Taft Union High School District (PERB A050E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
TAFT
	UNION 	HIGH
	SCHOOL
	DISTRICT,
Employer,
and
SERVICE
	EMPLOYEES
	INTERNATIONAL
UNION,
	LOCAL
	700,
Employee
	Organization,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION,
	CHAPTER
	55,
Employee
	Organization,
APPELLANT.
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___________________ )
Case
	Nos. 	LA-R-20
LA-R-450
LA-D-11
PERB
	Order
	No.
Ad-50
Administrative
	Appeal
December
	8, 	1978
Appearances:	
_Frank
	J.
	Fekete, 	Attorney
	(School
	Legal
	Service
of
	Kern 	County)
	for 	Taft
	Union 	High
	School
	District;
Henry
	Rodriguez, 	Senior
	Field 	Representative 	for 	Service
Employees
	International
	Union, 	Local
	700;
	and
Robert
	C.
	Harmening,
	Field 	Representative
	and 	Nanci 	E.
	Bentz,
Petitioner
	for
	California
	School
	Employees
	Association.
Before
	Gluck,
	Chairperson;
	Cossack
	Twohey 	and
	Gonzales,
	Members.
OPINION
California
	School 	Employees
	Association,
	Chapter
	55
(hereafter
	CSEA)
	appeals 	the
	Los
	Angeles
	regional
	director's
dismissal 	of
	a
	decertification 	petition
	as 	untimely
	filed.
	For
the 	reasons 	discussed
	below, 	the 	Public
	Employment
	Relations
Board
	(hereafter 	the
	Board)
	sustains 	this 	dismissal.
FACTS
On
	December
	1, 	1976, 	Taft
	Union 	High 	School
	District
(hereafter 	District), 	Service 	Employees
	Inter~ational 	Union,

Local
	700
	(hereafter
	SEIU),
	and
	CSEA
	stipulated
	to
	a
comprehensive
	classified
	unit
	of
	35
	to
	40
	persons.
	They
further
	agreed
	that
	SEIU
	would 	have
	a
	specified
	period
	of
	time
to
	demonstrate
	30
	percent 	support 	in 	the
	unit.
	If
	such
	a
showing
	was 	made, 	a
	consent
	election
	would 	be
	requested.
Otherwise
	the
	parties
	agreed
	that
	the
	District
	would
voluntarily
	recognize
	CSEA
	as 	the
	exclusive
	representative.
SEIU
	obtained 	the 	necessary
	signatures
	and 	a
	consent
election
	was
	held
	on
	April
	1,
	1977.
	On
	April 	13, 	1977,
	SEIU
was
	certified
	as
	the 	exclusive
	representative
	for
	the
	unit.
	A
written
	agreement 	between
	SEIU 	and
	the
	District
	took
	effect
July
	19,
	1977, 	with
	a
	termination 	date 	of
	June 	30,
	1978.
On
	March
	10, 	1978,
	pursuant 	to
	section
	3544.S(d)
	of
	the
Educational
	Employment
	Relations 	Actl	
(hereafter
	EERA),
	CSEA
lThe
	Educational
	Employment
	Relations
	Act
	is 	codified 	at
Government
	Code
	sec.
	3540
	et
	seq. 	All
	statutory 	references 	are
to
	the
	Government 	Code
	unless 	otherwise
	specified.
