Bassett Unified School District (PERB A077E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
BASSETT
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
BASSETT
	FEDERATION
	OF
	TEACHERS, 	AFT
LOCAL
	727,
	AFL-CIO,
Employee
	Organization,
APPELLANT,
and
BASSETT
	TEACHERS
	ASSOCIATION,
Employee
	Organization.
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case
	No. 	LA-R-587
LA-D-42
PERB
	Order 	No. 	Ad-77
ADMINISTRATIVE
	APPEAL
October
	9, 	1979
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Appearances: 	Richard
	N.
	Fisher,
	A:ttorney
	(O'Melveny 	& Myers)
for 	Bassett
	Unified
	School
	District;
	Charles
	R.
	Gustafson,
Attorney 	for 	Bassett
	Teachers
	Association;
	and
Lawrence 	Rosenzweig,
	Attorney
	(Levy 	& Goldman)
	for
	BassettFederation 	of
	Teachers.
Before:
	Gluck,
	Chairperson;
	Gonzales
	and 	Moore, 	Members.
DECISION
This 	matter
	is
	before 	the
	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board} 	on
	exceptions 	by 	the 	Bassett
Federation 	of 	Teachers,
	AFT
	Local 	727,
	AFL-CIO
	(hereafter
Federation) 	to
	an
	order 	of 	the 	regional 	director
	dismissing
	a
decertific~tion 	petition 	filed
	by
	the 	Federation.
	The
	excep-
tions 	are 	directed 	to 	the 	finding
	that 	certain
	agreements
entered 	into
	by
	the 	Bassett 	Unified 	School
	District 	(hereafter
District)
	and
	the 	Bassett 	Teachers 	Association 	(hereafter

Association) 	serve
	as
	a
	"contract
	bar"
	to
	conducting
	a
decertification
	election.l	
The
	Federation
	contends
	that
	an
earlier
	agreement 	between 	th~
	same
	parties
	had
	not
	been
	an
effective
	contract
	bar 	because
	it
	gave
	the
	District 	unilateral
power
	to 	terminate 	the
	agreement
	after
	one
	year 	for
	financial
reasons--with 	ultimate 	control
	over
	the
	duration 	of
	the
negotiating
	relationship
	beyond
	the
	first
	year--and
	that
subsequent
	agreements
	did 	not
	remedy
	the 	previous
	defect
because 	they
	incorporated 	the
	provisions 	of
	the
	earlier
agreement.
The 	Board
	has
	considered
	the
	Federation's
	exceptions, 	the
record,
	and
	the
	attached 	decision 	of 	the 	hearing
	officer
	on
behalf 	of
	the
	regional
	director.
	'-The 	Board
	agrees 	with 	the
hearing
	officer;s
	statement
	of 	facts 	that
	form
	the
	background
lGovernment 	Code
	section
	3544.7(b)
(1),
	the
	prov1s1on
	ofthe 	Educational
	Employment
	Relations
	Act
	relevant 	to
	this
	pro-ceeding, 	provides:
(b) ·No
election 	shall
	be
	held
	and
	the
petition 	shall
	be
	dismissed
	whenever:
(1) 	There
	is
	currently 	in
	effect
	a
	lawful
written
	agreement
	negotiated 	by 	the 	publicschool
	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, 	butmore 	than
	90
	days,
	prior 	to 	the 	expirationof 	the 	agreement.
2

to 	this
	controversy.2	
The
	Board
	also
	agrees
	with 	the
conclusion
	reached
	by
	the 	hearing
	officer 	that
	the
decertification
	petition_shoμld
	be
	dismissed, 	but 	for 	the
reasons
	set
	forth
	below.
DISCUSSION
The
	parties
	and
	the 	hearing
	officer
	have
	advanced
	different
interpretations
	of
	the
	various
	agreements
	and
	addenaa
3
entered 	into
	by
	the
	District
	and
	the 	Association.
First,
	the 	Federation
	urges 	the
	Board
	to
	adopt
	the
	analysis
of
	Bassett
	Unified
	School
	District
	(1/30/79)
	PERB
	Order
	No.
Ad-57
	(hereafter 	Bassett
	I)
	that
	a
	decertification 	petition
	was
not 	barred
	even 	though
	the
	collective
	agreement
	had
	an
	express
three-year
	term. 	In
	that
	case
	th'e-
	Board 	found
	that
	the
duration
	of
	the_agreement
	was
	not
	definite
	because
	the
	employer
actually
	retained
	the
	sole 	authority 	to 	terminate 	the 	agreement
at
	the
	end
	of
	the
	first
	year
	if
	the
	employer
	determined
	that
inadequate
	funds
	existed 	to
	pay
	a
	scheduled
	salary 	increase.
Upon
	reconsideration,
	however,
	Bassett
	I 	was
	vacated
	by
	Bassett
Unified
	School
	District
	(3/23/79)
	PERB
	Order
	No. 	Ad-63,
	the
2see 	pp. 	3-9
	of 	attached 	decision.
	One
	correction
	should
be
	made:
	the
	AFT
	request 	for 	reconsideration 	discussed 	in 	the
last
	paragraph
	on 	page 	8 	was
	actually 	filed
	on 	March
	26, 	1979.
See
	Bassett 	Unified 	School
	District
	(7/3/79)
	PERB
	Order 	No.
Ad-67.
3The
	relevant 	contract 	provisions
	and 	addenda
	are 	set
forth 	in 	the 	hearing
	officer's
	decision.
3

