Kern High School District (PERB 1319E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ADRIAN 	PIETER MAASKANT,
Charging 	Party,
v.
KERN HIGH 	SCHOOL 	DISTRICT,
Respondent.
) 	Case No. 	LA-CE-3911
PERB Decision No. 	1319
March 19, 	1999
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Appearances: 	Adrian Pieter Maaskant, 	on his 	own behalf;
Carl B. 	A. 	Lange III, 	Director of Labor Relations, 	Schools Legal
Service, 	for Kern High School 	District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	on Adrian 	Pieter Maaskant's
(Maaskant) 	appeal 	from a 	Board administrative 	law judge's 	(ALJ)
order 	granting 	the 	Kern High 	School 	District's 	(District) 	motion
to 	dismiss Maaskant's 	unfair practice 	charge 	and complaint.
Maaskant 	filed 	the 	underlying unfair practice 	charge 	on
March 11, 	1998 	and amended that charge on April 	22, 	1998. 	On
July 22, 	1998, 	the Board's Office of General Counsel 	issued a
complaint based on Maaskant's 	charge. 	The 	complaint 	alleged 	that
the 	District 	violated section 	3543.5(a) 	of 	the Educational
Employment Relations Act 	(EERA)1 when 	it 	refused to 	discontinue
1EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, 	all 	statutory references herein are to
the Government Code. 	Section 3543.5 provides, 	in relevant part:
It shall be unlawful 	for a public school

the 	payroll 	deduction 	that Maaskant 	had 	established 	to 	pay his
membership 	dues 	to 	the 	Kern High 	School 	Faculty Association
(Association). 	On August 13, 	1998, 	the District 	filed an answer
denying 	the 	relevant 	allegations 	and 	asserting 	several
affirmative 	defenses. 	The 	District's 	answer 	also 	contained 	a
motion to dismiss. 	On August 	17, 	1998, 	Maaskant 	filed an
opposition to 	the 	District's motion to 	dismiss. 	On November 	19,
1998, 	the ALJ issued an order 	granting the 	District's motion 	to
dismiss 	on the 	ground that 	the 	complaint 	failed to 	state 	a prima
facie 	case 	for violation 	of 	the 	EERA.
employer to do any of the 	following:
(a) 	Impose or threaten to impose reprisals on
employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because of their exercise of rights
guaranteed by this 	chapter. 	For purposes of
this subdivision, 	"employee" includes an
applicant 	for employment or reemployment.
For 	the 	reasons 	that 	follow, 	we 	reverse 	the 	order 	granting
the motion to 	dismiss 	and remand 	the matter 	to 	the ALJ 	for
further proceedings 	consistent 	with 	this 	decision.
FACTUAL 	FINDINGS
When considering a motion 	to 	dismiss, 	the Board construes
all 	facts 	in 	the manner most 	favorable 	to 	the non-moving party.
(See California State Employees Association 	(Parisi) 	(1989) 	PERB
Decision No. 	733-S 	[treating motion to 	dismiss 	as motion 	for
summary judgment]; 	Los Angeles 	Community College District 	(1983)
PERB Decision No. 	331 	[treating motion to 	dismiss 	as motion 	for
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judgment on the pleadings].) 	Therefore, 	we 	assume 	the 	truth of
the 	following 	allegations.
The 	District 	is 	a public 	school 	employer within 	the meaning
of 	the EERA. 	Maaskant 	is 	a public 	school 	employee within the
meaning of 	the 	EERA. 	The 	District 	and the Association were
parties 	to 	a 	collective bargaining agreement 	(CBA) 	that had a
negotiated term of mid-1995 	through mid-1998. 	The 	1995-98 	CBA
contained 	a 	maintenance 	of membership 	provision 	which permitted
Association members 	to 	resign 	their membership 	only 	during 	the
thirty-day period 	immediately preceding 	the 	expiration 	of 	the
CBA.2 Maaskant became 	a member 	of 	the Association 	some 	time
prior to 	June 	4, 	1997, 	and established a payroll 	deduction to pay
his Association membership 	dues.
On June 	4, 	1997, 	Maaskant 	requested that the District
terminate 	the 	payroll 	deduction 	that 	he 	had 	established 	to 	pay
his Association membership dues. 	Despite Maaskant's 	request, 	the
District 	continued 	to 	deduct Association 	dues 	from Maaskant's
paycheck until May of 	1998.
