San Ramon Valley Unified School District (PERB 0111E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL 	UNION,
LOCAL 	390,
Employee 	Organization,
and
SAN 	RAMON 	VALLEY 	UNIFIED 	SCHOOL 	DISTRICT,)
Employer.
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Case 	No. 	SF-OS-19
PERB 	Decision 	No. 	lLl
November 	20, 	1979
Appearances: 	Robert 	Bezemek 	and 	Stewart 	Weinberg, 	Attorneys
(Van 	Bourg, 	Allen, 	Weinberg 	& Roger) 	for 	Service 	Employees
International 	Union, 	Local 	390; 	Jon 	Hudak, 	Attorney 	(Breon,
Galgani 	& Godino) 	for 	San 	Ramon 	Valley 	Unified 	School 	District.
Before 	Gluck, 	Chairperson; 	Gonzales 	and 	Moore, 	Members.
PROCEDURAL 	HISTORY
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	the 	Board 	or 	PERB) 	on 	exceptions 	filed 	by 	the
Service 	Employees 	International 	Union, 	Local 	390 	(hereafter
SEIU) 	to 	the 	hearing 	officer's 	proposed 	decision 	dated
September 	20, 	1978. 	In 	his 	decision, 	objections 	raised 	to 	the
organizational 	security 	election 	were 	dismissed. 	The 	Board
reverses 	that 	decision.
FACTUAL 	SUMMARY
On 	March 	18, 	1977, 	Local 	390 	was 	certified 	as 	the 	exclusive
representative 	of 	approximately 	140 	classified 	employees 	of 	the
San 	Ramon 	Valley 	Unified 	School 	District 	(hereafter 	the

N
District). 	Negotiation 	sessions 	were 	conducted 	over 	a
five-month 	period 	and 	were 	concluded 	on 	November 	30, 	1977.
Pursuant 	to 	section 	3546(a) 	of 	the 	Educational 	Employment
Relations 	Actl 	(hereafter 	the 	Act 	or 	EERA), 	the 	District
insisted 	that 	the 	organizational 	security 	clause 	in 	the
contract 	be 	severed 	from 	the 	agreement 	and 	be 	submitted 	to 	a
separate 	vote 	of 	bargaining 	unit 	members. 	Because 	of 	the
protracted 	nature 	of 	negotiations 	and 	the 	desire 	to 	have 	a 	dues
deduction 	system 	in 	operation 	by 	January 	1, 	1978, 	both 	parties
lThe 	Educational 	Employment 	Relations 	Act 	is 	codified 	in
Government 	Code 	section 	3540 	et 	seq.
Government 	Code 	section 	3546(a) 	provides:
An 	organizational 	security 	arrangement, 	in 	order 	to 	be
effective, 	:must 	be 	agreed 	upon 	by 	both 	parties 	to 	the
agreement. 	At 	the 	time 	the 	issue 	is 	being 	negotiated,
the 	public 	school 	employer 	may 	require 	that 	the
organizational 	security provision 	be 	severed 	from 	the
remainder 	of 	the 	proposed 	agreement 	and 	cause 	the
organizational 	security provision 	to 	be 	voted 	upon
separately 	by 	all 	members 	in 	the 	appropriate
negotiating 	unit, 	in 	accordance 	with 	rules 	and
regulations 	promulgated 	by 	the 	board. 	Upon 	such 	a
vote, 	the 	organizational 	security provision 	will
become 	effective 	only 	if 	a 	majority 	of 	those 	members
of 	the 	negotiating 	unit 	voting 	approve 	the 	agreement.
Such 	vote 	shall 	not 	be 	deemed 	to 	either 	ratify 	or
defeat 	the 	remaining 	provisions 	of 	the 	proposed
agreement.
All 	section 	references 	herein 	are 	to 	the 	Government 	Code 	unless
otherwise 	noted.
2

agreed 	to 	waive 	the 	election 	notice 	period.2
Testimony 	in 	the 	record 	is 	in 	conflict 	as 	to 	which 	party
initially 	proposed 	that 	the 	election 	be 	held 	as 	soon 	as
possible. 	However, 	on 	or 	about 	December 	2, 	1977,3 	SEIU 	field
representative 	Kathryn 	Haymes 	testified 	that 	she 	contacted 	the
Board's 	San 	Francisco 	Regional 	Office 	to 	inquire 	as 	to 	the
first 	available 	date 	for 	scheduling 	the 	organizational 	security
election. 	She 	was 	advised 	that 	December 	19th was 	available 	and
relayed 	this 	information 	to 	Douglas 	Douglas, 	classified
personnel 	director 	and 	member 	of 	the 	District's 	negotiating
team. 	Haymes 	and 	Douglas 	then 	discoverd 	that 	December 	19th 	was
the 	first 	day 	of 	Christmas 	vacation 	for 	the 	32 	bus 	drivers 	in
the 	bargaining 	unit. 	These 	bus 	drivers, 	therefore, 	would 	be
2Notice 	requirements 	for 	organizational 	security
elections 	are 	set 	forth 	in 	PERB's 	rule 	34000, 	California
Administrative 	Code, 	title 	8, 	section 	34000, 	which 	provides 	in
pertinent 	part:
34000. 	Petition 	by 	Employer.
(a) 	Pursuant 	to 	section 	3546(a) 	of 	the 	Act, 	an 	employer
may 	serve 	written 	notice 	on 	an 	exclusive 	representative 	that 	a
proposed 	organizational 	security provision 	shall 	be 	voted 	upon
separately 	from 	the 	remainder 	of 	the 	proposed 	agreement 	by 	the
members 	of 	the 	unit.
(b) 	The 	notice 	to 	the 	exclusive 	representative 	shall 	be
made 	only 	after 	agreement 	has 	been 	reached 	on 	an 	organizational
security 	arrangement 	and 	prior 	to 	ratification 	of 	the 	entire
proposed 	agreement.
3unless 	otherwise 	indicated, 	all 	dates 	refer 	to 	1977.
3

the
	only
	unit
	employees
	not
	on
	paid
	status
	on
	election
	day.
To
	promote
	the
	bus
	drivers' 	participation
	in
	the
	election,
Douglas
	suggested
	the
	possibility
	of
	holding
	a
	paid
	in-service
training
	session
	for
	bus
	drivers
	on 	December
	19th
	election
day.
	The
	parties
	are 	in
	disagreement 	as
	to
	the 	exact 	nature
	of
their
	agreement
	concerning 	the
	election
	date
	and
	its
	relation
to
	the
	training 	session
	commitment.
	Haymes
	testified
	as
follows:
Q. 	Okay. 	Did 	you
	ever
	tell
	Mr.
	Douglas
	that
	you 	would
	not
agree
	to 	the
	December 	19
	date 	unless
	an
	in-service
	were
held
	on
	that
	day?
A. 	I
	think
	what
	we
	said
	was
	if
	we
	can't
	work
	out
	an
in-service 	training
	on
	the 	19th 	then
	we'll
	have
	to
	come
back
	and
	discuss
	this
	again.
Q.
	That's
	what 	you
	said?
A. 	I
	think
	that
	was
	the
	general
	agreement
	in 	our
conversation,
	that
	if
	an
	in-service 	training 	couldn't
	be
given,
	if
	an
	in-service 	training 	couldn't
	be
	given
	on
	that
day
	then
	we'd
	have
	to
	either
	find 	out 	another
	way
	to
overcome
	the
	problem
	or
	change
	the 	day.
Douglas
	testified
	that
	when
	posing
	this
	suggestion,
	he
indicated 	that
	he 	would 	have
	to
	make
	inquiries
	as
	to
	the
possibility
	of
	scheduling 	such
	a
	session.
	He
	testified
	as
follows:
Q. 	Was
	there
	any
	discussion 	in 	that
	review
	to	
the	
effectthat
	it	
should 	not	
be	
scheduled 	during	
December,	
or 	duringthe 	Christmas 	break	
unless 	there
	was
	to	
be 	an
	in-service
training 	session?
A. 	I
	don't 	recall	
anything	
that 	specific,	
Kathryn	
did
express 	concern 	as 	she
	testified	
and	
that's	
when 	I	
told 	her
that
	I 	would 	check
	into
	it
	to 	see
	if 	there
	was 	any
possibility 	of 	having 	a	
--
4

Q.
	Okay.
A.
	training
	session.
For
	this
	reason,
	Douglas
	telephoned
	Don
	Capling,
	director
of
	transportation
	for 	the
	District.
	Testimony
	of
	Capling
places
	this
	telephone
	conversation
	approximately
	two 	weeks
prior
	to
	a
	bus
	driver
	bidding 	session4	
conducted
	on
December
	13th.
	Douglas
	testified
	that
	after
	his 	conversation
with Capling
	he
	believed
	that
	Capling
	had
	agreed
	to
	the
training 	session.
	Capling
	testified
	that 	after 	this
conversation,
	he
	believed
	he 	had
	rejected
	Douglas'
	training
session 	proposal.
	Capling
	also
	testified,
	however,
	that
	he
understood
	that
	a
	promise
	to
	hold
	the
	election
	day
	training
session
	had
	been
	made
	to 	the 	union.
There
	is
	considerable
	ambiguity
	and
	conflict
	as
	to
	when
	the
union
	was
	advised
	that
	Capling
	had
	apparently
	agreed
	to 	the
training
	session
	on
	election
	day.
	Haymes
	testified 	that,
approximately
	two 	weeks
	before 	the
	election
	on
	or 	about
December
	5,
	she
	spoke
	to
	Capling
	who
	indicated 	that
	he 	had
discussed 	the
	training 	session 	with 	Douglas. 	According
	to
Haymes,
	Capling 	gave 	no
	indication 	that
	he 	had 	any
	objection 	to
offering
	the
	bus
	driver 	training 	as 	planned.
	Haymes
	also
recalled
	a
	discussion
	on 	December
	9th 	during
	which 	Douglas
4Two
	bidding 	sessions
	were 	held 	during 	the 	period 	priorto 	the 	election;
	on 	December 	9 	and 	13. 	The 	purpose 	of 	themeetings 	was
	to 	allow 	bus 	drivers 	to 	bid 	on
	available 	routes.
--
5

announced,
	just
	prior
	to 	signing 	the
	election
	consent
agreement,
	that
	the
	possibility
	of
	having
	the
	election
	day
training
	session
	had
	been
	confirmed
	by
	Capling.
Capling,
	Douglas
	and
	Shari
	Ogden,
	acting 	chairperson,
	shop
steward
	and
	negotiator 	for
	SEIU,
	all
	testified
	that
	on
	or 	about
December
	9th,
	a
	bus
	driver
	bidding
	meeting
	was
	held.
	In
certain 	respects,
	the
	testimony
	of
	Douglas
	substantiates
Ogden's
	description
	of
	that
	meeting.
	He
	agrees
	that
	they
	were
present
	at
	the
	meeting 	during
	which
	a
	problem 	developed
	over
the 	bidding 	procedure.
	A
recess
	was
	called
	during
	which
Douglas
	and
	Capling
	spoke
	privately.
	When 	Ogden
	rejoined 	the
district
	administrators,
	Ogden
	testitied
	that:
A.
	Yes,
	I
	had
	left
	the
	room 	and 	was
	called
	back
	in
	and
	--
Q. 	Okay. 	And 	was
	there
	a
	discussion
	at 	that
	time?
A.
	Yes.
Q. 	And 	who	
spoke?
A. 	Mr. 	Douglas
	mainly.
Q. 	Okay. 	And
	could 	you,	
as 	best
	you
	can
	recall,
	tell
	uswhat 	Mr. 	Douglas
	said
	and 	what 	you
	said.
A. 	Okay. 	I	
don't
	know
	if
	it's
	the 	exact
	words
	that	
I 	was
told 	that
	they
	had 	some 	good 	news,
	that 	there
	would
	be
	a
two-hour
	in-service 	training 	before 	the
	election 	toencourage
	drivers 	to
	come
	in
	and
	vote
	and 	I
	said, 	great,
and 	went
	out	
and 	wrote
	it
	on
	the 	board.
Q. 	Okay. 	What
	board 	did
	you
	write
	it
	on?
A. 	The
	chalk 	board
	that's
	in 	the
	main
	coffee
	room
	for 	the
bus	
drivers.
Q. 	Okay. 	And 	what 	did 	you
	write
	on
	the 	board?
6

A.
	That
	there
	would
	be
	a
	paid
	two-hour
	in-service 	training
two
	hours
	prior
	to
	the 	voting
	on
	the
	19th.
Q. 	Okay. 	Now, 	when 	you 	had
	this
	conversation
	with
	Mr.
Douglas,
	was 	Mr.
	Capling
	standing 	there?
A. 	Oh,
	Yes.
Q.
	Was
	he
	within 	earshot?
A. 	Oh,
	yes.
Q.
	Did 	he
	say 	anything
	at 	all?
A.
	He
	really 	didn't
	say 	too
	much.
Q. 	Did 	he
	say
	that
	there
	would
	be
	or
	wouldn't
	be
in-service 	training?
A. 	I
	really 	don't,
	just,
	you 	know, 	Mr.
	Douglas	f	
did
	most
	of
the
	talking.
	I
	don't
	remember
	what 	and
	if,
	you 	know,
	it
was
	very
	little.
Q. 	Did Mr.
	Capling
	object 	to
	anything
	Mr.
	Douglas
	said?
A. 	No.
Q. 	Did 	he
	correct
	Mr.
	Douglas
	in
	any
	way?
A. 	No.
Capling's
	own
	testimony 	as
	to
	this
	meeting
	is
contradictory.
	He
	testified 	that
	he 	had 	no
	recollection 	of 	the
meeting 	and,
	after
	his
	initial
	conversation 	with 	Douglas,
	the
next 	time	
he 	heard 	about	
the
	training 	session
	was	
on
December 	13 	when	
the 	second 	bidding	
session
	was	
held. 	Capling
also
	testified,
	however,
	that
	he
	did
	recall
	the 	meeting 	on
December
	9th, 	that
	he	
left	
that 	meeting 	without 	believing 	that
the 	session
	was
	to
	be
	held, 	but 	that	
he	
did
	remember
	that	
the
subject 	of 	training
	was
	discussed 	sometime 	during 	that 	day.
7

