State of California (State Employees Trades Council) (PERB 0348S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA,
Employer,
and
STATE 	EMPLOYEES 	TRADES 	COUNCIL,
LIUNA, 	LOCAL 	1268,
Appellant,
and
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Exclusive 	Representative.
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___________________ )
Case 	Nos. 	S-R-723-S
S-SR-12
PERB 	Decision 	No. 	348-S
September 	30, 	1983
Appearances: 	Thomas 	E. 	Rankin, 	Attorney 	for 	State Employees
Trades 	Council, 	LIUNA, 	Local 	1268; 	Deborah 	Warren, 	Attorney 	for
California 	State Employees 	Association; 	Catherine 	C. 	Harris,
Attorney 	for 	State 	of 	California, 	Department 	of 	Personnel
Administration.
Before 	Tovar, 	Jaeger 	and 	Burt, 	Members.
DECISION
TOVAR, 	Member: 	State 	Employees 	Trades 	Council, 	LIUNA,
Local 	1268 	(SETC) 	appeals 	the 	attached 	dismissal 	of 	its
severance 	petition 	by 	the 	Sacramento 	regional 	director 	of 	the
Public 	Employment 	Relations Board 	(PERB 	or 	Board). 	The
regional 	director 	determined 	that 	the 	petitiori 	was 	barred 	under
the 	terms 	of 	subsection 	40260(b) 	of 	PERB's 	rules 	and

regulationsl 	because 	of 	the 	existence 	of 	a 	collectively
negotiated 	contract 	between 	the 	state 	employer 	and 	the
California State Employees Association 	(CSEA), 	the 	exclusive
representative 	for 	the 	bargaining 	unit 	of 	which 	the
petitioned-for 	employees 	are 	members.
We 	find 	that 	the 	regional 	director 	acted 	properly 	in
dismissing 	the 	petition. 	Accordingly, 	we 	deny 	SETC's 	appeal.
FACTS
CSEA 	was 	certified 	on 	July 	10, 	1981 	as 	the 	exclusive
representative 	of 	the 	craft 	and 	maintenance 	employees 	of 	the
lpERB's 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001, 	et 	seq. 	Subsection
40260(b) 	provides 	in 	pertinent 	part:
(b) 	A 	[severance] 	petition 	shall 	be
dismissed 	in 	part 	or 	in 	whole 	whenever 	the
Board 	determines 	that:
. . 	. 	. 	. 	. 	. 	. . . 	. 	.
(2) 	There 	is 	currently 	in 	effect 	a
memorandum of 	understanding 	between 	the
employer 	and 	another 	employee
organization 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	any
employees 	covered 	by 	the 	severance
petition, 	unless 	the 	petition 	is 	filed
less 	than 	120 	days 	but 	more 	than 	90 	days
prior 	to 	the 	expiration 	date 	of 	such
memorandum or 	the 	end 	of 	the 	third 	year
of 	such 	memorandum; 	provided 	that, 	if
such 	memorandum 	has 	been 	in 	effect 	for
three 	years 	or 	more, 	there 	shall 	be 	no
restriction 	as 	to 	time 	of 	filing 	the
petition; 	•••
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State 	of 	California. 	The 	employees 	who 	are 	the 	subject 	of
SETC's 	severance 	petition 	are 	within 	this 	unit.
CSEA 	and 	the 	state 	employer 	began 	negotiations 	in 	December
1981. 	As 	tentative 	agreements 	were 	reached, 	they 	were 	signed
by 	CSEA 	and 	the 	Governor's 	representative. 	The 	final
negotiation 	session 	ended 	on 	June 	24, 	1982, 	and 	all 	tentative
agreements 	were 	signed 	by 	both 	parties. 	These 	agreements 	were
assembled 	as 	a 	memorandum of 	understanding 	(MOU) 	which 	was
presented 	to 	the 	Legislature 	as 	required 	by 	Government 	Code
section 	3517.5, 	and 	was 	approved 	by 	that 	body 	on 	June 	30,
1982. 	The 	Governor 	signed 	the 	bills 	the 	same 	day.
On 	July 	12, 	1982 	SETC 	filed 	its 	severance 	petition 	with 	the
Sacramento 	regional 	office 	of 	this 	agency.
After 	the 	State's 	approval 	of 	the 	MOU, 	a 	ratification 	vote
was 	taken 	by 	the 	CSEA membership. 	The 	ballots 	were 	counted 	and
the 	results 	released 	on July 	20, 	with 	the 	majority 	favoring
ratification. 	Neither 	the 	MOU 	nor 	any 	negotiating 	ground 	rules
stated 	that 	ratification 	by 	the 	membership 	was 	a 	condition
precedent 	to 	effectiveness 	of 	the 	MOU.