Board
	ruling
	that
	the
	earlier
	decertification petition
	had
	not
been
	timely
	filed
	and
	should
	have 	been
	dismissed 	for
	that
reason, 	regardless 	of
	the
	contract
	bar
	issue
	raised
	by
	the
language
	of 	the
	agreement. 	Although
	Bassett
	I
	has
	no
precedential
	value, 	the 	Federation
	claims
	that
	the 	theory
	of
the
	case
	is
	sound 	and
	should 	apply
	hereo
	Therefore, 	says 	the
Federation,
	no
	contract
	bar
	can
	be 	found
	because
	the
	original
agreement
	terminated
	on
	June
	30,
	1978,
	and
	because 	the
subsequent
	addendums
	suffer
	from
	incorporation 	of 	the
	prior
termination 	clause,
	thereby 	precluding
	a
	finding
	of
	a 	new,
lawful
	agreement
	for 	contract
	bar 	purposes.
A
second
	interpretation
	has 	been
	suggested
	by
	the
	District
and
	the 	Association.
	They
	argue
'that
	the
	original
	agreement
between
	the
	parties--the
	subject
	of
	Bassett
	I--is
	still
	in
effect
	and
	constitutes
	a
	bar
	to
	a
	decertification
	effort.
	They
ask 	the
	Board
	to
	explicitly 	reject
	its
	earlier
	analysis,
although
	Bassett
	I 	was
	vacated
	on
	other
	grounds
	upon
reconsideration
	in
	Bassett
	II.
A
third, 	alternative 	interpretation, 	also
	put
	forward 	by
the
	District
	and
	the 	Association,
	is 	that
	the
	June
	1978
addendum was
	either
	a
	permissible
	two-year 	extension 	of 	the
earlier
	agreement 	or
	an
	entirely
	new
	two-year 	agreement
	largely
4

incorporating
	the
	prior
	provisions.4	
These
	parties
	claim
that
	the
	June
	1978
	agreement--whether
	viewed
	as
	an
	extension 	or
a 	new
	contract--properly_mod~fied
	the
	earlier
	agreement,
correcting
	any
	defect
	of 	duration 	uncertainty
	described
	in
Bassett
	I	
by	
eliminating
	the
	District's
	apparent 	option 	to
terminate 	the
	contract
	for
	financial
	reasons,
	and 	by
	providing
for
	salary
	re-openers
	through 	June 	1980,
	the
	balance
	of 	the
contract
	term.
5 	(The
	District
	and
	the
	Association
	also
	argue
that
	the
	March 	1979 	addendum
	providing 	for
	a
	retroactive 	salary
increase
	and 	a
	future
	re-opener
	option, 	reaffirmed
	the 	June
1978
	modification 	as 	well 	as 	the
	decision 	of 	the
	parties
	to
	be
contractually
	obligated
	through 	June 	1980.)
4Thiokol
	Corporation
	(1974) 	215
	NLRB
	908 	[88
	LRRM
	1080];Appalachian 	Shale 	Products
	Co. 	(1958) 	121
	NLRB
	1160 	[42
	LRRM
1506].
Sone
	sentence 	in
	the
	June,
	1978
	agreement
	merits
	special
analysis:
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
	its
	stated
	term
	(until
	June 	30, 	1980).
(Emphasis
	added).
Under
	the
	initial
	contract
	the
	District,
	not 	the
	Association,
had
	the
	power
	to 	terminate 	the 	agreement. 	This
	reference 	to"Association" 	in 	the 	June 	document 	may 	be 	viewed
	as
	either
	a
typ?<4raphical
	error, 	or,
	if
	not, 	as 	evidence 	of 	intent 	to
nullify
	the 	previous 	option 	clause 	by	
withdrawing 	the
Association's 	conse~ 	to 	the 	provision.
5