Sec. 	3544.5
	provides 	in
	pertinent 	part 	that:
A
petition
	may 	be
	filed
	with 	the 	board, 	inaccordance 	with
	its
	rules
	and
	regulations,requesting
	it
	to
	investigate
	and
	decide 	the
question 	of
	whether 	employees 	have
	selected
or
	wish
	to
	select
	an
	exclusive
representative
	or 	to 	determine 	the
appropriateness 	of
	a
	unit,
	by:
(d)
	An
	employee
	organization 	alleging 	thatthe 	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
2

filed 	a 	decertification 	petition 	alleging 	that 	unit 	members 	no
longer 	wished 	to 	be 	represented 	by 	SEIU. 	Because 	Board 	rule
33250(b)2 	precluded 	consideration 	of 	decertification
petitions 	filed 	within 	one 	year 	of 	a 	representation 	election,
CSEA's 	petition 	was 	dismissed 	as 	untimely. 	A second 	CSEA
decertification 	petition 	filed 	on 	April 	20, 	1978, 	was 	also
in 	the 	negotiating 	unit 	indicating 	support
for 	another 	organization 	or 	lack 	of 	support
for 	the 	incumbent 	exclusive 	representative.
Such 	evidence 	of 	support 	shall 	be 	submitted
to 	the 	board, 	and 	shall 	remain 	confidential
and 	not 	be 	disclosed 	by 	the 	board. 	The
board 	shall 	obtain 	from 	the 	employer 	the
information 	necessary 	for 	it 	to 	carry 	out
its 	responsibilities 	pursuant 	to 	this
section 	and 	shall 	report 	to 	the 	employee
organizations 	seeking 	recognition 	and 	to 	the
public 	school 	employer 	as 	to 	the 	adequacy 	of
the 	evidence 	of 	support.
2At 	the 	time 	the 	SEIU 	petition 	was 	filed, 	Cal. 	Admin.
Code, 	tit. 	8, 	sec. 	33250(b) 	provided:
'f'hP 	[rli:>l"'i:>rt-ifil"".=if-il"ln] 	pPt-it-il"ln 	c::h.=il1 	bP
dismissed 	whenever 	either 	of 	the 	conditions
of 	section 	3544.7(b) 	of 	the 	Act 	exist 	or 	if
a 	representation 	election 	has 	been 	held
within 	the 	12 	months 	immediately 	preceding
the 	filing 	of 	the 	petition.
An 	apparent 	disparity 	between 	the 	"certification 	bar" 	erected
by 	Board 	rule 	33660 	and 	the 	"election 	bar" 	created 	by 	Board
rule 	33250(b) 	was 	resolved 	at 	the 	Board's 	public 	meeting 	of
October 	3, 	1978, 	when 	section 	33250(b) 	was 	amended 	to 	read:
The 	petition 	shall 	be 	dismissed 	whenever
either 	of 	the 	conditions 	of 	section
3544.7(b} 	of 	the 	Act 	exist 	or 	if 	a
representation 	election 	result 	has 	been
certified 	affecting 	the 	described 	unit 	or 	a
subdivision 	thereof 	within 	the 	12 	months
immediately 	preceding 	the 	filing 	of 	the
petition.
3

dismissed
	as 	untimely 	because
	of
	EERA
	section
	3544.7(b)
1 s
mandate
	tha't:
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;
•..
DISCUSSION
CSEA
	in
	effect
	argues
	that
	Board
	rule
	33250(b)3	
and
	EERA
section
	3544.7(b) 	should 	not
	be
	construed 	to 	prevent
	District
employees
	from
	decertifying
	an
	undesired
	incumbent
	exclusive
representative.
	These
	provisions 	are 	the 	source
	of
	three
"bars"
	that
	prevent
	an
	employee
	organization
	from
	competing
	for
recognition 	in
	a
	unit 	that
	has
	another
	elected
	and
	certified
	or.
voluntarily
	recognized
	exclusive
	representative.
	One
	year
certification
	and
	recognition 	bars 	operate 	to 	safeguard
	new
3sec.
	3541.3
(g) 	empowers
	the
	Board
	to 	adopt
	"rules
	and
regulations
	to 	carry 	out 	the 	provisions
	and
	effectuate 	thepurposes
	and
	policies 	of
	[EERAJ
."
	Regulations
	validly
	enacted
pursuant 	to
	a
	legislative
	grant 	of 	authority
	have
	the 	force
	and
effect
	of
	law. 	See
	e.g. 	Agricultural
	Labor
	Relations
	Bd. 	v.
