State of California (Department of Personnel Administration) (California Union of Safety Employees and California State Peace Officers Association) (PERB A191S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
STATE
	OF
	CALIFORNIA,
	DEPARTMENT
	OF
PERSONNEL 	ADMINISTRATION,
Employer,
and
CALIFORNIA
	UNION
	OF
	SAFETY
EMPLOYEES,
Exclusive
	Representative,
and
CALIFORNIA 	STATE 	PEACE 	OFFICERS
ASSOCIATION,
Petitioner.
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____________________ )
Case
	No.
	S-S-124-S
Administrative
	Appeal
PERB
	Order
	No.
	Ad-191-S
August 	24,
	1989
Appearances:	
Kenneth
	R.
	Hulse,
	Labor
	Relations
	Counsel,
	for
State
	of
	California,
	Department
	of 	Personnel
	Administration;
Loren
	E.
	McMaster,
	Attorney,
	for 	California
	Union
	of 	Safety
Employees; 	Beeson,
	Tayer,
	Silbert
	and 	Bodine 	by
	John
	Provost,Attorney, 	for 	California 	State
	Peace
	Officers 	Association.
Before
	Porter,
	Shank 	and
	Camilli,
	Members.
DECISION
CAMILLI, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the 	California
Union
	of 	Safety
	Employees
	(CAUSE)
	and
	the 	State 	of
	California,
Department 	of 	Personnel 	Administration
	(DPA)
	of 	the
	admin-
istrative
	determination 	of
	a
	Board
	agent
	that
	a
	severance
petition 	filed
	by
	the 	California 	State
	Peace
	Officers 	Association
(CSPOA) 	was
	timely 	filed.
	CAUSE
	and
	DPA
	appeal 	the
	admin-
istrative
	determination
	on
	the 	grounds
	that 	there
	was 	a
	valid
memorandum
	of 	understanding
	(MOU)
	in 	effect
	on 	the 	date 	the

severance 	petition was 	filed, 	which 	constitutes 	a 	contract 	bar 	to
the 	filing 	of 	a 	severance 	petition 	under 	PERB 	Regulation
40260(b). 1 Having 	reviewed 	the 	entire 	record, 	we 	affirm 	the
Board 	agent's 	determination 	and 	adopt 	his 	findings 	of 	fact. 	We
affirm 	his 	conclusions 	of 	law 	only 	insofar 	as 	they 	are 	consistent
with 	the 	following 	discussion.
FACTUAL 	SUMMARY
DPA 	and 	CAUSE 	executed 	an 	MOU 	which 	went 	into 	effect 	on
August 	16, 	1987, 	and 	remained 	in 	effect 	through 	and 	including
June 	30, 	1988. 	On 	June 	30, 	1988, 	the 	parties 	entered 	into 	a
written 	extension 	of 	that MOU 	to 	August 	31, 	1988. 	On August 	30,
1988, 	CAUSE 	and 	DPA 	agreed 	to 	the 	terms 	of 	a 	new 	MOU. 	At 	that
time, 	CAUSE 	and 	DPA 	agreed 	to 	an 	oral 	extension 	of 	the 	prior 	MOU
until 	a 	ratification 	vote 	of 	CAUSE 	membership 	could 	be 	taken.
The 	successor MOU was 	ratified 	by 	the 	Legislature 	on 	September 	1,
1PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 	et 	seq., 	and 	those 	regarding
severance 	petitions 	begin 	at 	section 	40200. 	Section 	40260(b)(2)
provides:
(b) 	A petition 	shall 	be 	dismissed 	in part 	or
in whole 	whenever 	the 	Board 	determines 	that:
(2) 	There 	is 	currently 	in 	effect 	a
memorandum 	of 	understanding 	between the
employer 	and 	another 	employee 	organization
recognized 	or 	certified 	as 	the 	exclusive
representative 	of 	any 	employees 	covered 	by
the 	severance 	petition, 	unless 	the 	petition
is 	filed 	less 	than 	120 	days 	but 	more 	than 	90
days 	prior 	to 	the 	expiration 	date 	of 	such
memorandum 	...
2

