Alum Rock Union Elementary School District * * * OVERRULED by Apple Valley Unified School District (1990) PERB Order No. Ad-209 (PERB A158E)

OVERRULED by Apple Valley Unified School District
(1990) PERB Order No. Ad-209
STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ALUM ROCK UNION ELEMENTARY
SCHOOL DISTRICT,
Employer.
and
TEAMSTERS LOCAL NO. 165,
Exc lusive Repr esentative,
APPELLANT.
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Employee 	Organization,
Petitioner.
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) 	Case 	No. 	SF-D-129
Administrat ive Appeal
PERE Order 	No. 	Ad-158
August 6, 1986
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Appearances: 	Beeson, 	Tayer 	& Bodine by Neil 	Bodine for
Teamsters 	Local No. 	165.
Before Bur t, Porter 	and 	Crai b, Member s.
DECISION
BURT, Member: 	This 	case 	is before 	the Public Employment
Relations 	Boar d 	(PERB 	or 	Board ) on appeal 	by 	Teamsters 	Local
No. 	165 	(Teamsters) 	f r om 	a Board 	agent' s administrative
deter mina tion and 	order 	that found a decertification 	pe ti tion
filed 	by 	the Califor nia 	School Employees Association 	(CSEA) 	to
be timely and 	ord ered 	an election. 	We r everse 	the Boar d
agent' s d etermination 	and 	find 	that 	the 	petition 	is 	bar red 	by a
one-month 	extension 	of 	the 	collec tive 	bargaining 	agreement
between 	the Teamster s and 	the Alum 	Rock Union Elementary 	School
District 	(Distric t).

FACTS
The 	Teamsters 	and 	the 	District 	were 	parties 	to 	a 	collective
bargaining 	agreement 	covering 	a 	unit 	of 	District 	maintenance,
operation 	and 	service 	employees. 	The 	agreement 	was 	effective
January 	31, 	1983 	to 	December 	31, 	1984; 	thus, 	a 	30-day 	statutory
window 	period 	for 	a 	decertification 	petition 	was 	created 	in
September 	1984. 1 CSEA 	did 	not 	file 	a 	decertification
petition 	during 	that 	period.
on 	or 	about 	December 	19, 	1984, 	the 	Teamsters 	and 	the
District 	commenced 	negotiations 	for 	a 	successor 	contract. 	The
parties 	felt 	they 	would 	not 	reach 	agreement 	by 	the 	expiration
lThis 	window 	period 	is 	established 	pursuant 	to 	section
3544.7(b)(l) 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA
or 	Act). 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code.
Section 	3544.7(b)(l) 	provides 	in 	pertinent 	part:
(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 	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; 	or 	..
PERE 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 	et 	seq. 	Section 	33020 	provides
for 	the 	calculation 	of 	this 	window 	period.
2

date 	of 	the 	first 	contract, 	especially 	in 	light 	of 	the
Christmas 	holidays. 	Therefore, 	on 	December 	20, 	1984 	the 	parties
signed 	an 	agreement 	extending 	the 	terms 	of 	the 	first 	contract
from 	January 	1, 	1985 	to 	January 	31, 	1985.
On 	January 	2, 	1985, 	CSEA 	filed 	its 	first 	decertification
petition.
Between 	January 	4, 	1985 	and 	January 	22, 	1985, 	the 	Teamsters
and 	the 	District 	held 	four 	negotiating 	sessions. 	They 	arrived
at 	a 	tentative 	agreement 	on 	January 	22.
On 	January 	30, 	1985, 	the 	parties 	initialed 	the 	successor
contract 	and 	the 	Teamsters 	ratified 	it 	on 	or 	about 	that 	date.
The 	successor 	agreement 	was 	made 	effective 	from 	January 	1, 	1985
through 	December 	31, 	1986.
On 	February 	11, 	1985, 	CSEA 	filed 	a 	second 	decertification
petition.
On 	February 	14, 	1985, 	the 	District 	school 	board 	ratified 	the
successor 	agreement.
The 	Board 	Agent's 	Determination:
The 	Board 	agent 	found 	the 	second 	decertification 	to 	be
barred 	by 	the 	successor 	agreement. 2 The 	first 	decertification
petition, 	however, 	was 	found 	not 	to 	be 	barred 	because 	the
December 	20, 	1984 	contract 	extension 	was 	of 	too 	short 	a 	duration
2As 	no 	exception 	to 	this 	determination 	has 	been 	filed, 	we
adopt 	it 	without 	discussion.
3

to 	provide
	its
	own
	window
	period,
	did 	not
	promote
	stability,
and,
	therefore.
	could
	not
	bar
	the
	petition.
The
	Teamsters'
	Appeal
On
	appeal, 	the
	Teamsters 	argue
	that
	the
	December
	20
extension
	constitutes
	a
	valid 	contract
	bar
	to 	the
decertification 	petition 	at
	issue,
	and
	that
	an
	election
	cannot
be
	properly
	ordered.
	Based
	on
	the
	facts
	of
	this
	case,
	we
	agree.
DISCUSSION
This 	case
	presents
	a
	novel
	issue
	to 	the
	Board:
	whether 	or
not
	the 	contract
	bar
	doctrine
	embodied
	in 	section 	3544.7(b)(l)
applies
	to
	a
	contract
	extension
	of 	such
	short 	duration
	that
	it
creates
	no
	window
	period
	of
	its
	own.
Interpreted
	literally,
	section 	3544.7(b)(l)
	states 	that
	a
petition
	for
	election 	is
	untimely
	and
	shall
	be
	dismissed
	when
	a
lawful
	written
	agreement
	is
	in
	effect.
	The
	provision 	for
	a
window
	period
	between
	the
	last
	120
	days
	and
	90
	days 	of 	an
agreement
	is
	couched
	as
	an
	exception 	to 	the 	general
	proposition
that
	a
	lawful 	agreement
	acts
	as
	a
	bar 	to
	a
	decertification
petition.
	Thus, 	an 	agreement 	of
	sufficient
	duration
	is 	subject
to
	a
	window
	period 	during
	which
	a
	petition
	may
	be
	timely
	filed.
In
	short,
	all
	lawful 	contracts 	act
	as
	a
	bar;
	some
	contracts 	are
subject
	to
	a
	window
	period.
	Member
	Porter,
	however,
	reads
section 	3544.?(b)(l)
	as 	follows:
	all
	lawful 	agreements 	bar 	an
election
	except 	agreements 	of
	insufficient 	duration 	to 	create
	a
window
	period 	in 	which
	decertification 	petitions
	may 	be
	filed.
4

Therefore, 	all 	agreements 	must 	be 	of 	sufficient 	duration 	to 	have
a 	window 	period 	or 	they 	are 	not 	lawful. 	This 	interpretation 	is
creative, 	but 	neither 	convincing 	nor 	compelled 	by 	the 	statutory
language. 	It 	is 	equally 	reasonable 	to 	assume 	that 	the 	"lawful
written 	agreement 11 	alluded 	to 	in 	the 	first 	sentence 	of 	section
3544.7(b)(l) 	may 	be 	construed 	as 	referring 	only 	to 	the 	original
contract 	-- 	which 	was 	subject 	to 	the 	window 	period 	exception.
Thus, 	the 	one-month 	extension 	of 	the 	agreement 	between 	the
parties 	may 	be 	viewed 	as 	just 	that 	-- 	a 	short 	extension 	of 	the
lawful 	written 	agreement 	that 	is 	not 	itself 	subject 	to 	a 	new
window 	period. 	This 	view 	is 	not 	inconsistent 	with 	the 	National
Labor 	Relation 	Board 	s 	(NLRB) 	position	1 	3 prior 	to 	its 	decision
in 	Crompton 	Company, 	Inc. 	(1982) 	260 	NLRB 	419 	(109 	LRRM 	1161],
discussed 	infra, 	in 	footnote 	6. 	Pacific 	Coast 	Assn. 	of 	Pulp 	and
Paper 	Mfrs. 	(1958) 	121 	NLRB 	134 	(42 	LRRM 	1477].
Assuming 	that 	section 	3544.7(b)(l) 	is 	susceptible 	to
different 	reasonable 	constructions, 	such 	statutory 	ambiguity
should 	be 	resolved 	so 	as 	to 	promote 	the 	objectives 	of 	the 	entire
3Prior 	to 	Crompton, 	a 	line 	of 	NLRB 	cases 	held 	that
extension 	agreements 	of 	indefinite 	duration 	-- 	for 	example.
those 	containing 	language 	extending 	the 	terms 	of 	the 	prior
contract 	"for 	30 	days 	or 	until 	a 	new 	contract 	is 	signed,
whichever 	is 	sooner 11 	-- 	were 	stopgap 	agreements 	that 	would 	not
act 	as 	a 	bar 	to 	a 	decertification 	petition. 	See, 	e.g., 	Frye 	&
Smith, 	Ltd. 	(1965) 	151 	NLRB 	49 	[58 	LRRM 	1363], 	Dalmo 	Victor 	Co.
(1961) 	132 	NLRB 	1095 	[48 	LRRM 	1487]. 	Crompton 	represents 	a
deviation 	from 	this 	line 	of 	cases 	in 	that 	it 	holds 	not 	only
that 	the 	extension 	agreement 	at 	issue 	was 	of 	indefinite
duration 	and 	therefore 	no 	bar, 	but 	also 	that 	even 	an 	extension
of 	definite 	duration 	will 	not 	act 	as 	a 	bar 	if 	it 	is 	not 	long
enough 	to 	retain 	a 	window 	period.
5

