State of California (Department of Personnel Administration) (California Association of Psychiatric Technicians and Action, Communications Workers of America Local 9000) (PERB A183S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Employer,
and
CALIFORNIA ASSOCIATION 	OF
PSYCHIATRIC 	TECHNICIANS,
Exclusive 	Representative,
and
ACTION CWA LOCAL 	9000,
Petitioner.
Case No. 	S-D-120-S
(S-SR-18)
Administrative 	Appeal
PERB Order No. 	Ad-183-S
May 23, 	1989
Appearances: 	Loren E. 	McMaster, 	Attorney, 	for California
Association of Psychiatric Technicians; 	Greenstone, 	Holguin,
Garfield & Knox by Wallace B. 	Knox, 	Attorney, 	for Action CWA
Local 9000.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	The California Association of Psychiatric
Technicians 	(CAPT) 	appeals 	the attached administrative
determination of 	the 	Sacramento 	regional 	director directing 	a
decertification 	election. 	The 	regional 	director determined 	that
a 	contract between CAPT and the 	State of California, 	Department
of Personnel Administration, 	did not bar a decertification
election petition 	filed by Action CWA Local 	9000 	because 	that
contract 	had 	been 	"prematurely 	extended." 	(Hayward 	Unified
School District 	(1980) 	PERB Order No. 	Ad-96 	[4 PERC 	11140];
Deluxe Metal Furniture Company 	(1958) 	121 	NLRB 	995 	[42 	LRRM
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1470]; 	Butte County Superintendent of Schools 	(1983)
PERB Decision No. 	338 	[7 PERC 14246]; 	and, 	Centralia School
District 	(1985) 	PERB Decision No. 	519 	[9 PERC 	16203].)
Upon review of the entire record, 	the Public 	Employment
Relations 	Board adopts 	the 	regional director's 	findings 	of 	fact
and 	conclusions 	of 	law as 	the determination of 	the 	Board 	itself.
ORDER
The appeal by CAPT in Case No. 	S-D-120-S 	is 	DENIED, 	and the
case 	is 	REMANDED to 	the 	Sacramento regional director to proceed
to 	a decertification election.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Employer,
and
CALIFORNIA ASSOCIATION OF
PSYCHIATRIC TECHNICIANS,
Exclusive Representative,
and
ACTION CWA LOCAL 	9000,
Petitioner.
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Case No. 	S-D-120-S
(S-SR-18)
ADMINISTRATIVE
DETERMINATION
Investigation of the decertification petition filed 	in the
above-referenced case has 	resulted in the administrative
determination that the petition was 	timely 	filed with 	sufficient
proof of support and, 	therefore, 	an election shall be conducted
to determine the organization, 	if any, 	to be certified as
exclusive representative of the bargaining unit in question.
PROCEDURAL HISTORY
On March 3, 	1989, 	the instant decertification petition was
filed with the Public Employment Relations Board 	(PERB) 	by Action
CWA Local 9000 	(CWA), which is seeking to become the exclusive
representative of the established Dills Unit 	18 - Psychiatric
Technicians. 	The unit is currently represented by the California
Association of Psychiatric Technicians 	(CAPT), which itself was
certified by PERB as 	the 	exclusive representative effective
December 31, 	1986. 	On the petition, 	CWA indicated that the
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current memorandum of understanding 	(MOU) 	covering the unit has
effective dates of January 1, 	1987 through June 30, 	1989.
On March 3, 	1989, 	the Department of Personnel Administration
(DPA) 	and CAPT were afforded an opportunity to respond to the
petition. 	DPA was also requested to file with PERB a list of the
persons 	employed in the unit to permit a determination regarding
the 	sufficiency of the proof of support submitted by CWA. 	The
employee 	list and responses 	from DPA and CAPT were timely 	filed.
In its response 	(and Motion to Dismiss), CAPT contends that
the petition falsely states the effective dates of the MOU
covering the unit1 and argues 	that the petition should be
dismissed as untimely. 	CAPT submits that there was never an MOU
with an effective date of January 1, 	1987, 	and that the
expiration date of the current MOU is June 30, 	1991 	(not 1989).
DPA's response also excepts to the facts stated on the
petition concerning the effective dates of the MOU, 	but takes no
position as to the timeliness of the petition. 	In its 	letter,
DPA states that CAPT and DPA agreed on January 31, 	1989, 	"to
terminate 	the memorandum of understanding 	scheduled to 	expire
June 30, 	1989. 	On that same date, and concurrently, 	the parties
agreed to enter into a new memorandum of understanding effective
1CAPT also notes that the face of the petition shows a
signature date of the petitioner's agent as 	"02/03/89" which, 	if
read to mean the date of February 3, 	1989, 	precedes the filing
date of the petition. 	CAPT has not offered any theory as to why
this discrepancy would matter, 	and PERB's official records 	show
the only relevant date 	(the date the petition was 	filed with
PERB) to be March 3, 	1989.
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January 31, 	1989 through June 30, 	1991."
CWA filed a response to CAPT's Motion to Dismiss, which
concedes the facts regarding the effective dates of the MOU as
submitted by CAPT and DPA, 	but argues that the new agreement
fails to establish a contract bar to the 	instant petition
pursuant to the doctrine of 	"premature extension."
