Centralia School District (PERB 0519EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CENTRALIA 	SCHOOL 	DISTRICT,
Employer,
and
AMERICAN 	FEDERATION 	OF 	STATE,
COUNTY AND 	MUNICIPAL 	EMPLOYEES,
AFL-CIO,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Employee 	Organizations.
Case No. 	LA-S-102
(LA-R-327)
Request 	for 	Reconsideration
PERB Decision No. 	519
PERB Decision No. 	519a
February 24, 	1986
Appearance; 	William c. 	Heath 	for 	California 	School 	Employees
Association.
Before Hesse, 	Chairperson; 	Morgenstern and Craib, 	Members.
DECISION
HESSE, 	Chairperson: 	The California 	School 	Employees
Association 	(CSEA) 	requests 	reconsideration 	of 	Decision 	No. 	519
issued 	by 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
on 	September 	12, 	1985. 	In 	that decision, 	PERB found that a
severance 	petition 	filed 	by 	the American 	Federation 	of 	State,
County and Municipal 	Employees, 	AFL-CIO 	(AFSCME) 	was 	timely
filed. 	CSEA's 	request 	is 	made pursuant 	to PERB Regulation
32410(a) 	and 	is 	based 	on 	the 	contention 	that 	the 	underlying
decision 	contains 	a 	prejudicial 	error 	of 	fact.
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1PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, title 	8, 	section 	31001 	et 	seq.
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We 	have 	reviewed 	the 	underlying 	decision 	in 	light 	of 	the
arguments 	offered 	by CSEA 	in 	its 	request 	for 	reconsideration.
The 	Board's 	findings 	of 	fact 	and 	conclusions 	of 	law 	set 	forth
in 	that 	decision 	are 	incorporated herein. 	For 	the 	reasons
noted 	below, 	we 	find 	no basis 	for 	altering our 	decision.
DISCUSSION
In Decision 	No. 	519, 	the Board 	found 	that AFSCME had 	filed
its 	petition 	during 	an 	appropriate 	window period 	as 	defined 	by
PERB 	Regulation 	33020.2 The 	Board's 	decision 	was 	based 	on
its 	conclusion 	that, 	because a 	premature 	contract 	extension
constitutes 	a 	new and 	separate 	agreement, 	such 	an 	extension
also 	creates 	a 	new and 	separate 	window period 	under 	Regulation
33020. 	A 	contrary 	interpretation 	of 	that 	Regulation, 	noted 	the
Board, 	would 	permit 	the parties 	to 	a 	collective 	bargaining
agreement, 	through 	an 	endless 	chain 	of premature extensions, 	to
forever 	foreclose 	the 	employees' 	ability to 	exercise 	their
right 	to 	change 	representatives.
In 	its 	request 	for 	reconsideration, 	CSEA does not 	dispute
that, 	whenever a contract 	is 	extended, 	a new and separate
window period is created. 	It argues, 	however, 	that, 	unless
2Regulation 33020 	reads, 	in 	relevant part:
"Window period" 	means 	the 	29-day period
established 	pursuant 	to 	Government 	Code
sections 3544.l(c) 	and 3544.7(b)(l) 	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. . . .
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employees 	have 	cause 	to 	rely on 	that 	new window period, 	the
period 	can be 	"erased" 	by another, 	subsequent, 	contract
extension.
