Centralia School District (PERB 0519E)

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.
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) 	Case 	No. 	LA-S-102
(LA-R-327)
PERB Decision No. 	519
September 	12, 	1985
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Appearances; 	Reich, 	Adell & Crost by Anthony R. 	Segall 	for
American Federation of State, 	County and Municipal 	Employees,
AFL-CIO; 	William C. 	Heath 	for 	California 	School 	Employees
Association.
Before Hesse, 	Chairperson; Jaeger and Morgenstern, 	Members.
DECISION
JAEGER, 	Member: 	The California 	School 	Employees
Association 	(CSEA) 	appeals 	a regional office decision that 	a
severance petition 	filed by 	the American 	Federation of 	State,
County and Municipal 	Employees, 	AFL-CIO 	(AFSCME) 	was 	filed
during 	an 	appropriate 	window period 	as 	defined by 	Board
Regulation 33020 (Cal. Admin. Code, 	tit. 8, 	sec. 33020). 	CSEA
also seeks 	a 	stay of 	any 	further 	action by 	the 	regional 	office
pending 	resolution of 	this 	appeal.
The 	Board 	finds 	that AFSCME's 	petition was 	timely 	filed,
adopts 	the attached decision of 	the 	regional 	office as 	modified
herein, 	and denies 	the request 	for stay.
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DISCUSSION
The 	facts 	are not 	in dispute. 	The 	sole 	issue raised 	is
whether 	separate, 	new window periods 	are 	created by 	successive
contract 	extensions 	negotiated 	before 	the 	respective 	expiration
dates.
CSEA's 	first 	argument 	against 	an affirmative 	finding 	is
that 	the employees' 	right 	to change 	their 	exclusive
representative 	is 	amply protected by their 	ability 	to 	look 	to a
single, 	fixed 	time during which a decertification petition may
be 	filed. 	"There 	is 	no need," 	CSEA believes, 	"for dissident
employees 	to 	look 	forward 	to 	two 	time-certain window periods 	in
order 	to plan a decertification 	[sic] 	drive 	without
interference." 	(Emphasis 	in original.)
CSEA claims 	that Hertz Corporation 	(1982) 	265 NLRB 1127,
cited by the regional office, 	is distinguishable. 	There, 	the
National 	Labor 	Relations 	Board held 	that 	each new contract
extension 	created 	a 	separate 	window period. 	CSEA acknowledges
the Hertz doctrine but points 	out 	that 	the 	extension 	in that
case was 	executed after 	the 	close of 	the window period, 	whereas
here, 	the extension was 	executed before 	the close of 	the window
period created by the original 	agreement. 	It 	is 	this 	fact
which 	forms 	an underpinning 	for 	CSEA's 	view 	that 	employees 	do
not 	need 	the protection of 	two window periods.
This 	argument 	ignores 	the obvious 	possibility that
employees, 	disenchanted with 	their 	representative at 	some 	later
date, 	could be 	indefinitely barred by an endless 	chain of
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premature 	contract 	extensions 	from 	expressing 	their
dissatisfaction 	through 	the 	statutory procedures 	designed 	for
that purpose.
More directly, 	CSEA's 	argument 	overlooks 	the underlying
purpose 	of both 	Hertz 	and 	Board 	Regulation 	33020 	to preclude
the 	use of premature 	contract 	extensions 	as 	a means 	of defeating
the employees' 	statutory rights, 	as well as providing employees
with a clear 	and 	certain knowledge of 	when such 	rights 	may be
timely exercised. 	It 	is 	for 	this 	reason that both 	the
Educational 	Employment 	Relations 	Act 	(EERA or 	Act)1 section
3544.7(b) 	and 	Regulation 	33020 	expressly provide 	that 	the 	window
period 	is 	that period 	" . . . 	which 	is 	less 	than 120 days, 	but
more than 90 days, 	prior to the expiration date 	. 	. 	." of the
agreement 	(emphasis 	added). 	Each extension constitutes 	a
separate new agreement, 	and each 	therefore creates 	its 	own new
and 	separate 	window period.