Superior 	Court
	(1976) 	16
	Cal.3d
	392, 	420 	[128
	Cal.Rptr. 	183],
546
	P.2d 	687; 	Harris 	v. 	Alcoholic
	Bev.
	etc.
	A
	eals
	Bd. 	(1964)228 	Cal.App.2d
	1,
	6 	[39 	Ca
	.Rptr.
	1 	. 	See 	a
	so
	K.
	Davis,
Administrative
	Law 	(3d
	ed.
	1972)
	at
	137.
Sec. 	3541.3(c) 	confers
	on
	the
	Board
	the
	power
	to 	conductand
	certify
	the
	results 	of 	representation 	elections. 	Inherent
in 	this
	duty
	is
	the 	responsibility 	to 	adopt 	regulations 	to
protect 	negotiating 	relationships 	created 	through 	the 	board's
election
	and
	certification 	procedures. 	Board
	rule 	33250(b)
serves 	this 	purpose.
See
	al so 	3 5 4 4. 7 (a)
•
4

In
	addition,
	the
	contract
	bar
ensures
	that
	the
	exclusive
	representative
	has
	the
	latitude
	to
develop
	its
	negotiating
	relationship
	with 	the
	employer
unhampered	
by	
ongoing
	or
	new
	rivalries
	with
	other
	emplovee
organ1za
	ions.
5	.
	t·
The
	practical 	effect
	of
	CSEA's
	appeal
	is
	to
	raise
	the
question
	whether,
	when
	the
	certification
	and
	contract
	bars
6
operate
	in
	tandem
	to
	consume
	the
	29-dav
	statutorv
	"window
period"
	near 	the
	end
	of
	an
	existing 	contract,
7
one
	or
	more
bar
	must
	be
	raised 	to
	permit
	a
	decertification 	petition
	to
	be
filed.
	In
	addition
	CSEA
	argues
	that
	under
	section
	3544.?(b)
the
	contract
	and
	recognition 	bars
4cal.
	Admi.n.
	Code,
	tit.
	8,
	secs.
	33270 (c) (3) 	and 	33660
create
	a
	"certification"
	bar
	against
	filing
	for
	decertification
for
	one
	year 	following
	Board
	certification
	of 	the
	results
	of
	an
election.
	Sec. 	3544.?(b)
(2)
	puts
	a
	"recognition"
	bar
	against
decertification 	petitions 	filed
	during 	the
	12
	months 	fo11owinq
an
	ernplover's 	lawful 	recognition 	of
	"an
	emplovee
	organization
other
	than 	the
	petitioner
	as 	the
	exclusive 	representative
	of
any 	employees
	included 	in 	the
	unit 	described 	in 	the
	petition."Prior
	to
	its
	amendment 	on
	October 	3, 	1978,
	(seen.
	2,
	supra),
Board
	rule
	33250(b)
	apparently 	created
	an
	additional
"election 	bar."
5sec.
	3544.
7 (b)
(l)
	mandates
	dismissal 	of 	decerti fi.cation
petitions 	filed
	in 	the 	face 	of
	an
	existing 	contract 	"unless 	the
request
	for 	recognition
	for
	decertification
	pursuant 	to 	sec.3544.S(d)]
	is 	filed 	less
	than
	120
	days, 	but
	more
	than
	90
	days,
prior
	to 	the 	expiration 	date 	of 	the 	agreement,
	...
"
6Although 	the
	Los
	Angeles 	regional 	director
	~ismissed
CSEA's
	jnitial 	decertification 	petition
	on
	the 	hasis 	0f
	the
election 	bar, 	the 	time 	period 	denoted 	in 	the
	letter
	of
dismissal
	was
	calculated
	from
	the 	date
	SEID 	was
	certified
	as
the 	exclusive 	representative.
