Menlo Park City Elementary School District/San Jose Unified School District/Selma Unified School District (PERB A065E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
)	CALIFORNIA
	SCHOOL
	EMPLOYEES
	ASSOCIATION
AND
	ITS
	CHAPTER
	515,
Petitioner,
	APPELLANT,
and
MENLO 	PARK
	CITY
	ELEMENTARY 	SCHOOL
DISTRICT,
Employer.
)	
Case
	No.
	SF-D-45(R-417)
PERB
	Decision
	No. 	Ad-65
Administrative
	Appeal
)
)
)
)
)
)
)
)
)
_______________________
)
)
)
)
)
)
CALIFORNIA
	SCHOOL
	EMPLOYEES
	ASSOCIATION
AND
	ITS
	CHAPTER
	4,
Petitioner,
	APPELLANT,
and
SAN
	JOSE 	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
Case
	No.
	SF-D-46(R-68B)
August
	8 1 	1979
•
	'---
)
)
)
)
)
)
_______________________
)
)
)
)
)
)
SELMA
	UNIFIED
	FEDERATION
	OF
	TEACHERS,AFT
	LOCAL
	2197,
	AFL-CIO,
Petitioner,
	APPELLANT,
and
SELMA
	UNIFIED
	SCHOOL
	DISTRICT,
Employer.
)
)
)
)
)
)_______________________ )
Case
	No.
	S-D-24
(R-64)
Appearances:	
Ruth 	Rokeach,
	Attorney 	for
	California
	SchoolEmployees
	Association, 	Chapters
	515 	and 	4; 	Lawrence 	Rosenzweig,
Attorney
	(Levy 	and 	Goldman)
	for
	Selma
	Unified 	Federation 	ofTeachers,
	AFT
	Local 	2197; 	Denny 	Adams,
	President 	for
	Selma
Unified 	Teachers 	Association.
Before 	Gluck, 	Chairperson; 	Gonzales 	and 	Moore, 	Members.
On 	May
	25, 	1979, 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or 	Board) 	ordered 	that 	the 	regional 	directors'

dismissals
	of
	the
	decertification 	petitions 	filed
	by
	the
above-captioned
	appellants
	be
	reversed.
	The
	Board
	further
ordered
	that
	the
	regional
	directors
	process
	said
	petitions
	and,
if
	appropriate,
	conduct
	an
	election
	in 	the
	units
	in
	which
	the
petitions
	were
	filed.
Following
	is
	the
	decision
	of 	the
	Board
	on
	which
	the
aforementioned 	order
	is
	based.
FACTS
Menlo
	Park
	City
	Elementary 	School
	District
The
	American
	Federation 	of
	State,
	County 	and
	Municipal
Employees,
	Local
	377
	(hereafter
	AFSCME)
	was
	certified
	as
	the
exclusive 	representative 	of
	all
	classified
	employees
	of 	the
Menlo
	Park
	City
	Elementary 	School
tristrict
	(hereafter
	the
District),
	excluding
	management,
	confidential,
	and
	supervisory
employees,
	on
	January
	25, 	1977.
	An
	agreement
	covering
employees
	in
	the 	recognized
	unit
	was
	negotiated
	by
	AFSCME
	and
the
	District
	and 	was
	effective
	through 	June 	30, 	1979.
On
	Monday,
	April
	2, 	1979,
	CSEA
	filed
	a
	decertification
petition.·
	However, 	by
	letter
	dated 	April
	5, 	1979, 	the
	San
Francisco
	Regional
	Director 	dismissed
	CSEA's
	petition
	as
untimely.
	In 	the
	letter
	of 	dismissal,
	the
	regional 	director
stated 	that
	Saturday,
	March
	31, 	1979,
	was
	the
	last
	day
	that
	a
timely
	petition
	could
	be
	filed 	since 	that
	day 	was 	91
	days 	(thus
"more
	than
	90
	days")
	prior 	to 	expiration 	of 	the 	existing
2

