REPRESENTATION ISSUES; DECERTIFICATION – Bar To

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It may be proper to extend the certification bar and dismiss a decertification petition altogether based on proven unfair practices in cases involving initial contract negotiations. (St. HOPE Public Schools (2024) PERB Order No. Ad-511, pp. 8, 10, fn. 11 (St. HOPE).) As we outlined in St. HOPE, supra, there are normally three potential bases for dismissal if a charging party has prevailed in its blocking charges in whole or in part, as OE3 did here: (1) the proven conduct materially tainted solicitation of employee support or employees’ decision to sign the petition, such that there is a legitimate question whether the petition would have reached the requisite threshold absent unfair practices; (2) the conduct occurred while an emerging union was negotiating for a first contract after recognition, certification, or successorship, thereby warranting retroactive extension of the certification or recognition bar; or (3) the conduct has a continuing prospective tendency to harm employee free choice that PERB’s remedies are unlikely to fully address, even in conjunction with the passage of time and any other relevant factors. (Id. at pp. 10-11.) Here, the ALJ ordered extension of the certification bar to at least 12 months from the commencement of good faith bargaining, subject to extension if the District is found to have engaged in additional unfair practices. The Board concurred with this remedy.

The Board also recognized that the District’s illegal conduct occurred while OE3 was negotiating for a first contract. These circumstances called for heightened protection stemming from the Board’s experiential understanding that “it is particularly difficult to restore a newly recognized or certified union’s standing with its members after early unlawful conduct” and thus “absent unusual circumstances it is proper to extend the recognition bar or certification bar and dismiss the petition altogether based on proven unfair practices during first contract negotiations.” (St. HOPE, supra, PERB Order No. Ad-511, pp. 10, fn. 11 & 10-12; see Gompers Preparatory Academy (2020) PERB Order No. Ad-481, pp. 5-6 & cases cited therein [“an employer’s bad faith bargaining conduct during negotiations for an initial contract typically has a more deleterious effect on employee support for the nascent union than it would in a well-established collective bargaining relationship because such conduct sends the message that ‘employees [will] see no change in their working lives from having a collective-bargaining representative’”]; Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, adopting administrative determination at pp. 19-20; Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 12, fn. 6.) Dismissal of the decertification petition would accordingly be appropriate. However, in light of the particular procedural posture of this case, viz., the Group of Employees that filed the decertification petition did not appear in this matter, the Board not order dismissal herein but noted that any party could file a motion with OGC to dismiss the decertification petition in Case No. SA-DP-284-M. (pp. 33-35.)