Jefferson Elementary School District (PERB 0164E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS BOARD
JEFFERSON 	ELEMENTARY SCHOOL 	DISTRICT,
Employer,
and
JEFFERSON 	FEDERATION 	OF 	TEACHERS,
LOCAL 	3 2 6 7 , 	AFT /AF L-C IO ,
Employee Organization,
a~
JEFFERSON 	CLASSROOM TEACHERS 	ASSOCIATION,
CTA/NEA,
Employee Organization.
Case Nos. 	SF-D-41
SF-D-12
PERB 	Decision No. 	164
June 	10, 	1981
Appearances:
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Employee Organization. 	)
_________________ )
Appearances:
Before 	Gluck, 	Chairperson; 	Members 	Moore 	and Tovar.
DECISION AND 	ORDER
Stewart Weinberg, 	Attorney 	(Van Bourg, 	Allen,
wernberg 	and 	Roger) 	for 	Jefferson Federation 	of 	Teachers, 	Local
3267, 	AFT/AFL-CIO~ 	Kirsten 	L. 	Zerger, 	Attorney 	(California
Teachers Association) 	for 	Jefferson Classroom Teachers
Association, 	CTA/NEA.
Before Gluck, Chairperson; Members Moore and Tovar.
DECISION AND ORDER
In 	the 	instant 	case, 	the 	Public Employment Relations 	Board
(hereafter 	PERB 	or Board) 	has 	considered 	the objections 	to 	the
conduct 	of 	the 	decertification 	election 	as 	submitted 	by 	the
Je 	erson Classroom Teachers Association, 	CTA/NEA
{hereafter 	CTA). 	As 	a 	result 	of 	that 	decertification 	election
conducted 	on May 	6, 	1980, 	the Jefferson Federation 	of Teachers,
Local 	3267, 	AFT/AFL-CIO 	(hereafter 	AFT) 	was 	selected 	by 	the
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFERSON ELEMENTARY SCHOOL DISTRICT,
Employer , 	Case Nos. SF-D-41
SF-D-12
and
JEFFERSON FEDERATION OF TEACHERS , 	PERB Decision No. 164
LOCAL 3267, AFT/AFL-CIO,
Employee Organization, June 10, 1981
and
JEFFERSON CLASS ROOM TEACHERS ASSOCIATION,
CTA /NEA,
Stewart Weinberg, Attorney (Van Bourg, Allen,
Weinberg and Roger) for Jefferson Federation of Teachers, Local
3267, AFT/AFL-CIO; Kirsten L. Zerger, Attorney (California
Teachers Association) for Jefferson Classroom Teachers
Association, CTA/NEA.
In the instant case, the Public Employment Relations Board
(hereafter PERB or Board) has considered the objections to the
conduct of the decertification election as submitted by the
Jefferson Classroom Teachers Association, CTA/NEA
(hereafter CTA) . As a result of that decertification election
conducted on May 6, 1980, the Jefferson Federation of Teachers,
Local 3267, AFT/AFL-CIO (hereafter AFT) was selected by the

majority
	of
	voters 	to
	serve
	as
	the
	exclusive
	representative
	of
the
	certificated
	employees 	of
	the
	Jefferson
	Elementary
	School
District
	(hereafter
	District).
	CTA,
	which
	had
	been
	the
exclusive
	representative 	since
	June 	2,
	1976,
	filed
	objections
to
	the
	conduct 	of
	that 	election
	on
May
	15,
	1980.
	A
hearing
	was
conducted 	before
	a
	PERB
	hearing
	officer
	on
June
	2,
	1980.
Thereafter,
	CTA
	filed
	a
	written
	request 	to
	amend
	its
	objections
to
	the
	conduct
	of
	the
	election.
	This
	request
	was
	granted
	by
the 	hearing
	officer
	on
June
	20,
	1980, 	during
	the
	second 	day
	of
hearing. 	Post-hearing
	briefs
	were
	filed
	by
	both
	parties,
	and
on
July
	22,
	1980, 	the 	hearing
	officer
	issued
	his
	proposed
decision 	overruling
CTA's
	objections.
	Pursuant 	to
	an
	agreement
of
	the
	parties,
	PERB's
	executive
	assistant
	granted
	CTA
	an
extension
	of 	time
	to
	file
	exceptions 	to
	the 	hearing
	officer's
decision,
	and 	on
August
	22,
	1980, 	timely exceptions 	to
	that
dee
is
ion
	we
re
	submitted
	by CTA.
In 	conformity with 	the 	following
	discussion,
	we
	affirm 	the
hearing
	officer's
	decision
	and
	direct 	that,
	as
	a
	result
	of
	the
decertification 	election,	
AFT 	be
	certified
	as
	the 	exclusive
representative
	of
	the
District's 	certificated
	employees.
FACTUAL SUMMARY
Based 	on
	our 	review 	of 	the 	record,
	we
	find 	that
	the 	hearing
officer's
	findings 	of
	fact
	as
	set 	forth 	in 	his 	proposed
decision,
	which
	is 	attached 	hereto
	and
	incorporated 	by
reference, 	are 	free
	from
	prejudicial 	error.
	We
	therefore 	adopt
FACTUAL
	SUMMARY
2
majority of voters to serve as the exclusive representative of
the certificated employees of the Jefferson Elementary School
District (hereafter District) . CTA, which had been the
exclusive representative since June 2, 1976, filed objections
to the conduct of that election on May 15, 1980. A hearing was
conducted before a PERB hearing officer on June 2, 1980.
Thereafter, CTA filed a written request to amend its objections
to the conduct of the election. 	This request was granted by
the hearing officer on June 20, 1980, during the second day of
hearing. Post-hearing briefs were filed by both parties, and
on July 22, 1980, the hearing officer issued his proposed
decision overruling CTA's objections. Pursuant to an agreement
of the parties, PERB's executive assistant granted CTA an
extension of time to file exceptions to the hearing officer's
decision, and on August 22, 1980, timely exceptions to that
decision were submitted by CTA.
In conformity with the following discussion, we affirm the
hearing officer's decision and direct that, as a result of the
decertification election, AFT be certified as the exclusive
representative of the District's certificated employees.
Based on our review of the record, we find that the hearing
officer's findings of fact as set forth in his proposed
decision, which is attached hereto and incorporated by
reference, are free from prejudicial error. We therefore adopt
N

his 	factual 	conclusions 	and 	have 	examined 	CTA's 	exceptions 	to
the 	conduct 	of 	the 	election 	in 	accordance 	with 	those 	findings.
DISCUSS ION
Our 	consideration 	of 	the 	objections 	lodged 	by CTA 	begins
with 	reference 	to 	PERB 	rule 	32738(c)l 	which 	permits 	the 	Board
to 	entertain objections 	only 	on 	the 	following 	grounds:
(c) 	Objections 	shall 	be 	entertained 	by 	the
Board 	only 	on 	the 	following 	grounds:
(1) 	The 	conduct 	complained 	of 	is
tantamount 	to 	an 	unfair 	practice 	as
defined 	in Government 	Code
sections 	3543.5 	or 	3543.6 	of 	EERA,
3519 	or 	3519. 5 of 	the SEE RA, 	or 3571 or 3571.1
of 	the HEE RA, 	or
(2) 	Serious 	irregularity 	in 	the
conduct 	of 	the 	election.
Two 	of 	CTA 1 s 	objections 	are 	entertained 	by 	the 	Board 	as
assertions 	that 	specific 	conduct 	constituted 	serious
irregularities 	in 	the 	election 	process.2
In San Ramon Valley Unified School District 	(11/20/79) 	PERB
Decision No. 	111, 	the 	Board 	considered 	the 	employee
organization's 	objection 	to 	the 	conduct 	of 	an 	organizational
security 	election 	and 	its 	charge 	that 	the 	results 	of 	that
lPERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 	8 	section 	31000 	et 	seq.
2CTA 	asserts 	in 	its 	exceptions 	to 	the 	hearing 	officer's
decision 	that 	the District's 	refusal 	to 	bargain 	was 	conduct
tantamount 	to 	an 	unfair 	practice 	and, 	because 	that 	refusal 	was
an 	issue 	in 	the 	election 	campaign, 	it 	constitutes 	a 	basis 	for
setting 	aside 	the 	election. 	Our 	consideration 	of 	that
assertion 	is 	set 	forth 	infra.
3
his factual conclusions and have examined CTA's exceptions to
the conduct of the election in accordance with those findings.
DISCUSS ION
Our consideration of the objections lodged by CTA begins
with reference to PERB rule 32738 (c)1 which permits the Board
to entertain objections only on the following grounds:
(c) Objections shall be entertained by the
Board only on the following grounds:
(1) The conduct complained of is
tantamount to an unfair practice as
defined in Government Code
sections 3543.5 or 3543.6 of the EERA,
3519 or 3519.5 of the SEERA, or 3571 or 3571.1
of the HEERA, or
(2) Serious irregularity in the
conduct of the election.
Two of CTA's objections are entertained by the Board as
assertions that specific conduct constituted serious
irregularities in the election process . 2
In San Ramon Valley Unified School District (11/20/79) PERB
Decision No. Ill, the Board considered the employee
organization's objection to the conduct of an organizational
security election and its charge that the results of that
1PERB rules are codified at California Administrative
Code, title 8 section 31000 et seq.
2CTA asserts in its exceptions to the hearing officer's
decision that the District's refusal to bargain was conduct
tantamount to an unfair practice and, because that refusal was
an issue in the election campaign, it constitutes a basis for
setting aside the election. Our consideration of that
assertion is set forth infra.
W

