City of Carson (PERB A327M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF CARSON,
Employer,
and
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 809, AFL-CIO,
Petitioner.
Case No. LA-BR-2-M
Administrative Appeal
PERB Order No. Ad-327-M
June 20, 2003
Appearances: Richards, Watson & Gershon by Amy Greyson, Attorney, for City of Carson;
Rothner, Segall & Greenstone by Bernhard Rohrbacher, Attorney, for American Federation of
State, County and Municipal Employees, Local 809, AFL-CIO.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the City of Carson (City) of a Board agent’s administrative
determination (attached). The American Federation of State, County and Municipal
Employees, Local 809, AFL-CIO (AFSCME) filed a petition for Board review under PERB
Regulation 60000 alleging that the City failed to follow its Employer-Employee Relations
Resolution No. 85-107 (EERR) promulgated pursuant to the Meyers-Milias-Brown Act
(MMBA)
1
in granting a unit modification petition. Under the unit modification petition,
Professional Association (Association) proposed to transfer the Public Information Specialist
2
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
1
MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2

(PIS) classification from AFSCME’s middle-management unit to the Association’s
professional employees’ unit. AFSCME alleged that the petition was: (1) untimely; (2) did
not follow the format required by the EERR; and (3) did not contain appropriate factual
justification for the proposed modification. In the administrative determination, the Board
agent found that: (1) the Board has jurisdiction over this dispute; (2) the applicable “open
period” for petitioning for a unit modification under Article II, Section 10 of the EERR is that
of the incumbent employee organization, and not of the petitioning organization; and, (3) the
unit petition was not filed within the “open period” under Article II, Section 8 of the EERR
because it was filed during the term of the memorandum of understanding (MOU) between the
City and AFSCME, the incumbent organization. The Board agent thus concluded that the
City’s decision that the unit modification petition was timely filed was inconsistent with its
own rules and ordered that the PIS be returned to AFSCME’s middle-management unit.
We agree with the Board agent and thereby adopt the administrative determination as a
decision of the Board itself. The Board addresses the issues raised in the City’s appeal below.
DISCUSSION
Both the City and AFSCME acknowledge that this dispute involves whether, under the
City’s EERR, the Association may petition to transfer the PIS from AFSCME’s bargaining unit
to the Association’s bargaining unit during the Association’s open period. As a threshold
issue, the City argues that the Board lacks jurisdiction over this dispute. Contrary to the City’s
contention, we conclude that the Board has jurisdiction over this dispute for the reasons that
follow.
On March 1, 2001, the Association filed a petition to transfer two classifications,
including the PIS, from the AFSCME bargaining unit to the Association’s professional
2

________________________
employees’ unit. This occurred during the open period in the Association/City MOU, but not
during the open period in the AFSCME/City MOU. 	By memorandum dated March 6, 2001,
the City’s Director of Human Resources, Ramona Lopez (Lopez), found the petition to be
timely filed. By memorandum dated September 24, 2001, Lopez granted the petition for
transfer of the PIS classification. AFSCME appealed the Lopez decision to the City Manager,
Jerry Groomes (Groomes), who affirmed Lopez’s decision. AFSCME then appealed the
Groomes decision to the City Council, who on February 19, 2002, accepted the staff
recommendation to affirm the decision to transfer the PIS to the Association’s bargaining unit.
3
The Board finds that in the March 6 memo, by its own language, Lopez interpreted
Article II Sections 8 and 10 of the EERR to find the petition timely filed. The Board agent
found this interpretation of the City’s rules to be in error. The City claimed that the Board
agent improperly ruled on the propriety of the proposed unit modification under MMBA
section 3507. 3. 	However, we find that the Board agent properly determined that the City’s
decision did not comply with its own rules for unit determinations promulgated under MMBA
4
The MOU between the City and the Association was in effect from July 1, 1999
through June 30, 2001, and the MOU between the City and AFSCME, from July 1, 1999
through June 30, 2002.
3
4MMBA section 3507.3 provides, in pertinent part:
Professional employees shall not be denied the right to be
represented separately from nonprofessional employees by a
professional employee organization consisting of such
professional employees. In the event of a dispute on the
appropriateness of a unit of representation for professional
employees, upon request of any of the parties, the dispute shall be
submitted to the Division of Conciliation of the Department of
Industrial Relations for mediation or for recommendation for
resolving the dispute.
3

