Fall River Joint Unified School District (PERB A298E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

GENERAL TEAMSTERS UNION LOCAL #137,

Petitioner, Case No. SA-SV-146

and Administrative Appeal
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS FALL RIVER
CHAPTER #191,

PERB Order No. Ad-298
October 7, 1999

Employee Organization,
and

FALL RIVER JOINT UNIFIED SCHOOL
DISTRICT,

Employer.

Appearances: Beeson, Tayer & Bodine by Jason Rabinowitz,
Attorney, for General Teamsters Union Local #137; Sharon R.
Furlong, Senior Labor Relations Representative, for California
School Employees Association, and its Fall River Chapter #191.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISTON

CAFFREY, Chairman: This case is before the Public
Employment Relations Board (PERB or Board) on appeal by the
General Teamsters Union Local #137 (Teamsters) of a Board agent’s
administrative determination (attached). The Board agent
determined that a severance petition filed by the Teamsters was
not filed within the window period described in section 3544.1 of

the Educational Employment Relations Act (EERA)! and PERB

‘EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code. Section 3544.1(c) states, in pertinent
part:

Regulation 	330202 and was 	therefore 	untimely. 	The 	Board agent
dismissed 	the 	petition.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	Board agent's 	administrative 	determination, 	the
Teamster's 	appeal 	and 	the 	California 	School 	Employees 	Association
and 	its 	Fall 	River 	Chapter 	#191's 	response 	thereto. 	The 	Board
finds 	the 	administrative 	determination 	to 	be 	free 	of 	prejudicial
error and 	hereby adopts 	it 	as 	the 	decision 	of 	the 	Board 	itself.
The 	public 	school 	employer 	shall 	grant 	a
request 	for 	recognition 	filed 	pursuant 	to
Section 	3544 	unless 	any 	of 	the 	following
apply:
(c) 	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, 	unless 	the 	request 	for
recognition 	is 	filed 	less 	than 	120 	days, 	but
more 	than 	90 	days, 	prior 	to 	the 	expiration
date 	of 	the 	agreement.
2 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq. 	Section 	33020
states, 	in pertinent 	part:
"Window perioa" 	means 	the 	29 	day 	period
established pursuant 	to Government 	Code
Sections 	3544.l(c) 	and 	3544.7(b) (1) 	which 	is
less 	than 	120 	days, 	but 	more 	than 	90 	days,
prior 	to 	the 	expiration date 	of 	a 	lawful
written 	agreement 	negotiated by 	the 	public
school 	employer and 	the 	exclusive
representative. 	The 	written 	agreement
expiration date 	means 	the 	last 	effective 	date
of 	the 	agreement.
2

ORDER
The 	appeal 	by General 	Teamsters 	Union 	Local 	#137 	of 	the
administrative 	determination 	in 	Case 	No. 	SA-SV-146 	is 	hereby
DENIED.
Members 	Dyer 	and Amador 	joined 	in 	this 	Decision.
3

STA
lE
OF
CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional
Office
1031
18th
Street, Room
102
Sacramento, CA
95814-4174
(916)
322-3198
July
	30,
	1999
Dave
	Hawley,
	Secretary-Treasurer
General 	Teamsters
	Union
	Local
	#137
3540
	S. 	Market
	Street
Redding,
	CA
	96001-3888
Vivian
	E.
	Stephens,
	LR
	Representative
California
	School
	Employees
	Association
8217 	Auburn
	Boulevard
Citrus
	Heights,
	CA
	95610
Earnest
	Graham,
	Superintendent
Fall
	River
	Joint
	Unified
	School
	District
20375 	Tamarack Avenue
Burney,
	CA
	96013
Re: 	SA-SV-146 	(RR-392)
Fall
	River
	Joint
	Unified
	School
	District
Dear
	Interested 	Parties:
Final
	review
	of
	all
	proof 	of 	support 	submitted
	by
	the
	GeneralTeamsters
	Union
	Local
	#137
	(Teamsters
	or 	Petitioner)
	with
	its
severance
	petition 	in
	the 	above-referenced 	case 	has
	resulted 	inthe 	administrative 	determination
	that
	the 	support
	is 	sufficient
to
	meet
	the 	requirements 	of
	PERB
	regulation
	33050(b).
PERB
	must
	next 	determine
	if
	the
	petition
	was
	timely
	filed 	in
order 	to
	proceed
	to 	the 	final 	step,
	does
	the
	petition
	seek 	an
appropriate 	unit?
The
	severance
	petition 	in 	this
	case
	was
	originally 	filed 	th
PERB
	on
	July
	1, 	1999.
	The
	Petitioner
	seeks
	to 	sever
	a
	unit
	of
Operational 	Support 	and
	Instructional 	Assistants
	from
	the 	wall
classified 	unit 	represented
	by
	California
	School 	Employees
Association
	(CSEA). 	The
	petition
	was
	subsequent
	amended 	on
July
	6, 	1999
	to
	encompass 	only Operational 	Support 	employees.
CSEA
	and
	the 	Fall 	River 	Joint 	Unified 	School 	Dis
	ct 	(District)
were
	parties 	to
	a
	written
	agreement 	with
	a
	term 	of 	July
	1, 	1996
through 	June 	30, 	1999.
PERB
	Regulation 	33020
	is 	titled
	Window
	Period 	and
	states 	inrelevant 	part:
"Window
	period" 	means 	the 	29-day period
established pursuant 	to 	Government 	Code
Sections 	3544.l(c) 	and 	3544.7(b) (1) 	which 	is

