All notes for Subtopic 1304.03000 – Employer Conduct

DecisionDescriptionPERC Vol.PERC IndexDate
A433M County of Fresno
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
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. Where election results were set aside and new election ordered due to PERB conduct, Board will not remand for further investigation of alleged employer misconduct. Remand would cause needless delay in the election process and would not add to the remedy already ordered. more or view all topics or full text.
02/29/16
2145M West Contra Costa Healthcare District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
In ruling on election objections, PERB’s inquiry is whether the employer’s conduct interfered with employees’ right to choose a representative. An election will be set aside only when the conduct actually affects, or has a natural and probable effect on, employee free choice. The conduct need not constitute an unfair practice to set aside the election. Conversely, conduct amounting to an unfair practice does not necessarily require the election to be set aside. Election objections dismissed when the employer did not grant the challenging union preferential access rights or restrict the incumbent union’s access to employees during a decertification election campaign. more or view all topics or full text.
35511/30/10
A387M Salinas Valley Memorial Healthcare System
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
In ruling on election objections, PERB’s inquiry is whether the employer’s conduct interfered with employees’ right to choose a representative. An election will be set aside only when the conduct actually affects, or has a natural or probable effect on, employee free choice. The conduct need not constitute an unfair practice to set aside the election. Conversely, conduct amounting to an unfair practice does not necessarily require the election to be set aside. Election objections properly dismissed when no more than a handful of employees knew of the employer’s alleged conduct and thus the conduct did not affect, or have a probable effect on, employee free choice in the election. more or view all topics or full text.
3415810/25/10
2104M County of Mendocino
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
No interference with employee free choice in selection of a bargaining agent where the employer retracted a 1% COLA that was implemented by clerical error on employee classifications that had moved to a new bargaining unit and were no longer covered by the MOUs of the units they migrated from, and were not entitled to the 1% increase provided for therein. The employer continued to bargain in good faith over a new MOU covering the new bargaining unit. The charge made no allegation of discrimination or retaliation, and made no claim that the employer’s conduct had a material effect on employee free choice. Employees who exercise choice in representative status have no right to insist upon bargaining free from economic disadvantages, and an employer’s use of economic pressures solely in support of a bargaining position cannot be held unlawful for that reason alone. An employer is entitled to withhold benefits that employees might have obtained had they remained unorganized so long as the employer engages in good faith bargaining. more or view all topics or full text.
347404/21/10
1916M County of Imperial
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
In determining whether to set aside an election, the Board looks at whether the employer’s unfair practices establish a probable impact on the employees’ vote. The question in such cases is whether the employer’s conduct would reasonably tend to coerce or interfere with employee choice. Actual impact need not be shown. more or view all topics or full text.
3112006/28/07
1647E Chula Vista Elementary School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
In determining whether to set aside an election, the Board looks at whether the employer’s unfair practices establish a “probable impact on the employees’ vote.” The question becomes whether the employer’s conduct would reasonably tend to coerce or interfere with employee choice. Actual impact need not be shown. In deciding whether to set aside an election result the Board will assess the totality of circumstances. Given the closeness of the election, threats quite extraordinary in their gravity, District awareness of the conduct and unwillingness to address it. The principal’s conduct tended to coerce or interfere with employee choice. The ALJ declined to overturn the election because the charter school was not named as a party to the charge. The Board’s dissenting majority affirmed this ruling. more or view all topics or full text.
2818406/23/04
A333E Pleasant Valley Elementary School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
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. more or view all topics or full text.
2814003/22/04
1341E Oxnard Unified School District and Oxnard Federation of Teachers and California School Employees Association
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Employer distribution of a flyer that contains no threat of loss of benefits is not sufficient to overturn an election. 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. An employer has the right to express its views on employment related matters over which it has legitimate concerns in order to facilitate full and knowledgeable debate. However, the right of employer speech is not unlimited, and speech which contains a threat of reprisal or force or promise of benefit will be perceived as a means of violating the Act and will, therefore, lose its protection. In the instant case, repeated statements by a supervisor to his subordinates that they would be better off with one competing organization rather than another were clearly improper. However, in light of the small number of employees to whom the statements were addressed, and the fact that two of those employees were activists of the disparaged competing organization throughout the campaign, the Board determined that the probable impact of supervisor's statements was minimal and insufficient to warrant setting aside the election. Board found that evidence was insufficient to support allegation that District's memo announcing salary bonuses, which was distributed by competing organization, had a probable effect on the election. District did not violate its obligation of strict neutrality merely be writing the memo. The record reflects that the agreement on the bonus was reached pursuant to the contractual salary formula and the established bargaining relationship between the competing organization and the District. Neither the issuance nor the timing of the bonus was unusual, and that the District did not engage in objectionable conduct when it agreed to the salary bonus. more or view all topics or full text.