The 	formal 	signing 	of 	the 	MOU 	by 	the 	employer 	and 	CSEA 	took
place 	on July 	29, 	1982. 	The 	MOU covers 	substantial 	terms 	and
conditions 	of 	employment 	and 	is 	retroactive 	to 	July 	1, 	1982.
DISCUSSION
In 	ruling 	that 	the 	series 	of 	signed 	and 	adopted 	tentative
agreements 	between 	the 	employees 	and 	CSEA 	constituted 	a
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contract 	"currently 	in 	effect" 	under 	the 	terms 	of 	PERB 	rule
40260(b), 	the 	regional 	director 	relied 	on 	decisions 	of 	the
National 	Labor 	Relations Board 	(NLRB) 	in 	which 	the 	instant
issues 	were 	considered. 	Thus, 	she 	cited 	Appalachian Shale
Products 	Co. 	(1958) 	121 	NLRB 	1160 	[42 	LRRM 	1506] 	in 	support 	of
her 	conclusion 	that, 	although 	the 	contract 	had 	not 	been
ratified 	by 	the 	CSEA membership 	at 	the 	time 	SETC 	filed 	its
petition, 	that 	contract 	was 	nevertheless 	effective 	as 	a 	bar 	to
the 	petition 	because 	there 	was 	no 	evidence 	of 	any 	written
agreement 	between 	the 	parties 	making 	ratification 	a 	condition
precedent 	to 	the 	effectiveness 	of 	the 	contract. 	She 	cited
Gaylord 	Broadcasting 	Co. 	(1980) 	250 	NLRB 	198 	[104 	LRRM 	1360]
and 	Farrel 	Rochester 	Division 	of 	USM Corp. 	(1981) 	256 	NLRB 	162
[107 	LRRM 1358] 	in 	support 	of 	her 	conclusion 	that 	a 	signed 	but
informal 	agreement 	will 	be 	effective 	to 	bar 	a 	severance
petition 	even 	though 	reorganization, 	assembly 	and 	formal
signing 	occur 	only 	after 	the 	date 	of 	filing 	of 	the 	petition.
These 	conclusions 	of 	law 	were 	the 	basis 	for 	the 	regional
director's 	ruling 	that 	SETC's 	petition 	for 	severance 	should 	be
dismissed.
On 	appeal, 	SETC 	argues 	that 	the 	regional 	director 	erred 	in
relying 	on 	decisions 	of 	the 	NLRB 	in 	interpreting 	PERB 	rule
40260. 	The 	NLRB's 	contract-bar 	doctrine, 	points 	out 	SETC, 	is
nowhere 	codified 	in 	a 	federal 	statute 	or 	regulation. 	Rather,
it 	is 	a 	product 	of 	the 	decision-making 	process, 	developed 	by
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that 	agency 	in 	a 	series 	of 	cases. 	Thus, 	argues 	SETC, 	the 	NLRB
has 	been 	free 	to 	develop 	its 	own 	principles 	in 	shaping 	its
contract-bar 	doctrine~ 	PERB, 	on 	the 	other 	hand, 	is 	bound 	by 	the
specific 	language 	of 	rule 	40260. 	That 	language 	flatly 	provides
that 	a 	contract 	must 	be 	"in 	effect" 	before 	it 	will 	bar 	a
severance 	petition. 	While 	CSEA's 	contract 	may 	have 	been
signed, 	asserts 	SETC, 	it 	had 	not 	yet 	been 	implemented, 	and
indeed 	could 	not 	be 	implemented 	until 	ratified, 	as 	required 	by
CSEA 	bylaws. 	Thus, 	it 	was 	not 	"in 	effect."
Contrary 	to 	SETC's 	assertions, 	cases 	decided 	by 	the
California 	courts 	have 	established 	that 	decisions 	of 	the 	NLRB
may 	play 	a 	significant 	role 	in 	arriving 	at 	an 	interpretation 	of
this 	state's 	labor 	enactments.
In 	Social Workers 	Union, 	Local 	535 	v. 	Alameda 	County
Welfare 	Dept. 	(1974) 	11 	C.3d 	382, 	the 	California 	Supreme 	Court
acknowledged 	that 	because 	California 	labor 	relations 	statutes
are 	frequently 	modeled 	upon 	parallel 	federal 	legislation, 	those
federal 	provisions 	are 	relevant 	in 	interpreting 	California's
labor 	laws:
Federal 	labor 	relation 	legislation 	has, 	of
course, 	frequently 	been 	the 	prototype 	for
California 	labor 	enactments, 	and,
accordingly, 	in 	the 	past 	we 	have 	often
looked 	to 	federal 	law 	for 	guidance 	in
interpreting 	state 	provisions 	whose 	language
parallels 	that 	of 	the 	federal 	statutes.