contract
	as
	required	
by	
Government
	Code
	section 	3544.7(b)l
and 	PERB's
	rule
	33270(c)
.2	
The
	regional
	director 	further
noted
	that,
	based
	on
	Steele
	v.
	Bartlett
	(1941) 	18
	C.2d
	573,
lThe
	Educational
	Employment
	Relations
	Act
	(hereafter
	EERA
or
	the
	Act)
	is
	codified
	at
	Government 	Code
	section
	3540
	et
	seq.
Government
	Code
	section
	3544.7(b)
	provides:
(b)
	No
	election
	shall
	be
	held
	and
	the
petition 	shall
	dismissed
	whenever:
(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; 	or
{2) 	The
	public
	school.employer 	has,
within 	the 	previous
	12
	months,
	lawfullyrecognized
	an 	employee
	organization 	other
than 	the
	petitioner
	as 	the
	exclusive
representative
	of
	any
	employees
	included 	inthe
	unit
	described 	in 	the
	petition.
All 	section 	references 	herein 	are 	to
	the
	Government
Code
	unless 	otherwise 	noted.
2PERB's
	rule
	33270(c)
	provides:
(c)	
A	
petition 	shall
	be
	dismissed 	in
	part
	or
in
	whole 	whenever
	the
	Board
	determines
	that:
(1) 	The
	Petitioner
	has 	no
	standing 	to
petition
	for 	the
	action 	requested; 	or
(2)
	Either 	of 	the 	conditions 	of
section
	3544.7 (b)
	of 	the
	Act
	exist;
	or
(3) 	A
valid 	election 	result
	has 	been
certified 	affecting
	the 	described 	unit 	or
	a
subdivision 	thereof 	within 	the
	12 	months
immediately 	preceding 	the 	date 	of
	filing
	ofthe
	petition.
3

Government 	Code 	section 	67073 	and 	Code 	of 	Civil 	Procedure
section 	12(a)4 	did 	not 	apply 	to 	extend 	the 	weekend 	filing
date 	to 	the 	following 	Monday.
On 	April 	13, 	1979r 	CSEA 	filed 	an 	appeal 	with 	this 	Board.
Appellant's 	contend 	that 	PERB 	is 	estopped 	from 	dismissing 	their
decertification 	petition 	as 	untimely 	filed 	based 	on 	PERB's 	past
practice 	of 	accepting Monday 	filings 	when 	agency 	deadlines 	fell
on 	weekend 	days.5. 	In 	this 	regard, 	CSEA 	also 	urged 	the 	Board
itself 	to 	adopt 	application 	of 	the 	Government 	and 	Civil
Procedure 	Code 	sections 	noted 	above. 	No 	response 	to 	CSEA's
appeal 	was 	received 	by 	the 	Board.
3Goverment 	Code 	section 	6707 	provides:
When 	the 	last 	day 	of 	filing 	any 	instrument 	or 	other
document 	with 	a 	state 	agency 	falls 	upon 	a 	Saturday or
holiday, 	such 	act 	may 	be 	performed 	upon 	the 	next
business 	day 	with 	the 	same 	effect 	as 	if 	it 	had 	been
performed 	upon 	the 	day 	appointed.
4code 	of 	Civil 	Procedure 	section 	12(a) 	provides 	in
pertinent 	part:
If 	the 	last 	day 	for 	the 	performance 	of 	any 	act
provided 	or 	required 	by 	law 	to 	be 	performed 	within 	a
specified 	period 	of 	time 	shall 	be 	a 	holiday, 	then 	such
period 	is 	hereby 	extended 	to 	and 	including 	the 	next
day 	which 	is 	not 	a 	holiday.
Srn 	their 	appeals 	to 	this 	Board, 	both 	CSEA 	Chapter 	515
and 	4 	additionally 	alleged 	that 	they 	filed 	their
decertification 	petitions 	in 	reliance 	on 	PERB 	agents'
representations 	as 	to 	the 	appropriate 	filing 	date. 	To 	the
extent 	that 	the 	three 	administrative 	appeals 	combined 	herein
commonly 	allege 	that 	their 	reliance 	on 	PERB's 	past 	practice 	was
the 	cause 	for 	their 	"untimely" 	filings, 	the 	Board 	finds 	that 	it
is 	unnecessary 	to 	reach 	the 	specific 	issue 	concerning 	the 	PERB
agent's 	involvement 	and 	thus 	makes 	no 	ruling 	thereon.
-
4

