Downey Unified School District (PERB A097E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
DOWNEY 	UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
LOS 	ANGELES 	CITY AND 	COUNTY
SCHOOL EMPLOYEES 	UNION, 	LOCAL 	99,
Employee 	Organization,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	DOWNEY
CHAPTER 	J248,
Employee 	Organization.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
__________________ )
Case 	No. 	LA-R-346B
PERB 	Order 	No. 	Ad- 97
ADMINISTRATIVE 	APPEAL
September 	10, 	1980
Appearances: 	.Linda 	Jenson 	Paterson, 	Attorney 	for 	Downey
Unified 	School 	District; 	Jeff 	Paule, 	Attorney 	(Geffner 	&
Satzman) 	for 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 	99; 	Steven Nutter, 	Attorney 	(California 	School
Employees 	Association) 	for 	California 	School 	Employees
Association 	and 	its 	Downey 	Chapte.r 	iJ:248.
Before 	Gluck, 	Chairperson 	and 	Moore, 	Member.
DECISION AND 	ORDER
The 	Los 	Angeles 	City 	and 	County 	School 	Employees 	Union,
Local 	99, 	Service 	Employees 	International 	Union, 	AFL-CIO,
(hereafter 	Local 	99 	or 	SEIU) 	has 	appealed 	the 	determination 	of
the 	Los 	Angeles 	regional 	director 	who, 	following 	a 	full 	hearing
on 	the 	matter, 	ruled 	that 	a 	decertification 	petition 	filed 	by
the 	California 	School Employees 	Association 	(hereafter 	CSEA)

and 	its 	Downey 	Chapter 	1248 	was 	timely 	filed 	and 	not 	barred
pursuant 	to 	provisions 	of 	section 	3544.7 (b) (1) 	of 	the
Educational 	Employment 	Relations 	Act 	(hereafter 	EERA).
In 	accordance 	with 	the 	discussion 	below 	we 	affirm 	the
determination 	of 	the 	regional 	director 	as 	set 	forth 	in 	the
attached 	decision.
DISCUSSION
In 	this 	appeal 	SEIU urges 	that 	CSEA's 	petition 	for 	a
decertification 	election 	is 	barred 	by 	an 	alleged 	contract
between 	SEIU and 	the 	Downey 	Unified 	School 	District 	(hereafter
District).
Unlike 	the 	National 	Labor 	Relations 	Act 	(hereafter 	NLRA),
EERA 	contains 	specific 	language 	definin~ 	the 	circumstances 	in
which 	a 	decertification 	petition 	will 	be 	barred.
Section 	3544.7 	reads 	in 	relevant 	part:
(b) 	No 	election 	shall 	be 	held 	and 	the
petition 	shall 	be 	dismissed 	whenever:
(l) 	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 	describea•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; 	.••
The 	petitioner, 	CSEA, 	argues 	that 	the 	cardinal 	requirement
for 	a 	contract 	bar 	has 	not 	been 	met 	in 	this 	instance 	because
there 	is 	no 	evidence 	of 	the 	existence 	of 	a 	written, 	signed
agreement 	between 	SEIU 	and 	the 	District 	at 	the 	time 	CSEA 	filed
2

