All notes for Subtopic 1303.04000 – Blocking Charge
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2905M |
Consolidated Irrigation District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3, fn. 3, quoting City of Fremont (2013) PERB Order No. Ad-403-M, p. 6, fn. 11.) (p. 12, fn. 7.) more or view all topics or full text. |
49 | 21 | 06/24/24 |
| A511E |
St. HOPE Public Schools
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
If an incumbent union fails to establish unfair practice alleged in blocking charge, and there are no pending allegations of unfair practices warranting a stay, the Board directed PERB’s Office of the General Counsel (OGC) to process decertification petition. If incumbent union establishes an unfair practice, in whole or in part, alleged in blocking charge, then the Board directed OGC to dismiss decertification petition if the proven conduct: (1) 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) warrants retroactive extension of the certification bar based on incumbent union’s status as an emerging union negotiating for a first contract; or (3) 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. If none of these three circumstances are present, and there are no pending allegations of unfair practices warranting a stay, the Board directed OGC to process the decertification petition after PERB’s remedies are fully in place and enough time has elapsed such that fair proceedings can go forward. (p. 12.) more or view all topics or full text. |
48 | 150 | 03/11/24 |
| A511E |
St. HOPE Public Schools
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
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.) more or view all topics or full text. |
48 | 150 | 03/11/24 |
| A511E |
St. HOPE Public Schools
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
PERB Regulation 32752 provides, in pertinent part: “The Board may stay an election pending the resolution of an unfair practice charge relating to the voting unit upon an investigation and a finding that alleged unlawful conduct would so affect the election process as to prevent the employees from exercising free choice.” The purpose of this regulation is to help PERB insulate elections from unfair practices that may influence the outcome. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3; Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 9.) (pp. 7-8.) more or view all topics or full text. |
48 | 150 | 03/11/24 |
| A511E |
St. HOPE Public Schools
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
PERB’s Office of the General Council stayed a decertification petition based on three unfair practice charges filed by the incumbent union, each alleging conduct tending to influence employee free choice. PERB refers to such charges as “blocking charges,” meaning they allege conduct likely to affect employee free choice and therefore allow the charging party to request that PERB stay representation processes pending unfair practice proceedings. (p.2 & fn. 1.) more or view all topics or full text. |
48 | 150 | 03/11/24 |
| A504M |
Consolidated Irrigation District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
The Board adopted the Office of the General Counsel’s (OGC) administrative determination, noting that OGC employed the proper standard for whether to stay an election pending a blocking charge: “the Board agent must analyze whether the conduct alleged ‘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.’” (Regents of the University of California (1984) PERB Decision No. 381-H, p. 6.) Further, the administrative determination correctly explains “[t]he 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.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 13.) (p. 7.) more or view all topics or full text. |
48 | 151 | 08/14/23 |
| A480M |
City of Bellflower
1303.04000: REPRESENTATION ISSUES; ELECTIONS; 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. more or view all topics or full text. |
45 | 42 | 09/23/20 |
| A481E |
Gompers Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (p. 3, fn. 3.)
In 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. |
45 | 54 | 10/22/20 |
| A470E |
Children of Promise Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
The proper inquiry in a blocking charge is not the employees’ motivation for filing a decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 6, fn. 5.) more or view all topics or full text. |
43 | 82 | 11/29/18 |
| A470E |
Children of Promise Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Where a blocking charge proves an employer engaged in unlawful conduct likely to affect a decertification election, the employer may present facts to overcome the likelihood that its unlawful conduct has affected voter choice. (p. 6.) Employee declarations, submitted by the employer, attesting to conditions as they existed when they filed the decertification petition do not provide any evidence that the present conditions are now neutral as required for a fair election. (pp. 3-4, 6.) more or view all topics or full text. |
43 | 82 | 11/29/18 |
| A470E |
Children of Promise Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
The proper inquiry in a blocking charge is not the employees’ motivation for filing a decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 6, fn. 5.) more or view all topics or full text. |
43 | 82 | 11/29/18 |
| A470E |
Children of Promise Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Where there is a final determination that the employer engaged in misconduct interfering with a representative’s ability to effectively represent bargaining unit employees (pp. 2-3), OGC may subsequently rely on the determination to find that the employer’s unlawful conduct would likely affect a decertification election and offer the employer an opportunity to show that any adverse effects of that conduct on employee free choice no longer exists, thereby permitting an election. (p. 5.) more or view all topics or full text. |
43 | 82 | 11/29/18 |
| A470E |
Children of Promise Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
The Board may stay a decertification election to decide a party’s pending blocking charge, i.e. whether the employee’s dissatisfaction with their representative is in all likelihood attributable to the employer’s unfair practices rather than the representative’s failure to respond to and serve the needs of the employees it represents. (pp. 2-3, fn. 2.) more or view all topics or full text. |
43 | 82 | 11/29/18 |
| A428E |
Children of Promise Preparatory Academy
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
PERB has adopted the “blocking charge rule” used by the National Labor Relations Board in the private sector. PERB does not apply the blocking charge rule mechanically, but rather determines on a case-by-case basis whether applying the rule will serve the purposes of the statutes enforced by PERB. Each stay is to be investigated and evaluated on its merits rather than being disposed of by rote application of a blocking charge rule. Pleasant Valley Elementary School District (1984) PERB Decision No. 380 interpreted PERB Regulation 32752 such that the ‘Board agent’s obligation is to determine whether the facts alleged in the unfair practice complaint, if true, would be likely to affect the vote of employees, and, thus, the outcome of the election.” The Board agent is obligated to presume that the allegations in the blocking charge are true: The District’s defense and answer on the merits of the complaint allegations are matters to be addressed in the unfair practice hearing. It is neither the Board agent’s obligation nor function to resolve disputed facts or venture into pre-judgment of the merits of the unfair practice complaint. It appears that the neutral conditions required for a fair election were tainted by the Academy’s alleged conduct. The employees’ dissatisfaction with the Association in this case may likely be attributed to the Academy’s refusal to provide contact information, rather than to the Association’s failure to respond to and serve the needs of the employees it represents. It is therefore appropriate for PERB to delay the decertification election. The Academy’s alleged refusal to provide information relevant to bargaining would impede the Association’s ability to effectively negotiate with the Academy and could have the effect of making the Association appear weak and ineffective in the eyes of bargaining unit members. If it is true the Academy engaged in bad faith bargaining, such conduct would affect the exercise for free choice and an election may properly be blocked where there has been a failure to bargain in good faith since that conduct by its very nature undercuts support for an individual union or unions in general, and renders a fair election impossible. more or view all topics or full text. |