7The
	certification
	bar 	here 	prevented
	a
	decertification
petition
	from 	bejng 	filed
	from
	April 	13, 	1977, 	until
April 	13, 	1978. 	The
	contract 	bar 	curtailed 	decertification
petition 	filings
	from 	July 	19, 	1977, 	throuqh 	June 	30, 	1978,
5

are
	mutually
	exclusive.
	It
	supports
	this
	contention
	by
referring
	to
	t.he 	word
	"or"
	in 	section
	3544.
7
(b):
No
	election
	shall
	be
	held
	and
	the
	petitionshall
	be
	dismissed
	whenever:
(1)
	There
	is
	currently
	in
	effect
	a
	lawful
written
	agreement
...
;
or
(2) 	The
	public
	school
	employer
	has,
	within
the 	previous
	12
	months,
	lawfully
	recognized
an 	employee
	organization 	other
	than
	the
petitioner
•••.
	(Emphasis
	added.)8
This
	argument
	is
	without
	merit.
	The
	bars
	mandating
dismissal 	of
	decertification 	petitions 	filed
	during 	the
recognition
	and
	certification
	year,
	and
	during 	the
	contract
period 	are 	not 	mutually
	exclusive.
	The
	bar
	created
	at
	the
inception 	of 	negotiating
	relationship 	is
	not
	extinguished
	when
a
	contract 	is
	reached.
	Only
	the 	passage
	of
	time
	removes
	this
bar.
	Similarly,
	all
	that 	is
	required 	to
	create
	a
	contract
	bar
is
	a
	lawful
	written
	agreement.9	
While
	a 	"window
	period"
exists
	when
	petitions
	from
	rival
	employee
	organizations
	may
	be
entertained,10	
the
	EERA
	does 	not
except 	during	
a 	window
	period 	extending
	from 	March
	4, 	1978,
through 	April 	1,
	1978.
	The
	election
	bar 	period
	under
	old
	Board
rule
	33250(b)
	in
	this
	case
	would 	have
	extended
	from
April 	1,
	1977, 	through
	March
	31, 	1978.
	The
	thirteen
	day
discrepancy
	between
	the 	time
	periods 	of 	the
	election
	and
certification
	bars
	is
	not 	important 	to 	the 	Board's
	resolution
of 	this 	case, 	since 	both 	bars 	eclipse
	the
	window
	period 	of 	the
contract 	year.
Bsince
	all
	sec. 	3544.7
	references 	to 	"the
	petition"
relate	
back	
inter 	alia
	to 	section
	3544.S(d)
	decertification
efforts, 	it
	cannot73"e"argued
	that
	CSEA
	is
	exempt 	from
	the 	bars
this 	section
	imposes.
9sec. 	3544.l(c).
1 Os
ec • 	3 5 4 4 • 1 (c ) • 	I a •
6

claims 	for 	representation 	will 	be 	considered 	during 	the 	fragile
first 	stages 	of 	an 	employer's 	negotiating 	relationship 	with
another 	exclusive 	representative.
The 	purpose 	of 	the 	recognition, 	certification 	and 	contract
bars, 	we 	repeat, 	is 	to 	promote 	an 	environment 	in 	which 	a
rapport 	between 	the 	exclusive 	representative 	and 	the 	employer
can 	develop 	free 	from 	the 	uncertainty 	and 	disruption 	of 	rival
organizational 	activities. 	Only 	during 	the 	first 	year 	of 	a 	new
exclusive 	representative's 	tenure 	can 	these 	bars 	overlap 	to
freeze 	out 	any 	attempt 	to 	oust 	the 	incumbent. 	But 	this 	is 	a
crucial 	period 	in 	an 	incipient 	negotiating 	relationship, 	and
for 	this 	reason 	it 	is 	doubly 	guarded 	from 	outside 	attack.
The 	Board 	rules 	and 	EERA provisions 	in 	question 	show 	that
the 	regional 	director 	did 	not 	err 	in 	twice 	dismissing 	CSEA's
decertification 	petition 	as 	untimely 	filed. 	Accordingly, 	we
sustain 	the 	regional 	director's 	dismissal 	of 	CSEA's 	petition.
