San Francisco Unified School District (PERB 0476E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MAGGIE
	L.
	BROWN,
Petitioner,
and
UNITED 	PUBLIC 	EMPLOYEES,LOCAL
	390/400,
	SERVICE 	EMPLOYEES
INTERNATIONAL 	UNION,
Exclusive
	Representative,
and
SAN
	FRANCISCO 	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
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____________________
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Case
	No.
	SF-D-114
(R-552C)
PERB
	Decision
	No.
	476
December
	31, 	1984
Appearances: 	Robert
	C.
	Evans,
	Jr.,
	Attorney 	for
Maggie
	L.
	Brown;
	Van
	Bourg,
	Allen,
	Weinberg	
&	
Roger
	by
	Vincent
A.
	Harrington,
	Jr.,
	for 	United
	Public
	Employees,
	Local 	390/400,
Service
	Employees
	International
	Union.
Before
	Hesse,
	Chairperson;
	Tovar 	and
	Morgenstern,
	Members.
DECISION
MORGENSTERN,
	Member:
	This 	case
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on 	an
	appeal
	by
United 	Public
	Employees, 	Local 	390/400,
	Service
	Employees
International
	Union 	(Union)
	of
	a
	Board
	agent's 	determination
that
	the
	decertification 	petition 	filed
	by Maggie 	L. 	Brown
(Petitioner)
	was
	valid.
1
1
Because
	it
	found
	that 	the 	issues 	raised 	in 	the 	instant
appeal
	would
	affect 	the 	validity
	of 	the 	ordered
	decertification
election, 	the 	Board 	ordered 	that that 	election
	be
	stayed
pending 	resolution 	of 	this 	appeal. 	San 	Francisco 	Unified
School 	District 	(8/16/84)
	PERB
	Order 	No. 	Ad-142.

For 	the 	reasons 	set 	forth 	below, 	we 	reverse 	the 	Board
agent's 	determination 	and 	find 	that 	the 	petition 	was 	barred 	by
the 	existence 	of 	the 	extended 	contract.
PROCEDUR~L 	HISTORY
The 	San 	Francisco 	Unified 	School 	District 	(District) 	and
the 	Union 	negotiated 	a 	Memorandum 	of 	Understanding 	(MOU)
establishing 	the 	terms 	and 	conditions 	of 	employment 	of 	the 	blue
collar 	and 	food 	service 	employees 	in 	the 	established 	unit. 	This
MOU 	was 	effective ·from July 	1, 	1981 	until 	June 	30, 	1983.
In 	March 	1983, 	Petitioner 	filed 	a 	petition 	to 	decertify
the 	Union 	as 	the 	exclusive 	representative. 	That 	petition 	was
dismissed 	because 	it 	failed 	to 	establish 	the 	necessary 	showing
of 	support 	as 	required 	by 	section 	3544.S(d) 	of 	the 	Educational
Employment 	Relations Act 	(EERA) . 2
2EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
All 	statutory 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
Section 	3544.S(d) 	provides:
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 	evidence 	of
support 	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. 	Such 	evidence 	of 	support
shall 	be 	submitted 	to 	the 	board, 	and 	shall
remain 	confidential 	and 	not 	be 	disclosed 	by
the 	board. 	The 	board 	shall 	obtain 	from 	the
employer 	the 	information 	necessary 	for 	it 	to
2

