Capistrano Unified School District (PERB A254E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CAPISTRANO 	UNIFIED 	SCHOOL
DISTRICT,
Employer,
and
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER 	224,
Exclusive 	Representative,
and
GENERAL 	TRUCK 	DRIVERS, 	OFFICE,
FOOD 	AND 	WAREHOUSE 	LOCAL 	952,
INTERNATIONAL 	BROTHERHOOD 	OF
TEAMSTERS, 	AFL-CIO,
Petitioner.
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Case 	No. 	LA-D-293
Request 	for 	Stay
PERB 	Order 	No. 	Ad-254
May 	13, 	1994
Appearances: 	Rutan 	& Tucker 	by 	L. 	Ski 	Harrison, 	Attorney, 	for
Capistrano 	Unified 	School 	District; 	A. 	Alan Aldrich, 	Senior 	Labor
Relations 	Representative, 	for 	California 	School 	Employees
Association, 	Chapter 	224; 	Wohlner, 	Kaplan, 	Phillips, 	Young 	&
Barsh 	by 	John A. 	Siqueiros, 	Attorney, 	for 	General 	Truck 	Drivers,
Office, 	Food 	and Warehouse 	Local 	952, 	International 	Brotherhood
of 	Teamsters, 	AFL-CIO.
Before 	Caffrey, 	Garcia 	and 	Johnson, 	Members.
DECISION
CAFFREY, 	Member: 	On March 	31, 	1994, 	the 	San 	Francisco
regional 	director 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	issued 	an 	administrative 	determination 	in 	Case
No. 	LA-D-293. 	The 	regional 	director 	concluded 	that 	the
decertification 	petition was 	timely 	filed 	and 	ordered 	that 	a
representation 	election 	be 	conducted. 	On April 	11, 	1994, 	the
California 	School 	Employees 	Association, 	Chapter 	224 	(CSEA) 	filed

an 	appeal 	of 	the 	administrative 	determination 	and 	a 	request 	for
stay 	of 	the 	representation 	election. 	On April 	20, 	1994, 	the
General 	Truck 	Drivers, 	Office, 	Food 	and 	Warehouse, 	Local 	952,
International 	Brotherhood 	of 	Teamsters, 	AFL-CIO 	filed 	a 	response,
opposing 	the 	stay 	and 	urging 	the 	Board 	to 	immediately 	order 	the
conduct 	of 	the 	election. 	The 	Capistrano 	Unified 	School 	District
responded 	on April 	21, 	1994, 	supporting 	CSEA's 	request 	for 	a 	stay
of 	the 	election.
The 	Board, 	after 	careful 	review 	of 	this 	issue 	and
consideration 	of 	the 	positions 	of 	the 	parties, 	denies 	CSEA's
request 	for 	a 	stay. 	The 	Board 	further 	orders 	that 	the 	ballots 	be
impounded 	pending 	the 	Board's 	decision 	on 	the 	merits 	of 	CSEA's
appeal 	of 	the 	regional 	director 1 s 	administrative 	determination. 1
ORDER
The 	California 	School 	Employees 	Association, 	Chapter 	224's
request 	for 	stay 	of 	the 	representation 	election 	in 	Case 	No. 	LA-D-
'293 	is 	DENIED. 	The 	regional 	director 	is 	ordered 	to 	proceed 	with
the 	election 	in 	accordance 	with 	PERB 	Regulations 	and 	thereafter
impound 	the 	ballots 	pending 	the 	Board's 	decision 	on 	the 	merits 	of
the 	appeal.
Member 	Johnson 	joined 	in 	this 	Decision.
Member 	Garcia's 	dissent 	begins 	on 	page 	3.
1By 	its 	ruling 	on 	this 	motion, 	the 	majority 	takes 	no
position 	on 	the 	merits 	of 	CSEA's 	appeal 	of 	the 	regional
director's 	administrative 	determination.
2

