All notes for Subtopic 1304.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
A433M County of Fresno
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Where objections to an election have been dismissed, only the objecting party may appeal the dismissal to the Board itself. Unlike other regulations governing appeals to the Board itself, PERB Regulation 33009(g) is worded narrowly and specifically and is not a general grant of appeal rights as is found, for example, in PERB Regulation 32300(a), pertaining to exceptions to proposed decisions after an administrative hearing; or in PERB Regulation 32360(a), governing appeals from administrative decisions other than election objections; or in PERB Regulation 32635, permitting appeals by a charging party of a dismissal of an unfair practice charge. The narrow wording of PERB Regulation 33009(g) furthers the public policy favoring rapid and expedient resolution of representation matters, and for that it will be construed narrowly. Where the OGC sustained SEIU’s objection to an election and ordered the election results be set aside and that a new election occur, it was not necessary to rule on SEIU’s other objections. Because PERB Regulation 33009(g) permits appeals only of dismissals of objections, and because SEIU has obtained the relief that was available pursuant to PERB Regulation 33010, its request that the Board resolve its allegations of employer misconduct is not ripe. Having determined that one of the grounds for SEIU’s objection supported overturning the election and ordering a second election, the OGC did not need to investigate additional objections to the election based on employer misconduct. There is no justification for any further delay in this case which a remand for action by the OGC on the second objection would entail. Where allegations of employer misconduct were not dismissed by the Office of the General Counsel and PERB has not made any determination concerning them, they may be reasserted as a basis for setting aside a second election. Board agent does not have the authority to dismiss decertification petition in investigation of objections to election. Under PERB Regulation 33010, board agent’s authority regarding election objections is limited to dismissing the objections or setting aside the election. more or view all topics or full text.
02/29/16
A380E Grossmont-Cuyamaca Community College District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
To challenge the dismissal of a decertification petition for lack of support, the charging party must allege sufficient facts to demonstrate the adequacy/inadequacy of the proof of support. Bare assertions of fact, standing alone, are insufficient to satisfy this burden of proof. more or view all topics or full text.
3311106/22/09
A333E Pleasant Valley Elementary School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Interference with the election process must be dismissed if there is a failure to satisfy two prong test. Objecting party must show that there was improper conduct and that the conduct had an objective impact on the voters. Charging Party has not met its burden to show impact when the employer failed to provide additional voter information as the employer had provided all the information required by the Consent Election Agreement. Board finds publication of a union authorization card would not reasonably tend to coerce or intimidate voters in an election when there is no evidence of an implied threat in the campaign literature creating a probable impact on the employees’ votes. Board finds no impact on an election where an employee’s false statement regarding firing of employees should the union lose the election because it was revealed to be a misrepresentation before the ballots were due. Board finds that an accusation based on mere conjecture will not provide the sufficient evidence required in order to establish a prima facie case on appeal. more or view all topics or full text.
2814003/22/04
A310E Poway Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Pursuant to Regulation 32738, objections to the conduct of an election are entertained by PERB on only two grounds: 1) The conduct complained of interfered with the employees' right to freely choose a representative, or 2) Serious irregularity in the conduct of the election. A party objecting to an election result must first present a prima facie showing of conduct that constitutes one of the two grounds. This includes a factual showing that employee choice was affected or that the conduct complained of had a natural and probable effect on employee choice. After this threshold showing is met, PERB will decide whether to set aside the election result depending upon the totality of circumstances. Thus, even where some impact on voters can be inferred, the election result will not automatically be set aside. more or view all topics or full text.