4statute. 	Smith 	v. 	California 	Unemployment 	Insurance 	Appeals
Board 	(1975) 	52 	Cal.App.3d 	440, 	125 	Cal.Rptr. 	35. 	Section 	3540
states 	that 	the 	purpose 	of 	EERA 	is 	to 	improve 	personnel
management 	and 	employer-employee 	relations 	within 	the 	California
school 	systems. 	To 	further 	this 	end, 	the 	Legislature 	provided
for 	a 	contract 	bar 	to 	decertification 	petitions 	in 	section
3544.7(b)(l).
The 	policy 	underlying 	the 	contract 	bar 	rule 	is 	to 	balance
two 	competing 	goals 	of 	the 	Act: 	promoting 	stability 	in
collective 	bargaining 	relationships 	on 	the 	one 	hand 	and, 	on 	the
other. 	protecting 	the 	right 	of 	employees 	to 	choose 	freely 	their
exclusive 	representative. 	Bassett 	Unified 	School 	District
(1979) 	PERB 	Order 	No. 	Ad-63; 	Deluxe 	Metal 	Furniture 	Co. 	(1958)
121 	NLRB 	925 	[42 	LRRM 	1471]. 	Section 	3544.7(b)(l) 	furthers 	both
these 	goals. 	It 	promotes 	a 	stable 	bargaining 	relationship 	by
the 	general 	rule 	that 	a 	decertification 	petition 	shall 	be
dismissed 	if 	filed 	when 	a 	lawful 	written 	agreement 	is 	in
effect. 	It 	protects 	free 	choice 	by 	the 	exception 	to 	that
general 	rule, 	i.e., 	by 	providing 	a 	29-day 	window 	period 	prior 	to
4we 	find 	our 	dissenting 	colleague's 	reference 	to 	Cadiz 	v.
Agricultural 	Labor 	Relations 	Board 	(1979) 	92 	Cal.App.3d 	365
inapposite. 	There, 	the 	court 	found 	that 	the 	Legislature 	stated
clearly 	what 	it 	intended. 	Thus, 	the 	court 	concluded 	that 	the
Agricultural 	Labor 	Relations 	Board 	exceeded 	its 	authority 	by
acting 	contrary 	to 	the 	express 	terms 	of 	the 	statute. 	Here. 	the
language 	is 	not 	entirely 	clear. 	We 	do 	not 	think 	Member
Porter's 	reading 	of 	the 	statute 	is 	correct, 	much 	less
compelled. 	Assuming, 	however, 	that 	his 	interpretation 	is
reasonable, 	the 	statutory 	language 	is 	then, 	at 	best, 	ambiguous.
6

the 	expiration 	of 	the 	contract 	during 	which 	a 	decertification
petition 	will 	not 	be 	barred 	by 	the 	contract.
The 	Board 	has 	adopted 	a 	second 	exception 	to 	the 	general
contract 	bar 	rule 	to 	avoid 	unlawful 	manipulation 	of 	the
statutory 	window 	period--the 	premature 	extension 	doctrine. 	In
essence, 	this 	doctrine 	provides 	that 	a 	contract 	extension 	which
alters 	the 	window 	period 	established 	by 	the 	original 	contract 	is
not 	a 	valid 	contract 	bar 	to 	the 	filing 	of 	a 	decertification
petition. 	Hayward 	Unified 	School 	District 	(1980) 	PERB 	Order
No. 	Ad-96; 	San 	Francisco 	Unified 	School 	District 	(1984) 	PERB
Decision No. 	476.
In 	this 	case, 	although 	we 	believe 	that 	the 	express 	language
of 	section 	3544.?(b)(l) 	grants 	contract 	bar 	status 	to 	short
extensions 	of 	the 	original 	lawful 	agreement, 	we 	also 	find 	that
the 	interest 	in 	protecting 	a 	stable 	bargaining 	relationship
outweighs 	the 	incremental 	benefit 	to 	employee 	free 	choice 	that
is 	gained 	by 	having 	an 	additional 	open 	period 	following 	shortly
after 	the 	statutory 	window 	period. 	As 	the 	extension 	here 	was
agreed 	to 	after 	the 	window 	period 	established 	by 	the 	first
contract 	had 	elapsed, 	the 	premature 	contract 	extension 	doctrine
does 	not 	apply. 	San 	Francisco 	Unified 	School 	District, 	supra.
Moreover. 	there 	is 	no 	evidence 	that 	the 	parties 	agreed 	to 	the
extension 	in 	bad 	faith 	or 	in 	an 	attempt 	to 	circumvent 	the
decertification 	efforts 	of 	CSEA. 	On 	deciding 	they 	could 	not
complete 	negotiations 	by 	December 	31, 	the 	Teamsters 	and 	the
District 	extended 	the 	terms 	of 	the 	contract 	for 	one 	month 	while
7

they 	continued 	to 	bargain.
	Such
	conduct
	is
	common
	and
unremarkable.
	There
	were
	no
	delays
	in
	the
	negotiations;
	the
parties
	met
	four 	times
	during 	the
	extension 	period
	and
	came
	to
an
	agreement
	in
	a
	little
	over
	three
	weeks.
5
To
	find
	a
contract
	bar
	when
	an 	employer
	and
	the
	exclusive
	representative
conclude
	negotiations
	on
	a
	successor
	contract
	before 	the 	old
agreement
	expires,
	but 	not
	when
	their
	negotiations
	run
	a
	few
days
	over.
	would 	be
	an
	arbitrary
	and
	unsettling 	rule
	that
	would
not
	further
	the
	purposes 	of
	the
	Act. 	Although 	such
	a
	rule
	might
encourage
	the
	unions 	to
	commence
	bargaining
	on 	a
	successor
contract
	earlier,
	it
	would
	also
	provide
	a
	clear 	incentive 	to
	a
district
	to 	delay
	negotiations
	until 	after
	the
	original 	contract
had
	expired
	if
	it
	were 	aware
	of
	an
	on-going
	decertification
movement.
	This, 	coupled 	with
	a
	natural
	tendency 	of
	parties
	to
refrain
	from
	hard
	bargaining
	until
	they
	feel
	the
	pressure
	of
	a
deadline,
	would
	unnecessarily
	add
	a
	significant
	element 	of
destabilization
	to 	the
	employment 	and
	bargaining
	relationship.
Instead,
	we
	hold
	that
	a
	short-term 	extension
	will
	be 	a
	valid
bar
	to
	a
	decertification 	petition
	so 	long 	as
	the
	parties 	are
actively
	engaged
	in 	good-faith 	negotiations
	and
	absent 	other
evidence 	of
	a
	bad-faith
	attempt 	to 	manipulate 	the
	window
5Moreover,
	the 	successor 	contract 	agreed 	to
	was 	made
retroactive
	to 	the 	expiration 	date 	of 	the
	first
	contract.
	Had
the
	parties'
	motive 	been 	to 	delay
	a
	decertification 	election,
	it
would 	have 	been 	more
	logical 	to
	make
	the 	contract 	effective
	on
the 	signing 	date, 	thereby 	postponing 	the 	next
	window
	period 	as
long 	as 	possible.
8