ORDER
The 	Public 	Employment 	Relations 	Board 	ORDERS 	that:
The 	regional 	director's 	dismissal 	of 	the 	decertification
petitions 	filed 	by 	California 	School 	Employees 	Association,
Chapter 	55 	is 	sustained.
7

Raymond
	J.
	Gonzales,
	Member,
	concurring:
Unlike
	my
	colleagues,
	I 	do
	not
	find
	that
	the 	Board's
authority
	for
	establishing
	a
	certification
	bar
	lies
specifically
	in
	its
	power
	to
	conduct
	and
	certify
	the
	results
	of
representation
	elections.I	
Rather,
	I
	view
	the 	Board's
authority
	to 	inure
	from
	its
	general
	power
	to
	promulgate
regulations
2	
to
	interpret
	and
	make
	specific
	Government 	Code
sections·
3544.l(d)
	and
	3544.7,
	provisions
	which
	deal
specifically
	with
	the
	subject
	of
	decertification 	petitions.3
lGov.
	Code
	sec.
	3541.3(c)
	provides:
The
	board
	shall
	have
	all
	of 	the 	following
	powers 	and
duties;
To
	arrange 	for
	and
	supervise 	representation 	elections
which
	shall
	be
	conducted
	by 	means
	of
	secret
	ballotelections,
	and
	certify
	the
	results
	of 	the
	elections.
2Gov. 	Code
	sec. 	3541.3(g).
3Gov. 	Code
	sec. 	3544.l(d) 	reads:
The
	public 	school
	employer
	shall
	grant
	a
request 	for 	recognition
	filed
	pursuant 	to
section
	3544
	unless:
. 	. 	. . 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	. . 	. 	. 	. 	.
The
	public 	school
	employer
	has, 	within 	the
previous
	12
	months,
	lawfully 	recognized
another
	employee
	organization 	as 	the
exclusive 	representative 	of
	any 	employees
included 	in 	the 	unit 	described 	in 	the
request 	for 	recognition.
Government 	Code
	sec. 	3544.7(b) 	reads:
No
	election 	shall
	be 	held 	and
	the 	petition
shall
	be
	dismissed 	whenever:
. 	. . 	. 	. 	. 	. 	. 	. 	. . 	. 	. . 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	.

The
	question
	in
	my
	mind,
	is
	not
	what
	rules
	are
	needed
	to
establish
	where,
	when, 	and
	how
	the
	Board
	will
	conduct
elections,
	which
	is
	precisely
	the
	thrust
	of
	section 	3541.3(c),
but
	what
	rules
	are
	necessary 	to
	determine
	whether
	an
	election
will
	be
	conducted
	at
	all.
It
	is 	clear 	that
	a
	contract
	bar
	has 	been
	expressly 	created
by
	section
	3544.7(b)
(1).
	Such
	clarity
	does 	not 	appear
	in
sections
	3544.l(d) 	or 	3544.7(b)
(2),
	although
	it
	is
	the
	majority
view
	that
	the 	phrase 	~lawfully 	recognized," 	contained
	in 	these
provisions
	merely
	creates
	a
	recognition 	bar, 	preferring 	to
treat
	the 	phrase
	"lawfully
	recognized~ 	as
	a
	term
	of
	art.
	I 	do
not
	treat
	this
	term
	so 	narrowly 	but
	rather
	view
	it
	as
encompassing 	both
	a
	situation
	where 	an
	employer
	has
	voluntarily
recognized
	an 	employee
	organization's
	exclusive
	representative
status,
	and 	a
	situation
	where 	an
	employer's 	recognition 	of
	an
employee
	organization's
	exclusive 	representative 	status 	is
required 	pursuant 	to
	a
	certification
	by
	this
	Board.
(con't.
	fn.