SA-SV-146
	(RR-392)
Dismissal
	Letter
Page
	2
less
	than
	120
	days,
	but
	more
	than
	90
	days,
prior
	to
	the
	expiration
	date
	of
	a
	lawful
written
	agreement
	negotiated
	by
	the 	public
school
	employer
	and
	the 	exclusive
representative.
	The
	written
	agreement
expiration
	date
	means
	the
	last
	effective
	dateof 	the
	agreement.
Government
	Code
	section
	3544.1
	states
	in
	relevant
	part:
The
	public
	school
	employer
	shall
	grant
	a
	request
	forrecognition
	pursuant
	to 	Section
	3544
	unless
	any
	of
	the
following 	apply:
(c)
	There
	is
	currently 	in 	effect
	a
	lawful
	written
agreement
	negotiated
	by
	the 	public
	school
employer 	and
	another
	employee
	organization
covering
	any
	of 	the
	employees
	included
	in
	the
unit
	described
	in
	the 	request 	for 	recognition
...
The
	District
	and
	CSEA
	have
	both provided
	this 	office
	with
	a
	copy
of
	a
	signed
	written
	agreement
	that
	incorporates
	all
	the
provisions 	of 	the
	1996-1999
	written
	agreement 	and
	extends
	them
from
	July
	1,
	1999
	through
	June 	30, 	2002.
	This 	agreement
	was
reached
	on
	June 	15,
	1999
	and
	was
	approved
	by
	the
	District's
	Board
on
	June
	23, 	1999. 	There
	was
	no
	evidence 	provided
	that 	there
	were
any ground
	rules 	in
	negotiations 	requiring 	unit 	or
	Board
approval.
	The
	responses
	to 	the
	petition 	filed
	by
	CSEA
	and
	the
District 	raise
	the 	issue
	of 	the
	petition's
	timeliness.
The
	petition
	was
	not
	filed
	during 	the 	defined
	window
	period 	of
the
	parties
	agreement,
	March
	3-31,
	1999,
	therefore, 	in 	order 	to
be
	timely
	filed,
	the
	petition
	must 	be
	filed
	when
	there
	was
	not
	a
written
	agreement
	in 	effect
	between
	the
	District
	and
	CSEA.
Thus
	next 	question 	to
	be
	considered
	is
	whether 	the
	June 	15,
	1999
agreement
	constitutes
	a
	"written
	agreement?
11
	PERB
	has
	held 	that
an 	agreement 	must 	be
	in 	writing
	and
	signed,
	and
	contain
substantial
	terms 	and
	conditions 	of
	employment
	in 	order 	to
constitute
	a
	contract 	bar. 	State 	of 	California
	(Department
	ofPersonnel 	Administration)
	(1989)
	PERB
	Decision
	No.
	Ad-191-S
citing
	Appalachian 	Shale 	Products
	Company 	(1958) 	121
	NLRB
	1160[42
	LRRM
	1506].
	The
	June 	15, 	1999 	agreement 	meets
	this 	test.
The 	PERB
	has 	long 	held 	that 	the 	only 	time
	certain 	that
	employees
can
	rely
	on
	to 	petition 	to
	change 	exclusive 	bargaining 	agents 	isthe
	window
	period 	prior 	to 	the 	expiration 	of 	an 	agreement. 	See
San 	Francisco 	Unified 	School
	District
	(1984) 	PERB
	Decision
	No.
476. 	The
	Petitioner 	missed 	that 	opportunity 	in 	this 	case.