San
	Jose 	Unified
	School
	District
In 	the
	second
	case,
	AFSCME,
	Local 	101,
	was
	certified
	as 	the
exclusive 	representative
	of
	an
	operations
	and
	support
	services
unit
	of
	classified
	employees
	in 	the
	San
	Jose 	Unified
	School
District
	(hereafter
	the
	District)
	excluding
	management,
confidential
	and
	supervisory
	employees
	on
	March
	10,
	1977.
	The
District's
	contract
	with
	AFSCME
	expired
	on
	June 	30, 	1979.
CSEA
	and
	its
	Chapter
	4
	filed
	a
	decertification 	petition
	on
April
	2,
	1979.
	On
	April 	5,
	1979,
	the
	San
	Francisco
	Regional
Director
	dismissed
	CSEA's
	petition
	as 	untimely.
	CSEA
	appealed
this
	dismissal
	on
	April
	13,
	1979,
	urging 	the
	same
	argument
outlined
	above.
	As
	with
	the 	appeal
	filed
	by
	CSEA
	and
	its
Chapter 	515,
	no
	response
	to
	this
	appeal
	was
	submitted.
-Selma
	Unified
	School
	District
The 	Selma
	Unified 	Teachers
	Association 	(hereafter
	SUTA)
	was
recognized
	as 	the 	exclusive
	representitve
	of
	all
	certificated
employees
	in 	the
	Selma
	Unified
	School
	District
	(hereafter 	the
District)
	excluding
	management,
	confidential, 	supervisory,
	and
substitute
	employees,
	in
	October 	1976.
	The
	negotiated
	contract
between
	SUTA
	and
	the
	District
	was
	to
	remain
	in
	full
	force
	and
effect
	up
	to
	and
	including
	June 	30, 	1979.
On
	April 	2, 	1979, 	Selma
	Unified 	Federation 	of 	Teachers,
	AFT
Local 	2197, 	AFL/CIO
	(hereafter
	SUFT)
	filed
	a
	petition
	for
decertification.
	On
	April 	6, 	1979,
	this 	petition
	was
	dismissed
as 	untimely
	by
	the 	Sacramento 	Regional 	Director. 	This
dismissal 	likewise 	states 	that 	the 	appellant
	had 	improperly
5

relied
	on
	the
	Government 	and
	Civil
	Procedure
	Code
	sections
	set
forth
	above
	for
	extending
	the
	window
	period.
On
	April
	16,
	1979,
	SUFT
	appealed 	the
	regional
	director's
dismissal
	of
	their 	decertification 	petition
	urging
	that
Steele	
v.	
Bartlett,
	supra,
	is
	inapplicable.
	The
	incumbent
	SUTA
submitted
	a
	response
	to
	SUFT's
	appeal
	on
	April
	30, 	1979,
	urging
only
	that
	the
	instant
	dispute
	be
	handled
	expeditiously
	by
	this
Board.
For
	purposes
	of
	the
	instant
	decision,
	the
	Board
	has
consolidated
	these
	three 	administrative 	appeals.
DISCUSSION
Section
	3544.5
	of 	the
	EERA
	authorizes
	the
	Board
	to 	consider
decertification 	petitions
	under
	certain
	conditions.
	Where
there
	is
	a
	contract
	between
	the
	public
	school
	employer 	and
	an
incumbent
	employee
	organization,
	the
	decertification 	petition
may
	not
	be
	entertained
	"unless 	the 	request 	for 	recognition
	is
filed 	less
	than
	120
	days, 	but
	more
	than
	90
	days,
	prior
	to 	the
expiration
	date 	of 	the 	agreement."
	(Sec. 	3544.7(b)
(1)
.) 	In
other
	words,
	there
	is
	a 	29
	day
	period
	from
	the 	119th
	day
through 	the 	91st
	day
	(both 	days
	inclusive) 	prior
	to 	the
expiration 	of 	the 	negotiated
	agreement 	during
	which 	employees
may
	petition
	to 	oust 	the 	incumbent 	employee
	organization. 	This
provision 	of 	the
	Act
	codifies
	a 	"window
	period"
	parallel 	to
that
	developed 	by
	case 	law 	under 	the 	National
	Labor
	Relations
Act
	(hereafter 	the
	NLRA). 	(See 	Deluxe 	Metal 	Furniture
	Companx
(1958) 	121
	NLRB
	995 	[42
	LRRM
	1470]; 	Leonard 	Wholesale 	Meats,
Inc. 	(1962) 	136
	NLRB
	1000 	[49
	LRRM
	1901] .)
6