[Citations 	omitted.] 	11 	Cal.3d 	at 	391.
In 	the 	first 	year 	of 	its 	existence, 	in 	Los 	Angeles 	Unified
School 	District 	(11/24/76) 	EERB 	Decision No. 	5, 	this 	Board
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adopted 	the 	policy 	of 	statutory 	interpretation 	articulated 	by
the 	Court 	in 	Social Workers 	Union, 	supra. 	We 	said 	that:
While 	we 	are 	not 	bound 	by 	N.L.R.B.
decisions, 	we 	will 	take 	cognizance 	of 	them,
where 	appropriate. 	Where 	provisions 	of
California 	and 	federal 	labor 	legislation 	are
parallel, 	the 	California 	courts 	have
sanctioned 	the 	use 	of 	federal 	statutes 	and
decisions 	arising 	thereunder, 	to 	aid 	in
interpreting 	the 	identical 	or 	analogous
California 	legislation. 	Alameda 	County
Assistant 	Public 	Defenders' 	Assn. 	v. 	County
of 	Alameda, 	33 	C.A. 	3d 	825, 	829 	(1973); 	Fire
Fighters' 	Union 	v. 	City 	of Vallejo, 	12 	c~
608, 	615-616 	(1974); 	Social Workers 	Union
Local 	535, 	SEIU, 	AFL-CIO 	v. 	Alameda 	County
Welfare 	Dept., 	11 	C. 	3d 	382, 	391 	(1974);
American 	Federation 	of 	State, 	etc.
Employees, 	Local 	685 	v. 	County 	of 	Los
Angeles, 	58 	C.A. 	3d 	601, 	605, 	606 	(1976).
(Los Angeles 	USO, 	supra, 	footnote 	1.)
It 	may 	be 	noted 	that 	both 	the 	Court 	in 	Social Workers 	Union
Local 	535, 	supra, 	and 	this 	Board 	in 	Los 	Angeles 	Unified 	School
District, 	supra, 	expressly 	mention 	only 	the 	value 	of 	parallel
federal 	legislation 	as 	guidance 	in 	the 	interpretation 	of 	this
state's 	labor 	provisions. 	As 	SETC 	emphasizes, 	the 	contract-bar
rule 	applied 	by 	the 	NLRB 	is 	not 	set 	forth 	in 	any 	federal
statute, 	having 	come 	to 	be 	purely 	through 	the 	administrative
decisional 	process. 	It 	may 	be 	argued, 	therefore, 	that 	with 	no
statutory 	language 	to 	compare 	there 	is 	no 	basis 	for 	concluding
that 	the 	contract-bar 	rule 	set 	forth 	in 	the 	rules 	and
regulations 	accompanying 	the 	State 	Employer-Employee 	Relations
Act 	(SEERA) 	should 	yield 	the 	same 	result 	as 	the 	federal
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doctrine.2 	We 	find 	little 	support 	for 	such 	a 	limitation 	on
the 	significance 	of 	federal 	decisions.
In 	Social Workers 	Union, 	supra, 	the 	Court 	noted 	the 	value
of 	federal 	labor 	decisions 	as 	guidance 	in 	the 	interpretation 	of
parallel 	California 	labor 	laws. 	The 	salient 	point 	of 	the
Court's 	discussions 	is 	that 	where 	a 	federal 	rule 	has 	been 	"the
prototype 	for 	California 	labor 	enactments," 	then 	review 	of 	the
federal 	experience 	with 	that 	rule 	will 	be 	beneficial 	in
interpreting 	the 	California 	provision. 	In 	this 	context, 	it
would 	be 	of 	little 	significance 	whether 	the 	federal 	rule 	was
created 	by 	legislative 	action 	or 	via 	the 	decision-making
process, 	so 	long 	as 	it 	appears 	to 	have 	served 	as 	the 	model 	for
the 	State's 	legislation.
Here, 	it 	is 	manifestly 	apparent 	that 	the 	cont~act-bar
doctrine 	developed 	over 	many 	years 	by 	the 	NLRB 	served 	as 	the
model 	for 	the 	parallel 	provisions 	in 	the 	acts 	administered 	by
this 	Board. 	There 	is 	nothing 	expressed 	in 	our 	contract-bar
provisions 	which 	is 	not 	a 	feature 	of 	the 	federal 	doctrine.