the
	decertification
	petition.
	A
complete
	contract
	signed 	only
by
	the
	District
	on
	September
	17,
	1979 	was
	put
	into
	evidence
	at
the
	hearing.
	Other
	testimony
	indicated
	that
	SEIU and
	the
District
	had
	tentatively
	signed
	off
	on
	all
	of 	the
	provisions
	of
this
	contract.
It
	is
	unnecessary
	to
	decide 	here
	whether
	the
	series
	of
"signed-off" 	provisions
	constitutes
	a
	lawful
	written
	agreement
within
	the
	meaning
	of
	the
	statute,
	for 	the 	question 	of 	the
validity
	of
	the
	contract 	turns,
	in
	this
	case,
	on
	whether
	it
	was
ratified.
	By
	written
	and
	signed
	ground
	rules,
	the
	parties
agreed
	that
	"all
	agreements 	reache~
	by
	the
	negotiating
	teams
for
	the
	District
	and
	for 	Local 	99,
	shall
	be
	tentative
	until
ratified
	by
	the
	union
	and
	the
	District, 	respectively. 	.
Thus,
	by
	the 	terms
	of
	the
	parties'
	own
	agreement, 	the
	contract
could 	not
	become
	operative
	until
	it
	was
	ratified
	by
	both
	SEIU
and
	the
	District.
"l
2
lsEIU
	Exhibit 	1.
we
	note
	that
	the 	hearing
	officer's
	representation 	of
	the
rule 	in
	Appalachian 	Shale 	Products
	Co. 	(1958) 	121
	NLRB
	1160 	[42
LRRM
	1506]
	is 	incorrect.
	(See
	Hearing
	Officer's
	Proposed
Decision, 	p.
	8).
	The
	rule
	is"
...
	only
	where
	the
	written
contract
	itself
	makes
	ratification
	a
	condition 	precedent 	to
contractual 	validity 	shall
	the
	contract
	be 	no
	bar
	until
ratified" 	at
	p.
	1162 	(emphasis 	added).
	We
	note
	that
	ourapproach 	to
	this
	case
	differs
	from
	the 	Appalachian 	Shale
	rule.
Our
	experience 	to 	date 	does 	not 	persuade 	us
	that
	it
	isnecessary 	to 	adopt
	that 	rule.
	Where
	there 	is
	ample 	and
unchallenged 	evidence
	that 	the 	parties 	agreed,either
	by
	written
2
3

Although
	SEIU and
	the
	District
	claim
	that
	the
	first
ratification
	vote 	taken
	before
	CSEA
	filed
	its
	petition
	operates
to
	bar
	the
	petition,
	we
	find
	to 	the
	contrary.
	SEIU's
	intention
to
	cancel 	the
	first
	vote
	is
	evident
	from
	its
	written,request
that
	the
	District
	not
	sign 	the
	agreement
	until
	a
	second
ratification
	vote
	could
	be
	taken.	
That
	a
	second
	vote
	in
fact
	occurred
	also 	points
	to 	the
	nullification
	of
	the
	first.
The
	evidence
	does
	not
	establish 	that
	the
	employees 	were
informed
	that
	this
	second
	vote
	was
	for
	any
	other
	purpose 	than
actual
	ratification
	or
	rejection.
3
These
	events,
	combined
	with 	the
	fact 	that
	SEIU
	failed
	to
sign
	the
	contract
	on
	September
	17 	when
	the
	District
	signed
	it,
provide 	convincing 	evidence
	that
	SEIU
did
	not
	want
	the
ground
	rules
	or
	by a
	provision 	in 	the 	negotiated
	collective
bargaining
	agreement
	itself,
	that 	ratification
	was 	a
	conditionprecedent 	to 	the
	agreement,
	we
	discern
	no
	reason
	to 	distinguish
between 	ground
	rules
	and
	contract 	provisions.
	Both
	constitute
agreements
	between
	the
	parties,
	and
	both 	should
	be
	considered
when
	deciding
	whether
	actions
	by
	the
	parties 	constitute
	a
	bar.
3The
	letter
	to 	the
	District
	reads:
Because
	of 	the 	recent mail
	ballot 	election,
it
	appears 	as 	though
	there
	has
	been 	some
confusion
	on
	behalf of
	our
	members 	on 	what
is
	or
	is
	not
	part 	of 	the 	negotiated
settlement. 	Therefore,
	we
	must
	take 	the
settlement 	to
	an 	open meeting 	where
	all
questions
	and
	concerns 	can 	be 	answered
	in
	a
clear
	and
	concise
	manner 	and
	another
	secret
ballot 	ratification
	vote 	taken.
4

agreement
	formalized 	in
	any 	manner
	until
	the
	second
ratification.
	Against
	this
	written
	and
	specific
	evidence,
Prete's
	testimony
	of 	his 	intention
	or 	understanding
	of 	the
purpose
	of 	the
	second
	vote
	is
	not
	persuasive.
Consequently,
	we
	find
	that
	there
	was 	no
	agreement
	in
	effect
between
	the
	parties
	at
	the
	time
	the
	decertification 	petition
was
	filed.
	The
	decision 	of
	the
	regional
	director 	is
	hereby
AFFIRMED.
PER
	CURIAM
5

PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF 	CALIFORNIA
DOWNEY UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
LOS 	ANGELES 	CITY 	AND 	COUNTY
SCHOOL 	EMPLOYEES 	UNION, 	LOCAL 	99,
Employee 	Organization,
and
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	DOWNEY
CHAPTER 	#248,
Employee 	Organization.
)
}
)
)
)
)
)
}
)
)
)
)
)
)
)
)
)
)
__________________ )
Representation
Case 	No. 	LA-R-346B, 	D-48
ORDER GRANTING 	PETITION
FOR 	DECERTIFICATION
(4/14/80)
Ap~earances: 	Linda 	Jenson 	Paterson, 	Attorney 	for 	Downey
Uniried 	School 	District; 	Jeff 	Paule, 	Attorney 	(Geffner 	&
Satzman) 	for 	Los 	Angeles 	City 	and 	County 	School 	Employees
Union, 	Local 	99; 	and 	Steven 	Nutter, 	Attorney 	for 	California
School 	Employees 	Association 	and 	its 	Downey 	Chapter 	J248.
Before: 	Bruce 	Barsook, 	Hearing 	Officer
INTRODUCTION
On October 	5, 	1979 	the 	California School 	Employees
Association 	and 	its 	Downey 	Chapter 	i248 	(hereafter 	CSEA} 	filed
a 	decertification 	petition 	pursuant 	to 	section 	3544.S(d) 	of 	the
Educational 	Employment 	Relations 	Act 	(hereafter 	EERA)l 	for 	a
lThe 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540

classified
	employees
	operations-support
	unit 	of 	the
	Downey
Unified
	School
	District
	(hereafter
	District).
2
et
	seq. 	All 	section 	references
	are
	to
	the
	Government 	Code
unless
	otherwise
	indicated.
Sec.
	3544.S(d)
	provides:
A
petition
	may
	be
	filed
	with 	the 	board,
	in
accordance 	with
	its
	rules
	and
	regulations,
requesting
	it
	to
	investigate
	and
	decide
	the
question
	of
	whether 	employees 	have
	selected
or
	wish
	to
	select
	an
	exclusive
representative
	or
	to
	determine 	the
appropriateness 	of
	a
	unit,
	by:
(d)
	An
	employee
	organization 	alleging 	that
the
	employees
	in
	an
	appropriate 	unit
	no
longer
	desire
	a
	particular
	employee
organization
	as
	their
	exclusive
representative,
	provided
	that
	such
	petition
is
	supported
	by
	current
	dues
	deduction
authorizations
	or
	other
	evidence
	such 	as
notarized
	membership
	lists,
	cards,
	or
petitions
	from 	30
	percent 	of
	the
	employees
in 	the
	negotiating 	unit 	indicating
	support
for
	another
	organization
	or 	lack 	of 	support
for 	the
	incumbent
	exclusive
	representative.
The
	unit
	is
	presently
	composed
	of 	the 	following
classifications:
	All 	regular 	full-time
	and
	part-time
classified
	employees
	serving 	in
	the 	following
	positions:Senior
	Lead
	Custodian,
	Lead
	Custodian,
	Utility
Worker,
	Athletic
Equipment
	Attendant, 	Custodian,
	Lead
	Groundskeeper, 	Maintenance
Groundskeeper,
	Ground 	Equipment
	Operator, 	Groundskeeper, 	Lead
Equipment 	Mechanic, 	Equipment 	Mechanic, 	Bus
	Driver/Trainer,Senior
	Bus
	Driver,
	Equipment
	Attendant,
	Bus
	Driver, 	Vehicle
Operator, 	Senior 	Stock
	Clerk,
	Stock
	Clerk,
	Lead 	Maintenance
Worker, 	Air 	Conditioning
	and
	Refrigeration
	Mechanic,
Maintenance
	Electrician,
	Maintenance
	Electronics 	Technician,Maintenance 	Plumber, 	Locksmith, 	Maintenance 	Welder,
	Glazier,
Maintenance 	Carpenter, 	Maintenance
	Painter,
	Maintenance
Machinist, 	General 	Maintenance Worker,
	Skilled
	Trades 	Helper,
Lifeguard
	and 	Pool Attendant.
2
2