6period. 	This 	will 	guard 	against 	abuse 	of 	the 	contract 	bar 	by
use 	of 	a 	series 	of 	short-term 	extensions 	to 	ward 	off 	a
decertification 	petition 	indefinitely 	and. 	at 	the 	same 	time,
will 	preserve 	the 	stability 	of 	the 	bargaining 	relationship 	as
mandated 	by 	the 	Legislature. 7 This 	rule 	is 	consistent 	with
our 	statement 	in 	San 	Francisco 	Unified 	School 	District,
6rn 	support 	of 	its 	position, 	the 	dissent 	cites 	Crompton
Company, 	Inc. 	(1982) 	260 	NLRB 	417 	[109 	LRRM 	1161], 	in 	which 	the
NLRB 	came 	to 	a 	contrary 	conclusion. 	In 	finding 	that 	a 	short
contract 	extension 	did 	not 	bar 	a 	decertification 	petition. 	the
NLRB 	held 	that 	the 	extension 	between 	Crompton 	and 	the 	Fibre
Workers 	Association 	would 	not 	bar 	a 	petition 	because 	the
extension 	was 	of 	indefinite 	duration 	and 	because 	contracts 	of
short 	duration 	provide 	little 	in 	the 	way 	of 	industrial
stability. 	Based 	on 	our 	experience 	in 	the 	public 	sector, 	we
believe 	short 	contract 	extensions 	promote 	stability 	by 	allowing
the 	parties 	to 	complete 	negotiations 	without 	fear 	of 	a
decertification 	election. 	Unlike 	Crompton, 	the 	extension 	here
is 	not 	of 	indefinite 	duration. 	As 	indicated, 	we 	find 	that
requiring 	the 	creation 	of 	an 	additional 	open 	period 	to 	occur
shortly 	after 	the 	expiration 	of 	the 	statutory 	window 	period
adds 	little 	to 	employee 	free 	choice 	while 	detracting
significantly 	from 	the 	stability 	of 	the 	bargaining
relationship. 	Brevard 	County 	School 	Board 	(1984) 	10 	FPER
15080, 	the 	Florida 	case 	cited 	by 	the 	dissent 	as 	additional
support, 	is 	also 	distinguishable 	from 	the 	situation 	we
address. 	In 	Brevard, 	supra, 	the 	contract 	extension 	at 	issue
occurred 	pursuant 	to 	a 	clause 	in 	the 	original 	memorandum 	of
agreement 	that 	provided 	for 	an 	automatic 	month-to-month
extension 	of 	the 	status 	quo 	unless 	terminated 	by 	the 	parties 	or
superseded 	by 	a 	new agreement. 	Thus, 	the 	extension 	was 	clearly
of 	indefinite 	term 	and, 	for 	that 	reason 	alone, 	would 	not
constitute 	a 	bar 	to 	a 	decertification 	petition.
?contrary 	to 	the 	dissent's 	reasoning, 	our 	interpretation
of 	section 	3544.7(b)(l) 	is 	not 	inconsistent 	with 	the 	three-year
limitation 	on 	the 	term 	of 	collective 	bargaining 	agreements 	that
is 	set 	forth 	in 	section 	3540.l(h) 	and 	does 	not 	permit 	parties
to 	avoid 	providing 	a 	window 	period 	for 	decertification
petitions 	at 	least 	once 	every 	three 	years. 	Here, 	the 	original
9

8
supra. 	There, 	after 	finding 	a 	four-month 	extension 	to 	be 	a
valid 	bar 	to 	a 	decertification 	petition, 	we 	said. 	at 	p. 	7:
The 	period 	following 	expiration 	of
the 	old 	contract 	bears 	no 	resemblance 	to 	an
established 	window 	period. 	Petitioner 	could
not 	rely 	on 	being 	able 	to 	file 	their
decertification 	petition 	after 	the 	contract
expired. 	They 	could 	hope 	for 	such 	an
opportunity, 	but 	it 	would 	occur 	only 	if 	no
agreement 	was 	reached 	to 	bar 	such 	a 	filing.
Unlike 	the 	window 	period 	protected 	by 	the
premature 	extension 	doctrine, 	the
Petitioner's 	opportunity 	to 	file 	its
decertification 	petition 	in 	this 	case 	was
not 	guaranteed 	by 	statute 	.
For 	the 	above 	reasons, 	we 	reverse 	the 	board 	agent's
determination 	and 	find 	that 	the 	petition 	at 	issue 	is 	barred.
ORDER
For 	the 	reasons 	set 	forth 	above, 	the 	Public 	Employment
Relations 	Board 	ORDERS 	that 	the 	administrative 	determination 	in
two-year 	contract 	created 	a 	window 	period 	in 	September 	1984.
The 	two-year 	successor 	agreement 	arrived 	at 	in 	January 	1985
creates 	another 	window 	period 	in 	September 	1986. 	Two 	window
periods 	in 	under 	three 	years 	hardly 	defeats 	the 	purpose 	of
section 	3540.l(h). 	Although Member 	Porter's 	mechanical 	rule 	is
admittedly 	easy 	to 	administer, 	this 	Board 	daily 	makes
determinations 	as 	to 	whether 	or 	not 	parties 	are 	acting 	in 	good
faith. 	Deciding 	whether 	a 	party 	or 	parties 	are 	manipulating
window 	periods 	in 	order 	to 	defeat 	the 	statutory 	purposes 	of 	the
Act 	is 	well 	within 	this 	Board's 	expertise.
BAlthough Member 	Porter 	believes 	that 	our 	decision 	today
is 	inconsistent 	with 	Inglewood 	Unified 	School 	District 	(1981)
PERB 	Decision 	No. 	162, 	Inglewood 	is 	easily 	distinguishable.
There, 	a 	petition 	was 	filed 	during 	the 	short 	interval 	between
the 	expiration 	of 	one 	agreement 	and 	the 	ratification 	of
another. 	Where 	no 	contract 	is 	in 	effect, 	section 	3544.7(b)(l)
has 	no 	application.
10

case
	No.
	SF-D-129
	is
	REVERSED
	and
	that
	the
	decertification
petition 	filed
	by
	the
	California
	School
	Employees
	Association
on
	January
	2, 	1985,
	is
	hereby
	DISMISSED
	as
	untimely.
Member
	Craib 	joined
	in
	this
	Decision.
Member
	Porter
1 s
	dissent
	begins
	on 	p.
	12.
11

Porter, 	Member, 	dissenting: 	I 	would 	affirm 	the 	Board
agent's 	determination 	that 	EERA 	section 	3544.7(b) 	requires 	a
lawful 	agreement 	of 	sufficient 	duration 	to 	create 	a 	window
period 	in 	order 	for 	the 	statutory 	contract 	bar 	rule 	to 	apply.
The 	issue 	is 	whether 	the 	statutory 	contract 	bar 	rule
embodied 	in 	section 	3544.7(b)(l) 	applies 	to 	agreements 	of
insufficient 	duration 	to 	contain 	a 	window 	period. 	The 	starting
point 	for 	interpreting 	a 	statute 	is 	the 	language 	of 	the
statute. 	Consumer 	Product 	Safety 	Commission 	v. 	GTE 	Sylvania
(1980) 	447 	U.S. 	102, 	108; 	Leroy 	T. 	v. 	Workmen's 	Compensation
Appeals 	Board 	(1974) 	12 	Cal.3d 	434,_ 	438. 	Also, 	the 	words 	of
the 	statute 	must 	be 	construed 	in 	context, 	keeping 	in 	mind 	the
nature 	and 	purpose 	of 	the 	law 	in 	which 	they 	appear. 	Stanley 	v.
Justice 	Court 	(1976) 	55 	Cal.App.3d 	244, 	249; 	West 	Pico
Furniture 	Co. 	v. 	Pacific 	Finance 	Loans 	(1970) 	2 	Cal.3d 	594,
608. 	The 	provisions 	of 	a 	statute 	must 	be 	construed 	together,
significance 	being 	given 	- 	if 	possible 	- 	to 	every 	word, 	phrase,
sentence 	and 	part 	of 	an 	act 	in 	pursuance 	of 	the 	legislative
intent 	and 	purpose. 	Turner 	v. 	Board 	of 	Trustees, 	Calexico
Unified 	School 	District 	(1976) 	16 	Cal.3d 	818, 	826; 	Moyer 	v.
Workmen's 	Compensation 	Appeals 	Board 	(1973) 	10 	Cal.3d 	222,
230_
EERA 	section 	3544.7(b) (1) 	provides, 	in 	pertinent 	part:
(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
12