election should 	be 	overturned 	because 	the 	employer 	had 	engaged
in 	conduct 	tantamount 	to 	an 	unfair 	practice 	under 	the
Educational Employment Relations Act 	(hereafter 	EERA 	or
Act).3 	While 	a 	majority of 	the 	Board 	concluded 	that 	the
employer 	had 	engaged 	in 	conduct 	tantamount 	to 	an 	unfair, 	it
noted 	that 	such 	a 	determination was 	a 	threshold 	matter 	and 	that
it 	was 	additionally 	necessary 	to 	determine 	whether 	that 	conduct
was 	sufficient 	cause 	to 	set 	aside 	the 	results 	of 	the 	election.
The 	PERB 	rule 	permitting 	election objections 	" ... 	merely
provides 	this 	Board 	with 	the 	authority 	to 	entertain 	objections
to 	elections. 	II (Emphasis 	in 	original.) 	We 	affirmed 	that
PERB 11 • 	• 	• 	will 	not, 	necessarily, 	in 	every 	situation where
conduct 	tantamount 	to 	an 	unfair 	practice 	is 	evidenced, 	order
that 	the 	election 	be 	rerun."
In 	assessing CTA 1 s 	allegations 	in 	the 	instant 	case, 	we 	find
no 	reason 	to 	attach 	a 	different 	interpretation 	to 	that 	portion
of 	PERB' s 	rule 	regarding 	election 	objections 	based 	on
assertions 	of 	serious 	irregularities. 	While 	the 	election
misconduct 	itself 	may 	be 	of 	a 	serious 	or 	weighty 	nature, 	it 	may
not, 	under 	all 	circumstances, 	evidence sufficient 	cause 	to
disturb 	the 	results 	of 	the 	election. 	Thus, 	as 	with objections
based 	on 	conduct 	tantamount 	to 	an 	unfair 	practice, 	it 	is
33The EERA 	is 	codified 	in Government 	Code 	section 	3540
et 	seq.
4
election should be overturned because the employer had engaged
in conduct tantamount to an unfair practice under the
Educational Employment Relations Act (hereafter EERA or
Act) . 3 While a majority of the Board concluded that the
employer had engaged in conduct tantamount to an unfair, it
noted that such a determination was a threshold matter and that
it was additionally necessary to determine whether that conduct
was sufficient cause to set aside the results of the election.
The PERB rule permitting election objections " . . . merely
provides this Board with the authority to entertain objections
to elections. 	. " 	(Emphasis in original. ) We affirmed that
PERB " 	. will not, necessarily, in every situation where
conduct tantamount to an unfair practice is evidenced, order
that the election be rerun."
In assessing CTA's allegations in the instant case, we find
no reason to attach a different interpretation to that portion
of PERB's rule regarding election objections based on
assertions of serious irregularities. While the election
misconduct itself may be of a serious or weighty nature, it may
not, under all circumstances, evidence sufficient cause to
disturb the results of the election. Thus, as with objections
based on conduct tantamount to an unfair practice, it is
The EERA is codified in Government Code section 3540
et seq.

necessary 	to examine 	the 	alleged objectionable 	conduct 	and 	to
determine 	if 	that 	conduct 	had 	a 	probable 	impact 	on 	the
employees' 	vote. 	As 	recognized 	in San Ramon, 	the objecting
party 	is 	required 	to 	satisfy 	its 	burden 	of 	establishing 	a 	prima
facie 	case 	that 	specific 	activities 	interfered 	with 	the
election 	process 	to 	the 	degree 	of 	certainty 	set 	forth 	above.
In 	the 	election objections 	and 	in 	the 	exceptions 	to 	the
hearing 	officer's 	decision, 	CTA 	first 	posits 	that PERB 	agent
Jerilyn Gelt 	disseminated 	inaccurate 	information 	about 	a 	key
election 	issue 	to 	Patricia Bell, 	a 	teacher 	in 	the District, 	on
the 	day 	of 	the 	decertification 	election. 	More specifically,
CTA 	asserts 	that 	on 	the 	day 	of 	the 	decertification 	election,
Bell 	asked Gelt 	whether 	both 	organizations, 	CTA 	and 	AFT, 	could
sit 	at 	the 	bargaining 	table 	as 	a 	coalition 	bargaining 	team. 	In
CTA's 	view, 	Gelt 	inaccurately 	responded 	that 	that 	was
permissible 	and 	that 	this 	misinformation 	affected 	the 	election
results 	because 	a 	key 	issue 	in AFT's 	decertification 	campaign
was 	to 	promote 	the 	concept 	of 	a 	coalition 	of 	employee
organizations 	representing 	the Jefferson 	teachers.
In 	our 	review 	of 	this 	objection, 	we 	have 	found 	that 	the
transcript 	can 	be 	cited 	to 	demonstrate 	either 	that 	Bell 	asked
Gelt 	whether 	em2loyee~ could 	be 	members 	of 	the 	bargaining 	team
or 	that 	she 	asked Gelt 	about 	the 	propriety 	of 	both
organizations 	jointly functioning 	as 	the 	bargaining 	team.
Because 	the 	record 	is 	replete 	with 	both 	vagueness 	and
5
necessary to examine the alleged objectionable conduct and to
determine if that conduct had a probable impact on the
vote. As recognized in San Ramon, the objecting
party is required to satisfy its burden of establishing a prima
facie case that specific activities interfered with the
employees'
election process to the degree of certainty set forth above.
In the election objections and in the exceptions to the
hearing officer's decision, CTA first posits that PERB agent
Jerilyn Gelt disseminated inaccurate information about a key
election issue to Patricia Bell, a teacher in the District, on
the day of the decertification election. More specifically,
CTA asserts that on the day of the decertification election,
Bell asked Gelt whether both organizations, CTA and AFT, could
sit at the bargaining table as a coalition bargaining team. In
CTA's view, Gelt inaccurately responded that that was
permissible and that this misinformation affected the election
results because a key issue in AFT's decertification campaign
was to promote the concept of a coalition of employee
organizations representing the Jefferson teachers.
In our review of this objection, we have found that the
transcript can be cited to demonstrate either that Bell asked
Gelt whether employees could be members of the bargaining team
or that she asked Gelt about the propriety of both
or ganizations jointly functioning as the bargaining team.
Because the record is replete with both vagueness and
UT

contradictions,
	we
	cannot
	conclusively
	determine
	which
	question
Bell
	asked
	or, 	alternatively,
	whether
	Bell
	may
	in fact
	have
asked
	two
	different
	questions.
	Since
	we
	are
	unable
	to
ascertain
	the
	specific
	nature
	of
	the
	question,
	we
	are 	likewise
unable
	to
	conclude
	that
	Bell
	was
	necessarily
	provided
	with
inaccurate
	information. 	Rather,
	we
	find
	that
	because
	Bell's
question
	was
	at 	best
	ambiguously
	phrased,
	that
	confusion 	cannot
be
	disassociated
	from
	the
	answer
	she 	received.
	Reasonable
reliance
	on
	Gelt's
	answer
	cannot
	be
	justified
	where
	Bell's
	own
testimony
	displays 	uncertainty
	as
	to 	the 	information 	sought.
The
	testimony
	indicates 	that
	the
	call
	made 	by
	Bell
	was 	made
between
	classes
	and
	that
	she
	was
	in
	a
	hurry. 	This
	seems
	to
have
	contributed 	to 	the
	confusion
	and
	uncertainty
	of
	the
discussion.
	CTA
	has
	failed
	to 	demonstrate 	with
	any
	certainty
that 	Bell
	was
	in 	fact 	inaccurately
	advised 	and, 	having
	failed
in 	that
	proof,
	has
	not
	satisfied
	its
	burden
	of 	evidencing
	that
Gelt's
	conduct
	was 	a
	serious
	irregularity
	which
	infected 	the
results
	of
	the
	decertification 	election
	thereby 	warranting
	that
those
	results	
be	
disturbed.
CTA
	has
	also 	taken 	exception 	to 	the 	hearing
	officer's
decision 	regarding
	its
	objec
	on
	that
	AFT
	members 	unlawf 	Y
engaged
	in
	last
	minute
	electioneering	
and 	imprope 	y
	escorted
voters 	into
	the 	polling 	area.
	The
	hearing
	officer 	overruled
these 	objections,
	and
	we
	are
	in
	agreement
	that 	the 	specified
conduct 	does 	not
	amount
	to
	a
	serious 	irregularity suffi 	ent 	to
set 	aside 	the 	election 	results. 
6
contradictions, we cannot conclusively determine which question
Bell asked or, alternatively, whether Bell may in fact have
asked two different questions. Since we are unable to
ascertain the specific nature of the question, we are likewise
unable to conclude that Bell was necessarily provided with
inaccurate information. Rather, we find that because Bell's
question was at best ambiguously phrased, that confusion cannot
be disassociated from the answer she received. Reasonable
reliance on Gelt's answer cannot be justified where Bell's own
testimony displays uncertainty as to the information sought.
The testimony indicates that the call made by Bell was made
between classes and that she was in a hurry. This seems to
have contributed to the confusion and uncertainty of the
discussion. CTA has failed to demonstrate with any certainty
that Bell was in fact inaccurately advised and, having failed
in that proof, has not satisfied its burden of evidenceng that
Gelt's conduct was a serious irregularity which infected the
results of the decertification election thereby warranting that
those results be disturbed.
CTA has also taken exception to the hearing officer's
decision regarding its objection that AFT members unlawfully
engaged in last minute electioneering and improperly escorted
voters into the polling area. The hearing officer overruled
these objections, and we are in agreement that the specified
conduct does not amount to a serious irregularity sufficient to
set aside the election results.
6