CSEA 	alleges 	that 	a 	written 	agreement 	entered 	into 	between
the 	District 	and 	the 	Los 	Angeles 	City 	& County 	School 	Employees
Union, 	Local 	99 	(hereafter 	SEIU 	or 	Local 	99) 	for 	the 	term
March 	6, 	1978 	to 	June 	30, 	1979, 	expired 	and 	that 	no 	successor
agreement 	was 	reached 	before 	CSEA's 	decertification 	petition
was 	filed.
The 	District 	and 	SEIU 	deny CSEA's 	allegations 	and 	assert
that 	there 	is 	a 	two-year 	agreement 	ending 	in 	1981 	which 	bars
CSEA 	from 	filing 	a 	decertification 	petition. 	As 	a 	result, 	the
regional 	director 	has 	instituted 	a 	hearing 	to 	ascertain 	the
relevant 	facts.
The 	hearing 	in 	this 	matter 	was 	held 	on January 	14, 	1980 	and
post-hearing 	briefs 	were 	filed .by 	the 	District 	and 	CSEA 	on
March 	7, 	1980.
ISSUE
1. 	On 	the 	date 	CSEA 	filed 	its 	decertification 	petition 	did
a 	written 	agreement 	exist 	between 	the 	District 	and 	SEIU 	which
would 	thereby 	constitute 	a 	bar 	to CSEA's 	decertification
petition?
DISCUSSION
Factual 	Background
In 	April 	1979 	the 	District 	and 	SEIU 	began 	negotiations 	for
a 	successor 	to 	their 	1978-79 	agreement. 	Ground 	rules 	were
adopted 	and 	provided 	that 	"all 	agreements 	reached 	by 	the
3

negotiating
	teams
	for 	the
	District
	and
	for
	Local 	99,
	shall
	be
tentative 	until 	ratified
	by
	the
	Union 	and
	District,
respectively."
Negotiations
	continued 	through 	the
	summer.
	On
August 	20,
	1979
	negotiations
	broke
	down
	when
	the
	District's
final
	proposal
	was
	rejected
	5-2
	by
	SEIU's
	negotiating
committee.
	Nevertheless, 	Pat
	Prete,
	SEIU
	business 	agent
	and
chief
	negotiator
	for
	the 	union,
	tentatively
	agreed
	to 	the
District's
	proposal
	on 	August 	22.
In
	accordance 	with
	an
	agreement
	with
	members
	of
	the
	SEIU
negotiating
	committee,
	Prete 	prepared
	a 	summary
	of 	the
tentative
	agreement. 	This
	summary,
	along 	with 	the 	mail
	ballot
for 	the
	contract
'ratification
	election,
	was
	sent 	to
	SEIU
members 	on August 	29.
Upon
	receiving
	a 	copy
	of
	the
	August
	29
	letter,
Frank
	Latino,
	a 	member
	of 	the
	SEIU
	nego,tiating 	committee,
contacted
	Howard
	Friedman,
	secretary-treasurer
	of
	SEIU,
	Local
99,
	to
	voice
	some
	concerns
	he 	had
	with
	Prete's
	summary
	of 	the
tentative
	agreement.
	It
	was 	Mr.
	Latino's 	position 	that 	Prete
had
	failed
	to 	provide
	him
	with
	an 	advance 	copy
	of 	the
	summary
as
	Prete
	had 	promised 	and
	that
	the
	summary
	itself
	contained
	a
number
	of 	misrepresentations.
Mr. 	Friedman 	responded
	that
	because
	Prete
	was 	on
	vacation
any
	solution 	of 	the 	problem 	would 	have
	to 	wait
	until 	after 	the
ratification
	vote.
	If
	the 	agreement 	were 	not
	ratified 	that
4

