Mount Diablo Unified School District (PERB A405E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MOUNT
DIABLO UNIFIED SCHOOL
DISTRICT,
Employer,
and
TEAMSTERS LOCAL 856,
Petitioner,
and
PUBLIC EMPLOYEES UNION LOCAL
1,
Exclusive Representative.
Case No. SF-DP-307-E
Administrative Appeal
PERB Order No. Ad-405
January 14, 2014
Appearances: Beeson, Tayer & Bodine by Sarah Sanford-Smith, Attorney, for Teamsters
Local 856; Leonard Carder by Margot Rosenberg, Attorney, for Public Employees Union
Local
1.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by Teamsters Local 856 (Teamsters) pursuant to the
Educational Employment Relations Act (EERA). 1 In an administrative determination
(attached) issued on October 16, 2013, the Office
of
the General Counsel determined that
Teamsters' decertification petition filed on September 3, 2013, was filed outside the statutory
window period, was thus untimely and should be dismissed. By its decertification petition,
Teamsters sought to represent employees in the Maintenance and Operations (M &
0)
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

bargaining unit of the Mount Diablo Unified School District (District), which employees were
represented by Public Employees Union Local 1 (Local 1).
The Board has reviewed the entire record in this matter and concludes that the Board
agent's administrative determination is well-reasoned, adequately supported by the record and
in accordance with applicable law. Accordingly, we adopt the administrative determination as
the decision of the Board itself, subject to our discussion below of the issues raised on appeal.
BACKGROUND
Local 1 and the District were parties to a collective bargaining agreement (CBA)
covering employees in the District's M & 0 unit, having an expiration date of June 30, 2013.
In late June 2013, representatives of Local 1 and the District executed a written agreement to
extend their CBA through November 1, 2013. The parties dispute the degree to which notice
of the extension agreement was provided to M & 0 unit employees.
As a consequence of the extension agreement, a new window period for the filing of a
decertification petition in the M & 0 unit was created, July 5, 2013 through August 2, 2013.2
Teamsters filed its decertification petition on September 3, 2013.
BOARD AGENT'S DETERMINATION
The Board agent investigating the petition found that: ( 1) Local 1 was the current
representative of employees in the petitioned-for unit; (2) the unit size was 485; and (3) a
memorandum of understanding/written agreement existed between Local 1 and the District,
which would expire on November 1, 2013. On the basis of these findings, the Board agent
concluded that the Teamsters petition, filed on September 3, 2013, was untimely, since it was
filed outside the statutory window period. (Admin. Deter., at p. 1.)
2 EERA section 3544.7(b) states that a decertification petition tendered during the term
of an existing agreement must be filed during the window period which is "less than 120 days,
but more than 90 days, prior to the expiration of the agreement."
2

The Board agent considered, and rejected, Teamsters contentions that Local 1 and the
District failed to inform unit employees of the extension agreement, and did so in order to
evade a timely decertification petition. (Admin. Deter., at pp. 4-5.)
CONTENTIONS ON APPEAL
On appeal, Teamsters argues, as it did below, that the Board agent conducting the
investigation should have convened an evidentiary hearing to resolve disputed facts regarding
Teamsters' assertion that the District intentionally kept secret, the existence of the extension
agreement. To support its contention that a hearing was necessary, Teamsters points to its
unfair practice charge against the District and materials proffered therewith, filed just days
before issuance of the administrative determination.
Local 1 rejoins that: (1) the investigative record in this representation case supports the
administrative determination that the petition was filed outside the statutory window period;
(2) notice to employees is not relevant to determining whether an extension agreement bars a
decertification petition, and in any event the record evidence indicates that Local 1 gave
employees notice of the extension agreement; and (3) nothing in the record supports
Teamsters' contention that the District and Local 1 colluded to keep secret the existence of the
extension agreement in order to impede exercise by employees of their right to select a
representative.
DISCUSSION
We conclude that an evidentiary hearing was not required on the issue raised by
Teamsters, and accordingly that the Board agent did not err in failing to conduct an evidentiary
hearing. We explain.
In reviewing whether a Board agent has conducted a proper investigation, the Board
looks at whether or not the Board agent abused his or her discretion. ( Children of Promise
3