Finally,
	the 	hearing
	officer
	adopted
	one
	of
	the
	latter
arguments
	and
	concluded
	that
	the
	June
	1978 	addendum 	was 	a
modification
	and
	continuation
	of
	the
	original
	agreement,
establishing
	a 	two
	year
	contract
	bar
	to
	a
	rival's
decertification
	effort.
The
	Board,
	however, 	need
	not 	determine
	which,
	if
	any,
	of
these 	conflicting 	theories
	is 	correct.
	In
	Bassett
	II
	the
	Board
impliedly
	recognized
	that
	the
	original
	agreement
	considered 	in
Bassett
	I,
	whether
	or 	not
	a
	three
	year
	contract 	bar,
	did 	serve
at
	least
	as
	a 	one .year 	agreement 	between
	the
	parties..
	Based 	on
this
	implied 	reasoning 	the
	Board
	dismissed 	the
	original
Federation
	petition
	because
	it
	was
	not
	filed
	within
	the 	time
period
	allowed
	in
	section
	3544. 7
(Jl)
(1):
	11
•••
less
	than
	120
days, 	but
	more
	than
	90
	days,
	prior
	to
	the
	expiration
	of 	the
agreement." 	Similar
	reasoning
	is
	applicable 	in
	this
	case.
If
	the
	original
	agreement
	was 	a
	three-year 	bar, 	the
Federation's 	decertification 	petition 	is 	patently
	untimely.
If,
	however,
	the 	termination 	clause 	resulted
	in 	the
	termination
of 	that
	agreement
	at
	the
	end
	of
	its 	first
	year, 	the
	June 	1978
agreement
	would
	necessarily 	constitute
	a~
	contract--for
	one
or 	for
	two
	years--incorporating 	provisions 	of 	the 	expired
agreement.
	On
	the
	one 	hand,
	if
	the 	termination 	clause
	was
	not
eliminated
	by
	the 	June 	agreement, 	then 	the
	new
	contract
	would
serve 	as 	a 	one
	year 	bar 	under 	the 	reasoiW.ng
	in 	Bassett
	II.
	·on
the 	other 	hand,
	we
	could 	construe 	the 	June 	1978 	agreement 	as
	a
6

new
	two-year
	contract
	by
	resolving 	the 	apparent
	conflict
between
	the
	addendum
	language
	and
	the
	original
	termination
clause 	in
	favor
	of
	a
	finding
	that
	the
	later
	agreement
	was
	meant
to
	supplant
	the
	original
	language. 	In
	either
	event,
	the
decertification 	petition
	would
	have
	had
	to
	be
	filed
	within 	the
window
	period 	of
	that
	successor' 	agreement,
	namely
	several
	days
prior
	to 	April 	6,
	1979,
	the 	date
	on
	which
	it
	was
	actually
filed.
	See
	Bassett
	II,
	supra.
	Thus, 	under 	any
	possible
interpretation
	advanced,
	the
	decertification petition
	was
properly
	dismissed 	as
	having 	been
	untimely
	filed.6
6The
	Federation
	has
	also
	taken 	exception
	to
	two
	aspects
of 	the
	hearing
	officer's
	treatment 	of
	this
	case.
	First,
	the
Federation
	claims
	that
	its
	decert,ification
	effort
	was
improperly 	delayed 	because
	a
	hearing
	was
	held
	at
	which
	the 	sole
content
	was
	parol
	evidence 	about
	contractual
	intent,
	evidence
that
	the 	Federation 	argues
	was
	inadmissible.
	Even
	if
	the
hearing
	was
	not 	necessary,
	an
	issue 	of 	administrative
discretion
	we
	need
	not
	decide, 	the 	Federation
	can
	show 	no
prejudice
	in
	light
	of
	our
	decision 	affirming 	dismissal 	of
	its
petition.
	Second,
	the 	Federation 	takes 	exception 	to 	thehearing
	officer's
	preliminary 	reference 	to
	NLRB
	authoritydescribing
	the
	contract
	bar
	rule
	as
	an
	attempt 	to 	balance 	the
two
	goals 	of
	industrial
	stability
	and 	employee 	freedom
	of
choice.
	(See
	p.
	10
	of 	attached 	decision.)
	The
	Federation
asserts 	that 	this
	reference
	conflicts
	with
	prior
	PERB
analysis.
	There
	is
	nothing,
	however,
	in 	the 	hearing
	officer's
reference 	to
	NLRB
	objectives
	with
	which
	this
	Board
	disagrees.
7

Co
ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law
	and
the
	entire
	record
	of
	thi?
	case,
	the 	order 	of 	the
	regional
director
	dismissing
	the
	decertification 	petition 	filed	
by	
the
Bassett
	Federation 	of
	Teachers
	is
	hereby
	affirmed.
Barbara
	D.
	Moore, 	Member
8

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF 	THE
	STATE
	OF
	CALIFORNIA
BASSETT
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
BASSETT
	FEDERATION
	OF
	TEACHERS,AFT
	LOCAL
	727,
	AFL-CIO,
Employee
	Organization,
and
BASSETT
	TEACHERS
	ASSOCIATION,
Employee
	Organization.
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__________________
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Case
	No. 	LA-R-587
LA-D-42
ORDER
	DISMISSING
PETITION
	FOR
DECERTIFICATION
(7/20/79)
Appearances: 	Richard
	N.
	Fishei;, 	Attorney
	(O'Melveny 	& Myers)
for
	Bassett
	Unified
	School
	District;
	Charles
	R.
	Gustafson,
Attorney 	for 	Bassett
	Teachers
	Association;
	and 	Lawrence
Rosenzweig,
Attorney
	(Levy 	& Goldman)
	for 	Bassett Federation
	of
Teachers.
INTRODUCTION
On
	April
	6,
	1979, 	the 	Bassett Federation 	of 	Teachers,
	AFT
Local 	727,
	AFL-CIO
	{hereafter 	Federation)
	filed
	a
decertification 	petition
	pursuant 	to 	section
	3544.S(d)
	of
	the
Educational
	Employment
	Relations
	Act
	(hereafter
	EERA)l	
for
	a
lThe
	EERA
	is 	codified
	at
	Government 	Code
	section
	3540
	et
seq. 	All 	section 	references 	are 	to 	the
	Government 	Code
	unless
otherwise 	indicated.	
(Footnote
	1
	continued)

