Decision A511E – St. HOPE Public Schools

Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, PERB considers federal precedent for its potential persuasive value. (Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 47, fn. 16; City of Commerce (2018) PERB Decision No. 2602-M, pp. 9-11; see also Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391 [when interpreting California public sector labor relations laws, federal precedent is a “useful starting point,” but it does “not necessarily establish the limits of California public employees’ representational rights”]; County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 24, 33, 45-48 & fn. 19 [considering private sector labor law precedent for its persuasive value while noting certain differences in California public sector labor law precedent]; City of Bellflower (2020) PERB Order No. Ad-480-M, p. 11 [both “statutory differences and distinct principles relevant to agencies serving the public have frequently led the Board to craft sui generis precedent”].) (p. 9, fn. 10.)

EERA section 3543.5, subdivision (d) forbids, among other things, interfering with the administration of an employee organization by fomenting internal dissent. (City of San Diego (2020) PERB Decision No. 2747-M, p. 44.) PEDD section 3550 prohibits an employer from deterring or discouraging employees from, among other things, “becoming or remaining members of an employee organization.” (p. 6, fn. 7.)

PERB’s Office of the General Council stayed a decertification petition based on three unfair practice charges filed by the incumbent union, each alleging conduct tending to influence employee free choice. PERB refers to such charges as “blocking charges,” meaning they allege conduct likely to affect employee free choice and therefore allow the charging party to request that PERB stay representation processes pending unfair practice proceedings. (p. 2 & fn. 1.)

PERB Regulation 32752 provides, in pertinent part: “The Board may stay an election pending the resolution of an unfair practice charge relating to the voting unit upon an investigation and a finding that alleged unlawful conduct would so affect the election process as to prevent the employees from exercising free choice.” The purpose of this regulation is to help PERB insulate elections from unfair practices that may influence the outcome. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3; Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 9.) (pp. 7-8.)

Because it is particularly difficult to restore a newly recognized or certified union’s standing with its members after early unlawful conduct (see, e.g., Gompers Preparatory Academy (2020) PERB Order No. Ad-481, pp. 5-7; Small v. Avanti Health Systems, LLC (9th Cir. 2011) 661 F.3d 1180, 1191-1193), absent unusual circumstances it is proper to extend the recognition bar or certification bar and dismiss the petition altogether based on proven unfair practices during first contract negotiations. (pp. 10-11, fn. 11.)

EERA requires PERB to dismiss a representation petition when “[t]he public school employer has, within the previous 12 months, lawfully recognized an employee organization other than the petitioner as the exclusive representative of any employees included in the unit described in the petition.” (EERA, § 3544.7, subd. (b)(2).) This 12-month period is commonly known as the “certification bar” or the “recognition bar.” Its purpose is to give the new exclusive representative “breathing room” to bargain a first contract. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 7, fn. 5 (Gompers).) PERB commonly extends the bar as a remedy for unlawful conduct impacting the union’s strength and/or ability to bargain a contract. (See, e.g., Alliance Judy Ivey Burton Technology Academy High School et al. (2022) PERB Decision No. 2809, p. 30.) (p. 4, fn. 6.)

In deciding whether to stay an election, the question is whether the alleged unfair practices, if proven, would be likely to affect employee free choice. (PERB Reg. 32752; Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3 (Gompers).) When a union argues that a decertification election should be stayed because unfair practices may have eroded employee support for the union, a stay is warranted if 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.” (Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, p. 9.) Notably, if unfair practices are alleged during first contract negotiations after recognition or certification (or following a successorship), a lower bar applies in ascertaining the potential for deleterious effects on employee support for the emerging union, because law-breaking in such a timeframe is especially likely to leave employees with an unlawfully jaundiced view on the benefits of having an exclusive representative. (Gompers, supra, PERB Order No. Ad-481, pp. 5-7.) (p. 8.)

Blocking charge alleging that petitioner’s representative was an agent of the employer was a valid basis for a stay. In the current procedural posture, PERB must assume incumbent union will prove the complaint’s allegations—the same assumption PERB’s Office of the General Counsel was required to make in deciding on the stay request. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 4.) Second, PERB’s inquiry on appeal is whether OGC abused its discretion. (Ibid.) Third, PERB recognizes a lower bar for a stay during first contract negotiations. Moreover, the complaint’s multiple claims may establish a tendency to influence employee free choice. (Id. at pp. 5-7.) (p. 9.)

PERB’s Office of the General Council stayed a decertification petition based on three unfair practice charges filed by the incumbent union, each alleging conduct tending to influence employee free choice. PERB refers to such charges as “blocking charges,” meaning they allege conduct likely to affect employee free choice and therefore allow the charging party to request that PERB stay representation processes pending unfair practice proceedings. (p.2 & fn. 1.)

PERB Regulation 32752 provides, in pertinent part: “The Board may stay an election pending the resolution of an unfair practice charge relating to the voting unit upon an investigation and a finding that alleged unlawful conduct would so affect the election process as to prevent the employees from exercising free choice.” The purpose of this regulation is to help PERB insulate elections from unfair practices that may influence the outcome. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3; Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 9.) (pp. 7-8.)

Once PERB has issued a final order regarding blocking charges supporting a stay, the question becomes whether fair representation proceedings can resume. If the charging party did not establish an unfair practice, and there are no other pending allegations of unfair practices warranting a stay, fair representation proceedings can go forward. (p. 10.) In contrast, if the charging party prevailed in its charges in whole or in part, and there are no other pending allegations of unfair practices warranting a stay, PERB must assess whether to proceed with the pending petition or dismiss it. Normally, there are three potential bases for dismissal: (1) the proven conduct materially tainted solicitation of employee support or employees’ decision to sign the petition, such that there is a legitimate question whether the petition would have reached the requisite threshold absent unfair practices; (2) the conduct occurred while an emerging union was negotiating for a first contract after recognition, certification, or successorship, thereby warranting retroactive extension of the certification or recognition bar; or (3) the conduct has a continuing prospective tendency to harm employee free choice that PERB’s remedies are unlikely to fully address, even in conjunction with the passage of time and any other relevant factors. (Compare City of Long Beach (2021) PERB Decision No, 2771-M, pp. 17-19 [Board rejected most claims alleged in blocking charges and found that the limited proven unfair practices would not prevent a fair election from going forward given the passage of time and PERB’s remedies] with Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 6 & adopting administrative determination at p. 4 [unfair practices shown required OGC to dismiss decertification petition after resolution of blocking charges].) (pp. 10-11.)

If an incumbent union fails to establish unfair practice alleged in blocking charge, and there are no pending allegations of unfair practices warranting a stay, the Board directed PERB’s Office of the General Counsel (OGC) to process decertification petition. If incumbent union establishes an unfair practice, in whole or in part, alleged in blocking charge, then the Board directed OGC to dismiss decertification petition if the proven conduct: (1) materially tainted solicitation of employee support or employees’ decision to sign the petition, such that there is a legitimate question whether the petition would have reached the requisite threshold absent unfair practices; (2) warrants retroactive extension of the certification bar based on incumbent union’s status as an emerging union negotiating for a first contract; or (3) has a continuing prospective tendency to harm employee free choice that PERB’s remedies are unlikely to fully address, even in conjunction with the passage of time and any other relevant factors. If none of these three circumstances are present, and there are no pending allegations of unfair practices warranting a stay, the Board directed OGC to process the decertification petition after PERB’s remedies are fully in place and enough time has elapsed such that fair proceedings can go forward. (p. 12.)