233014508/03/99
A278E San Diego Unified School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
EERA section 3543.5(d) imposes an obligation of strict neutrality on employers during the election process; p. 12. Allegations that the District included a "me to" provision in the contract, delayed sunshining its proposal and varied from past practice when it issued a joint contract announcement in another unit were insufficient to show that the employer violated their obligation of strict neutrality during an election period; pp. 13-17. more or view all topics or full text.
202712106/27/96
A244E Santa Clara Unified School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Surveillance allegation by District representative of SEIU activities was not sufficient to demonstrate impact on employees free choice; p. 18. Continuation of collection of agency fee after 3 year contract expiration not shown to have influenced voters for one union or other. more or view all topics or full text.
172408804/27/93
A111S State of California (Judicial and Legal Coalition and Association of California Attorneys and Hearing Officers)
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Prima facie case of election misconduct is stated in allegation that state employer sought to influence State Personnel Board deliberations on attorney staffing ratios. more or view all topics or full text.
51209208/07/81
A082E Jefferson School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
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
1188H Regents of the University of California (University Professional and Technical Employees)
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
During the post-election, pre-certification period, the employer must exercise caution in making wage changes. The employer may not change wage rates to avoid a bargaining obligation after certification, but may make a change that is clearly justified by factors other than the pendency of the certification; p. 32. more or view all topics or full text.
212806703/19/97
0960E Manton Joint Union Elementary School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Where an employer has unlawfully supported one employee organization in preference to another, an interference violation will be found where the employer's acts interfere or tend to interfere with the exercise of protected rights and the employer is unable to justify its actions by proving operational necessity; p. 7, proposed dec. Upon certification of an exclusive representative, the employer is obligated to refrain from negotiating directly with employees in the bargaining unit; p. 9, proposed dec. It is unlawful for an employer to contribute financial or other support to an employee organizaiton or in any way encourage employees to join any organization in preference to another. An employer has an unqualified requirement of strict neutrality; p. 9, proposed dec. In determining whether to set aside an election the question is whether the various unlawful activities establish a probable impact on In determining whether to set aside an election the question is whether the various unlawful activities establish a probable impact on more or view all topics or full text.
172400311/23/92
0601S State of California (Department of Personnel Administration, Developmental Services, and Mental Health); State of California (Department of Personnel Administration) (Communications Workers of America/California Association of Psychiatric Technicians)
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Election results will not be overturned where unfair labor practices by the employer had no widespread impact throughout the unit; p. 109, proposed dec. more or view all topics or full text.
111802012/30/86
0389E Clovis Unified School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Decision to set aside an election depends on totality of circumstances and cumulative effect of the conduct which forms the basis for the relief requested. Do not necessarily need to find unfair practice. Do not need to show actual impact on vote. Here, totality of circumstances justifies setting aside of election; pp. 17-18. more or view all topics or full text.
81511907/02/84
0387E Grenada Elementary School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Election may be properly blocked where there has been a failure to bargain in good faith since that conduct renders a fair election impossible; p. 9. The fact that some of the district's alleged actions 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.
81511506/29/84
0198S State of California and Judicial and Legal Coalition and Association of California State Attorneys and Hearing Officers
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Unsuccessful contestant in representation election failed to show that District mail policy prevented employees from freely choosing their representative. Cannot argue that another organization was denied use of mails where other organization knew mail was being used by competitors and failed to utilize system; p. 3. Changes in staffing ratio and evidence regarding employer list of eligible voters insufficient to show lack of employees free choice in representation election. more or view all topics or full text.
61306803/10/82
0164E Jefferson Elementary School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Incumbent union failed to establish that employer refusal to bargain affected election result. Union presented no evidence on this issue and the record does not permit conclusion that District's action inevitably affected the election result. more or view all topics or full text.
51206206/10/81
0111E San Ramon Valley Unified School District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Bad faith bargaining found where District reneged on agreement to schedule "in service" day to facilitate an organizational security election; second election ordered; pp. 16-23. more or view all topics or full text.
31014911/20/79
0052E Santa Monica Unified School District and Santa Monica Community College District
1304.3000: REPRESENTATION ISSUES; OBJECTION TO ELECTIONS; Employer Conduct
Employer's conduct before election constituted neither unfair practice nor serious irregularity in the conducted of the election [no Board majority on rationale]. more or view all topics or full text.
2211005/24/78