Alum Rock Union Elementary School District (PERB A280E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ALUM ROCK
	UNION
	ELEMENTARY 	SCHOOL
DISTRICT,
Employer,
and
TEAMSTERS
	LOCAL
	228,
Petitioner,
and
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION,
Exclusive 	Representative.
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Case
	No.
	SF-D-226
Administrative
	Appeal
PERB
	Order
	No.
	Ad-280
December 	6 1 	1996
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Appearances:
Attorney,
	Beeson,
	Tayer	
&	
Bodine 	by Robert
	Bonsall,
for
	Teamsters 	Local 	228; 	Maureen
	C.
	Whelan,
	Attorney,
	for
California
	School
	Employees
	Association.
Members.
	Before 	Caffrey,
	Chairman;
	Garcia
	and Dyer,
DECISION
the 	Public
	GARCIA, 	Member:
	This 	case
	comes
	before
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
California
	School
	Employees
	Association
	(CSEA)
	of
	a
	Board
	agent's
administrative 	determination.
	The
	Board
	agent 	determined
	that
decertify
	CSEA
the
	Teamsters 	Local
	228's
	(Teamsters)
	petition
	to
as 	the 	exclusive 	representative
	of 	the 	Paraprofessional 	Unit
	in
the
	Alum Rock 	Union 	Elementary 	School
	District 	(District)
	was
timely 	filed
	with 	adequate 	proof 	of 	support.
	CSEA
	challenges
that 	petition
	on
	the 	grounds
	that
	it
	was
	untimely 	filed. 	After
	a
review 	of 	the 	entire 	record, 	including 	the 	decertification 
the
petition, 	administrative 	determination, 	CSEA's 	appeal 	and	the

Tea..msters'
	response
	thereto,
	the
	Board
	finds
	that
	the
	petition
	to
decertify
	CSEA
	in
	the 	Paraprofessional
	Unit
	was
	filed
	outside
	the
window
	period
	specified 	in
	the
	Educational
	Employment
	Relations
Act
	(EERA)
	section
	3544.7(b)
(1)
	and must 	be
	dismissed.
1
BACKGROUND
CSEA
	is
	the 	exclusive
	representative
	of
	two
	units
	of
classified
	employees
	in
	the
	District:
	the 	Office, 	Technical,
Business
	Services
	(OTBS)
	Unit
	and
	the 	Paraprofessional 	Unit.
Both
	units
	are
	covered 	under
	one
	collective
	bargaining
	agreement
(CBA),
	which
	expired
	on
	June
	30, 	1996.
	There
	are
	approximately
155
	employees
	in
	the
	OTBS
	Unit
	and
	237
	employees
	in
	the
Paraprofessional 	Unit.
	On
	March
	29, 	1996,
	during 	the
	window
period,
	the
	Teamsters
	filed
	a
	petition
	to 	decertify
	CSEA,
	naming
1
EERA
	is
	codified
	at
	Government 	Code
	section
	3540
	et
	seq.
Decertification petitions
	can 	only
	be
	filed
	under
	certain
circumstances 	pursuant
	to
	EERA.
	Section
	3544.7(b) (1),
	provides,
in
	part, 	that:
(b)
	No
	election 	shall
	be
	held
	and
	the
petition 	shall
	be
	dismissed
	whenever
	either
of
	the 	following
	exist:
(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, 	but
more
	than
	90
	days,
	prior 	to 	the 	expirationdate 	of 	the 	agreement.
The 	window
	period 	referred 	to 	in 	this 	section 	is
	determined 	by
counting 	back
	91
	calendar 	days 	(more
	than
	90
	days),
	starting
	withand 	including 	the
	last
	day before 	the 	expiration date 	of 	the
contract,
	and 	going 	back no 	more
	than
	120
	calendar days
	prior 	to
the 	expiration 	of 	the
	window
	period.
	(See
	Bassett 	Unified 	School
District
	(1979} 	PERB
	Order No" 	Ad-63
	(Bassett
	USD)
.)
2