Preparatory Academy (2013) PERB Order No. Ad-402, p. 13, citing Robert L. Mueller
Charter School (2003) PERB Order No. Ad-320 (Mueller); Jefferson School District (1980)
PERB Order No. Ad-82; State of California (Department of Personnel Administration) (1985)
PERB Order No. Ad-151-S; California State University (1988) PERB Order No. Ad-177-H;
Pleasant Valley Elementary School District (1984) PERB Decision No. 380.) We deem this
standard applicable here.
Our procedures afford no guarantee or entitlement to an evidentiary hearing in a
representation proceeding. As stated in PERB Regulation 33237(a):3
Whenever a petition regarding a representation matter is filed
with the Board, the Board shall investigate and, where
appropriate, conduct a hearing and/or a representation election or
take such other action as deemed necessary to decide the
questions raised by the petition.
(Emphasis added.) (See also Mueller, supra, PERB Order No. Ad-320 [under EERA, the
Board agent must conduct inquiries and investigations, but has discretion as to whether or not
to hold a hearing].) Although Board agents must investigate issues raised by a representation
petition, that investigation may lead them to determine the existence of disputed facts,
therefore, necessitating an evidentiary hearing. Or they may determine, as the Board agent did
in this case, that no material issue of disputed fact exists and thus, that a hearing is
unnecessary.
Here, the Board agent properly determined that the issue raised by the Teamsters, to
wit, the degree of notice to unit employees of the existence of the extension agreement, was
not relevant to determining whether the extension agreement was valid and barred the
Teamsters' petition. (San Francisco Unified School District (1984) PERB Decision No. 476.)
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 3100 I et seq.
4

We find nothing in Teamsters' submissions on appeal which convinces us otherwise.
Accordingly, we affirm the administrative determination.
ORDER
The administrative determination issued by the Office
of
the General Counsel in Case
No. SF-DP-307-E is hereby AFFIRMED.
Chair Martinez and Member Winslow joined in this Decision.
5

STATI:
OF
CALIFORNIA 	EDMUND G. BROWN JR., Gevenor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-!025
Fax:
(.SI
0) 622-I027
October 16, 2013
Sarah Sanford-Smith, Attorney
Beeson, Tayer & Bodine
Ross House, Second Floor
483 Ninth Street
Oakland, CA 94607
Margot Rosenberg, Attorney
T P.onaril
Cllrder
1330 Broadway, Suite 1450
Oakland, CA 94612-2513
Re: 	Case No. SF-DP-307-E
Mount Diablo Unified School District
Dear Parties:
David Mishook, Attorney
Fagen Friedman & Fulfrost LLP
70 Washington St., Suite 205
Oakland,
CA
94607
Teamsters Local Union No. 856 {Teamsters
or
Petitioner) filed a decertification petition
(petition) in the above-referenced case on September 3, 2013. Investigation
of
the petition has
established the following facts:
I. 	The current exclusive representative
of
the unit in question is
Public Employees Union, Local 1 which was certified on March
2, 1977.
2. 	The approximate unit size is 485.
3. 	A memorandum
of
understanding/written agreement currently
exists between the exclusive representative and the employer.
This written agreement expires November 1, 2013.
The investigation has resulted in the administrative determination that the decertification
petition is not timely filed.
The undersigned Board agent requested that the parties confirm or deny, inter alia, Teamsters'
assertion in the petition that no memorandum
of
understanding (MOU) then existed between
Public Employees Union, Local 1 (Local 1 or Exclusive Representative) and the Mount Diablo
Unified School District (District or Employer). Local 1 filed a response on September 26,
2013 a11eging that an extension to the MOU does exist, and that its expiration date is
November 1, 2013. Teamsters fi]ed a response on October
l,
2013, arguing that the contract