In
	applying
	these
	time
	periods,
	the 	National
	Labor
Relations
	Board
	(hereafter
	the
	NLRB)
	has
	favored
	a
	policy 	of
strict
	construction.
	(Brown 	Co.
	(K_VP
	Division)
	(1969) 	178
	NLRB
57
	[71
	LRRM
	1642]
.)
	In
	doing
	so, 	the
	NLRB
	has
	sought
	to
preserve
	as
	much
	time
	as
	possible
	during 	the
	life
	of
	the
contract
	free
	from
	the
	disruption
	caused
	by
	organizational
activities
	thus 	enabling 	the
	incumbent
	to
	negotiate
	without
threat
	that
	a
	rival
	organization
	will
	convince
	employees
	to
turn
	elsewhere
	if
	discussions
	at
	the
	bargaining
	table 	are
disappointing.
	(Deluxe
	Metal
	Furniture
	Company,
	supra.)
In
	Bassett
	Unified
	School
	District
	(3/23/79)
	PERB
	Order
	No.
Ad-63,
	this
	Board
	indicated
	that
	it
	would
	follow
	NLRB
	precedent
and 	would
	likewise
	strictly
	adhere
	to
	the
	time
	limitations
prescribed
	by
	the
	statute.
The 	window
	period 	provided
	by
	section
3544.7(b)
	is
	unequivocally 	defined.
	For
	the
Board
	to
	extend
	that
	period
	by
	allowing 	the
filing
	of
	decertification 	petitions
	outside
its
	time
	limits
	would 	be
	to 	override
explicit 	legislative 	direction
	and
	erode 	the
right
	to
	the
	incumbent
	organization 	to
pursue
	its
	obligations
	as 	the 	exclusive
representative.
	This
	the
	Board
	cannot
	and
will
	not 	do.
	(Bassett
	at
	p. 	4.)
In 	each
	of
	the
	administrative 	appeals
	at 	issue, 	contracts
between 	the 	public 	school 	employers
	and
	the
	incumbent
	labor
organizations 	expired
	on
	June 	30, 	1979.6	
Appellant
	employee
organizations 	filed 	decertification 	petitions
	with 	the
appropriate
	PERE
	Regional 	Office
	on
	April
	2, 	1979,
	(less 	than
6suFT's 	assertion 	that 	July 	1,
	1979
	is 	the 	expirationdate 	of 	the 	contract 	does 	not
	alter
	the 	fact 	that 	the
	last
	day
for 	filing 	the 	petition 	fell
	on 	a 	weekend.
7

90
	days
	prior
	to
	expiration.)
	Appellants 	argue,
	however,
	that
since
	the
	last
	day
	for
	filing
	their 	decertification
	petitions
fell
	on 	a 	weekend
	day,
	PERB
	should 	adhere
	to
	Government 	Code
section
	6707 	and 	Code
	of
	Civil
	Procedure
	section
	12(a)
	and
accept
	the
	petitions.
	filed
	on 	Monday,
	April
	2, 	as
	timely.
The
	Board
	finds
	that
	the
	regional
	directors 	correctly
refused 	to
	apply 	the
	above
	referenced
	code
	provisions 	to 	the
statutory
	window
	period
	set
	forth
	in
	the 	Act. 	Contrary
	to
	the
urging
	of 	Appellants,
	case
	law
	interpreting
	and
	applying
	these
code
	sections
	has
	refused 	to
	extend
	statutory
	time
	limits
	where
specified 	acts
	must 	be
	performed
	"not
	less"
	or 	"not
	later"
	than
a
	given
	number
	of
	days
	before
	a
	designated 	time.
	(Steele 	v.
Bartlett,
	supra,
	at
	p. 	574.)
The
	language
	of 	section
	3544.7-~)
	of
	the
	Act
	expresses
	a
similar 	intent.
	- (See
	Bassett, 	supra.)
	For
	the
	Board
	to 	apply
these
	code
	sections
	would,
	as
	stated
	in
	Steele,
	supra
	at
p.
	574,
	"nullify
	the
	legislative 	intent 	that
	the
	act
	must
	be
performed
	more
	than
	a
	designated
	number
	of
	days
	before 	the
event
	specified."
For
	this
	reason, 	the
	Board
	refuses 	to 	adopt
	appellants'
argument
	that 	application 	of
	the
	Government 	and
	Civil
	Procedure
Code
	sections 	cited
	above
	is
	appropriate
	under 	the 	Act.
Appellants 	further 	allege,
	however,
	that
	the
	instant
decertification 	petitions
	were
	filed
	on
	April
	2, 	1979, 	based
on
	the 	Board's 	past 	practice 	of 	applying 	the
	Government 	and
Civil
	Procedure 	code
	provisions 	set 	forth 	above. 	Thus, 	the
question 	is
	whether
	PERB
	is 	equitably 	estopped 	from
	asserting
8