	3)
(1)
	There
	is 	currently
	in
	effect
	a
	lawful
	written
agreement
	negotiated
	by
	the 	public 	school 	employer
	and
another 	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
(2) 	The
	public 	school 	employer 	has, 	within 	the
previous
	12 	months, 	lawfully 	recognized 	an 	employee
organization 	other 	than 	the 	petitioner
	as 	the
exclusive 	representative 	of 	any 	employees 	included 	in
the 	unit 	described 	in 	the 	petition.
2

If
	the
	term
	"lawfully
	recognized"
	is
	not 	broadly
	construed
so 	as
	to
	encompass
	a
	certification
	bar
	situation,
	then
	the
Board's
	authority
	to
	adopt
	a
	certification
	bar
	found
	in
regulation 	section
	33250(b)
	is
	highly 	questionable
	since
	the
argument
	that 	arises
	is
	that
	the
	Legislature
	has
	expressly
created
	only
	two
	types
	of 	bars
	(contract
	and
	recognition
	bars)
and
	in
	so 	doing
	intended
	no
	other
	bar
	to 	apply.
	Inclusio
	unius
est
	exclusio
	alterius.4	
Of
	course,
	I 	do
	not 	think 	the
Legislature
	intended 	to
	exclude
	a
	certification
	bar
	situation,
but
	in
	order 	to
	give
	validity
	to
	the
	creation
	of
	such
	a
regulation,
	the 	Board's
	power 	and
	duty
	is
	to
	clarify
	those
provisions
	specifically
	dealing
	with
	the
	issue
	of 	acceptance
	or
rejection
	of
	decertification 	petitions.
4The
	inclusion 	of 	one
	is 	the 	exclusion 	of 	another.
3

STAT!
OF CAUf()RMIA
PUBLIC:	
EMPI.OYMENT
	ULATIONS BOARD
L0s
Angeles Regional Office
3550 Wilshire
Blvd.,
Suite
1708
Les
Angel=, California 	90010
(213) 736-3127
Et>MUl'40
G.
IR0WH
JR.,
C-.,,,o,
CERTIFIED
MAIL
Return Recei9t Requested
April 	20,
	1978
Ms.
	Nanci
	Bentz
California
School
	Employees
Association
Taft
High
Chapter #55
404
Olive
Avenue
Taft,
CA
	93268
Re:
	LA-R-450,
	Taft
Union High
School
LA-0-JJr1t
Dear
Ms.
	Bentz:
Today
we
received your petition to conduct a decertification election
in the unit of classified
employees
at
Taft
Union High
School.
Previously.
you
	had
	su!:mitted such a request that I determined tobe untime
1y
fi1
ed
due
to the e 1ecti
on
	bar ( see
my
1
etter
dated
March
17, 1978);
The
above-noted request
	is
	not timely
filed
	due
to the existence
of
an
agreement that expires June 30,
	1978.
	If
the current exclusive
representative
has
not
been
	successful 	in negotiating a
new
agreement
prior to July 1,
	1978 you
may
file
for a decertification election
after
that date.
	Or,
	if
a
new
agreement is successfully negotiated
prior to July
1,
	1978
you
must
wait until
	120-90 days before the
expiration date of the
new
agreenent to fi1e.
Your
request for a decertification election is denied.
You
may
request a review of this decision within ten calendar days 	of
receipt of this
	letter
by
filing 	a request addressed to the
	PERB
Executive Director in Sacramento. 	This request shall 	state
fu11y
the facts
	on
which
	the appeal 	is based. 	Copies of
any
appeal must be
served
	upon a11
	other parties to the action with a copy to 	this office.
Very truly yours.
i-rances
A.
	Krei 1
ing..
Regional 	Director
.__
FAK:an
_,
cc: 	Taft Union High School 	District.
	Mr. 	Donald Henshaw
K.C.E.A.,
	SEIU Local 	700, Mr. 	Henry Rodriquez