SF-DP-307-E
October 16, 2013
Page2
extension does
not bar
the decertification petition. Local 1 replied
on
October 4, 2013,
and the
District replied on October 8, 2013.
The
Contract Extension
The MOU between the District and Local 1 has an expiration date
of
June
30, 2013. On
June
26, 2013, the District and Local 1 entered into a written agreement that served to extend
the
MOU
to the close
ofbusiness
on November
1, 2013.
The
extension agreement was signed
by
Local 1 Business Agent Karen Anthony and District Assistant Superintendent Julie Braun
Martin.
The
basis for this determination is a copy
of
the extension agreement, provided to
PERB
on
September 26, 2013
by
Local 1, and declarations filed
by
Local 1 on October 14,
2013 which support its authenticity. 1
The extension agreement was later ratified
by
the District
Board
of
Education on September 25, 2013.
Teamsters allege that "neither Local 1,
nor the District, informed the membership that a
contract was in
place."
Discussion
PERB Regulation 32776(c)2 provides that:
Under EERA, the petition shall
be
dismissed whenever either
of
the conditions
of
Government Code section 3544.?(b)(l)
or
(2)
exist,
or
a representation election result has been certified
affecting the described unit
or
a portion thereof within the 12
months immediately preceding the date
of
filing
of
the petition.
BERA section 3544.7(b)(l) provides that a petition must
be
dismissed if:
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
It is unclear whether Teamsters intend to cast doubt on the authenticity
of
the
extension agreement provided to PERB. Teamsters state that "[t]he timing
of
the revelation
of
the contract extension is [] suspicious," however this claim appears to be related to a different
argument, addressed further below. Assuming Teamsters does mean to allege that the
extension agreement was entered into at a later date, then back-dated in an effort to thwart a
decertification petition, no specific facts are provided that would support this allegation.
2 PERB Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. EERA is codified at Government Code section 3540 et seq. The text
of the
BERA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-DP-307-E
October 16, 2013
Page3 
filed less than 120 days, but more than 90 days, prior to the
expiration date
of
the agreement.
In deciding contract-bar disputes, PERB has found that federal precedent under the National
Labor Relations Act provides significant guidance. (Downey Unified School District (1980)
PERB Order No. Ad-97; State
of
California (1983) PERB Decision No. 348-S.) Both the
National Labor Relations Board (NLRB) and PERB have sought to establish objective criteria
to determine the existence
of
a contract-bar in order to expedite the disposition
of
representation cases and to strike a balance between the dual objectives
of
a stable labor
relations environment and freedom
of
choice for employees to select a new bargaining
representative. (San Juan Unified School District (1995) PERB Decision No. 1082; Centralia
School District (1985) PERB Decision No. 519.)
In Appalachian Shale Products Company
(l
958)
121
NLRB 1160 the NLRB found that to
constitute a bar a contract must be in writing, signed by the parties, and contain "substantial
terms and conditions
of
employment deemed sufficient to stabilize the bargaining relationship .
" The NLRB held that:
(Ibid.)
[R]eal stability in industrial relations can only be achieved where
the contract undertakes to chart with adequate precision the
course
of
the bargaining relationship, and the parties can look to
the actual terms and conditions
of
their contract for guidance in
their day-to-day problems.
Contract extensions may also create a bar to a decertification petition.
(San
Francisco Unified
School District (1984) PERB Decision No. 476
(San
Francisco USD).) In order to create a
bar, the extension must be signed after the close
of
an established window period. (Ibid.) The
extension must be sufficiently long to create its own window period under BERA section
3544.7(b)(l)-i.e.
it must be for at least 120 days. (Apple Valley Unified School District
(1990) PERB Order No. Ad-209 (Apple Valley USD).) The extension must be for a fixed,
rather than indefinite, duration. (State
of
California, Department
of
Personnel Administration
(1989) PERB Order No. Ad-191-S.) Ratification is not required unless the extension
agreement itself requires so. (San Francisco USD.) Whether a petitioner was given notice
ofthe contract extension is not a relevant consideration. (Ibid.)
As noted above, the MOU between Local 1 and the District had an expiration date
of
June 30,
2013. The extension agreement was signed on June 26, 2013, and extended the contract until
the close ofbusiness on November 1, 2013. Therefore, the extension agreement was entered-
into after the close of the window period created by the MOU's original expiration date, and
was more than 120 days in duration. The extension agreement therefore satisfies the
requirements of San Francisco USD, supra, PERB Decision No. 476 and Apple Valley USD,
supra, PERB Order No. Ad-209. The window period for filing a decertification petition