carry 	out
	its
	responsibilities
	pursuant 	to
this 	section
	and
	shall 	report 	to 	the
	employee
organizations 	seeking 	recognition
	and
	to 	the
public 	school 	employer 	as 	to 	the 	adequacy 	of
the 	evidence 	of 	support.
On
	June
	2,
	1983,
	the
	District
	and
	the
	Union
	representatives
agreed 	to
	extend
	the
	MOU
	to
	October
	31, 	1984.
On
	September
	29,
	1983,
	the
	Petitioner
	again 	submitted
	a
decertification 	petition.
	This
	petition
	was
	likewise
scrutinized
	in 	order 	to
	determine
	whether
	the
	showing
	of 	support
was
	sufficient.
	The
	District
	submitted
	several
	lists
	of
	unit
employees, 	each
	of
	which
	was
	plagued 	with
	alleged 	inaccuracies.
Ultimately,
	however,
	after
	meeting
	with
	and
	inviting
	comment
from
	the
	parties,
	the
	Board
	agent
	came
	to 	the 	conclusions
	that
(1)
	temporary
	employees
	are
	not 	included
	in 	the
	unit
	and,
therefore,
	the
	Petitioner's
	showing
	of 	support
	satisfies
	the
statutory
	requirement,
	and 	(2)
	the
	parties'
	extension 	of
	the
	MOU
from
	June 	30,
	1983
	until
	October 	31,
	1983
	did 	not
	constitute
	a
contract
	bar
	to 	the
	filing
	of 	the
	decertification 	petition.
Thus,
	in
	her
	administrative 	determination 	dated
	June 	12, 	1984,
the
	Board
	agent
	found
	the
	petition
	to
	be
	timely
	filed
	and
adequately 	supported 	and,
	accordingly, 	ordered
	that
	an
	election
be
	held 	to 	determine
	which
	organization,
	if
	any,
	would
	serve
	as
the 	exclusive 	representative
	of 	the
	unit.
DISCUSSION
Section
	3544.7(b)
(1)
	of
	EERA
	provides
	that
	a
	decertification
petition
	must 	be
	dismissed
	where
	"there
	is 	currently
	in
	effect
3

a
	lawful
	written
	agreement
	..•
" 	and
	the
	petition
	is
	not
	filed
during
	a
	designated
	"window
	period."
3
Thus,
	in
	this
	case,
whether
	the
	Board
	was
	required 	to 	dismiss 	the
	Petitioners'
decertification 	petition
	depends
	on
	the
	validity
	of 	the
agreement
	between
	the
	Union 	and
	the
	District
	and
	whether
	that
contract
	extension
	served
	to
	bar
	the
	petition.
	We
	find
	from
the
	record 	before
	us
	that,
	in
	early
	June, 	the
	District
	and
	the
Union
	did.indeed
	agree
	to
	extend
	the
	expiration 	date
	of
	their
prior
	agreement.
First,
	the
	documentary
	evidence 	of
	that
	extension,
	on
	its
face,
	attests
	to 	the
	fact 	that
	the 	Union's
	representative,
	Steve
Neuberger,
	discussed 	the
	contract
	extension
	with 	Jack
Abad,
chief
	negotiator 	for 	the
	District.
	In
	the
	letter,
	Neuberger
specifically
	requests
	that
Abad
	"sign
	off
	on
	this
	letter
indicating
	your 	agreement
	with
	our
	decision
	•••
"
	to 	extend
the 	terms
	of 	the
	agreement. 	In
	fact,
	the
	document
	is
	indeed
signed
	by
	the
	representatives
	of 	both
	parties.
	By
	its
	terms,
the
	parties'
	agreement
	incorporated 	the
	terms 	of 	the
	parties'
3section
	3544.7(b)
(1)
	provides:
No
	election 	shall
	be
	held
	and
	the
	petition
shall
	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, 	butmore
	than
	90
	days, 	prior 	to 	the 	expiration
date 	of 	the 	agreement;
	•••
4