8
Although
	Douglas
	testified
	that
	he
	did 	not
	recall
	whether
he
	had
	spoken
	to
	Capling
	prior
	to
	the
	December
	9th 	meeting,
	he
stated:
Q.	
(By	
Mr. 	Hudak) 	Mr. 	Doug
las,
	do 	you
	recall
	having
	a
couple
	of
	meetings 	with
	Mr.
	Capling
	and 	Mrs.
	Ogden
	shortly
before
	the
	December,
	December 	19
	election?
A.
	We
	had
	a
	meeting
	on
	the
	ninth 	of
	December 	when
	we
	were
having
	the 	bidding
	for 	buses,
	we
	had 	a
	problem,
	and
	we
	went
into
	Mr.
	Capling's
	office.
Q. 	Okay. 	Now,
	and
	also
	on
	the 	13th 	or
	thereabouts, 	did
you have a meeting with those two persons?	
you 	have
	a
	meeting
	with 	those
	two
	persons?
A. 	I
	don't 	recall
	on
	the 	13th.
Q. 	Okay,
	or
	that
	--
A.
	That
	was
	the
	day
	of 	the 	bidding.
Q.
	--
	vicinity.
	Well, 	okay,
	thereabouts.
	Did 	you
	have
two
	meetings
	before
	the
	election
	or 	not?
A. 	I
	don't
	know
	if
	we
	had
	any
	formal
	meetings, 	but
	we
	had
several
	(inaudible)
	negotiations.
Q.
	In
	any
	event
	you
	left
	that
	meeting	was your	
with,
	what 	was
	your
understanding 	about
	in-service 	training
	when 	you
	left
	that
meeting?	meeting?
A.
	That
	there
	was
	going
	to
	be 	one.
Q.
	And 	was
	that	
based	
on
	something
	you 	had
	said 	orsomething
	Mr.
	Capling
	had
	said?
A. 	I 	had
	requested	
Don
	to, 	if
	it	
would 	be
	possible 	for	
us
to	
have 	an	
in-service 	training	
on 	the 	19th	
and
	it
	was 	my
impression
	that
	we
	were
	going
	to
	have.
According
	to
	Ogden I s
	testimony, 	immediately
	after
	the
December
	9th meeting 	with 	Douglas 	and
	Capling, 	she 	wrote 	an
announcement 	for 	the 	training 	session
	on
	the 	black 	board 	in 	the
room 	used 	by 	the 	bus
	drivers.
	Soon
	thereafter, 	according 	to
8

Ogden,
	she
	was
	asked
	by
	the
	bus
	drivers
	whether
	the
	training
session
	had
	been
	cancelled
	because 	Capling
	had
	been
	seen
erasing
	the
	notice.5	
Capling 	admitted
	that
	before
	the
meeting
	on 	December
	13th
	he
	erased 	the
	notice
	after
	being
advised
	that
	it
	had
	been
	written
	on
	the 	black 	board.
Haymes
	testified
	that
	because
	it
	was
	her
	understanding
	that
the
	District
	had
	agreed
	to 	post 	notices
	of
	the
	training
session,
	she 	checked
	the
	bus
	drivers'
	room
	during 	the
	week
	of
December
	5th
	and
	called
	Douglas
	to
	inform
	him
	that
	no
	notices
had
	been
	posted.
	On
	Monday, 	December
	12,
	Haymes
	tried
	to
	reach
Capling 	but
	was
	unsuccessful.
	She
	advised
	Ogden
	to
	remind
Capling
	of
	his 	tardiness
	and
	to
	ask
	him
	to
	make
	the
	posting.
The
	next 	day, 	Tuesday,
	December
	13, 	the
	second 	bus
	driver
bidding
	session
	was
	held.
	At
	that
	meeting,
	Douglas 	announced
in 	Capling's
	presence
	that
	the
	training 	session
	would 	be
	held
on
	the	
day	
of 	the
	election.
	Capling 	did 	not
	contradict
Douglas'
	statement 	during 	the 	meeting 	because, 	according
	to
Capling's 	testimony,
	he 	saw
	the 	matter 	as 	being 	something
between 	Douglas 	and
	himself.
Ogden
	testified	
that	
after 	this	
bidding	
session
	she
	talked
to
	Douglas 	about 	the 	training 	session 	notice
	being 	erased.
5ogden
	testified	
that	
two 	days
	after	
the	
notice
	was
posted,
	Laura 	Capuder, 	a
	District
	bus
	driver	
and 	SEIU member,
told 	her
	that 	the 	notice
	had 	been
	erased. 	Although 	Capuder 	was
called
	and
	testified
	as
	a
	witness 	at 	the 	hearing, 	she 	was
	notasked 	about 	this 	statement 	by 	either 	party.

10
Also
	after 	this
	meeting,
	Capling
	discussed
	his 	objections
	to
the
	training
	session
	with 	Douglas.
	And
	after
	his 	discussion
with 	Capling,
	Douglas
	again
	spoke
	to
	Ogden
	concerning
	the
training.
	According
	to
	Ogden,
	her
	conversation
	with
	Douglas
was
	as 	follows:
A.
	Well,
	when 	I
	talked 	to
	him 	was
	right 	after
	the
bidding.
	At
	the
	bidding
	he
	announced
	to
	all
	the
	drivers
that
	there
	would 	be
	this
	in-service 	training
	and
	evidently
Don
	told
	him
	shortly 	thereafter 	that 	this
	was
	not
	so,
	and
	I
don't
	know 	who
	called
	who,
	whether
	I
	called
	him
	or 	what,
but
	we
	had 	a
	telephone
	conversation 	in
	which
	he
	asked
	me,
isn't
	that
	what
	Don
	said
	at
	the 	meeting
	that
	we
	were
	going
to
	have
	this
	in-service 	training?
	Because
	he
	said
	he 	would
not
	have 	announced
	this
	in
	front
	of
	all
	these
	drivers
	if
	he
hadn't
	thought
	it
	was
	true.
	He
	was
	very 	embarrassed
	by
it.
	And 	I
	said
	yes,
	that 	is
	what
	I
	understood,
	you 	know,
that 	this
	meeting,
	I
	mean,
	that
	the
	in-service 	training
	had
been
	set
	up.
Haymes
	testified
	that
	on
	Tuesday
	or
	Wednesday,
	she
	was
advised
	by 	Ogden
	that
	there
	was 	some
	question
	as
	to
	whether
	the
training 	session
	would 	be
	cancelled	
by Capling.
	She
	testified
that
	she
	told
	Douglas
	that
	no
	notices
	had
	been
	posted
	and
	that
his
	response
	was
	that
	he 	was
	surprised
	and 	would
	look
	into
	the
matter.
	On
	Thursday, 	according
	to
	Haymes,
	she
	was
	first
	made
aware
	of 	the
	"whole
	story" 	regarding 	Capling's 	decision 	to
cancel 	the
	training 	session.
	This
	decision
	was
	confirmed 	by
Douglas
	on
	Friday,
	December
	16.
	Haymes
	testified 	that	
Douglas
told
	her	
that
	Capling	
had	
indicated 	that, 	referring 	to 	the 	paid
in-service 	training 	session,	
he 	would	
not	
pay 	employees	
to 	vote.
Ogden
	testified 	that
	on Wednesday, 	December
	14,
	a
	notice
was
	posted, 	signed
	by
	Capling, 	which
	said 	that 	there
	was 	a
10

misunderstanding 	but
	that
	no
	training
	session
	would
	be
	held
	on
election
	day.
	After
	this
	notice
	was
	posted,
	Ogden
	testified,
she
	talked
	to
	some
	employees
	who
	expressed 	disappointment
	that
the
	training
	session
	had
	been
	cancelled.
	William 	Green,
	SEIU
chairperson,
	testified
	that
	on
	or 	about
	Wednesday,
	December
	14,
Ogden
	telephoned
	him
	at
	his
	home
	in
	the 	evening.
	She
	told
Green
	that
	Capling
	had
	cancelled 	the
	training 	session. 	After
the
	union 	meeting
	held
	later
	that
	evening,
	Green
	testified
	that
bus
	drivers
	were
	upset 	by	
this
	decision
	and
	that
	some
	indicated
that
	they
	were
	not
	surprised
	at
	the
	district's
	decision
	to
cancel 	the
	session.
Douglas'
	version 	of 	the 	events 	during
	this
	period 	are
	that
he
	announced
	the
	training 	session 	to 	the
	drivers
	at
	the 	bidding
session
	on
	Tuesday
	and
	again
	to
	the
	union
	representatives
present
	when
	the
	contract
	was
	signed
	on Wednesday.
	In
	the
course 	of 	the
	latter
	announcement, 	Douglas' 	testimony
	is 	that
he
	specifically 	stated 	that
	Capling
	had
	agreed
	to 	the 	proposed
training 	session.
	On
	Thursday, 	Douglas
	said 	that
	he
	spoke
	to
Haymes
	about 	the 	lack 	of 	notices
	and
	that
	he 	was
	unsuccessful
in	
reaching 	Capling
	on	
that 	day.
	Not
	until
	Friday, 	according
to
	Douglas,
	was 	he
	able 	to 	verify
	from
	Capling
	and
	Capling's
superior,
	Orin 	Bachelor, 	the	
district
	business	
manager,
	that	
no
training	
would 	be	
held.
Again, 	Capling's 	testimony 	regarding 	his 	final 	decision 	to
cancel 	the 	election
	day
	training 	session 	is 	internally
11

contradictory.
	While
	he
	testified
	that
	he
	contacted
	Bachelor
before
	the
	December
	13th 	meeting,
	he
	also
	stated 	that
	he
	did
not 	advise
	his 	superior 	of 	his
	decision
	until
	Thursday
	and
until
	Friday.
	His
	testimony 	regarding
	when
	the
	decision
	was
communicated
	to
	the
	employees
	is
	also
	in
	conflict.
	He
indicated
	that
	his
	announcement
	that
	the
	training
	was
	cancelled
appeared 	both
	on 	Monday 	and 	on
	Tuesday
	and,
	in
	addition,
	that
his
	final
	decision
	was
	not
	made
	until
	Thursday.
The
	explanations 	offered
	by
	Capling
	for 	cancelling 	the
session
	were
	that
	he
	did 	not
	have
	money
	available
	in 	the
budget,
	that 	training
	had
	not
	been
	given
	on 	a
	holiday
	before
and
	that 	this 	particular 	training 	session
	was
	not
	necessary.
Therecord
	reflects,
	however,
	that
	a
	paid
	bus
	driver
	training
had,
	on 	one
	occasion,
	been 	conducted
	on 	a 	weekend
	although,
according
	to 	Capling,
	that
	session
	had
	not
	been
	ordered	
by
him.
	In
	general,
	bus
	driver 	training 	sessions
	were
	conducted
by	
the
	district
	in 	order 	to
	satisfy
	the
	drivers' 	training
requirements.
	The
	record
	reflects 	that
	during
	December
	1977,
one
	district
	trainer
	was
	prepared 	to
	conduct 	such
	a
	traning
session,
	having
	just
	returned
	from 	a
	training 	session
	herself.
With
	regard 	to 	the 	testimony 	of
	Haymes
	that
	Capling	
had	
said 	to
Douglas 	that
	he 	would	
not	
pay
	people 	to 	vote,	
Capling	
testified
that 	while
	he 	may 	have 	made	
this
	comment
	to 	Eileen
	McCauley,
dispatcher 	for 	transportation,
	he 	meant 	that 	since
	a
	training
session
	was
	not 	needed, 	scheduling 	such 	a
	session
	on
	election
12

13
day 	was,
	in
	effect,
	paying 	people
	to
	vote.
When
	SEIU
	representatives
	learned 	of 	Capling's 	decision	
on
or 	about
	Wednesday,
	December
	14, 	1977,
	Ogden
	discussed
rescheduling 	the
	election
	with
	Green,
	and 	with
	Haymes. 	Haymes
said
	that
	it
	was
	too
	late
	to
	reschedule
	and,
	given 	the
	election
consent
	agreement
	signed
	by
	the
	parties
	on
	December
	9,
	she
	did
not
	believe
	that
	she
	could
	reschedule
	the
	vote.
	She
	felt
	that
SEIU
	would 	have
	to
	proceed 	with
	the
	election	
and	
hope
	for 	the
best.
On 	Monday, 	December
	19,
	the
	organizational 	security
election
	was
	conducted
	by
	PERB
	agent
	Jerilyn
	Gelt.
Colleen
	Matthews,
	district
	personnel
	secretary,
	served
	as 	the
district's
	observer
	and
	Green
	served 	as 	observer 	for
	SEiu.6
During
	the
	polling,
	Green
	commented
	to
	Gelt
	that
	he
	did
	not
think
	that
	the
	election
	was
	fair
	because 	everyone
	in 	the
	unit
was
	paid 	except 	the
	bus
	drivers.
	Gelt
	responded
	that
	SEIU
	had
seven 	days
	to
	lodge
	an
	objection 	to
	the
	election.
	Haymes
	said
that
	SEIU 	would
	contest 	the
	election
	if
	it
	lost.
6one
	of
	SEIU's
	objections 	to 	the
	organizational 	securityelection
	concerned 	the
	allegation 	that
	Green
	was
	informed
	by
two
	unit 	custodians 	that	
a
	sign
	was
	posted 	near 	the	
polling
site
	on
	election
	day, 	the 	contents 	of
	such 	suggested
	a
	negativevote 	in 	the
	election.
	Because
	of 	the 	Board's 	conclusions 	as
set 	forth 	infra,	
the	
facts
	surrounding
	that 	allegation 	ofserious 	irregularity 	in	
the 	conduct
	of
	the	
election 	are 	notincluded 	herein	
but	
are 	incorporated
	by	
reference 	to	
the
hearing	
officer's	
proposed	
decision.
13

14
One
	hundred
	and
	seven
	unit
	employees
	voted
	in
	the
election.
	The
	tally
	of
	ballots
	was 	55
	against
	and
	52
	in
	favor
of
	the
	organizational
	security
	clause.
	Of
	the
	32
	bus
	drivers,
26
	or 	approximately
	81
	percent
	cast
	ballots.
	As
	to
	the
	unit
employees
	other
	than
	bus
	drivers,
	81
	or
	75
	percent
	voted.
Official
	records
	enabled 	the
	parties
	to
	determine
	which
	unit
members
	did 	not 	vote,
and
	testimony
	was
	received
	from
	each 	bus
driver
	who
	did 	not
	vote.
Viola
	Aquino, 	an
	SEID
	member
	and
	non-voting
	bus
	driver,
	was
not
	notified
	of 	the
	election
	or 	the
	training 	session
	and
	was
	on
leave
	and
	out 	of 	the
	state
	on
	the
	day
	of 	the
	election.
Capuder,
	an
	SEIU member
	and
	non-voting
	bus
	driver,
	was
aware
	of 	the
	election
	and 	saw
	the
	training
	session 	notice
	on
the	
bulletin
	board.
	She
	recalled
	some
	discussion
	among	
bus
drivers 	that
	the
	election
	cut 	into
	their
	Christmas
	vacation
	and
that
	they 	did 	not
	want
	to
	come
	back
	to
	school 	during
	their
vacation.
	She
	had 	no
	recollection
	of
	telling
	Ogden
	that
	she
personally
	would
	not
	come
	in 	to
	vote 	unless 	paid.
	Her
testimony
	was
	that
	if
	she 	did 	say
	that,
	it
	was
	said 	in
	jest.
Sheri 	Cuthbertson, 	also
	an
	SEIU member 	and
	non-voting 	bus
driver,
	was
	aware
	of 	the
	election
	but 	not 	of 	the
	training
session.
	No 	one
	called
	her
	to	
urge	
her
	to
	vote.
	On
December
	19, 	Cuthbertson
	was
	attending 	to 	personal
	affairs
	in
preparation 	for 	the 	Christmas 	holiday.
	She
	normally 	attended
14

