is
given the ultimate authority to decide whether or not it is in
fact able·to pay the increase, the parties ensured some degree
of joint decision-ma king by requiring the District to meet and
negotiate and participate in impasse procedures in good faith.
Although the majority seems to find this agreement one-sided,
26

unstable, and unlawful , I do not think it is an inherently
unfair solution to a problem facing all school districts which
attempt to negotiate multi-year contracts.
I believe the majority·is unreasonably interfering with
the parties' ability to negotiate a multi-year agreement which
retains some flexibility. 	Such flexibility is almost mandatory
in the public sector where funding is uncertain and the employer
may be unable to meet negotiated wage increases. 	The majority's
decision, however, has greatly increased the risk the parties
take in developing contract modification clauses. If the parties
are not exceedingly careful to avoid crossing the line between
flexibility and instability, they run the risk of PERE allowing
decertification proceedings to begin. 	The majority's 	unwarranted
evaluation of contract modification clauses thus appears to
discourage stable multi-year relationships and encourage the
instability inherent in decertification attempts. I fail to
see how this effectuates the purposes of the EERA.
d J .-Gd'rizalis, Membr
27

PUBLIC EMPI.DYMENr REI.ATICNS BOARD
OF THE STATE OF CALIFORNIA
BASSEIT UNJi lED SCHOOL DISTRICT,.
Employer,
and
BASSEIT EDUCAlORS ASSOCIATION, CTA/NFA,
Employee Organization,
and
BASS"EIT FEDERATION OF TEA01ERS , AFT LOCAL 727 ,
AFL-CIO,
Enployee Organization.
Case No .IA-R-587
ORDER DISMISSIN:; PEtlTION
FOR DECERTIFICATION
earances : 	Charles R. Gustafson, Attorney for Bassett Educators Association,
/NE'A; Lawrence Rosenzweig, Attorney (Levy , Koszdin, Goldschmid & Srolof f) for
Bassett Federation of Teachers , AFl' Local 727 , AFL-CIO; Richard N. Fisher , Attorney
(O 'Melveny & Myers) 	for Bassett 	Unified School District .
BACKGROUND
On January 24, 1977 , a unit election for exclusive representation of
certificated 	e:nployees in the Bassett Unified School District 	(District) 	was
conducted between Bassett Educators Association, CT.A/NF.A (Association) , Bassett
Federation of Teachers , AFI' Local 727 , Afl.-CIO (Federation) and no representation.
A majority of the valid ballots having been cast for the Association , on
February 2, 197.7 the Association was certified as the exclusive representative
for certificated 	errployees 	in the District .
On Decemer 1, 1977 , a written agreerrent covering wages , hours and other
tenns and conditions of 	er.ployrrent was signed by representatives 	of 	the Di.strict
and the Association and thereafter adopted by the District ' s &::lard of Education.
Article XXI of the agreem:nt , ''Duration and Negotiation Procedures", states
t.1-iat t. e agreerrent "shall remain in full force and effect up to and including
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
________________)

June 30. 1980, unless earlier terminated pursuant to the express terms of
Article XVII - Salaries . . ." 	Article XVII of the agreem=nt provides that
the District shall pay a six (6) percent general sa.la:ry increase to the
bargaining unit effective July 1in the second and third years ofthe agreem:nt
"contingent upon receipt of anticipated State inc. reasonable staffing
ratios and upon the availability of sufficient unallocated general funds ." 	In
the event that adequate unallocated funds are not "deen;d" available , Article XVII
further provides 	that "the District shall not be obligated hereunder , but the
agreem:nt shall in such an event be tennina.ted in its entirety as of June 30 .''
Addition.ally, the·agreenent states that the Di.strict shall on both March 1 and
June 	1 give the Association tentative notice of 	its perceived ability to fund the
above-m:mtioned sala:cy provisions . 	Lastly, Article XVII provides that "any
disputes with respect to whether there is an availability of funds for the
second or third year 	ala.ry increases are to be handled pursuant to applicable
statutory negotiation and, if necessa:cy , izit>asse procedures. 	. . and disputes with
respect to whether the Di.strict has made an adequate effort to make such funds
available are to be handled pursuant to the consultation provisions of
Article VIII. . ..''
On April 3, 1978, the Federation filed with the Los Angeles Regional
Office of the Public E.n;>loymmt Relations Board (PERB) a representation petition
-2-

