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1303.04000 – Blocking Charge

In Children of Promise, the Board articulated the standard to apply in interpreting PERB Regulation 32752: “The question presented is whether the alleged unfair practices by the Academy, if true, are likely to affect the vote of the employees, and thus, the outcome of the election. In other words, would the alleged unlawful conduct described in the blocking charge, if true, ‘so affect the election process as to prevent the employees from exercising free choice.’ . . . [T]he question is resolved by applying the blocking charge rule to the facts alleged in the blocking charge and not by a mechanical or rote application of the rule.” (Children of Promise (2018) PERB Order No. Ad-428, adopting administrative determination at p.18, [internal citations omitted].) This standard also applies to a request for stay evaluated under PERB Regulation 33002, irrespective of whether the underlying blocking charge relates to an employer’s local rules or relates to other allegedly unlawful conduct. One of the primary purposes of the MMBA is “to promote the improvement of personnel management and employer-employee relations . . . by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by those organizations in their employment relationships with public agencies.” (MMBA, § 3500, subd. (a).) In service of this purpose, the MMBA authorizes local agencies to adopt reasonable rules and regulations for the administration of employer-employee relations, including procedures for recognizing employee representatives as the exclusive bargaining agent for units of employees, as well as for decertifying an exclusive representative organization. (MMBA, § 3507; City of Fremont (2013) PERB Order No. IR-57-M, p. 18.) Local rules requiring proof of support and processes for representation petitions exist for the purpose of consistently protecting the rights granted by the MMBA, such as employee free choice. To the extent an employer violates its rules and initiates an SMCS-conducted election, the central question is whether that conduct will prevent employees from exercising free choice.