Finally, 	we 	are 	not persuaded by CSEA's 	further 	argument
that 	adoption of 	its 	interpretation of 	the Act 	is 	necessary 	in
the 	interest 	of 	"stabilized 	employer-employee 	relations." 	To
the 	contrary, 	we 	are more 	concerned with 	"promoting 	improved
personnel 	management 	in the public school 	system" 	(EERA section
3540) 	by protecting 	employees 	against 	the potential
manipulation of 	contract 	durations 	to defeat 	their 	right 	to 	the
free choice of a 	representative.
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to the 	Government 	Code.
W	
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ORDER
Based on the record before 	it, 	the 	Public Employment
Relations 	Board 	ORDERS 	that 	the 	severance petition 	filed by 	the
American Federation of 	State, 	County 	and Municipal 	Employees,
AFL-CIO was 	timely filed, 	DENIES the request 	for stay of
regional 	office 	action made by the 	California 	School 	Employees
Association, 	and DIRECTS the regional office 	to proceed 	in
accordance with 	this 	Decision.
Chairperson Hesse 	and Member 	Morgenstern 	joined 	in 	this
Decision.
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STATE 	OF 	CALIFORNIA 	. 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES REGIONAL OFFICE
3470 WILSHIRE BLVD., SUITE 1001
LOS ANGELES, 	CALIFORNIA 90010
(213) 736-3127
June 26, 1935
Pete Schnaufer, Representative
American Federation of State, County
and Municipal Employees, AFL-CIO
2402 Transit"
Anaheim, CA 	92804
E, Morrow, Personnel Manager
Centralia School District
6625 La Palma Avenue
Buena Park, CA 	90620
California School Employees Association
326 West Katella Boulevard
Orange, CA 	92667
Re: Severance Request, LA-S-102 (LA-R-327)
Centralia School District
Dear Interested Parties:
On April 26, 1985, American Federation of State, County and
Municipal Employees (AFSCME or petitioner), filed a request to sever
an operations-support services unit from a wall classified unit
currently represented by California School Employees Association
(CSEA), at Centralia School District (District). 	On May 17, 1985,
the parties were informed by this office that AFSCME had
demonstrated sufficient proof of support to meet the requirements of
Regulation 33050(b).
The petitioner alleged in its severance request that despite the
existence of a contract between CSEA and the District that extends
until July 31, 1987, the petition should be deemed timely filed as
required by Regulation 33020 due to allegations that the contract
had been "prematurely extended." 	The parties were invited to submit
position papers, facts and legal arguments by June 5, 1985. 	The
results of the parties' statements are outlined below.

June 26, 1985
Centralia USD
Page 2
FACTS
CSEA was recognized as the exclusive representative of all
classified employees by the District on May 4, 1976. 	CSEA and the
District negotiated a three-year collective bargaining agreement
that was to be in effect and force from August 1, 1981 to July 31,
1984. 	In the Fall of 1982 the District and CSEA agreed to change
the term of the contract from August 1, 1982 to July 31, 1985. 	In
the Fall of 1983 the District and CSEA once again agreed to extend
the term of the contract from August 1, 1983 to July 31, 1986.
Finally, in the Fall of 1984 the District and CSEA extended the
contract's effective date from August 1, 1984 to July 31, 1987. 	The
August 1, 1984 - July 31, 1987 contract is currently the effective
contract.
Original Contract 	August 1, 1981 to July 31, 1984
Contract Extension 1 	August 1, 1982 to July 31, 1985
Contract Extension 2 	August 1, 1983 to July 31, 1986
Contract Extension 3 	August 1, 1984 to July 31, 1987
ISSUES
1. 	Do extensions of agreements create new and distinct window
periods each time the contracts are extended?
2. 	Is the instant request filed during an effective window period?
ANALYSIS
Charles Morris' The Developing Labor Law 2nd Ed 1983, Bureau of
National Affairs, p.363, suggests that "(t)he duration dates recited
on the face of a contract are not always determinative, for the
Board will look behind 'inartful drafting' to establish actual
contract duration in the light of bargaining history." 	fa.
Youngstown Osteopathic Hosp. Assn. 216 NLRB 766, 	(1975). 	In this
case it is not the "inartful drafting" that is of concern but the
bargaining history as it relates to the contract duration.
