REPRESENTATION ISSUES; ELECTIONS – Stay of
Single Topic for Decision A431E
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1303.09000 – Stay of
PERB Regulation 32752 authorizes the Board to stay a representation election pending the resolution of an unfair practice charge alleging unlawful conduct which could prevent the employees from exercising free choice. 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.” (Pleasant Valley, supra, PERB Decision No. 380, p. 5.); see also Grenada, supra, PERB Decision No. 387, p. 14 [for purposes of evaluating whether an election should be blocked, the OGC must presume that the allegations in the complaint are true]. “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.” (Pleasant Valley, supra, PERB Decision No. 380, p. 7.) In Statewide University Police Association (1984) PERB Decision No. 381-H, p. 6, the Board noted that the regional director “did not purport to prejudge the merits of the charge . . . . Rather, she correctly analyzed whether such conduct 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.” PERB’s investigation is “a limited one which involves primarily an investigation and analysis of the charges filed.” (Grenada, supra, PERB Decision No. 387, p. 15.) It is therefore improper “to reach beyond the subject matter of the complaint in making its decision whether or not to block.” (Id. at pp. 15-16 [responding to union’s argument that events outside the six-month statute of limitations should be considered]. The OGC properly assumed the truth of alleged speech of Imagine Schools’ agents, including Jiminez. The OGC surveyed prior stay decisions and concluded there were none in which a stay was granted or denied solely because of an employer’s anti-union speech. She then looked for guidance to PERB decisions setting aside election results based on employer speech. Many of those cases involved employer speech and other conduct. However, the OGC identified one decision in which employer speech was deemed sufficient to have impacted employee free choice. (Kern County Superintendent, supra, PERB Decision No. 533.) She relied on that decision and authorities cited therein, along with other Board decisions in election stay cases, to “inform” her application of the standard applicable under PERB Regulation 32752 to a request for stay of election. We conclude that in so doing the OGC did not abuse her discretion.