2The 	SEERA, 	codified 	at 	Government 	Code 	section 	3512
et 	seq., 	contains 	no 	legislatively-expressed 	contract-bar
rule. 	Rather, 	the 	Legislature 	authorized 	the 	Board, 	at 	section
3520.S(c), 	to 	establish 	procedures 	by 	which 	employees 	can
modify 	the 	representational 	authority 	of 	their 	exlcusive
representative. 	However, 	both 	the 	Educational 	Employment
Relations 	Act 	and 	the 	Higher 	Education Employer- 	Employee
Relations Act 	include 	legislatively-expressed 	contract-bar
provisions 	in 	connection 	with 	decertification 	procedures. 	The
contract-bar 	provisions 	appearing 	by 	statute 	in 	those 	latter
two 	Acts 	are 	the 	same 	in 	substance 	as 	that 	appearing 	at 	rule
40260.
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Consistent 	with 	this, 	we 	have 	several 	times 	already 	availed
ourselves 	of 	the 	guidance 	of 	federal 	decisions 	on 	contract 	bar
questions. 	See, 	e.g., 	Basset 	Unified 	School 	District 	(10/9/79)
PERB 	Order 	Ad-77; 	Downey 	Unified 	School 	District 	(9/10/80) 	PERB
Order 	No. 	Ad-97; 	Butte 	County 	Superintendent 	of 	Schools
(8/22/83) 	PERB 	Decision No. 	338; 	compare, 	State 	of 	California
(Department 	of 	Personnel Administration) 	(7/14/83) 	PERB
Decision 	No. 	327-S.
With 	regard 	to 	the 	instant 	appeal, 	then, 	the 	NLRB's
discussion 	and 	decision 	in Appalachian 	Shale, 	supra, 	is 	highly
instructive. 	In 	that 	case, 	the 	NLRB 	made 	a 	series 	of 	revisions
in 	its 	contract-bar 	rule 	based 	upon 	its 	extensive 	experience 	in
administering 	the 	federal 	labor 	relations 	program 	and 	its
conclusion 	that 	"every 	effort 	should 	be 	made 	to 	eliminate 	the
litigation 	of 	factual 	issues 	such 	as 	these 	in 	representation
cases •••• "
While 	our 	experience 	in 	administering 	a 	program of 	labor
relations 	has 	been 	of 	a 	limited 	duration 	in 	comparison 	with
that 	of 	the 	NLRB, 	we 	have 	been 	similarly 	impressed 	with 	the
value 	of 	definite, 	easily 	applied 	rules 	which 	reduce 	the 	need
for 	litigation 	and 	thereby 	yield 	certain 	and 	final 	results.
Rules 	which 	will 	quickly 	resolve 	representational 	issues 	and
avoid 	lengthy 	litigation 	promote 	stable 	employer-employee
relations 	and 	thereby 	effectuate 	the 	purpose 	of 	the 	Act. 	We
have 	applied 	this 	principle 	of 	rule 	interpretation 	in 	the
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past. 	See, 	e.g., 	Petaluma 	City 	Elementary 	and 	High 	School
Districts 	(6/30/82) 	PERB 	Order 	No. 	Ad-131, 	in 	which 	we
dismissed 	a 	decertification 	petition 	because 	two 	of 	the
necessary 	one 	hundred 	and 	one 	authorization 	cards 	were 	dated
with 	the 	previous 	year 	and 	thereby 	rendered 	invalid. 	We 	opted
to 	interpret 	the 	applicable 	rule 	strictly, 	and 	on 	that 	basis
denied 	the 	petitioner's 	request 	to 	litigate 	its 	claim 	that 	the
two 	cards 	had 	been 	only 	inadvertently 	dated 	with 	the 	wrong
year. 	See 	also 	State 	of 	California 	(Department 	of Personnel
Administration), 	supra, 	in 	which 	we 	dismissed 	a 	decertification
petition 	where 	the 	petitioner 	attempted 	to 	make 	the 	required
showing 	of 	support 	by 	filing 	additional 	authorization 	cards
after 	the 	close 	of 	the 	window 	period. 	Despite 	the 	petitioner's
explanation 	that 	it 	was 	unable 	to 	determine 	at 	the 	critical
time 	how 	many 	employees 	were 	in 	the 	unit, 	we 	strictly 	construed
the 	decertification 	rules, 	relying 	in 	part 	on 	the 	guidance 	of
NLRB 	decisions. 	We 	concluded 	that 	"acceptance 	of 	proof 	of
support 	••• 	after 	the 	close 	of 	the 	window 	period 	would 	tend
to 	undermine 	stable 	employer-employee 	relations 	and 	would 	not
effectuate 	the 	purposes 	of 	the 	Act." 	Finally, 	see 	Pittsburg
Unified 	School 	District 	(10/20/78) 	PERB 	Order 	No. 	Ad-49, 	in
which 	we 	discussed 	the 	destablizing 	effects 	where 	the 	status 	of
the 	exclusive 	representative 	is 	made 	uncertain.