unit
	of
	all
	certificated
	employees
	of 	the
	Bassett
	Unified
School
	District
	(hereafter
	District).
The
	Federation
	alleges
	that
	a
	written
	agreement
	signed
between
	the
	District
-and -the
	Bassett
	Teachers
	Association
(hereafter
	Association)
	on
	December
	1,
	1977,
	expired 	by	
its
terms
	on
	June 	30,
	1978 	and
	consequently
	does
	not
	constitute
	a
bar
	to
	its
	petition.2
(Footnote
	1
	continued)
Sec. 	3544.S(d)
	provides:
A
petition
	may 	be
	filed
	with 	the
	Board,
	in
accordance 	with
	its
	rules
	and
	regulations,
requesting
	it
	to 	investigate
	and
	decide 	the
question 	of
	whether 	employees 	have
	selected
or 	wish
	to
	select
	an
	exclusiverepresentative
	or
	to"eetermine 	the
appropriateness
	of
	a
	unit,
	by:
An
employee
	organization 	alleging 	that
	the
employees
	in
	an
	appropriate 	unit
	no
	longer
desire
	a
	particular
	employee
	organization 	as
their
	exclusive
	representative,
	provided
that
	such
	petition 	is
	supported
	by
	current
dues
	deduction
	authorizations
	or 	other
evidence 	such 	as
	notarized
	membership
	lists,
cards, 	or
	petitions
	from 	30
	percent 	of 	the
employees
	in 	the
	negotiating 	unit 	indicatingsupport 	for 	another
	organization 	or 	lack 	ofsupport 	for 	the
	incumbent
	exclusive
representative.
2sec. 	3544.7(b)
(1)
	states 	that:
No
	election 	shall
	be
	held
	and
	the
	petitionshall
	be
	dismissed 	whenever:
(l) 	There
	is 	currently 	in 	effect
	a
	lawful
written
	agreement
	negotiated
	by
	the 	publicschool 	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 	then 	120 	days, 	butmore 	than 	90 	days, 	prior 	to 	the 	expiration
of 	the 	agreement.
2

The 	District 	and 	the 	Association 	deny 	the 	Federation's
allegations 	and 	assert 	that 	there 	is 	a 	three-year 	agreement
ending 	in 	1980 	which 	bars 	the 	Federation 	from 	filing 	a
decertification 	petition~ 	As 	a 	result, 	the 	regional 	director
has 	instituted 	a 	hearing 	to 	ascertain 	the 	relevant 	facts.
The 	hearing 	in 	this 	matter 	was 	held 	on June 	12, 	19793 	and
post-hearing 	briefs 	were 	filed 	June 	29, 	1979.
ISSUE
1. 	Does 	the 	written 	agreement 	between 	the 	District 	and 	the
Association 	constitute 	a 	bar 	to 	the 	Federation's
decertification 	petition?
DISCUSSION
Background 	_
The 	history of 	this 	case, 	both 	in 	terms 	of 	negotiations
between 	the 	District 	and 	the 	Association 	and 	efforts 	by 	the
3At 	the 	hearing, 	counsel 	for 	the 	Federation 	vigorously
objected 	to 	the 	introduction 	of 	parol 	evidence 	regarding 	the
nature 	of 	the 	negotiations 	leading 	to 	the 	adoption 	of 	the
written 	agreement 	in 	issue. 	Counsel 	cited 	National 	Labor
Relations 	Board 	(hereafter 	NLRB) 	precedent 	which 	indicated 	that
the 	NLRB, 	in 	deciding 	a 	contract 	bar 	case 	would 	not 	consider
parol 	evidence 	but 	rather 	would 	only 	look 	to 	the 	face 	of 	the
contract. 	(See, 	An Outline 	of 	Law 	and 	Procedure 	in
Representation Cases, 	Office 	of 	the 	General 	Counsel, 	National
Labor 	Relations 	Board 	(1974) 	p. 	84: 	Union 	Fish 	Co. 	(1965) 	156
NLRB 	187 	[61 	LRRM 	1012]; 	Cooper 	Tire 	& Rubber 	Co. 	(1970) 	181
NLRB 	509 	(73 	LRRM 1402]).
The 	hearing 	officer 	overruled 	counsel's 	objections 	and
permitted 	introduction 	of 	parol 	evidence. 	Upon 	reflection, 	it
is 	determined 	that 	the 	authorities 	cited 	by 	counsel 	for 	the
Federation 	are 	persuasive 	and 	that 	parol 	evidence 	should 	not
have 	been 	admitted 	into 	evidence. 	As 	a 	consequence, 	parol
evidence 	has 	not 	been 	considered 	in making 	this 	decision.
3