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; 	or 	....
Subdivision 	(b)(l) 	thus 	prescribes 	that 	a 	decertification
petition 	filed 	while 	a 	lawful 	written 	agreement 	is 	in 	effect
shall 	be 	dismissed 	unless 	the 	petition 	is 	filed 	during 	the
window 	period 	occurring 	between 	120 	and 	90 	days 	prior 	to 	the
expiration 	date 	of 	such 	agreement. 	Pittsburg 	Unified 	School
District 	(1978) 	PERB 	Order 	No. 	Ad-49, 	p. 	4; 	Taft 	Union 	High
School 	District 	(1978) 	PERB 	Order 	No. 	Ad-50, 	p. 	5, 	fn. 	5~
The 	phrase, 	"of 	the 	agreement," 	appearing 	in 	the
provision's 	dependent 	clause, 	"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," 	is 	an 	explicit
reference 	to 	its 	preceding 	main 	clause 	requiring 	a 	"lawful
written 	agreement." l This 	conclusion 	is 	mandated 	by 	applying
lAn 	examination 	of 	the 	language 	of 	the 	contract 	bar
provision 	of 	another 	statute 	administered 	by 	this 	agency, 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA)
further 	supports 	this 	interpretation. 	At 	section 	3577(b)(l)
the 	statute 	reads:
(b) 	No 	election 	shall 	be 	held 	and 	the 	petition 	shall 	be
dismissed 	whenever:
(1) 	There 	is 	currently 	in 	effect 	a 	memorandum 	of
understanding 	between 	the 	employer 	and 	••• 	employee
organization 	••• 	unless 	the 	petition 	is 	filed 	not
more 	than 	120 	days 	and 	not 	less 	than 	90 	days 	prior 	to
13

one
	of
	the 	simplest
	and 	most
	fundamental 	canons
	of
	statutory
construction:
	a
	qualifying
	phrase
	must
	be
	applied
	to 	the
antecedent
	word
	to
	which
	it
	relates.
	Addison 	v.
	Dept.
	of
	Motor
Vehicles
	(1977)
	69
	Cal.App.3d
	486, 	496;
	Olivia
	v.
	Swoap,
	(1976)
59
	Cal.App.3d
	130,
	138; 	People
	v. 	Baker
	(1968)
	69
	Cal.2d
	44,
46.
	Fairly
	read,
	subdivision
	(b)
(1)
	cannot
	be
	fragmented
	so 	as
to
	isolate
	"a
	lawful
	written
	agreement"
	from
	its
	qualifying
phrase, 	"prior 	to 	the
	expiration
	date 	of 	the
	agreement,"
	as 	the
two
	phrases
	are
	inextricably
	tied.
	People
	v.
	Superior
	Court
(1969)
	70
	Cal.2d
	123~
	133.
	The
	provision
	may
	not
	be
	given
	an
alternative 	interpretation,
	and
	the
	statute's
	express
designation
	of
	a
	"window
	period" 	during 	the
	120
	days
	to
	90
	days
prior 	to
	the
	expiration
	of 	the
	agreement
	requires
	the
	existence
of
	an 	agreement
	of
	at 	least
	120
	days
	duration 	in 	order
	to
constitute
	a
	"lawful
	written
	agreement"
	that
	could
	trigger
	the
rule's
	bar
	effect.
The
	majority 	opinion 	dismisses
	this 	interpretation
	as
"creative
	but
	neither
	convincing, 	nor 	compelled
	by
	the
statutory
	language.
11
	The
	majority
	would
	instead
	interpret
	the
the 	expiration 	date 	of 	such
	memorandum,
...
	(Emphasis
added.)
For
	further
	examples 	of 	such
	precise 	parallelism 	in 	the 	language
used 	by 	the
	Legislature,
	see 	also
	HEERA
	section 	3574(c), 	and
PERB
	Regulations
	33020
	(governing
	EERA),
	51026, 	51140
(governing
	HEERA)
	and 	40130 	and 	40260
	(governing 	the 	State
Employer-Employee
	Relations 	Act, 	or
	SEERA). 	PERB
	Regulations
are 	codified 	at 	California 	Administrative
	Code,
	title
	8
	section
31001
	et
	seq.
14

statute
	to
	mean
	that 	"all
	lawful
	contracts 	act
	as
	a
	bar,"
	that
no
	window
	period
	is
	required
	when
	the
	contract
	is
	of
	less
	than
120
	days
	duration
	and
	accordingly,
	that
	the
	prescribed
	window
period
	is
	not
	a
	requirement
	but
	instead
	is
	an
	exception
	which
applies
	only
	to
	contracts
	of
	at 	least
	120-days
	duration.
	The
majority 	also
	asserts 	that
	the
	statute
	can
	reasonably
	be
construed
	to
	mean
	that
	the 	"lawful
	written
	agreement"
	referred
to
	in
	the
	first
	sentence 	of
	section 	3544.7(b)(l)
	refers
	"only"
to 	the 	original 	contract.
	Thus,
	a
	window
	period
	is
	not
required
	when
	the 	"lawful
	written
	agreement"
	is
	not
	an
	original
contract.
	Once
	having
	assumed 	an
	"ambiguity"
	in 	the
	statute,
the
	majority
	opinion
	abandons 	any
	statutory
	analysis
	and
pursues 	instead
	its
	own
	policy-making
	rationale
	by
	a
	goal
balancing 	process.
	It
	ultimately
	proposes 	the
	ad
	hoc
	rule
that,
	"a
	short-term 	extension
	will
	be
	a
	valid 	bar 	to
	a
decertification 	petition
	so 	long 	as
	the
	parties
	are
	actively
engaged
	in
	good
	faith
	negotiations
	and
	absent 	other
	evidence 	of
a
	bad-faith
	attempt
	to
	manipulate 	the
	window
	period."
	(Majority
Opinion, 	pp.
	8-9).
At
	the
	outset
	it
	should
	be
	recognized
	that
	the 	majority
opinion's
	approach,
	one
	of 	administratively 	legislating
	an 	ad
hoc
	rule, 	is 	patently
	wrong
	in
	light
	of 	the 	fact 	that 	this
Board 	has
	a
	statutory
	mandate
	to 	follow. 	This
	is
	in 	sharp
contrast 	to 	the 	National
	Labor
	Relations
	Board
	(NLRB),
	in 	that
the 	National 	Labor 	Relations
	Act
	(NLRA)
	does 	not 	contain 	an
express 	legislative
	mandate 	or 	guidelines 	governing 	the
15

principles
	of
	contract 	bar.
	Accordingly, 	while
	the
	NLRB
	may
properly
	develop
	such
	a
	rule 	solely
	as
	a
	matter
	of
administrative
	discretion, 	this
	Board
	does
	not
	have
	the
	same
latitude
	to
	formulate
	its
	own
	concept
	of
	a
	contract 	bar.
	Cadiz
v.
	Agricultural
	Labor
	Relations
	Board 	(1979)
	92
	Cal.App.3d
2
365.
The
	majority 	opinion
	compounds
	its
	error
	by
	"assuming"
	that
the 	language
	and
	framing
	of
	EERA's
	statutory
	contract 	bar
	rule
are
	ambiguous. 	While 	one
	may
	always
	find
	some
	specious
ambiguity
	in
	any
	statute,
	cardinal 	rules
	of
	statutory
construction 	require
	a
	statute
	which
	is 	plain
	on
	its
	face
	to
	be
administered
	and
	enforced 	as
	written.
	EERA
	section
3544.7(b)(l)
	is
	not
	a
	general
	directory
	type
	statute
	enacted
	by
the
	Legislature,
	with
	the
	details
	left
	to
	be
	supplied
	by
	this
Board.
	We
	may
	not
	assume
	the 	existence 	of
	an
	alternative
legislative
	intent 	that
	finds
	no
	expression 	in 	the
	words
	or
framing 	of 	the
	statute;
	nor
	may 	we
	insert
	or
	add 	words
	to 	the
statute
	to
	reflect
	an
	alternative 	legislative 	intent 	that 	is
not
	expressed 	in 	the
	words
	of 	the
	statute.
	Service
	Employees
2The
	Cadiz 	Court
	relied,
	in
	part,
	on
	this 	distinction
	in
its
	reversal
	of
	a
	decision 	of 	the
	Agricultural
	Labor
	Relations
Board
	within
	a
	context 	generally 	similar 	to 	that
	of 	the
	instantcase.
	In 	recognizing
	that
	the 	contract 	bar
	statute
	under
	the
Agricultural
	Labor
	Relations
	Act 	"on
	its
	face
	explicitlypermits
	a
	decertification 	petition 	to
	be
	filed 	at
	any
	time
during 	the 	term 	of
	a
	one-year 	contract," 	the 	Court 	concluded
that 	"the 	language
	of 	the 	provision
	was
	too
	clear 	to 	permit 	any
administrative 	or 	judicial
	tampering 	with
	its
	provisions."
	See
Cadiz, 	supra,
	92
	Cal.App.3d
	at
	371-372.
16