only
	the
	OTBS
	Unit
2
but
	indicating
	that
	there
	were
	350
	employees
in 	the
	unit.
	On
	or
	about
	April
	12, 	1996,
	a
	District
	office
employee
	informed
	the
	Board
	agent 	of
	the
	discrepancy
	in
	the
number
	of
	employees
	indicated
	on
	the
	petition.
	The
	Board
	agent
contacted 	the
	Teamsters
	for
	an
	explanation,
	and
	the
	Teamsters'
representative 	stated 	that
	the
	decertification petition
	was
intended
	to
	cover
	employees
	in
	another
	unit
	as 	well.
On
	April
	16, 	1996,
	after
	expiration
	of
	the
	window
	period,
the
	Teamsters
	filed
	a
	second
	petition,
	which
	they
	offered
	as
	an
amendment
	to
	the
	original
	petition.
	That
	petition
	sought
	to
decertify
	CSEA
	in
	both
	the
	OTBS
	Unit
	and
	the 	Paraprofessional
Unit.
3 	The
	Teamsters
	stated 	in
	their
	cover
	letter
	to
	the
	second
petition
	that
	they
	had
	intended
	to
	include
	all
	employees
	in
	both
units
	in
	their 	earlier
	petition,
	but
	had
	erroneously
	identified
only 	the
	OTBS
	unit.
On
	April
	25, 	1996,
	CSEA
	filed
	a
	motion
	to 	dismiss 	the
	second
petition
	as 	untimely, 	since
	it
	was
	filed 	after
	the
	expiration
	of
the
	window
	period.
ADMINISTRATIVE 	DETERMINATION
In 	the 	administrative 	determination, 	the
	Board
	agent 	noted
that
	although
	PERB
	has
	strictly
	enforced 	the
	window
	period
2
Accordingly,
	PERB
	ordered
	a
	decertification 	election 	for
that 	unit
	(OTBS
	Unit,
	PERB
	Case 	No. 	SF-D-225).
	Ballots
	were
mailed 	to
	OTBS
	unit
	employees 	on May 	28, 	1996 	and were
	counted
	on
June 	14, 	1996. 	Having
	received
	more
	votes,
	CSEA was
	certified
	as
the 	exclusive 	representative 	of
	that 	unit
	on June 	28, 	1996.
3
Since
	it 	is
	PERB's
	practice 	to 	assign
	a
	separate 	case
number
	to 	each 	bargaining 	unit 	covered by a
	petition, 	the 	second
petition
	was
	assigned
	a
	separate 	case 	number 	(SF-D-226).
3

requirement,
4
the
	Board
	has
	permitted 	the
	correction
	of
	a
technical
	error 	in
	a
	decertification 	petition
	when
	the
	error
	was
immaterial
	and
	did
	not
	result
	in
	prejudice
	to
	the
	other
parties.
As
	an
	example,
	the
	Board
	agent
	cited
	Santa
Monica-Malibu
	Unified
School
	District
	(1987)
	PERB
	Order
	No.
	Ad-163
	(Santa
	Monica-Malibu
USD),
	in
	which
	the
	Board
	held
	that
	a
	petitioning
	union's
	failure
to 	timely
	serve 	copies 	of 	the
	petition
	on
	the 	exclusive
representative
	and 	employer
	was
	not
	grounds
	to
	dismiss 	the
petition,
	since 	the
	other
	parties
	were
	not
	prejudiced
	by
	the
	late
service,
	they
	had
	actual
	knowledge
	of 	the
	filing,
	and
	there
	was
no
	evidence
	that
	the
	late
	service
	was
	wilful.
	Examining
	the
facts 	in
	the
	instant
	case, 	the
	Board
	agent 	noted
	that
	the
Teamsters
	had
	submitted
	sufficient
	proof 	of 	support
	and
	the
	error
caused
	no
	prejudice 	to
	the
	parties.
	She
	ruled
	that
	the
	error
	was
merely
	technical
	and
	declined 	to
	dismiss 	the
	petition.
	She
	then
ordered
	a
	decertification 	election 	to
	determine
	the
representative,
	if
	any,
	desired
	by
	the
	eligible
	employees
	in
	the
4
The 	Board
	agent
	cited Bassett
	USD
	(dismissal 	of
	petition
filed
	on
	Monday
	following
	weekend
	expiration
	of
	window
	period);
Pittsburg
	Unified
	School
	District
	(1978)
	PERB
	Order
	No.
	Ad-49
(Pittsburg
	USD)
	(no
	extension 	of 	time 	beyond
	window
	period 	to
perfect
	proof 	of 	support,
	and
	proofs 	containing 	undated
signatures
	were
	invalidated);
	Petaluma
	City Elementary 	and 	High
School
	Districts
	(1982)
	PERB
	Order
	No.
	Ad-131 	(Petaluma
	CE
	and
HSD) 	(PERB
	refused 	to 	allow 	evidence
	that
	two
	signatures 	with
stale
	dates
	were
	actually 	signed 	within 	the 	time
	period);
	and
State 	of 	California
	(Department 	of 	Personnel 	Administration)
(1983)
	PERB
	Decision
	No.
	327-8 	(Personnel 	Administration) 	(Board
refused 	to 	allow perfection 	of 	proof 	of 	support
	after
	window
period, 	despite 	claim that 	petitioner
	had 	been misled about 	the
size 	of 	the 	unit). 
4

