Planada Elementary School District (PERB A450E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PLANADA ELEMENTARY SCHOOL
DISTRICT,
Employer,
and
GROUP OF EMPLOYEES,
Petitioner,
and
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES LOCAL
2703,
Exclusive Representative.
Case No. SA-DP-268-E
Administrative Appeal
PERB Order No. Ad-450
July 20, 2017
Appearances: Margarita Sanchez, for Group of Employees; Kristy Waskiewicz, Business
Agent, for American Federation of State, County & Municipal Employees Local 2703; Jose
Gonzalez, Superintendent, for Planada Elementary School District.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
GREGERSEN, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by a group of classified employees (Group) from the Office of
the General Counsel’s dismissal of its decertification petition (petition), on the ground that it
was untimely filed pursuant to Educational Employment Relations Act (EERA)1 section
3544.7, subdivision (b)(1).
The Board has reviewed the entire record in this case, including but not limited to the
Office of the General Counsel’s administrative determination and the Group’s appeal. Neither
1 EERA is codified at Government Code section 3540, et seq.

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of the parties to the case, the American Federation of State, County & Municipal Employees
Local 2703 (AFSCME) nor the Planada Elementary School District (District) filed a response
to the appeal in this matter. Based upon this review, the Board reverses the Office of the
General Counsel’s administrative determination and remands the matter to the Office of the
General Counsel for further processing.
BACKGROUND
AFSCME is the current exclusive representative of the District’s classified bargaining
unit, which was recognized in 1992. The approximate size of the unit is 35 employees. A
memorandum of understanding (MOU) existed between AFSCME and the District during the
time in question. This written agreement expired on June 30, 2017.
The Group’s petition was mailed to PERB on March 30, 2017. It arrived at PERB and
was filed on April 3, 2017, 88 days prior to the expiration of the MOU. The Office of the
General Counsel found that there was a lawful written agreement in effect between AFSCME
and the District, and the petition was filed outside of the filing window period detailed in
EERA section 3544.7, subdivision (b)(1). As a result, the Office of the General Counsel
dismissed the Group’s petition as untimely.
On appeal, the Group argues that the Office of the General Counsel erroneously found
its petition to be untimely because it failed to take into account the extension of time provided
for in PERB Regulation 32130, subdivision (b).2
DISCUSSION
In determining whether or not the Association’s petition was timely filed, we have to
determine first what the window period was for filing a petition for decertification and also
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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whether the extension of time provided for in PERB Regulation 32130, subdivision (b) applies
to the petition at issue.
EERA section 3544.7, subdivision (b)(1) requires that a petition for decertification 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
filed less than 120 days, but more than 90 days, prior to the
expiration date of the agreement.
PERB Regulation 33020 further defines “window period” as follows:
“Window period” means the 29-day period established pursuant
to Government Code Sections 3544.1(c) and 3544.7(b)(1) which
is less than 120 days, but more than 90 days, prior to the
expiration date of a lawful written agreement negotiated by the
public school employer and the exclusive representative. The
written agreement expiration date means the last effective date of
the agreement. Notwithstanding the provisions of Section 32130,
the date on which the written agreement expires shall not be
counted for the purpose of computing the window period.
Pursuant to PERB Regulation 33020, since the expiration date of the MOU was
June 30, 2017, the window period for filing the petition was from March 3, 2017 through
March 31, 2017. And, since the petition was filed with PERB on April 3, 2017, after the
window period, it would appear to be untimely filed. However, PERB Regulation 33020
incorporates the “holiday rule” outlined in PERB Regulation 32130, subdivision (b)
(Grossmont-Cuyamaca Community College District (2007) PERB Order No. Ad-365, p.6),3
which states:
3 Prior to May 11, 2006, both PERB Regulation 32130, subdivision (b) and 33020
included specific exceptions to the “holiday rule” for filings required during a window period.
On May 11, 2006, PERB amended both regulations by removing the exception for filings
during a “window period.”
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Whenever the last date to file a document falls on Saturday,
Sunday, or a holiday, as defined in Government Code Sections
6700 and 6701, or PERB offices are closed, the time period for
filing shall be extended to and include the next regular PERB
business day. The extension of time provided herein shall be
applied subsequent to the application of any other extension of
time provided by these regulations or by other applicable law.
PERB was closed for business on Friday, March 31, 2017, in observance of Cesar
Chavez Day, a state holiday under Government Code section 6700. April 1, 2017 was a
Saturday and April 2, 2017 was a Sunday. In compliance with PERB Regulations 33020 and
32130, subdivision (b), the deadline to file the petition in the present matter was therefore
extended to April 3, 2017. Since the petition was filed with PERB on April 3, 2017, it was
timely filed. We therefore reverse the Office of the General Counsel’s dismissal of the
petition.
ORDER
The Board hereby reverses the Office of the General Counsel’s administrative
determination in Case No. SA-DP-268-E and REMANDS the matter to the Office of the
General Counsel to further process the petition.
Members Banks and Winslow joined in this Decision.
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