GARCIA,
	Member,
	dissenting:
	I
	have
	reviewed
	the
	majority's
recommendation 	and
	do
	not 	agree 	with
	its
	conclusion
	to
	hold 	the
election
	and
	impound
	the
	ballots.
	My
	reasons
	are
	detailed
	below.
DISCUSSION
The
	majority
	opinion
	chooses
	to
	proceed 	with 	the
	election
and
	impound
	the
	results
	pending
	a
	determination
	on
	whether
	a
signing
	is
	necessary
	to
	establish
	a
	contract 	bar 	to 	the
	petition
for
	election.
	That
	choice
	is
	made
	to
	give 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board)
	time
	to
	study 	the
	issue.
	The 	law
is 	clear
	and
	no
	further
	study
	is
	required 	to
	establish
	the
	rights
of
	the
	parties
	to
	this
	dispute.
	I
	would
	stay
	the
	election.
Distinction
	Between
	the 	National
	Labor
	Relations
	Board
	(NLRB)
and
	PERB
NLRB's
	Authority
The
	NLRB
	has 	extremely broad
	powers
	to 	create 	rules
under
	the 	authority
	given
	by
	Congress,
	in 	addition 	to
	its
quasi-judicial
	powers.
	PERB
	does
	not
	have 	such
	quasi-legislative
authority
. 1
1
See 	Apple
	Valley 	Unified
	School
	District
	(1990)
	PERB
	Order
No.
	Ad-209, 	pages
	9
	and 	10, 	which
	state, 	in 	part, 	that:
The
	National
	Labor
	Relations
	Act
	contains
	no
express
	legislative 	prescriptions
	concerning
contract 	bar 	rules.
	Therefore, 	the
	NLRB
	may
properly 	develop
	contract 	bar 	rules 	as
	a
matter 	of 	administrative 	discretion. 	In
contrast,
	EERA
	section
	3544.7, 	subdivision
(b) ( 1)
	contains
	an 	express 	contract 	bar 	rule.Therefore,
	[PERB]
	does 	not 	have
	the
	same
discretion 	afforded 	the
	NLRB,
	but 	instead
must 	follow 	the 	prescription 	of 	section 	3544.7.
It 	is, 	of 	course, 	not 	within
	[PERB's]
	authority
to 	adopt 	contract 	bar 	rules 	which 	are
3

inconsistent 	with 	the 	express 	language 	of 	the
statute. 	[Citations.]
In 	1958 	the 	NLRB 	developed 	a 	policy 	in Appalachian _Shale
Products 	Co. 	(1958) 	121 	NLRB 	1160 	[42 	LRRM 	1506], 	that 	only
"signedn 	agreements 	could 	act 	as 	contract 	bars 	to 	election
petitions. 	The 	rule 	was 	created 	by 	the 	NLRB 	to 	simplify 	and
ascertain when a 	contract 	bar 	existed. 	It 	is 	a 	rule 	of 	evidence
that 	was 	modified 	in 	subsequent 	NLRB 	decisions 	so 	that 	initials
on 	other writings 	also 	now 	qualify 	as 	a 	signing. 2 	The 	rule 	has
been 	further 	modified 	so 	that 	no 	formal 	document 	is 	required 	and
the 	finality 	or 	effectiveness 	of 	the 	contract 	is 	not 	conditional
on 	signing. 3 With 	the 	passage 	of 	time, 	we 	can 	expect 	further
modifications 	that 	will 	establish 	that 	the 	rule 	is 	not 	the
determinant 	of 	the 	intent 	of 	the 	parties, 	but 	rather 	a
convenience 	to 	the 	NLRB.
PERB's 	Authority
The 	contract 	bar 	statute 	that PERB 	operates 	under 	was
enacted 	in 	1975 	and 	is 	a 	legislatively 	codified version 	of 	some
of 	the 	rules 	developed 	by 	the 	NLRB. 	Educational 	Employment
Relations 	Act 	(EERA) 	section 	3544.7(b) 	provides 	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 	public 	school 	employer
and another 	employee 	organization 	covering 	any
2See, 	e.g., 	Gaylord 	Broadcasting 	Co. 	(1980) 	250 	NLRB 	198
[104 	LRRM 	1360].
3 Farrel 	Rochester 	Div. 	(1981) 	256 	NLRB 	996, 	999, 	footnote 	19
[ 10 7 	LRRM 	13 5 8] .
4