Paraprofessional
	Unit
	for
	purposes
	of
	meeting
	and
	negotiating
with
	the
	District.
CSEA'S
	APPEAL
CSEA
	appealed
	the
	administrative
	determination,
5	
arguing
that
	EERA
	section
	3544.?(b)
(1)
	should
	be
	strictly
	enforced,
	and
that,
	because
	the
	"amended"
	petition
	was
	filed
	after
	the
expiration
	of
	the. window
	period, 	the
	entire 	petition
	must
	be
dismissed.
	CSEA
	also
	argues
	that
	it
	would 	be
	prejudiced
	if
	_the
Teamsters'
	error
	were
	excused, 	because
	it
	would
	have
	to
	spend
	its
limited
	resources
	running 	an
	election
	campaign
	involving
	a
	unit
that
	was
	not
	identified
	in
	the
	original 	petition.
TEAMSTERS' 	RESPONSE
	TO
	APPEAL
· The
	Teamsters 	respond
	that,
	although
	PERB
	strictly
	enforces
the
	rules
	regarding 	proof 	of 	support
	in
	decertification
petitions,
	the
	Board 	does
	allow
	correction
	of
	minor,
	non-material
technical 	errors 	that
	do
	not
	result 	in prejudice
	(Santa
	Monica-
Malibu
	USD). 	The
	Teamsters
	assert 	that
	they 	provided 	adequate
proof
	of 	support,
	and
	that 	there
	was 	no
	prejudice 	to
	CSEA.
et
	The
	Teamsters
	also
	argue
	that
	PERB
	Regulations
	32770
seq.
6	
contain
	no
	particular
	requirements
	for 	describing
	a
bargaining 	unit,
	nor
	do
	the 	regulations 	require 	the
	Board
	to
5
In 	addition 	to 	appealing 	the 	administrative 	determination,
CSEA
	also
	sought
	a
	stay 	of 	the 	election 	in 	the 	Paraprofessional
Unit. 	In
	Alum Rock Union 	Elementary School
	District
	(1996)
	PERB
Order
	No. 	Ad-279,
	the
	Board
	granted 	the 	stay
	pending
	resolution
of
	this
	appeal.
6 PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et 	seq.
5

