Decision A480M – City of Bellflower

LA-CE-1456-M

Decision Date: September 23, 2020

Decision Type: Administrative Appeal

Description: Bellflower City Employees Association’s (BCEA) appealed an order by PERB’s Office of the General Counsel (OGC) granting a request to stay a representation proceeding before the State Mediation and Conciliation Service (SMCS), pending resolution of a related unfair practice charge filed by American Federation of State, County, and Municipal Employees, Local 3745 2 (AFSCME). AFSCME’s charges alleges the City unreasonably applied its local rules when it processed BCEA’s petition to represent City employees in three bargaining units that AFSCME currently represents. AFSCME’s unfair practice charge was styled as a blocking charge and requested a stay of the related election. OGC issued an administrative determination granting AFSCME’s request to stay the representation proceedings.

The Board reiterated that in a case concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused his or her discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6.) In evaluating AFSCME’s request to stay the election at issue in this case, OGC applied PERB Regulation 33002, subdivision (a), which governs requests to stay SMCS-conducted elections. Because PERB Regulation 33002 contains nearly identical language and reflects the same underlying policy considerations as PERB Regulation 32752, the Board found OGC appropriately applied the same analysis. In Children of Promise, the Board articulated the standard to apply in interpreting Regulation 32752: “The question presented is whether the alleged unfair practices by the Academy, if true, are likely to affect the vote of the employees, and thus, the outcome of the election. In other words, would the alleged unlawful conduct described in the blocking charge, if true, ‘so affect the election process as to prevent the employees from exercising free choice.’ . . . [T]he question is resolved by applying the blocking charge rule to the facts alleged in the blocking charge and not by a mechanical or rote application of the rule.” (Children of Promise (2018) PERB Order No. Ad-428, adopting administrative determination at p.18, [internal citations omitted].)

The Board held that the standard applied in Children of Promise also applies to a request for stay evaluated under PERB Regulation 33002, irrespective of whether the underlying blocking charge relates to an employer’s local rules or relates to other allegedly unlawful conduct. The Board thus found OGC properly framed the inquiry of the administrative determination, viz., whether the unfair practices the City allegedly committed (violating or unreasonably applying its local rules in processing BCEA’s petition) would so affect the election process as to prevent the employees from freely selecting an exclusive representative of their choice.

Disposition: The Board denied BCEA’s administrative appeal of OGC’s June 22, 2020 order.

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Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.20000 – Other

When reviewing a Board agent’s determination to stay or conduct a decertification election, the proper inquiry on appeal is whether the Board agent abused his or her discretion.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.01000 – In General

When reviewing a Board agent’s determination to stay or conduct a decertification election, the proper inquiry on appeal is whether the Board agent abused his or her discretion.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.03000 – Standard of Review/Deference to Board Decision

When reviewing a Board agent’s determination to stay or conduct a decertification election, the proper inquiry on appeal is whether the Board agent abused his or her discretion.

1303.00000 – REPRESENTATION ISSUES; ELECTIONS
1303.04000 – Blocking Charge

In Children of Promise, the Board articulated the standard to apply in interpreting PERB Regulation 32752: “The question presented is whether the alleged unfair practices by the Academy, if true, are likely to affect the vote of the employees, and thus, the outcome of the election. In other words, would the alleged unlawful conduct described in the blocking charge, if true, ‘so affect the election process as to prevent the employees from exercising free choice.’ . . . [T]he question is resolved by applying the blocking charge rule to the facts alleged in the blocking charge and not by a mechanical or rote application of the rule.” (Children of Promise (2018) PERB Order No. Ad-428, adopting administrative determination at p.18, [internal citations omitted].) This standard also applies to a request for stay evaluated under PERB Regulation 33002, irrespective of whether the underlying blocking charge relates to an employer’s local rules or relates to other allegedly unlawful conduct. One of the primary purposes of the MMBA is “to promote the improvement of personnel management and employer-employee relations . . . by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by those organizations in their employment relationships with public agencies.” (MMBA, § 3500, subd. (a).) In service of this purpose, the MMBA authorizes local agencies to adopt reasonable rules and regulations for the administration of employer-employee relations, including procedures for recognizing employee representatives as the exclusive bargaining agent for units of employees, as well as for decertifying an exclusive representative organization. (MMBA, § 3507; City of Fremont (2013) PERB Order No. IR-57-M, p. 18.) Local rules requiring proof of support and processes for representation petitions exist for the purpose of consistently protecting the rights granted by the MMBA, such as employee free choice. To the extent an employer violates its rules and initiates an SMCS-conducted election, the central question is whether that conduct will prevent employees from exercising free choice.

1303.00000 – REPRESENTATION ISSUES; ELECTIONS
1303.09000 – Stay of

In Children of Promise, the Board articulated the standard to apply in interpreting PERB Regulation 32752: “The question presented is whether the alleged unfair practices by the Academy, if true, are likely to affect the vote of the employees, and thus, the outcome of the election. In other words, would the alleged unlawful conduct described in the blocking charge, if true, ‘so affect the election process as to prevent the employees from exercising free choice.’ . . . [T]he question is resolved by applying the blocking charge rule to the facts alleged in the blocking charge and not by a mechanical or rote application of the rule.” (Children of Promise (2018) PERB Order No. Ad-428, adopting administrative determination at p.18, [internal citations omitted].) This standard also applies to a request for stay evaluated under PERB Regulation 33002, irrespective of whether the underlying blocking charge relates to an employer’s local rules or relates to other allegedly unlawful conduct. One of the primary purposes of the MMBA is “to promote the improvement of personnel management and employer-employee relations . . . by providing a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by those organizations in their employment relationships with public agencies.” (MMBA, § 3500, subd. (a).) In service of this purpose, the MMBA authorizes local agencies to adopt reasonable rules and regulations for the administration of employer-employee relations, including procedures for recognizing employee representatives as the exclusive bargaining agent for units of employees, as well as for decertifying an exclusive representative organization. (MMBA, § 3507; City of Fremont (2013) PERB Order No. IR-57-M, p. 18.) Local rules requiring proof of support and processes for representation petitions exist for the purpose of consistently protecting the rights granted by the MMBA, such as employee free choice. To the extent an employer violates its rules and initiates an SMCS-conducted election, the central question is whether that conduct will prevent employees from exercising free choice.