All notes for Subtopic 1302.03000 – Stay of

DecisionDescriptionPERC Vol.PERC IndexDate
A470E Children of Promise Preparatory Academy
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
In determining whether to grant a stay of a representation election, OGC looks to “whether the facts alleged in the unfair practice charge, if true, would likely affect the vote of employees, and, thus, the outcome of the election.” (p. 5.) more or view all topics or full text.
438211/29/18
A431E Imagine Schools of Imperial Valley
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
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.” more or view all topics or full text.
4012001/13/16
A378E Grossmont-Cuyamaca Community College District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
The Board concluded that a stay of representation election pending the Board’s decision on an appeal of a dismissal of a decertification petition was not appropriate under the circumstances of this case. However, the Board further concluded that the purposes of EERA would be furthered by ordering that the ballots cast in the representation election be impounded pending the Board’s decision on the merits of the appeal. more or view all topics or full text.
337805/04/09
A301E Long Beach Community College District (California School Employees Association, Teamsters, American Federation of Teachers)
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
The Board concluded that the purposes of the EERA will not be effectuated by staying the representation election in this case where petition filed by rival union to sever a unit of blue collar workers from the unit of classified employees was held in abeyance until certification by PERB of the results of the representation election. However, the Board further concluded that the purposes of EERA would be furthered by ordering that the ballots cast in the representation election be impounded pending the Board's decision in the charging party's appeal of the Board agent's administrative determination; p. 2. more or view all topics or full text.
243104001/03/00
A254E Capistrano Unified School District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
After consideration of the issue and the positions of the parties, the Board denied the request for stay of the election. The Board ordered the election to proceed, thereafter impounding the ballots pending the Board's decision on the merits of the appeal before the Board; p. 2. more or view all topics or full text.
182507705/13/94
A201E Kelseyville Unified School District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
Withdrawal of the underlying petition for decertification rendered an appeal of the stay order moot; p. 2. more or view all topics or full text.
142103112/29/89
A172E Oakland Unified School District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
When decertification petition is filed, best method to protect rights of all parties and employees, regardless of the outcome of the ballot count, is for Board to stay the ballot count and then rule on the merits of the appeal; p. 3. more or view all topics or full text.
121912507/14/88
A133E San Mateo Community College District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
Stay of certification of new exclusive representative denied even though contract of ousted exclusive representative not yet expired. Once an employee organization has lost its representation status through the decertification process, it has no right to enforce provisions of a collective bargaining agreement. more or view all topics or full text.
71408503/03/83
A096E Hayward Unified School District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
Appeal of order directing decertification election denied where, during the term of an existing contract, the parties execute a new contract which contains an expiration date later than that of the first contract; new contract is premature and will not act as a bar to a decertification election; p. 4, dismissal letter. Stay of decertification election denied where, during the term of an existing contract, the parties executed a new contract which contains an expiration date later than that of the first contract, and all members were not aware of the ramifications of the change in the window period; p. 3, dismissal letter. Purpose of the rule that premature contract will not act as a bar to a decertification election is to prevent manipulation of the window period for the filing of a decertification petition; p. 4. period for the filing of a decertification petition; p. 4. more or view all topics or full text.
41114006/10/80
A082E Jefferson School District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
On appeal of a decision of regional director to dissolve a stay order and proceed to a decertification election based on his determination after investigation that the pending unfair practice charge against the employer would not so affect the election process as to prevent the employees from freely selecting their exclusive representative, proper inquiry by Board is whether the discretion delegated to the regional director by the Board has been abused; finding of abuse of discretion would be appropriate if regional director failed to conduct a satisfactory investigation or if determination made by regional director was contrary to the facts; pp. 9-12. Absent other evidence of bad faith, when the parties have reached agreement on many items, including some of the items raised in a pending unfair practice charge alleging failure to negotiate in good faith, charge based on negotiability is akin to a technical refusal to pending unfair practice charge alleging failure to negotiate in good faith, charge based on negotiability is akin to a technical refusal to Passage of time can dissipate the influence an employer's unlawful conduct has on a decertification election; p. 15. more or view all topics or full text.
41103203/07/80
A045E Folsom-Cordova Unified School District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
Impossible to defer an election which the regional director conducted after concluding a pending unfair practice case was not blocking charge. Since the election was held prior to the appeal to the Board, the Board has no power to grant a stay. Nevertheless, the subsequent filing of objections preserve the issue on the merits. more or view all topics or full text.
2218009/06/78
A040E Hartnell Community College District
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
Stay of action on decertification petition is granted pending disposition of two unfair practice cases. Cases concern the lawfulness of the employer's prior recognition of the incumbent union. Resolution of the unfair practice charges may determine the disposition of the decertification petition. more or view all topics or full text.
2213106/27/78
0390S State of California (Unit 12)
1302.3000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
Board refused to stay decertification petition pending completion of AFL-CIO "no raiding" procedures based on the delay completion of such procedure would entail and the effect of the uncertainty on the negotiations then in progress. Board refused to establish a set policy on deferral to private resolution of disputes, finding a case by case approach preferable; pp. 3-4. more or view all topics or full text.
81512307/06/84