Hayward Unified School District (PERB A096E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
HAYWARD
	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION
	and
	its
	HAYWARD
CHAPTER
	#352,
Employee
	Organization,
and
UNITED
	PUBLIC
	EMPLOYEES,
	SEIU
LOCAL
	390, 	AFL-CIO,
Employee
	Organization.
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_________________
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Case 	No. 	SF-D-54
	(R-lllb)
PERB
	Order
	No. 	Ad-96
ADMINISTRATIVE
	APPEAL
June
	10,
	1980
Appearances:	
Dan
	Cassidy, 	Attorney 	(Paterson	
&	
Taggart)
	for
	Hayward
Unified
	School
	District;
	Stewart
	Weinberg,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg	
&	
Roger)
	for
	United
	Public
	Employees, 	SEIU
Local 	390; 	Steven
T.
	Nutter,
	Attorney
	(California
	School 	Employees
	Association) 	for
California
	School
	Employees
	Association
	and
	its
	Hayward
	Chapter
	#352.
Before
	Gluck,
	Chairperson;
	Gonzales 	and 	Moore, 	Members.
ORDER
The
	California
	School
	Employees
	Association
	and
	its
	Hayward
Chapter
	#352 	(CSEA)
	appeals 	the 	determination 	of 	the
	San
	Francisco
regional 	director 	directing
	a
	decertification 	election
	and
	requests
a
	stay 	of 	the 	election.
	The
	regional 	director
	determined
	that
	a
contract
	between 	the
	CSEA
	and
	the
	district
	did not 	bar
	a
	decerti-
fication 	election petition 	filed
	by
	the 	United 	Public 	Employees,
SEIU 	Local 	390 	(SEIU).

2
Upon
	review
	of
	the
	entire
	record, 	the
	Board
	adopts
	the
Regional
	Director's
	findings
	of
	fact
	and
	conclusions
	of
	law
	as
set
	forth
	in
	the 	attached
	letter.
	The
	Regional
	Director's
decision
	to
	proceed
	with 	the
	decertification 	election
	is
	AFFIRMED.
PER
	CURIAM
2

EDMUND G. BROWN JR., Governor
STAT=
OP C:AllFORNIA
PUBL1C
	EMPLOYMENT !ULATIONS BOARD
.Son
Francisco Regional Office
177 Post St., 9th Floor
Son
Francisco, California
	94108
(415) 557.1350
May
	16,
	1980
-"Mr.
	Jack Weinstein
Hayward
	Unified
	School
	District
24411 Amador
	Street
P.
	0.
	Box 5000
Hayward,
	California
	94544
Mr. 	Dan
	Cassidy, 	Esquire
Paterson
	and
	Taggart
Malag
	Cove Box 1088
Palos
	Verdes
	Estates, 	California·
	90274
v·Mr.	
Bob
	Boileau
California
	School
	Employees
	Association
P.
	0.
	Box 	640
San
	Jose, 	California
	95106
._Mr.
	Jim
Robbins
California
	School
	Employees
	Association
c/o
	Hayward
	Unified
	School
	District
P. 	0.
	Box 	5000
Hayward,
	California
	94540
11s.
	Kathryn
Haymes
United Public
	Employees,
	SEIU
Local
	390
522 	Grand Avenue
Oakland,
	California
	94611
Mr.
	Stewart
	Weinberg,
	Esquire
45
	Polk
	Street
San
	Francisco, 	California
	94102
Re: 	SF-D-54
	(R-lllb).
Dear
	Interested Parties:
·-----·-'--------···--~---·
EOMUNO
G.
BROWN JR.,
Gonrnor
On
	March
	12,
	1980
	the
	San
	Francisco 	Regional 	Office 	received
	a
Decertification Petition filed
	by 	the 	United Public
	Employees,SEIU
	Local 	390, 	AFL-CIO
	(hereafter
·SEIU)for
	the }faintenance 	and
Operations 	Unit
	of 	the
	Hayward
	Unified School
	District 	(hereafter
District).
	The
	current 	exclusive 	representative 	is
	the 	CaliforniaSchool 	Employees
	Association 	and
	its
	Hayward 	Chapter 	f}352
(hereafter
	CSEA). 	Both 	the 	District
	and
	CSEA
	responded
	that
there
	was 	a
	contract 	in place with 	an 	expiration 	date 	of 	June 	30,
1982.
	CSEA
	argued 	the 	contract 	created 	a
	contract 	bar 	and 	thatSEIU's 	petition 	should be 	dismissed.