________________________
this issue is
properly before the Board.
section 3507.5 (MMBA section 3509(c). ) Under MMBA section 3509(a),6 	7
8
5Section 3507 provides, in pertinent part:
A public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives of an employee
organization or organizations for the administration of employer-
employee relations under this chapter (commencing with Section
3500).
(Emphasis added.)
Exclusive recognition of employee organizations formally
recognized as majority representatives pursuant to a vote of the
employees may be revoked by a majority vote of the employees
only after a period of not less than 12 months following the date
of such recognition.
6Section 3509(c) provides:
The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation,
recognition, and elections.
7Section 3509(a) provides:
The powers and duties of the board described in Section 3541.3
shall also apply, as appropriate, to this chapter and shall include
the authority as set forth in subdivisions (b) and (c).
PERB Regulation 60000, which provides the mechanism for AFSCME to challenge
the City’s application of its local rules under MMBA sections 3509(a) and (c), states in
pertinent part:
8
(a) Any party to a determination by a public agency concerning
unit determination, representation, recognition or elections may
file a petition requesting the Board review the determination.
Such a petition may only be filed within 30 days following
exhaustion of administrative remedies available under the
applicable local rules. A challenge to the validity of a local rule
may not be filed under this section and may only be filed as an
unfair practice charge pursuant to Section 32602 of these
regulations.
(Emphasis added.)
4

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The Board next decides whether the City properly applied EERR Article II in
determining that the Association timely filed its petition for unit modification. We agree with
the Board agent that the City erred in its interpretation of EERR Article II.
The EERR, in Article II, section 10 provides that:
Procedure for Modification of Established Appropriate Units.
Requests by Exclusively Recognized Employee Organizations for
modifications of established appropriate units represented by the
Exclusively Recognized Employee Organizations may be
considered by the Employee Relations Officer only during the
open period specified in Section 6[ ]
of this Article II.
(Emphasis added.)
9
EERR, Article II, section 8 provides, in pertinent part:
A Decertification Petition may not be filed within one year after a
valid election or during the term of, or the negotiations leading to,
a valid Memorandum of Understanding except during an ‘open
period’: the 30-day period commencing one hundred fifty (150)
days and ending one hundred twenty (120) days prior to the
termination date of a Memorandum of Understanding. A valid
Memorandum of Understanding shall not serve as bar to the filing
of a Decertification Petition for more than a three-year period.
(Emphasis added.)
Both parties acknowledge that Article II does not specify which MOU open period
applies in this situation. The City applied the Association’s open period in order to find that
the Association’s petition was timely.
In applying the open period in the Association’s MOU, the City states that its
interpretation of its local rules is reasonable and thus the Board should defer to the City’s
interpretation. The City states that the Board agent improperly interpreted MMBA and
Both parties agree that the reference to EERR Article II, Section 6 is incorrect, and
instead should refer to Article II, Section 8, which identifies the open period for decertification
petitions. Article II, Section 6 refers to the 15-day period for a competing employee
organization to file a challenge to an election petition once the City has posted a notice of
election.
9
5

________________________
inappropriately applied National Labor Relations Board (NLRB), Educational Employment
Relations Act (EERA), Higher Education Employment Relations Act (HEERA), and the Ralph
C. Dills Act (Dills Act) precedent to this matter. 	In so doing, the City heavily relies upon
Service Employees Internat. Union v. City of Santa Barbara (1981) 125 Cal. App. 3d 459 [178
Cal.Rptr. 89] (SEIU).
10
AFSCME argues that Article II, Section 8, as applied to decertification petitions,
prohibits such petitions within one year after a valid election, or during the term of a valid
MOU, the purpose of which is to protect the incumbent organization and thus the stability of
employer/employee relations. AFSCME further asserts that this protective function extends to
unit modification petitions. AFSCME argues that MMBA section 3507 allows public agencies
to establish rules restricting such petitions in addition to, but not conflicting with, the rules in
Section 3507, which, AFSCME asserts, is what the City did in Article II, Sections 8 and 10 of
the EERR. AFSCME thus contends that SEIU is irrelevant, since in that case, the court
disagreed with the union’s position that the NLRB’s 3-year contract bar should supercede a
local rule identical to MMBA section 3507, requiring a 12-month bar for decertification
petitions.
We agree with AFSCME that the instant matter is clearly distinguishable from SEIU.
The court in SEIU noted the express contract bar periods found in EERA, HEERA, and the
Public Utilities Code as compared to the absence of such a bar in MMBA and concluded that
the union’s proposed imposition of a 3-year contract bar comprised an “unwarranted invasion
of legislative prerogative,” not an intrusion upon the City of Santa Barbara’s legal authority.
-
EERA is codified at Government Code section 3540 et seq. HEERA is codified at
Government Code section 3560 et seq. The Act is codified at Government Code section 3512
et seq.
10
6