SETC 	contends 	lastly 	that, 	even 	if 	decisions 	of 	the 	NLRB 	do
constitute 	appropriate 	guidance 	for 	PERB 	for 	purposes 	of
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interpreting 	rule 	40260, 	the 	regional 	director's 	reliance 	on
Gaylord 	Broadcasting 	Co, 	supra, 	is 	misplaced. 	The 	regional
director 	cited 	these 	cases 	in 	support 	of 	her 	conclusion 	that
the 	subsequent 	reorganization 	and 	assembly 	of 	an 	MOU 	which 	was
initially 	recorded 	in 	informal 	documents 	does 	not 	render 	the
informal 	agreement 	ineffectual 	as 	a 	contract 	bar.
We 	are 	unpersuaded 	that 	the 	regional 	director 	erred. 	SETC
argues 	that 	Gaylord 	Broadcasting 	can 	be 	distinguished 	because
in 	that 	case 	the 	contract 	had 	been 	ratified 	by 	the 	union
membership 	and 	implemented 	by 	the 	employer 	before 	the
decertification 	petition 	was 	filed. 	However, 	our 	reading 	of
the 	case 	indicates 	that 	the 	NLRB 	found 	the 	agreement 	to 	be
effective 	as 	a 	contract 	bar 	as 	of 	the 	date 	it 	was 	initialed 	by
the 	parties. 	This 	was 	well 	before 	the 	employer 	implemented 	the
agreement. 	As 	to 	the 	ratification, 	the 	opinion 	recites 	in 	its
review 	of 	the 	facts 	that 	the 	agreement 	was 	so 	ratified, 	but
nowhere 	in 	the 	discussion 	is 	that 	fact 	identified 	as 	a 	relevant
factor 	in 	the 	NLRB's 	decision.
Upon 	the 	foregoing 	discussion, 	we 	conclude 	that 	the
regional 	director 	properly 	dismissed 	SETC's 	petition 	for
severance. 	Accordingly, 	SETC's 	appeal 	is 	DENIED 	and 	its
petition 	is 	DISMISSED.
It 	is 	so ORDERED.
Members 	Jaeger 	and 	Burt 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
DECIS ICN 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
State of California,
Empl.oyer,
and
State Employees Trades Council,
LI UNA, 	Local 	l.268 ,
Severance Petitioner,
and
Calif o..cnia state Employees' 	Association,
Exclusive Representative.
.
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-------------------->
Case Nos. 	S-R--723.--S
S-SR-12
DISMISSAL 	OF
SEVERANCE PE'fITIOU
P ROCEDOBAL 	HISTORY
On July 	12, 	1982, 	the State Employees Trades 	Council LIUNA.,
Local 	1268 	( hereafter SETC) 	filed 	a 	severance 	petition. 	By the
petition, 	SETC 	sought 	to 	become 	exclusive 	repres,entative of 	a
unit 	comprised 	of 	several classes 	of 	employeesl. 	who 	are
members 	of 	a 	larger 	unit 	represented 	by 	the California State
Employees Association 	(hereafter 	CSEA) •
lThe 	severance 	petition 	includes 	Program Water 	and 	Power
Dispatcher, 	Water 	and 	Power Dispatcher, 	Hydro Electric 	Plant
Electrician 	II, 	Hydro Electric Plant 	Mechanic II, 	Hydro
Electric 	Plant Electrician 	I, 	Hydroelectric Plant Electrician,
Mechanic I, 	Hydro Electric Plant 	Mechanic Apprentice, 	Senior
Hydro Electric 	Plant Operator, 	Hydro Electric Plant Operator
Assistant, 	Hydro Electric Plant 	Operator 	Apprentice, 	Control
System Technician 	III, .Control System Technician 	II,
Electrical-Mechanic Testing Technician 	III, 	Electric-Mechanic
Testing Tech 	II, 	System 	and Testing Technician 	I; 	it 	excludes
all 	supervisory, 	management 	and 	confidential 	employees.

The Public EmpJ.oyment Relations Board 	(hereafter 	PERB o.r
Board.) 	determined SETC' s 	proof 	of 	support 	adequate 	and
initiated 	an 	investigation 	of 	the 	petition. 	CSEA opposes
SETC' s 	petition on 	two 	grounds:
(1) 	PERS 	does 	not 	have 	the 	authority 	to 	process. 	the
petition 	because 	there 	were 	no 	severance 	regul.ations 	in 	effect
at 	the 	time 	the 	petition was 	f i.l~d.