) 	fih"e-jOM I
Re: 	SF-D-54
	(R-lllB)
An
	administrative 	investigation
	was
	conducted
by
PERB
	agents
on
	behalf 	of
	the
	Regional
	Director
	in
	the
	San
	Francisco
	Regional
Office
	on
	May
	7th
	and
	May
	12th,
	1980.
	The
	parties
	were
	given
full
	opportunity 	to 	present
	any
	relevant
	evidence
	to
	the
	PERB
agents.
ISSUE
The
	issue
	in 	this
	cas.e
	is
	whether
	a
	contract 	currently
	in
effect
	in
	the
	Hayward
	Unified
	School
	District
	between
	CSEA
and
	the
	District
	should
	bar
	a
	decertification
	elec~ion
	petition
filed
	by
	SEIU.
BACKGROUND
	AND
	ANALYSIS
In
	June,
	1977,
	CSEA
was
	recognized
	as
	the 	exclusive
	representative
for
	a
	maintenance
	and
	operat_ions
	unit
	for
	the
	Hayward
	Unified
School
	District.
	A
contract
was
	subsequently
	negotiated
	and
executed
between
	the
	District
	and
	CSEA.
	The
	termination 	date
of 	the 	contract
was
	June 	30,
	1980.
In
	October,
	1978,
	CSEA
	requested
	an
	early 	termination
	of 	the
existing 	contract
	and
	re-negotiation 	of 	three 	areas:
	wages,
fringe 	benefits
	and
	duration 	of 	contract.
	CSEA's
	motivation
·was
	to 	seek	
a new
	contract
	to
	recoup
	losses 	incurred
	due
	to
	the
Proposition
	13 wage
	freeze.
	The
	District
	did not 	agree 	to 	terminate
the 	contract 	prior
	to
	re-negotiating
	a
	successor
	contract.
	However,
on
	October
	20, 	1978
	the
	District
	did 	agree
	to
	negotiate with
CSEA.
It
	was
	the
	District's
	intent
	to 	terminate 	the
	existing 	contractonly
	after
	a
	new·agreement
was
	ratified	
by 	the
	parties.
A	
tentative
	agreement
	was
	reached
	in
	late
	November,
	1978.
	The
new
	contract
	was
	ratified	
by	
CSEA
	during 	the
	week
	of
	December11~ 	1978
	and	
by 	the
	District 	at
	the 	school 	board meeting
	on
December
	18, 	1978.
	The
	effective
	date 	of 	the
	new
	contract
·was
	July 	1,
	1979 	and
	the 	expiration 	date
	,;,,;as
	June 	30. 	1982.
Upon
	execution
	of.the
	new
	contract
	CSEA
	an<l
	the
	District
	agreed
that
	the
	first
	contract
	would
	terminate
	one 	year
	earlier
	than
	itsoriginal 	termination 	date.
	The 	new
	termination 	date
	was 	June
30. 	1979. 	That 	action.
CSEA
	contends,
	·changed
the
	window
	period
of 	the
	first
	contract 	to	
March 	1979
	instead 	of
	March 	1980.
There were 	two
	meetings 	of 	unit
	employees
	called 	for 	the 	purpose
of 	discussing 	the 	re-negotiation 	of 	the 	contract.
	Of
	the 	approxi-
mately 	400
	unit
	members 	only 	15-20 	attended 	the
	first
	meeting 	and
50-75 	attended 	the 	second me~ting.
	CSEA
	claims 	that 	at 	these
meetings 	SEIU
	activists 	were 	notified 	of 	the 	changes 	in 	the window
period; 	however, 	the 	only 	two 	individuals 	specifically named were

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	:oa,..
•
-·
.......
_.
...
..._
..
...,,int.._.
- 	:
...............
	....
---~·-~-
....
Re:.
	SF-D-54
	(R-lllB)
Robert
	Peace 	and 	Johnny
	Harris.
Robert
	Peace
	was
	identified
	by
	CSEA
	as
	a
	former
	officer 	of
SEIU. 	However,
	at
	the
'time
	of
	the
	meetings
	he
	was
	not
	an
officer
	of
	SEIU
nor
	was
	he 	even an
	SEIU member.
	Johnny
	Harris
was
	also
	identified
	as
	a
	former 	steward
	for
	SEIU.
	However,when
	CSEA
was
	recognized
	he
	also
	dropped
	membership
	in
	SEIU.
Harris
	was
	in 	fact
	a 	member
	of
	the
	CSEA
negotiating
	team which
negotiated
	both
	contracts
	with 	the
	District.
A	
second
method
	of 	notifying
	employees
	of
	the
	contract
	changes.
was
	the 	distribution
	and
	pas
ting 	of
	Board
	of
	Education
	agenda.
and 	mir,utes
	of
	the
	December 	18",
	1978 	Board
meeting.
	The
agenda 	and
	the
	minutes·
reflect
	that
	the 	issue
was
	the 	"extension
-
modification 	of 	the 	contract
	between
	CSEA
	4fo352
	(Maintenance
Unit)
	and
	the
	Hayward
	Unified
	School
	District."
A
	third
method
	of notifying
	employees
	was
	the
	distribution
	ofthe
	new
	contract
	to
	employees
	in
	the
	unit.
	The
	District
	sentconies 	of 	the
	new
	contract 	to
	each
	site
	and
	told
	site
	adminis-
trators	
to	
nmake
	them
available"to
	each
	employee.
	The
	District
also 	sent
	copies	
to	
CSEA	
to	
disseminate
	and
	sent notices 	to
each
	site
	to
	be
	posted.
	The
	notices 	told
	employees
	thatnegotiations
	were
	over
	and
	that
	there
	was 	a 	new
	contract.
Although
	the 	notices
	and
	the
	new
	contract
	had 	the
	effectivedates 	of
	the
	ne·w
contract
	on
	it,
	there
	was
	no
	specific
	mention
of 	the
	changes
	in
	the
	window
	period
	and
	the
	effect 	that
	it
	couldhave 	on
	the
	decertification
	process.	
·
CSEA
	argues
	that
	it
had
	a
	right
	to 	terminate 	the
	contract
	by
mutual 	consent,
	that 	notice 	of 	the
	new
	contract
	and
	early
expiration 	date 	for
	the
	first
	contract
	was
	given
	to·
all
	en:i.ployees,
that
	SEIU was
	rot
	deprived 	of
	a 	window
	period 	to
	decertify
CSEA
	and, 	because
	SEIU
had 	adequate 	opportunity 	to
	decertifv
CSEA
	at
	the 	early 	termination 	date 	of 	the
	first
	contract,the 	contract
	should
	act
	as
	a
	bar 	to
	SEIU's
	current 	decertification
petition.
	SEIU on
	the 	other
	hand 	argues
	that
	SEIU
·was
	notgiven 	adequate notice 	of 	the 	changes
	in 	the
	·window
period
	and
	thatthe 	contract
	was
	extended 	prematurely; 	therefore.
	a
	decertification
election
	should be 	ordered.
The
	facts 	of 	the
	employee 	meetings, 	the
	distribution
	of 	school
board 	agendas 	and minutes 	and 	the 	distribution 	of 	the 	contract 	are
not 	sufficient
	to 	support 	the 	argument
	that 	all
	the unit
	members
·were awar·e
	of 	the 	ramifications 	of 	the 	changes 	in 	the
	window
	period.Although 	a
	lack of 	complete 	notice 	to 	employees 	is. supportive 	of
my
	finding,
	it 	is 	not 	essential 	to
	it.