pursuant to Goverrmem:; Code section 3544.S(d)l.regardi.i...g the certificated
employee tmit :in the Di ttict. 	At the time the Federation filed its petition,
the above-rrentioned collective negotiating agreen:ent existed between the
District 	and the Association. 	Pursuant to the request of t.'li.e Regional Director ,
on May 1 and 2, 1978 the Association, Federation and District filed their respective
!lEilDranda of points and authorities regarding the above-captioned matter .
ISSUE
IX:les the collective negotiating agreerent betw'een the District and the
Association bar the Federation' s representation petition pursuant 	to section 3544. 7 (b) (1)
DISCUSSION AND CONa.USIONS
'Ihe California. Suprene Court has held that when the Labor Managenent
Relations Act2 (U1RA) 	does not contain specific wording caq:iarable to State
legislation regarding 	the public 	employee-employer 	relations 	but 	where 	federal
precedents under the U1RA effectively reflect the sa.tm il'iterests as those which
1All section references are to the C'.alifornia Goverment Code unless otherwise
specified.
Sec. 3544.S(d)states:
A petition may be filed with the board [PERB] , in
accordance with 	its rules 	and regulations , 	requesting
it to i.nvestigate and decide the question of whether
employees have selected or wish 	to select an exclusive
representative or to dete:i:mi.ne the appropriateness of a
unit , by:
***
(d) AfJ. enployee organization alleging that the etq)loyees
in an appropriate unit no longer desire a particular
employee organization 	as their exclusive representative ,
p-rovided that such petition is supported by current dues
deduction authorizations or other evidence such as
notarized rranbership 	lists , 	cards , or petitions 	frcm 30
percent of the employees in the negotiating 	unit indicating
support for another organization or lack of support for the
incunbent 	exclusive representative.
2u .s.c. sec. 	151 et seq . 	1he Labor Management Relations Act amended the
National Labor Relations Act.
-3-

prcm.J.1.gated 	the inclusion of specific language in the State legislation, 	the
federal precedents provide "reliable if analogous authority on the issue."
Firefighters 	Union v. City of Vallejo (1974) 12 Cal.3d 608, 615-617, 87 L'™ 2453.
See also Sweetwater Union High School District (11/23/76) EERB Decision No. 4.
'Ihe statutory 11
contract bar" language contained in section 3544. 7 (b)(l) is quite
similar to the contract bar doctrine developed bythe Nat:ional Labor Relations
Board (NI.RB) . 	Accordingly, in reaching this decision, cognizance is taken of
c.a se law developed under the I.MRA.
Section 3544. 7 (b) (1) provides 	for the dismissal of a decertification petitic:1
and bars an election during the term of a collective negotiating agreem:mt.
Section 3544.7(b) (1) states:
No 	election shall be held and the petition shall
be dismissed whenever:
(1) There 	is 	currently 	in effect: a 	lawful written
agre.em;nt negotiated by the public sch:X>l eaployer
and-another employee organization covering any
e:I;>loyees 	included 	in the unit 	described 	in the
request 	for recognition, 	or unless 	the 	request 	for
recognition is filed less th.an 120 days , but n:ore
th.an 90 days , prior to the expiration date of 	the
agreenent.
In order to bar a petition for an election, an agree.m:nt tI1.1St be written,
signed by authorized representatives of both parties , have a definite duration,
contain substantial tel:'IDS and conditions of enployment and cover all enployees
in the appropriate unit. Appalachian Shale Products Co . (1958) 121 NLRB 1160,
42 LRRM 1506. 	None 	of 	the parties 	apparently disputes 	the fact that 	the agreement
in question meets the requirements of Appalachi.an 	Shale. 	The Federation, h<Y.VeVer,
argues that Article XVII , section (A) (2) rerroves the agreemnt as a bar. 	Both
the District and the Association argue that Article xvrr is in effect a mid- term
rrodi.fication provision and t:ha.t the agree:rent is and will continue to be a bar
-4-