. In mid-September, 	1997, 	the parties completed negotiations
over 	a 	successor 	CBA. 	Although 	the 	negotiated term of 	the
2Article V, 	Section D of the 	CBA provides:
Commencing 	upon 	ratification 	of 	this
Agreement 	and terminating 	30 	days 	prior 	to
the expiration of this Agreement, 	any
employee who 	is 	a member or who becomes 	a
member 	of 	the Association 	shall 	be 	required
to maintain membership 	in 	the Association 	for
the 	term of 	this Agreement.
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existing 	CBA ran until mid-1998, 	the 	term of 	the 	successor CBA
ran 	from Fall 	1997 	through mid-2000. 	The provisions 	of 	the 	1997-
2000 	CBA superseded the 	provisions 	of 	the 	1995-98 	CBA.
On September 29, 	1997, 	Maaskant 	again requested that 	the
District 	halt 	his 	dues 	deduction. 	The 	District 	again 	refused to
do so.
ORDER 	GRANTING 	MOTION 	TO DISMISS
EERA permits 	a public 	school 	employer 	and 	an 	employee
organization to 	agree, 	in writing, 	that members 	of the employee
organization must, 	as 	a condition of employment, 	maintain their
membership 	in 	the 	employee 	organization 	during 	the 	term of 	the
written agreement. 	(EERA sec. 	3540.1(i) (I).)3 Such an
arrangement 	is 	commonly 	referred to 	as 	a maintenance 	of
membership provision. 	A maintenance 	of membership provision may
not 	deprive 	employees 	of 	their 	right 	to 	terminate 	their
membership 	during 	the 	30-day period 	following 	the 	expiration 	of
3EERA section 3540.1 provides, 	in relevant part:
(i) 	"Organizational 	security" means either of
the 	following:
(1) 	An arrangement pursuant to which a public
school 	employee may decide whether or not to
join an employee organization, 	but which
requires him or her, 	as a condition of
continued employment, 	if he or she does join,
to maintain his or her membership in good
standing for the duration of the written
agreement. 	However, 	no such arrangement shall
deprive the employee of the right to terminate
his 	or her obligation to the employee
organization within a period of 30 days
following the 	expiration of a written
agreement.
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the 	agreement 	containing 	the maintenance 	of membership provision,
(Id.) 	Based on the 	foregoing, 	the ALJ concluded that 	there was
no 	question 	that Maaskant 	was 	entitled 	to 	terminate 	his
membership 	in 	the Association. 	The 	only question was 	when
Maaskant 	could 	terminate 	his 	membership.
Although 	this 	case presents 	a novel 	question, 	the Board has
addressed a 	similar 	issue 	in 	the 	decertification 	context.
Pursuant 	to 	EERA section 	3544.7,4 the 	Board will 	dismiss 	any
representation petition 	filed during 	the 	term of 	a 	lawful 	CBA
unless 	that petition is 	filed less 	than 	120 	days, 	but more 	than
90 	days, 	prior 	to 	the 	expiration of the CBA. 	An unusual
situation 	arises 	where 	the 	employer 	and 	the 	exclusive
representative 	negotiate 	a 	successor 	CBA that becomes 	effective
more 	than 	120 	days 	prior 	to 	the 	expiration of 	the 	initial 	CBA,
potentially 	foreclosing 	the window period 	for 	the 	filing 	of 	a
decertification petition. 	(See 	Butte 	County Superintendent 	of
Schools 	(1983) 	PERB Decision No. 	338 	(Butte); 	Hayward Unified
4Section 3544.7 provides, 	in relevant part:
(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 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.
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School District 	(1980.) 	PERB Order No. Ad-96 	(Hayward) .)
