Decision A244E – Santa Clara Unified School District

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

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.

Under Midland National Life Insurance Co. (1982) 263 NLRB 127, 110 LRRM 1489, adopted by the Board, whether statements made in CSEA flyer were true or false is immaterial. No proof was shown that the flyers were forged or altered and that the voters were unable to recognize the propaganda for what it was. Further, SEIU responded with its own flyer disputing CSEA's flyer; p. 8. NLRB has generally held that a union's promise of benefits which are not within its power to confer unilaterally do no warrant setting aside an election. CSEA flyers concerning benefits in a tentative agreement did not constitute a promise or loss of benefits as the agreement had not been ratified by either party; pp. 8-9. Remarks made by a CSEA representative to a District supervisor in front of a SEIU supporter found to have slight, if any impact on employees free choice and insufficient to set aside the election; front of a SEIU supporter found to have slight, if any impact on employees free choice and insufficient to set aside the election;