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(Emphasis added.) In this case, the EERR Article II, Section 8 imposes an express contract bar
for unit modifications separate and distinct from the 12-month election bar provided in Section
3507. Therefore, we agree with the Board agent and AFSCME that the holding in SEIU does
not control in this case.
The City further argues that the Board should interpret the local rules in accordance
with the purposes of MMBA and thus uphold its interpretation of the EERR if it is reasonable.
However, we concur with the Board agent’s well-reasoned conclusion that “the City has de
facto extended the principles of the contract bar doctrine to unit modification petitions by
including open period requirements" in Article II, Sections 8 and 10 of the EERR. Thus, it is
appropriate to construe those provisions in accordance with NLRB case precedent, EERA
section 3544.7(b)(1), 	and PERB’s unit modification regulations applicable to cases under
EERA, HEERA and the Dills Act.
11
12 As a result, it is appropriate for the Board to rely upon
11EERA section 3544.7(b)(1) provides:
(b) No election shall be held and the petition shall be dismissed
whenever either of the following exist:
(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.
12PERB Regulation 32781 provides, in pertinent part:
Absent agreement of the parties to modify a unit, an exclusive
representative, an employer, or both must file a petition for unit
modification in accordance with this section. Parties who wish to
obtain Board approval of a unit modification may file a petition
in accordance with the provisions of this section.
7
----

________________________
precedent from the NLRB and pertinent statutes under the Board’s jurisdiction to interpret the
provisions of Article II, Sections 8 and 10 of the EERR.13
Under Board and NLRB precedent, the objectives of the contract bar doctrine are:
(1) to simplify rules in order to avoid litigation and quickly resolve disputes in representation
proceedings; and, (2) to balance the statutory policies of stability in labor relations with
employees’ freedom to choose their bargaining representatives. 	We disagree that the City’s
interpretation of Article II of the EERR was “reasonable” or meets those objectives. Indeed, to
paraphrase the Board agent’s assessment, to permit one exclusive representative to “raid”
another bargaining unit by filing a unit modification petition during the petitioner’s open
period would severely diminish the time needed to stabilize the incumbent representative’s
bargaining relationship with the employer, a purpose the contract bar doctrine seeks to avoid.
14
(b) A recognized or certified employee organization, an
employer, or both jointly may file with the regional office a
petition for unit modification:
(4) To delete classification(s) or position(s) not subject to (1)
above which are not appropriate to the unit because said
classification(s) or position(s) are management, supervisory,
confidential, not covered by EERA, HEERA or Ralph C. Dills
Act, or otherwise prohibited by statute from inclusion in the unit,
provided that:
(C) The petition is filed during the ‘window period’ of a lawful
written agreement or memorandum of understanding as defined
in these regulations in Section 33020 for EERA, Section 40130
for Ralph C. Dills Act or Section 51026 for HEERA.
13See State of California (1983) PERB Decision No. 348-S.
See State of California (Department of Personnel Administration) (1983) PERB
Decision No. 327-S; Pittsburg Unified School District (1978) PERB Order No. Ad-49; Bassett
Unified School District (1979) PERB Order No. Ad-63; Appalachian Shale Products Co.
(1958) 121 NLRB 1160, at p. 1161 [42 LRRM 1506].
14
8

On the other hand, the Board agent’s determination that the AFSCME/City MOU
provided the applicable open period under the City’s EERR promotes those objectives. Since
the Association’s petition was filed outside of that open period, the Board finds that the City
erred in its determination that the petition was timely.
In light of the above, the Board summarily affirms the Board agent’s administrative
determination.
ORDER
The Board affirms the administrative determination in Case No. LA-BR-2-M in its
entirety and thereby orders the City of Carson to return the Public Information Specialist to the
American Federation of State, County and Municipal Employees, Local 809, AFL-CIO’s
middle-management bargaining unit.
Members Baker and Neima joined in this Decision.
9