Federation 	to
	decertify
	the
	Association,
	is
	somewhat
complicated 	but 	bears 	restatement
	for
	a
	thorough
	understanding
of
	the
	case.
On
	February
	2,
	1~77,
	the
	Association
	was
	certified
	as 	the
exclusive
	representative
	for
	certificated
	employees
	in
	the
District.
	Negotiations
	commenced
	thereafter
	and
	on
December
	1,
	1977
	a
	written
	agreement
	covering
	wages,
	hours
	and
other
	terms
	and
	conditions 	of
	employment 	was
	signed
	by
representatives
	of 	the
	District
	and
	the 	Association.
Article
	XXI
	of
	the 	agreement, 	"Duration
	and
	Negotiation
Procedures," 	provides 	in
	pertinent 	part 	that
	the 	agreement
"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
provides 	in
pertinent 	part:
2.
	Effective 	July 	1, 	1978,
	and
	again
	on
July 	1,
	1979, 	each
	step 	of 	the 	following
salary
	schedules
	is
	to
	be
	increased
	6%
(rounded
	as
	before), 	subject
	to 	thefollowing 	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 	ratios
	and 	upon
	the
availability
	of
	sufficient
	unallocated
general 	funds. 	In
	this
	regard 	the
	District
has 	committed
	itself
	to
	a
	diligent 	effort 	to
make 	such 	funds
	available 	by 	appropriate
cost-cutting 	efforts,
	so 	long 	as 	educational
programs
	are 	not 	jeopardized. 	In 	the 	event
that
	adequate 	unallocated 	funds 	are 	notdeemed
	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.
4

If 	this
	occurs, 	the
	Association
	shall
	not
	be
limited 	in
	its
	proposals
	to
	the
	amounts
	set
forth
	hereinabove.
	The
	District 	shall
	by
March 	l
	of
	each
	year 	hereunder
	give 	the
Association
	tentative
	notice
	of
	its
perceived
	ability
	to
	fund
	the
	above
	salaryprovision,
	a-na
	s-hall
	also
	give
	notice
	of
	its
position
	as 	of
	June
	1.
Any
	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
	rather
	than
	through 	the 	grievanceprocedures
	of
	Article
	VI,
	and
	disputes
	with
respect 	to
	whether
	the
	District
	has
	made 	an
adequate
	effort
	to
	make
	such 	funds
	available
are
	to
	be
	handled
	pursuant
	to
	the
consultation 	provisions 	of
	Article
	VIII
rather
	than 	through
	the 	grievance 	procedures'
of
	Article
	VI.
On
	April 	3,
	1978,
	the 	Federation
	filed
	with 	the
	Los 	Angeles
Regional 	Off
ice 	of 	the 	Public
Employment
	Relations
	Board
(hereafter
	~ERB)
	a
	decertification 	petition
	pursuant
	to 	section
3544.5(d)4	
for
	the
	unit
	represented
	by
	the Association.
Because
	the
	agreement 	between
	the
	District
	and
	the
Association
	was
	currently
	in
	effect,
	the 	regional
	director
solicited
	memoranda
	of 	points
	and
	authorities
	on
	the 	issue 	of
whether
	a
	contract
	bar
	existed
	(which 	would
	prevent 	the
processing 	of
	a
	decertification 	petition).
On
	June 	16, 	1978,
	the 	regional 	director
	issued 	her 	decision
finding 	that
	a
	three-year 	contract
	bar
	existed
	and
consequently, 	the 	Federation's 	petition
	was 	untimely 	and 	must
be
	dismissed.
The
	regional 	director's 	decision
	was 	appealed 	by
	the
Federation 	to 	the 	PERB.
4see n. 	1, 	supra.
5

While
	the
	Federation's
	appeal
	was
	pending,
	the
	Association
and
	the
	District
	agreed
	on
	June 	29,
	1978
	to
	an 	addendum
	to
their
	agreement. 	This
	addendum, 	known
	as
	"June
	1978 	Addendum
to
	1977-80
	Agreement'~
stated 	that
	the
	addendum 	was 	a
"supplement
	and 	addendum
	to
	the
	agreement
	between
	the
[District]
	and
	the
	(Association] 	dated
	December
	1,
	1977,
	and
effective
	through 	June 	30,
	1980."
	With
	reference 	to 	the
provisions 	of
	Article
	XVII
	requiring 	the
	District
	to
	pay
	a
6
	percent
	salary
	increase
	lest
	the
	agreement
	terminate,
	the
addendum
	provides:
3~
	The
	District
	and
	Association
	agree
	that
the
	District
	would 	have 	been
	able
	to
	meet
the
	tentative 	salary
	agreement
	for 	the
1978-79
	school 	year 	as 	provided
	in Article
XVII
	(Salaries) 	but 	for 	the
	legal
	~nd
	fiscal
constraints
	posed 	by
	the 	passage
	ofProposition
	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
	its
	stated
	term
	(until
	June 	30, 	1980).
All
	1977-78
	salary
	schedules
	and
	rules
{including
	step
	and 	column 	advancement
rules)
	shall
	be
	continued
	in 	eefect
	for 	the1978-79
	school 	year, 	unless
	amended
	pursuant
to 	continuing 	negotiations
	between
	the
District
	and
	Association 	as 	provided
hereinafter.
4. 	The
	District
	and
	the 	Association
	shall
upon
	request
	meet 	and
	negotiate
	with
	respect
to 	possible 	salary
	schedule 	increases 	for
the 	1978-79 	school 	year
	and
	also
	with
respect 	to 	salary 	levels 	for 	the
	1979-80
school 	year.
	Such
	negotiations
	(and
	related
consultation 	regarding 	non-negotiable
budgetary matters) 	shall
	be 	pursued 	pursuant
to 	the 	second 	paragraph 	of 	Article
	XVII,
Section A-2.
6