until such time as it is actually te:rmi.nated. 11-.-.e District concedes that in
the 	event the agreemnt is 	te:rmi.nated, 	a decertification petition filed after
tennination but before the execution date of a new contract would be ti.m=ly.
As noted by the NLRB' s General Counsel in 	An Outline of Law and
Procedure in Representation c:ases :
The major objective of the Board's 	[NLRB' s] contract-
bar doctrine is to achieve a reasonable balance between
the 	frequently 	conflicting 	aims 	of 	:industrial 	stability
and freedcm of errployees' choice. 	This 	doctrine 	is
intended 	to afford 	the 	contracting parties 	and the
enployees a reasonable period of stability in their
relationship 	without 	interruption 	and 	at 	the 	saire 	tinE
to afford the enployees the opportunity, at reasonable
tinEs, to change or elim:i.na.te thef'bargaining repre-
sentative, 	if they wish to do so.
In the landmark decision in l:'eluxe Metal Funri.ture 	Co. 	(1958) 121NLRB
995, 42 LRRM 1470, the NLRB, in revising and reviewing its "contract bar"
doctrine , established 	rules 	of 	tinEliness 	regarding 	the 	three 	district 	procedural
stages
'Which arise "When a contract approaches tennina.t:i.on: 	(1) the open period during
which 	decertification petitions 	may be 	filed; 	(2) 	the insulated period 	:inm:diatly
following the open period during which decertification petitions will not be
considered t:i.Irely filed and til.ie parties are penrd..tted to negotiate "free from the
threat of over-hanging rivalry and uncertainty"; and (3) the post-tenn:i.nal period
during which; if no contract is entered into dtn::i..ng the insulated period , a
decertification petition may be entertained. 4
Deluxe :involved a three-year contract , October 1955 to January 1958, willch
"shall thereafter be continued for one year periods unless notice of te:rm:i.na.tion
or mdification 	in writing by registered mail is given by either party to this
3An Outline of Law and Procedure in Representation Cases , Office of the
General Counsel, National Lafur Relations BOaid (1974), p . 74.
4For a discussion of l:'eluxe and the specific time periods established by the
NLRB therein, see tbrris , The I:leveloping Labor Law (1971) , pp . 177-180 .
-5-

agreement." 	In Nove!:Iber 	1957, 	notice of 	a desire to m:idi.fy was 	given to the
loyer 	by 	the 	exclusive 	representative. 	On January 20, 1958, the employer
and the exclusive representative signed and ratified a ''Merorandt:m of Understanding."
A decertification petition was 	filed by a canpeting labor organization with 	the
NLRB Regiooal Office the following day .January 21, 1958.
In addressing the issue of whether the above-quoted clause reo:oved the
contract as a ba:r, the NLRB held:
A mid-teJ:m trodification 	ion, regardless 	of
its scope will not raoove a contract as a bar
unless the parties actua 	terminate the contract .
1he Board believes it besl
t l
to
y permit the pa:rt:ies
to IIDdify or ammd any of the substantive provisions
of their 	contract, in accordance with 	aey mdification
clause--whether broad or na:n:ow in scope--ar by nutual
assent: at any tim! during its te:rm. 	'I1ms , no mi.d-
te:r.m trodification clause. nor aif1f action pursuant thereto
short of actual tenninati.on, will rerove a contract as
a bar 	. . .. 	Modification clauses containing provision
for unilateral 	tennination by notice if agreen:ent 	is not
reached or permitting a strike or lockout 	in support of
grzy ·danand made during the mdification negotiations and
the right to teI:minate thereafter , will be treated 	in the
sarre manner as any other re.quest for mid-':erm rrcdification
and will not rem:>Ve the contract as a bar.
. . . All the parties will need to prove and the Board
[NLRB] will need to detenrrl.ne is whether the contract has
been te?mi.nated. 	When parties include in their fixed term
contract a clause 	certain steps SUCh as negotiations ,
deidloCk, and/ or s 	· 	or lOCkOUt 	as conditions 	precedent
to te:rmina.tion. 	the contract will continue to be abar
regardless of WhiCh of its conditions shOrt of termination
bas-beeri mt.
The NLRB explained the rationale behind its ruling by stating:
It is believed that to hold this type of contract not
a bar 	is to disregard the significance of these inter-
rrediate 	steps. 	For, by includ:ing a clause conta.:ining
such conditions precedent 	to temination 	it is clear
that t:he parties intend and expect that their bargaining
relationship will continue for the full specified period.
and that the ten:nination pa.rt of the clause is one to be
exercised, 	if at all, as a la.st resort . 	It should not be
asSUlll:d that because one or rore 	of 	the conditions precedent
-6-

