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1303.09000 – Stay of

PERB Regulation 32752 allows the Board to stay a representation election pending the resolution of an unfair practice charge and a finding that the alleged unlawful conduct could prevent the employees from exercising free choice. PERB has adopted the “blocking charge rule” used by the National Labor Relations Board in the private sector. PERB does not apply the blocking charge rule mechanically, but rather determines on a case-by-case basis whether applying the rule will serve the purposes of the statutes enforced by PERB. Each stay is to be investigated and evaluated on its merits rather than being disposed of by rote application of a blocking charge rule. Pleasant Valley Elementary School District (1984) PERB Decision No. 380 interpreted PERB Regulation 32752 such that the ‘Board agent’s obligation is to determine whether the facts alleged in the unfair practice complaint, if true, would be likely to affect the vote of employees, and, thus, the outcome of the election.” The Board agent is obligated to presume that the allegations in the blocking charge are true: The District’s defense and answer on the merits of the complaint allegations are matters to be addressed in the unfair practice hearing. It is neither the Board agent’s obligation nor function to resolve disputed facts or venture into pre-judgment of the merits of the unfair practice complaint. It appears that the neutral conditions required for a fair election were tainted by the Academy’s alleged conduct. The employees’ dissatisfaction with the Association in this case may likely be attributed to the Academy’s refusal to provide contact information, rather than to the Association’s failure to respond to and serve the needs of the employees it represents. It is therefore appropriate for PERB to delay the decertification election. The Academy’s alleged refusal to provide information relevant to bargaining would impede the Association’s ability to effectively negotiate with the Academy and could have the effect of making the Association appear weak and ineffective in the eyes of bargaining unit members. If it is true the Academy engaged in bad faith bargaining, such conduct would affect the exercise for free choice and an election may properly be blocked where there has been a failure to bargain in good faith since that conduct by its very nature undercuts support for an individual union or unions in general, and renders a fair election impossible. In Regents of the University of California (1984) PERB Decision No. 381-H, the Board found that the motivation of the petitioner in seeking a decertification election is not determinative, because the relevant question is not the reasons the petition was filed, but whether the alleged unlawful conduct would so affect the election process as to prevent the employees from exercising free choice. The petitioner’s motives are not determinative and the only question to be answered is whether the alleged unlawful conduct by the Academy, if true, would so affect the election process as to prevent the employees from exercising free choice.