would
	end
	the
	problem, 	but
	if
	it
	passed,
	Mr.
	Friedman
indicated
	he 	would
	have
	to
	make 	a
	decision
	on 	what
	to
	do
	next.
On
	September
	12,
	1979,
	the
	ballots
	were
	counted
	and
	the
vote
	was
	in
	favor
	of
	ratification.
	Prete
	advised 	the
	District
by
	phone
	of 	the
	ratification.
The
	following
	Sunday 	a
	meeting
	was
	held 	with
	Prete,
Friedman,
	and
	the
	entire
	negotiating
	committee.
	The
	result
	of
the
	meeting
	was
	that
	on Monday,
	September
	17,
	Mr.
	Friedman
decided
	that
	it
	would 	be
	in
	the
	best
	interests
	of
	the
	union
	if
a
	second
	ratification
	vote
	were
	held.
That 	evening
	the
	District
	was
	scheduled
	to
	ratify
	the
agreement
	and
	both
	sides
	were
	expected
	to 	sign
	the
	agreement
immediately
	thereafter.
	However, 	SEIU 	had
	determined
	that
	it
would
	not
	sign 	the
	agreement
	until
	a
	second
	ratification
	vote
was
	conducted
	and
	in
	a
	letter
	to 	the
	District
	SEIU
	requested
that
	the
	District
	not
	ratify
	the
	agreement
	that
	evening.
	The
letter
	reasons
	that:
Because
	of 	the
	recent
	mail
	ballot 	election,
it
	appears 	as 	though
	there
	has 	been
	some
confusion
	on
	behalf 	of
	our
	members 	on 	what
is
	or
	is
	not
	part
	of 	the 	negotiated
settlement. 	Therefore,
	we
	must
	take 	the
settlement 	to
	an 	open meeting
	where
	all
questions
	and
	concerns 	can
	be 	answered
	in
	a
clear
	&
concise
	manner 	and
	another
	secret
ballot 	ratification
	vote 	taken.
Nevertheless, 	the
	District
	proceeded
	to 	ratify
	and
	sign 	the
agreement
	at 	its
	September 	17 	board 	meeting.
	The 	terms 	of 	the
agreement 	were 	implemented 	the 	next 	day, 	September 	18.
5

After 	the
	District's
	ratification
	of 	the
	agreement,
	SEIU
proceeded
	to
	conduct
	a
	second
	ratification
	election.
	A
second
ratification 	letter
	went
	out
	to
	members 	on
	October
	1,
	1979 	and
the
	ballots
	were
	to
	be
	counted
	on
	October 	12, 	1979.
	In
	the
interim,
	CSEA
	filed
	its
	decertification 	petition.
On
	October 	12,
	1979
	the
	ballots
	of 	the
	second
	ratification
vote
	were
	counted
	and
	the 	vote
	was
	again 	in
	favor
	of
ratification.
	Mr.
	Prete
	signed 	the
	agreement
	the
	same
	day.3
Analysis
Section
	3544.7(b)
(1)
	regulates
	the 	processing 	of
	a
decertification 	petition 	filed
	during 	the
	term
	of
	a
	collective
negotiating
	agreement.
	It
	provides
	that:
No
	election 	shall
	be
	held
	and
	the
	petitionshall
	be
	dismissed
	whenever:
(1)
	There
	is 	currently
	in
	effect
	a
	lawful
written
	agreement
	negotiated
	by
	the 	publicschool
	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
	expirationdate 	of 	the 	agreement.
The
	face 	of 	the 	agreement
	indicates 	that
	the
	agreementwas
	signed
	September
	17,
	1979. 	However,
	the
	parties 	stipulated
that
	Mr.
	Prete 	did 	not
	actually 	sign 	the 	agreement
	until
October 	12, 	1979, 	seven 	days
	after
	CSEA's
	petition
	for
decertification
	was
	filed.
3
6