CSEA 	does 	not 	expressly 	define 	what 	it 	means 	by 	the 	term
"rely" 	as here used. 	It illustrates 	its argument, 	however, 	in
the 	context of 	the case at 	hand. 	Thus, 	in 	the 	instant 	case,
CSEA 	and 	the 	Centralia 	School 	District 	executed 	a 	contract 	in
1981 	that, 	by its 	terms, 	was 	to be 	effective for a 	three year
period, 	from August 	1, 	1981 to July 31, 	1984. 	In each of the
three 	years 	immediately 	following 	the 	1981 	execution 	of 	that
contract, 	however, 	the parties 	executed 	"extensions" 	of each
preceding 	contract. 	The 	terms 	of 	the 	contracts 	executed 	by
CSEA and the District, 	then, 	were as follows:
Contract 	1: 	August 	1, 	1981 	to July 31, 	1984
Contract 	2: 	August 	1, 	1982 	to July 31, 	1985
Contract 	3: 	August 	1, 	1983 	to July 31, 	1986
Contract 	4: 	August 	1, 	1984 	to July 31, 	1987
CSEA 	acknowledges 	that 	each 	contract 	created 	a 	window
period 	that 	would 	occur 	between 	120 	and 	90 	days 	before 	its
stated 	expiration 	date. 	Upon 	the 	execution 	of 	contract 	1,
therefore, 	unit 	members 	could 	reliably plan 	on 	an 	opportunity
to 	file 	for 	a 	representation 	election 	in April 	1984. 	When
contract 	2 	was 	executed, 	a 	new window period was 	created 	in
April 	1985. 	We concur. 	CSEA argues further, 	however, 	that
unit 	members 	would 	not 	"rely" 	on 	the 	April 	1985 	period 	because
of 	the 	availability of 	an 	earlier 	(and 	therefore 	better)
W	
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opportunity in April 	1984. 	Any time prior 	to April 	1984, 	then,
argues 	CSEA, 	unit members would 	reasonably aim 	for 	the April
1984 	window period 	and would 	disregard, 	i.e., 	not 	"rely on,"
the 	April 	1985 	period.
Once 	the April 	1984 window period 	closed, 	suggests CSEA,
unit 	members 	who might 	make 	plans 	to 	file 	for 	decertification
would 	logically 	have 	assessed 	their 	existing 	circumstances. 	At
that 	time 	(May 	1984), 	unit members were 	covered by contract 	3,
which 	had 	replaced 	its 	predecessor 	in 	August 	1983 	and which, 	by
its 	terms, 	would expire 	in July 1986. 	According to CSEA, 	unit
members 	could 	then 	reasonably 	"rely," 	that 	is, 	begin 	to plan
for 	exercising 	their 	right 	to 	file, 	based 	on 	the window period
of 	contract 	3. 	By May 1984, 	says 	CSEA, 	contract 2 had 	already
come 	and gone, 	and with 	it, 	its 	1985 window period; 	since 	no
one 	had 	ever 	had 	reasonable 	cause 	to 	rely on 	it, 	the window
period 	was 	eliminated 	by 	the 	subsequent 	contract 	extension.
While CSEA's 	theory shows 	a certain 	ingenuity, 	it must
fail. 	CSEA has 	offered 	no 	authority 	for 	the 	proposition 	that
open 	periods 	are 	determined 	by 	employee 	reliance. 	Although
relevant 	case 	law 	holds 	that 	employees 	are 	entitled 	to 	rely 	on
certain 	open 	periods, 	employee 	reliance 	neither 	creates 	nor
defines window periods. 	Rather, 	PERB Regulation 	33020
expressly 	provides 	that 	petitions 	may 	be 	filed 	not 	more 	than
120 	days 	nor 	less 	than 	90 	days prior 	to 	the expiration 	of 	"a
lawful 	written 	agreement." 	We 	find 	no 	language 	requiring
"reliance" 	in the 	regulation.
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CSEA also 	argues 	that 	it 	could 	have 	lawfully negotiated
sequential 	three-year 	agreements without 	annual 	extensions, 	and
the 	employees 	would 	then 	have 	been 	limited 	to 	one 	window 	period
every three years. 	The theory it 	advances, 	notes CSEA,
provides more 	frequent window periods 	than 	that. 	This 	is, 	of
course, 	irrelevant. 	The 	fact 	is 	that CSEA chose not 	to
negotiate 	true 	three-year 	agreements. 	instead 	it 	negotiated
four 	three-year 	agreements, 	each 	giving 	rise 	to 	its 	own 	window
period.
ORDER
Finding no 	prejudicial 	error 	of 	law 	or 	fact 	in 	its 	Decision
No. 	519, 	the Public 	Employment Relations 	Board 	DENIES 	the
request 	for 	reconsideration 	of 	that 	decision.
Members 	Morgenstern 	and Craib 	joined 	in 	this 	Decision,
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