SF-DP-307-E
October 16, 2013
Page4
pursuant to BERA section 3544.7(b)(l) was July 5, 2013 to August 2, 2013. Teamsters'
decertification petition was filed on September 3, 2013, and is therefore untimely.
Teamsters contends that the extension agreement should not create a contract-bar because "the
District and Local 1 completely failed to inform the membership that they had entered into an
extension agreement." Teamsters further contends that the District and Local 1 did so
intentionally to evade a decertification petition. These contentions must be
rejected for the
reasons that follow.
As an initial matter, Petitioner fails to describe what sort
of
"notice" to bargaining unit
members should
be
required. PERB has long held that 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 (1979) PERB Decision
No. 111.) PERB has sp.ecifically applied this rule in the context
of
a decertification petition,
and found that ratification
of
an extension agreement
by
either party's principals is not
required unless ratification is a condition precedent to the agreement itself. (San Francisco
USD, supra, PERB Decision No. 476.) The Board has further held that employees' ignorance
of
the existence
of
a contract extension or the window period
it
created is
"of
little
significance." (Ibid.) While,
BERA
section 3544.7(b)(l) creates a right to file during the
established window period prior to the expiration
of
an agreement, a petitioner cannot rely onbeing able to file a decertification petition afterward. (Ibid.)
As
noted above, the statutory
window period for decertification petitions in the present case was July
5,
2013 to August 2,
2013. Petitioner's opportunity to file after August 2, 2013 was not guaranteed by statute.
(Ibid.)
Petitioner cites Tinton Falls Conva Center (1991) 301 NLRB 937 (Tinton Falls) in support
of
its argument that employees' lack
of
knowledge
of
the extension agreement renders
it
invalid.
In that case, the NLRB held that an employer had committed an unfair practice by unilaterally
repudiating a contract with and withdrawing recognition from a union following a
decertification petition
by
a rival union. (Id. at p. 940.) The NLRB referenced its earlier,
unpublished, decision finding that the rival union's decertification petition was not barred
bythe contract between the existing union and the employer. (Id. at p. 938.) The terms
of
thecontract in question were not wholly clear, because the parties had signed, on the same day,
"three versions
of
the [] agreement, with two different sets
of
effective and expiration dates, as
well as a yellow sheet containing six contract modifications." (Id. at p. 937.) The NLRB
described its earlier, unpublished, decision as holding that the conflicting contracts precluded
interested parties from determining the proper time for filing a petition, and so no contract-bar
existed. (Id. at p. 938.)
The facts
of
the instant case are markedly different. Here, unlike in the Tinton
Fall,;;,
supra,
301 NLRB 937 petition, there is no need to resort to parol evidence to determine the term
of
the agreement. The effective and expiration dates appear on the face
of
the extension
agreement and are readily ascertainable. Employees are not required to "go beyond the face"
of
the extension agreement to detennine whether it is in effect and for what period. (Tinton
Falls, supra, 301 NLRB 937, 939.) Furthermore, San Francisco USD, supra, PERB Decision

SF-DP-307-E
October 16, 2013
Page5
No. 476, which controls
in
this case, specifically addressed a situation where employees
were
unaware
of
an extension agreement.
As
noted above, such allegations
are not
a basis for
avoiding the contract-bar rule
in
EERA section 3544.7(b)(l).
Because
the June
26, 2013 extension agreement between Local 1 and the District satisfies
the
conditions
of
San Francisco USD, supra, PERB Decision No. 476 and Apple Valley USD,
supra, PERB Order No. Ad-209, the requirements
of
BERA section 3544.7(b)(l) apply.
Because Teamsters' decertification petition was filed outside the statutory window period, it is
hereby dismissed.
~
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 (PERB Regulation 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 Eighteenth Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered "filed" when actually received during a regular PERB business day.
(PERB Regulations 32135(a) and 32130; see also Gov.
Code,§
11020, subd. (a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB 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. (PERB Regulation.
32135(b), (c) and (d); see also PERB Regulations 32090 and 32130.)
The appeal must state the specific issues
of
procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (PERB Regulation 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 justification for the request (PERB Regulation 323 70).
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
(l
0) calendar days following the date
of
service
of
the appeal (PERB Regulation 32375).

SF-DP-307-E
October 16, 2013
Page6
Service
AH
documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the Sacramento regional office. A
"proof
of
service" must accompany each
copy
of
a document served upon a party or filed with the Board itself (see PERB Regulation
32140 for the required contents). The document will be considered properly "served"
whenpersonally delivered
or
deposited in the mail or deposited with a delivery service and properly
addressed. A document may also
be
concurrently served via facsimile transmission on all
parties to the proceeding. (PERB Regulation 32135(c).)
Please contact me
if
you have any questions concerning this matter.
Daniel Trump
Regional Attorney
DT