In
	interpreting
	section
	3544.7(b)
(1),
	federal
	precedent
under
	the
	National
	Labor
	Relations
	Act
	(hereafter
	NLRA)4
offers 	significant
	guidance.
Although
	there
	is
	no
	parallel
	language
	under
	the
	NLRA
establishing
	a
	"contract
	bar"
	the
	California
	Supreme
	Court
	has
stated
	that
	where
	the
	NLRA
	does
	not
	contain
	specific
	wording
comparable
	to 	the
	state 	act,
	if
	the
	rationale 	that
	generated
the
	language
	"lies
	imbedded
	in 	the
	federal
	precedents
	under
	the
NLRA"
	and
	"the 	federal 	decisions
	effectively
	reflect
	the
	same
interests
	as
	those
	that
	prompted
	the
	inclusion 	of
	the 	[language
in
	the
	EERA],
	[then]
	federal
	precedents 	provide
	reliable
	if
analogous
	authority
	on
	the
	issue.	
The
	statutory 	"contract
bar"
	language
	contained
	in 	section
	3544.7{b)
(1)
	is
	quite
similar
	to
	the
	contract
	bar
	doctrine
	developed
	by
	the
	NLRB.
	In
addition,
	the
	PERB
	recognized
	in
	its
	decision 	in 	Bassett
Unified
	School
	District
	(3/23/79)
	PERB
	Order
	No. 	AD-63,
	that
NLRB
	precedent 	"serves 	to
	illustrate
	the
	legislative 	intent
underlying 	section
	3544.7(b)
(l).
11
	Consequently,
	it
	is
5
429
	U.S.C.
	sec.
	151
	et
	seq.
Fire 	Fighters
	Union
	v. 	City 	of Vallejo
	(1974) 	12
	Cal.3d
608, 	616, 	617 	[87
	LRRM
	2453].
	See
	also,
	Faeth
	& McCarty
	v.Redlands 	Teachers 	Association 	(9/25/78)
	PERB
	Decision
	No.
	72;
Sweetwater
	Union 	High 	School
	District
	(11/23/76)
	EERB
	DecisionNo. 	4.
5
7

appropriate
	to 	consider
	federal
	precedent
	in
	determining
whether
	a
	contract
	bar
	exists.
The
	purpose
	of 	the
	contract
	bar
	doctrine
	is
	eloquently
stated
	in 	the
	NLRB's
	An
	Outline 	of
	Law
	and
	Procedure
	in
Representation
	Cases:
The
	major
	objective
	of
	the
	Board's
contract-bar 	doctrine
	is
	to
	achieve
	a
reasonable
	balance
	between
	the
	frequently
conflicting
	aims
	of
	industrial
	stability
	and
freedom
	of
	employees'
	choice.
	This
	doctrine
is
	intended 	to
	afford
	the
	contracting
parties
	.and
	the
	employees
	a
	reasonable
period
	of
	stability
	in
	their 	relationship
without
	interruption
	and
	at
	the
	same
	time
	to
afford
	the
	employees
	the
	opportunity,
	at
reasonable
	timesr
	to
	change
	or
	eliminate
their
	bargaining
	representative,
	if
	they
wish
	to
	do
	so.6
In 	order
	to
	bar
	a
	decertification 	petition,
	an
	agreement
must
	be
	written,
	signed
	by
	authorized
	representatives
	of 	both
parties,
	have
	a
	definite
	duration, 	contain
	substantial
	terms
and
	conditions 	of
	employment 	and
	cover
	all
	employees
	in 	the
appropriate 	unit.
	Appalachian 	Shale 	Products
	Co.
	(1958)
	121
NLRB
	1160 	[42
	LRRM
	1506].
In
	addition,
	where, 	as 	here,
	"ratification 	is
	made 	a
condition 	precedent 	to 	contract
	validity, 	failure
	to 	achieve
An
	Outline 	of
	Law 	and
	Procedure 	in ReSresentation 	Cases,
Office 	of 	the 	General 	Counsel, 	National
	La
	or 	Relations
	Board
(1974) 	p. 	74; 	See
	also,
	Union
	Fish
	Co. 	(1965) 	156
	NLRB
	187,
	191[61
	LRRM
	1012]; 	Bassett 	Unified 	School
	District 	(10/9/79)
	PERB
Decision
	No. 	AD-77.
6
8