(2) 	CSEA contends 	they 	entered 	into 	a Mem.oi:andum of
Understanding 	(MOU) 	with 	the 	employer 	on June 	23, 	l-982 	which
woul.d be a 	contract 	to 	bar 	the 	petition 	filed on Ju.ly 12, 	1982.
SETC 	and CSEA 	su.baitted 	briefs 	on 	the 	issue of 	the 	contract
bar • 	The 	employer 	takes 	no 	position 	on 	the 	contract 	bu 	issue-.
FINDINGS 	OF 	FACT
CSEA was 	certified 	as 	the 	exclusive 	representative 	in
Unit 	12, 	SEERA 	(craft 	and maintenance) 	on July 	10, 	1981 •. 	The
empl..oyees 	pe•titioned 	for 	by 	SETC 	are 	within Unit 	12. 	CSEA and
the 	state 	employer 	commenced 	negotiations 	in Dece1Bber 	1981.
There were no 	written 	negotiating 	ground 	rules 	for 	the
negotiations 	sessions. 	As 	tentative 	agreements 	were 	reached
they were 	signed 	by 	CSE.A 	and 	the 	Governor's 	representative ..
The 	final. 	negotiation 	session 	ended 	on June 	24, 	1982 	with all
of 	the 	tentative 	agreements 	signed 	by 	both 	parties. 	These
tentative 	agreements 	constituted 	an MOU 	which 	pursuant 	to
Government 	Code 	section 	3517. 5 was 	presented 	to 	the 	Legislature
for 	approval. 	The MOU 	was 	approved 	by 	the 	Legislature 	pursuant
2

to Government Code 	section 	3517.6 	on June 	30, 	1982. 	The
Gove-rnor 	signed 	the 	bills 	on June 	30 r 	1982.
The MOU 	was 	submitted 	to CSEA members 	for 	a 	ratification
vote 	pursuant 	to 	Division 	5, 	CSEA 	policy 	file, 	ratification 	of
MOU's. 	The 	ratification 	vote 	was 	conducted 	by 	secret 	ballot
and 	the actual.- coun.ting 	of 	all 	ballots 	took plact1t 	on July 20,,
1982. 	The majority of 	the members 	voted 	for 	ratification of
the MOU. 	The MOO 	does 	not 	state 	that 	ratification 	of 	the MOU
by 	the 	unit members 	is 	a 	condition 	precedent 	to 	effectiveness
of 	the MOU.
During 	the 	month 	of July 	and 	through 	the 	first 	week 	in
August, 	CSEA 	and 	the employer met 	to 	assemble 	and 	edit 	the
MOU. 	The 	substance 	of 	the 	MOU 	was 	not 	changed 	during 	these
meetings. 	The 	formal 	signing 	of 	the MOU 	by 	the 	employer 	and
CSEA 	took place 	on July 	29, 	1982.. 	The 	MOU 	covers 	substantial.
terms 	and 	conditions 	of 	employment 	and 	is 	retroactive 	to
July 	l, 	1982. 2
ISSUES
l. 	Does 	the PERB 	have 	the 	authority 	to 	pro.ce:ss 	the
severance 	petition 	filed 	by 	SETC?
2The MOU 	i>rovides 	for 	recognition, 	CSU 	representation
rights, 	organizational 	security, 	no 	strikes/no 	lockouts,
grievance 	and 	arbitration 	procedure, 	salaries, 	hours 	of 	work
and overtime, 	holidays, 	leaves, 	health 	and 	welfare, 	retirement;
allowances 	and 	reimbursements, 	heal th 	and 	safety, 	career
development, 	transfers 	and 	miscellaneous 	items. 	Duration of
MOU 	is 	July 	1, 	1982 	to June 	30, 	1984.
3

2. 	Does 	the 	agreement 	between CSEA 	and 	the 	empl.oyer
constitute 	a 	bar 	to 	the 	severance 	petition'?
DISCUSSION
In processing SETC' s 	severance 	petition, 	PE.RB 	followed 	the
severance 	petition provisions 	(sections 	40200-4-0260) 	in
Division 3 	of 	the 	proposed 	regul.ations 	adopted 	by 	PEBB: 	in
Ju1y, 	1982 	but 	not 	yet 	approved 	by 	the Office of Administr~tive
.
Law. 	No 	interests 	of 	CSEA were 	compromised. 	For 	example., 	had.