1988. 	On 	that 	date, 	CSPOA 	filed 	a 	petition 	to 	sever 	a 	number 	of
positions 	from 	Unit 	7, 	the 	unit 	represented 	by 	CAUSE. 	The 	new
MOU 	was 	eventually 	ratified 	by 	CAUSE 	membership 	in 	mid-October,
1988.
Section 	20.2 	of 	the 	successor 	MOU 	reads, 	in pertinent 	part:
a. 	Duration. 	The 	terms 	of 	the 	agreement
shall 	go 	into 	effect 	on 	the 	date 	the
Legislature 	and 	CAUSE 	ratifies 	the 	entire
contract 	and 	remain 	in 	full 	force 	and 	effect
through 	and 	including 	June 	30, 	1991.
PROCEDURAL 	BACKGROUND
The 	Board 	agent 	found 	that 	there 	was 	no 	contract 	bar 	in
effect 	on 	September 	1, 	1988 	(the 	date 	the 	severance 	petition 	was
filed), 	and 	therefore 	the 	petition was 	timely 	filed. 	With 	regard
to 	the 	prior 	MOU, 	the 	Board 	agent 	found 	the 	oral 	extension 	was
not 	a 	contract 	bar 	because 	it 	was 	for 	an 	indefinite 	duration 	and
the 	evidence 	proffered 	to 	show 	a 	valid 	and 	binding 	extension was
not 	persuasive. 	The 	administrative 	determination, 	citing 	Bassett
Unified 	School 	District 	(1979) 	PERB 	Order 	No. 	Ad-77 	and
Appalachian 	Shale 	Products 	Company 	(1958) 	121 	NLRB 	1160 	[42 	LRRM
1506], 	states 	specifically 	that 	under 	PERB 	law 	an 	extension 	of 	an
agreement 	must 	be 	written 	and 	signed, 	must 	be 	of 	a 	definite
duration, 	and 	must 	contain 	substantial 	terms 	and 	conditions 	of
employment. 2 The 	Board 	agent 	also 	found, 	citing 	Appalachian
Shale 	Products 	Company, 	that 	the 	successor 	agreement 	did 	not
2As 	more 	fully 	explained 	below, 	we 	do 	not 	agree 	that 	PERB
has 	expressly 	adopted 	the 	National 	Labor 	Relations 	Board's 	(NLRB)
position 	on 	contract 	bar. 	Neither 	do 	we 	agree 	that 	Bassett
stands 	for 	the 	proposition 	for 	which 	it 	was 	cited.
3

constitute 	a 	valid 	contract 	bar 	because 	it 	contained 	a 	require-
ment 	of 	ratification 	by 	CAUSE 	membership 	as 	an 	express 	written
condition precedent 	to 	its 	validity.
CAUSE 	appealed 	the 	administrative 	determination 	on 	the
grounds 	that: 	(1) 	NLRB 	case 	law 	should 	not 	be 	followed,
particularly 	regarding 	the 	requirement 	that 	an 	extension 	of 	an
agreement 	be 	in 	writing; 	(2) 	there 	was 	evidence 	of 	the 	oral
agreement 	in documents 	which 	continued 	benefits 	for 	unit 	members,
amongst 	others, 	during 	the 	period 	of 	time 	for 	which 	the 	extension
is 	alleged 	to 	have 	been 	in 	effect; 3 and 	(3) 	the 	policy 	of
effectuating 	stability 	of 	contractual 	relations 	would 	best 	be
served 	by 	recognizing 	the 	oral 	extension 	as 	a 	contract 	bar.
DPA 	appealed 	the 	administrative 	determination 	on 	the 	ground
that 	the 	oral 	extension 	of 	the 	prior 	MOU 	is 	a 	valid 	contract 	bar.
There 	is 	no 	PERB 	law 	parallel 	to 	the 	NLRB 	rule 	requiring 	an
extension 	to 	be 	in 	writing 	in 	order 	to 	constitute 	a 	contract 	bar,
and 	DPA 	urges 	PERB 	not 	to 	adopt 	such 	a 	rule. 	In 	addition, 	DPA
argues 	that 	an 	after-the-fact 	determination 	of 	the 	length 	of
duration 	of 	the 	oral 	extension 	reveals 	that 	the 	duration was
reasonable 	and, 	therefore, 	the 	period 	is 	not 	indefinite.
CSPOA's 	response 	to 	the 	appeals 	is 	that 	the 	extension 	was
not 	a 	valid 	contract 	bar 	because 	it 	was 	of 	an 	indefinite 	duration
which, 	under 	PERB 	law, 	does 	not 	rise 	to 	the 	level 	of 	a 	contract
bar. 	CSPOA 	also 	argues 	that, 	under 	NLRB 	law, 	a 	definite 	duration
3 Because 	we 	find 	that 	the 	contract 	extension 	fails 	on 	the
basis 	of 	indefinite 	duration 	and 	lack 	of 	a 	writing, 	we 	need 	not
reach 	the 	issue 	of 	the 	effect 	of 	the 	proffered 	documents.
4