First, 	based 	on 	the 	hearing 	officer's 	specific 	finding 	of
fact 	that 	the 	statement made 	by Jane 	Bennett 	was 	heard 	only 	by
Jean Kaldahl, 	CTA 	president 	and 	election observer, 	we 	affirm
the 	conclusion 	that 	her 	statement 	could 	not 	have 	affected 	the
election 	results. 	The 	record 	fails 	to 	demonstrate 	that
Bennett's 	words, 	"Here's 	five 	more 	votes 	for 	AFT," 	were 	audible
except 	inKaldahl's 	ears 	or 	that, 	in 	themselves, 	they 	were 	of
such 	a 	nature 	as 	to 	persuade 	potential 	voters 	how 	they 	should
cast 	their 	ballot.
Second, 	the 	hearing 	officer 	also 	reached 	the 	factual
conclusion 	that James 	Herndon 	escorted 	two 	wanen 	into 	the
District 	administrative 	offices 	on 	the 	morning 	of 	the 	election
and 	similarly 	escorted 	one 	or 	two 	voters 	on 	two 	different
occasions 	in 	the 	afternoon. 	He 	also 	concluded 	that
Thanas 	Martin 	escorted 	one 	voter 	into 	the 	administrative
offices 	in 	the 	afternoon. 	While 	the 	Board 	is 	in 	agreement 	with
CTA's 	assertion 	that last minute 	electioneering 	is 	antithetical
to 	the 	free 	and 	untrammeled 	election 	choice, 	we 	are 	at 	the 	same
time 	guided 	by 	the 	fact 	that, 	absent 	a 	showing 	of 	serious
irregularity, 	the 	results 	of 	an 	election should 	not 	be 	lightly
disturbed 	or 	disregarded. 	The 	rule 	establ 	hed 	by 	the National
Labor 	Relations 	Board 	(hereafter NLRB) 	in Milchem, 	Inc. 	(1968)
170 	NLRB 	362 	(67 	LRRM 	1395] 	articulates 	a 	similar 	concern 	by
establishing 	a 	stri 	rule 	against 	such 	conversations,
7
First, based on the hearing officer's specific finding of
fact that the statement made by Jane Bennett was heard only by
Jean Kaldahl, CTA president and election observer , we affirm
the conclusion that her statement could not have affected the
election results. The record fails to demonstrate that
Bennett's words, "Here's five more votes for AFT, " were audible
except in Kaldahl's ears or that, in themselves, they were of
such a nature as to persuade potential voters how they should
cast their ballot.
Second, the hearing officer also reached the factual
conclusion that James Herndon escorted two women into the
District administrative offices on the morning of the election
and similarly escorted one or two voters on two different
occasions in the afternoon. He also concluded that
Thomas Martin escorted one voter into the administrative
offices in the afternoon. While the Board is in agreement with
CTA's assertion that last minute electioneering is antithetical
to the free and untrammeled election choice, we are at the same
time guided by the fact that, absent a showing of serious
irregularity, the results of an election should not be lightly
disturbed or disregarded. The rule established by the National
Labor Relations Board (hereafter NLRB) in Milchem, Inc. (1968)
170 NLRB 362 [67 LRRM 1395] articulates a similar concern by
establishing a strict rule against such conversations,
7

regardless
	of 	the
	content,
	in
	order 	to
	avoid
	last
	minute
electioneering
	or
	pressure
	and
	unfair
	advantage
	from
	prolonged
conversations
	with
	waiting
	voters.
	This
	rule
	was
	adopted
	in
the
	hopes
	of
	preserving
	the
	sanctity
	of 	the
	final
	minutes
before
	an
	employee
	casts
	his
	or
	her
	vote.
	The
	NLRB
	also
	noted,
however,
	that
	the
	application
	of
	this 	rule 	"will
	be
	informed
	by
a
	sense
	of
	realism."
	While
	the
	content
	of
	the
	speaker's
remarks
	will
	not
	be
	of
	critical
	concern,
	any
	chance,
	isolated,
innocuous
	comment
	or
	inquiry
	"will
	not
	necessarily
	void
	an
election."
CTA
	argues
	that
	the 	hearing
	officer
	misapplied
	the
	rule
articulated 	in
Milchem 	by
	concluding
	that
	because
	the
	instant
conversations
	of 	Herndon
	and
	Martin
	were
	less
	than
	five
	minutes
in
	duration
	they
	were
	de 	minimus.
	There
	is
	no
	rational 	basis,
CTA
	argues, 	for 	the
	distinction
	between
	the 	prohibited
five-minute 	conversation
	in
Milchem 	and
	the 	hearing
	officer's
conclusion
	in
	the
	instant
	case.
Contrary 	to
	CTA's
	argument, 	however,
	the 	hearing
	officer's
conclusion
	does
	not 	suggest
	that
	the
	cited
	conversations
	were
insufficient
	grounds 	to 	overturn 	the 	election
	because
	they
	were
only 	of
	a
	slightly 	briefer 	duration 	than 	the 	impermissible
conversation 	evidenced
	in
Milchem. 	What
	the 	hearing
	officer
concluded
	was
	that 	"the
	time 	which Herndon 	and
Martin
	had
	to
speak 	to 	voters
	as
	they
	walked
	the 	approximate 	25-foot 	distance
between 	the 	organizations' 	tables
	and
	the District
8
regardless of the content, in order to avoid last minute
electioneering or pressure and unfair advantage from prolonged
conversations with waiting voters. 	This rule was adopted in
the hopes of preserving the sanctity of the final minutes
before an employee casts his or her vote. The NLRB also noted,
however, that the application of this rule "will be informed by
a sense of realism." While the content of the speaker's
remarks will not be of critical concern, any chance, isolated,
innocuous comment or inquiry "will not necessarily void an
election."
CTA argues that the hearing officer misapplied the rule
articulated in Milchem by concluding that because the instant
conversations of Herndon and Martin were less than five minutes
in duration they were de minimus. 	There is no rational basis,
CTA argues, for the distinction between the prohibited
five-minute conversation in Milchem and the hearing officer's
conclusion in the instant case.
Contrary to CTA's argument, however, the hearing officer's
conclusion does not suggest that the cited conversations were
insufficient grounds to overturn the election because they were
only of a slightly briefer duration than the impermissible
conversation evidenced in Milchem. What the hearing officer
concluded was that "the time which Herndon and Martin had to
speak to voters as they walked the approximate 25-foot distance
between the organizations' tables and the District

administrative
	offices
	was
	extremely
	short 	in
	duration"
	.•
and,
	as
	a
	result,
	"any
conversations
	which
	occurred
	between
Herndon,
	Martin
	and
	voters
	would,
	by
	necessity,
	have
	to
	be
	so
brief
	as
	to
	be
	de
	mi
nimus."
As
	the 	hearing
	officer 	set
	forth 	in
	his
	findings
	of
	fact,
the
	parties
	agreed
	at
	the
	pre-election
	conference
	that
	the
no-campaigning
	area
	was
	designated
	as
	the
	25
	feet
	between
	the
organization 	tables
	and
	the
	board
	room
	where
	the
	balloting
	took
pl ace.
	Moreover,
	the
	par
ti
es
	al
so 	agreed
	that
	persons
stationed 	at
	the
	or gani za
ti
on
	tables
	or
	otherwise
	present
outside
	of 	the
	administrative
	offices
	could
	use
	the
	restroom
facilities
	inside
	the 	building.
	No
	factual
	evidence
demonstrates
	that
	the 	content
	of
	the 	conversations 	with
	voters
was
	in 	fact
	designed
	to
	persuade
	or 	influence 	voters.
	Nor
	is
there
	any
	evidence 	as
	existed 	in
Star
	Expansion
	(1968)
	170
	NLRB
[67
	LRRM
	1400],
	relied
	on 	by
CTA,
	that
Herndon
	or Martin
	were
asked
	to
	cease
	their
	conversations
	or
	to
	remove
	themselves
	from
the
	no-campaigning
	area. 	In
	total,
	then, 	the
	sum
	of
	the
objectionable
	conduct
	raised
	by
	these 	objections
	rests 	solely
on
	the
	fact 	that
	employees, 	sane 	of
	whom
	were
	voters,
	were
escorted
	and
	verbally
	addressed 	while
Herndon 	and Mar
tin
	walked
the
	25
	feet
	from
	the 	organization 	tables 	to 	the
	board 	room.
Based 	on
	this
	evidence 	alone,
	we
	are 	not 	persuaded
	that 	the
hea 	ng
	of 	cer 	erred 	in
	concluding
	that
	the 	conduct 	involved
chance 	and 	innocuous 	encounters.
	We
	therefore 	find 	that 	the
9
administrative offices was extremely short in duration" .
and, as a result, "any conversations which occurred between
Herndon, Martin and voters would, by necessity, have to be so
brief as to be de minimus."
As the hearing officer set forth in his findings of fact,
the parties agreed at the pre-election conference that the
no-campaigning area was designated as the 25 feet between the
organization tables and the board room where the balloting took
place. Moreover, the parties also agreed that persons
stationed at the organization tables or otherwise present
outside of the administrative offices could use the restroom
facilities inside the building. No factual evidence
demonstrates that the content of the conversations with voters
was in fact designed to persuade or influence voters. Nor is
there any evidence as existed in Star Expansion (1968) 170 NLRB
[67 LRRM 1400] , relied on by CTA, that Herndon or Martin were
asked to cease their conversations or to remove themselves from
the no-campaigning area. In total, then, the sum of the
objectionable conduct raised by these objections rests solely
on the fact that employees, some of whom were voters, were
escorted and verbally addressed while Herndon and Martin walked
the 25 feet from the organization tables to the board room.
Based on this evidence alone, we are not persuaded that the
hearing officer erred in concluding that the conduct involved
chance and innocuous encounters. We therefore find that the