in-service 	training
	sessions
	in
	the
	past
	as
	it
	was
	her
understanding
	that
	attendance
	was
	required 	unless
	one 	were
ill.7
Beverly
	Jacops,
	SEIU member
	and
	non-voting
	bus
	driver,
	was
aware
	of 	the
	election
	and
	the
	training 	session.
	She
	did 	not
vote
	because
	she
	was
	ill
	during 	the
	week
	prior
	to
	the
	election
and
	also
	during
	the
	entire
	Christmas
	vacation.
	She
	testified
that
	she
	had
	attended 	the
	majority 	of
	training
	sessions 	in
	the
past
	and
	believed
	that
	attendance
	was
	required
	because
	drivers
were
	paid 	to 	attend.
	As
	to
	the
	election
	day
	session,
	she
stated 	that
	people
	were
	upset
	that
	it
	was
	scheduled
	on
	a 	Monday
during 	Christmas
	vacation.
Kathryn
	Larkin,
	an
	SEIU member 	and
	non-voting
	bus
	driver,
was
	not
	aware
	of 	the
	training 	session
	although
	she
	was
	in
attendance
	at
	the
	December
	13th 	bidding 	meeting.
	She
	testified
that
	she
	was
	not
	aware
	of 	the
	election
	because
	she
	was
preoccupied 	with 	the 	Christmas
	vacation.
	She
	has
	attended
several past 	in~service 	training 	sessions
	whenever
	Capling
called
	such
	a
	session.
Finally,
	Sharon
	Soto,
	a
	non-voting
	bus
	driver
	and 	SEIU
member, 	was 	aware	
of
	the	
election.
	She
	testified	
that 	she
	saw
7The
	record 	in 	fact 	reveals 	that
	bus
	drivers 	are 	required
to
	have
	a
	school 	bus 	driver
	certificate.
	The
	certificateexpires 	every
	two
	years
	and 	a
	designated
	number	
of	
hours	
oftraining 	are 	required 	in 	order 	to 	obtain 	or
	renew
	these
certificates.
15

the
	training
	session 	notice
	on
	the
	board
	but
	assumed
	it
	was
cancelled
	when
	the
	notice
	was
	erased.
	Ogden
	called
	her
	prior
to 	the
	election
	and
	reminded
	Soto
	to 	vote.
	On
	December
	19,
	she
attempted
	to 	get 	to
	the 	school
	to
	vote
	but
	a
	car
	breakdown
prevented
	her
	from
	reaching
	the
	polling
	site.
SEIU
	filed
	timely
	objections
	to
	the
	election, 	alleging
	that
the
	District
	committed 	an
	unfair
	practice
	by
	unilaterally
revoking
	its
	agreement
	to
	hold
	the
	in-service 	training 	session
which
	engendered
	a
	negative
	reaction
	toward
	SEIU 	among
	unit
employees
	and
	also
	caused
	a 	number
	of
	eligible
	voters
	not
	to
vote,
	the
	number
	being
	substantial
	enough
	to
	affect
	the
	outcome
of
	the
	election.
	SEIU
	also 	asserts 	that
	the
	sign
	allegedly
witnessed
	by
	the
	two
	custodians
	constituted
	a
	serious
irregularity
	in 	the
	election
	proceedings.
In 	response
	to 	these
	objections,
	the
	District
	denied
	that
its
	final
	decision
	not
	to
	conduct 	the
	training 	session
	on
election
	day
	was 	an
	unfair 	practice
	or
	that 	this
	action
	caused
the 	employees'
	negative 	vote 	in
	that 	election.
	The
	District
urges
	that
	the
	SEIU
	dues
	increase
	from
	seven
	to 	ten
	dollars
	per
month,
	enacted 	in
	December
	prior
	to 	the
	organization
	security
election,
	explains 	the
	result.
DISCUSSION
The
	Board's 	rules
	and
	regulations
	do
	not
	specifically
address 	objections 	to 	organizational 	security 	elections 	or
provide
	a
	standard 	to 	apply 	in 	setting 	aside
	such
	election
16

results. However, the Board agrees with the hearing officer's
application of PERB
election challenges since in both election situations the g oal
is to foster an environment in which a free election can be
conducted. PERB rule 33590 states:
Objections shall be entertained by the Board
only on the following grounds:
(a) The conduct complained of is tantamount
to an unfair practice as defined in Article
4 of the Act;-or	.
(b) Serious irregularity in the conduct of
of the election.
In applying this rule to the instant case, the Board has
re viewed SEIU's allegation that the District's conduct in
conjunction with the training session and its cancellation was
tantamount to an unfair practice in violation of section 3543.5
(c).9 In that regard, the Board has examined the entire
factual circumstances surrounding the organizational security
election and the election day training session in light of
SEIU's specific allegation that Douglas' lack of authority to
Bcalifornia Administrative Code, title 8, section 33590.
9section 3543.S(c) of EERA provides:
It shall be unlawful for a public school
employer to:
(c) refuse or fail to meet and negotiate in
good faith with an exclusive representative.
17
results. However, the Board agrees with the hearing officer's
application of PERB rul	application of PERB rule 335908 go

reach
	an
	agreement
	on
	the
	training
	session
	was
	evidence
	of
	bad
faith
	bargaining.
While
	it
	is
	true
	that
	under
	certain
	circumstances,
	a
negotiator's
	lack 	of
	authority
	to
	reach
	agreement
	constitutes
	a
refusal
	to
	bargain 	in
	good
	faith,
	in
	this
	case, 	the
	fact 	that
Douglas
	was
	required
	to 	get
	approval
	for
	the
	training 	session
does
	not, 	in
	and
	of
	itself,
	so
	demonstrate.
Decisions
	arising
	under
	the 	National
	Labor
	Relations
	Act
(hereafter
	the
	NLRA}
	clearly 	establish 	that
	bargaining
	team
members
	are 	permitted
	to
	function
	subject 	to
	approval
	from
superiors
	without
	violating 	section
	8(a)
(5)
	of 	the
	NLRA.
(Maury's
	Fluorescent	
&	
Appliance
	Service
	(1976)
	226
	NLRB
	No.
206
	[94
	LRRM
	1175];
	Gulf
	States
	Canners,
	Inc.
	(1976)
	224
	NLRB
No. 	215 	[93
	LRRM
	1425]
.)
	Thus,
	while 	the
	use
	of
	negotiators
without
	authority 	to
	bind 	the
	company
	is
	some
	evidence
	of
	a
lack 	of
	good
	faith
	(NLRB
	v.
	Coletti
	Color
	Prints,
	Inc.
	(2d
	Cir.
1967)
	387
	F.2d
	298 	[66
	LRRM
	2776]; 	National
	Amusements,
	Inc.
(1965) 	155
	NLRB
	No.
	113 	[60
	LRRM
	1485]),	
as	
stated
	in
	NLRB
	v.
Fitzgerald 	Mills
	(2d
	Cir.
	1963)
	313
	F.2d
	260 	[52
	LRRM
	2174],
cert.
	denied
	(1963) 	375
	U.S.
	834 	[54
	LRRM
	2312],
If
	in 	other 	respects
	good
	faith 	is
	found
	it
is
	not
	enough
	to 	establish
	an
	unfair	
labor
practice 	solely 	that
	the
	representative
	of
the
	company 	was
	not
	empowered
	to 	enter 	into
a
	binding 	agreement.
	(52
	LRRM
	at
	p. 	2178.)
Therefore, 	in 	determining 	whether 	the
	District's
	conduct
demonstrates	
bad	
faith	
bargaining 	in 	violation 	of
18

section
	3543.S(c) 	of 	the
	EERA,
	the
	Board
	takes
	cognizance
	of
the
	totality
	of 	circumstances
	(NLRB
	v.
	Virginia
	Electric
	&
Power 	Co.
	(1941)
	314
	U.S.
	469
	[9
	LRRM
	405]
~	
NLRB
	v.
	Advanced
Business
	Forms
	Corp.
	(2d
	Cir.
	1973)
	474
	F.2d
	457
	[82
	LRRM
3189];
	Placentia 	Fire 	Fighters
	v.
	City 	of 	Placentia
	(1976)
	57
Cal.App.
	3d
	9 	[92
	LRRM
	3373].)
	Here,
	the 	employer's 	conduct,
including 	the
	actions 	of
	both
	Capling
	and
	Douglas,
	both
administrators
	and
	agents
	of
	the
	District,
	must
	be
	reviewed
	in
the 	context 	of 	the
	negotiations
	as 	they
	arose.
	(NLRB
	v.
	Randle
-
	Eastern
	Ambulance
	Service, 	Inc.
	(5th
	Cir.
	1978)
	584
	F.2d
	720
[99
	LRRM
	3377].)
Initially,
	the
	Board
	notes
	that
	in 	assessing
	the
	refusal 	to
bargain
	charge
	alleged,
	the
	rules
	of
	contract
	law
	are 	not
determinative.
	(NLRB
	v.
	Donkin's
	Inn, 	Inc.
	(9th
	Cir.
	1976)
	532
F2d
	138 	[91
	LRRM
	3015],cert.
	denied
	(1976) 	429
	U.S.
	895
[93
	LRRM
	2512];
	Lozano
	Enterprises
	v.
	NLRB
	(9th
	Cir.
	1964)
	327
F.2d
	814 	[55
	LRRM
	2510]
.)
	Thus,
	the
	Board
	may
	find
	a
	re
to
	bargain
	violation
	even 	assuming 	arguendo
	that,
	absent
Capling's 	actual 	approval, 	the
	parties 	failed 	to
	reach
	a
	final
contractual
	agreement 	as
	to
	the
	training 	session.
	This
	is
	so
because
	rules
	by
	whi
	it
	is
	dete 	ther 	the
	parties
have
	made 	a
	contract 	are 	not 	the 	ru
	s 	whi
	it
	is
determined 	whether 	or 	not 	the
	parties
	have
	bargained 	in good
ith.
	v.
	Shannon 	&	
Simpson
	Casket
	Co.
	(9
	Cir.
	53)
208
	F.2d
	545 	[33
	LRRM
	2270]; 	San 	Antonio Machine 	&
Supply 	Corp.
19

v.
	NLRB
	(5th
	Cir.
	1966)
	363
	F.2d
	633
	[62
	LRRM
	2674);
	NLRB
	v.
Downs 	-
	Clark,
	Inc.
	(5th
	Cir.
	1973) 	479
	F.2d
	546 	[83
	LRRM
2475]
.) 	Therefore, 	unlike 	the 	hearing
	officer,
	the
	Board
	finds
it
	unnecessary
	to
	confine
	its
	analysis
	to
	a
	determination
	that
the
	training
	session
	was 	a
	quid 	pro
	quo
	of 	the
	parties
	election
consent
	agreement.10
In 	the
	instant
	case, 	the
	Board
	has 	reviewed
	the 	record
paying
	particular 	attention
	to 	Capling's 	role 	in
	the
	training
session 	negotiations.
	Based
	on
	the 	testimony
	of
	Haymes,
	Ogden,
Green 	and
	Douglas,
	it
	appears
	that
	Capling
	exhibited
	apparent
acquiesence
	to
	the
	training 	session.
	Haymes
	testified
	to
	a
conversation
	with 	Capling
	two 	weeks
	prior
	to
	the
	election
during
	which
	the
	training 	session
	was
	discussed
	and
	to
	which
Capling 	voiced
	no
	opposition.
	Ogden
	recalled,
	and
	Haymes
corroborated,
	that
	Capling
	was
	present
	at
	the
	meeting
	on
December
	9th
	where 	Douglas 	announced
	Capling's
	approval
	of
	the
session.
	Capling 	himself
	testified
	that 	prior 	to
	the 	bidding
session
	on 	December
	13th,
	he
	erased 	the
	training 	session 	notice
written	
by	
Ogden. 	But
	it
	is
	uncontested
	that
	Capling
	was
l0The
	hearing
	officer
	determined
	that 	there
	was 	a
	lack 	ofevidence 	to 	support 	the 	existence 	of
	a
	quid 	pro
	quo 	agreement
although
	he
	found, 	as
	a
	matter 	of
	fact, 	that 	there
	was 	ample
evidence
	that
	the
	training 	session
	was
	planned,
	that 	the
election
	consent 	agreement
	was
	signed
	after
	the 	session
	was
planned
	and
	that
	Douglas 	announced
	the 	training 	session 	to 	thebus
	drivers
	on 	December
	13th
	and
	to 	the 	union
	negotiating
	teamon 	December
	14th, 	the
	day
	the
	parties' 	collective 	bargainingagreement 	was
	signed.
20

present
	and
	voiced
	no
	objection 	to
	the
	training
	session
	during
the
	December
	13th 	bidding 	meeting.
	Thus,
	while
	Capling's
behavior
	demonstrated
	apparent 	approval
	of 	the
	training
session,
	he
	nonetheless
	made 	no
	attempt
	to
	clearly
	announce
that 	his 	intention
	was
	to
	the
	contrary.
	As
	a
	result,
	some
confusion
	and
	uncertainty
	persisted
	until
	Capling's
	position
was
	finally 	clarified
	on
	Friday,
	December
	16th,
	the
	last
	work
day
	prior
	to
	the
	election.
In
	assessing 	Capling's
	conduct,
	the 	hearing
	officer
concluded
	that,
	while
	one 	would 	have
	expected
	Capling
	to
"register
	some
	dissent" 	to
	the 	apparent 	scheduling
	of
	the
training
	session
	which
	he
	believed
	he 	had
	rejected,
	it
	was
unnecessary
	to
	pursue
	this
	"seeming
	inconsistency"
	since, 	in
the 	hearing
	officer's
	opinion, 	the
	sole 	question 	to
	be
addressed
	was
	whether
	the
	training
	session
	was 	a
	guid
	pr.0_9E_Q
for
	SEIU's 	agreement
	to
	the
	election 	date.
	As
	noted
	infra,
	the
Board 	does
	not 	adopt
	this 	legal 	analysis.
	Rather, 	the
	Board
concludes
	that
	bad
	faith
	bargaining
	is
	demonstrated
	when
Capling's
	failure
	to
	"register
	some
	dissent" 	is
	viewed
	in
conjunction 	with 	Douglas' 	apparent
	agreement
	to 	the
	training
session.
	This 	conclusion
	is
	supported 	by	
cases
	arising
	under
the
	NLRA
	where
	refusal 	to 	bargain 	violations
	have 	been 	found
when,
	notwithstanding
	a
	negotiator's
	lack 	of 	actual 	authority,
the
	negotiator's
	conduct 	during 	the 	course 	of 	negotiations
leads
	a
	reasonable 	person 	to 	rely
	on
	apparent 	authority 	to 	bind
21