and
	a
	writing
	are 	required,
	and
	in
	this
	case
	neither
	requirement
was
	met.
	Further,
	CSPOA
	disputes
	the 	contention
	that
	the
successor 	contract
	was
	in
	effect
	on
	the 	date 	the
	petition
	was
filed
	because,
	by
	its
	terms,
	the
	contract 	required
	ratification
prior
	to
	becoming
	effective.
DISCUSSION
Under
	PERB
	Regulation
	40260(b),
	there
	must 	be
	a
	valid
	and
binding
	MOU
	currently 	in
	effect
	between
	the
	employer 	and
	the
union
	representing
	the
	unit 	in
	question
	at
	the
	time
	the
	petition
is 	filed
	in
	order 	to
	effectively
	bar 	the
	filing
	of
	such
	petition.
In
	the
	present 	case,
	therefore,
	if
	either
	the
	oral
	extension 	of
the
	prior
	MOU
	for
	an
	indefinite
	duration 	or
	the
	unratified
successor
	MOU
	is
	found
	to
	constitute
	a
	valid
	and
	effective
	MOU
	at
the
	time 	the
	severance
	petition
	was
	filed,
	the
	contract 	bar
doctrine
	would
	preclude 	the
	filing
	of
	such
	petition.
There
	are, 	therefore,
	two
	issues 	in
	this
	case:
	(1)
	whether
the
	oral
	extension 	of 	the
	prior
	MOU
	for
	an
	indefinite 	duration
constituted
	a
	valid
	and
	effective 	contract
	on
	September 	1, 	1988;
and 	(2) 	whether
	the 	successor
	MOU,
	which 	had 	been
	ratified
	by
	the
Legislature
	but 	not
	by
	the
	CAUSE
	membership 	on 	September 	1, 	1988,
constituted
	a
	valid
	and
	binding 	contract
	on
	that 	date.
EFFECT
	OF 	THE
	EXTENSION
	OF 	THE
	PRIOR
	MOU
Regarding
	the 	oral 	extension 	of 	the 	prior
	MOU,
	the
	Board
agent 	stated 	that
	PERB
	precedent 	required
	a
	contract
	be
	in
writing 	in 	order 	to 	act
	as
	a
	bar. 	In 	fact, 	the
	PERB
	cases 	that
mention 	the 	requirement 	of
	a
	written 	contract 	arise 	under
5

section 	3544.?(b)(l) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA), 	which 	concerns 	petitions 	for 	representation 	elections 	and
petitions 	for 	investigations, 	and 	reads, 	in 	pertinent 	part, 	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 	negotiated 	by 	the 	public
school 	employer 	and 	another 	employee
organization 	covering 	any 	employees 	included
in 	the 	unit 	described 	in 	the 	request 	for
recognition 	..
(Emphasis 	added)
(See 	Downey 	Unified 	School 	District 	(1980) 	PERB 	Order Ad-97.)
The 	present 	case 	does 	not 	fall 	under 	EERA, 	however, 	but
rather 	falls 	under 	the 	Ralph 	C. 	Dills 	Act 	(Dills 	Act) 	(codified
at 	Gov. 	Code, 	sec. 	3512 	et 	seq.), 	which 	contains 	no 	statutory
language 	requiring 	a 	writing 	similar 	to 	the 	above-quoted 	BERA
section. 	Nor 	does 	Regulation 	40260(b) 	expressly 	require 	a
writing.
Similarly, 	neither 	the 	National 	Labor 	Relations 	Act 	(NLRA)
nor 	the 	regulations 	promulgated 	thereunder 	expressly 	address 	the
issue 	of 	contract 	bar. 	Rather, 	the 	NLRB 	has 	created 	and 	defined
the 	contract 	bar 	doctrine 	through 	case 	law.
PERB 	has 	held 	it 	is 	appropriate 	to 	look 	to 	NLRB 	precedent
for 	guidance 	where 	the 	federal 	rule 	has 	been 	the 	prototype 	for
California 	labor 	legislation, 	and 	particularly 	regarding 	the
contract 	bar 	rule 	under 	the 	Dills 	Act. 	(State 	of 	California
6