SA-SV-146 	(RR-392)
Dismissal
	Letter
Page
	3
Therefore, 	the
	petition 	is
	deemed
	to
	be
	untimely
	filed
	and
therefore
	is
	DISMISSED.
Right
	of
	Appeal
An
	appeal
	of
	this
	decision 	to 	the
	Board
	itself
	may
	be
	made
	within
ten
	(10)
	calendar
	days
	following
	the 	date
	of
	service 	of
	this
decision.
	(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32360.)
	To
	be
	timely
filed,
	the
	original
	and
	five
	(5)
	copies 	of
	any
	appeal
	must
	be
filed
	with 	the,Board
	itself
	at
	the 	following 	address:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street,
	Suite
	200
Sacramento,
	CA
	95814-4174
FAX:
	(916)
	327-7960
A
document
	is
	considered
	"filed"
	when
	actually
	received 	beforethe 	close 	of 	business
	(5
	p.m.)
	on
	the
	last
	day
	set 	for
	filing
	or
when
	mailed
	by
	certified
	or
	Express 	United
	States
	mail,
	as
	shown
on
	the
	postal 	receipt 	or
	postmark,
	or 	delivered 	to
	a 	common
carrier
	promising 	overnight
	delivery,
	as
	shown
	on
	the
	carrier's
receipt,
	not
	later
	than 	the
	last
	day
	set
	for
	filing.
	(Cal.
	Code
Regs.,
	tit.
	8,
	sec.
	32135(a); 	see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32130.)
A
document
	is
	also
	considered
	"filed"
	when
	received
	by
	facsimiletransmission 	before 	the 	close 	of 	business
	on
	the
	last
	day
	for
filing
	together
	with
	a
	Facsimile 	Transmission
	Cover
	Sheet
	which
meets
	the 	requirements 	of 	Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32135(d),
provided 	the
	filing
	party also 	places 	the
	original, 	together
	with
the 	required
	number
	of 	copies
	and
	proof 	of 	service, 	in
	the
	U.S.
mail.
	.
(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135
(b),
	(c)
	and
	(d);
see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and 	32130.)
The
	appeal
	must
	state
	the 	specific 	issues 	of 	procedure,
	fact,
	law
or 	rationale 	that 	are 	appealed
	and 	must
	state
	the 	grounds
	for
	the
appeal 	(regulation 	32360(c)).
	An
	appeal
	will
	not 	automaticallyprevent 	the
	Board 	from
	proceeding
	in 	this
	case.
	A
party
	seeking
a
	stay 	of
	any
	activity
	may
	file
	such
	a
	request 	with
	its
administrative 	appeal,
	and 	must
	lude
	all
	pertinent
	sandjustifications 	the 	request 	(regulation
	32370).
If
	a
	timely 	appeal
	is 	filed,
	any
	other 	party
	may
	file
	with 	theBoard 	an
	original
	and
	five
	(5)
	copies 	of
	a
	response 	to 	the 	appeal
within 	ten
	(10)
	calendar 	days 	following 	the 	date 	of 	service 	of
the 	appeal 	(regulation 	32375).
Service

SA-SV-146 	(RR-392)
Dismissal
	Letter
Page
	4
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
	11
served
11
upon
	all
	parties
	to
	the
	proceeding
	and
	on
	the
	Sacramento
regional
	office.
	A
	"proof
	of
	service"
	must 	accompany
	each
	copy
of
	a
	document
	served
	upon
	a
	party or
	filed
	with
	the
	Board
	itself
(see
	regulation
	32140
	for
	the
	required 	contents
	and
	a
	sample
form).
	The
	document
	will
	be
	considered
	properly
	"served"
	when
personally 	delivered 	or
	deposited
	in
	the
	first-class
	mail
	postage
paid
	and
	properly
	addressed.
	A
document
	filed
	by
	facsimiletransmission
	may
	be
	concurrently 	served
	via
	facsimiletransmission
	on
	all
	parties
	to
	the 	proceeding.
	(Cal.
	Code
	Regs.,
tit.
	8,
	sec.
	32'135(c)
.)
Extension 	of
	Time
A
request
	for
	an
	extension 	of
	time
	in
	which
	to
	file
	an
appeal
	or 	opposition
	to
	an
	appeal
	with 	the
	Board
	itself
	must 	be
in
	writing
	and
	filed
	with 	the
	Board
	at
	the 	previously 	noted
address.
	A
	request 	for
	an
	extension
	must 	be
	filed 	at 	least
	threecalendar
	days
	before 	the
	expiration
	of 	the
	time
	required
	for
filing
	the
	document.
	The
	request
	must
	indicate
	good
	cause
	for
and,
	if
	known,
	the
	position
	of
	each
	other 	party
	regarding 	theextension,
	and
	shall
	be 	accompanied 	by
	proof 	of
	service 	of 	therequest
	upon
	each
	party
	(California
	Code
	of 	Regulations,
	title
	8,
section
	32132)
Les 	Chisholm
Regional
	Director
(h-LA
Roger 	Smith
Labor
	Relations
	Specialist
cc:
	Sharon
	Furlong, 	Senior
	LR
	Representative