timely 	ratification 	of 	the 	contract, 	i.e., 	before 	the 	filing 	of
a 	petition, 	will 	remove 	it 	as 	a 	bar." 	Appalachian 	Shale
Products 	Co., 	supra, 	121 	NLRB 	at 	1162.
The 	evidence 	in 	this 	case 	indicates 	that 	although 	the
District 	ratified, 	signed, 	and 	implemented 	the 	agreement 	before
CSEA's 	decertification 	petition 	was 	filed, 	SEIU 	had 	not 	yet
ratified 	the 	agreement. 	Even 	though 	SEIU 	had 	informed 	the
District 	that 	it 	had 	ratified 	the 	agreement 	on September 	12,
1979, 	its 	decision 	to 	hold 	a 	second 	ratification 	vote 	coupled
with 	its 	request 	in 	writing 	to 	the 	District 	prior 	to 	the
District's 	September 	17, 	1979 	board 	meeting 	that 	the 	District
delay 	ratification 	of 	the 	agreement 	pending 	the 	outcome 	of 	a
second 	ratification 	vote 	leads 	one 	to 	conclude 	that 	SEIU 	had
not 	yet 	ratified 	the 	agreement.7 	Consequently, 	because 	the
rn 	his 	testimony, 	Pat 	Prete 	claimed 	that 	the 	first
ratification 	vote 	was 	never 	nullified 	and 	that 	the 	second 	vote
was 	for 	clarification 	purposes 	only. 	This 	claim 	was 	disputed
by 	Frank 	Latino 	who 	testified 	that 	Howard 	Friedman 	called 	him
by 	phone 	and 	told 	him 	that 	the 	first 	ratification 	vote 	had 	been
declared 	"null 	and 	void."
7
Mr. 	Prete's 	claim 	is 	undermined 	by 	his 	own 	admission 	that
SEIU 	would 	not 	sign 	the 	agreement 	until 	after 	the 	second
ratification 	vote 	and 	by 	SEIU's 	attempt 	to 	convince 	the
District 	to 	delay 	its 	ratification 	of 	the 	agreement 	until 	after
the 	second 	ratification 	vote. 	If 	SEIU 	believed 	the 	first
ratification 	vote 	to 	be 	valid 	what 	would 	be 	the 	purpose 	of
holding 	a 	second 	but 	meaningless 	(ratification) 	vote, 	or
refusing 	to 	sign 	the 	agreement 	or 	requesting 	that 	the 	District
9

agreement
	had
	not
	yet
	been
	ratified
	by
	both
	sides,
	there
	was
	no
agreement
	in 	existence
	and
	therefore
	no
	contract
	bar
	exists.
Because
	the
	agreement
	was
	not
	ratified
	in
	a
	timely
	fashion,
	it
need
	not
	be
	determined
	whether
	the
	parties
	had
	signed
	the
agreement
	in
	a
	timely
	fashion.	
Consequently,
	the
	District's
innovative
	argument
	that
	signed
	tentative
	agreements
	coupled
with
	ratification
	by
	the
	parties 	constitutes
	a
	contract
	bar
under
	the 	Appalachian Shale 	standara
8
9	
need
	not
	be
	addressed.
PROPOSED
	ORDER
It
	is
	hereby
	ordered
	that
	the
	decertification 	petition
filed
	by
	the
	California
	School
	Employees
	Association
	and
	its
not
	ratify
	the
	agreement 	pending
	the
	outcome
	of 	the 	second
ratification
	vote.
For
	the
	above
	reasons,
	it
	is
	found
	that
	Mr.
	Latino'sexplanation
	is
	the
	more
	credible
	one.
see 	Appalachian 	Shale 	Products 	Co., 	supra,
	121
	NLRB
	at
1162,
	which
	provides
	that:
S 
[A]
	contract 	to 	constitute
	a
	bar
	must
	be
signed
	by
	all
	the
	parties
	before
	a
	petition
is 	filed
	and
	that
	unless
	a
	contract
	signed
by
	all
	parties
	precedes
	a
	petition,
	it
	will
not
	bar
	a
	petition
	even 	though
	the
	parties
consider
	it
	properly
	concluded
	and
	put
	into
effect
	some
	or
	all
	of
	its
	provisions.
Thus,
	"In 	order 	to 	constitute
	a
	bar
	a
	contract
	need
	not
be 	encompassed
	within
	a
	single
	formal
	document
	but
	may
	consistof
	an 	exchange
	of
	a
	written 	proposal
	and 	a
	writtenacceptance." 	Valley Doctor's 	Hospital, 	Inc., 	d/b/a 	Riverside
Hospital
	(1976) 	222
	NLRB
	907 	[91
	LRRM
	1334].
9
10