pre-existing
	MOU
	and
	extended
	those
	terms
	and
	conditions 	of
employment
	beyond
	the
	originally-designated
	termination
	date.
In
	addition,
	we
	find
	it
	persuasive
	that,
	subsequent
	to
	the
first
	written
	agreement
	to
	extend
	the
	contract,
	the
	parties
agreed
	to
	two
	additional
	extensions.
	The
	second
	extension
carried
	over
	the
	terms
	of 	the
	contract
	until
November
	15, 	1983.
	The
	third
	extended
	the
	agreement
	until
December
	1,
	1983.
4
Inasmuch
	as 	the
	two
	subsequent
	extensions
were
	agreed
	to,
	it
	seems
	apparent
	that
	the
	parties 	clearly
intended 	to
	extend
	their
	contract
	beyond
	its 	initial
	expiration
date
	of
	June 	30, 	1983.
In 	finding 	the
	parties
	to
	have
	executed
	a
	valid 	extension
to
	their
	contract,
	we
	necessarily
	reject
	the
	Board
	agent's
conclusion
	that
	the
	agreement
	was
	not 	"accepted
	by"
	the
	District
as
	required
	by
	EERA
	section
	3540.l(h)
• 5
First,
	we
	find
	no
4
The
	parties
	reached 	agreement
	on
	a 	new
	contract
	which
was
	ratified
	by
	the
	employees
	on 	November
	30, 	1983.
5
section
	3540.l(h) 	provides:
"Meeting 	and
	negotiating"
	means
	meeting,
conferring, 	negotiating,
	and
	discussing
	by
the 	exclusive 	representative
	and
	the 	publicschool
	employer
	in
	a
	good
	faith 	effort
	toreach 	agreement
	on
	matters 	within 	the 	scope
of 	representation
	and
	the 	execution,
	if
requested
	by
	either 	party,
	of
	a
	written
document
	incorporating
	any 	agreements
reached,
	which 	document
	shall,
	when
	accepted
by
	the 	exclusive 	representative
	and
	the
public 	school 	employer,
	become
	binding
	upon
both
	parties
	and, 	notwithstanding 	Section3543.7,
	shall 	not
	be
	subject 	to 	subdivision
2
	of 	Section
	1667
	of 	the 	Civil
	Code. 	The
agreement
	may 	be
	for
	a
	period 	of 	not 	toexceed 	three 	years. 
5

basis
	to 	conclude
	that
	the 	acceptance
	mandated
	by
	EERA
	must
	be
nothing
	short
	of
	formal
	adoption
	by
	the
	District
	board
	of
education.
	Secondly,
	good
	faith
	bargaining
	requires
	that
designated
	negotiators
	be
	invested
	with
	sufficient
	authority
	to
fully
	engage
	in
	negotiations
	on
	their 	principals'
	behalf.
	San
Ramon
	Valley 	Unified
	School
	District
	(11/20/79)
	PERB
	Decision
No.
	111; 	Oakland
	Unified
	School
	District
	(7/11/83)
	PERB
	Decision
No.
	326
•.
Here,
	the
	District's
	signator
	to 	the 	extension
agreement
	held 	himself 	out 	to
	be
	the
	District's
	legitimate
spokesperson
	and,
	except 	for 	the
	Petitioner's
	assertion, 	there
is
	nothing 	to
	indicate
	he
	was
	not.
6
Invoking 	the 	premature
	extension
	doctrine,
	the
	Petitioner
also
	contends
	that
	the
	contract
	does 	not 	bar 	the
	filing
	of
	its
decertification 	petition.
	We
	find 	to 	the
	contrary.
	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.
	See 	Deluxe 	Metal
	Furniture
	Company
6
Petitioner 	also
	argues 	the
	invalidity
	of 	the
	contract
because 	employees 	were
	not 	given
	an
	opportunity 	to
	ratify
	theagreement.
	However,
	relevant 	federal 	precedent 	finds
ratification
	by
	union 	membership
	is
	not
	a
	necessity 	forupholding
	a
	contract 	as
	a
	bar
	unless~e
	contract
	itself
requires
	ratification.
	Appalachian 	Shale 	Products
	Co. 	(1958)121
	NLRB
	1160 	(42
	LRRM
	1506). 	While
	this
	Board 	has 	found
	that
ratification
	may
	also
	be
	required
	where
	the
	parties' 	written
ground
	rules
	make
	ratification
	a
	condition 	precedent 	toagreement
	(Downey
	Unified 	School
	District
	(9/10/80)
	PERB
	Order
No.
	Ad-97),
	we
	find
	no
	basis 	in 	the 	instant 	case 	to 	require
ratification
	of 	the 	a9reernent 	to 	extend 	the 	existing 	contract.
6