On
	January
	30, 	1979,
	the
	PERB
	issued
	its
	decisions	
on
	the
Federation
1 s
	appeal.
	The
	PERB
	found
	that
	the
	agreement
	between
the
	District
	and
	the
	Association
	stated
	to
	be
	for
	a
	three-year
period 	expiring
	June
_3_0,
	_1980,
	actually
	had
	expired
	on 	June
	30,
1978.
	It
	therefore
	reversed
	the
	regional
	director's
determination
	and
	ordered
	her
	to
	process
	the
	Federation's
petition.
Both
	the
	District
	and
	the
	Association
	thereafter
	filed
requests 	for 	reconsideration
	on
	February
	15 	and
	16,
respectively.
While
	the 	requests 	for 	reconsideration
	were
	pending
	before
the
	PERB,
	the
	California
	Supreme
	Court
	declared 	the
	wage
	freeze
imposed 	by
	Senate
	Bill
	154
	unconstitutional.6	
On
	March
	6,
1979,
	the 	Association
	and
	the"nistrict
	signed
	the
	"March 	1979
addendum
	to~l977-80
	Agreement.
11
	This
	addendum.again
	stated
that
	it
	was 	a
	"supplement
	and 	addendum"
	to
	the
	agreement
	which
terminates
	June
	30,
	1980. 	The 	addendum
	proceeds
	to 	note
	that:
[T]he
	parties
	have 	met 	and
	negotiated
	with
	respect 	to 	salary
matters 	pursuant 	to
article	
XVII	
of
	the .agreement
	and
	paragraph
4
	of
	the
	June 	1978 	addendum
	to 	the 	agreement,
	and
	whereas
	the
Legislature's 	salary 	freeze
	(SB
	154, 	2212)
	has
	recently
	been
set
	aside
	by
	the
	Supreme
	Court
	.••
"
5Bassett 	Unified 	School
	District
	(1/30/79)
	PERB
	Order 	No.
AD-57.
6sonoma
of
	Sonoma
7

the
	6
	percent
	salary
	increases
	provided
	in
	the 	appendices
	of
the
	1977-80
	agreement
	are
	granted
	retroactive 	to July 	1,
1978.
	The 	addendum
	also
	provides
	that
	upon
	request
	at
	any
	time
after
	April
	15,
	1979;
the
	District
	and
	the
	Association
	shall
commence
	negotiations
	on 	a
	general 	across-the-board
	salary
increase
	for 	the
	1979-80
	school
	year.
	Finally,
	the
	addendum
states 	that
	"the 	duration
	and
	validity
	of 	the
	remainder
	of 	the
Agreement
	shall
	not
	be
	affected	
by
	•••
[specified]
reopener
	negotiations, 	regardless 	of
	their
	eventual
	outcome."
In 	decisions 	issued
	the
	same 	day 	(March
	23,
	1979), 	the
	PERS
granted 	the
	District
0 s 	and
	the 	Association
1 s
	requests 	for
reconsideration?	
and
	vacated
	its
	order 	issued 	January 	30,
1979	
by 	holding
	that
	the
	Federation's
	petition
	had
	not
	been
filed
	within 	the
	"window
	period"
	even 	assuming
	that
	the
agreement
	expired
	June 	30, 	1978.8
On
	March
	23, 	1979,
	the 	Federation
	filed
	with
	the
	PERB
	a
request
	for
	reconsideration 	of 	the
	PERB's 	March 	23
	decision.
The
	executive
	assistant
	refused 	to 	accept 	the request
	on
March 	29 	and 	on
	April 	2,
	1979,
	the 	Federation
	filed
	with 	the
PERB
	an
	appeal 	of 	the 	executive
	assistant's
	refusal 	to 	accept
the 	request 	for 	reconsideration.9
7Bassett 	Unified 	School
	District
	(3/23/79)
	PERS
	Order
	No.
AD-62.
8Bassett 	Unified 	School
	District
	(3/23/79)
	PERS
	Order 	No.
AD-63.
9rn 	a
	decision 	dated 	July 	3, 	1979
	(Bassett 	Unified 	School
District,
	PERB
	Order 	No. 	AD-67) 	the
	PERB
	reversed 	the 	executive
assistant's 	refusal 	to 	accept 	the 	request 	for 	reconsideration
but 	at 	the 	same 	time 	denied 	the 	request 	for 	reconsideration.
8