(State 	Employees 	Trades 	Council) 	(1983) 	PERB 	Decision 	No. 	348-S,
at 	pp. 	7-8 	and 	footnote 	2. 4 )
Under 	NLRB 	law, 	an 	agreement 	must 	be 	in writing 	and 	signed,
and 	contain 	substantial 	terms 	and 	conditions 	of 	employment 	in
order 	to 	constitute 	a 	contract 	bar. 	(Appalachian 	Shale 	Products
Co., 	supra, 	121 	NLRB 	1160 	[42 	LRRM 	1506]; 	Local 	1199. 	Drug 	and
Hospital 	Employees, 	et 	al. 	(1962) 	136 	NLRB 	1564, 	at 	1575 	[50 	LRRM
1033]; 	J. 	Sullivan 	& 	Sons 	Manufacturing 	Corp. 	(1953) 	105 	NLRB
549, 	at 	551 	[32 	LRRM 	1309]; 	and 	Morris, 	The 	Developing 	Labor 	Law,
2nd 	Ed. 	at 	361.) 	The 	contract 	bar 	doctrine 	balances 	the
statutory 	policy 	of 	stability 	in 	labor 	relations 	and 	the 	exercise
of 	free 	choice 	in 	the 	selection 	or 	change 	of 	bargaining
representatives. 	(Appalachian 	Shale, 	supra, 	at 	1161.) 	We 	find
the 	policy 	of 	promoting 	industrial 	stability 	is 	furthered, 	in
part, 	by 	requiring 	the 	formality 	of 	a 	writing 	for 	a 	contract 	to
constitute 	a 	contract 	bar. 	Because 	the 	considerations 	underlying
the 	requirement 	of 	a 	formal 	writing 	are 	the 	same 	for 	cases
arising 	under 	the 	Dills 	Act 	as 	those 	arising 	under 	EERA 	and 	the
NLRA, 	we 	hold 	that 	contracts 	must 	be 	evinced 	by 	a 	writing, 	signed
and 	contain 	substantial 	terms 	and 	conditions 	of 	employment 	in
order 	to 	constitute 	a 	contract 	bar.
The 	oral 	extension was 	also 	for 	an 	indefinite 	duration, 	as
the 	parties 	agreed 	to 	continue 	the 	prior 	MOU 	in 	effect 	until
4PERB 	has 	followed 	much 	of 	the 	NLRB's 	contract 	bar 	doctrine
but 	has 	declined 	to 	follow 	it 	in 	toto. 	(See 	Alum 	Rock 	Unified
Elementary 	School 	District, 	supra, 	PERB 	Order Ad-158 	and 	Downey
Unified 	School 	District, 	supra, 	PERB 	Order Ad-97.)
7

ratification. 	Contrary 	to 	the 	implications 	in 	the 	administrative
determination, 	PERB 	has 	never 	directly 	addressed 	the 	issue 	of
whether 	an 	indefinite 	extension 	of 	an 	existing 	contract 	can
constitute 	a 	contract 	bar. 5 NLRB 	precedent, 	which 	holds 	that
contracts 	having 	no 	fixed 	duration 	shall 	not 	be 	considered 	a 	bar
for 	any 	period, 	is 	instructive 	for 	the 	reasons 	stated 	above.
(Pacific 	Coast 	Association 	of 	Pulp 	and 	Paper 	Manufacturing.
et 	al. 	(1958) 	121 	NLRB 	990 	[42 	LRRM 	1477]; 	Cind-R-Lite 	Co. 	(1979)
239 	NLRB 	1255 	[100 	LRRM 	1138] .)
The 	NLRB 	has 	explained 	the 	policy 	behind 	this 	requirement 	as
follows:
We 	believe 	that 	our 	contract-bar 	policy
should 	rest 	on 	the 	fundamental 	premise 	that
the 	postponement 	of 	employees' 	opportunity 	to
select 	representatives 	can be 	justified only
if 	the 	statutory 	objective 	of 	encouraging 	and
protecting 	industrial 	stability 	is
effectuated 	thereby. 	That 	objective 	is
served where 	contracting 	parties 	have 	entered
into 	mutual 	and 	binding 	commitments 	thereby
reasonably 	insuring 	that 	for 	the 	duration 	of
the 	agreement 	neither 	party 	will 	disrupt 	the
bargaining 	relationship 	by 	unilaterally
attempting 	to 	force 	changes 	in 	the 	conditions
of 	employment 	upon 	the 	other. 	But 	to 	grant
the 	protection 	of 	our 	contract 	bar 	policy 	to
parties 	which 	have 	not 	so 	committed
themselves--either 	party 	being 	free 	at 	all
times 	to 	dissolve 	the 	contract 	and 	exert
economic 	pressure 	upon 	the 	other 	in 	support
5The 	case 	cited 	therein 	involved 	a 	contract 	of 	short, 	as
opposed 	to 	indefinite, 	duration. 	(See Alum 	Rock, 	supra.)
8