strict
	rule
	of
Milchem
	was
	not misapplied
	and,
	in
	any
	event,
that
	these 	objections
	do
	not
	rise
	to 	the
	type 	of
	serious
irregularity
meriting 	disruption
	of
	the
	election
	results.
Finally, 	in
	its
	amendment
	to 	the 	objections
	to
	the
election,
	CTA
	asserts 	that
	the
	election
	order
	directed
	by
	the
Board
	in Jefferson
	School
	District
	(3/7/80)
	PERS
	Order
No.
	Ad-82
	was
	improper 	and
	states 	that
	"it
must
	be 	assumed
	that
any 	abandonment
	of
	the
	certified
	representative
	by
	unit
	members
is
	a
	direct
	consequence
	of
	the
	refusal
	to
	bargain 	For
this
	reason, 	ordering 	the
	election 	in
	this
	matter
	was
completely
	improper 	and
	the
	election 	results
	must
	be
	set
aside."
	(Request
	for
	Leave
	to
	Amend.
	Emphasis
	supplied.)
	This
objection
	was
	not 	included
	in
	CTA's
	original
	submission
	and
	as
a
	result
	of
	AFT' s
	assertion 	that
	it
	would 	be
	prejudiced
	by
	such
amendment,
	the 	hearing
	officer,
	on
	the
	first
	day
	of
	hearing,
refused 	to 	permit
	CTA
	to
	introduce 	evidence
	on
	that 	issue.
Thereafter,
	CTA
	filed
	the
	written 	request, 	excerpted 	above,
	and
at 	the
	second 	day
	of
	hearing,
	referring
	to
	that 	written
request, 	asserted:
...
	the 	basis 	for 	the 	request,as 	set
forth 	in
	the 	written
	document
	is,essentially,
	to
	amend
	the 	objections
	to
formally 	include
	an
objection 	to
	thiselection
	based
	upon
	the 	refusal
	to 	bargain
by
	the Jefferson
School
	District
	and
	that
that
	so
	severely 	tainted 	the 	bargaining
relationship 	that
	it
	inevitably
	had 	an
effect
	on
	the 	election
	and
	the 	exercise 	of
the 	employees' 	choice 	of 	exclusive
10
strict rule of Milchem was not misapplied and, in any event,
that these objections do not rise to the type of serious
irregularity meriting disruption of the election results.
Finally, in its amendment to the objections to the
election, CTA asserts that the election order directed by the
Board in Jefferson School District (3/7/80) PERB Order
No. Ad-82 was improper and states that "it must be assumed that
any abandonment of the certified representative by unit members
is a direct consequence of the refusal to bargain . . 	For
this reason, ordering the election in this matter was
completely improper and the election results must be set
aside." (Request for Leave to Amend. Emphasis supplied.) This
objection was not included in CTA's original submission and as
a result of AFT's assertion that it would be prejudiced by such
amendment, the hearing officer, on the first day of hearing,
refused to permit CTA to introduce evidence on that issue.
Thereafter, CTA filed the written request, excerpted above, and
at the second day of hearing, referring to that written
request, asserted:
. the basis for the request,as set
forth in the written document is,
essentially, to amend the objections to
formally include an objection to this
election based upon the refusal to bargain
by the Jefferson School District and that
that so severely tainted the bargaining
relationship that it inevitably had an
effect on the election and the exercise of
the employees' choice of exclusive
10

representative. 	(T 	2 Vol. 	p. 	2, 	lines 	1-7;
em ph as is 	sup pl i ed • )
In 	its 	exceptions, 	CTA 	asserts 	that 	the 	hearing 	officer
only 	addressed 	the 	issue 	of 	whether 	the 	election should 	have
been 	conducted 	as 	directed 	by 	the 	administrative 	appeal 	and
failed 	to make 	an 	independent 	evaluation 	of 	the 	impact 	on 	the
election 	results 	of 	the District's 	refusal 	to 	bargain.
After 	a 	careful 	review 	of 	the 	record, 	we 	conclude 	that 	the
hearing 	officer 	correctly 	assessed 	the 	nature 	of 	CTA's 	third
objection. 	When CTA 	first 	raised 	the 	issue 	of 	the District's
refusal 	to 	bargain 	in 	connection with 	the 	instant 	case, 	it
argued 	that 	the 	issue 	was 	a 	legal 	one 	rather 	than 	a 	factual
dispute 	and 	repeatedly 	advised 	the 	hearing 	officer 	that 	what 	it
wished 	to 	pursue 	was 	whether 	it 	was 	appropriate 	to 	order 	the
election 	in 	the 	first 	place. 	In 	its 	written 	objections 	as
cited 	above, 	CTA 	urges 	that 	"it must 	be 	assumed" 	that 	the
District's 	refusal 	to 	bargain 	directly caused 	employees 	to
abandon CTA 	in favor 	of 	AFT's 	representation. 	And, 	when 	at 	the
hearing 	it 	paraphrased 	its 	written 	amendment 	to 	the 	election
objections, 	CTA 	again 	asserted 	that 	the District's 	conduct
11 inevitably" 	had 	an 	effect 	on 	the 	election. 	Thus, 	contrary 	to
the 	arguments 	advanced 	in 	the 	exceptions 	under 	review, 	our
reading 	of 	the 	record 	convinces 	us 	that 	CTA, 	through 	this
exception, 	hoped 	to 	urge 	the 	Board 	that, 	as 	a matter 	of 	law,
the 	decertification 	election 	should 	not 	have 	proceeded 	in 	the
11
representative. (T 2 Vol. p. 2, lines 1-7;
emphasis supplied.)
In its exceptions, CTA asserts that the hearing officer
only addressed the issue of whether the election should have
been conducted as directed by the administrative appeal and
failed to make an independent evaluation of the impact on the
election results of the District's refusal to bargain.
After a careful review of the record, we conclude that the
hearing officer correctly assessed the nature of CTA's third
objection. When CTA first raised the issue of the District's
refusal to bargain in connection with the instant case, it
argued that the issue was a legal one rather than a factual
dispute and repeatedly advised the hearing officer that what it
wished to pursue was whether it was appropriate to order the
election in the first place. In its written objections as
cited above, CTA urges that "it must be assumed" that the
District's refusal to bargain directly caused employees to
abandon CTA in favor of AFT's representation. And, when at the
hearing it paraphrased its written amendment to the election
objections, CTA again asserted that the District's conduct
"inevitably" had an effect on the election. Thus, contrary to
the arguments advanced in the exceptions under review, our
reading of the record convinces us that CTA, through this
exception, hoped to urge the Board that, as a matter of law,
the decertification election should not have proceeded in the
11

face
	of
	the
	District's
	refusal
	to 	bargain.
	CTA
	did
	not 	advance
any
	arguments
	not
	previously
	addressed
	and
	rejected
	by
	this
Board
	in
Administrative
	Appeal 	Ad-82,
	supr~.4 	In 	dismissing
this
	objection,
	we
	remain
	unpersuaded
	that
	the
	District's
refusal
	to
	bargain
would 	have
	inevitably 	affected
	the
	results
of
	the
	decertification 	election.
Finally,
	we
	are
	in
	agreement
	with
CTA's
	contention
	that
whether
	the
District's
	refusal
	to
	bargain
	did,
	in fact,
jeopardize
	its
	chances
	in
	the
	election
	was
	not 	determined
	or
addressed
	by
	the
	Board's 	prior 	ruling.
	However,
	we
	find
	no
basis
	in
	the
	instant
	record
	from 	which
	to
	conclude
	that
	such
objection
	was
	timely
	raised
	either
	in
	the
	original objections
or
	the
	amendments
	thereto.
	To
	the 	contrary,
	in
	its
	written
amendment
	to 	the
	election objections
	and
	in
	its
	verbal
representations,
	the
	thrust
	of
	CTA's
	argument
	is
	that
	unlawful
interference
must
	be 	assumed 	from
	the
	fact 	that
	the
	District
refused 	to 	bargain.
	We
	therefore
	find
	that, 	until
	submission
of
	the 	exceptions 	to 	the 	hearing
	officer's
	decision,
	CTA's
objection
	was
	framed
	in
	terms 	of 	presumed
	rather
	than 	actual
impact. 	Moreover, 	even
	if
	we
	were
	to 	accept 	the
characterization
	of
	CTA' s
	objection
	as
	proffered 	in
	its
exceptions,
	CTA
	introduced 	only
	one 	document
	as 	evidence
	in
4Member Tovar 	did 	not 	participate 	in 	the
PERS
	DecisionNo. 	Ad-82.
12
face of the District's refusal to bargain. CTA did not advance
any arguments not previously addressed and rejected by this
Board in Administrative Appeal Ad-82, supra. 4 In dismissing
this objection, we remain unpersuaded that the District's
refusal to bargain would have inevitably affected the results
of the decertification election.
Finally, we are in agreement with CTA's contention that
whether the District's refusal to bargain did, in fact,
jeopardize its chances in the election was not determined or
addressed by the Board's prior ruling. However, we find no
basis in the instant record from which to conclude that such
objection was timely raised either in the original objections
or the amendments thereto. To the contrary, in its written
amendment to the election objections and in its verbal
representations, the thrust of CTA's argument is that unlawful
interference must be assumed from the fact that the District
refused to bargain. We therefore find that, until submission
of the exceptions to the hearing officer's decision, CTA's
objection was framed in terms of presumed rather than actual
impact. Moreover, even if we were to accept the
characterization of CTA's objection as proffered in its
exceptions, CTA introduced only one document as evidence in
4Member Tovar did not participate in the PERS Decision
No. Ad-82.
12