the
	party 	to
	a
	final
	agreement.
	{Niagara
	Therap~g.
	Corp.
(1978)
	237
	NLRB
	No.
	l
	[99
	LRRM
	1440];
	Naccarato
	Construction
Co.
	(1977)
	233
	NLRB
	No.
	196
	[97
	LRRM
	1060].)
	A
party
	may
reasonably
	rely
	on
	the 	apparent
	authority
	of
	a
	negotiator
absent
	clear 	disclosure 	to
	the
	contrary.
	(!-\ptos
	Seascape 	Corp.
(1971)
	194
	NLRB
	540 	[79
	LRRM
	1110];
	H. 	C. 	Thomson,
	Inc.
	(1977)
230
	NLRB
	No. 	106 	[95
	LRRM
	1472]
.)
	Silence
	can
	also
	be 	an
affirmance 	of 	unauthorized
	conduct
	if,
	fairly
	construed,
	it
	is
indicative
	of
	an
	intent
	to 	authorize
	the
	negotiator's
	conduct.
(Wometco-Lathrop
	Com~
	(1976}
	225
	NLRB
	No. 	92
	[92
	LRR.M
1593]
.)
	In
	ambiguous
	situations,
	it
	is
	incumbent
	on
	the
	party
wishing
	to
	dispel
	apparent
	agreement
	on
	issues 	to
	inform
	and
clarify
	its
	actual 	position.
	(NLRB
	v.
	Mayes
	Bros.,
	Inc. 	(5th
Cir.
	1967)
	383
	F.2d
	242 	[66
	LRRM
	2031];
	Reppel
	Steel	
& Suppl':(_
Co.,
	Inc.
	(1978)
	239
	NLRB
	No. 	53
	[99
	LRRM
	1620].) 	Notice
sufficient
	to 	dispel
	the 	reasonable 	presumption
	of 	apparent
authority	
and	
accord
	must
	be
	affirmative,	
clear	
and
	timely
	and,
if
	such 	announcement
	is
	not
	made,
	"then 	the
	principal
	must 	bear
the
	responsibility
	for
	and
	the 	consequences 	of
	any
misunderstandings
	that
	might
	arise."
	(University 	of 	Bridgeport
(
1977)
	229
	NLRB
	107
4,
	1082 	[95	
LRRM 	1389] • )
In	
this 	case, 	in
	light	
of 	the
	parties'
	successful
bargaining 	history
	and 	Douglas'
	participation 	in 	that 	process
which 	extended 	over
	a
	five-month 	period,	
SEIU
	did 	reasonably
rely
	on 	Douglas'	
assertion 	that 	Capling 	had
	granted	
his
22

approval 	to 	the
	training
	session.
	Contrary
	to
	the
	hearing
officer's
	conclusion,
	it
	was
	not
	incumbent
	on 	SEIU
	to
	postpone
the
	organizational
	security 	election
	when
	it
	was
	finally
advised
	that
	Capling
	had
	no
	intention
	of
	conducting
	the
training
	session
	as
	planned.
	(Great
	Atlantic
	and
	Pacific
	Tea
Company 	(1952)
	101
	NLRB
	1118 	[31
	LRRM
	1189)
.)
	Rather,
	since
Capling
	had
	never 	approved
	of 	the
	session,
	the
	duty
	to
	dispel
that
	erroneous 	impression
	fell
	on
	Capling.
	Good
	faith
bargaining
	demands
	such
	square
	dealing.
	What 	was
	stated
	by
	the
court 	in
	NLRB
	v.
	Industrial
	Wire
	Products
	Corp.
	(9th
	Cir.
	1972)
455
	F.2d
	673 	[79
	LRRM
	2593},
	is
	equally 	applicable 	here.
[N]egotiators
	charged 	with 	the 	ultimate
responsibility
	of
	approving 	or
	rejecting
collective
	bargaining
	agreements
	may
	not
remain
	mute
	in 	the 	presence 	of
	a
	negotiated
accord
	and
..•
later
•..
catch
	their
	tongues
	at
a 	moment
	they
	deem
	most
	likely
	to
	frustrate
the 	progress
	that
	has 	been made.
	(455	
F.2d
at
	p. 	679.)
Based
	on
	the 	foregoing, 	the
	Board
	finds
	that
	by
	the
preponderance
	of 	the 	evidence,
	SEIU
	has
	demonstrated
	that 	the
District
	bargained
	in
	bad
	faith
	and
	thereby
	engaged
	in 	conduct
tantamount
	to
	an
	unfair 	practice 	in 	violation
	of
section
	3543.S(c)
.11
lleaving
	determined
	that
	the
	manner
	in
	which
	the
	District
engaged	
in 	bargaining 	evidenced
	bad
	faith
	and	
therefore
violated 	section 	3543.S(c) 	of
	the 	Act,
	it
	is
	unnecessary
	to
specifically	
examine 	SEIU's
	allegation 	that 	the	
cancellation 	ofthe	
training 	session
	was 	an 	improper
	unilateral
	change.
Without 	making 	such 	an
	express 	finding, 	the
	Board
	nevertheless
23

views
	Capling's 	eleventh-hour
	cancellation 	of 	the
	trainingsession
	as
	a
	departure
	from
	SEIU's 	reasonable 	expectation,derived
	from
	communication 	and
	contact
	with 	Douglas,
	that
	the
session
	would
	in 	fact
	be
	offered
	on
	election
	day.
In
	addition,
	the
	Board
	finds
	that
	the
	District's
	conduct
interfered
	with 	the
	employees'
	rights
	as
	protected
	by
section
	3543.5(a)
	of
	the 	Act.12	
In 	so
	finding,
	the
	Board
does
	not
	assert 	that
	the
	school
	administrators
	were
	required
	to
affirmatively 	act
	to
	facilitate
	voter
	participation
	by
	offering
the
	training
	session
	on
	election
	day.
	(NLRB
	v.
	W.
	S.
	Hatch
Co.,
	Inc.
	(9th
	Cir.
	1973)
	474
	F.2d
	558 	[82
	LRRM
	2662];
	A.
	D.
Juilliard	
&	
Co., 	Inc.
	(1954) 	110 	NLRB 	2197 	[35
	LRRM
	1401]
t
Richmond
	Federation 	of
	Teachers 	(2/7/77)
	EERB
	Order
	No.
	Ad-4.)
In
	fact,
	an
	employer
	is
	prohibited
	from
	granting
	benefits 	to
employees
	during 	the 	period
	prior 	to
	an
	election.
Exchange
	Parts
	Co. 	(1964)
	375
	U.S.
	405 	[55
	LRRM
	2098]
.)
However, 	an
	employer
	is
	also 	prohibited
	from 	withholdinc::[
benefits
	from
	employees
	during
	the
	election 	process,
	a
	period
which
	is
	most
	susceptible 	to
	the 	employer's
	subtle 	influences.
(Gates
	Rubber
	Co., 	Inc.
	(1970) 	182
	NLRB
	No. 	15 	[74
	LRRM
12section 	3543.5(a) 	provides:
It
	shall	
be	
unlawful 	for
	a
	public 	school
employer
	to:
(a) 	Impose
	or 	threaten 	to
	impose
	reprisals
on	
employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against	
employees, 	or 	otherwise
to 	interfere 	with, 	restrain,
	or 	coerceemployees 	because 	of 	their 	exercise 	of
rights 	guaranteed
	by
	this 	chapter.
24

1049]
.)
	When,
	as
	here,
	the
	employer
	both 	promises
	and
withdraws
	benefits
	during 	the
	sensitive 	election
	process,
	the
employer 	has
	improperly
	interfered
	with
	the
	employees'
	right
	to
vote.
	(Larand
	Leisurelies,
	Inc.
	(1974)
	213
	NLRB
	No. 	37 	[87
LRRM
	1129].)
	In
	this
	case
	then,
	it
	is
	the
	District's
	eleventh
hour
	decision 	to 	cancel 	the
	training
	session,
	apparent
agreement
	notwithstanding,
	which
	serves 	to
	evidence
	the
unlawful
	interference
	with
	rights
	guaranteed
	by
	EERA.
	In
deciding
	whether
	to
	alter
	the
	scheduled
	training 	session, 	the
District
	was
	obligated 	to 	act 	"precisely
	as
	it
	would
	if
	a
	union
were
	not 	in 	the
	picture"
	and
	commits 	an
	unfair
	practice
	"if
	the
employer;s 	course
	is 	altered
	by
	virtue
	of 	the
	union's
presence."
	(McCormick 	Longmeadow
	Stone
	Co., 	Inc.
	(1966)
	158
NLRB
	1237,
	1242
	[62
	LRRM
	1185].)
In
	examining
	the
	District's
	conduct, 	the
	Board
	is
	persuaded
by
	the
	fact 	that
	Capling, 	apparently 	withholding
	his 	decision
to 	cancel 	the
	training,
	caused 	confusion
	and 	some
	discord
	among
the
	eligible
	voters
	on
	the
	eve
	of 	the 	organizational 	security
election.
	In
	addition, 	Capling's
	comment
	that
	he 	would
	not
agree
	to
	the
	training 	session
	because
	he
	did 	not
	want
	to
	pay
employees	
to 	vote 	obviates 	the 	hearing
	officer's
	conclusion
that 	his 	decision
	was
	unaffected
	by
	the 	union's 	organizational
security 	election	
and	
provides 	the 	necessary
	nexus 	between	
his
decision 	to 	cancel 	the	
training 	session	
and
	the 	employees'
protected 	right 	to 	vote. 	Thus, 	while Capling's 	explanations
25

for 	not 	agreeing
	to
	the
	training
	session
	may
	be
	unpersuasive
	in
light
	of
	the
	inferences 	raised
	by
	the 	record 	as
	a
	whole,
	the
Board
	finds,
	contrary 	to
	the 	hearing
	officer,
	that
	it
	is
unnecessary
	to 	consider
	whether
	there
	is 	sufficient
	evidence
	to
call
	into
	question 	Capling's
	reasons 	or 	motives
	for
	his
	refusal
to
	conduct 	the
	training
	session.
	This
	is
	so
	because
	in
	this
case, 	the 	question
	is
	not
	whether
	Capling
	would
	initially
	have
been
	justified
	in 	refusing 	to
	conduct
	the
	in-service
	training
session.
	Rather, 	the
	Board
	considered
	whether
	the
	manner
	in
which 	he
	in
	fact 	participated
	in
	the
	training
	session
negotiations
	interfered
	with
	the
	employees'
	rights.
	The
	Board
finds
	that
	Capling 	not 	only
	failed
	to
	provide
	any
	timely
business
	justification
	for 	the 	decision 	to 	cancel 	the
	session
but
	that
	he
	also 	failed
	to 	dispel 	his
	apparent
	agreement
	to
	the
session
	as
	was
	conveyed
	to 	the
	bus
	drivers
	just 	prior
	to 	the
election.
	It
	is 	this
	equivocal
	and
	inconsistent
	conduct
	which
harmed
	the
	employees'
	right
	to 	vote,
	was
	without 	business
necessity
	and 	was
	therefore
	conduct 	tantamount 	to
	an
	unfair
practice
	in
	violation 	of 	section
	3543.S(a). 	(Oceanside-
Carlsbad 	(1/30/79)
	PERB
	Decision
	No.
	89.)
In
	addition 	to 	the 	Board's 	finding
	that
	the
	District's
conduct
	was
	evidence	
of	
a
	refusal 	to 	bargain 	with 	union
representatives, 	the	
Board	
also 	finds 	that 	the 	employer's
	same
conduct	
was
	concurrently 	tantamount 	to
	a
	violation 	of
26

section 	3543.5(b)l3 	of 	the 	Act. 	In 	so 	finding, 	the 	Board
determines, 	contrary 	to 	the 	hearing 	officer's 	conclusion, 	that
it 	is 	unnecessary 	for 	SEIU 	to 	demonstrate 	that 	this 	conduct
directly 	translated 	into 	a 	negative 	vote 	by 	employees 	in 	the
organizational 	security 	electionl4 	or 	that 	individual 	unit
members 	specifically 	vocalized 	negative 	comments 	as 	to 	the
union's 	abilities. 	Rather, 	the 	manner 	by 	which 	Capling
frustrated 	and 	obstructed 	SEID 	representatives' 	negotiation
efforts 	concerning 	the 	training 	session 	impaired 	its 	protected
right 	to 	function 	as 	exclusive 	representative 	of 	the 	bargaining
unit 	employees.
In 	light 	of 	the 	following 	discussion 	and 	conclusion 	that
the 	relief 	requested 	by 	the 	union 	be 	granted, 	it 	is 	unnecessarv
to 	specifically 	address 	all 	objections 	raised 	by 	SEIU 	including
the 	questions 	concerning 	the 	serious 	irregularities 	of 	election
13section 	3543.S(b) 	provides:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
141n 	cases 	involving 	election 	challenges, 	the 	Board 	is
unwilling 	to 	require 	that 	the 	secrecy 	of 	an 	individual's
election 	conduct 	be 	invaded 	in 	order 	to 	present 	affirmative
proof 	that 	the 	protested 	activity 	had 	a 	direct 	impact 	on 	the
election 	results. 	In 	the 	appropriate 	case, 	the 	Board 	may 	infer
from 	the 	record 	as 	a 	whole 	that 	the 	conduct 	tantamount 	to 	an
unfair 	practice 	improperly 	influenced 	the 	employees' 	vote.
(Oceanside-Carlsbad, 	supra.)
27

conduct
	based
	on
	the
	training
	session
	cancellation
	or 	the
	sign
appearing
	at
	the
	polling 	place.
Based
	on
	the
	foregoing, 	the
	Board
	has
	determined
	that
	the
District's
	conduct
	concerning
	the
	election
	day
	training 	session
was
	tantamount
	to
	an
	unfair
	practice
	in
	violation
	of
section
	3543.S(a),
	(b) 	and 	(c)
	of
	EERA.
	It
	is
	additionally
necessary,
	however,
	for 	the
	Board
	to
	determine
	whether
	this
conduct
	is 	sufficient
	cause
	to
	set
	aside 	the
	results
	of 	the
organizational 	security 	election
	since
	PERB
	rule
	33590,
	set
	out
supra,
	merely
	provides
	this
	Board
	with 	the
	authority
	to
entertain
	objections
	to
	elections
	where
	conduct 	tantamount
	to
an
	unfair 	practice
	is
	established.
	Demonstration
	of
	such
unlawful 	conduct
	is
	therefore
	viewed
	as
	a
	threshold 	question
when
	the
	remedy
	requested
	is
	to 	overturn
	election 	results
	and
this
	Board
	will
	not,
	necessarily, 	in
	every
	situation
	where
conduct 	tantamount
	to
	an
	unfair 	practice
	is
	evidenced,
	order
that
	the
	election
	be
	rerun.
	This
	standard
	is
	in
	accord
	with
recent 	decisions 	of 	the
	NLRB
	which
	conclude
	that
	conduct
violative
	of 	section
	8 (a) (1)
	of 	the
	NLRA
	is
	not
	a
	fortiori
conduct
	which
	interferes
	with
	an
	employee's
	free
	choice 	in
e
	tion
	proceed
i
	s.
	(Mc
Industries,
	Inc.
	( 1976) 	224
	NLRB
No. 	180
	]93
	LRRM
	1046];
	Coca
	Cola
	Bottling
	Co.
	Consolidated
28