263300310/10/01
A306E Poway Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
A party objecting to an election result must first present a prima facie showing of conduct that constitutes one of the two grounds. This includes a factual showing that employee choice was affected or that the conduct complained of had the natural and probable effect of impacting employee choice. (Santa Monica Unified School District and Community College District (1978) PERB Decision No. 52; San Ramon Valley Unified School District (1979) PERB Decision No. 111; Jefferson Elementary School District (1981) PERB Decision No. 164; Pasadena Unified School District (1985) PERB Decision No. 530.) After this threshold showing is met, PERB will decide whether to set aside the election result depending "upon the totality of circumstances raised in each case and, when appropriate, the cumulative effect of the conduct which forms the basis for the relief requested." (Clovis Unified School District (1984) PERB Decision No. 389; State of California (Department of Personnel Administration) (1986) PERB Decision No. 601-S.) Thus, even where some impact on voters can be inferred, the election result will not always be set aside.) PERB regulations require the Board agent to dismiss election objections which do not satisfy the requirements of subsections (a) through (d) of PERB Regulation 32738. Even if not subject to dismissal under PERB Regulation 32738, objections are to be dismissed by the Board agent if, after investigation, the objections do not warrant setting aside the election. (PERB Reg. 32739(f).) Alternatively, the Board agent may set aside the election if the results of the investigation warrant such action. (PERB Reg. 32739(g).) The commission of an act by a Board agent conducting an election which tends to destroy confidence in the Board's election process, or which could reasonably be interpreted as impugning the election standards we seek to maintain, is a sufficient basis for setting aside the election. (Athbro Precision Engineering Corp., 166 NLRB No. 116, 65 LRRM 1699.) Election objections regarding the integrity of the election process require assessment of whether a reasonable possibility of irregularity exists. Since this is paramount, "the Board goes to great lengths to ensure that the manner in which elections are conducted raises no reasonable doubt as to their fairness or validity." However, "an election need not be perfect to be valid. Mistakes are made in any human endeavor. The question is whether the mistakes were sufficient to affect the outcome" of the election. (State of California (1986) PERB Decision No. 601). Grounds to set aside election found where there was a significant question as to the number of ballots received by PERB and the potential of missing ballots are sufficient in number to affect the outcome. A lack of confidence in the election appears justified given this discrepancy and the totality of events including the initial misplacement of 71 ballots, their subsequent count and addition to the earlier tally, and the recount where a new tally of ballots was issued to correct mistakes contained in the earlier tallies. PERB has refused to be constrained to follow NLRB per se rules in the area of election objections and has rejected rigid application of a "laboratory conditions" test. (See e.g., Sierra Sands Unified School District (1993) PERB Decision No. 977; Tamalpais Union High School District (1976) EERB Decision No. 1.) PERB looks to the totality of circumstances and the cumulative effect of the conduct alleged. more or view all topics or full text.
253202312/22/00
1341E Oxnard Unified School District and Oxnard Federation of Teachers and California School Employees Association
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
It may be appropriate to consider new evidence that bears directly on timely objections. However, allegedly newly discovered evidence should normally be considered only upon clear and convincing proof that it is not only newly discovered, but also previously unavailable. Board will consider allegations of objectionable conduct which are based on events not raised prior to the formal hearing. Charging Party made no showing that the evidence concerning these events was newly discovered or previously unavailable. Conduct occurring prior to the filing of the petition will be considered in post-election objections only under certain circumstances. Although supervisor's surveillance of union meeting was improper, it lasted only a few minutes and occurred more than one month prior to the filing of the decertification petition, and over three months prior to the election. There was no evidence that this incident was part of a pattern of misconduct, nor was it so egregious as to be considered abusive of PERB's electoral process, and the allegations based on the surveillance were dismissed. more or view all topics or full text.
233014508/03/99
0001E Tamalpais Union High School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Objections upheld only if conduct is an unfair practice or a serious irregularity in conduct with the election. Television coverage of election, absent evidence that voters were discouraged is insufficient to overturn election. more or view all topics or full text.
1107/20/76
A278E San Diego Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
PERB Regulation 32738(c); For PERB to sustain election objections, an effect on the election result must be shown or logically inferred. The Board will infer the effect if the actions had the natural and probable effect of discouraging voter participation in the representation election; p. 11. When a party to the election engages in a concerted effort to obtain unsupervised access to marked ballots, in direct violation of PERB's voting instructions, the laboratory conditions of the election are compromised. This conduct calls into question the fairness, validity and integrity of the election; p. 23. When a party engages in a concerted effort to gain unsupervised access to marked ballots, the Board will not evaluate the party's intent, consider whether the party's unsupervised possession led to tampering, or determine whether the conduct was determinative on the consider whether the party's unsupervised possession led to tampering, or determine whether the conduct was determinative on the aside and order a new election; pp. 23-24. more or view all topics or full text.