support
	of
	this
	claim.
	Based 	on
	that
	evidence
	alone,
	which
a~~onstrated 	only
	that 	past
	bargaining
	had
	been 	an
	issue
	in 	the
election
	campaign,
	we
	are
	unable 	to
	conclude
	that
	the
	election
results
	should	
be	
overturned.
ORDER	ORDER
Based
	on
	the 	foregoing,
	we
	direct 	that
	the
	results
	of
	the
decertification
	election
	be
	certified
	and
	that
	the
	Jefferson
Federation
	of
	Teachers,
	Local 	3267,
	AFT/AFL-CIO, 	be
	certified
as
	the 	exclusive 	representative
	of
	the
	District's
	certificated
employees.
	The
	objections 	raised
	by
CTA
	are 	hereby
DISMISSED.
By: Barbara D. Moore , Member 	Irene Tovar , Member
Chairperson Gluck, dissenting:
'By:-	
··Barbara
·-n.
-
Moore,
	M-ernber
	Irene Tovar,
	Member
Chairperson
	Gluck,
	dissenting:
13
My
	opposition 	to 	proceeding 	with
	the
	decertification
election 	prior 	to
	this
	Board's 	determination 	of 	the 	blocking
unfair 	labor
	practice
	charge
	was
	set 	forth 	at
	some
	length
	in
	my
dissent
	in
	PERB
	Decision
	No. 	Ad-82. 	Nothing 	has
	transpired
since
	which
	either
	causes
	me
	to 	believe 	that
	my
	dissent
	was
inappropriate
	or
	that
	its
	basis
	had 	been 	removed 	by
	the
	date
that 	the 	election
	was
	held. 	Therefore,
	I
	find
	it
	unnecessary
support of this claim. Based on that evidence alone, which
demonstrated only that past bargaining had been an issue in the
election campaign, we are unable to conclude that the election
results should be overturned.
Based on the foregoing, we direct that the results of the
decertification election be certified and that the Jefferson
Federation of Teachers, Local 3267, AFT/AFL-CIO, be certified
as the exclusive representative of the District's certificated
employees . The objections raised by CTA are hereby DISMISSED.
My opposition to proceeding with the decertification
election prior to this Board's determination of the blocking
unfair labor practice charge was set forth at some length in my
dissent in PERB Decision No. Ad-82. Nothing has transpired
since which either causes me to believe that my dissent was
inappropriate or that its basis had been removed by the date
that the election was held. Therefore, I find it unnecessary
13

to
	reach
	the
	matter 	of
	CTA's
	claim 	of
	election
	misconduct 	by
certain
	PERB
	agents.
14
Gluck,
	Chairpers6n
to reach the matter of CTA's claim of election misconduct by
certain PERB agents.
Harry Gluck, Chairperson
14

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF THE
	STATE
	OF
	CALIFORNIA
JEFFERSON
	ELEMENTARY
	SCHOOL
DISTRICT,
Employer,
and
JEFFERSON
	FEDERATION
	OF
TEACHERS,	
LOCAL
	3267,
	AFT/AFL-CIO,
Employee
	Organization,
and
JEFFERSON
	CLASSROOM 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Employee
	Organization.
Representation
Case
	Nos.	
SF-D-41
SF-D-12
PROPOSED
	DECISION
(7/22/80)
}
}
)
)
)
)
)
)
)
)
'J
)
)
)
)
)
)
)
)
Appearances:	
Stewart
	Weinberg,
	Attorney
	(Van
	Bourg, 	Weinberg,
Roger 	and
	Allen)
	for
	Jefferson
	Federation 	of
	Teachers;
	Kirsten
L.
	Zerger, 	Attorney
	(Department
	of
	Legal
	Services, 	California
Teachers 	Association) 	for
	Jefferson
	Classroom
	Teachers
Association,
	CTA/NEA.
Before
	Kenneth 	A.
	Perea,
	Hearing
	Officer.
PROCEDURAL
	HISTORY
PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
JEFFERSON ELEMENTARY SCHOOL
DISTRICT
Employer , Representation
Case Nos. SF-D-41
and SF-D-12
JEFFERSON FEDERATION OF
TEACHERS, LOCAL 3267, AFT/AFL-CIO, PROPOSED DECISION
(7/22/80)
Employee Organization,
and
JEFFERSON CLASSROOM TEACHERS
ASSOCIATION, CTA/NEA,
Employee Organization.
Appearances: Stewart Weinberg, Attorney (Van Bourg, Weinberg,
Roger and Allen) for Jefferson Federation of Teachers; Kirsten
L. Zerger, Attorney (Department of Legal Services, California
Teachers Association) for Jefferson Classroom Teachers
Association, CTA/NEA.
Before Kenneth A. Perea, Hearing Officer.
PROCEDURAL HISTORY
On 	May
	15,
	1980
	the 	Jefferson
	Classroom Teachers
Association,
	CTA/NEA
	(hereafter
	Association) 	timely
	filed
objections 	to
	conduct
	of 	the
	election
	between
	itself	
and
	the
Jefferson 	Federation 	of	
Teachers, 	Local 	3267,
	AFT/AFL-CIO
(hereafter
	Local 	3267) 	for 	exclusive 	representation 	of
certificated	
employees
	of
	the	
Jefferson	
Elementary 	School
District
	(hereafter 	District)	
held
	on
	May	
6,
	1980
	pursuant 	to
Public
	Employment
	Relations
	Board
	(hereafter
	PERB)
	Regulation
32738.
On May 15, 1980 the Jefferson Classroom Teachers
Association, CTA/NEA (hereafter Association) timely filed
objections to conduct of the election between itself and the
Jefferson Federation of Teachers, Local 3267, AFT/AFL-CIO
(hereafter Local 3267) for exclusive representation of
certificated employees of the Jefferson Elementary School
District (hereafter District) held on May 6, 1980 pursuant to
Public Employment Relations Board (hereafter PERB) Regulation
32738.

After
	being 	duly
	noticed,
	the 	matter
	came
	on
	regularly
	for
hearing 	before 	the
	above-named
	hearing
	officer
	of 	the
	PERB
	on
June
	2
	and
	20,
	1980
	at
	Daly
	City
	and 	San
	Francisco,
	California,
at
	which
	time
	all
	parties
	were
	afforded
	full
	opportunity 	to
present
	evidence
	and
	argue
	their
	respective
	positions.
On
	June
	6,
	1980
	the 	Association
	filed
	a
	Request
	for
	Leave
to
	Amend
	Objections 	to
	Conduct
	of 	Election
	which
	was
	granted
	at
the 	hearing
	on
	June
	20, 	1980.
Local
	3267
	and
	the
	Association 	subsequently
	filed
simultaneous
	post-hearing
	briefs
	in 	the 	matter
	post-dated 	to
the
	attention
	of 	the
	above-named
	hearing
	officer
	on
	or 	before
July 	7,
	1980.
THE OBJECTIONS	
THE
	OBJECTIONS
The
	Association 	in
	its
	Objections
	To 	The
	Conduct
	Of 	The
Election,
	as
	amended,
	contends
	that
	the
	decertification
election
	held 	in 	the
	District
	on
	May
	6,
	1980
	must 	be
	set
	aside
on
	three
	grounds:
(1) 	A
PERB
	agent 	disseminated 	misinformation
	on
	crucial
election 	issues,
	knowing
	it
	could
	affect
	the
	election
	but
failing
	to 	take
	any
	affirmative 	steps 	to
	avoid
	detrimental
impact;
(2)
	PERB
	did 	not
	fie
	d
	li
conditions 	to 	ensure
	that 	voters 	could 	exercise
	a
	free 	choice
in 	is
	t
2
After being duly noticed, the matter came on regularly for
hearing before the above-named hearing officer of the PERB on
June 2 and 20, 1980 at Daly City and San Francisco, California,
at which time all parties were afforded full opportunity to
present evidence and argue their respective positions.
On June 6, 1980 the Association filed a Request for Leave
to Amend Objections to Conduct of Election which was granted at
the hearing on June 20, 1980.
Local 3267 and the Association subsequently filed
simultaneous post-hearing briefs in the matter post-dated to
the attention of the above-named hearing officer on or before
July 7, 1980.
The Association in its Objections To The Conduct Of The
Election, as amended, contends that the decertification
election held in the District on May 6, 1980 must be set aside
on three grounds:
(1) A PERB agent disseminated misinformation on crucial
election issues, knowing it could affect the election but
failing to take any affirmative steps to avoid detrimental
impact;
(2) PERB did not sufficiently safeguard the polling
conditions to ensure that voters could exercise a free choice
in this election; and
2