that
	the
	decertification 	petitions 	filed
	by
	the
	appellants
	were
untimely
	filed.
In 	the
	past,
	courts
	have 	been
	hesitant
	to 	accept
	and
	apply
the
	principle
	of
	equitable 	estoppel
	when
	asserted 	against
	a
governmental
	agency.
	(See
	generally
	Davis,
	Administrative
	Law,
section
	17.01,
	et~-,
	p.
	343.)
	The
	clear
	trend,
	however,
	is
to
	reject 	this 	rigid 	rule.
	Recent
	decisions 	reveal
	a
willingness
	to
	rely
	on
	this
	doctrine
	"when
	the
	accommodation
	of
the
	needs
	of
	justice
	to
	the
	needs
	of
	effective
	government
	so
requires."
	(Davis,
	supra,
	at
	p.
	357.) 	In
	California,
	it
	is
well
	established 	that
	a
	equitable 	estoppel
	defense
	against
	a
governmental
	agency
	is
	accepted
	where
	the
	impact
	of
	the
doctrine
	does
	not
	nullify
	a
	strong 	public 	policy.
	(Strong 	v.
County
	of
	Santa
	Cruz
	(1975) 	15 	C.3-5 720 	[125
	Cal.Rptr.
	896,
	543
P.2a 	264];
	Baillargeon
	v. 	Department
	of
	Water
	& Power 	(1977) 	69
C.A
..
3d 	670;
	138
	Cal.Rptr.
	338; 	Longshore
	v.
	County
	of
	Ventura
(1979)
	88
	C.A.3d 	126;
	Cal.Rptr.	
.)
In
	City 	of
	Long 	Beach 	v.
	Mansell
	(1970) 	3
	C.3d
	462 	[91
Cal.Rptr.
	23,
	476
	P.2d
	423]
	the
	Court
	instructed:
The
	government
	may 	be 	bound 	by 	an
	equitable
estoppel 	in 	the
	same 	manner
	as
	a
	privateparty
	when
	the 	elements
	requisite 	to
	such 	an
estoppel 	against
	a
	private 	party 	are 	present
and, 	in 	the 	considered
	view
	of
	a
	court 	of
equity,
	the
	injustice
	which 	would
	result
from 	a
	failure 	to
	uphold 	an
	estoppel 	is 	of
sufficient
	dimension
	to
	justify
	any
	effect
upon
	public
	interest
	or 	policy
	which 	would
result
	from
	the
	raising 	of
	an
	estoppel.(p. 	496-7).
Satisfaction 	of 	the
	requisite
	elements 	of 	the 	doctrine 	of
equitable 	estoppel 	involves
	a 	showing
	that 	the 	party 	to 	be
9

estopped 	was 	apprised 	of 	the 	facts 	and 	intended 	that 	its
conduct 	be 	acted 	upon 	(or 	that 	the 	party 	asseting 	the 	doctrine
could 	reasonably 	infer 	that 	the 	conduct 	was 	so 	intended). 	The
party 	asserting 	estoppel 	must 	support 	a 	showing 	that 	it 	was
ignorant 	of 	the 	true 	facts 	and 	relied 	upon 	the 	conduct 	which
resulted 	in 	injury. 	(Driscoll 	v. 	City 	of 	Los 	Angeles 	(1967) 	67
C.2d 	297 	[61 	Cal.Rptr. 	661, 	431 	P.2d 	245] .)
In 	the 	instant 	cases, 	the 	Board 	finds 	that 	each 	element 	of
the 	equitable 	estoppel 	doctrine 	is 	satisfied 	by 	the 	facts
presented. 	PERB 	was 	aware 	of 	situations 	where 	decertificatin
filing 	periods 	or 	other 	time 	limitation 	deadlines 	fell 	on
weekend 	days. 	In 	responding 	to 	these 	situations, 	the 	Board
takes 	official 	notice 	of 	PERB's 	past 	practice 	of 	applying 	the
Government and 	Civil 	Procedure,Code 	provisions 	and 	accepting
Monday 	filings 	of 	petitions 	otherwise 	due 	on 	weekend 	days.7
Having 	provided 	no 	actual 	notice 	to 	the 	parties 	practicing
before 	this 	Board 	that 	a 	change 	in 	policy 	had 	been 	adopted, 	the
Board 	finds 	that 	in 	each 	administrative 	appeal 	at 	issue 	herein,
the 	appellant's 	reliance 	was 	reasonable 	and, 	absent 	application
of 	the 	doctrine 	of 	estoppel, 	substantial 	injury 	would 	result.
The 	Board 	therefore 	concludes 	that 	the 	elements 	of 	estoppel
have, 	as 	a 	matter 	of 	fact, 	been 	satisfied. 	(Driscoll, 	supra.)
7rn 	Bassett, 	supra, 	issued 	prior 	to 	the 	filings 	at 	issue
herein, 	tne 	Board 	first 	found 	that 	decertification 	time 	limits
would 	be 	strictly 	applied 	and 	not 	be 	extended. 	However, 	to 	the
extent 	that 	the 	Board 	found 	that 	the 	properly 	calculated 	final
filing 	date 	fell 	on 	a 	Friday, 	rather 	than 	on 	a 	weekend, 	it 	was
unnecessary 	for 	the 	Board 	to 	specifically 	reach 	the 	issue
concerning 	application 	of 	the 	Government 	and 	Civil 	Procedure
Code 	sections 	and 	thus 	did 	not 	specifically 	disrupt 	the
parties' 	justifiable 	reliance 	on 	past 	practice.
10