202712106/27/96
A244E Santa Clara Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Under PERB Regulation 32738(c), the Board will review objections to the conduct of an election only when: (1) the conduct complained of interfered with the employees' right to freely choose a representative; or (2) a serious irregularity in the conduct of the election; p. 3. Objectional conduct must include a factual showing that employee choice was affected or the conduct had the natural or probable effect of impacting employee choice; p. 4. After threshold showing is met, PERB will decide whether to set aside the election depending "upon the totality of the circumstances" raised in each case and, when appropriate, the cumulative effect of the conduct which forms the basis for the relief requested; p. 5. Under the "totality of circumstances" test, allegations raised did not rise to the level of conduct so objectionable as to warrant setting Under the "totality of circumstances" test, allegations raised did not rise to the level of conduct so objectionable as to warrant setting more or view all topics or full text.
172408804/27/93
A226E Gilroy Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Threshold test for election objections requires showing that conduct complained of interfered with the employees' free choice or was a serious irregularity in the conduct of the election and the conduct had the probable effect of impacting employee choice. An election is set aside based on the totality of circumstances in each case. Food and drink offered to voters was insufficient to warrant setting aside election results. De minimis errors and omissions will not be found to be serious irregularities sufficient to sustain election objections. Allowing a large number of ineligible voters to use a mail ballot in light of surrounding circumstances constitutes a material breach of the election process which calls into question the fairness and validity of the election and warrants setting it aside. the election process which calls into question the fairness and validity of the election and warrants setting it aside. more or view all topics or full text.
162300712/12/91
A045E Folsom-Cordova Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
Board dismissed appeal of order to conduct election where although order was ambiguously worded as to time deadline for filing appeal, and appeal was arguably timely filed, regional director had ordered election to proceed and issues in appeal can be addressed through party's filing of objections to election; p. 4. more or view all topics or full text.
2218009/06/78
1038H Regents of the University of California (Lawrence Livermore National Laboratory)
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
PERB Regulation 32738 sets out two grounds for objections to the conduct of an election: 1) The conduct complained of interfered with the employees' right to freely choose a representative, or 2) serious irregularity in the conduct of the election; p. 10, proposed dec. For election objections to be sustained, some effect on the election result either must be shown or logically inferred; p. 11, proposed dec. Even the demonstration of unlawful conduct in the election environment is but "a threshold question." (State of California (Department of Personnel Administration, et al.) (1986) PERB Decision No. 601-S.); p. 11, proposed dec. The basic question is whether the various unlawful activities establish a "probable impact on the employees' vote." (Jefferson Elementary School District (1981) PERB Decision No. 164.) In deciding whether to set aside the election employees' vote." (Jefferson Elementary School District (1981) PERB Decision No. 164.) In deciding whether to set aside the election effect of the conduct which forms the basis for the relief requested." (Clovis Unified School District (1984) PERB Decision No. 389.); p. 11, proposed dec. more or view all topics or full text.
182505203/04/94
0164E Jefferson Elementary School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
A party objection on the basis of election misconduct must produce evidence to show that the conduct had a probable impact on the employees' vote. It is not enough to show that the misconduct was serious or weighty. While last minute electioneering is antithetical to the free and untrammeled election choice, absent a showing of serious irregularity, the results of an election should not be lightly disturbed or disregarded. more or view all topics or full text.
51206206/10/81
0977E Sierra Sands Unified School District
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
For election objections to be sustained, some effect on the election result must either be shown or logically inferred. There is no evidence here that would establish a probable or actual impact upon the election result; pp. 13-15, proposed dec. An election result will not be overturned where it is unlikely the outcome was affected by the unlawful conduct; p. 4. more or view all topics or full text.
172405102/23/93
0948S State of California (Department of Personnel Administration) and California Union of Safety Employees
1304.1000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; In General
For election objections to be sustained, some affect on the election result must either be shown or logically inferred; p. 28, proposed dec. The Board has held that even demonstration of unlawful conduct in the election environment is but "threshold question"; p. 28, proposed dec. In deciding whether to set aside the election result, the Board will look "upon the totality of circumstances raised in each case and, when appropriate, accumulative effect of the conduct which forms basis for the relief requested"; p. 28, proposed dec. As the threat by a union official was remote in time to the election and was not widely circulated where a substantial number of voters even knew about it, no impact in the election could be inferred. If complaint had alleged that the threat was an unfair practice such a finding would have been warranted; pp. 9-10; p. 34, proposed dec. complaint had alleged that the threat was an unfair practice such a finding would have been warranted; pp. 9-10; p. 34, proposed dec. more or view all topics or full text.
162313108/06/92