(3) 	The
	election
	was
	improperly
	ordered
	prior
	to 	the
resolution
	and
	remedying
	of
	pending
	unfair
	practice
	charges
against
	the
	District
	for
	refusing 	to
	bargain
	with
	the
Association.
FINDINGS
	OF
	FACT
Background
FINDINGS OF FACT
Background
The
	Association
	was
	certified
	the
	exclusive
	representative
of
	a
	unit 	of
	certificated
	employees
	of 	the
	District
	on
June
	21, 	1976.
A
valid
	decertification 	petition
	was
	filed
	by
	Local
	3267
	on
September 	23, 	1977.
	On
	October
	18,
	1977
	the
	San
	Francisco
regional
	director 	directed 	that
	an
	election
	be
	held
	on
November
	17,
	1977.
	The
	decision 	to
	direct
	an
	election
	was
appealed
	by
	the 	Association
	and 	on 	November
	10,
	1977
	the
executive
	director
	of 	the
	PERB
	found
	that 	resolution 	of
	pending
unfair 	practice
	charges 	in 	case
	numbers 	SF-CE-33 	and
	SF-CO-6
might
	significantly
	influence 	the
	outcome
	of 	the
	election
	and
therefore
	ordered
	a
	stay
	of
	all
	further
	proceedings 	in 	the
representation
	cases
	until 	resolution 	of 	the
	pending
	unfair
practice
	proceedings.
	The
	PERB
	itself
	subsequently 	upheld 	the
executive
	director's
	stay
	on 	December
	30,
	1977
	in
	EERB
	Order
No. 	AD-22.
On 	March
	29, 	1979, 	Local
	3267
	again
	filed
	a
	decertification
tit
	in
	District.
	The 	San
	Francisco
	r 	i
	director
pe
	stay 	the
	decertification
	t
	until
3
(3) The election was improperly ordered prior to the
resolution and remedying of pending unfair practice charges
against the District for refusing to bargain with the
Association.
The Association was certified the exclusive representative
of a unit of certificated employees of the District on
June 21, 1976.
A valid decertification petition was filed by Local 3267 on
September 23, 1977. On October 18, 1977 the San Francisco
regional director directed that an election be held on
November 17, 1977. The decision to direct an election was
appealed by the Association and on November 10, 1977 the
executive director of the PERB found that resolution of pending
unfair practice charges in case numbers SF-CE-33 and SF-CO-6
might significantly influence the outcome of the election and
therefore ordered a stay of all further proceedings in the
representation cases until resolution of the pending unfair
practice proceedings. 	The PERB itself subsequently upheld the
executive director's stay on December 30, 1977 in EERB Order
No. AD-22.
On March 29, 1979, Local 3267 again filed a decertification
petition in the District. The San Francisco regional director
perpetuated the stay of the decertification election until the
W

resolution
	of
	the
	above-mentioned
	unfair
	practice
	charges.
Upon
	appeal
	by
	Local
	3267,
	the
	Board
	itself
	held
	that
	PERB's
discretion
	to 	stay
	a
	decertification 	election
	when
	unfair
practice
	charges 	are
	pending
	may
	not
	be
	exercised
	by
	rote.
Accordingly, 	the 	case
	was 	remanded
	to
	the
	San
	Francisco
regional
	director
	to
	conduct
	an
	investigation
	to
	dete~mine
whether
	the
	pending
	unfair
	practice
	charges
	should
	continue
	to
block 	the
	decertification 	election.
	Jefferson
	School
	District
(6/29/79)
	PERB
	Decision
	No. 	AD-66.
Based
	on
	the
	results 	of
	his 	investigation,
	the
	regional
director
	determined
	that
	the
	pending
	unfair
	practice
	charges
should
	no
	longer
	block
	the
	decertification 	election.
The
	Association 	subsequently 	appealed 	the 	determination 	of
the
	San
	Francisco 	regional
	director
	to
	proceed
	to
	a
decertification 	election
	notwithstanding 	the
	pendency
	of
	mutual
refusal 	to 	negotiate 	charges.
On
	March
	7,
	1980, 	the
	PERB
	itself
	sustained 	the
San
	Francisco 	regional
	director's
	determination 	to
	proceed
	to
	a
decertification 	election
	in 	the
	District
	notwithstanding 	the
pendency
	of
	mutual
	refusal 	to
	negotiate 	charges 	holding:
Accordingly,
	we
	believe 	that	
the	
regional
director
	reasonably 	determined
	that,
	absent
other 	evidence	
of
	bad	
faith,
	when	
the
parties
	have
	in
	fact
	reached
	an 	agreement
covering 	the 	items 	enumerated 	supra
	at
footnote	
11	
(including
	some
	of
	the 	disputed
issues 	raised 	in 	the 	unfair 	practicecharges), 	the 	section 	3543.S(c) 	charge 	basedon
	negotiability 	is
	akin 	to
	a
	technical
4
resolution of the above-mentioned unfair practice charges.
Upon appeal by Local 3267, the Board itself held that PERB's
discretion to stay a decertification election when unfair
practice charges are pending may not be exercised by rote.
Accordingly, the case was remanded to the San Francisco
regional director to conduct an investigation to determine
whether the pending unfair practice charges should continue to
block the decertification election. Jefferson School District
(6/29/79) PERB Decision No. AD-66.
Based on the results of his investigation, the regional
director determined that the pending unfair practice charges
should no longer block the decertification election.
The Association subsequently appealed the determination of
the San Francisco regional director to proceed to a
decertification election notwithstanding the pendency of mutual
refusal to negotiate charges.
On March 7, 1980, the PERB itself sustained the
San Francisco regional director's determination to proceed to a
decertification election in the District notwithstanding the
pendency of mutual refusal to negotiate charges holding:
Accordingly, we believe that the regional
director reasonably determined that, absent
other evidence of bad faith, when the
parties have in fact reached an agreement
covering the items enumerated supra at
footnote 11 (including some of the disputed
issues raised in the unfair practice
charges) , the section 3543.5 (c) charge based
on negotiability is akin to a technical

refusal
	to
	bargain
	and
	does
	not 	without
other 	factors
	require
	a
	decertificationelection
	to	
be	
delayed.l
The
	decertification 	election
	was
	accordingly
	held
	on
May
	6,
	1980.
	The
	results
	of
	that 	election
	were
	as 	follows:
Votes
	cast
	for
	Local
	3267,
	AFT/AFL-CIO
	165	
.•...
Votes
	cast
	CTA/NEA
.....••..•...•.
163
5
Votes
	cast
	for
	No
	Representation.
	1	. 	. 	•
	•..
. 	• 	. 	. 	. 	. 	. 	.
. 	. 	. 	. 	. 	. 	• 	. 	. 	. 	.
	•.
..
3
Valid
	Votes
	Counted.
	.329
Challenged
	Ballots.
	0
Valid
	Votes
	Counted
	Plus
	Challenged
	Ballots
	29
A
majority 	of
	the
	valid
	votes
	counted
	plus 	challenged
	ballots
was
	therefore
	cast
	for 	Local
	3267.
Time
	and
	Place
	of
	the
	Election
The
	election
	hours
	on
	May
	6,
	1980
	were 	from
	10:30
	a.m.
	to
1:00
	p.m.
	and 	from
	2:30
	p.m.
	to 	4:00
	p.m.
Balloting
	took
	place 	in 	the
	District's
	board
	room
	located
at
	101 	Lincoln
	Avenue, 	Daly
	City, 	California,
	the
	same 	room
where
	the 	hearing
	was
	held
	on
	June
	2,
	1980.
	There
	is
	a
District
	parking
	lot
	adjacent
	and
	west
	of 	the
	board
	room. 	To
enter
	the 	board
	room 	from
	the 	parking 	area
	one
	may
	use
	the
Lincoln
	Avenue
	sidewalk
	in 	front 	of 	the
	District's 	offices.
From
	the 	sidewalk
	there
	is
	then
	a 	walkway
	leading 	to
	the
	main
entrance 	of 	the
	Distr
	t's
	offices.
	At
	the
	main
	entrance 	of
the
	District's
	ices 	are
	glass
	sins
	of
is
	a
	foyer.
	On
	the 	west
	side 	of 	the 	foyer
	is
	the 	board
	room
1 fferson School District (3/7/80) PERB Order No. AD-82.	
Jefferson
	School
	District
	( 	0) 	PERB
	Order 	No.
	2.
refusal to bargain and does not without
other factors require a decertification
election to be delayed. I
The decertification election was accordingly held on
May 6, 1980. The results of that election were as follows:
Votes cast for Local 3267, AFT/AFL-CIO. 	. 165
Votes cast CTA/NEA. . . 	. 163
Votes cast for No Representation.
Valid Votes Counted . 	. 329
Challenged Ballots. 	. 0
Valid Votes Counted Plus Challenged Ballots 	.329
A majority of the valid votes counted plus challenged ballots
was therefore cast for Local 3267.
Time and Place of the Election
The election hours on May 6, 1980 were from 10:30 a.m. to
1:00 p.m. and from 2:30 p.m. to 4:00 p.m.
Balloting took place in the District's board room located
at 101 Lincoln Avenue, Daly City, California, the same room
where the hearing was held on June 2, 1980. There is a
District parking lot adjacent and west of the board room. 	To
enter the board room from the parking area one may use the
Lincoln Avenue sidewalk in front of the District's offices.
From the sidewalk there is then a walkway leading to the main
entrance of the District's offices. At the main entrance of
the District's offices are double glass doors inside of which
is a foyer. On the west side of the foyer is the board room
Je

