REPRESENTATION ISSUES; DECERTIFICATION – Stay of

Single Topic for Decision A431E

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When reviewing an OGC’s determination to stay a decertification election, the inquiry on appeal is whether the OGC abused his or her discretion. The role of the Board itself on appeal is not to reweigh facts, but to ensure that they support the administrative determination. If the OGC conducts an adequate investigation and reaches a conclusion consistent with the facts developed during the investigation, deference is due and no abuse of discretion will be found. PERB may delay decertification elections “in circumstances in which the employees’ dissatisfaction with their representative is in all likelihood attributable to the employer’s unfair practices rather than to the exclusive representative’s failure to respond to and serve the needs of the employees it represents.” (Jefferson School District (1979) PERB Order No. Ad-66.) This determination is to be based on “the judgment and discretion of the [OGC] as applied to the facts ascertained in the investigation.” (Jefferson, supra, PERB Order No. Ad-82, p. 6.)) The stay procedure “serves to insulate an election from unfair practices that may influence its outcome.” (Jefferson, supra, PERB Decision No. Ad-82.) In considering the stay of an election, the OGC’s obligation is to determine whether the facts alleged in the unfair practice complaint, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. It is neither the OGC’s obligation nor function to resolve disputed facts or venture into a pre-judgment of the merits of the unfair practice complaint. The motivation of the individual petitioners in seeking a decertification election is not determinative. The inquiry is properly limited to the potential impact of the alleged conduct on all of the employees in the unit, rather than the actual motivation of those filing the petition for decertification. PERB’s investigation is a limited one which involves primarily an investigation and analysis of the charges filed. It is therefore improper to reach beyond the subject matter of the complaint in making its decision whether or not to block. When investigating a stay request, the OGC presumes the truth of complaint allegations and does not consider possible affirmative defenses. Appeals from stay orders are not the appropriate platform for debating the lawfulness of the employer’s conduct. The proper arena for litigating the merits is the formal hearing on the unfair practice charge. At that time, the employer may present its affirmative defense. At this stage, the only relevant issue is whether the employer’s conduct, as alleged in the complaint, will so taint the election process as to interfere with employee free choice. We find reasonable the OGC’s conclusion that the anti-union aspects of the film, considered in context (a mandatory meeting on the first working day of the school year and commentary by Jiminez during the meeting before and after the film was screened), would likely affect the vote of the employee and thus the outcome of the election. PERB has not adopted the “offer of proof” procedure recently established by the NLRB to discourage parties from filing frivolous or meritless stay requests. PERB regulations contain no similar provision, and PERB may not modify its regulations by its decisional law. The OGC therefore did not abuse her discretion in failing to require the Association to submit an “offer of proof.”