Decision 2249M – National Union of Healthcare Workers


Decision Date: April 18, 2012

Decision Type: PERB Decision

Description: The charge alleged that SEIU violated the MMBA during a decertification election conducted by the State Mediation and Conciliation Service under the Public Authority’s adopted local rules.  The election was conducted in a unit of IHSS providers.

The Board agent dismissed the charges of election misconduct for failure to state a prima facie case because, among other reasons, NUHW did not identify by name the individuals who were allegedly agents of SEIU when they engaged in allegedly intimidating conduct.  NUHW appealed the dismissal.

Disposition: The Board determined that because the election was conducted by State Mediation under the Public Authority’s local rules, and not by PERB under PERB’s regulations, PERB lacked jurisdiction to entertain NUHW’s allegations as objections to the election.  Instead, the allegations would be treated as an unfair practice charge based on alleged interference with the exercise of employee rights.  The Board held that alleged election misconduct must be assessed under a totality of circumstances analysis.

Allegations that SEIU agents:  (1) obtained unsupervised access to marked ballots and otherwise interfered with balloting by bargaining unit members; (2) engaged in physical and verbal threats toward bargaining unit members; (3) misrepresented information to bargaining unit members; and (4) unlawfully destroyed and/or removed bargaining unit members’ personal property, were sufficient to state a prima facie case despite the fact that NUHW did not identify by name the alleged agents of SEIU that engaged in the conduct.

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Perc Vol: 36
Perc Index: 155

Decision Headnotes

801.01000 – In General

Alleged campaign misrepresentations which would reasonably tend to interfere with or restrain voters and do not merely involve representations which voters would assess reasonably as mere electioneering puffery are to be assessed under a totality of the circumstances test to determine if the alleged conduct tends to, or does, interfere with employees’ right freely to choose a representative.

1100.01000 – In General/Prima Facie Case

The name of a person alleged to be an agent of an employee organization or an employer is not an indispensable element of a prima facie case of interference with employee rights. While allegations that a union destroyed and removed unit members’ personal property are insufficient by themselves to establish prima facie conduct which, if true, interfered with employee’s right to freely choose a representative or constituted a serious irregularity in the conduct of the election, each allegation must be viewed not separately, but as part of the overall assessment of the union’s conduct in a totality of conduct test. The United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944) formulation that a “Charging Party must allege with specificity who, what, when, where and how” of the respondent’s alleged violation may be useful in explaining to a charging party how to plead a violation, but is it is not a hurdle over which every charging party must leap at the risk of dismissal.

1304.05000 – Union Conduct

Like the National Labor Relations Board (NLRB), PERB protects against campaign misconduct such as threats, promises or the like, which interfere with employee free choice, as well as against statements made in a fraudulent manner preventing an employee from evaluating the truth of the statement. (Midland National Life Insurance Co. (1982) 263 NLRB 127; see also Triple E Produce Corp. v. Agricultural Labor Relations Bd. (1983) 35 Cal.3d 42, 50.)

1400.03000 – Union Responsibility

Where it is alleged that: (1) a union announces that its agents will wear identification badges; (2) persons then appear in the garb of that union wearing identification badges; (3) such persons say to voters that they are agents of the union; and (4) such persons’ conduct tends to or does promote the interest of the union; PERB may conclude prima facie that such persons are union agents.