where
	balloting
	took
	place,
	and 	on
	the
	east
	side 	of
	the 	foyer
are
	the
	District
	administrative
	offices.
	The
	District
	board
room
	is
	entered
	through
	two
	double
	wooden
	doors
	just
	a 	few
	feet
past
	the
	double
	glass
	door
	entrance.
	On
	the
	east
	side 	of
	the
foyer
	and
	past
	the
	double
	wooden
	doors
	into
	the
	board
	room
	is
	a
long
	corridor
	leading 	to
	the
	District
	administrative
	offices.
Just
	across
	the
	width
	of
	this
	corridor
	are
	restrooms
	and 	a
public
	telephone.
One
	must 	walk
	past
	the
	entrance
	into
	the
	board
	room
	in
order 	to 	get 	to
	either
	the
	men's
	or
	women 1 s
	restroom 	or
	public
telephone.
On
	the 	date 	of 	the
	election
	a
	long
	table
	was
	set
	up
	in
	the
board
	room, 	one 	edge
	of
	which 	was
	approximately 	6-1/2
	feet
	from
the
	double
	wooden
	doors.
	At
	that
	table
	Ms.
	Kaldahl,
Mr.
	Dennis 	Carr
	and 	Ms.
	Anita Martinez
	were
	seated
	with 	Kaldahl
seated
	closest
	to
	the 	doors,
	which 	were
	open,
	during 	the
election.
	Ms.
	Kaldahl
	was
	the
	election
	observer
	on
	behalf 	of
the 	Association,
	Mr.
	Carr
	was
	the
	election
	observer
	on
	behalf
of
	Local
	3267 	and 	Ms.
	Martinez
	was
	the 	Public
	Employment
Relations 	representative
	conducting 	the
	election
	on
	behalf 	of
the	
PERB.
	Also
	in 	the 	board
	room 	was 	a
	polling	
booth
	and 	a
ballot	
box, 	both
	of	
which 	were
	approximately 	16-1/2	
feet	
from
the 	double
	wooden
	doors.
Outside
	and
	in 	front 	of 	the
	board 	room	
the 	Association	
and
Local
	3267 	had	
set	
up	
respective 	tables 	for 	the 	purpose
	of
6
where balloting took place, and on the east side of the foyer
are the District administrative offices. The District board
room is entered through two double wooden doors just a few feet
past the double glass door entrance. On the east side of the
foyer and past the double wooden doors into the board room is a
long corridor leading to the District administrative offices.
Just across the width of this corridor are restrooms and a
public telephone.
One must walk past the entrance into the board room in
order to get to either the men's or women's restroom or public
telephone.
On the date of the election a long table was set up in the
board room, one edge of which was approximately 6-1/2 feet from
the double wooden doors. At that table Ms. Kaldahl,
Mr. Dennis Carr and Ms. Anita Martinez were seated with Kaldahl
seated closest to the doors, which were open, during the
election. Ms. Kaldahl was the election observer on behalf of
the Association, Mr. Carr was the election observer on behalf
of Local 3267 and Ms. Martinez was the Public Employment
Relations representative conducting the election on behalf of
the PERB. Also in the board room was a polling booth and a
ballot box, both of which were approximately 16-1/2 feet from
the double wooden doors.
Outside and in front of the board room the Association and
Local 3267 had set up respective tables for the purpose of
6

checking
	off
	the
	names
	of
	persons
	who
	had
	voted.
	These
organization 	tables
	were
	set
	up
	on
	a
	grassy 	area 	located
approximately
	25
	feet
	from
	the
	entrance
	to
	the
	board
	room.
	At
a
	preelection
	conference
	on
	the
	morning
	of 	the
	election
	and
	by
agreement
	between
	the 	Association
	and
	Local
	3267,
	Ms.
	Martinez
instructed 	representatives
	of 	the
	parties 	that
	there
	would 	be
no
	campaigning
	in 	the 	area
	between
	the
	organization
	tables
	and
the
	board
	room
	where
	balloting
	would
	take
	place.
After 	the
	closing 	of
	the
	polls
	on
	May
	6,
	1980
	at
	4:00 	p.m.
but
	prior
	to
	the
	tally
	of 	the
	ballots
	shortly
	thereafter,
Ms.
	Jean 	Kaldahl,
	on
	behalf 	of 	the 	Association,
	and 	Mr.
	Dennis
Carr,
	on
	behalf 	of
	Local
	3267
	signed
	PERB's
	Certification
	on
Conduct
	of 	Election
	which
	states 	that
	as
	election
	officers
	of
the
	PERB
	and
	authorized 	observers 	they 	observed 	the 	conduct 	of
the
	balloting 	at
	the
	specified
	time
	and
	place
	and
	certify
	that
such
	balloting
	was
	fairly
	conducted,
	that
	all
	eligible
	voters
were
	given
	an
	opportunity 	to
	vote
	their 	ballots
	in
	secret
	and
that
	the
	ballot
	box 	was
	protected 	in
	interest
	of
	a
	fair
	and
secret
	vote.
Election 	Issues
Campaign
	literature	
from	
Local
	3267 	marked 	and
	entered 	as
Association's 	Exhibits 	1,
	2, 	3, 	4, 	5,	
and 	7 	and
	distributed 	to
teachers 	in 	the
	District
	sometime
	before 	the
	election 	establish
that 	the	
subject 	of 	"coalition 	bargaining"
	and 	agency 	shop 	were
among	
the 	issues 	of 	the	
decertification 	election	
campaign.
7
checking off the names of persons who had voted. These
organization tables were set up on a grassy area located
approximately 25 feet from the entrance to the board room. 	At
a preelection conference on the morning of the election and by
agreement between the Association and Local 3267, Ms. Martinez
instructed representatives of the parties that there would be
no campaigning in the area between the organization tables and
the board room where balloting would take place.
After the closing of the polls on May 6, 1980 at 4:00 p.m.
but prior to the tally of the ballots shortly thereafter,
Ms. Jean Kaldahl, on behalf of the Association, and Mr. Dennis
Carr, on behalf of Local 3267 signed PERB's Certification on
Conduct of Election which states that as election officers of
the PERB and authorized observers they observed the conduct of
the balloting at the specified time and place and certify that
such balloting was fairly conducted, that all eligible voters
were given an opportunity to vote their ballots in secret and
that the ballot box was protected in interest of a fair and
secret vote.
Election Issues
Campaign literature from Local 3267 marked and entered as
Association's Exhibits 1, 2, 3, 4, 5, and 7 and distributed to
teachers in the District sometime before the election establish
that the subject of "coalition bargaining" and agency shop were
among the issues of the decertification election campaign.

With
	respect 	to
	coalition
	bargaining,
	Local
	3267
	proposed
	in
its
	literature
	that
	should
	it
	win
	the
	decertification 	election
it
	would
	create
	a
	bargaining
	team
	of 	three
	Local
	3267 	members
combined
	with
	three
	open
	spaces
	which
	it
	hoped
	experienced
Association
	members
	would
	fill.
Additionally,
	campaign
	literature
	from
	Local
	3267
	marked
and
	entered
	as
	Association's 	Exhibits
	6
	and
	8
	and
	distributed
to
	teachers 	in 	the
	District
	sometime
	before 	the
	election
establish 	that
	the
	Association's
	progress
	at
	the 	bargaining
table
	with 	the
	District
	was
	also
	an
	issue
	during 	the
	election
campaign.
Objection
	1	Objection 1
On	
the 	date 	of 	the
	election,
	May
	6,
	1980,
	at
	approximately
10:20
	a.m.
	a
	teacher 	in 	the
	District,
	Ms.
	Patricia
	A.
	Bell,
called
	the
	San
	Francisco
	Regional
	Office 	of 	the
	PERB
	and 	spoke
to
	Ms.
	Jerilyn 	Gelt,
	a
	Public
	Employment
	Relations
representative.
	Ms.
	Bell 	explained 	to
	Ms.
	Gelt
	that	
she	
was 	a
teacher 	in 	the
	District
	and 	had 	been
	hearing
	conflicting
reports
	regarding
	certain 	issues
	in 	the
	decertification
election
	being 	held
	that	
day 	in 	the
	District.
	Ms.
	Bell
informed
	Ms.
	Gelt
	that
	she 	wanted
	to
	determine 	the	
facts
	for
herself	
regarding
	two	
issues--coalition	
bargaining
	and
	agency
shop.
Regarding
	"coalition 	bargaining,"	
Ms.	
Bell 	specifically
asked 	whether 	people	
from 	both 	employee	
organizations 	in	
the
8
With respect to coalition bargaining, Local 3267 proposed in
its literature that should it win the decertification election
it would create a bargaining team of three Local 3267 members
combined with three open spaces which it hoped experienced
Association members would fill.
Additionally, campaign literature from Local 3267 marked
and entered as Association's Exhibits 6 and 8 and distributed
to teachers in the District sometime before the election
establish that the Association's progress at the bargaining
table with the District was also an issue during the election
campaign.
On the date of the election, May 6, 1980, at approximately
10:20 a.m. a teacher in the District, Ms. Patricia A. Bell,
called the San Francisco Regional Office of the PERB and spoke
to Ms. Jerilyn Gelt, a Public Employment Relations
representative. Ms. Bell explained to Ms. Gelt that she was a
teacher in the District and had been hearing conflicting
reports regarding certain issues in the decertification
election being held that day in the District. Ms. Bell
informed Ms. Gelt that she wanted to determine the facts for
herself regarding two issues--coalition bargaining and agency
shop.
Regarding "coalition bargaining, " Ms. Bell specifically
asked whether people from both employee organizations in the
8

