REPRESENTATION ISSUES; OBJECTION TO ELECTIONS – In General
Single Topic for Decision A306E
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1304.01000 – In General
A party objecting to an election result must first present a prima facie showing of conduct that constitutes one of the two grounds. This includes a factual showing that employee choice was affected or that the conduct complained of had the natural and probable effect of impacting employee choice. (Santa Monica Unified School District and Community College District (1978) PERB Decision No. 52; San Ramon Valley Unified School District (1979) PERB Decision No. 111; Jefferson Elementary School District (1981) PERB Decision No. 164; Pasadena Unified School District (1985) PERB Decision No. 530.) After this threshold showing is met, PERB will decide whether to set aside the election result depending "upon the totality of circumstances raised in each case and, when appropriate, the cumulative effect of the conduct which forms the basis for the relief requested." (Clovis Unified School District (1984) PERB Decision No. 389; State of California (Department of Personnel Administration) (1986) PERB Decision No. 601-S.) Thus, even where some impact on voters can be inferred, the election result will not always be set aside.) PERB regulations require the Board agent to dismiss election objections which do not satisfy the requirements of subsections (a) through (d) of PERB Regulation 32738. Even if not subject to dismissal under PERB Regulation 32738, objections are to be dismissed by the Board agent if, after investigation, the objections do not warrant setting aside the election. (PERB Reg. 32739(f).) Alternatively, the Board agent may set aside the election if the results of the investigation warrant such action. (PERB Reg. 32739(g).) The commission of an act by a Board agent conducting an election which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside the election. (Athbro Precision Engineering Corp., 166 NLRB No. 116, 65 LRRM 1699.) Election objections regarding the integrity of the election process require assessment of whether a reasonable possibility of irregularity exists. Since this is paramount, "the Board goes to great lengths to ensure that the manner in which elections are conducted raises no reasonable doubt as to their fairness or validity." However, "an election need not be perfect to be valid. Mistakes are made in any human endeavor. The question is whether the mistakes were sufficient to affect the outcome" of the election. (State of California (1986) PERB Decision No. 601). Grounds to set aside election found where there was a significant question as to the number of ballots received by PERB and the potential of missing ballots are sufficient in number to affect the outcome. A lack of confidence in the election appears justified given this discrepancy and the totality of events including the initial misplacement of 71 ballots, their subsequent count and addition to the earlier tally, and the recount where a new tally of ballots was issued to correct mistakes contained in the earlier tallies. PERB has refused to be constrained to follow NLRB per se rules in the area of election objections and has rejected rigid application of a "laboratory conditions" test. (See e.g., Sierra Sands Unified School District (1993) PERB Decision No. 977; Tamalpais Union High School District (1976) EERB Decision No. 1.) PERB looks to the totality of circumstances and the cumulative effect of the conduct alleged.