have been met the parties will exercise their right
to terminate the contracts. On the contrary, 	having
engaged in bargaining sessions which are frequently
ong and arduous, 	and having finally arrived at an
agreement, the parties in all probability would be
unwilling, during mid-term modification negotiations
to abandon their contract thereby sacrificing the
mutual benefits achieved. Such a contract is as
effective in stabilizing labor relations, until the	ec 	:ve in s 	i 	r 	relations , unti 	the
parties actually elect to terminate, as any other	parties actually elect to tetmi.nate,as mJ other
contract.	contract. 921 NLRB 1003-1004 [Emphasis added. ]	921 ·NUU3 1003-1004 [Emphasis added.]
[Footnote omitted. ]	[Footnote anitted.]
'Ihe NLRB has consistently follcmed the Deluxe precedent in cases involving
contract bar 	issues . 	Th.us , inEllison Brothers Oyster 9:.'mpany (1959) 124 NLRB U25,
44 LRRM 1629, a then exist:i.ng contract between the exclusive representative and the
enployer was held to bar a decertification petition filed by a rival labor
organi.zation even though the exclusive representative gave notice of 	its desire
to mdify 	the contract eight mnths 	prior 	to 	its 	expirati.0n date. 	The NLRB declared:
It is clear that the parties agreed that this
nod.ce was pursuant to the provision in the
contract providing for mi.dtel.'lll mdification of
the contract with rega:rd to wages only. 	The
Board [NLRB] has established the rule that no
action pursuant 	to a midterm oodi.ficati.on 	clause
short of 	actual 	t:erminati.on of 	a contract will
rem::ive a contra.ct as a bar except Yilere notice
is given imrediat:ely prior to the auta:oatic
renewal 	date of 	such 	contract:. 	As 	the Union's
notice 	in this 	case was 	for the purpose 	of
ba:rga.ining as to wages only and was g:i.ven 6
!IDilt:hs before the autanatic renewal date of the
contract , we find that 	the 	contract 	autcxoa.tically
renaved itself on February 1, 1959, and is a bar
to 	this 	proceeding. 	124 NLRB at U26
[Footnote 	emitted. }
See also Providence Television , Inc. (1971) 194 NLRB 759 , 79 I..RRM 1079 ,
holding, 	pursuant to the policy stated in Deluxe, 	that the agreanent 	therein, 	as
automatically rd for one year and an:e:ided to include a broad trJ:i.d-term
m::xli.fication provision, was a contract for a fixed term whic.f.i operated to bar
a decertification petition.
-7-

An examination of the language of the agreement betr.veen the District
and the Association and particularly .Article XVII in the instant natter
reveals 	that 	the parties 	clearly intended to provide 	for mid-teJ:m salary
m:xii.ficati.ons during the agree:mnt e s tam, Decaiber 1, 1977 through
June 30, 1980, by providing for a six (6) percent salary :irlc:rea.se for the
second and third years of the agreen:ent: contingent upon sufficient unallocated
funds frcm which to provide said salary increase. 	Article XVII further
obligates the District to give notice of its perceived financial condition by.
certain dates with issues regarding the availability of funds for the second
and third year salary inc:reases to be resolved through statutory negotiations
and, if necessary, in;>asse procedures. 'lbe conditions precedent to ter.mina:tion
contained in the instant mid-tenn m:xlification clause of notice by the District
of its perdeived .fi.nancial condition, negotiations and mpasse procedures
are similar to the pri.vat:e sector provisions enunciated 	in Deluxe 	for negotiations ,
deadlock, and/or strike or lockout and held by the NLRB to not rem:Ne the
contract 	as a bar. 	.As held in Deluxe, and reinforced in Ellison Brothers and
Providence Television, vfueil the parties include in their fixed-tenn contract 	a
mid-tem. n:r:xiification clause requiring certain conditions precedent to te:mtination,
the contract will continue to be a bar regardless of which of 	its conditions
short of tennination has been JJEt .
It is therefore concluded that the mid-term. mdification clause contained
in Article XVII, or any action pursuant thereto short of actual te-rm:i..:na.tion , does
not ren::ove the contract bet:'!Neen the District and the Association as a bar to the
Federation 's decertification petition pursuant to section 3544. 7 (b) (l) . 	The
Federation's petition filed on April 3, 1978 m.ist accordingly be dismissed.
ORDER
It is hereby ordered that the petition filed herein be, and it hereby is, ·
dismissed.
-8-

This Administrative Order shall beccue final on June 26, 1978 unless a
party files a timely stat:aIBlt of exceptions and supporting brief within
ten (10) calendar days follcwing the date of se:r:vi.ce of this Ad:ninistrative
Order. 	!my statare:nt of exceptions and supporting brief !IIJSt be served
concurrently with its filing upon each party to this proceeding. 	Proof of
service shall be filed with the Board itself .
Dated: 	June 16, 1978 FRANCES A. i<RtfEiliU
Regional Director
'
-9-