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF CARSON,
Employer,
and
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 809, AFL-CIO,
Petitioner.
REPRESENTATION
CASE NO. LA-BR-2-M
ADMINISTRATIVE
DETERMINATION
March 19, 2003
BACKGROUND
On March 20, 	2002, the American Federation of State, 	County and Municipal
Employees, Local 809, AFL-CIO (AFSCME), filed a Petition for Board Review (Petition) with
the Public Employment Relations Board (PERB or Board) pursuant to PERB Regulation
60000. 	The petition seeks to have PERB review the action taken by the City of Carson to
grant a unit modification petition filed with the City by the Professional Association.
1
2 Both
1 PERB Regulation 60000(a) provides:
Any party to a determination by a public agency concerning unit
determination, representation, recognition or elections may file a
petition requesting the Board review the determination. Such a
petition may only be filed within 30 days following exhaustion of
administrative remedies available under the applicable local rules.
A challenge to the validity of a local rule may not be filed under
this section and may only be filed as an unfair practice charge
pursuant to Section 32602 of these regulations.
More specifically, AFSCME’s Petition requests PERB to resolve a list of issues,
including whether: (1) the Association’s unit modification petition was timely and conformed
to the requirements of the EERR; (2) the City denied AFSCME due process; (3) the City and
the Association improperly colluded in the processing of the petition; (4) the City misapplied
the definition of “professional employee” when granting the petition; (5) the City was barred
2

________________________
AFSCME and the Association are exclusive representatives of bargaining units in the City.
AFSCME 	represents 	a 	unit 	of 	“middle 	management” 	employees, 	and 	the 	Association
represents a unit of “professional” employees. 	On April 10, the City filed its response to the
Petition with PERB. In addition to refuting and denying the allegations contained therein, the
City argued that PERB does not have jurisdiction to resolve the representation issues raised by
the Petition. 	On May 3, 2002, AFSCME filed a responding statement, and the case was
submitted for determination.
3
FINDINGS OF FACT
The Association filed a unit modification petition with the City on March 1, 2001, to
transfer the positions of Public Information Specialist (PIS) and Code Enforcement Specialist
from AFSCME’s unit into the Association’s unit 	pursuant to the City’s Employer-Employee
Relations Resolution (EERR).4 At that time, there was an MOU between the City and the
from granting the petition due to a pre-existing settlement agreement with AFSCME; (6) the
petition should be denied due to the absence of changed circumstances and/or due to its
destablizing effect on employee-employer relations; and (7) the City’s granting of the petition
was “otherwise rendered in accordance with the MMBA, the EERR, and applicable precedent.”
AFSCME’s Petition requests, as a remedy, that the Board reverse the City’s determination and
find that the PIS should remain in its unit.
When the Association’s unit was established in 1998, a compromise was negotiated
between the City and AFSCME in which AFSCME agreed to drop its overall appeal regarding
the proposed unit in exchange for keeping certain classifications in its unit, including the
Public Information Specialist.
3
4 Article II of the EERR provides procedures for the modification of established units:
Section 10. Requests by Exclusively Recognized Employee
Organizations for modifications of established appropriate units
represented by the Exclusively Recognized Employee
Organizations may be considered by the Employee Relations
Officer only during the open period specified in Section 6 of this
Article II. Such requests shall be submitted in the form of a
Recognition Petition and, in addition to the requirements set forth
in Section 4 of this Article, shall contain a complete statement of
all relevant facts and citations in support of the proposed
2

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Association effective July 1, 1999 - June 30, 2001, and an MOU between the City and
AFSCME effective July 1, 1999 - June 30, 2002.
On March 6, 2001, Director of Human Resources Ramona Lopez notified AFSCME in
writing of the unit modification petition. 	Her memo stated that the petition was timely, and
that she would call to confirm a meeting date to discuss the matter. 	AFSCME was given the
opportunity to respond in writing to the petition, and both organizations were subsequently
given opportunities to submit additional information in support of their positions. In addition,
Ms. Lopez met with representatives of both organizations to discuss their positions.
In a letter responding to the unit modification petition dated June 18, 2001, AFSCME
alleged that the petition was (a) untimely; (b) not in the form of a recognition petition as
modified unit in terms of the policies and standards set forth in
Section 9 hereof.
. . . The Employee Relations Officer shall give written notice of
the proposed modification to any affected employee organization
and shall hold a meeting concerning the proposed modifications,
at which time all affected employee organizations shall be heard.
Thereafter, the Employee Relations Officer shall determine the
composition of the appropriate unit or units in accordance with
Section 9 of the Article II, and shall give written notice of such
determination to the affected employee organizations. The
Employee Relations Officer’s determination may be appealed as
provided in Section 11 of this Article.
Section 11. An employee organization aggrieved by a
determination of the employee Relations Officer that a . . .
Modification of Established Appropriate Units (Section 10). . .
has not been filed in compliance with the applicable provisions of
this Article may, within fifteen (15) days of notice of such
determination, appeal the determination to the City
Administrator. . . .The City Administrator may, in its discretion,
refer the dispute to a third party for a hearing and advisory
recommendation. Any decision of the City administrator on the
use of such procedure, and/or any decision of the City
Administrator or of the third party determining the substance of
the dispute may be appealed to the City Council.
3