employees
	included
	in
	the
	unit
	described
	in.
	the
request 	for 	recognition
	...
	[Emphasis
	added.]
Note
	that
	the
	California 	Legislature 	required
	only
	a
	current,
written,
	lawful
	agreement
	be
	in
	effect
	to 	bar
	petitions.
Although
	the
	NLRB
	signature
	requirement
	in
	Appalachian
	Shale
Products, 	supra,
	had been
	NLRB
	policy 	since
	1958,
	the
	California
Legislature
	chose
	not
	to
	impose
	a
	signature
	requirement.
Instead, 	existence
	of
	a
	contract
	bar
	hinges
	on
	whether
	the
agreement
	is
	"in
	effect."
	The
	parties
	to
	the
	agreement
	are 	free
to
	choose
	the
	means
	by 	which
	it
	becomes
	effective.
A
	contract 	bar 	gives
	parties
	the
	right
	to
	be
	left
	alone 	for
a
	reasonable 	period
	of 	time.
	That
	right
	cannot 	be
	taken
	away 	by
a
	quasi-judicial
	agency 	such
	as
	PERE
	through
	the 	adoption
	of
	a
rule
	that 	effectively
	modifies 	the
	statute
	which
	grants 	the
right.
	As
	the
	Board
	recognized
	in
	North
	Orange 	County
	Regional
Occupational
	Program
	(1990)
	PERE
	Decision
	No.
	857,
	page
	6
et 	seq.,
4 	PERE
	has 	only 	such
	jurisdiction
	and 	powers
	as
	have 	been
conferred
	on
	it
	by
	statute.
	Further,
	PERE
	acts 	in
	excess 	of
	its
jurisdiction
	if
	it
	acts 	in 	violation
	of 	the
	statutes
	conferring
or
	limiting
	its
	jurisdiction
	and 	powers.
5	
The
	absence 	of
jurisdiction
	cannot 	be 	overcome 	by
	the 	established 	practices 	or
customs 	of
	PERE,
	nor by
	PERB
	regulation.
4
See
	also, 	California 	State 	University.
	San 	Diego 	(1989)
PERB
	Decision
	No. 	718-H, 	page
	8
	et
	seq.
5
See
	also,
	7
	Witkin, 	Constitutional
	Law
	(9th 	ed. 	1988)
section
	114, 	page 	167,
	discussing 	the 	separation 	of 	powers
doctrine 	(the 	power
	to
	make 	and 	amend 	laws
	is 	in 	the 	legislativedepartment; 	administrative 	agencies
	may
	exercise
	some 	judgment 	in
how
	they 	carry 	out 	their 	statutory 	function, 	but 	they 	cannot
interpret 	the 	statute 	so 	as 	to 	revise 	it).
5

Under
	the
	facts
	of
	this
	case, 	the
	California
	School
Employees
	Association,
	Chapter
	224
	(CSEA)
	and
	the 	Capistrano
Unified
	School
	District
	(District)
	entered
	into
	a
	lawful
agreement
	that
	became
	effective,
	under
	its
	terms,
	when
	it
	was
ratified
	by
	the
	parties.
6
Upon
	ratification,
	the
	agreement
became
	a
	bar 	to
	petitions
	for
	election,
	whether
	or
	not
	the
contract
	was
	signed.
CONCLUSION
The
	majority
	seeks
	to
	buy
	time
	to
	determine 	whether
	the
	NLRB
rule
	on
	signing
	vitiates
	the
	agreement
	as
	a
	contract 	bar
	while
PERB
	goes 	ahead and
	holds
	an
	election
	and
	impounds
	the
	results
pending
	a
	decision
	on
	the 	signing
	issue.
	That
	is
	disruptive 	to
CSEA
	and
	the
	District
	and
	violates 	their
	right
	to
	be
	left
	alone.
Signing
	is
	not 	required 	to
	make
	the
	agreement
	effective,
	and
those
	Board
	members
	with 	doubts
	have
	a
	better
	choice:
	to
	stay
the
	election
	and
	make
	a
	timely 	decision 	as
	to
	whether
	PERB
	is
bound 	by
	the
	NLRB
	rule
	given
	the
	wording
	of 	our
	statute.
6
Article
	1, 	Section 	1.3 	of 	the
	Agreement
	reads:
Except 	as 	noted 	in 	Section 	1.4 	[regarding
reopener 	topics]
	all 	articles
	of 	this
agreement
	shall
	remain
	in 	full 	force 	and
effect
	from 	the 	date 	of 	ratification 	of 	thiscontract 	until
	June 	30, 	1995, 	when
	it
	shallterminate. 	[Emphasis 	added.]
6