(1977)
	232
	NLRB
	No.
	114
	[96
	LRRM
	1289].)15	
The
	decision 	to
direct
	such
	relief
	depends
	on
	the
	totality
	of
	circumstances
raised
	in
	each
	case
	and,
	when
	appropriate,
	the
	cumulative
effect
	of
	the
	conduct
	which 	forms
	the
	basis
	for 	the
	relief
requested.
	(NLRB
	v.
	Decoto
	Aircraft,
	Inc.
	(9th
	Cir.
	1975) 	512
F.2d
	758 	[88
	LRRM
	3231],
	cert.
	denied
	(1975)
	423
	U.S.
	836
[90
	LRRM
	2554]
.) 	In
	general,
	this
	will
	require
	that
	the
objecting 	party
	satisfy
	its
	burden
	of
	establishing
	a
	prima
facie
	case
	that 	specific
	activities
	interfered
	with 	the
election
	process.
	(NLRB
	v.
	Singleton
	Packing 	Corp.
	(5th
	Cir.
1969)
	418
	F.2d
	275 	[72
	LRRM
	2519];
	National
	Cash
	Register 	v.
NLRB
	(5th
	Cir.
	1969)
	415
	F.2d
	1012 	[72
	LRRM
	2051.J;
	Magnolia
Screw
	Produces,
	Inc.
	v.
	NLRB
	(6th
	Cir.
	1976)
	542
	F.2d
	130
	[94
LRRM
	3255]
.)
	The
	Board 	views
	this
	requirement 	as
	necessarily
consistent
	with
	PERB
	rule
	32178
	which 	imposes
	on
	the 	charging
party 	the
	burden
	of
	proving 	the 	alleged 	unfair 	actice	
by	
a
preponderance 	of 	the 	evidence. 	(Cal.
	Admin.
	Code,
	title
	8,
section
	32178.)
In 	the
	instant
	case, 	the
	Board
	is
	persuaded
	that
	the
employee
	organization
	has
	satisfied
	its
	burden
	of
	proving
	that
15The
	decision 	in
	Dal-Tex
	OEtical 	Co., 	Inc.
	(1962) 	137
NLRB
	1782 	[50
	LRRM
	1489] 	which
	established 	the
	a
	fortiori 	rule
has 	not
	been
	icitly
	overruled
	by
	Board's 	decisions 	inMcindustries 	or
	Coca 	Cola
	Bottling, 	supra.
	These
	cases
suggest,
	however,
	that
	where
	the
	Board 	has
	that 	the
alleged 	violation
	was 	an
	extraordinary 	limited 	nature,
	an
exception 	to 	the
	a
	fortiori 	rule 	is
	warranted.
29

the
	District's
	conduct,
	intimately
	related
	to
	the
	election
itself,
	had
	a
	probable
	impact
	on
	the
	employees'
	vote.
	(NLRB
	v.
Golden
	Age
	Beverage
	Co.
	(5th
	Cir.
	1969)
	415
	F.2d
	26
	[71
	LRRM
2924]
.)
	The
	fact 	that
	the
	District
	delayed
	in
	dispelling
	its
apparent
	acquiesence
	to 	the
	election
	day
	traning 	session
	and
thereby
	caused
	confusion
	among
	employees
	and
	administrators
alike
	supports 	the
	relief
	granted 	in
	this
	case.
	{NLRB
	v.
Monroe
	Auto 	Equipment
	(5th
	Cir.
	1972)
	470
	F.2d
	1329 	[81
	LRRM
2929],
	cert.
	denied
	(1973)
	412
	U.S.
	928 	[83
	LRRM
	2320] t	
A.
	D.
Juilliard,
	supra.)
	The
	Board
	cannot
	accept 	the 	hearing
officer's
	determination
	that
	SEIU
	was
	advised
	that
	no
	training
session
	would 	be
	conducted 	"well 	before 	the
	election."
	To
	the
contrary,
	SEIU
	representatives
	were
	definitively
	advised
	of
	th~
cancellation
	only
	a 	few
	days
	prior
	to
	the
	election.
	The
	close
proximity 	of
	this
	conduct
	to 	the
	election
	itself
	makes
	it
unlikely 	that
	the
	District
	had
	successfully
	purged
	the
	taint
which
	resulted
	from
	withdrawing
	their 	earlier
	apparent
agreement.
	(Coca
	Cola
	Bottling Co.,
	.§_Upra:
	Columbia
	Pictures
Corp. 	(1949) 	81
	NLRB
	1313 	[ 23
	LRRM
	1504].)
Thus, 	where
	the
	training 	session
	agreement
	was
	inexorably
linked 	to 	the
	election
	itself,	
where	
the 	apparent 	acquiesence
and
	delay 	in 	cancellation
	caused 	confusion
	and
	discord
	which
remained 	throughout	
the 	election 	proceedings,
	and 	where	
the
results 	of 	the	
election
	were 	such
	that	
the 	margin 	by 	which
	the
organizational 	security 	clause
	was	
defeated	
was 	so 	narrow, 	the
30

Board
	finds
	is 	sufficiently 	likely 	that
	the 	objectionable
conduct 	did
	influence
	the 	vote
	so
	that
	it
	cannot
	be
	said
	with
assurance
	that
	the
	employees
	would
	have
	voted
	as 	they 	did
absent 	the 	influence
	caused
	by
	the 	employer's
	unlawful
conduct.
	(Solon
	Mfg. 	Co.
	v.
	NLRB
	(1st
	Cir.
	1976)
	544
	F.2d
	1108
[93
	LRRM
	2786).)
	Therefore,
	based
	on
	the
	totality
	of
circumstances 	surrounding
	the
	organizational 	security
	election,
the
	Board
	finds 	probable 	cause
	to 	believe
	that
	the
	District's
conduct
	was
	disruptive
	of 	the
	election
	process
	and
	was
	likely
to
	have
	influenced 	the 	employees'
	attitude
	toward
	the
organizational 	security
	clause
	proposed
	by 	SEIU.
ORDER
The
	Board,
	therefore,
	orders
	that
	the
	results
	of 	the
organizational 	security 	election
	conducted
	on 	December
	19,
1977, 	be
	set
	aside
	and 	a
	second
	election
	be
	conducted
	by
	the
Regional
	Director.
By:
	Barbara
	D. 	Moore Harry /Gluck, Chairperson
Raymond
	J.
	Gonzales,
	Member,
	dissenting~
I 	do
	not 	believe 	that
	the 	organizational 	security 	election
should
	be
	overturned 	in
	this 	case. 	Unlike
	my
	colleagues,
	I
	am
31

unable
	to
	make 	a
	leap
	of
	faith
	between
	the
	District's
	conduct
and
	the
	election
	results.
	Such
	a
	leap
	is
	necessary
	in
	this
case
	in
	order
	to 	overturn 	the
	election
	since 	there
	is
	no	
evi-
dence	
supporting
	a
	contention
	that
	the
	specific
	activities
	of
the
	District
	influenced 	the 	votes
	so
	that
	the
	election
	results
did
	not
	reflect
	the
	employees'
	desires.
	Generally,
	I
	feel 	that
in
	the
	absence
	of
	an
	affirmative
	showing	
by	
the
	party 	objecting
to
	the 	conduct
	of
	the
	election 	that
	the
	alleged
	unlawful 	con-
duct
	interfered
	with 	employees'
	free 	choice,
	elections
	should
not
	be
	overturned.
The
	District's
	conduct 	involved
	a
	misunderstanding
	between
two management
	employees.
	As
	a
	result
	of
	this	
misunderstand-
ing,
	a
	certain
	amount
	of 	confusion
	developed
	in
	the
	days	
pre-
ceding	
an
	organizational 	security 	election
	as
	to
	whether 	an
in-service 	training 	session 	for
	bus
	drivers
	would 	be
	held
	on
the
	day
	of 	the
	election,
	which 	would 	have
	otherwise
	been
	the
first
	day
	of 	the
	bus
	drivers'
	vacation.
The
	facts
	are
	set 	forth 	exhaustively 	in
	the
	majority
decision.
	It
	should
	be
	noted,
	however,
	that
	the 	record
	is
ambiguous
	as 	to 	the 	exact
	sequence
	of 	events
	prior 	to 	the
election.
	Several 	events
	were	
telescoped 	into
	a
	relatively
short 	period,	
and	
it
	is	
understandable 	that	
after 	several
months, 	the 	witnesses'
	memories 	would 	be 	vague 	and	
possibly
conflicting.	
The	
confusion 	over 	the 	training 	session
	was
resolved
	on 	December 	13
	or	
14 	when 	union
	representatives
	were
32

informed
	that
	there
	would
	be
	no
	in-service 	training
	on
	election
day
	and
	notices
	were
	posted
	to
	that
	effect.
The
	most
	likely 	result
	of 	the
	District's
	decision 	not
	to
have	
a	
training
	session	
on	
December
	19
	did
	not
	occur;
	instead
of
	discouraging
	bus
	driver 	turnout,
	81
	percent
	of 	the
	bus
drivers
	voted
	in
	the
	organizational 	security 	election,
	despite
the
	fact 	that
	they
	were
	on
	vacation,
	compared
	with
	75
	percent
of 	other
	unit
	employees.
	All
	six
	of 	the
	bus
	drivers
	who
	did
not 	vote
	testified
	at
	the 	hearing
	on
	this
	matter.
	From
	their
testimony,
	it
	is
	clear 	that 	several
	would
	not
	have
	voted
	even
if
	a
	training 	session
	had
	been
	scheduled,
	indicating
	that
	there
is
	no
	causal 	connection
	between
	the
	District's
	conduct
	and
	the
voter 	turnout.
Thus, 	the 	majority
	must
	reach
	to
	find
	some
	other
	grounds
	on
which
	they
	can
	overturn 	the
	election.
	They 	do
	so
	by
	finding
that
	the
	District's
	conduct
	had 	a
	"probable	
impact" 	on
	the
employees'
	vote,
	that
	it
	was
	"sufficiently 	likely" 	to
	have
influenced 	the 	vote 	so
	that
	it
	cannot	
be	
said
	with 	assurance
that
	the
	employees
	would 	have
	voted 	as 	they 	did 	absent 	the
influence 	of 	the 	employer's 	conduct. 	This 	finding
	is	
based	
on
the	
creation 	of
	hypotheses	
drawn 	from	
the 	conduct	
itself
	rather
than
	on 	any
	independent
	evidence.	
Terms 	such	
as
	"sufficiently
likely"
	and
	"probable 	impact" 	only 	underline 	the 	weakness	
of
the	
majority's 	reasoning.
33

I
	cannot
	go
	along
	with
	such
	speculation.
	I
	believe
	that
election 	results
	should 	not
	be
	overturned 	unless 	there
	is
strong
	reason
	to 	believe
	that
	unlawful 	conduct	
had	
such	
an
impact
	on
	the
	employees
	that
	the
	election
	results	
do	
not
accurately
	reflect 	their
	wishes.
	I
	see
	no
	reason
	to
	impose
	the
delay
	and
	expense
	of
	a 	new
	election
	on
	the
	parties
	in 	the
absence
	of
	evidence
	more
	solid
	than
	mere
	conjecture.
Federal
	courts,
	in 	developing
	standards
	governing
	over-
turning
	elections,
	have
	placed
	"a
	heavy
	burden"
	on
	parties
objecting 	to
	the 	conduct
	of
	an
	election.
	In
	NLRB
	v. 	Golden
State
	Beverage 	Co.
	(5th
	Cir.
	1969)
	415
	F.2d
	26
	[71
	LRRM
	2924],
the 	court
	stated:
Further,
	in
	reviewing 	the 	Board's
	disposi-
tion
	the
	Company's
	objections 	to
	the
election,
	it
	'must
	be
	kept
	in
	mind
	that
	the
burden
	is
	on
	the
	party 	objecting 	to 	the
conduct
	of 	the
	representation 	election 	to
prove
	that
	there
	has 	been
	prejudice 	to 	the
fairness
	of 	the
	election.
1
	Southwestern
Portland
	Cement 	Co.
	v. 	N.L.R.B.,
	407
	F.2d
131
,
	13
4 , 	7 0 	L
RRM.
	2 5 3 6 	( 5
th
	C i r • 	19 6 9 )
[cert.
	den.
	396
	U.S.
	820]
	[other
	citations
omitted].
	This
	is
	a	
heavy
	burden;	
it
	is
	not
met	
by	
proof 	of
	mere
	misrepresentations 	or
physical
	threats.
	Rather,
	specific
	evidence
is
	required,
	showing
	not 	only
	that
	theunlawful
	acts 	occurred, 	but
	also, 	that
	they
interfered
	with 	the 	employees'
	exercise 	of
free 	choice 	to
	such 	an
	extent 	that
	they
materially 	affected
	the
	results
	of 	the
election.
	[Emphasis 	added;
	citationsomitted.]
34

In
	a
	later
	case,
	NLRB
	v.
	Monroe
	Auto 	Equipment
	(5th
	Cir.
1972)
	470
	F.2d
	1329 	[81
	LRRM
	2929],
	cert.
	denied
	(1973)
	412
U.S.
	928 	[83
	LRRM
	2320],
	the
	court
	emphasized:
Elections,
	whether
	won	
by	
a 	company
	or 	the
union, 	are
	not
	to
	be
	lightly
	put
	aside.
Courts
	ought 	not
	to
	so
	act
	without
	some
assurance 	appearing
	in 	the 	record
	that
	the
election 	results
	were
	not
	reflective
	of 	theemployees'
	desires.
	The
	objecting
	party
must
	shoulder
	this
	burden.
	[Citationomitted.]
I
	further
	note
	an
	NLRB
	case,
	A. 	D.
	Julliard	
&	
Co.,
	Inc.
(1954)
	110
	NLRB 	2197 	[35
	LRRM	
1401],	
in
	which 	employees 	were
told
	on
	the
	day
	of
	an
	organizational
	security 	election
	that
they
	must
	vote
	on
	their
	own
	time, 	in 	alleged 	violation
	of 	the
election
	agreement.
	The 	NLRB	
found:
There
	is
	no
	evidence
	that
	this
	alleged
alteration
	in 	the
	election
	procedure 	did 	in
fact
	cause 	confusion
	among
	the
	voters
.•.•
[I]n
	the
	present 	proceeding,
	assuming
arguendo
	the
	Employer
	did
	violate
	the
election
	agreement
	as 	to
	whose
	time
	was
	to
be
	utilized	
by 	the
	employees
	for 	purposes
	of
voting, 	there
	is
	no
	proof 	of
	actual 	preju-dice;
	nor
	was
	it
	affirmatively
	shown
	that
any
	disfranchisement	
of 	eligible
	voters
	may
have
	resulted
	from
	the 	asserted
	withdrawal
of 	the
	Company's
	offer 	to 	permit 	voting
	at
the	
Employer
I s	
expense.
	[Emphasis 	added.]
While	
I
	am
	not 	alway~ 	swayed 	by
	NLRB	
precedent,	
I
	agree
with 	the 	premise 	of
	all
	of	
these	
cases: 	there
	must 	be 	some
affirmative	
evidence 	in 	the 	record 	that 	the
	election 	results
were	
influenced
	by
	the
	allegedly
	unlawful 	conduct.
35