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required by the EERR; and (c) 	did 	not 	contain factual 	justification for 	the proposed
modification to its unit.
On September 24, 2001, Ms. Lopez issued a decision denying the unit modification
petition as it pertained to the Code Enforcement Specialist and granting the petition as it
pertained to the PIS. 	Ms. Lopez found that the PIS classification met the criteria for a
professional position in the EERR, and that PIS employees share a community of interest with
other positions in the professional unit in that they share “a similarity in the kinds of work
performed, types of qualifications required and the general working conditions.” 	She noted
that the compromise reached with AFSCME regarding this position in 1998 did not preclude
the City from ever approving future unit modifications regarding this position or any other
position.
5
6
5 Article I, Section 2(m) defines professional employees as:
employees engaged in work requiring specialized knowledge and
skills attained through completion of a recognized course of
instruction, including but not limited to, attorneys, physicians,
registered nurses, engineers, architects, teachers, and the various
types of physical, chemical, and biological scientists.
Ms. Lopez stated that, should AFSCME wish to appeal the City Council’s decision in
this matter, an appeal could be filed with the Division of Conciliation of the Department of
Industrial Relations (DIR) pursuant to Section 3507.3 of the Meyer-Milias-Brown Act
(MMBA). The MMBA is codified at Government Code section 3500 et seq. Government
Code section 3507.3 provides:
6
Professional employees shall not be denied the right to be
represented separately from nonprofessional employees by a
professional employee organization consisting of such
professional employees. In the event of a dispute on the
appropriateness of a unit of representation for professional
employees, upon request of any of the parties, the dispute shall be
submitted to the Division of Conciliation of the Department of
4

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AFSCME appealed Ms. Lopez’s decision to City Manager Jerome Groomes, who
provided AFSCME with another opportunity to submit a written position statement.
Mr. Groomes subsequently upheld Ms. Lopez’ decision. 	On January 30, 2002, AFSCME
appealed to the City Council, requesting a full evidentiary hearing on the matter. 	AFSCME
was allowed to present its position both in writing and orally at the City Council meeting on
February 19, 2002. 	On that date, in a report to the Mayor and City Council recommending
that they support his decision, Mr. Groomes reiterated AFSCME’s right to appeal such a
determination 	to the DIR pursuant to Government Code section 3507.3. 	The City Council
upheld Mr. Groomes’ decision.
On April 2, 2002, approximately two weeks after the filing of this Petition for Board
Review, the City sent a letter to the State Mediation and Conciliation Service requesting
mediation to resolve this dispute. To date, no mediation sessions have taken place.
ISSUES
(1) Is it within PERB’s jurisdiction to decide the issues raised by the Petition for Board
Review?
(2) If so, was the Association’s unit modification petition processed in
accordance with the City’s rules, the MMBA and applicable precedent? City?
Industrial Relations for mediation or for recommendation for
resolving the dispute.
"Professional employees," for the purposes of this section, means
employees engaged in work requiring specialized knowledge and
skills attained through completion of a recognized course of
instruction, including, but not limited to, attorneys, physicians,
registered nurses, engineers, architects, teachers, and the various
types of physical, chemical, and biological scientists.
5