DISCUSSION
PERB regulation 32120 requires the State employer to file
with PERB a copy of any MOU or amendment thereto within 60 days
after execution of the MOU. 	PERB does have on file a copy of an
MOU for Unit 	18 between DPA and CAPT which shows an effective
date of July 1, 	1987 and an expiration date of June 30, 	1989.
DPA has not filed with PERB a new MOU but, 	if the effective date
of the new MOU was January 31, 	1989, 	such filing is not yet
overdue. 	PERB records further reflect that, 	in Case No. 	S-OS-72-
S, 	an organizational 	security approval 	election was 	conducted in
Unit 18 	in March 1988, 	and the notice of election in that case
referenced the 	organizational 	security provision contained within
the MOU effective July 1, 	1987 through June 30, 	1989.
CWA does not dispute, 	however, 	that a new agreement has been
entered into which establishes a 	later expiration date of the
current MOU as June 30, 	1991. 	CWA argues that, 	rather than the
decertification being 	"prematurely 	filed," 	the new agreement
constitutes a 	"premature extension" which does not serve as a
contract bar to the instant petition.
PERB regulation 32776(c) requires, 	inter alia, that a
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decertification petition filed under the Ralph C. 	Dills Act
(Dills) 	be dismissed if there is currently in effect an MOU
between the employer and the exclusive representative, 	"unless
the petition is filed less than 	120 days but more than 90 days
prior to the expiration date" 	of the MOU.2 The date the
instant petition was 	filed falls within the 	"less than 	120 days
but more than 90 days prior to the expiration date" if. the
expiration date relevant to the determination is June 30, 	1989
and not June 30, 	1991.
The principle or doctrine of 	"premature extension" 	was 	first
approved by the Board in Hayward Unified School District 	(1980)
PERB Order No. Ad-96 where, 	citing Deluxe Metal Furniture Company
121 NLRB 995, 42 LRRM 1470 	(1958), the Board held that
if during the term of an existing contract, 	the parties
execute a new contract which contains an expiration
date later than that of the first contract, 	the new
contract is 	"premature" 	and will not act as a bar to an
election.
The purpose of such a policy is to protect petitioners
from continuous 	contracts which would bar an election
at a time the petitioners would normally have been
permitted to file 	for an election.
If the second contract is allowed to bar an election,
it would provide a method for an exclusive
representative and employer to manipulate the timing of
the window period and eliminate 	its predictability.
Employees have a 	fundamental right to know when they
- -	can organize to 	seek a change in their exclusive
2The regulation is cited herein as 	it read at all times
applicable to these proceedings. 	The Board has adopted a change
in this regulation, 	affecting when decertification petitions may
be filed under Dills, 	which does not affect the determination in
this case.
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representative. 	If the parties to a contract could
alter the window period, 	they could easily eliminate
the preparation time necessary to mount a
decertification drive. 	This must not be allowed to
happen. 	(Emphasis added.)
The Board has, 	on more than one occasion, 	reaffirmed its adoption
of the doctrine of premature extension. 	See, 	for example, 	Butte
County Superintendent of Schools 	(1983) 	PERB Decision No. 	338 and
Centralia School District 	(1985) 	PERB Decision No. 	519.
The undisputed facts 	of this 	case bring it 	squarely within
the premature extension doctrine. 	An agreement was reached
between the parties which created a window period not less 	than
120 days nor less than 90 days from June 30, 	1989. 	Prior to the
contractual window period, 	the parties reached agreement to
terminate that agreement early and to enter into a new agreement
with a later expiration date 	(and later window period). 	Such
manipulation of the window period when employees 	in a unit may
lawfully seek to change their exclusive representative 	is
precisely the 	situation which the doctrine of premature extension
is intended to preclude.
CONCLUSION
For the reasons discussed above, 	the Motion to Dismiss 	is
denied and it 	is determined that the decertification petition
filed in this case was timely. 	Further, 	review of the proof of
support 	submitted by CWA with its petition has 	resulted in the
administrative determination that it is 	sufficient to meet the
requirements of regulation 32770(b)(2).
Accordingly, 	an election shall be conducted to determine the
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organization, 	if any, 	to be certified as 	the exclusive
representative 	of 	this 	unit. 	The 	undersigned 	Board agent will
contact 	the parties 	shortly to 	discuss 	the 	mechanics 	of 	the
election.
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 	(PERB regulation 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:
Members, 	Public 	Employment 	Relations 	Board
1031 	Eighteenth Street, 	Suite 	200
Sacramento, 	CA 	95814-4174
A document 	is 	considered 	"filed" 	when 	actually 	received
before the 	close of business 	(5:00 p.m.) 	on the 	last day 	set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or Express
United States 	mail, 	postmarked 	not 	later than the 	last day 	set
for 	filing 	. . . " 	(regulation 	32135.) 	Code 	of 	Civil 	Procedure
section 	1013 	shall 	apply.
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
automatically prevent 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 	include 	all pertinent 	facts
and 	justification for the request 	(regulation 32370).
If 	a 	timely appeal 	is 	filed, 	any other party may 	file with
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the Board an original and five 	(5) 	copies of a response to this
appeal within ten 	(10) 	calendar days following the date of
service of the appeal 	(regulation 32375).
Service
All documents authorized to be filed herein must also be
"served" 	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.
Limitation of Appeals
Pursuant to regulation 32380(b)(4), 	the above determination
that the petitioner's proof of support is adequate is not
appealable.
DATED: 	March 27, 	1989 Les Chisholm
Regional Director
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