Internat.
	Union
	v.
	City 	of
	Santa 	Barbara
	(1981)
	125
	Cal.App.3d
459, 	467;
	North
	San
	Diego 	County
	Transit
	Development
	Board 	v.
Vial
	(1981)
	117
	Cal.App.3d
	27,
	31-32, 	34; 	Regents
	of
	the
University
	of
	California
	v.
	PERB
	(1985) 	168
	Cal.App.3d
937,941-945_ 	Moreover,
	a
	process 	of
	weighing 	competing
	goals
is
	not
	a
	valid
	substitute
	for
	our
	duty
	to
	comply
	with
	the
language
	and
	legislative
	intent
	of 	the
	statute.
	An
	approach
	of
circumspection
	is 	particularly
	warranted
	in 	dealing
	with
	a
statute
	such
	as
	EERA's
	contract
	bar
	provision,
	which
	is
	the
result
	of
	a
	legislative
	balancing 	of
	competing
	interests,
	and
is
	the
	embodiment
	of
	a
	legislative
	mandate
	designed
	in
	part
	to
preserve
	"a
	basic
	democratic
	right 	that
	lies
	at
	the
	very
foundation of 	the
	law
	this
	Board
	administers
II
	Petaluma
City
	Elementary
	and 	High
	School
	Districts
	(1982)
	PERE
	Order
	No.
Ad-131,
	dissenting
	opinion 	p.
	8.
3
3The
	"basic 	democratic
	right" 	referred 	to 	in
	Petaluma,
supra,
	is
	the 	employees'
	right
	of 	free 	choice 	in
	selecting 	or
changing
	their
	exclusive 	representative.
	As
	the
	California
Supreme
	Court 	has 	observed,
labor
	law
	generally
	[is]
	premised
	on
	the
legal 	fiction
	of
	sorts 	that
	the 	union
	elected
by
	past
	employees
	is
	the
	freely
	chosen
representative 	of 	current
	employees.[However],
	it
	should
	be 	remembered
	as 	the
court 	in 	Gissel 	noted,
	that 	"[t]here 	is,
after 	all,
	nothing 	permanent
	in
	a
	bargaining
order,
	and
	if
	[
...
]
	the 	employees
	clearlydesire 	to
	disavow 	the 	union, 	they 	can 	do 	so
by
	filing
	a
	[decertification] 	petition."
Harry 	Carian 	Sales 	v.
	Agricultural
	Labor
17

7
On 	a 	purely 	substantive 	level, 	the 	majority 	opinion's
interpretation 	of 	section 	3544.7(b) (1) 	is 	untenable. 	The
majority 	assumes 	that 	the 	"lawful 	written 	agreement" 	designated
in 	section 	3544.7(b) (1), 	and 	which 	statutorily 	acts~ 	the
contract 	bar, 	refers 	only 	to 	the 	original 	agreement.
Therefore, 	under 	the 	majority 	opinion's 	interpretation, 	section
3544.7(b)(l) 	has 	been 	effectively 	rewritten 	to 	be 	read 	as
follows:
(b) 	No 	election 	shall 	be 	held 	and 	the 	petition
shall 	be 	dismissed 	whenever:
(1) 	There 	is 	currently 	in 	effect 	a 	lawful
written 	agreement 	which 	also 	constitutes 	the
original 	contract 	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; 	or 	•..
The 	majority 	opinion 	errs 	in 	its 	approach 	of 	"assuming"
such 	words 	into 	a 	statute 	where 	they 	do 	not 	exist. 	Regents 	of
the 	University 	of 	California 	v. 	PERB, 	supra. 	Furthermore, 	even
Relations 	Board 	(1985) 	39 	Cal.3d 	209, 	241,
c1t1ng 	NLRB 	v. 	Gissell 	Packing 	Co., 	Inc.
(1969) 	395 	U.S. 	575.
In 	the 	instant 	case, 	PERB's 	Director 	of 	Representation
determined 	that 	the 	requisite 	30-percent 	showing 	of 	support
existed 	in 	the 	unit 	for 	purposes 	of 	qualifying 	the
decertification 	petition 	under 	PEPB 	Regulation 	32770~ 	As 	a
consequence, 	much 	more 	than 	inchoate 	statutory 	rights 	are 	at
stake 	in 	this 	controversy. 	It 	is 	of 	utmost 	importance 	that
this 	Board 	not 	fall 	prey 	to 	the 	legal 	fiction 	to 	which 	the
Supreme 	Court 	referred, 	lest 	employees 	in 	this 	bargaining 	unit
be 	effectively 	disenfranchised.
18

though
	erroneous, 	the
	majority
	opinion's
	interpretation
	of
section
	3544.7(b)(l) 	nonetheless
	actually
	leads 	to
	the
conclusion
	that
	EERA's
	contract
	bar
	rule
	does
	not
	permit
	a
	bar
of
	the
	decertification 	petition
	in
	this
	case.
	That
	is,
	in
carrying
	out 	the
	majority
	opinion's
	interpretation
	to
	its
logical
	end,
	if
	the
	"lawful
	written
	agreement"
	is
	only
	an
original
	agreement,
	then, 	ipso
	facto,
	a
	30-day
	extension
agreement 	cannot
	also
	be
	a
	"lawful
	written
	agreement"
	within
the
	meaning
	of
	section 	3544.7(b)(l).
	What
	agreement,
	then,
	can
now
	bar
	the
	decertification 	petition?
	In
	interpreting
	the
statute
	in 	the
	manner
	that
	it
	has, 	the
	majority
	opinion 	has
irretrievably 	lost
	the
	statutory
	justification
	for 	the
provision's
	bar
	effect.
There
	exists
	yet 	another
	shortcoming
	in 	the 	majority
opinion's 	analysis.
	By
	adopting
	a
	result
	in
	which
	stability
	in
the 	bargaining
	relationship 	is
	favored 	over
	employee
	free
choice, 	the 	majority
	has
	interpreted
	EERA's
	contract
	bar
	rule
to 	not 	require
	a 	window
	period
	as
	a
	prerequisite 	to 	the 	bar
effect.
	This
	interpretation,
	however,
	is 	inconsistent
	with 	the
rule 	ultimately
	proposed:
	if
	the
	parties
	are
	engaged
	in
	good
faith 	negotiations,
	a
	windowless 	agreement
	will
	be 	allowed
	to
constitute
	a
	bar;
	if
	they 	are 	not,
	it
	will
	not
	create
	a
	bar
	and
the 	requirement 	of
	a 	window
	period 	is
	presumably
	resurrected.
There
	is
	a
	fallacy 	inherent 	in
	such 	reasoning.
	By
	rejecting
	a
window
	period 	as
	a
	necessary 	requirement 	for
	a
	lawful 	written
19

agreement
	pursuant
	to 	section 	3544.7(b)(l),
	the 	very
substantive
	foundation
	upon
	which
	EERA's
	contract
	bar
	rule
	is
predicated
	is
	also 	destroyed.
	As 	a
	consequence,
	the
	majority
opinion
	has
	thereby
	lost
	the
	statutory
	justification
	for
reimposing
	the 	requirement 	of
	a
	window
	merely 	as
	a
	result
	of
concluding
	that
	the
	parties 	failed
	to 	negotiate
	in
	good
	faith.
The
	majority
	opinion's
	reading 	of
	section 	3544.7(b)(l)
would
	also
	sanction
	results
	which
	could 	not
	possibly
	have
	been
intended
	by
	the
	Legislature.
	For 	example,
	subdivision
	(b)
(1),
when
	read
	in 	conjunction
	with
	EERA
	section 	3540.l(h),
	which
prescribes
	a
	three-year
	limitation
	on
	the
	duration
	of
	a
collective
	bargaining
	agreement,
4
directs
	the 	conclusion
	that
a
	window
	period
	must
	occur
	at 	least
	every
	three 	years.
However,
	the
	majority 	opinion's
	reading
	of 	subdivision
	(b)
(1)
would
	infer
	a
	legislative 	intent 	to 	permit,
	and 	would
	in
	fact
permit 	the
	parties
	to
	agree
	to
	an
	endless 	succession 	of
windowless 	agreements
	or 	extensions 	of 	expired
	collective
bargaining
	agreements
	which 	do
	not
	individually
	exceed
	90
	days,
4EERA
	section 	3540.l(h) 	provides, 	in
	pertinent 	part:
"Meeting 	and
	negotiating"
	means
	...
	and
discussing
	by
	the 	exclusive 	representative
and
	the 	public 	school 	employer
	in
	a
	good
faith 	effort 	to 	reach 	agreement
	...
	and
	the
execution
	.••
	of
	a
	written
	document
incorporating
	any 	agreements 	reached
The
	agreement
	may
	be
	for
	a
	period 	of 	not 	to
exceed
	three 	years.
20

