Decision A504M – Consolidated Irrigation District
SA-DP-284-M
Decision Date: August 14, 2023
Decision Type: Administrative Appeal
Description: This case came before the Board on Consolidated Irrigation District’s appeal of an administrative determination (AD) by PERB’s Office of the General Counsel (OGC). In November 2021, Operating Engineers Local 3, AFL-CIO (OE3), was certified as the exclusive representative of employees in the District’s Water Irrigation Specialist Unit (Unit). In January 2023, before OE3 had negotiated a first contract with the District, a group of employees filed a petition to decertify OE3 as the Unit’s exclusive representative. In March 2023, OE3 filed a blocking charge, alleging that the District violated the Meyers-Milias-Brown Act and the Prohibition on Public Employers Deterring or Discouraging Union Membership by: (1) facilitating the circulation and submission of the decertification petition through an Assistant Foreman, (2) instructing that Assistant Foreman and another Unit member to circulate the decertification petition, (3) promising benefits in exchange for decertifying OE3, and (4) refusing to negotiate with OE3 pending the resolution of the decertification proceedings. OE3’s blocking charge included a request that PERB stay the decertification election pending resolution of the charge, alleging that the District’s conduct, if true, would likely interfere with employee free choice and influence employees in their vote. OGC agreed and stayed the election. The District appealed the AD, and OE3 urged the Board to uphold the stay.
Disposition: The Board found that applicable law and the unfair practice allegations support the AD’s analysis, including the AD’s findings that the District’s alleged conduct is likely to impact employee free choice, and therefore upheld the stay and adopted the AD as the decision of the Board itself.
Decision Headnotes
1107.20000 – Other
In an appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4.) In an appeal concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused [its] discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6) (p. 5.)
1109.01000 – In General
In an appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4.) In an appeal concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused [its] discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6) (p. 5.)
1109.03000 – Standard of Review/Deference to Board Decision
In an appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4.) In an appeal concerning a stay of a decertification election, “the inquiry on appeal is whether the OGC abused [its] discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6) (p. 5.)
1303.04000 – Blocking Charge
The Board adopted the Office of the General Counsel’s (OGC) administrative determination, noting that OGC employed the proper standard for whether to stay an election pending a blocking charge: “the Board agent must analyze whether the conduct alleged ‘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.’” (Regents of the University of California (1984) PERB Decision No. 381-H, p. 6.) Further, the administrative determination correctly explains “[t]he only relevant issue is whether the employer’s conduct, as alleged in the complaint, will so taint the election process as to interfere with employee free choice.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 13.) (p. 7.)
1303.09000 – Stay of
The grounds to challenge an administrative determination staying an election do not include a dispute about the facts. A determination to stay an election is not intended to involve adjudication of the unfair practice charge itself. (Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, adopting administrative determination at p. 15.) “It is neither the Board agent’s obligation nor function to resolve disputed facts or venture into a pre-judgment of the merits of the unfair practice complaint.” (Grenada Elementary School District (1984) PERB Decision No. 387, p. 13, quoting Pleasant Valley Elementary School District (1984) PERB Decision No. 380, p. 7.) Nor shall the Board agent resolve defenses and answers on the merits of the complaint, because those matters must be addressed in the unfair practice hearing. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, adopting administrative determination at p. 15.) The District’s arguments that the union cannot prove its blocking charge allegations are thus immaterial to OGC’s assessment of the stay request, and do not provide a reason to overturn OGC’s determination granting the stay. (pp. 7-8.)
1303.09000 – Stay of
In determining whether an election stay is warranted, PERB “does not resolve factual disputes” and “assumes that the essential facts alleged in the charge are true.” (Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, p. 9.) If the Board agent’s investigation reveals conflicting issues of material fact, the conflict must be resolved at the formal hearing; the Board agent may not resolve the conflict at the investigation stage. (Id. at p. 10.) (pp. 5-6.)
1303.09000 – Stay of
While the PEDD protects a narrow set of employee prerogatives, because conduct that violates the PEDD specifically tends to influence employee free choice, such conduct is especially likely to impact an election and thus necessitates a stay. (p. 10.)
1303.09000 – Stay of
The District’s alleged refusal to negotiate pending the resolution of decertification proceedings independently supports staying the election. “[A]n election may properly be blocked where there has been a failure to bargain in good faith, since that conduct by its very nature undercuts support for an individual union or unions in general, and renders a fair election impossible.” (Grenada Elementary School District (1984) PERB Decision No. 387, p. 9; accord Clovis Unified School District (1984) PERB Decision No. 389, p. 25 [an employer, by “obstructing negotiations with the exclusive representative,” had “interfere[d] with employees[’] right to select an exclusive representative to meet and negotiate with the employer on their behalf”].) (p. 11.)