REPRESENTATION ISSUES; DECERTIFICATION – Stay of

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In deciding whether to stay an election, the question is whether the alleged unfair practices, if proven, would be likely to affect employee free choice. (PERB Reg. 32752; Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3 (Gompers).) When a union argues that a decertification election should be stayed because unfair practices may have eroded employee support for the union, a stay is warranted if the conduct alleged is “of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election.” (Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, p. 9.) Notably, if unfair practices are alleged during first contract negotiations after recognition or certification (or following a successorship), a lower bar applies in ascertaining the potential for deleterious effects on employee support for the emerging union, because law-breaking in such a timeframe is especially likely to leave employees with an unlawfully jaundiced view on the benefits of having an exclusive representative. (Gompers, supra, PERB Order No. Ad-481, pp. 5-7.) (p. 8.)