but
	collectively
	exceed
	three 	years.
	This
	would
	have
	the
effect
	of
	defeating
	one
	of 	the
	purposes 	of
	EERA
	section
3540~l(h).
5
The
	approach
	of 	the 	majority
	opinion
	also
	constitutes
	a
significant
	departure
	from
	federal 	precedent.
	While
	EERA's
contract
	bar
	rule
	is
	codified
	in 	the
	statute,
	as
	opposed
	to
being
	a
	discretionary 	doctrine
	as
	is
	the 	case
	under
	the
	NLRA,
EERA's
	rule
	nonetheless 	shares
	striking
	substantive
similarities
	to 	the
	federal
	doctrine.
	As
	has 	been
	recognized
by
	this
	Board,
...
	it
	is
	manifestly 	apparent
	that
	the
contract-bar 	doctrine
	developed 	over
	many
years
	by
	the
	NLRB
	served 	as 	the
	model
	for 	the
parallel
	provisions 	in 	the
	acts
	administered
by
	this
	Board. 	There
	is
	nothing 	expressed 	in
our
	contract-bar 	provisions
	which
	is
	not
	a
feature
	of 	the 	federal 	doctrine. 	State
	of
California
	(SETC 	& 	CSEA)
	(1983)
	PERB
	Decision
No.
	348-S,
	pp. 	7-8.
5As
	the 	majority 	opinion
	correctly
	notes, 	the
	parties
	on
these
	facts 	will
	not 	have 	exceeded
	the
	three-year
	limitation
	on
the
	term 	of 	the
	collective
	bargaining
	agreement
	prescribed 	in
section
	3540~l(h). 	Therefore, 	they
	will
	not 	have
	contravened
one
	of 	the
	essential
	purposes 	of
	that 	section: 	to
	ensure
	that
	a
window
	period 	will
	occur
	at 	least
	once
	every
	three 	years.
However,
	the 	observation 	that
	the 	purpose 	of
	section 	3540.l(h)
has 	not
	been
	violated 	in
	this
	case 	should 	not 	obscure 	the
	fact
that
	a
	disjunctive 	interpretation
	could 	permit
	such
	a
	result.
Also, 	adopting
	a
	construction
	which
	could 	bring 	section
3544.?(b)
(1)
	into
	disharmony 	with
	section 	3540.l(h)
	violates
the 	canon 	of
	statutory 	construction 	requiring 	that:
[T]he 	various 	parts
	of
	a
	statute
	must 	be
harmonized 	by
	considering 	the
	particularclause 	(under
	scrutiny) 	in 	the 	context 	of 	the
statute
	as
	a
	whole.
	Moyer 	v. 	Workmen's
Compensation 	Appeals 	Board 	(1973) 	10
	Cal.3d
222, 	230~
21

In
	light
	of 	the
	profound
	similarities
	between
	EERA's
	contract
bar
	rule
	and
	the
	federal 	doctrine
	it
	is
	appropriate
	for
	this
Board
	to
	take 	cognizance
	of 	the
	contract
	bar
	decisions
	of
	the
NLRB.
	State
	of
	California,
	supra.
	See
	also
	Bassett
	Unified
School
	District
	(1979)
	PERB
	Order
	No.
	Ad-63,
	p.
	3,
	fn.
	6.
The
	NLRB
	has
	had
	the
	occasion
	to
	consider
	whether
short-term
	agreements
	providing 	for
	less
	than
	a
	full
	window
period
	should
	be
	capable 	of
	triggering
	a
	bar
	to
	a
	duly
qualified 	election
	petition,
	and
	has
	rejected
	such
	a
proposition.
	In
	reaching
	a
	result 	directly
	contrary 	to
	that
reached
	by
	the 	majority 	opinion, 	the
	NLRB
	reasoned
	that
	a
short-term
	agreement
	which
	is
	of
	insufficient
	duration 	to
contain
	a
	window
	period
	fails
	to
	meet
	either
	of 	the 	dual
objectives
	of
	the 	contract
	bar
	rule:
	stability
	in
	collective
bargaining 	relationships
	or
	preservation
	of
	employee
	free
choice 	in
	representational 	matters.
	Crompton
	Company,
	Inc.
(1982)
	260
	NLRB
	417
	[109
	LRRM
	1161].
Critical
	to 	the
	NLRB's
	analysis 	in
	Crompton
	Company,
	Inc.,
supra,
	was
	its
	recognition
	that
	a
	provision 	for
	a
	window
	period
is
	the
	result
	of 	reconciling 	the
	competing
	interests
	of
employees 	with 	those 	of 	the 	exclusive 	representative.
	The
window
	period
	accommodates
	the 	employees'
	interest
	in 	free
choice, 	while 	the 	"insulated 	period," 	or 	the
	final
	days
	of 	the
contract 	after
	the 	expiration 	of 	the
	window
	period,
accommodates 	the
	interest
	of 	an 	incumbent 	union 	to
	be
	protected
22

from
	disruptive 	representational
	challenges
	prior
	to 	the
expiration
	of 	the
	contract.
	A
delicate
	balance
	is
	thereby
struck.
	Crompton
	Company,
	Inc.,
	supra,
	at
	p.
	418.
The
	majority
	opinion
	rejects
	the 	conclusion
	reached
	in
Crompton,
	Company,
	Inc.,
	supra,
	by
	relying
	on
	a
	serious
misapprehension 	of 	the
	NLRB's
	reasoning
	therein.
	The
	majority
opinion
	states:
In
	finding
	that
	a
	short 	contract
	extension
did
	not
	bar
	a
	decertification 	petition
	the
NLRB
	held
	that
	the 	extension
	between
	[the
parties]
	did 	not
	bar
	a
	petition
	because
	the
extension
	was
	of
	indefinite
	duration
	and
because
	contracts
	of
	short 	duration
	provide
little
	in
	the
	way
	of
	industrial
	stability.
Majority
	Opinion,
	p.
	9,
	fn.
	6
	(Emphasis
	added).
While
	the
	NLRB
	in
	Crompton
	Company,
	Inc.,
	supra, 	did 	in
fact
	conclude
	that 	short
	term
	contracts
	"provide
	little
	in 	the
way
	of
	industrial
	stability,
116
the 	majority 	opinion
	errs 	in
its
	conclusion
	that
	the
	NLRB
	also 	relied
	on
	the
	fact 	that
	the
extension
	at
	issue
	was
	of
	an
	indefinite 	duration.
	To
	the
contrary,
	the
	NLRB
	expressly
	disavowed 	any
	reliance
	on
	the
latter
	point,
	and
	stated,
[E]ven
	if
	the 	extension
	agreement
	were
	for
	a
definite
	duration
	.•.
	it
	would
	still
	not
bar 	the
	Petitioner's 	petition
.
. 	. 	.
	[A]greernents
	of
	less
	than
	90
	days, 	even
if
	they 	are 	for
	a
	definite 	period,
	fail
	to
meet
	either 	objective 	[of 	the 	contract 	bar
doctrine].
	Because 	of
	their 	short 	duration,
they 	provide
	little
	in 	the
	way
	of
	industrial
6260
	NLRB
	at 	p.
	418.
23