DISCUSSION
Jurisdiction
The MMBA was amended effective July 1, 2001, to grant PERB the authority to
“enforce 	and apply rules adopted 	by a public 	agency concerning 	unit 	determinations,
representation, 	recognition, 	and 	elections” 	and 	to 	process 	unfair 	practice 	charges.
(Government Code section 3509.) PERB concurrently promulgated regulations to enable it to
carry out this charge. As stated above, PERB regulation 60000 permits any party to a decision
concerning unit determination to file a petition requesting the Board to review that decision.
The City argues that PERB’s jurisdiction in this matter is superseded by Government Code
section 3507.3, which provides for disputes regarding the “appropriateness of a unit of
representation for professional employees” to be submitted to the DIR for mediation. The City
asserts that since AFSCME has not availed itself of this process, AFSCME has not exhausted
all administrative remedies to the City’s decision.
The Petition for 	Board Review, 	however, 	does 	not 	involve a dispute over the
appropriateness of a unit of representation for professional employees. It involves a dispute as
to whether the City followed its own rules when it processed a unit modification filed by the
Association to remove a classification from AFSCME’s unit and transfer it to the Association’s
unit. Government Codes section 3507.3 is thus inapplicable to the issues raised by the Petition
for Board Review, and it is within PERB’s purview to process the Petition for Board Review.
The City’s Actions
PERB Regulation 60010 provides that:
(a) Whenever a petition under Section 60000 is filed with the
Board, the Board shall investigate and, where appropriate,
6

conduct a hearing, or take such other action as deemed necessary
to decide the questions raised by the petition.
(b) The 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) The determination of the public agency
was rendered in accordance with MMBA,
the local rules of the public agency, and
applicable precedent.
There is no dispute that AFSCME, as the exclusive representative of a unit of
employees affected by the City’s action, has standing to file the instant Petition. 	Therefore,
this decision must first focus on whether the City’s determination to grant the Association’s
unit modification petition as it pertained to the PIS classification was rendered in accordance
with MMBA, the local rules and applicable precedent.
The threshold question decided by the City was the timeliness of the Association’s unit
modification petition. 	The language in the EERR regarding unit modification timelines is
found in Article II, Section 10:
Requests by Exclusively Recognized Employee Organizations for
Modifications of established appropriate units represented by the
Exclusively 	Recognized 	Employee 	Organizations 	for
modifications of established units represented by the Exclusively
Recognized Employee Organizations may be considered by the
Employee Relations Officer only during the open period specified
in Section 6 of this Article II.
Article II, Section 6 defines the open period as the 15 day period after a notice of election is
posted in which a competing organization may file an intervening petition to become an
exclusive representative. 	This definition is obviously not relevant to situations in which
employee organizations have already been recognized as exclusive representatives, such as in
7

the filing of decertification and unit modification petitions. Both AFSCME and the City
recognize this error, since they refer instead to the open period definition contained in Section
8 of Article II, which sets forth the procedure for filing a decertification petition:
A Decertification Petition may not be filed within
one year after a valid election or during the term
of, 	or 	the 	negotiations 	leading 	to, 	a 	valid
Memorandum of Understanding except during an
“open period”: the 30-day period commencing one
hundred fifty (150) days and ending one hundred
twenty (120) days prior to the termination date of a
Memorandum 	of 	Understanding. 	(Emphasis
added.)
Thus, it is the Section 8 definition which the City applied to its timeliness determination and
which shall be controlling herein.
There is no dispute that the unit modification petition was filed during the open period
of the Association’s MOU, and that this is the basis for the City’s ruling that it was timely.
However, AFSCME contends that any petition which seeks to modify its unit should be filed
during the open period of its MOU, which did not become operative until a year after the unit
modification petition was filed.
The language in the EERR regarding the filing of unit modification petitions does not
speak to which open period is controlling, that of the employee organization filing the petition
or that of the organization whose unit is potentially affected. The City contends that it
reasonably interpreted the EERR when it determined that the unit modification petition was
timely filed during the open period of the Association’s MOU. AFSCME argues here, as it did
previously before the City, that “because the ‘open period’ described in §8 is designed to
protect an incumbent employee organization - either during the term of a valid MOU or during
8