Finally, 	on 	April 	6, 	1979, 	the 	Federation 	filed 	the
decertification 	petition 	which 	is 	the 	subject 	of 	this 	inquiry.
Analysis
Section 	3544. 7 (bf (1) 	-regulates 	the 	processing 	of 	a
decertificition 	petition 	filed 	during 	the 	term 	of 	a 	collective
negotiating 	agreement. 	It 	provides 	that:
No 	election 	shall 	be 	held 	and 	the 	petition
shall 	be 	dismissed 	whenever:
(1) 	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.
'-
In 	interpreting 	section 	3544.7(b) (1), 	federal 	precedent
under 	the 	National 	Labor 	Relations 	Act 	(hereafter 	NLRA)l0
offers 	significant 	guidance.
Although 	there 	is 	no 	parallel 	language 	under 	the 	NLRA
establishing 	a 	"contract 	bar" 	the 	California 	Supreme Court 	has
stated 	that 	where 	the 	NLRA does 	not 	contain 	specific 	wording
comparable 	to 	the 	state 	act, 	if 	the 	rationale 	that 	generated
the 	language 	"lies 	imbedded 	in 	the 	federal 	precedents 	under 	the
NLRA" 	and 	"the 	federal 	decisions 	effectively 	reflect 	the 	same
interests 	as 	those 	that 	prompted 	the 	inclusion 	of 	the 	[language
in 	the 	EERA], 	[then] 	federal 	precedents 	provide 	reliable 	if
analogous 	authority 	on 	the 	issue.11 	The 	statutory 	"contract
1029 	u.s.c. 	sec. 	151 	et 	seq.
llFire 	Fighters 	Union 	v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.3d
608, 	616, 	617 	[87 	LRRM 	2453]. 	See 	also, 	Faeth 	& McCarty 	v.
Redlands 	Teachers 	Association 	(9/25/78) 	PERB 	Decision 	No. 	72;
Sweetwater 	Union High 	School 	District 	(11/23/76) 	EERB 	Decision
No. 	4.
9

bar"
	language
	contained
	in 	section
	3544.
7 (b) (1)
	is
	quite
similar
	to
	the
	contract
	bar
	doctrine
	developed
	by
	the
	NLRB.
	In
addition,
	the
	PERB
	recognized
	in
	its
	March 	23
	Bassett
decision12	
that
	NLRB
-prec-edent
	"serves 	to
	illustrate
	the
legislative
	intent
	underlying
	section
	3544.
7 (b)
(1)."
Consequently,
	it
	is
	appropriate
	to
	consider
	federal
	precedent
in
	determining
	whether
	a
	contract
	bar
	exists.
The
	purpose
	of
	the
	contract
	bar
	doctrine
	is
	eloquently
stated
	in 	the
	NLRB's
	An
	Outline 	of
	Law
	and
	Procedure
	in
Representation
	Cases:
The
	major
	objective 	of
	the 	Board's
contract-bar 	doctrine
	is
	to 	achieve
	a
reasonable 	balance
	between
	the
	frequently
conflicting
	aims
	of
	industrial
	stability
	and
freedom
	of
	employees'--
choice.
	This
	doctrine
is
	intended
	to 	afford
	the
	contractingpa~ties
	and
	the
	employees
	a
	reasonable
period 	of
	stability
	in
	their 	relationship
without
	interruption
	and
	at
	the
	same
	time
	to
afford 	the
	employees
	the 	opportunity,
	at
reasonable 	times,
	to
	change
	or 	eliminate
their
	bargaining
	representative,
	if
	they
wish
	to
	do
	so.13
In 	order	
to	
bar
	a
	decertification 	petition,
	an 	agreement
must
	be
	written,
	signed
	by
	authorized 	representatives
	of
	both
parties,
	have 	a
	definite
	duration,14 	contain 	substantial
terms 	and
	conditions 	of
	employment 	and
	cover
	all
	employees
	in
12see 	n. 	8, 	supra.
13see 	n.
	3, 	supra
	at
	p. 	74.
	See
	also
	Onion
	Fish 	Co.,
supra,
	156
	NLRB
	at 	p. 	191.
14contracts 	of 	indefinite 	duration, 	such 	as 	contracts
which 	lack 	termination 	or 	duration 	provisions,
	and
	contractsterminable 	at 	will 	are 	not 	considered 	a 	bar 	for 	any
	period.
Pacific 	Coast 	Association 	of 	Pulp 	& 	Paper, 	(195.8) 	121 	NLRB 	990,993 	[42
	LRRM
	1477].
10