stability
	•.•
	Therefore,
	such
	agreements
will
	not
	bar
	a
	petition 	filed
	during 	the
	term
of
	the
	agreement. 	This
	rule 	applies
	even
	if
the
	agreement
	is
	for
	a
	fixed
	duration
	of
	less
than
	90
	days
	and
	without 	regard
	to
	whether
the
	agreement
	is
	an
	extension
	of
	an
	existing
contract
	or
	a 	new
	contract.
Crompton,
	supra, 	p.
	418. 	(Emphasis
	added)
Nor
	does
	the
	NLRB's
	decision 	in
	Crompton
	Company,
	Inc.,
present
	a
	departure
	from
	its
	previous 	precedent.
7
The
	NLRB
had
	traditionally
	found
	that 	contracts
	of
	indefinite
	duration
are 	incapable 	of
	barring
	a
	duly
	filed 	petition
	for
decertification.
	Furthermore, 	the
	NLRB
	has
	held 	for
	a
	long
period
	that
	a
	contractual
	extension
	which
	is
	intended
	to
	be
superseded
	by
	a
	permanent 	agreement
8
will
	not
	constitute
	a
7The
	majority 	opinion
	states 	that 	prior
	to
	Crompton
Company,
	Inc.,
	NLRB
	precedent
	established 	that
	extension
agreements 	of
	indefinite
	duration
	were
	stop-gap
	agreements
that
	would
	not
	act
	as
	a
	bar 	to
	a
	decertification 	petition.
The
	majority
	then
	cites
	to
	Frye	
&	
Smith,
	Ltd.
	(1965)
	151
NLRB
	49; 	[58
	LRRM
	1363]
	Dalmo
	Victor
	Co.
	(1961) 	132
	NLRB
1095
	[
48
	LRRM
	1487]. 	(Majority 	opinion 	p.
	5
	fn.
	3)
	While
the
	contract
	extensions
	at
	issue 	in
	Frye	
&	
Smith
	and
	Dalmo
Victor, 	supra,
	were
	of
	an
	indefinite 	duration, 	the
definitive
	factor 	relied
	upon 	by
	the
	NLRB
	was
	the
	fact 	the
extensions
	were
	of
	a
	temporary
	or 	provisional 	nature.
Moreover, 	the 	majority 	opinion
	cites
	to
	no
	authority 	for 	the
proposition 	that
	under
	the
	NLRB,
	stop-gap 	agreements 	of
definite
	duration
	were
	traditionally
	deemed
	capable 	of
barring
	a
	duly
	filed 	decertification 	petition.
	Furthermore,
with
	respect 	to 	Pacific
	Coast
	Association 	of 	Pulp 	and
	Paper
Manufacturers,
	(1958) 	121
	NLRB
	990 	[42
	LRRM
	1477],
	this
decision
	merely 	held 	that
	a
	decertification 	petition 	filed
during
	a
	60-day
	insulation 	period
	was
	barred.
8These 	agreements 	are 	also 	identified 	interchangeablyas	
stop-gap, 	temporary, 	provisional 	or 	interim 	agreements.
24

bar.
	Interborough
	News 	Company
	(1948)
	79
	NLRB
	1528
	[23
	LRRM
1016];
	The
	Alliance
	Manufacturing
	Company
	(1952)
	101
	NLRB
	112,
[31
	LRRM
	1028];
	John
	Liber	
& 	Company
	(1959)
	123
	NLRB
	1174;
	[44.
LRRM
	1083].
	Dalmo
	Victor
	Company
	(1961)
	132
	NLRB
	1095
	[48
	LRRM
1487];
	Frye	
&	
Smith,
	LTD
	(1965)
	151
	NLRB
	49
	[58
	LRRM
	1363].
	In
rejecting
	these
	provisional
	agreements 	as
	being 	capable 	of
acting
	as
	a
	bar,
	the
	NLRB
	has 	not
	found
	as
	constituting
	a
determinative 	factor
	whether
	or
	not
	the
	agreement
	is
	of
definite
	duration. 	Instead, 	the
	NLRB
	has
	relied
	on
	whether
	the
agreement
	is
	of
	a
	temporary
	or
	provisional 	nature
	pending
	the
parties'
	future
	negotiations.
	Therefore,
	rather
	than
constituting
	a
	"deviation"
	from
	the
	NLRB's
	previous 	precedent,
Crompton
	Company,
	Inc.
	merely
	represents
	the
	NLRB's
	unequivocal
statement
	that
	henceforth
	it
	would
	not
	even
	consider 	the
contract's 	indefinite
	duration
	as
	a
	relevant 	factor
	in
analyzing
	whether
	or 	not
	it
	is
	capable 	of
	acting
	as
	bar.
	Thus,
Crompton
	Company,
	Inc.
	is
	the
	consummation
	of 	the
	NLRB's
evolving 	doctrine 	in
	which
	a
	provisional
	agreement 	pending
	the
parties'
	negotiations
	is
	rejected
	as
	acting
	as
	a
	bar 	to
	a
	duly
filed 	decertification 	petition.
9
9The
	majority 	opinion 	also 	rejects
	the
	result
	reached
	in
Crompton 	Company,
	Inc., 	supra,
	on
	the 	ground
	that
	the
	NLRB's
conclusion 	is 	inconsistent 	with 	the 	Board's 	"experience 	in 	the
public 	sector.
11
	(p.	
9,
	fn. 	6)	
It
	should 	be 	noted
	that
Florida, 	the 	only
	sister 	state
	found
	to
	have 	considered 	the
issue 	before 	the 	Board 	in 	the 	instant 	case, 	decided 	in 	accord
with 	Crompton. 	The
	Florida 	Public
	Employment
	Relations
25

Consistent 	with 	federal 	precedent, 	this 	Board 	has
heretofore 	recognized 	that 	EERA's 	contract 	bar 	rule 	embodies 	a
delicate 	balance 	between 	the 	rights 	of 	the 	employees 	and 	those
of 	the 	incumbent 	union. 	In 	the 	interest 	of 	not 	upsetting 	this
balance, 	the 	window 	period 	is 	to 	be 	"unequivocally 	defined."
Bassett 	Unified 	School 	District, 	supra, 	p. 	4. 	In 	Bassett, 	the
Board 	reasoned 	that 	extending 	the 	window 	period:
.•. 	by 	allowing 	the 	filing 	of
decertification 	petitions 	outside 	its 	time
limits 	would 	be 	to 	override 	explicit
legislative 	direction 	and 	erode 	the 	right 	of
the 	incumbent 	organization 	to 	pursue 	its
obligations 	as 	the 	exclusive 	representative.
The 	presence 	of 	an 	"insulation 	period" 	between 	the 	window
period 	and 	the 	expiration 	date 	of 	the 	agreement 	has 	likewise
Commission 	held 	that 	in 	order 	for 	a 	contractual 	extension 	to 	bar
a 	decertification 	petition 	under 	Florida's 	contract 	bar 	statute,
the 	extension 	must 	provide 	a 	full 	window 	period. 	Brevard 	County
School 	Board 	(1984) 	10 	FPER 	para. 	15080. 	Also, 	as 	was 	noted 	by
the 	majority 	opinion, 	while 	the 	extension 	at 	issue 	in 	Brevard
County, 	supra, 	was 	techically 	of 	indefinite 	duration,the 	Florida
Public 	Employment 	Relations 	Commission, 	in 	citing 	Hillsborough
County 	Emergency 	Medical 	Services 	(1981) 	7 	FPER 	para. 	12124,
rejected 	the 	contract's 	indefinite 	duration 	as 	a 	relevant 	factor
in 	analyzing 	whether 	or 	not 	the 	agreement 	could 	act 	as 	a 	bar.
Instead, 	the 	focus 	of 	inquiry 	was 	whether 	or 	not 	the 	agreement
was 	of 	a 	temporary, 	provisional 	nature. 	The 	Florida 	decisions 	of
Brevard 	County 	and 	Hillsborough 	County, 	supra, 	therefore 	are 	in
precise 	alignment 	with 	applicable 	precedent 	of 	the 	NLRB.
It 	is 	also 	interesting 	to 	note 	that 	our 	California
Legislature, 	in 	a 	number 	of 	statutes, 	has 	specifically 	provided
for 	the 	mandatory 	application 	of 	federal 	law 	and 	federal
administrative 	practice 	in 	the 	resolution 	of 	election 	and
contract 	bar 	issues 	in 	public 	sector 	labor 	relations. 	See, 	e.g.,
Public 	Utilities 	Code 	section 	125521 	and 	Regulations 	of 	Director
of 	Industrial 	Relations, 	8 	Cal. 	Admin. 	Code 	sections 	15.800 	et
seq., 	and 	North 	San 	Diego 	County 	Transit 	Development 	Board 	v.
Vial 	(1981) 	117 	Cal.App.3d 	27. 	See 	also 	Public 	Utilities 	Code,
sections 	40122, 	70122, 	90300(b) 	and 	100301.
26