PERB used 	as 	its 	guideline 	the 	then 	effective SEEl?A
representation 	proceedings 	instead 	(July 1980 	Regu.lations.,
Divisiou 	3, 	sections 	41000-41280), 	petitioner SE'rC's 	proof of
support 	requirement 	ws:,uld 	have 	been 	only 	30 	percent. 	(Section
41010 (b) (3) (c)). 	The 	processing 	of SETC' s 	severance 	petition
by 	PERB 	was 	consistent 	with 	the 	provisions 	of 	Government Code
section 	3520. 5.
The MOO 	as 	a 	Bar 	to 	the 	Petition
CSEA 	contends 	that 	"a 	complete MOU 	was 	signed 	by 	the
parties 	in 	the 	form 	of 	tentative 	agreements 	pri.or 	to 	the 	filing
of 	the 	petition 	on July 	12, 	1982." 	SETC 	contends 	that 	the MOU
was 	not 	officially 	signed 	by 	the 	exclusive 	representative 	and
the 	employer 	until July 	29, 	1982. 	They 	believe 	that 	a 	contract
bar 	does 	not 	exist 	because 	the 	MOU 	was 	not 	signed 	and 	ratified
by 	the 	exclusive 	representative 	prior 	to 	the 	filing 	of 	their
severance 	petition. 	The 	petitioner 	also 	indicates 	that 	"CSEA
ratification 	procedures 	can 	only 	be 	interpreted 	to mean 	that
4

the MOU 	in 	question 	was 	not 	effective 	in 	the 	eyes 	of CSEA 	unti1
it 	had 	been 	ratified 	by 	a 	vote 	of 	the 	members 	in Unit 	12. • 	The
peti tionec 	believes 	that 	there 	was 	an • implicit 	understanding•
that 	the 	MOO 	would not 	become operative 	until. 	it was 	ratified
by CSEA 	and 	the 	empl.oyer.
PEBB may 	~e_ guielect_ by 	NLRB precedent wb.en interpreting
similar SEE.RA provisions. 	See, 	e.g., 	San Diego Teachers Assn.
t
v. 	Superior 	Court 	(1979) 	24 	Cal.3d 1, 	12-13; 	Fire Fighters
Union 	v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608.
The 	seminal. NL.Ra case 	on 	the 	subject 	is Appalachian Shale
Products Co, 	(1958 l 	l2l. 	NLRB 	1160 	[ 42 	LimM 1506}. . 	In
~_ppalacbian Shale 	the NLRB 	stated 	that 	in order· 	for 	an
agreement 	to 	serve 	as 	a 	bar 	to 	an 	election, 	the 	contract bar
rules 	require 	that 	such 	agreement 	satisfy certain formal 	and
subs tan ti ve 	requirements. 	The 	agreement must 	be 	.signed 	by 	the
parties 	prior 	to 	the 	filing 	of 	the 	petition 	that 	it would bar
and 	it must 	contain 	substantial 	terms 	and 	conditions 	of
employment 	sufficient 	to 	stabilize 	the 	parties 	bargaining
relationship.
In Appalachian 	Shale 	the 	NLRB 	restated 	the 	rule 	for 	prior
ratification 	as 	follows:
Where 	ratification 	is 	a 	condition 	precedent
to 	contractual 	validity 	by 	express
contractual 	provision, 	the 	contract 	will 	be
ineffectual 	as 	a 	bar 	unless 	it 	is 	ratified
prior 	to 	the 	filing 	of 	a 	petition, 	but 	if
the 	contract 	itself 	contains 	no 	express
provision 	for 	prior 	ratification, 	prior
5

ratification 	will 	not 	be 	required 	as 	a
condition 	precedent 	for 	the 	contract 	to
constitute 	a 	bar.
In Downey Unified Schoo.l District PERB 	Order 	No. 	Ad-97,
September 	10, 	1980, 	the PERB 	expanded 	the Appalachian Shale
rule 	by 	stating:
where 	there 	is 	ample 	and 	unchallenged
evidence 	that 	the 	parties 	agreed, 	either 	by
written 	ground 	rules 	or 	by 	a 	2rovision 	in
the 	negotiated 	coilecti ve 	barqainlng
agreement 	itself, 	that 	ratification 	was 	a
condition precedent 	to 	the 	agreement, 	we
discern 	no 	reaso.n 	to 	distinguish 	betwee:n
ground 	rules 	and 	contract 	provision.
In Downey 	the 	parties 	had 	written 	and 	signed 	ground 	rules
that 	all 	agreements 	reached 	by 	the 	representatives 	of 	the
parties 	would 	be 	tentative 	until 	ratified 	by 	the 	exclusive
representative 	and 	the 	employer, 	respectively. 	The 	agreement
in ~ey 	could 	therefore 	not 	become operative 	until 	it 	was
ratified 	by 	both 	parties 	and 	thus 	did 	not 	block 	the 	filing 	of
the 	decertif i.cation 	petition.