dismiss
	a
	petition
	merely 	because
	it
	describes
	the
	unit 	in
question 	inaccurately.
DISCUSSION
The
	Board
	is
	protective
	of 	employees'
	freedom
	to
	express
their
	desires
	on
	union
	representation.
	However,
	this
	policy
	is
restricted
	by
	the
	need
	for
	stability
	in
	employer-employee
relations.
	(See
	Bassett
	USD,
	pp.
	3-4.) 	In
	EERA
	section
·B544.7(b)
(1),
	the 	Legislature
	balanced
	these
	competing
	interests
by
	identifying
	a
	very
	specific
	period
	of 	time
	during
	which
	a
decertification 	petition
	may
	be
	filed
	if
	there
	is
	a
	CBA
	in
effect.
Accordingly,
	when
	PERE
	considers
	a
	decertification 	petition,
it
	strictly
	enforces 	the
	window
	period.
	If
	the
	petitioning
organiz~tion
	fails
	to
	file
	a
	decertification petition
	within 	the
window
	period, 	including
	adequate 	proof 	of 	support, 	the
	petition
will
	be 	denied.
	(See,
	e.g.,
	Personnel 	Administration;
	Petaluma
that
	CE
	and
	HSD;
	Bassett
	USD;
	and
	Pittsburg
	USD.)
	The
	reason
	is
the
	window
	period provided
	by
	EERA
	section
	3544.7(b)
	is
"unequivocally 	defined,"
	and
	excusing
	a
	late 	petition
	would
override
	explicit 	legislative 	direction
	by
	extending 	the
	window
period. 	(Bassett
	USD,
	p. 	4.)
In
	this
	case, 	the
	window
	period 	ran
	from March
	3
	to
March 	31, 	1996,
	since 	the
	parties' 	contract
	was 	due
	to 	expire
	on
June 	30, 	1996. 	Since
	March 	31, 	1996
	fell
	on
	a
	Sunday, 	however,
6

the
	last
	day
	to
	timely
	file
	the
	decertification 	petition
	during
the
	window
	period
	was
	Friday,
	March
	29, 	1996.
7
The
	Teamsters
	filed
	the
	petition
	in
	question
	on
	April
	16,
1996.
	They
	characterize
	that
	petition
	as
	a
	modest
	technical
amendment
	to
	their
	original
	(March
	29)
	petition.
	Citing
	Santa
Monica-Malibu
	USD,
	Teamsters 	argue
	that
	their
	addition
	of
	a
second
	unit
	in
	the
	second
	petition
	is
	merely
	a
	correction
	of
	a
non-material 	technical
	error 	in
	the
	first
	petition.
	We
	disagree.
Santa
	Monica-Malibu
	USD
	concerned
	the
	late
	service
	of
	a
properly
	filed 	petition.
	Here, 	by
	contrast,
	Teamsters
	attempt
	to
expand
	a
	decertification 	petition
	to
	include
	a
	second
	bargaining
unit.
	Instead
	of
	correcting
	a
	technical,
	non-material
	detail,
	as
in
	Santa
	Monica-Malibu
	USD,
	Teamsters 	seek
	to
	alter
	perhaps 	the
most
	fundamental
	piece
	of 	information 	contained
	in
	a
decertification 	petition,
	the
	identity
	of
	the
	unit
	seeking 	the
election.
	Therefore, 	Santa
	Monica-Malibu
	USD
	does
	not 	apply
	to
the
	facts
	of
	this
	case.
In
	view
	of 	the 	unequivocal 	language
	in 	the
	statute,
	we
	are
not 	authorized 	to
	extend 	the
	window
	period 	to 	accept 	the
	petition
7PERB
	Regulation
	33020
	states, 	in 	part:
Whenever
	the
	last
	day 	of 	the
	window
	period
falls
	on
	a
	Saturday,
	Sunday,
	or 	holiday,
...
	any
	petition 	required 	to
	be
	filed
during
	a 	window
	period
	must 	be
	filed
	on
	or
before 	the 	last
	PERB
	business 	day 	during 	the
window
	period. 
7

filed
	by
	the
	Teamsters
	on
	April
	16, 	1996.
8	
(See
	Bassett
	USD.)
As 	a
	result,
	we
	hold
	that
	since
	the
	Teamsters'
	petition
	to
decertify
	CSEA
	in
	the
	Paraprofessional
	Unit
	was
	filed
	outside 	the
window
	period,
	it
	must
	be
	dismissed.
ORDER
The
	Board
	hereby
	reverses
	the
	Board
	agent's
	administrative
determination
	in
	Case
	No.
	SF-D-226
	and
	DISMISSES
	the
	Teamsters'
April
	16,
	1996
	decertification 	petition.
Chairman
	Caffrey
	and
	Member
	Dyer
	joined
	in
	this
	Decision.
8
Since
	this
	case 	hinges 	on
	strict 	application 	of
	a
	clearly
worded
	statute,
	we
	also 	note 	that 	prejudice 	to 	another 	party, 	or
lack 	thereof, 	is 	not 	a
	factor 	in 	this 	context.
8