been 	acknowledged 	by 	this 	Board 	as 	an 	integral 	component 	of 	the
contract 	bar 	equation. 	Bassett 	Unified 	School 	District, 	supra,
p. 	3; 	Solano 	Community 	College 	District 	(1981) 	PERB 	Decision
No. 	166. 	Yet, 	despite 	this 	Board's 	holding 	in 	Bassett 	the
majority 	opinion 	artificially 	extends 	the 	insulation 	period
and, 	in 	the 	process, 	disturbs 	the 	delicate 	balance 	struck
between 	employee 	rights 	and 	those 	of 	the 	exclusive
representative. 	See 	also, 	Hillsborough 	County, 	supra.
In 	justifying 	its 	result 	that 	a 	windowless 	agreement 	will
invoke, 	pursuant 	to 	section 	3544.7(b) (1), 	a 	bar 	to 	an 	election,
the 	majority 	opinion 	finds 	that 	"the 	interest 	of 	protecting 	a
stable 	bargaining 	relationship 	outweighs 	the 	incremental
benefit 	to 	employee 	free 	choice 	that 	is 	gained 	by 	having 	an
additional 	open 	period 	following 	shortly 	after 	the 	statutory
closed 	period." 	(Majority 	Opinion 	p. 	7). 	This 	ad 	hoc 	approach
of 	weighing 	interests, 	however, 	is 	inconsistent 	with 	previous
board 	precedent. 	In 	Inglewood 	Unified 	School 	District 	(1981)
PERB 	Decision 	No. 	162, 	the 	Board 	adopted 	the 	ALJ's 	finding 	that
an 	interval 	of 	a 	mere 	few 	hours 	existing 	between 	the 	expiration
of 	one 	agreement 	and 	the 	ratification 	of 	the 	successor 	contract
had 	the 	effect 	of 	negating 	an 	application 	of 	the 	contract 	bar
rule. 	The 	ALJ 	reasoned 	that 	at 	the 	time 	of 	the 	filing 	of 	the
decertification 	petition, 	due 	to 	a 	gap 	of 	a 	few 	hours 	during
which 	the 	successor 	contract 	had 	yet 	to 	be 	ratified, 	a 	written
agreement 	within 	the 	requirements 	of 	EERA's 	contract 	bar 	rule
did 	not 	exist 	which 	would 	constitute 	a 	bar. 	This 	conclusion
27

was
	affirmed
	by
	the
	Board
	despite
	the
	fact
	that
	the
	parties
1
negotiations
	on
	the 	successor
	agreement
	were
	complete,
	and
	it
was
	presumably
	only
	by
	their
	oversight
	that
	a
	gap
	existed
between
	the
	two
	contracts.
	Still,
	even 	where
	there
	was
arguably
	a 	much
	more
	compelling
	interest
	in
	"protecting
	a
stable
	bargaining
	relationship"
	than
	the
	facts
	of
	the
	instant
case, 	the
	Board
	in
	Inglewood
	adhered
	to
	the
	statutory
prescriptions
	of
	EERA's
	contract
	bar
	rule.
Nor
	is
	the
	majority
	opinion
	correct
	in
	its
	conclusion
	that
the
	result
	it
	reaches 	today
	"is 	consistent
	with
	[the 	Board's]
1n	
.	
Francisco	
. 	.
f'
	d	
Sc
h
oo
1	
D1str1ct.	
. 	. 	,
statement
	San
	Uni
	1e	
.lO	
That
decision
	merely
	addressed 	the 	issue
	of
	whether
	the 	premature
extension 	doctrine 	applies 	to 	contract
	extensions 	to
	which
	the
parties
	agreed
	after
	the 	lapse 	of 	the
	window
	period; 	the
present 	issue
	simply
	was
	not
	implicated.
	Also, 	while
	this
Board
	in
	San
	Francisco 	Unified
	School
	District
	found
	that 	the
statutory 	contract 	bar 	rule
	was
	applicable, 	the 	conclusion
	that
it
	reached
	was
	consistent
	with 	the 	language 	of
	EERA's
	contract
bar
	rule 	in
	that
	the 	contract 	extension
	at
	issue
	had
	a
	duration
of
	nearly 	five
	months 	and 	was,
	therefore, 	clearly
	of
	sufficient
duration 	to 	contain
	a 	window
	period.
	No
	such
	duration
	is
present 	in 	the
	instant 	case.
lOsan 	Francisco 	Unified 	School
	District
	(1984)
	PERB
Decision-No. 	476.
28

A
	decision
	finding
	that
	a
	windowless
	agreement
	will
	not
	bar
an
	election
	is
	commanded
	by
	the
	language
	of
	EERA
	section
3544.7(b),
	and
	is
	consistent
	with
	precedent 	of
	this
	Board,
	the
NLRB,
	as
	well 	as
	that
	of 	the 	only
	sister
	state
	to
	have
considered 	the
	issue.
	Furthermore,
	it
	is
	also 	administratively
feasible.
	A
	significant
	problem
	associated
	with 	the
	ad
	hoc
approach
	taken
	by
	the
	majority
	opinion
	is
	its
	difficulty
	of
administration.
	The
	majority
	opinion
	fails
	to
	artic11J;;a,te
standards
	to
	be
	used 	by
	the
	Board
	agent
	for 	the
	purpose
	of
,--------------
ascertaining
	whether
	one
	or
	both 	of 	the
	parties
	engaged
	in
	a
"bad
	faith
	attempt
	to
	manipulate 	the
	window
	period,"
	a
	decision
our
	Board
	agents
	will
	have
	to
	make
	without 	the
	benefit
	of
	an
evidentiary 	hearing.
	A
decision
	rejecting
	the
	contract 	bar
rule's
	application 	to
	a
	windowless 	agreement
	on
	the
	other
	hand,
offers
	the 	advantages 	of
	clarity
	and
	predictability,
	both
	to
the
	parties,
	as 	well 	as
	to
	the
	Board
	agent.
	In
	recognition
	of
these 	advantages,
	this
	Board
	has 	emphasized
	in 	the
	past 	the
value
	of:
definite, 	easily
	applied 	rules
	which 	reduce
the
	need
	for
	litigation
	and
	thereby
	yield
certain
	and
	final 	results.
	Rules 	which
	willquickly 	resolve 	representational 	issues
	and
avoid 	lengthy
	litigation
	[and] 	promote
stable
	employer-employee
	relations
	•..•
State
	of 	California
	(Unit
	12), 	supra, 	p. 	8.
Finally, 	section 	3544.7(b)(l) 	requires
	a
	lawful 	written
agreement
	to 	create
	a
	contract 	bar.
	I
	would
	find
	a
	windowless
agreement 	not 	to
	be
	a
	"lawful 	written 	agreement" 	within 	the
meaning 	of 	section 	3544.7(b)
(1) 	and,
	therefore,
	would 	not 	go
29

beyond 	that 	point 	in 	finding 	that 	the 	agreement 	did 	not 	act 	as
a 	bar 	within 	the 	present 	factual 	context. 	The 	majority
opinion, 	however, 	has 	found 	the 	extension 	to 	constitute 	a
contract 	bar. 	This 	result 	was 	reached 	without 	further 	inquiry
into 	whether 	all 	requirements 	of 	a 	"lawful 	written 	agreement"
had 	actually 	been 	met. 	Specifically, 	I 	question, 	without
having 	to 	decide 	the 	issue 	herein, 	whether 	this 	extension
complied 	with 	section 	35163 	of 	the 	Education 	Code. 11
llsection 	35163 	of 	the 	Education 	Code 	provides 	that 	every
official 	action 	taken 	by 	the 	governing 	board 	of 	every 	school
district 	shall 	be 	affirmed 	by 	a 	formal 	vote 	of 	the 	members 	of
the 	board. 	Furthermore, 	while 	the 	board 	may 	delegate 	its
vested 	power 	to 	enter 	into 	contracts 	to 	the 	District's
superintendent, 	the 	mere 	delegation 	does 	not 	enable 	the
superintendent 	or 	his 	delegatee 	to 	enter 	into 	an 	enforceable
contract 	until 	such 	time 	that 	the 	agreement 	is 	ratified 	by 	the
board. 	Education 	Code 	section 	39656.
30