Downey
	Chapter
	#248 	was
	timely
	filed
	and
	not
	barred
	pursuant 	to
provisions
	of
	section
	3544.
7 {b)
(1).
This
	Administrative
	Order
	shall
	become
	final
	on
	April
	24,
	1980
unless
	a
	party
	files
	a
	timely 	statement 	of 	exceptions
	and
supporting
	brief
	within 	ten
	(10)
	calendar
	days
	following
	the
date
	of
	service
	of
	this
	Administrative
	Order.
	Any
	statement
	of
exceptions
	and
	supporting
	brief
	must
	be
	actually
	received
	by
the
	executive
	assistant
	to
	the
	Board
	at
	the 	headquarters
	office
in
	Sacramento
	on
	April
	24, 	1980
	in
	order
	to
	be
	timely
filed.
	Any
	statement 	of 	exceptions
	and
	supporting
	brief
	must
be
	served
	concurrently
	with
	its
	filing
	upon
	each
	party
	to
	this
proceeding.
	Proof
	of
	service
	shall
	be
	filed
	with 	the
	Board
itself.
Dated: 	April
	14,
	1980
11
Frances
	A.
	Kreiling
Regional
	Director
By ------=-----=
...........
~==..--~
Bruce
	Barsool<
Hearing
	Officer

PROOF
OF
SERVICE
BY
MAIL
-
	c.c.P.
	1013a
I
	declare
	that
	I
	am
employed
in
the
county
of
Sacramento,
	California.
	I
	am
over
the
age
of
eighteen years
and
not
a
party to
the
within
entitled
cause;
	my
business
address
	is
923 -
	12th
Street,
	Suite
300, Sacramento,
	California
	95814.
On·--A~p.i.ir
...
,
...
·
....
J
__..J
..
4..,.,__.J..;9..i.8.i.i.O"---------' 	I	
served the
__
a_t_t_a_c_h_e_d_O_RD_E_R_G_RA_NTING
PETITION
	FOR
	DECERTIFICATION 	on
	the 	below
	listed 	parties
-------------------
___________________
by
placing
a
true
copy
thereof
enclosed
in
a
sealed
	envelope with
po~tage thereon
	fQlly prepaid,
	in
the
United
States
Mail
at	
Sacramento,
	California	
addressed
as follows:
Linda 	Jenson
	Paterson
4030
	Palos
	Verdes 	Dr.
	North,
	Suite
	207
Rolling
	Hills 	Estates,
	Ca. 	90274
Jeff
	Paule,
	Esq.
Geffner
	& Satzman3055
	Wilshire 	Blvd., 	Suite
	900
Los
	Angeles,
	Ca. 	90010
Steven Nutter,
	Esq.
California
	School
	Employees
	Assoc.
2350
	Paragon 	Drive
P.
	O.
	Box 640
San
	Jose,
	Ca. 	95106
Downey
	Unified 	School
	District
Attn:	
Manuel
	Gallegos,
	Supt.
11627
	Brookshire
	Ave.
Downey,
	Calif.
	90241
Los
	Angeles
	City 	and
	County 	Schoo
Employees 	Union,
	Local
	99
Pat
	Prete, 	Field 	Representative
2724
	W.
	8th
	Street
Los
	Angeles,
	Ca.
	90005
California
	School 	Employees 	Assoc
and
	its
	Dmmey
	Chapter	
{fo248
1120 	So. 	San
	Gabriel 	Blvd.,
	#230
San
	Gabriel,
	Ca.
	91776
I
declare
under penalty of perjury that 	the foregoing
	is
	true and
correct,
	and
that
	this declaration
was executed· on
__
A~p_r_i_1_1_4_..,_1_9_8_0
________
_
at
______________	
Sacramento	
___________
, 	California.
Marie 	S. 	Macaulay
(Type or 	print .name) 	(Signature) ~ERB-11 	(10/76)