In 	responding
	to
	appellants'
	request
	that
	the
	doctrine
	of
equitable
	estoppel
	be
	accepted
	and
	applied
	to
	the
	instant
cases,
	the
	Board
	has 	reviewed
	NLRB
	precedent
	where,
	based
	on
	a
party's
	good
	faith
	reliance
	on 	a
	board
	agent's 	representation,
the
	NLRB
	accepted 	the
	doctrine 	of 	equitable 	estoppel
	and
granted
	the
	relief
	requested
	by
	employers
	and
	employee
organizations
	alike.
	(Smeco
	Industries,
	Inc.
	(1965) 	151
	NLRB
1240 	[58
	LRRM
	1592];
	NLRB
	v.
	I.
	Posner
	(2nd
	Cir,
	1962) 	304
	F.2d
773 	[50
	LRRM
	2680];
	Carolina
	Power 	&	
Light
	Company 	(1958) 	119
NLRB
	1422 	[41
	LRRM
	1317];
	original
	decision 	reported
	at
	119
NLRB
	742 	[41
	LRRM
	1190]; 	Natvar
	Corp.
	(1954) 	109
	NLRB
	1278 	[34
LLRM
	1539];
	Armour
	Fertilizer
	works,
	Inc.
	(1943) 	46
	NLRB
	629
[11
	LRRM
	237]
.)
In 	reaching
	its
	decision
	hereii,
	the
	Board 	acknowledges
that
	precedent
	under
	the
	NLRA
	involves
	time
	limits
	promulgated
in
	NLRB
	regulations.
	Thus,
·notwithstanding 	the
	satisfaction
	of
the 	elements
	of 	estoppel 	in
	this
	case,
	the
	Board 	must
	consider
the 	nature 	of
	the
	decertification
	provision
	and,
	noting 	the
statutory
	nature 	of
	the 	time
	limitation
	under
	EERA, 	must
consider
	whether 	the
	Board
	"lacks
	the
	power
	to
	effect 	that
which 	an
	estoppel 	against
	it
	would
	accomplish."
	(Crumpler 	v.
Board
	of 	Administration
	(1973) 	32 	C.A.3d 	567; 	108
	Cal.Rptr.
293.)
After 	careful 	consideration, 	the
	Board 	must
	reject
	the
argument
	that 	statutory
	time
	limits 	are 	per 	se
	jurisdictional
and
	thus 	preclude 	reliance
	on
	equitable 	principles 	to 	deviate
from 	those 	time
	limits.
	The 	Board
	is 	satisfied 	that 	the
11