of 	bargaining
	demands--would 	be
	to
	abridge
the
	statutory 	right
	of
	employees
	to
	select
representatives
	without
	concomitant
	statutory
justification.
(Pacific
	Coast
	Association 	of
	Pulp
	and
	Paper,
	et
	al.,
	supra,
	at
9
94.
)
Because
	the 	policy 	considerations
	enunciated
	by
	the
	NLRB
	in
Pacific
	Coast,
	supra, 	apply
	equally
	to 	the 	contract
	bar
	doctrine
under
	the
	Dills
	Act,
	we
	hold
	that
	a
	contract
	must
	be
	for
	a
definite
	duration 	to 	act
	as
	a
	contract 	bar
	under
	the
	Dills
	Act.
In
	this
	case,
	although
	ratification
	in 	fact
	occurred 	approx-
imately 	six
	weeks
	after
	the
	oral
	agreement
	was 	made,
	the
	contract
term
	was
	nevertheless 	for
	an
	indefinite
	duration,
	and
	therefore
on
	this
	ground
	must
	fail
	as
	a
	contract 	bar.
EFFECT
	OF 	THE
	SUCCESSOR
	CONTRACT
The
	second
	issue
	is
	whether
	the 	successor
	contract
	was
binding
	and
	effective,
	although
	it
	had
	not
	yet
	been
	ratified
	by
CAUSE
	membership.
	In
	Downey
	Unified
	School
	District,
	supra,
PERB
	Order
	No.
	Ad-97,
	PERB
	held
	that
	a
	contract
	which
	was
	not 	yet
ratified
	by
	the
	parties
	was
	not
	a
	valid 	contract 	bar,
	even 	where
the 	requirement 	of
	ratification
	was
	not
	found
	in 	the
	agreement
itself,
	but
	rather
	was
	found
	in 	the
	ground
	rules 	regarding
contract 	negotiation. 	Therefore,
	PERB
	has 	held
	that 	unlike 	the
NLRB, 6
it
	will
	recognize
	a
	requirement 	of
	ratification
	as
	a
6
The
	NLRB
	held 	in
	Appalachian 	Shale, 	supra, 	that
	where
	a 	new
collective 	bargaining 	agreement 	which 	terms
	explicitly 	require
ratification
	as
	a
	condition 	precedent 	to 	effectiveness 	has 	not
been
	ratified
	by
	the 	parties,
	it
	would 	not 	operate 	as
	a
	contract
bar. 
9

condition
	precedent
	to
	finding
	a
	contract
	bar
	even
	where
	the
parties
	have
	executed
	a
	written
	agreement
	to
	that 	effect
	outside
of
	the 	collective
	bargaining
	agreement
	itself.
In 	the 	present
	case, 	the
	MOU
	itself
	required
	ratification
	by
the
	parties
	as
	a
	condition precedent
	to 	effectiveness
	of
	the
contract.
	It
	had
	not
	yet
	been
	ratified
	when
	CSPOA
	filed
	its
severance
	petition,
	and
	therefore
	did
	not
	constitute
	a
	contract
bar
	at
	that
	time.
Because
	neither
	the
	oral
	extension 	of 	the
	prior
	MOU
	for
	an
indefinite
	duration,
	nor
	the
	unratified
	MOU,
	constituted
	a
contract
	bar
	on
	the 	date
	of
	filing
	of 	the 	severance
	petition
herein,
	we
	find 	the
	filing
	of
	such
	petition
	was
	timely.
ORDER
The
	administrative 	determination
	is
	AFFIRMED.
	CAUSE
	and
DPA's
	appeals
	are
	DENIED.
Members
	Porter
	and 	Shank
	joined
	in
	this
	Decision.
10