40 | 23 | 06/29/15 |
| A403M |
City of Fremont
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
The Office of the General Counsel (or Board agent), not the Board itself, investigates and determines in the first instance whether an election should be stayed because of a pending unfair practice charge. When a union’s contentions in its position statement put the Office of the General Counsel on notice of “alleged unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice,” it is incumbent on the Office of the General Counsel to conduct an investigation pursuant to PERB Regulation 61190. more or view all topics or full text. |
38 | 87 | 11/21/13 |
| A219E |
Pasadena Area Community College District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Employee organization relinquishes opportunity to procure a blocking order if it settles the unfair with the employer even where employer admits to Government Code violations. more or view all topics or full text. |
15 | 22014 | 12/17/90 |
| A156S |
State of California (Department of Personnel Administration) (Communications Workers of America)
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
As the conduct by DPA, alleged in an unfair practice charge, preceeded the signing of the election agreement, Board refused to suspend election pending the resolution of the charge; p. 7. more or view all topics or full text. |
10 | 17129 | 06/27/86 |
| A151S |
State of California (Department of Personnel Administration) (Communication Workers of America, Psych Techs, Local 11555 and California Association of Psychiatric Technicians)
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
The alleged posting on employee bulletin boards of various management memoranda are not sufficient to establish a blocking charge. The facial neutrality of the memoranda coupled with their limited posting both in time and place are insufficient to prevent the employees from exercising free choice. Allegation that the filing and later withdrawal of a unit modification petition created a divisive election issue insufficient to justify blocking of election. Rather, allegation can be raised as an objection following election. more or view all topics or full text. |
10 | 17012 | 12/13/85 |
| A082E |
Jefferson School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
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. |
4 | 11032 | 03/07/80 |
| A075E |
San Ramon Valley Unified School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Board consents to vacating a blocking order at the request of the union which originally requested the block. more or view all topics or full text. |
3 | 10128 | 10/04/79 |
| A066E |
Jefferson School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
PERB will block elections where a District's alleged unlawful conduct will so affect the election process as to prevent the employees from freely selecting their exclusive representative. The rule will not be applied mechanically. more or view all topics or full text. |
3 | 10087 | 06/29/79 |
| A022E |
Jefferson School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Decertification election properly stayed pending outcome of unfair practice charges that could affect outcome of election; p. 1, admin. determination. more or view all topics or full text. |
2 | 2029 | 12/30/77 |
| A006E |
Santa Clara Unified School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Regional director's decision to stay election until unfair practice charges resolved is sustained, unless waivers of right to file objections are received by all parties; p. 1. more or view all topics or full text. |
1 | 67 | 03/08/77 |
| A002E |
Los Angeles Unified School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Nature of matters raised as unfair practices and in appeals from directed election order is such that election may be conducted as scheduled; p. 1. more or view all topics or full text. |
1 | 41 | 01/09/77 |
| 0960E |
Manton Joint Union Elementary School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
An election should continue to be stayed only if 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; p. 4. In order to preserve the employees' free choice in the matter of representation, the Board may delay a representation election when there is a substantial risk that its outcome will be affected by conduct that is alleged to be an unfair practice when that charge is still pending before the Board; p. 5. Unfair practice charge alleging that district superintendent's letter to employee group supporting decertification election constituted a blocking charge; p. 6, proposed dec. blocking charge; p. 6, proposed dec. more or view all topics or full text. |
17 | 24003 | 11/23/92 |
| 0387E |
Grenada Elementary School District
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Affirming the regional director's order staying the decertification process, the Board rejected petitioners' argument that they were not motivated to file the decertification petition by the University's unfair labor practices. The Board further held that the motive of the individual petitioners was not determinative: the inquiry must be as to the potential impact of the alleged conduct on all of the employees in the unit. Allegations of complaint are taken as true for purposes of evaluating whether or not an election should be blocked; p. 14. Conduct occurring outside the 6 month limitations period will not be considered for purposes of deciding whether to stay an election; p. 15. Election may be properly blocked where there has been a failure to bargain in good faith since that conduct renders a fair election Election may be properly blocked where there has been a failure to bargain in good faith since that conduct renders a fair election occurred after the filing of the petition rather than before is immaterial in determining whether or not a fair election is possible. Focus is on ability of unit members to exercise free choice in election untainted by employer's unfair practices; p. 15. more or view all topics or full text. |
8 | 15115 | 06/29/84 |
| 0381H |
Regents of the University of California (Statewide University Police Association)
1303.04000: REPRESENTATION ISSUES; ELECTIONS; Blocking Charge
Affirming the regional director's order staying the decertification process, the Board rejected petitioners' argument that they were not motivated to file the decertification petition by the University's unfair labor practices. The Board further held that the motive of the individual petitioners was not determinative: the inquiry limited to the potential impact of the alleged conduct on all of the employees in the unit. more or view all topics or full text. |
8 | 15076 | 04/17/84 |