The NL.RB 	has 	ruled 	that 	reorganization 	and assembly of 	an
informal 	agreement 	after 	the 	contract 	or 	informa.l 	agreement
documents 	have 	been 	signed 	by 	the 	parties 	does 	not 	render 	the-
informal 	agreement 	ineffectual 	as 	a 	contract 	bar. 	In Gaylord
Broadcasting Co. 	d/b/a Television Station WVTV, 	250 	NLRB 	198,
[104 	LRRM 	1360] 	(1980) 	the 	employer 	and 	the 	union 	met 	to
reorganize 	and 	assemble 	the 	provisions 	making 	up 	their
informal, 	signed 	agreement. 	Thereafter 	the 	parties 	scheduled 	a
session 	for 	signing 	a 	formal 	agreement. 	Before 	the 	formal
6

agreement 	was 	signed a 	decertification 	petition was 	filed:. 	The
NL.RB 	held 	that 	the 	informal 	agreement 	was 	suff.icient 	to 	operate
as 	a 	bar _to 	the 	petition. 	The 	NLRB 	affi.cned Gaxlord 	in Farre.l
Rochester 	Division of 	OSM Corp., 	Rocbeste.r, 	256 	NL.Ra 	[107 L.RlUt
13611 	(198ll, 	noting 	•that 	it 	was 	a 	signed 	agrfflteat: - 	albeit.
-·
by 	initialing -:;;;~covering 	substantial 	terms 	and 	conditions of.
empl.oyaent ·and waa 	intended 	to 	be 	a 	final 	and 	binding
agr.eeaent.• 	The NLBS 	further 	referenced Gaylo;d Broadcasting
in Farr el Rocheste;; 	by observing:
••• 	that 	the 	n990tiationa 	wbich 	took 	pl~
~fter 	[ the infoi::mal 	agreement 	was 	signed}
and 	the 	minor 	amendments 	made 	to 	the·
agreement 	after 	that 	date, 	did II not 	indicate
that 	the 	agreement 	lacked 	finality or 	that
its 	teru 	were 	insufficient 	to 	govern 	the
parties 	relationship."
In 	the 	instant 	case 	the 	employer 	and 	exclusive,
representative 	signed 	all 	the 	tentative 	agreements 	of 	the MOU
by June 	24, 	1982. 	The MOU 	covers 	substantial 	terms 	and
conditions 	of 	employment 	and 	was 	intended 	to 	be 	a 	final 	and
binding 	agreement. 	(See 	footnote 	No. 	2.)
The 	further 	meetings 	which 	took 	place 	in July and August 	of
19-82 	to 	assemble 	and 	edit 	the MOU 	do 	not 	detract 	from 	the fact
that 	the 	parties 	had 	already 	reached 	final 	agreement 	on 	al.l
matters 	subject 	to 	the MOU 	and 	had 	signed 	tentati 11e 	agreements
covering 	all 	of 	them. 	Hence, 	consistent 	with 	the 	NLRB's
decision 	in Gaylord, 	those 	assembling 	and 	editing 	activities 	do
not 	undercut 	applicability of 	the 	contract 	bar 	rule 	in 	this
case.
7

Nor, 	under 	Appalachian 	Shale 	and Downey, 	does 	the 	fact 	that
employee 	ratification which occurred 	after 	the 	sev~rance
petition was 	filed 	indicate 	that 	the 	MOO 	shouJ..d not 	bar
processing 	of 	the 	petition. 	There 	were 	no 	written 	ground rules·
and 	the .MOU 	itself 	did not 	specify 	that 	empl.oyee 	ratification
waa a 	conditi0n precedent 	to 	final 	agreesent:,.,
CONCLUSION
Th.erefore, 	for 	.the 	reasons 	stated above, 	the !«>U 	between
CSEA 	and 	tile 	State of 	California 	bars 	the 	severance 	petition
filed 	by SETC. 	The 	severance 	petition 	filed 	by SETC .is 	hereby
DISMISSED~
An appeal. 	of 	this 	decision 	pursuant 	to PEBB 	R~lations
32350 	through 	32380 may 	be made 	within 10 	cal.endar 	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, 	California 	95814. 	Copies 	of 	any appeal
must 	be 	concurrently served 	upon 	all 	parties 	and 	the 	Sacramento
Regional Office. 	Proof 	of 	service 	pursuant 	to Regulation 	32140
is 	required.
DATED: 	December 	9, 	1982 	For 	the 	Regional 	Director
By:
Public Employment Relations
Representative 	III
JJJ;f=-'ci••fl 	~·
8
•