Decision A481E – Gompers Preparatory Academy

LA-DP-441-E

Decision Date: October 22, 2020

Decision Type: Administrative Appeal

Description:  Employees who petitioned for a decertification election appealed the Office of General Counsel’s decision to stay the election pending resolution of San Diego Education Association’s unfair practice charge alleging that Gompers Preparatory Academy bargained in bad faith, retaliated against a union bargaining team member, and interfered with protected rights.

Disposition:  The Board affirmed the stay decision, concluding that the employer’s alleged unfair practices, if true, likely would affect employee free choice if an election was held.

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Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

Because an employer’s refusal or failure to bargain in good faith during first contract negotiations typically has a more deleterious effect on employee support for the nascent union than it would in a well-established collective bargaining relationship, PERB applies a higher level of scrutiny to bad faith bargaining claims in the context of first-contract negotiations. (pp. 5-6.) In the context of first-contract bargaining, employee disaffection with the union is a natural and probable consequence of the employer’s bad faith bargaining, particularly when accompanied by other unfair practices such as unilateral changes to terms and conditions of employment and refusal to provide information to the union. (p. 7.) An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.05000 – Other

Because an employer’s refusal or failure to bargain in good faith during first contract negotiations typically has a more deleterious effect on employee support for the nascent union than it would in a well-established collective bargaining relationship, PERB applies a higher level of scrutiny to bad faith bargaining claims in the context of first-contract negotiations. (pp. 5-6.) In the context of first-contract bargaining, employee disaffection with the union is a natural and probable consequence of the employer’s bad faith bargaining, particularly when accompanied by other unfair practices such as unilateral changes to terms and conditions of employment and refusal to provide information to the union. (p. 7.) An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.)

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.05000 – Dilatory or Evasive Tactics

An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

In resolving an appeal of an administrative decision on a request for an election stay, the Board reviews the decision for abuse of discretion. Under this standard, the Board determines whether the decision is supported by the allegations in the blocking charge. (p. 4.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.21000 – Administrative Appeals

In resolving an appeal of an administrative decision on a request for an election stay, the Board reviews the decision for abuse of discretion. Under this standard, the Board determines whether the decision is supported by the allegations in the blocking charge. (p. 4.)

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.04000 – Certification Bar

The bar on processing a representation petition in the 12-month period following certification of an exclusive representative gives the newly certified union “breathing room” to bargain an initial collective bargaining agreement. (p. 7, fn. 5.) An employer may not engage in unlawful dilatory bargaining conduct during first contract bargaining so the one-year certification bar will expire without a contract in place, thereby allowing the filing of a decertification petition. (p. 7.)

1302.00000 – REPRESENTATION ISSUES; DECERTIFICATION
1302.03000 – Stay of

In considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge is of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election. (pp. 3-4.)

Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)

The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.)

1303.00000 – REPRESENTATION ISSUES; ELECTIONS
1303.04000 – Blocking Charge

A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (p. 3, fn. 3.)

In considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge is of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election. (pp. 3-4.)

Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)

The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.)

1303.00000 – REPRESENTATION ISSUES; ELECTIONS
1303.09000 – Stay of

In considering whether to stay an election, PERB must determine whether the facts alleged in the blocking charge, if true, would be likely to affect the vote of the employees and, thus, the outcome of the election. When a union argues that a decertification election should be stayed because the employer’s alleged unfair practices eroded employee support for the union, a stay is warranted when the conduct alleged in the charge is of such character and seriousness that, if it were proven to have occurred, it would be reasonable to infer that it would contribute to employee dissatisfaction and hence prevent a fair election. (pp. 3-4.)

Each stay request is to be investigated and evaluated on its merits based upon the factual context in which it arises. (p. 4.) The proper inquiry in a blocking charge situation is not the employees’ motivation for filing the decertification petition but whether the employer’s alleged unlawful conduct would prevent bargaining unit employees from exercising free choice in an election. (p. 11.) By taking a holistic, case-specific approach PERB is able to sufficiently determine whether the charge allegations justify staying an election under the particular circumstances presented. (p. 13.)

The Board found that the employer’s alleged conduct of bargaining in bad faith over a first contract, retaliating against a union bargaining team member, and issuing communications to employees that interfered with protected rights was of such character and seriousness that, if proven to have occurred, it would likely prevent employees from exercising free choice in a decertification election. (p. 7-8.) The Board rejected the decertification petitioners’ argument that PERB should require a charging party to prove the allegations in the blocking charge as a prerequisite to staying a decertification election. (pp. 9-13.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB Regulation 32752 adopted a “blocking charge rule” that “serves to insulate an election from unfair practices that may influence its outcome.” (p. 3.) A charge alleging “unlawful conduct [that] would so affect the election process as to prevent the employees from exercising free choice” is commonly called a “blocking charge” because it prevents, or “blocks,” an election until the charge is resolved. (p. 3, fn. 3.)