In
	this
	case,
	the
	majority
	relies
	on
	its
	belief 	that
	the
District's
	conduct
	might
	have
	influenced
	the 	vote.
	It
	seems
	to
me
	that
	if
	we
	are
	going
	to 	speculate,
	we
	should
	also 	speculate
about
	the
	impact
	of 	other
	factors.
	For
	example,
	I
	could
	argue
that
	the
	dues
	increase
	from
	seven
	to
	ten
	dollars
	a
	month,
	im-
posed
	by 	SEID
	only
	shortly
	before
	the
	election,
	explains
	the
election
	result
	much 	more
	persuasively
	than
	the 	theory
	that
	the
District's
	conduct
	so
	undermined
	SEID
	that
	its
	members
	voted
against
	it.
	The
	presence
	of 	other 	factors
	which
	could
	explain
the
	election
	results
	makes
	it
	all
	the
	more
	imperative
	that
there
	be
	some
	affirmative
	showing
	that
	the
	factor 	in
	question,
the
	District's
	conduct, 	influenced
	the 	employees'
	votes.
The
	decision 	to 	overturn
	an
	election
	should 	not
	be 	made
lightly.
	By
	overturning 	the
	organizational 	security 	election
in
	this
	case
	on
	the
	basis 	of
	pure
	speculation,
	the
	majority
has, 	in
	my
	opinion, 	stretched
	too
	far 	in
	its
	efforts
	to
	reach
its
	desired
	result
	and 	may
	very 	well
	be
	invalidating 	the	
em-
ployees' 	legitimate
	preference 	against
	an
	organizational
security provision.
na_yrnul!U	
u.
A.:ronz~j_eS, 	Member
36

s·rATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 	390,
Employee 	Organization,
and
SAN 	RAMON 	VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Employer.
)
)
)
)
)
)
)
)
)
)
)
)
)
______________________ )
REPRESENTA'rION
Case 	No. 	SF-OS-19
PROPOSED 	DECISION
(9/20/78)
Appearances: 	Robert 	Bezemek 	and 	Stewart 	Weinberg, 	Attorneys
(Van 	Bourg, 	Allen, 	Weinberg 	& Roger) 	for 	Service 	Employees
International 	Union, 	Local 	390; 	Jon 	Hudak, 	Attorney 	(Breon,
Galgani 	& 	Godino) 	for 	San 	Ramon 	Valley 	Unified 	School 	District.
Before 	Michael 	J. 	Tonsing, 	Hearing 	Officer,
STATEMENT OF THE 	CASE
On 	December 	19, 	1977, 	an 	organizational 	security 	election
was 	held 	among 	classified 	employees 	in 	the 	San 	Ramon 	Valley
Unified 	School 	District 	(hereafter 	District). 	The 	measure 	was
defeated, 	55 	to 	52. 	The 	certified 	employee 	organization,
Service 	Employees 	International 	Union, 	Local 	390 	(hereafter
SEIU), 	subsequently 	filed 	timely 	objections 	to 	the 	election
alleging 	that:
1) 	The 	unilateral 	revocation 	by 	the 	District 	of 	a 	mutually
agreed 	upon 	in-service 	training 	session 	for 	bus 	drivers 	in 	the
unit, 	scheduled 	to 	be 	held 	on 	the 	day 	of 	the 	election, 	resulted
in 	a 	number 	of 	eligible 	voters 	not 	voting, 	that 	the 	number 	of
1

such
	affected 	voters
	was
	substantial
	enough
	to
	affect
	the
outcome
	of
	the
	election,
	and
	that
	such
	conduct
	by
	the
	District
violates
	Government
	Code
	section
	3543.S(a)
	through
	(c),
1
The
	day
	of
	the
	election
	was
	not
	a
	scheduled
	work
	day
	for
	bus
drivers.
2)
	Certain
	conduct 	encouraging
	a
	negative
	vote
	occurred
	in
close
	proximity 	to 	the
	polling
	place
	during 	voting
	hours
	and
that
	such
	activity
	constituted
	a
	serious
	irregularity
	in
	the
election
	proceedings.
The
	District
	maintained
	that
	the
	election
	agreement
	was
not
	conditioned
	upon
	the
	District's
	training
	offer,
	that
	all
eligible
	voters
	had 	an
	adequate
	opportunity 	to 	vote,
	that
	the
cancellation
	of 	the
	training 	session
	did 	not
	result
	in
employees 	not
	voting,
	and
	that
	the
	alleged 	polling
	place
misconduct
	was
	not
	sufficient
	to 	warrant
	setting
	aside 	the
election.
lAll 	statutory
	references 	are 	to 	the
	Government
	Code
	unless
otherwise
	specified.
Section
	3543.5
	provides 	in 	pertinent 	part:
It
	shall
	be
	unlawful 	for
	a
	public 	school
	employer
	to:
a.
	Impose
	or
	threaten 	to
	impose
	reprisals
	on
	employees,
	to
discriminate
	or
	threaten 	to 	discriminate 	against
	employees,
or 	otherwise 	to
	interfere	
with,	
restrain,
	or 	coerceemployees 	because 	of 	the 	exercise 	of 	rights
	guaranteed 	by
	thischapter.
b.
	Deny
	to 	employee
	organizations 	rights 	guaranteed 	to
them 	by
	this 	chapter.
c.
	Refuse 	or
	fail
	to 	meet 	and
	negotiate 	in
	good
	faith 	withan
	exclusive 	representative.
2

A
	formal
	hearing
	was
	held
	on
	January
	26,
	1978
	and
	February
	22,
1978.
	Briefs
	were
	subsequently
	filed
	on
	behalf 	of
	the
parties.
ISSUES
1.
	Did
	the
	District's
	unilateral
	decision
	to
	cancel
	an
in-service 	training
	program
	for
	its	
bus	
drivers
	planned
	for 	the
same
	day
	as
	the
	unit's
	organizational 	security 	election
constitute 	either
	conduct 	tantamount
	to
	an
	unfair
	practice
under
	section
	3543.S(a),
	(b), 	or
	(c)
	or
	a
	serious
	irregularity
in 	the 	conduct
	of
	the
	election,
	thereby 	providing
	grounds
	for
invalidating
	the
	election?
2.
	Did
	activities
	at
	the
	polling
	site
	on
	the
	day
	of 	the
election 	constitute
	a
	serious
	irregularity
	in 	the
	conduct
	of
the
	election
	and
	thereby 	provide
	grounds 	for
	invalidating
	it?
FINDINGS 	OF 	FACT
1.
	Cancellation 	of 	Training
A.
	Background
SEIU
	was
	certified
	as 	the
	exclusive 	representative 	of
the
	140
	classified
	employees
	in 	the
	San
	Ramon
	Valley 	Unified
School
	District
	on 	March
	18, 	1977.
	Initial
	contract
negotiations
	concluded
	on 	November
	30, 	1977.
	An
	agreement
	was
signed
	on 	December
	14, 	1977. 	However,
	during 	negotiations 	the
District
	had
	insisted 	that
	the 	organizational 	security 	clause
in 	the 	proposed
	contract
	be 	severed
	from
	the 	remainder 	of 	the
3

agreement
	and 	be
	submitted 	to
	a
	vote
	of
	the
	unit
	membership.
The
	District
	was
	entitled
	to
	do
	this
	under
	section
	3546.
2
There
	was
	a
	desire
	to
	have
	the
	organizational
	security
	vote
conducted
	at
	an
	early 	date.
	But
	there 	is
	conflicting
	testimony
regarding
	which
	party
	sought
	the
	early 	election 	date.
	The
	most
plausible 	reconciliation
	of
	the
	conflicting
	accounts,
	which
	is
accepted
	here,
	was
	provided	
by	
Ms.
	Haymes,
	SEIU
	field
representative
	and 	one
	of
	the
	contract 	negotiators,
	who
testified
	that
	negotiations
	had
	continued 	for 	five
	months,
	that
both
	sides
	were
	tired,
	and
	that
	both
	sides
	felt
	it
	would 	be
desirable
	to
	have
	the 	matter 	resolved	
by	
the
	end
	of 	the
	year.
She
	indicated
	that
	although
	this
	was
	probably 	the
	feeling
	on
both
	sides,
	she
	may
	have 	been
	the
	first
	to 	express
	it,
	since
she
	considers
	herself
	to
	be
	"a 	very
	verbal 	person".
In
	any
	case,
	Ms. 	Haymes
	contacted
	PERB
	to 	obtain 	possible
election 	dates.
	Advised
	that
	December
	19,
	1977 	was
	available,
2section
	3546(a)
	provides:
An
	organizational 	security
	arrangement, 	in 	order 	to
	be
effective,
	must 	be
	agreed
	upon 	by
	both
	parties
	to 	theagreement.
	At
	the 	time 	the 	issue 	is
	being
	negotiated, 	the
public 	school
	employer
	may
	require 	that
	the
	organizational
security 	provision
	be
	severed
	from
	the 	remainder
	of 	the
proposed 	agreement
	and
	cause 	the 	organizational 	securityprovision 	to
	be
	voted
	upon
	separately
	by
	all
	members
	in 	the
appropriate 	negotiating 	unit,
	in 	accordance 	with
	rules
	and
regulations
	promulgated
	by
	the 	board.
	Upon
	such
	a
	vote,the 	organizational 	security 	provision 	will
	become
	effectiveonly
	if
	a
	majority 	of 	those
	members
	of 	the 	negotiating 	unitvoting 	approve 	the 	agreement.
	Such
	vote
	shall
	not 	be
deemed
	to 	either 	ratify
	or 	defeat 	the 	remaining 	provisions
of 	the 	proposed 	agreement.
4

she
	then
	contacted
	Mr.
	Douglas,
	classified
	personnel
	director
and
	District
	negotiator,
	to
	obtain 	his
	agreement
	to
	that 	date.
During
	the
	ensuing
	conversation
	it
	was
	discovered
	that
December
	19 	was
	the
	first
	day
	of
	Christmas
	vacation
	for
	bus
drivers
	only,
	and
	that
	the
	32 	bus
	drivers 	in
	the
	unit
	would
	not
be
	in
	a
	paid
	status
	on
	that
	day.
	Both
	Ms. 	Haymes
	and
Mr.
	Douglas
	agreed
	that
	it
	would 	be
	unfortunate
	if
	such
	a
significant
	portion 	of
	the
	unit
	was
	not
	readily 	available
	to
vote.
	Mr.
	Douglas
	suggested 	the
	possibility
	of
	holding
	a
	paid,
two
	hour
	in-service 	training
	program
	for
	bus
	drivers
	on
December 	19
	preceding 	the 	voting
	hours
	to
	facilitate
	voter
turnout.
	Mr.
	Douglas
	offered
	this
	proposal
	tentatively 	until
he
	could 	determine
	if
	it
	would 	be
	possible
	to
	hold
	the
	training.
B.
	Alleged
	Agreement
At
	this
	point
	a
	series
	of 	apparent 	misunderstandings
occurred
	which
	eventually
	gave
	rise
	to 	the
	present 	charge.
Following
	up 	on
	his 	suggestion,
	Mr.
	Douglas
	talked
	with
Mr.
	Capling,
	director
	of
	transportation
	for 	the
	District, 	to
determine
	if
	it
	was
	possible 	to 	provide
	such
	training
	for 	the
drivers.
	Since
	Mr.
	Douglas
	did 	not
	have
	supervisory 	authority
over
	Mr.
	Capling,
	it
	was
	necessary 	to 	secure 	his 	cooperation.
The
	exchange 	ended
	with	
Mr.	
Douglas
	believing
	he 	had
Mr.
	Caplings
1 s
	assent 	to 	the
	training 	idea, 	while	
Mr.	
Capling
believed 	that 	the 	proposal
	had 	been
	rejected.
Mr.
	Douglas 	then 	told
	Ms. 	Haymes
	that 	the 	training 	proposal
was
	acceptable.
	Ms. 	Haymes
	testified 	that 	only 	then 	did 	she
5

agree
	to 	the
	December
	19
	election
	date,
	stating 	that
	she
	had
earlier
	told
	Mr.
	Douglas
	that
	if
	training
	could 	not
	be
	arranged
for
	that
	day
	they
	would
	have
	to 	discuss
	the 	date 	of 	the
election 	further.
	Mr.
	Douglas,
	on
	the
	other
	hand,
	testified
that
	there
	was 	no
	agreement
	that
	the
	election
	would
	not
	be
	held
during 	vacation 	unless
	training
	was
	given.
	He
	stated 	that
	the
only
	promise
	he
	made 	was
	to
	contact
	Mr.
	Capling
	to 	determine
the
	possibility
	of
	training.
There
	was
	no
	external
	evidence 	introduced
	which
	could
substantiate
	the
	existence,
	as 	argued
	by 	SEIU,
	of
	a
	quid 	pro
quo
	agreement
	in
	which
	SEIU
	assented
	to 	the
	December
	19
	date
only
	upon
	the 	condition
	that
	the
	District
	agree 	to 	provide
	paid
training
	for	
the 	bus
	drivers.
	The
	consent
	election
	agreement
and
	the
	collective
	bargaining
	contract,
	both 	signed
	after
	the
training
	decision	
had	
allegedly
	been
	made,
	contained
	no
reference 	to
	such
	an
	agreement.
	Although
	there
	is
	ample
evidence
	that 	training
	was
	at
	one
	time 	plannea
3 , 	such
evidence 	cannot,
	by
	itself,
	support 	the 	further 	inference
	that
the
	training
	was
	the 	quid 	pro
	quo
	for 	SEIU's
	acceptance 	of 	the
early
	December 	19
	date.
	As
	indicated
	earlier,
	SEIU
	desired
	an
immediate
	election
	and 	had 	been
	apparently 	advised
	by 	a 	PERB
agent
	that
	December 	19 	was
	the 	only 	date 	available 	in 	the 	near
future.
	Mr.
	Douglas
	perceived 	his 	offer 	to 	provide
	training
	as
3Mr.
	Douglas 	himself 	announced 	the 	training 	session 	to 	thebus
	drivers 	at
	a 	December 	13
	route 	bidding 	meeting 	as 	well 	asto 	the 	negotiators 	at 	the 	signing 	of 	the 	collective 	bargainingagreement 	on 	December 	14.
6

a
	gratuitous 	gesture.
	Ms. 	Haymes
	may
	have
	perceived
	it
	as
	the
reciprocal
	of
	SEIU's
	acceptance
	of
	the
	December
	19
	date.
	In
the
	absence
	of
	firmer 	evidence
	of
	a
	"meeting
	of
	the
	minds"
	of
the
	parties
	that
	SEIU's
	acceptance
	of
	the
	election
	date
	was
expressly
	conditioned
	on
	the 	scheduling 	of
	a
	paid
	training
session
	on
	the
	election
	day,
	it
	is
	concluded
	that
	there
	was
	not
a
	quid 	pro
	quo
	exchange
	as
	asserted
	by 	SEIU.
SEIU
	learned 	of
	the
	cancellation
	of 	the
	training
	on
	or
before
	December
	14.
	Ms.
	Ogden,
	acting 	chairperson 	of
	Local
	390
and
	an
	SEIU
	negotiator,
	testified
	that
	after
	a
	meeting 	she
	had
with
	Mr.
	Douglas
	and
	Mr.
	Capling 	approximately
	two
	weeks
	before
the
	election
	in	
which 	Mr.
	Douglas
	had
	indicated 	there
	would
	be
training
	held
	on 	December
	19, 	she 	wrote
	an 	announcement
	of 	the
training
	on
	the 	blackboard
	used	
by	
the
	bus
	drivers.
4
However,
	two
	days
	later
	Ms.
	Capuder,
	one
	of
	the
	drivers,
informed 	her
	that
	Mr.
	Capling
	had
	erased 	the
	notice.
Subsequently,
	on 	Monday, 	December
	12,
	one
	week
	before 	the
election,
	Ms. 	Haymes
	discovered
	that
	the
	notice 	of 	the
	training
was
	not
	posted.
	She
	could 	not 	reach
	Mr.
	Capling 	to
	remind 	him
to 	post 	the
	notice
	so 	she 	asked
	Ms.
	Ogden
	to
	do
	it.
	She
	did
not 	attempt 	to
	call	
Mr.	
Douglas
	regarding 	the 	lack 	of 	posting.
4Although 	one 	would 	have
	expected
	Mr.
	Capling 	to
	register
some
	dissent
	concerning 	the 	training 	since
	he
	apparently
believed 	at 	this
	time
	that
	he 	had
	rejected 	the 	idea,
	it
	is 	notnecessary 	to 	pursue
	this
	seeming
	inconsistency 	since 	the
question 	is 	only 	whether 	the 	training
	was 	a
	quid 	pro
	quo
	forSEIU's 	agreement 	to 	the 	election 	date.
7