In 	order 	to prevent 	an 	employer 	and an 	employee 	organization
from 	colluding 	to 	prevent 	employees 	from petitioning 	for 	a 	change
in 	representation, 	the Board adopted the 	"premature 	extension"
doctrine. 	(Butte, 	regional dir. 	dec. 	at p. 	3; 	Hayward, 	regional
dir. 	dec. 	at p. 	4.) 	The premature extension doctrine provides
that 	an 	early CBA extension 	does 	not 	alter 	the 	window period 	for
filing 	a 	decertification petition 	under 	EERA section
3544.7(b)(1). 	(Butte, 	regional dir. 	dec. 	at p. 	3.) 	Accordingly,
the 	Board will 	not 	dismiss 	a 	representation petition 	that 	is
filed more 	than 	90 	days but 	less 	than 	120 	days prior 	to 	the 	date
that 	the 	initial 	CBA would have 	expired 	absent 	any 	action by 	the
parties. 	(Id.)
-
In 	ruling on the motion to 	dismiss, 	the ALJ concluded that
the 	Board's 	decision 	in Butte 	controlled the 	result 	in 	this 	case.
Accordingly, 	the ALJ held that Maaskant 	could not 	resign his
Association membership 	or 	curtail 	his 	dues 	deduction until 	the
negotiated 	term of 	the 	1995-98 	CBA ended 	in mid-1998. 	Since 	the
charge 	and 	complaint 	allege 	that 	the 	District 	violated 	the 	EERA
by continuing to withhold Maaskant's 	dues 	until May of 	1998, 	the
ALJ held that 	the 	complaint 	did not 	state 	a prima 	facie 	case 	for
violation 	of 	the 	EERA and 	granted 	the 	District's 	motion 	to
dismiss.
MAASKANT'S 	APPEAL
Maaskant's 	appeal 	essentially 	challenges 	the ALJ's
application of 	the 	doctrine 	of premature 	extension. 	Maaskant
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contends 	that 	the Association 	and 	the 	District 	effectively
terminated 	the 	1995-98 	CBA when 	they 	ratified 	the 	1997-2000 	CBA.
Accordingly, 	Maaskant 	argues 	that 	EERA section 	3540.1(i)(1)
entitled him to 	rescind his Association membership 	within 	30 	days
after 	the 	1997-2000 	CBA became 	effective.
DISTRICT'S 	RESPONSE
The 	District 	responds 	that Maaskant misunderstands 	the
application 	of 	the premature 	extension doctrine. 	Specifically,
the 	District 	argues 	that Maaskant's 	appeal 	fails 	to 	address 	the
distinction between 	the 	expiration 	and 	the 	termination 	of 	a 	CBA.
The 	District posits 	that, 	although' the 	1997-2000 CBA resulted in
the 	termination of 	the 	1995-98 	CBA, 	it 	did not 	alter 	the
expiration 	date 	of 	the 	1995-98 	CBA. 	The 	District 	concludes 	that
Maaskant 	did not 	have 	the 	right 	to 	terminate 	the 	deduction of his
dues until June 30, 	1998.
DISCUSSION
EERA requires 	that 	a maintenance 	of membership provision be
part 	of 	a valid written 	agreement 	between 	a public 	school
employer 	and an employee 	organization. 	(EERA sec. 	3540.l(i)(1).)
When 	the 	written 	agreement 	containing 	the maintenance 	of
membership provision ceases 	to have 	effect, 	the maintenance 	of
membership provision no 	longer binds 	members 	of 	the 	employee
organization. 	For the reasons 	that 	follow, 	we decline 	to 	expand
the 	premature 	extension 	doctrine 	to 	cover 	EERA section
3540.l(i) (1). 	Accordingly, 	we conclude that the thirty-day
period 	for 	resigning membership begins 	to 	run 	on 	the 	date 	when
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the 	written 	agreement 	containing 	the maintenance 	of membership
provision 	ceases 	to have 	effect, 	either 	through the passage 	of
time 	or 	through 	some 	affirmative 	action of 	the parties.
As 	the ALJ noted, 	the 	Board has 	held that 	the premature
extension of 	a 	CBA does 	not 	change 	the window period 	for 	filing 	a
decertification petition. 	(Butte, 	regional dir. 	dec. 	at p. 	3;
see EERA sec. 	3544.7.) 	Although this 	case presents 	a 	facially
similar 	situation, 	the policy concerns 	that 	necessitated the
adoption 	of 	the 	premature 	extension 	doctrine 	in 	the
decertification 	context 	are 	absent 	here.
