All notes for Subtopic 1302.03000 – Stay of
|Decision||Description||PERC Vol.||PERC Index||Date|
|A502E|| Pasadena Area Community College District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofAn appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.) more or view all topics or full text.
|2771M|| City of Long Beach|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofElection stay lifted following adjudication of unfair practice charge, where established violations were so limited that they would not tend to prevent a fair election from going forward. The first violation---that the City applied a rule concerning revocation of proof of support that was not contained in its EERR---has little tendency to impact employee free choice in the instant circumstances, as the only two revocations at issue were insufficient in number to change the petitioner’s proof of support and in any event, they arrived too late to be counted. The second of the two violations---that the City disclosed the identity of two employees who had sought to revoke their support for the Petition---could harm free choice for the two employees whose identities the City disclosed and possibly for other employees who learned of the disclosure. Nonetheless, PERB determined to dissolve the stay given that the record does not indicate whether the City’s disclosure tended to materially inhibit unit employees from freely deciding whether to change their exclusive representative in the coming months. To the extent evidence emerges suggesting that the City’s disclosure of two employees’ identities may, in fact, impact fair election conditions, incumbent union remains free to introduce such evidence via a post-election objection. more or view all topics or full text.
|2771M|| City of Long Beach|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofWhen PERB stays representation proceedings pending resolution of unfair practice allegations that could impact employee free choice, PERB must determine at the close of unfair practice proceedings whether representation proceedings can resume. If the charging party fails to establish any unfair practice, representation proceedings can go forward. However, where the charging party prevails in its charge in whole or in part, PERB must assess whether the conduct found unlawful has a continuing tendency to harm employee free choice and, if so, whether PERB’s remedies, combined with the passage of time or other factors, are sufficient to remedy that tendency and permit fair representation proceedings to go forward. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470. p. 6 & adopting administrative determination at p. 4.) more or view all topics or full text.
|A481E|| Gompers Preparatory Academy|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofIn considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge 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. (pp. 3-4.)Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.) more or view all topics or full text.
|A470E|| Children of Promise Preparatory Academy|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofIn 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.
|A431E|| Imagine Schools at Imperial Valley|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofWhen 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.
|A378E|| Grossmont-Cuyamaca Community College District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofThe 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.
|A301E|| Long Beach Community College District (California School Employees Association, Teamsters, American Federation of Teachers)|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofThe 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.
|A254E|| Capistrano Unified School District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofAfter 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.
|A201E|| Kelseyville Unified School District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofWithdrawal of the underlying petition for decertification rendered an appeal of the stay order moot; p. 2. more or view all topics or full text.
|A172E|| Oakland Unified School District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofWhen 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.
|A133E|| San Mateo Community College District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofStay 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.
|A096E|| Hayward Unified School District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofAppeal 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.
|A082E|| Jefferson School District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofOn 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.
|A045E|| Folsom-Cordova Unified School District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofImpossible 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.
|A040E|| Hartnell Community College District|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofStay 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.
|0390S|| State of California (Unit 12)|
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay ofBoard 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.