Decision A433M – County of Fresno
SA-DP-258-M
Decision Date: February 29, 2016
Decision Type: Administrative Appeal
Description: SEIU appealed from an administrative determination by PERB’s Office of the General Counsel which set aside the results of a decertification election and ordered a re-run of that election after consideration of SEIU’s objections to the conduct of the election.
Description: PERB adopted the administrative determination that the decertification election results should be set aside because of a serious irregularity in the conduct of the election caused by the premature mailing of voters’ packets, and denied SEIU’s request that this matter be remanded to the Office of General Counsel for a hearing on the allegations of employer misconduct.
Decision Headnotes
1107.20000 – Other
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.
1304.01000 – 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.
1304.02000 – PERB Conduct
Board agent’s premature mailing of voters’ packets in a decertification election constitutes a serious irregularity in the conduct of an election, and warrants a setting aside of the results of that election and ordering a new election.
1304.03000 – 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.
1304.07000 – Standing to File
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.