employees
	could 	count
	on
	a
	time-certain
	opportunity 	to
	exercise
a
	basic
	but
	limited
	right.
	See 	Deluxe
	Metal
	Furniture
	Company
(1950)
	121
	NLRB
	995
	(42
	LRRM
	1470];
	Hayward
	Unified
	School
District
	(6/10/80)
	PERB
	Order
	No.
	Ad-96.
In 	the
	instant
	case,
	the
	agreement
	to
	extend
	the
	contract
did
	not 	deprive 	the
	Petitioner
	of
	an
	established
	window
	period
in
	which
	to
	exercise
	their 	rights
	because
	the
	agreement
	was
	only
extended
	after
	the
	contractual
	window
	period
	and
	the
	opportunity
for
	decertification
	had
	passed.
	The
	period 	following
	expiration
of
	the
	old
	contract
	bears
	no
	resemblance
	to
	an
	established
window
	period.
	Petitioner
	could 	not
	rely
	on
	being
	able
	to
	file
their 	decertification 	petition 	after
	the
	contract 	expired.
	They
could
	hope
	for
	such 	an
	opportunity, 	but
	it
	would
	occur
	only
	if
no
	agreement
	was
	reached
	to
	bar
	such
	a
	filing.
	Unlike
	the
window
	period 	protected
	by
	the
	premature
	extension
	doctrine,
	the
Petitioner's
	opportunity 	to
	file 	its
	decertification 	petition
in
	this
	case
	was
	not 	guaranteed
	by
	statute.
Finally, 	contrary 	to
	our
	dissenting 	colleague's
	view,
	we
find
	it
	to
	be
	of
	little
	significance 	that
	the
	Petitioner
	may
have 	lacked
	knowledge
	of 	the
	contract 	extension 	or 	the 	July
window
	period
	it
	created.
	Ignorance 	of 	those
	facts
	would
merely 	have
	left
	intact
	the
	Petitioner's 	belief 	that
	a
	timely
petition
	could
	have 	been
	filed 	after 	expiration 	of 	the
	original
agreement 	in 	July.
	Thus,
	in 	either 	situation,
	the 	Petitioner
could
	have
	filed
	a
	timely 	decertification 	petition 	during 	the
7

month 	of 	July. 	As 	the 	petition 	before 	us 	was 	filed 	in
September, 	it 	is 	not 	cured 	by 	any 	lack 	of 	knowledge 	the
Petitioner 	may 	have 	had. 7
ORDER
Based 	on 	the 	foregoing, 	we 	reverse 	the 	administrative
determination 	of 	the 	Board 	agent 	and 	DISMISS 	the 	decertification
petition.·
Member 	Tovar 	joined 	in 	this 	Decision. 	Chairperson 	Hesse's
dissent 	begins 	on 	page 	9.
1 Having 	concluded 	that 	extension 	of 	the 	MOU 	served 	as 	a
contract 	bar 	to 	the 	decertification 	petition, 	we 	do 	not 	resolve
the 	factual 	dispute 	concerning 	the 	unit 	placement 	of 	the
temporary 	employees.
8

Hesse,
	Chairperson,
	dissenting:
	I
	concur 	with
	the
	majority
that 	this
	case
	is
	not
	one 	where
	the
	doctrine
	of
	premature
extension
	applies.
	I
	am
	disturbed,
	however,
	that
	the
	majority
is
	willing
	to 	decide
	this
	case
	on
	less
	than
	a
	full
	record.
When
	the
	petitioner 	filed
	on
	September 	29, 	1983,
	she
	was
under
	the
	impression
	that
	there
	was
	no
	contract
	in 	force
	to
	bar
the
	petition.
	Whether
	this
	impression
	was
	reasonable
	or
	not
depends
	on·a
	number
	of
	factors
	not
	known
	to 	us.
	For
	example,
if
	the
	petitioner
	was
	misled
	into
	believing 	there
	was
	no
contract
	or
	if,
	due
	to 	the
	failure
	to
	ratify
	the
	agreement
	by
the
	membership
	at
	large,
	there
	was
	no
	possible
	way
	petitioner
could
	have
	known
	about
	the
	contract,
	then 	her 	mistaken
	belief
is
	a
	factor 	that
	I
	believe
	this
	Board
	should
	consider 	in
	ruling
whether
	there
	was
	a
	contract 	bar.
The
	notion 	of
	a
	window
	period
	is
	to 	guarantee
	a
	known,
specific
	number
	of
	days
	at
	a
	specific
	time
	in 	the
	contract
	term
during
	which
	the 	bargaining
	unit
	members
	have
	a
	statutory 	right
to 	challenge 	the
	incumbent
	exclusive 	representative.
	Here,
	the
extension
	was
	akin 	to
	a 	new
	contract
	of 	four
	months
	duration,
with
	a
	statutory
	window
	period
	that
	ran
	from
	July 	1-31.
	When 	a
group 	of
	employees
	is
	deprived 	of
	that
	period 	as
	happened
	here,
this
	agency 	must
	investigate
	whether
	that 	deprivation
	is
	the
result
	of
	petitioner's
	own
	inaction, 	ignorance, 	or
	other
factors 	within
	petitioner's 	control
	or 	whether 	the
	petitioner
was
	effectively
	deprived 	of
	that
	window
	period 	for 	reasons
	that
9