::======-------------Ii·
..
----·
--~--
..
-~··•··
......
-·--••·•·-·	
~
Re:·
	SF-D-54
	(R-lllB)
Government
	Code
	Section
	3544.
7
(b)
	(1)
1
provides
	for
	a
	contract
bar.
	However,
	the well
	established principle
	of
	premature
extension
	provides
	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
	contraGt.
the
	new
	contract
	is
	"premature"
	and
	will
	not 	act
	as
	a
	bar
to
	an
	election.2
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.
In
	this
	case, 	the
	original 	contract 	expiration
	date
	was
	June30, 	1980.
	The
	expiration
	date
	for
	the
	second
	contract
	was
June
	30, 	1982.
	The
	fact 	that
	the
	District
	and
	CSEA
	formally
terminated 	the
	first
	contract
	and
	provided
	for
	an
	earlier
	windo;;,J
period
	does
	not
	alter
	the
	fact 	that
	the
	second
	contract
was
a
	premature 	extension 	of 	the
	first
	contract.
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·
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.
1) 	(b)
	No
	election 	shall
	be 	held
	and
	the
	petition 	shall
	be
	dis-missed whenever:
(1) 	There
	is 	currently 	in 	effect
	a
	lawful ·written agreement
negotiated
	by-
	the 	public 	school 	employer 	and another 	employee
organization 	covering 	any 	employees 	inclu~e~ 	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 	agree~ent; 	or
....
2) 	See 	Deluxe 	Metal 	Furniture 	Company(l958)121 	NLRB
	995,42 	LRRH 1470.

Re:
	SF-D-54
	(R-lllB)
I
	therefore
	find
	that
	the
	second
	contract
	is
	a
	premature
extension 	of
	the
	first
	contract
	and
	should
	not
	act
	as
	a
bar
	to
	SEIU's
	decertification 	petition.
	The
	effect 	of 	the
contract
	as
	a
	binding
	agreement 	between
	the
	parties
	was
not
	in
	issue
	here
	and
my
	ruling
	should
	not
	be
	construed
to
	place
	that 	in 	issue.
A
decertification
	election
	is
	hereby
	directed.	
A	
Regional
Representative
	of 	this 	office will
	contact
	you
	to
	set
	the
details
	of
	the
	election.
An
	appeal.of
	this
	decision
	may
	be
	made
	to
	the
	Board
	itself
within
	10
	calendar
	days
	of 	service
	of
	this 	letter
	by
	filing
a
	statement 	of 	facts
	upon
	which
	the 	appeal
	is
	based
with
the
	Executive
	Assistant
	to 	the
	Board
	at
	923
	12th
Street,
Sacramento,
	California
	95814.
	Copies
	of
	any
	appeal
	must
	be
concurrently
	served
	on
	all
	parties
	and
	the
	San
	FranciscoRegional
	Office.
	Proof
	of 	Service 	of 	the
	appeal
	must
	be
filed
	with 	the
	Executive
	Assistant.
Should you 	have 	any
	questions
	concerning
	this 	matter,
	please
contact
	me.
Very
	truly
	yours,
JAMES
	W.
	T.P>-
..
MM
Regional
	Director
JWT:
ir