courts'
	prior
	adherence
	to
	a
	distinction
	between
	procedural
limits,
	to
	which
	equitable 	estoppel
	could
	be
	applied,
	and
jurisdictional
	prerequisites,
	to
	which
	equitable 	estoppel
	was
said
	to
	be
	beyond
	the
	power
	of
	an
	agency,
	is
	no
	longer
	a
tenable
	position.
	(City
	of
	Long
	Beach
	v. 	Mansell,
	supra.)
	In
this
	regard,
	the
	Board
	finds
	support 	in 	the
	recent 	decision 	of
the
	third
	circuit
	in
	Hart 	v.	
J.T.
	Baker 	Chemical
	Company
(Opinion
	filed
	May
	14,
	1979)
	___
	F.2d
	___
,
	which
considered
	statutorily
	imposed
	time
	limits
	for
	filing
discrimination
	charges
	under
	Title
	VII
	of
	the
	Civil
	Rights
	Act
of
	1964.8	
The
	court
	held
	that
	"the
	time
	limitations
	should
not
	be
	treated
	as
	inflexible
	jurisdictional prerequisites,
	but
should
	be
	subject 	to 	equitable 	modifications."
In
	agreement 	with 	the 	Hart
	decfsion,
	this
	Board
	is
unwilling 	to
	view
	its
	power
	as
	so
	circumscribed
	that
	it
	is
unable 	to
	effectively
	respond
	to
	principles
	of 	equity, 	fairness
and
	justice
	as
	urged
	herein
	by
	appellants.
In 	the 	cases
	at 	issue,
	the
	Board
	is
	mindful
	of
	those 	ends
served
	by
	definite
	time
	limitations
	for 	submission
	of
decertification 	petitions
	as 	expressed 	supra 	in
	Deluxe
	Metal
Furniture
	and
	adopted
	by
	this
	Board
	in
	Bassett.
	However,
	the
Board
	believes 	that
	its
	broad
	grant 	of
	power
	to
	effectively
administer 	the
	EERA
	is
	furthered
	when
	all
	employees
	are
provided
	an
	opportunity 	to 	voice
	their 	dissatisfaction
	with
	an
incumbent 	employee
	organization. 	Effective
	and
	meaningful
labor 	relations 	are 	fostered
	when
	the 	majority 	of 	employees 	in
842 	U.S.C. 	Section 	2000c-5(e).
12

the 	bargaining
	unit
	have
	vocalized
	their
	support
	for
	their
organizational
	spokesperson.
	Anv
	mechanlsrn,
	such 	as
	the
decertification
	election
	procedure,
	which·
insures
	this
	result
should
	be
	provided 	for
	whenever
	possible.
The
	public
	purpose
	of 	insuring
	harmonious
	labor
	relations
is
	likewise 	fostered	
by	
the 	Board's 	acceptance 	of 	the
appellants'
	equitable 	plea.
	In
	the
	instant
	cases,
	the
	Board
will
	not
	allow
	principles
	of 	equity
	and
	fairness
	to
	be
subordinated 	to
	rigid
	procedural 	requirements.
	Absent 	anv
substantial 	injustice
	occasioned
	on
	the
	public
	and
	in 	order 	to
further
	the
	goals
	of
	the
	EERA,
	petitioners
	who
	were
	misled
	by
the 	Board's
	past 	practice
	should 	not
	be
	forced 	to
	suffer 	the
penalty
	which
	would
	result
	from
	dismissal
	of
	their
decertification 	oetitions.
/,
By:
	Barbara
	D. 	Moore, 	Member 	Ha
	Gluck,
	Chairper=	
ry
11-~	
J 	L	
~
Raymond
	J.
	Gonzales,
	Member,
concurring:
On
	May
	25, 	1979,
	I
	joined with 	the 	other
	Board
	Members
	in
reversing 	the 	regional 	directors
	and
	directing
	them
	to 	accept
the
	decertification 	petitions 	filed 	in 	these 	three 	cases.
	PERB
Decision
	No. 	Ad-65
	(5/15/79).
	I
	did 	so
	principally
	on
	the 	basis
that
	Government 	Code 	6707 	and 	Code
	of 	Civil
	Procedure
	(CCP)
	12(a)
apply 	to 	the 	filing 	of 	decertification 	petitions 	filed 	pursuant
to
	EERA
	Section 	3544.
7
(b) (1) 	and
	PERB
	regulation
	33270
(c).
	I
13