are
	beyond
	her
	control,
	e.g.,
	fraud
	or
	collusion
	between
	the
exclusive 	representative
	and
	the
	employer
	to
	keep
	secret
	the
contract
	term 	so
	that 	dissident
	employees
	would
	never
	know 	when
the
	window
	period
	fell.
In
	this
	case, 	petitione~
	argues
that
	she
	was
	not
	aware
	of
any
	contract
	for 	the 	period
	July
	1-0ctober
	31, 	1983,
	because
the
	union
	failed
	to
	ratify
	the
	contract
	in 	the
	normal 	manner.
Whether
	this
	is
	true
	needs
	some
	type 	of
	formal
	investigation.
Further,
	the
	union
	and
	the
	employer
	should
	be
	free
	to
	show
	that
the
	petitioner
	had
	actual
	or 	implied
	notice 	of 	the
	July
1-0ctober
	31
	contract.
	I
	am
	not
	willing
	to 	speculate
	on
	what
such
	a
	hearing
	may
	show.
	Rather 	than 	merely
	strip
	the
petitioner
	of
	a
	statutory 	right,
	I
	would 	remand
	this
	to 	the
regional 	director
	with
	instructions
	to 	take 	testimony
	on
	this
matter 	before
	we
	rule
	on
	whether
	this
	contract
	acted 	as
	a
	bar
to 	the
	petition.
Although
	the 	majority 	believes 	that
	knowledge
	of 	the
	new
contract
	(or
	extension)
	is 	irrelevant
	to 	the 	issue 	of 	the
establishment 	of 	the
	window
	period,
	I
	find
	no
	case
	law
	to
support
	this.
	The
	statutory
	guarantee 	of
	a 	window
	period
presumes
	knowledge
	of 	the
	term
	of 	the
	contract,
	otherwise 	the
statute 	is
	useless.
	(See,
	e.g.,
	Bob's
	Big
	Boy
	Family
Restaurants
	(1978) 	235
	NLRB
	1227,
	[98
	LRRM
	114]; 	Delto
	Company
Ltd.
	(1973) 	202
	NLRB
	921~ 	See
	generally,
	l
	Morris,
	The
Developing 	Labor 	Law, 	2d
	Ed.,
	363-64 	(1983).)
	As
	the
	NLRB
10

notes, 	a 	contract 	cannot 	act 	as 	a 	bar 	to 	a 	petition 	when 	a
situation 	is 	created 	whereby 	a 	potential 	petitioner 	cannot 	make
a 	clear 	determination 	of 	the 	proper 	time 	for 	filing. 	(Delto
Company 	Ltd., 	supra, 	at 	p. 	923.) 1
In 	other 	words, 	having 	statutorily 	guaranteed 	all 	employees
the 	right 	to 	challenge 	an 	incumbent 	exclusive 	representative,
we 	must 	also 	guarantee 	that 	such 	a 	right 	does 	not 	become 	gutted
by 	clever 	maneuvers 	on 	the 	part 	of 	those 	who 	oppose
petitioners. 	Whether 	that 	is 	the 	case 	here 	can 	only 	be
determined 	by 	a 	full 	hearing 	with 	all 	parties 	represented.
Thus, 	I 	would 	remand 	for 	futher 	investigation.
lrndeed, 	in 	the 	only 	situations 	where 	PERB 	has 	addressed
the 	issue 	of 	notice, 	i.e., 	cases 	where 	a 	contract 	has 	been
prematurely 	extended, 	notice 	would 	appear 	to 	be 	a 	critical
factor 	in 	permitting 	the 	"old" 	windo~-period 	to 	have 	vitality
even 	when 	the 	contract 	has 	a 	new 	termination 	date.
11