As articulated by the National Labor Relations Board:
The basic purpose of the premature extension doctrine is to
protect employee's freedom of choice in the selection of
bargaining representatives by insuring them the right to select,
reject, or change representatives at reasonable and predictable
intervals of time. 	This policy thus supplements the other
primary purpose of the Act - to promote stability in industrial
relations - by making it possible for employees and rival unions
to determine on the basis of an existing contract when a
question concerning representation may be raised, regardless of
any extension or renegotiations of the contract during its
term. 	Stubnitz Greene Corporation 116 NLRB 967 (1956).

June 26, 1935
Centralia USD
Page 3
The PERB found in Hayward Unified School District, PERB Decision No.
Ad-96, (1980), that it would extend the premature extension doctrine
to protect employees' ". . 	. fundamental right to know when they can
organize to seek a change in their exclusive representative."
The PERB further defined its position recently when in San Francisco
Unified School District PERB Decision No. 476, 	(1984) it stated that:
The premature extension doctrine renders an agreement to
extend a contract invalid as a contract bar in those
instances where the extension eliminates an established
window period during which employees could count on a
time-certain opportunity to exercise a basic but limited
right. 	(footnotes omitted)
The question raised by the instant request is whether the annual
extensions of the contracts between CSEA and the District
established separate and distinct window periods and provided a
time-certain for employees to exercise their rights.
CSEA, in its June 5, 1985 response, argues circuitously that when
the April, 1984 window period closed on the initial three year
contract, and before the additional one year extension was reached
in the Fall of 1984, employees could not have mounted a
decertification drive relying on the 1982-1985 extension because an
extension had already been reached in the Fall of 1983 to extend the
contract until 1986. 	CSEA concedes that a petition filed in the
period from April 3, 1986 through May 1, 1986 will not be barred by
the 1984-1987 contract. 	In other words, employees had the
opportunity to file in the April 1984 window period, have the
opportunity to file in the April, 1986 window period, and if another
one year or more extension is reached before the terms of the
contract become effective, the employees will have the opportunity
to file in the 119-91 day period prior to the expiration of that
contract, if not in 1987.
In a similar decision recently issued by the NLRB, the National
Board found that an extended contract provided its own window period
even if subsequent to the extension but prior to the expiration of
that extended contract the parties entered into another extension
beyond the date of the original extension. 	(See The Hertz
Corporation, 265 NLRB 1127 (1982))
In Hertz, supra, the employer and the union negotiated a three year
agreement effective February 1, 1978 to February 1, 1981. 	In
November 1978 the parties extended the agreement to November 1981.
Before the expiration of the first extension the parties reached a
new agreement effective from February 1, 1981 to November 13, 1984.

June 26, 1985
Centralia USD
Page 4
A bargaining unit member filed a decertification petition on
September 9, 1981, during the window period created by the first
extension. 	The incumbent union wished to bar the petition due to
the February 1981 - November 1984 contract. The NLRB rejected the
contract bar contention, found that the first extension of the
contract created a valid window period, 	and ordered that an election
be conducted. Id. at 1127-28.
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FINDINGS
The annual one year extensions of the contract between CSEA, and the
District created distinct and separate window periods. 	PERB policy
is clear that:
The premature extension doctrine renders an agreement to
extend a contract invalid as a contract bar in those
instances where the extension eliminates an established
window period during which employees could count on a time
certain opportunity to exercise a basic but limited right.
San Francisco Unified School District 	(1984) 	PERB Decision
No. 476.
Therefore, the instant request filed by AFSCME during the window
period of the first extension of the contract Is deemed to be timely
filed.
An appeal of this decision pursuant to PERB Regulation 32350 may be
made within 10 calendar days following the date of service of this
decision by filing an original and 5 copies of a statement of the
facts upon which the appeal is based with the Board itself at 1031
18th Street, Suite 200, Sacramento, CA 	95814. 	Copies of any appeal
must be concurrently served upon all parties and the Los Angeles
Regional Office. 	Proof of service pursuant to Regulation 32140 is
required.
I will contact you shortly in order that we discuss the
appropriateness of the petitioned for unit.
Sincerely,
Robert R. Bergeson
Regional Director
Roger Smith
Labor Relations Specialist
cc: William B. Heath
Steven J. Andelson
Anthony R. Segall
. . . . .