believe
	these
	statutes
	operated
	to
	extend
	the
	filing
	deadlines
to
	Monday,
	April
	2,
	and
	the
	petitions
	should
	therefore
	be
considered
	as
	timely
	filed.
I
	do
	not 	believe
	that
	the
	California
	Supreme
	Court's
	holding
in 	Steele
	v.
	Bartlett
	(1941)
	18
	C.2d 	57,
	controls 	in
	this
	case.
First,
	that
	case
	concerned
	the
	California 	election
	laws 	which
serve
	a
	different
	purpose 	than
	the
	emphasis
	on
	harmonious
	labor
relations
	and
	stability
	which
	informed
	labor
	relations
	statutes
such 	as
	the
	EERA.
	Moreover,
	the
	language
	of
	the
	statute
interpreted
	by
	the
	Court
	in 	Steele
	v.
	Bartlett
	was
	significantly
different
	from
	the
	EERA
	language
	in 	issue.
	That
	statute 	utilized
negative
	language
	("not
	later
	than
	12
	o'clock
	noon 	on
	the 	31st
day
	before 	the
	election,"
	Electio~Code 	Section
	9760), 	which
emphasized
	the
	r.igid
	nature 	of
	the
	filing
	deadline.
	By
	contrast,
the
	EERA
	language
	in
	question
	--
	"but
	more
	than
	90
	days"
	--
	does
not 	contain 	negative
	language
	suggesting 	the
	time
	period
	may
	not
be
	extended.
	I
	believe
	that
	in 	enacting 	the
	EERA,
	the 	Legislature
would 	have
	phrased
	EERA
	Section
	3544.7(b)
(1)
	in 	negative
	terms
	--
or 	otherwise 	indicated
	CCP
	12(a)
	and 	Government
	Code 	6707
	did
	not
apply
	--
	had
	they 	intended 	to 	distinguish 	the 	fixed 	nature 	of
	the
decertification 	filing
	period
	from
	other
	filing
	periods 	provided
for 	in 	the
	EERA.
I
	believe 	this 	is 	especially 	true 	insofar
	as 	the 	Legislature
had 	enacted
	Government 	Code 	6707
	(in 	1957,
	16
	years
	after
	the
Steele 	v.
	Bartlett decision) 	to 	apply
	specifically 	to 	filings
with 	state 	agencies, 	of
	which
	PERB
	is
	one.
14

I
	share
	with
	my
	colleagues
	the 	opinion
	that
	because	
PERE
has
	had
	a
	practice
	of 	accepting
	petitions 	filed
	on
	a 	Monday
which
	would
	otherwise
	have 	been
	due 	on
	a
	weekend,
	it
	must
continue 	to 	accept
	petitions
	so
	filed
	unless
	and
	until
	it
notifies 	parties 	that
	there
	is
	a 	new
	filing
	policy.
/aaym~
	J.
	Gonzales,,::}1ember (
15

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
:n
che
:-!attar
of:
CALIFORNIA
SCHOOL
EMPLOYEES
ASSOC!A!ION,
AJ..\1)
rrs CHAPTER 515 ,
Peticioner,
	APPELLANT,
and
:!E~lLO
PARK
CITY
ELE.'1:ENT.ARY
SCHOOL
DISTRICT,
Employer.
)
)
)
)
)
)
)
)
)
___________________
)
)
)
)
)
)
)
)
)
)
)
)
)
CALIFORNIA
SCHOOL
EMPLOYEES
ASSOCI.~TION,
..
urn
ITS
C:-l<\.?TER
4,
Peticioner,
	APPELL'\.NT,
and
SA~
JOSE UNIFIED
SCHOOL
DISTRICT,
E:::lp
lo
yer.
___________________
)
SE~1A
UNIFIED
FEDERATION
OF
TEACHERS,
AFT LOCAL
2197, AFL-CIO,
Pecitioner,
	APPELLANT,
and
SEL'1A L'N'I:!ED
SCHOOL
DISTRICT,
Employer.
)
)
)
)
)
)
)
)
)
)
)
)
___________________ )
Case
No.
	SF-D-45
(R-4li)
PERB
Decision
No.	
Ad-65
'c-as
e No. 	SF-
D-46
(R-68B)
Administrative
Appeal
May
25, 	1979
Case
No. 	S-D-24
(R-64)
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
(1) 	The
	regional 	directors' 	dismissals 	of 	the
	decertification

petitions 	filed
	by
	the
	California
	School
	Employees
	Association,
	and
its
	Chapter
	515
	and
	Chapter 	4,
	and
	by 	Selma
	Unified
	Federation
	of
Teachers,
	AFT
	Local
	2197,
	AFL-CIO
	in
	the
	above-captioned
	casesare
reversed.
(2)
	The
	regional
	director 	shall
	process 	the
	decertification
petitions
	and,
	if
	appropriate,
	conduct
	an
	election 	in
	the
	units
in
which
	petitions
	were
	filed
	as
	soon
	as
	possible.
ThB
	parties
	herein 	are
	advised
	that
	an
	opinion
	of
	the
	Board
consistent
	with
	this
	Order
	will
	follow.
Public
	Employment
	Relations
	Board
Stephen
	Barber, 	Executive
	Assistant
V 	'
-2-