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negotiations 	for 	a 	new MOU - 	the 	relevant 	open period 	for 	challenging 	AFSCME’s
representation of positions within its bargaining unit is AFSCME’s open period.”
The open period definition contained in Section 8 emanates from the contract bar
doctrine which was developed through case law by the National Labor Relations Board
(NLRB). 	This doctrine also served as the model for similar language contained in 	the
Educational Employment Relations Act (EERA). 	The contract bar doctrine holds that, in
order to achieve “a finer balance between the statutory policies of stability in labor relations
and the exercise of free choice in the selection or change of bargaining representatives,” a
current valid contract will ordinarily prevent the conduct of an election involving an incumbent
union and a rival union.
7
Thus, while rival employee organizations must be given an
opportunity to challenge an exclusive representative on behalf of dissatisfied employees, this
opportunity must be limited to a time certain during the life of a collective bargaining
agreement in order to ensure stable employer-employee relations. 	PERB has supported this
principle in a long line of cases in which the Board has also affirmed the value of definite,
easily applied rules which will quickly resolve representational issues, avoid lengthy litigation
8
EERA is codified at Government Code section 3540 et seq. Section 3544.7(b)(1)
provides:
7
(b) 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 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.
8 Appalachian Shale Products Company (1958) 121 NLRB 1160 [42LRRM 1506].
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and thereby promote stable employer-employee relations. (State of California (Department of
Personnel Administration (1989) PERB Decision No. 348-S.)9
The City has de facto extended the principles of the contract bar doctrine to unit
modification petitions by including open period requirements in Article II of the EERR. A
similar requirement is contained in PERB’s unit modification regulations, which apply to cases
arising under the EERA, the Higher Education Employment Relations Act and the Dills Act.10
These regulations require open period (referred to as “window period”) filings when an
employer seeks to remove classifications from a represented unit which it contends are
management, supervisory or confidential or otherwise excluded from coverage, and there is a
lawful written agreement or MOU in effect.
Permitting an exclusive representative to effectively “raid” another bargaining unit by
filing a unit modification petition during the petitioner’s open period would severely diminish
the time certain in which an exclusive representative could work to stabilize its relationship
with an employer insulated from challenges, and would create the very instability that the
contract bar doctrine seeks to avoid. For these reasons, it is found that the City’s determination
that the Association’s unit modification petition was timely was inconsistent with its own
rules.
PROPOSED ORDER
Based on the discussion above, it is determined that it is within PERB’s jurisdiction to
process the Petition for Board Review filed by AFSCME Local 809. It is also found that the
See also Pittsburg Unified School District (1978) PERB Order no. Ad-49; Downey
Unified School District (1980) PERB Order No. Ad-97; Apple Valley Unified School District
(1990) PERB Order No. Ad-209; Capistrano Unified School District (1994) PERB Order No.
Ad-261.
9
10 See PERB Regulation 32781 et seq.
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City of Carson acted inappropriately when it ruled that the Professional Association’s unit
modification petition was timely filed. 	Therefore, it is hereby ordered that the position of
Public Information Specialist be returned to AFSCME’s bargaining unit.11
Right of Appeal
An appeal of this decision to the Board itself may be made within ten (10) calendar
days following the date of service of this decision. (Cal. Code Regs., tit. 8, sec. 32360.) To be
timely filed, the original and five (5) copies of any appeal must be filed with the Board itself at
the following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95814-4174
FAX: (916) 327-7960
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, sec. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8,
secs. 32090 and 32130.)
Since this decision reverses the City’s determination, it is unnecessary to address the
other issues raised by AFSCME’s Petition.
11
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The appeal must state the specific issues of procedure, fact, law or rationale that are
appealed and must state the grounds for the appeal (Cal. Code Regs., tit. 8, sec. 32360(c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay of any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, sec. 32370).
If a timely appeal is filed, any other party may file with the Board an original and five
(5) copies of a response to the appeal within ten (10) calendar days following the date of
service of the appeal (Cal. Code Regs., tit. 8, sec. 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the regional office. 	A "proof of service" must accompany each copy of a
document served upon a party or filed with the Board itself (see Cal. Code Regs., tit. 8, sec.
32140 for the required contents and a sample form). 	The document will be considered
properly "served" when personally delivered or deposited in the first-class mail postage paid
and properly addressed. 	A document filed by facsimile transmission may be concurrently
served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, sec.
32135(c).)
Extension of Time
A request for an extension of time in which to file an appeal or opposition to an appeal
with the Board itself must be in writing and filed with the Board at the previously noted
address. 	A request for an extension must be filed at least three calendar days before the
expiration of the time required for filing the document. The request must indicate good cause
for and, if known, the position of each other party regarding the extension, and shall be
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accompanied by proof of service of the request upon each party (Cal. Code Regs., tit. 8, sec.
32132).
Dated: March 19, 2003 	_____________________________
Jerilyn Gelt
Labor Relations Specialist
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