REPRESENTATION ISSUES; ELECTIONS – Blocking Charge

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Once PERB has issued a final order regarding blocking charges supporting a stay, the question becomes whether fair representation proceedings can resume. If the charging party did not establish an unfair practice, and there are no other pending allegations of unfair practices warranting a stay, fair representation proceedings can go forward. (p. 10.) In contrast, if the charging party prevailed in its charges in whole or in part, and there are no other pending allegations of unfair practices warranting a stay, PERB must assess whether to proceed with the pending petition or dismiss it. Normally, there are three potential bases for dismissal: (1) the proven conduct materially tainted solicitation of employee support or employees’ decision to sign the petition, such that there is a legitimate question whether the petition would have reached the requisite threshold absent unfair practices; (2) the conduct occurred while an emerging union was negotiating for a first contract after recognition, certification, or successorship, thereby warranting retroactive extension of the certification or recognition bar; or (3) the conduct has a continuing prospective tendency to harm employee free choice that PERB’s remedies are unlikely to fully address, even in conjunction with the passage of time and any other relevant factors. (Compare City of Long Beach (2021) PERB Decision No, 2771-M, pp. 17-19 [Board rejected most claims alleged in blocking charges and found that the limited proven unfair practices would not prevent a fair election from going forward given the passage of time and PERB’s remedies] with Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 6 & adopting administrative determination at p. 4 [unfair practices shown required OGC to dismiss decertification petition after resolution of blocking charges].) (pp. 10-11.)