There
	were
	the
	above
	early
	unrecognized
	clues
	to
	indicate
that
	the
	paid
	training
	was
	in 	jeopardy.
	Yet,
	clues
notwithstanding,
	the
	drivers
	were
	informed
	by 	Mr.
	Douglas
	at
	a
meeting
	on
	Tuesday,
	December
	13,
	that
	the
	training
	would
	still
be
	held.
	Mr.
	Douglas
	and
	Mr.
	Capling
	were
	evidently
	still
operating
	under
	their
	opposite
	impressions
	at 	that
	time.
Mr.
	Capling
	was
	present
	at
	the
	same
	meeting
	and
	said
	nothing
there
	to
	contradict
	Mr.
	Douglas.
	However,
	the
	two
	men
	talked
after
	the
	meeting.
	For
	the
	first
	time
	Mr.
	Douglas
	realized
that
	Mr.
	Capling
	did
	not
	wish
	to
	have
	the
	training.
On
	the
	next 	day,
	December
	14,
	Mr.
	Capling
	posted
	a
	notice
indicating
	the
	training
	was
	cancelled.
5
The
	cancellation
elicited
	negative
	comments 	by
	the
	drivers
	at
	the
	SEIU
	meeting
that
	same
	evening.
According
	to
	Ms.
	Ogden's
	testimony,
	Mr.
	Douglas
	advised 	her
by
	phone
	of 	the
	cancellation 	either
	on
	the 	afternoon 	of
December
	13
	or
	on
	December
	14.
Ms. 	Haymes
	testified
	that
	she
	learned 	of 	the
	cancellation
on
	either
	Tuesday,
	the 	13th,
	or
	Wednesday,
	the 	14th,
	from
Ms.
	Ogden 	and
	then 	confirmed
	it
	with
	Mr.
	Douglas.
	Ms.
	Haymes
5Mr.	
Capling
	testified 	that
	he
	posted
	a
	notice 	of 	the
cancellation 	the
	day
	before 	the 	bidding 	meeting 	held	
on
December
	13.
	Ms. 	Ogden
	testified
	the 	notice
	was
	posted 	the 	day
after
	the 	bidding.
	Given
	the 	sequence 	of 	events,
	and
	the
	factthat
	Mr.
	Capling's 	overall 	testimony
	was
	inconsistent 	in 	terms
of 	dates,
	it
	is
	concluded
	that
	Ms.
	Ogden's 	time
	estimate 	iscorrect.
8

testified 	that 	Mr. 	Douglas 	told 	her 	during 	this 	conversation
that 	the 	reason 	for 	the 	cancellation 	was 	that 	Mr. 	Capling 	did
not 	feel 	it 	was 	fair 	to 	pay 	anyone 	to 	vote. 	Mr. 	Capling
testified 	later 	that 	if 	he 	had 	made 	that 	statement 	he 	meant
only 	that 	the 	proposed 	training 	was 	not 	necessary. 	He 	stated
that 	his 	main 	reasons 	for 	not 	agreeing 	to 	the 	proposal 	centered
on 	the 	facts 	that 	he 	had 	no 	budget 	for 	it, 	that 	training 	had
not 	been 	given 	on 	a 	holiday 	before, 	and 	that 	it 	simply 	was 	not
necessary. 	Ms. 	Ogden 	stated 	that 	the 	driver 	trainers 	had 	told
her 	they 	had 	enough 	information 	to 	disseminate 	at 	a 	training
meeting. 	But, 	beyond 	this 	hearsay 	nothing 	further 	was
introduced 	to 	rebut 	Mr. 	Capling 1 s 	justification 	for 	his
position.
Though 	Ms. 	Haymes 	testified 	that 	she 	and 	her 	predecessor
had 	difficulty 	in 	working 	with 	Mr. 	Capling 	in 	the 	past, 	the
reasons 	given 	by 	Mr. 	Capling 	for 	the 	cancellation 	of 	the
training 	are 	plausible, 	and 	the 	evidence 	introduced 	was
insufficient 	to 	call 	them 	into 	question.
Upon 	learning 	of 	the 	cancellation, 	both 	Ms. 	Ogden 	and
Mr. 	Green, 	an 	SEIU 	election 	observer, 	suggested 	to 	Ms. 	Haymes
that 	the 	election 	be 	postponed. 	Ms. 	Haymes 	replied 	to
Mr. 	Green 	that 	it 	was 	impossible 	to 	postpone 	the 	election 	and
told 	Ms. 	Ogden 	to 	hope 	for 	the 	best. 	Ms. 	Haymes 	testified 	she
did 	not 	ask 	anyone 	to 	reschedule 	the 	election, 	believing 	it 	was
not 	possible 	since 	she 	had 	signed 	the 	consent 	election
agreement. 	Her 	only 	communication 	with 	PERB 	on 	the 	matter 	was
9

on
	the
	election
	day
	itself
	when
	she
	told
	the
	PERB
	election
officer 	that
	a
	challenge
	would 	be
	filed
	if
	the
	organizational
security
	measure
	lost.
C.
	Effect
	on
	The
	Election
One
	hundred
	and
	seven
	of
	the
	one
	hundred
	and
	forty
(76
	percent)
	members
	in 	the
	unit 	cast
	ballots.
	Twenty-six
	of
the
	thirty-two
	(81
	percent)
	bus
	drivers 	cast
	ballots.
	Eighty-
one
	of
	the
	one
	hundred
	and
	eight
	(75
	percent)
	non-bus
	drivers
in 	the
	unit
	cast
	ballots.
	The
	voter 	turnout
	among
	the
	bus
drivers
	was,
	obviously,
	somewhat
	higher 	than
	among
	the
	other
members
	in
	the
	unit.
Official
	records
	enabled 	the
	parties
	to 	subsequently
determine
	which
	unit
	members 	had
	not
	voted.
	Testimony
	was
received
	from
	each
	of
	the
	six
	bus
	drivers
	who
	did
	not
	vote.
Ms.
	Aquino,
	one
	of 	these
	drivers, 	stated 	that
	she
	had
	been
on
	leave
	and 	was
	out 	of
	the
	state
	on
	the
	day
	of
	the
	election.
No
	one 	had
	notified
	her
	of 	the
	election
	or
	training,
	she
testified.
Ms.
	Capuder, 	another
	driver, 	stated 	that
	she	
knew	
the
election
	and
	training
	had
	been
	scheduled.
	However,
	she 	decided
to 	stay
	home
	that
	day 	and
	not 	vote.
	She
	stated 	that
	if
	she
told
	anyone
	that
	she
	would
	not
	come
	in 	to 	vote 	unless 	she 	were
paid 	for
	it,
	she
	had
	intended 	the 	statement 	in
	jest.
Ms.
	Cuthbertson, 	another
	driver, 	testified 	that
	she
	knew
about 	the 	election 	but 	did 	not
	know
	about 	the 	proposed
10

training,
	even 	though
	she 	had
	been
	at
	the
	December 	13
	meeting
at
	which
	Mr.
	Douglas 	announced
	the
	training.
	Ms.
	Cuthbertson
stated 	that
	no
	one
	called
	her
	to
	urge 	her
	to
	vote.
	She
	said
she
	knew
	drivers
	were
	supposed
	to
	attend
	training
	sessions
unless
	they
	were
	sick
	and
	she
	had
	attended
	prior 	training
sessions
	herself.
Ms.
	Jacops,
	the
	fourth 	of
	the
	six
	nonvoting 	bus
	drivers,
knew
	that
	the
	election
	and
	training
	were
	scheduled 	for
	Decembe~
	i9
but 	did not 	vote
	because 	she
	had
	become
	ill
	the 	previous
week,
	missed
	school
	December
	15
	and
	16,
	and
	was
	ill
	during
	the
entire
	Christmas
	vacation.
	She 	had
	attended
	the
	majority
	of
previous
	training
	sessions 	held,
	she
	said.
Ms.
	Larkin, 	another 	nonvoting
	driver,
	was
	not
	aware
	that
	an
election
	was
	going
	to
	be
	held 	or
	that 	training
	had 	been
planned, 	although
	she
	had
	attended 	the
	December
	13
	meeting.
No
	one
	called
	to
	inform
	her.
	In
	the
	short
	time 	she
	had
been
	driving
	buses
	she
	had
	attended
	in-service 	training
whenever
	it
	had
	been
	held.
Ms.
	Soto, 	the
	last
	of 	the
	six
	nonvoting 	bus
	drivers,
	knew
the
	election
	was
	going 	to
	be
	held.
	She
	also
	knew
	about 	the
training
	and
	believed
	it
	had 	been
	cancelled. 	Nevertheless, 	she
was
	driving 	to 	the 	school 	to 	vote
	on
	the 	19th
	when 	a
	car
breakdown
	prevented 	her
	from
	reaching 	the
	polling
	site.
	She
had
	attended 	previous 	training 	sessions.
11

Thus,
	there
	was 	no
	testimony
	offered
	that
	any
	of
	the
drivers
	who
	refrained
	from
	voting 	did
	so 	because
	of
	the
District's
	actions.
Ms.
	Ogden
	testified
	that
	when
	she
	learned 	of
	the
cancellation
	she
	tried
	to 	contact
	the
	drivers 	to
	inform
	them.
She
	stated 	that
	the
	general
	feeling
	of
	the
	drivers
	was
	that
they
	would
	not
	give
	up
	their
	Christimas 	vacation 	to
	come
	in
	and
vote 	unless 	they 	got
	paid,
	although
	she
	could 	not 	say
	that
	any
driver
	had
	said
	specifically 	that
	she
	would
	come
	in
	if
	training
were
	paid
	for.
	Ms. 	Haymes
	testified
	that
	no
	one
	came
	to
	school
on
	the
	19th
	believing
	that 	training
	would 	be
	held.
	Mr.
	Douglas
indicated 	that
	no
	one
	showed 	up
	for
	training
	and
	no
	one
complained
	to
	him
	about 	not
	receiving
	pay.
Evidence
	was
	also
	introduced
	that
	the
	SEIU
	membership 	dues
had
	been
	increased
	from
	$7
	to
	$10
	per
	month
	in
	December.
2.
	Election
	Day
	Misconduct
The
	voting
	hours
	were
	10:00 	a.m.
	to
	1:00 	p.m.
	Mr.
	Green
testified
	that
	toward
	the
	end
	of 	the 	voting 	period,
	two
	voters
came
	in
	and
	said 	that 	there
	was 	a
	sign
	encouraging
	a
	"no"
	vote
posted 	outside
	under
	the
	polling 	place 	sign. 	Polling 	place
signs
	had 	been
	placed 	outside 	the
	door
	to 	the
	polling 	place
	and
also 	at 	the
	ends 	of 	the 	long 	hallway. 	There
	was 	no
	indication
from
	the
	two
	regarding
	which
	polling 	place 	sign
	was
	being
referred 	to. 	~r.
	Green
	believed
	he
	told 	the
	PERB
	election
officer 	that
	he
	felt 	that 	the 	sign 	should 	not
	be
	there.
	He
12

could 	not 	recall 	the 	election 	officer's 	response. 	Mr. 	Green
went 	out 	to 	look 	for 	the 	sign 	at 	some 	point, 	he 	thought
perhaps 	it 	was 	at 	1:00 	p.m., 	but 	he 	could 	not 	find 	it. 	He
subsequently 	signed 	the 	certification 	of 	conduct 	of 	election
because 	he 	felt 	things 	had 	run 	smoothly. 	However, 	he 	indicated
that 	he 	did 	not 	consider 	his 	signature 	to 	be 	a 	waiver 	of 	the
right 	to 	protest 	the 	election. 	Mr. 	Green 	had 	previously 	held
official 	positions 	in 	employee 	organizations 	and 	had 	been 	an
election 	observer 	on 	two 	other 	occasions.
Ms. 	Matthews, 	the 	District 	election 	observer, 	testified
that 	about 	noon, 	two 	custodians 	in 	the 	bargaining 	unit 	said
that 	there 	was 	a 	sign 	in 	the 	hall 	which 	said 	"teachers 	get 	your
five 	percent 	vote 	now." 	Ms. 	Matthews 	stated 	that 	the 	PERB
official 	commented 	that 	as 	long 	as 	the 	sign 	was 	in 	the 	hall 	and
not 	in 	the 	voting 	area 	it 	was 	permissible, 	but 	that 	SEIU 	could
take 	it 	down 	if 	it 	desired. 	Ms. 	Matthews 	said Mr. 	Green 	asked
the 	custodian 	to 	take 	down 	the 	sign, 	but 	the 	custodian 	replied
that 	he 	would 	only 	turn 	the 	sign 	over. 	When 	Ms. 	Matthews 	left
the 	polling 	site 	at 	1:00 	p.m. 	she 	looked 	for 	the 	sign 	but 	could
not 	find 	it.
No 	testimony 	was 	introduced 	from 	anyone 	who 	actually 	saw
the 	sign, 	nor 	could 	it 	be 	determined 	how 	long 	the 	sign, 	if 	it
indeed 	existed, 	was 	posted.
SEIU 	also 	alleged 	in 	its 	opening 	remarks 	at 	the 	hearing
that 	two 	individuals 	had 	campaigned 	against 	the 	organizational
13

security
	clause
	within
	25
	feet
	of 	the
	polling
	site.
	However,
no
	evidence
	was
	introduced
	at 	the 	hearing
	to
	support
	this
allegation.
DISCUSSION
California
	Administrative
	Code,
	title
	8,
	section
	33590,
establishes
	the 	bases
	on
	which
	objections 	to 	representation
elections 	will
	be
	heard, 	but
	the 	Administrative
	Code
	contains
no
	corresponding
	provision
	relating
	to 	objections 	to
organizational 	security 	elections.
	However,
	it
	is
	reasonable
to
	apply 	the
	representation 	election
	criteria
	to 	organizational
security 	elections
	since 	the 	goal 	in
	both
	cases
	is
	to
	encourage
an
	environment
	in	
which	
an
	election
	can	
be
	conaucted	
to
determine 	the
	will
	of
	the
	majority
	in
	an
	atmosphere
	that 	is
	not
coercive.
California
	Administrative
	Code
	section
	33590
	states
	that
objections 	to
	elections 	will
	be
	entertained
	only
	if
	the 	conduct
complainea 	of
	is
	tantamount
	to
	an
	unfair 	practice
6
or
	if
	it
constitutes
	a
	serious
	irregularity
	in 	the
	conduct 	of 	the
election.
1. 	Cancellation 	of 	Training
A.
	Conduct
	Allegedly
	Tantamount
	to
	an
	Unfair
	Practice
SEIU
	claims 	in
	its
	original
	charge
	that 	section 	3543.S(a),
(h) 	and 	(c) 	was
	violated
	by
	the
	District.
6For
	the	
relevant 	unfair 	practice 	sections 	see 	footnote 	1,
supra.
14