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 	Appalachian
Shale. 	The 	Federation, 	however, 	argues 	that 	pursuant 	to 	the
express 	terms 	of 	Article 	XVII, 	section 	(A) (2), 	the 	agreement
terminated 	June 	30, 	1978 	(and 	that 	no 	new 	agreement 	has 	yet
been 	reached). 	Both 	the 	District 	and 	the 	Association 	argue
that Article 	XVII 	is 	in 	effect 	a 	mid-term 	modification
provision 	and 	that 	the 	addenda 	of 	June 	1978 	and March 	1979
ensured 	that 	the 	agreement 	would 	not 	terminate 	June 	30, 	1978
but 	rather 	would 	continue 	until 	June 	30, 	1980.
Whether 	or 	not Article 	XVII, 	as 	originally 	drafted, 	was 	a
modification 	provision 	or 	a 	termination 	provision 	need 	not 	be
answered. 	The 	crux 	of 	the 	case 	is 	the 	legal 	effect 	of 	the 	two
addendums 	to 	the 	agreement.
The 	Federation's 	argument 	depends 	upon 	a 	finding 	that
without 	strict 	compliance 	with 	the 	terms 	of 	Article 	XVII 	(which
did 	not 	happen) 	the 	agreement 	must 	be 	considered 	to 	have
terminated 	(and 	therefore 	does 	not 	constitute 	a 	bar 	to 	its
decertification 	petition). 	However, 	the 	Federation's 	argument
ignores 	the 	concept 	that 	parties 	to 	a 	contract 	may, 	by 	mutual
assent, 	at 	any 	time 	during 	the 	term 	of 	a 	contract, 	modify 	or
amend 	the 	provisions 	of 	their 	contract.15 	This 	is 	what
15see 	Deluxe 	Metal 	Furniture 	Co. 	(1958) 	121 NLRB 	995,
1003 	[42 	LRRM 	1470].
Premature 	extensions, 	however, 	will 	not 	bar 	a 	petition
filed 	during 	the 	"window 	period." 	Cf. 	H.L. 	Klion, 	Inc. 	(1964)
148 	NLRB 	656, 	660 	[57 	LRRM 1073].; 	Deluxe 	Metal 	Furniture 	Co.,
supra, 	121 	NLRB 	at 	1001.
11

occurred
	in
	this
	case.
	In
	June
	of
	1978,
	before 	the
	provisions
of Article
	XVII 	would
	require
	termination
	if
	a 	6
	percent 	salary
increase
	were
	not
	granted,
	the
	District
	and
	the 	Association
expressly
	agreed
	to
	dontinue
	their
	agreement
	in
	effect 	until
June 	30,
	1980,
	notwithstanding 	the
	fact 	that
	a 	6	
percent
	salary
increase
	would
	not
	be
	granted.
	In
	addition,
	the
	District
	and
the
	Association
	agreed
	to
	a
	reopener
	on
	salaries
	for 	the
1978-79
	and
	1979-80
	school
	years,
	thereby
	amending
	the
	first
paragraph
	of 	Article
	XVII,
	Section
	A-2
	out 	of
	existence.
The 	March 	1979 	addendum,
	granting
	a 	6	
percent
	salary
increase
	for 	the
	1978-79
	school 	year
	and
	providing
	for
negotiations
	on
	"general 	across-the-board 	salary 	increases"
reaffirms 	the
	June 	addendum's
	elimination 	of 	Article
	XVII's
required	
6	
percent
	salary
	increase 	or
	else
	termination
provision
	fr-om
	the
	agreement
	and
	reiterates
	the
	parties'
	clear
intent 	that 	regardless 	of 	the
	outcome
	of 	various 	reopener
provisions,
	the
	agreement
	would
	continue 	in
	effect 	until
June 	30,
	1980.
In
	summary,
	at
	the
	time
	the 	Federation
	filed
	its
decertification 	petition
	on
	April 	6,
	1979, 	the 	agreement
between
	the
	District
	and
	the 	Association
	was
	in
	effect,
provided 	for
	a
	salary
	reopener,
	and
	clearly 	stated 	that 	the
agreement 	would
	continue 	in 	effect 	until
	June 	30, 	1980.
	Under
these 	circumstances, 	the 	language 	of 	the 	agreement
	provides
	a
clear
	and
	predictable 	indication 	of 	the 	length 	of 	bargaining
relationship
	between 	the 	District
	and
	the 	Association.
	The
Federation's 	decertification 	petition 	filed 	April 	6, 	1979,
	is
therefore 	dismissed 	as 	untimely.
12

ORDER
The 	decertification 	petition 	flled 	by 	the 	Bass~tt
Federation of Teachers, 	AFT 	Local 	727, 	AFL-CIO, 	on
April 	6, 	1979, 	is 	hereby dismissed.
This 	Administrative 	Order 	shall 	become· final 	on
July 	30, 	1979 	unless 	a 	party 	files 	a 	timely 	statement 	of
exceptions 	and 	supporting 	brief 	within 	ten 	(10) 	calendar 	days
following 	the 	date 	of 	service 	of 	this 	Administrative 	Order.
Any 	statement 	of 	exceptions 	ana 	supporting 	brief 	must 	be 	filed
with 	the 	executive assistant 	to 	the 	Board 	at 	923 	12th 	Street,
Suite 	201, 	Sacramento, 	CA 95814, 	and 	served 	concurrently 	with
its 	filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	be 	filed 	with 	the 	Board 	itself.
"---
Dated: 	July 	20, 	1979
13
FRANCES 	A. 	KREILING
Regional 	Director
By Bruce 	Barsook
Hearing 	Officer
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