In 	order 	to preserve 	the 	stability of 	the 	relationship
between 	the 	exclusive 	representative 	and the 	employer, 	EERA
section 	3544.7 	precisely defines 	the 	period 	during which 	a 	rival
employee 	organization may 	file 	a petition 	to 	decertify 	the
exclusive 	representative. 	Subjecting 	an 	exclusive 	representative
to 	the possibility of continual, 	yet unpredictable,
decertification 	attempts 	would 	create 	instability 	and 	diminish
the 	chances 	of 	establishing 	an 	effective 	bilateral 	relationship.
The 	window period 	is 	precisely defined 	to provide 	advance 	notice
to 	all parties 	(the employer, 	the exclusive representative, 	any
potential 	rival 	employee 	organizations 	and the 	employees) 	of 	the
specific 	timeframe 	in which 	a 	decertification petition must 	be
submitted.
In Butte, 	the Board balanced the 	need 	for 	a 	stable
bargaining 	relationship 	against bargaining unit 	employees' 	right
to 	choose 	their 	representative 	for 	all 	purposes 	relating 	to
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collective bargaining. 	The Board determined that, 	when an
employer 	and 	an 	exclusive 	representative 	enter 	into 	a 	successor
CBA during 	the 	negotiated 	term of 	an 	existing 	CBA, 	the 	window
period 	in which 	a 	decertification petition may be 	filed does 	not
change. 	It 	remains 	the 	defined period based on 	the 	expiration
date 	of the 	original 	CBA. 	In this way, 	parties 	are prevented
from 	agreeing 	to 	premature 	contract 	extensions 	in 	order 	to
eliminate 	the 	decertification window period.
Importantly, 	the 	window period 	contained 	in EERA section
3544.7 	does 	not 	depend on 	any 	specific provision of 	the parties'
CBA. 	It 	is 	defined 	solely by the 	negotiated expiration date 	of
that 	CBA.
Section 3540.1 (i) (1) 	presents an entirely different
situation. 	Pursuant to section 3540.1 (i) (1), 	an employer and an
exclusive 	representative may agree, 	in writing, 	that 	individual
employees 	who 	are members 	of 	the 	union must maintain 	their
membership 	for 	as 	long 	as 	the 	written 	agreement 	remains 	in
effect. 	Absent 	such an agreement, 	employees have 	the 	right 	to
terminate 	their 	union membership 	at 	any 	time 	at 	their 	individual
discretion. 	Since maintenance 	of membership 	relies 	on 	the
effectiveness 	of 	a written agreement, 	and since 	individual
employee 	action 	is 	required to 	terminate membership, 	the
considerations 	that 	led the 	Board to 	adopt 	the premature
extension 	doctrine 	with 	regard 	to 	the 	decertification petition
window period do not 	exist here. 	Instead, 	EERA section
3540.1(i)(1) 	requires 	employees 	to maintain union membership
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during 	the period 	in which 	they 	are mandated to 	do 	so by 	a
specific 	CBA provision. 	When 	that provision ceases 	to 	have
effect 	for 	any reason, 	employees 	are 	free 	to 	terminate 	their
membership 	for 	a period of 	at 	least 	30 	days. 	(EERA sec.
354 0.1(i)(1).) 	Thus, 	when a CBA containing a maintenance of
membership provision 	is 	superceded by a 	new 	agreement, 	the
membership 	termination window 	is 	activated.
We 	conclude 	that 	the premature 	extension doctrine 	does 	not
apply to maintenance 	of membership 	agreements. 	Further, 	we hold
that 	a maintenance 	of membership provision may not 	continue 	to
bind members 	beyond the 	life 	of 	the 	agreement 	in which 	it 	is
contained. 	Accordingly, 	a maintenance 	of membership 	arrangement
expires 	within 	the meaning of EERA section 	3540.1(i)(1) 	when 	the
written 	agreement 	in which 	it 	is 	contained ceases 	to 	have 	effect,
either 	through 	the 	passage 	of 	time 	or 	through 	some 	affirmative
action of 	the parties.
ORDER
The 	District's motion 	to 	dismiss 	is 	hereby DENIED 	and the
matter 	is 	REMANDED 	to 	the ALJ 	for 	further proceedings 	consistent
with this 	Decision.
Chairman 	Caffrey 	and Member Amador 	joined 	in 	this 	Decision.
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