But,
	SEIU
	has
	made 	no
	argument
	directly
	raising
	a
	section
3543.S(a)
	issue
	on
	the 	record
	or
	in
	their 	brief.
	No
	violation
of
	section
	3543.S(a)
	is
	found 	by	
the 	hearing
	officer
	and
	that
portion
	of
	the 	charge
	is
	hereby
	dismissed.
SEID
	contends
	that
	the
	District
	agreed
	to 	hold
in-service 	training
	on 	December
	19,
	1977 	and
	then 	reneged
	on
that
	agreement.
	They
	argue
	that
	this
	alleged 	repudiation
	is
	a
unilateral
	action
	indicative
	of
	bad
	faith
	and, 	hence,
	is
violative
	of
	section
	3543.S(c).
	They
	claim
	that
	the
	District's
action
	had
	the
	effect
	of 	reducing
	the
	wages 	and
	hours
	and 	an
unspecified
	term
	and
	condition
	of
	employment
	of
	employees,
citing
	the 	leading 	case 	of
	NLRB
	v.
	Katz
	(1962) 	369 	UoS. 	736
[50
	LRRM
	2177]
	for 	the
	proposition 	that 	unilateral
	changes 	by
an
	employer
	during 	the 	course 	of
	a
	collective
	bargaining
relationship
	concerning
	matters
	which
	are 	proper
	subjects
	of
hargaining 	are
	normally 	regarded
	as 	per 	se
	refusals
	to
bargain.
	They
	argue
	in 	the
	alternative 	that
	if
	there
	was 	no
agreement
	it
	was
	because
	Mr.
	Douglas
	was
	not
	afforded
sufficient
	authority 	to
	reach
	an
	agreement 	or
	was
	not 	capable
of
	good
	faith
	negotiations
	because
	he 	was
	not
	sufficiently
informed,
	citing
	a
	series
	of 	National
	Labor
	Relations
	Board
cases.
	However,
	as 	noted
	earlier,
	it
	was
	not
	clear 	that 	there
was 	an
	agreement
	on 	an
	election 	date 	that
	was
	conditioned
	upon
the 	paid
	status
	of 	the
	drivers
	on
	that
	day.
15

SEIU's
	second
	argument,
	that
	the
	cancellation
	of
	training
altered
	wages 	and
	hours
	and
	terms
	and
	conditions
	of
	employment,
fails
	as
	well.
	There
	is
	no
	evidence
	that
	the
	contract
addressed 	the
	subject
	of
	training.
	Therefore,
	it
	cannot
	be
concluded
	that
	unit
	members
	were
	deprived 	of
	a
	benefit
	to
	which
they
	were
	entitled
	by
	contract.
	It
	is 	certainly
	not
	true
	that
the
	employees
	were
	deprived 	of
	a
	benefit
	to
	which
	they
	had
become
	entitled
	by
	practice,
	since
	at
	issue
	was
	not 	the
auestion 	of
	whether
	to
	train
	bus
	drivers
	but
	whether
	to
	provide
training
	on
	the 	19th 	of
	December. 	The
	decision
	by management
to 	cancel
	in-service 	training
	on 	a
	particular
	day
	clearly
	lies
outside 	the
	realm 	of
	matters
	contemplated
	by
	Katz
	and
	its
progeny. 	There
	is
	no
	evidence
	that
	the
	District
	intended
	a
decrease 	in 	the
	total
	amount
	of
	training
	over
	the 	year.
	Thus,
absent
	a 	showing
	of
	anti-organizational
	animus
	or
	a
	finding 	of
a
	quid 	pro
	quo
	agreement,
	no
	violation
	of 	the 	duty
	to 	bargain
can
	be
	found.
Hence,
	the
	alleqation
	of
	a
	section
	3543.S(c)
	violation
	must
fail.
	With
	it,
	the 	contention 	that
	Mr. 	Douglas 	was
	given
inadequate 	authority
	by 	management 	must
	also
	fail.
16

SEIU 	further 	contends 	that 	the 	District's 	conduct
constituted 	a 	separate 	violation 	under 	section 	3543.S(b) 	in
that 	it 	allegedly 	substantially 	undermined 	and 	derogated 	the
organization 	in 	the 	eyes 	of 	its 	members. 	SEIU 	asks
rhetorically, 	in 	their 	brief, 	"Who 	is 	to 	say 	how many
individuals 	decided 	to 	vote 	against 	the 	union 	after 	the
employer 	undermined 	the 	union 	by 	repudiating 	its 	prior
agreement?" 	This 	is 	precisely 	the 	point. 	Unfortunately,
the 	effect 	of 	the 	District's 	change 	of 	position 	is 	not
directly 	explored 	on 	the 	record. 	There 	is, 	however, 	testimony
indicating 	that 	a 	contract 	acceptable 	to 	the 	parties 	was
negotiated 	during 	the 	same 	time 	period, 	indicating 	an
atmosphere 	generally 	favorable 	to 	the 	bargaining 	process. 7
Furthermore, 	there 	is 	evidence 	that 	dues 	were 	increased
substantially 	just 	before 	the 	election, 	raising 	a 	plausible
alternative 	motive 	for 	antiunion 	feelings 	among 	unit 	members.
It. 	would 	he 	as 	reasonable 	to 	interpret 	the 	results 	of 	the
elections 	as 	a 	message 	from 	the 	unit 	members 	at 	large 	regarding
the 	results 	of 	recent 	negotiations 	or 	the 	increase 	in 	dues 	as
it 	would 	be 	to 	find 	the 	results 	attributable 	to 	the 	actions 	of
the 	District. 	In 	the 	absence 	of 	any 	further 	evidence 	this
argument 	by 	SEIU 	is 	unpersuasive.
7rt 	is 	not 	clear 	from 	the 	record 	what 	method 	was 	used 	to
authorize 	the 	SEID 	negotiating 	team 	to 	sign 	the 	contract. 	The
fact 	that 	a 	contract 	was 	signed 	should 	not 	necessarily 	be 	taken
as 	an 	endorsement 	of 	SEIU 	by 	a 	majority 	of 	the 	bargaining 	unit
members.
17

Though 	this 	proposea 	decision 	is 	based 	on 	other 	grounds, 	it
should 	nonetheless 	be 	pointed 	out 	that 	SEIU 	had 	been 	advised 	of
the 	cancellation 	of 	training 	well 	before 	the 	election 	but 	chose
to 	take 	no 	formal 	action 	until 	after 	it 	learned 	of 	the
unfavorable 	results 	of 	the 	election. 	Ms. 	Haymes 	was 	first
forewarned 	that 	something 	might 	be 	amiss 	on Monday, 	December 	12,
when 	she 	discovered 	that 	notice 	of 	the 	proposed 	training
had 	not 	been 	posted. 	Yet, 	she 	did 	not 	attempt 	to 	contact
Mr. 	Douglas 	and was 	unsuccessful 	in 	contacting Mro 	Capling. 	She
confirmed 	the 	cancellation 	on 	Tuesday 	or 	Wednesday. 	There 	was
sufficient 	time 	to 	contact 	the 	PERB 	election 	official 	to
explain 	the 	situation 	and 	to 	inquire 	about 	alternatives. 	A
postponement 	had 	been 	suggested 	to Ms. 	Haymes 	by 	both Ms. 	Ogden
and 	Mr. 	Green 	but 	she 	dismissed 	the 	idea. 	Although 	she
complained 	to 	the 	District 	about 	the 	cancellation, 	she 	did 	not
insist 	or 	demand 	that 	further 	discussion 	be 	held 	if 	the
District 	intended 	to 	cancel 	the 	training 	and 	still 	proceed 	with
the 	election. 	SEIU 	asserts 	that 	the 	promise 	to 	hold 	the
training 	was 	the 	foundation 	upon 	which 	the 	consent 	agreement
was 	signed. 	Yet 	its 	cancellation 	prompted 	no 	one 	from 	SEIU 	to
assert 	that 	the 	consent 	election 	was 	voided 	by 	the 	District's
alleged 	breach, 	to 	register 	a 	complaint 	with 	PERB 	or 	to 	insist
that 	the 	District 	honor 	the 	alleged 	promise. 	If 	the 	training
issue 	was 	as 	essential 	to 	the 	fair 	conduct 	of 	the 	election 	as
18

SEIU 	now
	urges,
	it
	seems 	more
	reasonable
	that 	efforts
would
	have 	been
	appropriate 	to
	postpone
	the
	election
	or
	secure
the
	paid
	training.
B.
	Alleged
	Serious
	Irregularity
SEIU
	also
	contends
	that
	the
	District's
	conduct
	already
described
	constitutes
	a
	"serious
	irregularity",
	having
	the
effect
	of
	either
	discouraging 	voter 	turnout
	or 	of 	encouraging
	a
negative
	vote
	among
	those
	who
	did
	cast
	ballots,
	and
	providing
an
	independent
	basis
	for
	invalidating
	the
	election.
	But,
	this
contention,
	suffers
	from
	the
	same
	difficulties
	which
	the
charging
	party
	was
	unable
	to
	overcome
	relative
	to
	its
	"conduct
tantamount
	to
	an
	unfair 	practice" 	allegation.
The
	first
	decision
	rendered
	by
	the
	PERB
	itself,	
rarnalpais
Union 	High	
-	
School
	District
	(7/20/76)
	EERB
	Decision
' No.
	1,
established
	a
	two-pronged
	test
	for 	determining
	whether
	voter
participation
	had
	been
	discouraged:
	(1)
	direct
	evidence
	that
voter
	participation
	was
	discouraged 	or
	(2)
	the 	conduct
complained 	of
	had
	the
	natural
	and
	probable
	effect
	of
discouraging 	voter
	participation.
	The
	charging
	party
	has
failed 	to 	sufficiently 	establish
	by
	direct
	evidence 	or
inference 	that 	voters
	were
	discouraged
	from
	voting
	by
	District
conduct.
	Nor
	has
	the 	charging 	party 	provided
	any
	significant
evidence
	which 	would
	tend 	to
	show
	that 	voters
	changed
	to
	a
negative 	position
	on
	the 	organizational 	security 	decision
	as
	a
19

consequence 	of
	District
	conduct.
	Hence,
	the 	charging
	party's
claim 	of
	"serious
	irregularity"
	must
	also
	be
	dismissed.
2.
	Election
	Day
	Misconduct
SEIU
	alleges 	that
	both 	the
	posting 	of
	a
	sign
	encouraging
	a
"no"
	vote
	and
	the
	campaigning
	against
	the
	organizational
security
	measure
	by
	certain
	individuals
	within
	25
	feet
	of 	the
polling
	place
	constitute
	a
	serious
	irregularity
	in 	the
	conduct
of
	the
	election
	and
	warrant
	overturning 	the
	results
	of 	the
election.
	But,
	there
	was 	no
	evidence
	introduced
	into
	the
record
	that
	the
	complained
	of
	campaigning 	took
	place.
	That
portion
	of 	the 	charge
	is,
	therefore,
	dismissed.
With
	respect 	to
	the
	alleged 	sign
	that
	encouraged
	a
	"no"
vote,
	it
	is
	somewhat
	significant 	that
	no
	testimony
	was
introduced
	from 	anyone
	who
	actually
	saw
	the
	sign.
	There 	were
only
	vague
	and
	conflicting
	second-hand 	accounts 	of
	where
	the
sign
	was
	located
	and 	what
	it
	indicated.
	A
finding
	cannot
	be
based
	on
	such
	weak
	hearsay.
8
Even
	assuming
	the 	existence 	of
	such
	a
	sign, 	objections 	to
the
	election
	based
	on
	it
	must 	be
	dismissed
	under
	the 	Tamalpais
tests,
	supra.
	There
	was 	no
	evidence 	presented
	that
	a
	single
8california
	Administrative
	Code,
	title
	8, 	section
	32176
reads, 	in 	pertinent 	part,
	as
	follows:
••.
	Hearsay 	evidence
	may 	be 	used 	for 	thepurpose 	of 	supplementing 	or 	explaining 	otherevidence 	but
	shall
	not 	be
	sufficient 	in
	itself
	tosupport
	a
	finding 	unless
	it
	would 	be
	admissibleover 	objection 	in 	civil 	actions
••••
20

individual
	was
	discouraged
	from
	voting
	because
	of 	the 	presence
of
	the
	sign.
	It
	is
	also
	improbable
	that
	the 	sign
	had
	the
natural
	and
	probable
	effect
	of
	discouraging 	voter
participation.
	If
	the 	presence 	of
	television
	cameras
	for
	brief
periods
	during 	the
	balloting
	does 	not
	have
	the
	natural
	and
probable
	effect
	of
	discouraging 	voter
	participation,
	as
	was
	the
case
	in
	Tamalpais,
	it
	is
	unlikely
	that
	a
	passively
	posted
	sign,
posted 	for
	an
	uncertain 	period
	of 	time,
	if
	it
	was
	posted
	at
all,
	would 	have 	any
	greater
	discouraging, 	confusing 	or
misleading
	effect.
	Moreover,
	without
	sufficient
	evidence
	that
the
	sign
	was
	within
	the
	officially
	designated
	polling 	area,
	it
cannot
	be
	concluded
	that
	the 	sign
	ought
	to
	have 	been 	removed.
It
	follows
	that
	the
	failure
	of 	the
	PERB
	election
	official
	to
cause 	the 	sign 	to
	be 	removed
	did
	not
	constitute
	a
	serious
irregularity.
CONCLUSIONS
	OF
	LAW
Based
	on
	the 	foregoing 	findings 	of
	fact
	and
	the
	entire
record 	of 	the 	case
	it
	is
	found
	that:
1.
	The
	cancellation
	of
	training
	for
	bus
	drivers
	on
	the
date 	of 	the
	oraanizational 	security 	election 	constitutes
neither
	an
	unfair 	practice
	nor
	a
	serious
	irregularity
	in 	the
conduct 	of 	the
	election
	and
	therefore
	does 	not 	provide
	a
	basis
for
	setting
	aside 	the
	election.
21

2. 	The 	posting 	of 	a 	sign 	encouraging 	a 	negative 	vote
outside 	a 	polling 	place 	does 	not 	constitute 	a 	serious
irregularity 	in 	the 	conduct 	of 	the 	organizational 	security
election.
PROPOSED ORDER
Based 	on 	the 	conclusion 	of 	law, 	findings 	of 	fact 	and 	the
entire 	record 	of 	the 	case, 	the 	unfair 	practice 	charge 	filed 	by
the 	Service 	Employees 	International 	Union, 	Local 	390, 	against
the 	San 	Ramon 	Valley 	Unified 	School 	District 	is 	hereby
DISMISSED.
Pursuant 	to 	California 	Administrative 	Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	October 	13> 	1978 	unless 	a 	party
files 	a 	timely 	statement 	of 	exceptions 	and 	supporting 	brief
within 	twenty 	(20) 	calendar 	days 	following 	the 	date 	of 	service
of 	this 	decision. 	Such 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	actually 	received 	by 	the 	Executive 	Assistant 	to
the 	Board 	at 	the 	headquarters 	office 	in 	Sacramento 	before 	the
close 	of 	business 	(5:00 	P.M.) 	on 	Tuesday, 	October 	JO, 	1978 	in
order 	to 	he 	timely 	filed. 	(See 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 	32135.) 	Any 	statement 	of 	exceptions
and 	supporting 	brief 	must 	be 	served 	concurrently 	with 	its
filing 	upon 	each 	party 	to 	this 	proceedinq. 	Proof 	of 	service
22

shall
	be
	filed
	with
	the
	Board
	itself.
	See
	California
Administrative
	Code,
	title
	8,
	part
	III,
	sections
	32300
	and
32305, 	as
	amended.
DATED:
	September 	20,
	1978
23
MICHA~7
TON~I~
Hea~g
	Officer
,,,,,,.