District
	could
	sit
	down
	at
	the
	bargaining
	table
	as
	a
	bargaining
team
	with
	the
	District.
	Ms.
	Gelt 	then
	asked
	Ms.
	Bell
	if
	she
was
	referring
	to 	organizations
	prior
	to
	the
	election
	or
subsequent
	to
	the
	election.
	Ms.
	Bell
	responded,
	"after
	the
election."
	Gelt
	responded
	that
	as
	far
	as
	she
	knew
	people
	from
both
	organizations
	could
	sit
	down
	at
	the
	table
	as
	a
	bargaining
team
	unless
	something
	in 	the
	respective 	organizations'
	by-laws
prevented
	them 	from
	doing
	so.
Regarding
	agency
	shop,
	Ms.
	Bell
	then
	asked
	Ms.
	Gelt:
	if
	an
agency 	shop
	clause
	was
	included 	in
	a
	collective
	bargaining
agreement, 	did
	there
	have
	to
	be
	a
	separate
	election
	among
	the
people 	voting
	on
	the
	contract
	in 	order 	for 	the
	agency
	shop
clause 	to
	be
	effective.
	Ms.
	Gelt
	responded
	"no,"
	that
	the
	only
party
	who may
	require
	a
	separate
	election
	on 	an
	agency 	shop
clause
	was
	the
	District
	although 	they
	were
	not
	required
	to
	do
so.
Ms.
	Bell
	then
	asked
	Ms.
	Gelt
	if
	a
	group
	of
	employees 	could
ask
	for
	an
	election
	regarding
	"that"
	agency 	shop
	clause.
	Gelt
again
	responded 	"no,
11
	only 	the
	employer
	may
	ask
	for
	such
	an
election.
Ms.
	Bell
	testified 	that	
in 	asking 	the 	question 	of
	Ms.
	Gelt
regarding 	agency 	shop 	she	
was
	asking	
whether	
or 	not
	there	
had
to
	be 	a
	separate 	vote 	regarding
	an 	agency 	shop
	clause
	at
	the
time 	the 	contract
	between 	the 	exclusive 	representative
	and 	the
employer 	was	
voted
	on 	and
	prior 	to 	implementation
	of 	the
9
District could sit down at the bargaining table as a bargaining
team with the District. Ms. Gelt then asked Ms. Bell if she
was referring to organizations prior to the election or
subsequent to the election. Ms. Bell responded, "after the
election." Gelt responded that as far as she knew people from
both organizations could sit down at the table as a bargaining
team unless something in the respective organizations' by-laws
prevented them from doing so.
Regarding agency shop, Ms. Bell then asked Ms. Gelt: if an
agency shop clause was included in a collective bargaining
agreement, did there have to be a separate election among the
people voting on the contract in order for the agency shop
clause to be effective. Ms. Gelt responded "no," that the only
party who may require a separate election on an agency shop
clause was the District although they were not required to do
so.
Ms. Bell then asked Ms. Gelt if a group of employees could
ask for an election regarding "that" agency shop clause. 	Gelt
again responded "no, " only the employer may ask for such an
election.
Ms. Bell testified that in asking the question of Ms. Gelt
regarding agency shop she was asking whether or not there had
to be a separate vote regarding an agency shop clause at the
time the contract between the exclusive representative and the
employer was voted on and prior to implementation of the
9

clause.
	Ms.
	Gelt,
	appearing
	under 	subpoena
	and
	by
	order
	of
	the
PERB
	itself,
	testified
	that
	the 	tone
	of
	the 	question
	regarding
agency 	shop
	indicated 	to
	her
	that
	Ms.
	Bell
	was
	asking
	about
	an
organizational 	security
	clause
	that
	was
	not 	then 	in
	effect
	as
opposed
	to
	the
	right
	of
	employees 	once
	an
	organizational
security
	clause
	is
	in 	place
	and
	the
	employees 	wish
	to 	rescind
that
	organizational 	security 	clause.
The
	entire
	conversation
	between
	Ms.
	Bell
	and 	Ms.
	Gelt
lasted
	no 	more
	than
	five
	minutes.
Immediately
	after
	speaking 	with
	Ms.
	Gelt,
	Ms.
	Bell
	spoke
	to
Mr.
	Meneken,
	a
	teacher
	at
	Ms.
	Bell's
	school. 	Bell 	told
	Meneken
that
	pursuant
	to
	the 	information
	she
	had
	received
	from
Ms.
	Gelt, 	there
	could
	be
	a
	coalition
	bargaining
	team 	composed
of
	members 	from
	both
	organizations,
	that
	only 	the
	District
could
	require
	a
	separate
	vote
	on 	an
	agency 	shop
	clause
	when
	the
contract
	was
	voted
	upon
	for
	ratification,
	and
	that
	Bell
therefore
	concluded
	that
	both
	organizations
	were
	lying 	but
	that
one
	side
	had
	given 	her
	more
	false
	information 	than 	the
	other.
Ms.
	Bell 	did 	not
	identify 	that 	organization. 	Bell 	also
	spoke
with
	Ms.
	Winifred 	Noble,
	a
	teacher
	at
	Ms.
	Bell's
	school,
between
	12:10
	and
	12:30
	p.m. 	on	
the 	date 	of	
the	
election	
and
just 	after	
Noble
	had	
returned	
from	
voting. 	Bell 	told
	Noble 	the
same
	thing
	that
	she
	had
	told
	Meneken. 	Noble
	did 	not 	speak 	with
anyone 	during 	the 	day 	about 	the 	substance 	of 	her 	conversation
with 	Bell.
10
clause. Ms. Gelt, appearing under subpoena and by order of the
PERB itself, testified that the tone of the question regarding
agency shop indicated to her that Ms. Bell was asking about an
organizational security clause that was not then in effect as
opposed to the right of employees once an organizational
security clause is in place and the employees wish to rescind
that organizational security clause.
The entire conversation between Ms. Bell and Ms. Gelt
lasted no more than five minutes.
Immediately after speaking with Ms. Gelt, Ms. Bell spoke to
Mr. Meneken, a teacher at Ms. Bell's school. Bell told Meneken
that pursuant to the information she had received from
Ms. Gelt, there could be a coalition bargaining team composed
of members from both organizations, that only the District
could require a separate vote on an agency shop clause when the
contract was voted upon for ratification, and that Bell
therefore concluded that both organizations were lying but that
one side had given her more false information than the other.
Ms. Bell did not identify that organization. Bell also spoke
with Ms. Winifred Noble, a teacher at Ms. Bell's school,
between 12:10 and 12:30 p.m. on the date of the election and
just after Noble had returned from voting. Bell told Noble the
same thing that she had told Meneken. Noble did not speak with
anyone during the day about the substance of her conversation
with Bell.
10

On
	the
	date 	of 	the
	election,
	Bell 	also
	spoke
	with
Ms.
	Barbara
	Lewis,
	a
	teacher
	at 	Bell's
	school,
	at
	approximately
3:20
	p.m.
	and
	before
	Lewis 	had
	voted. 	Bell
	told
	Lewis
	that
	she
had
	called
	PERB
	that
	morning
	and 	had
	been
	told
	that
	only
	the
District
	could
	require
	a
	"vote"
	on
	agency 	shop
	and
	not
	a
	group
of 	teachers.
	Bell 	also 	told
	Lewis
	that
	PERB
	said
	that
	the
	two
groups 	could
	bargain
	together.
	Lewis
	testified,
	however,
	that
nothing
	Bell 	said 	to
	her
	influenced
	or
	changed
	her
	voting.
Lewis
	then
	spoke
	to Virginia
	Opperman, 	a
	teacher 	in
	the
District,
	during 	the
	time
	that
	the
	polls
	remained 	open,
	about
Lewis'
	conversation
	with
	Bell.
	Opperman
	has 	been
	on
	the
Association's
	bargaining
	team
	since
	January 	or 	February
	of
	1979
until
	the
	present.
Q~jection
	2
(1)
	Jane
	Bennett's
	Alleged 	Statement
11
Objection 2
Jane Bennett's Alleged Statement
The
	evidence
	is
	in
	conflict
	regarding 	the
	Association's
allegation 	that
	a member
	of
	Local 	3267,
	Ms.
	Jane 	Bennett, 	said
in
	a
	loud 	voice
	upon
	entering 	the
	board
	room,
	"Here's
	five
	more
votes 	for
	AFT 11
	in 	the 	presence 	of
	at 	least
	five 	other 	teachers
on
	May
	6,
	1980.
	Ms.
	Jean 	Kaldahl, 	the 	Association's 	election
observer,
	testified 	that
	Ms.
	Bennett
	made
	the 	statement
although 	she
	was
	unsure	
of	
the 	time
	of 	the 	occurrence.
Mr.
	Dennis
	Carr, 	election
	observer 	for 	Local
	3267
	testified
that	
he
	did 	not 	hear
	Ms.
	Bennett	
make 	such 	a
	statement.
	Ms.
Anita 	Martinez, 	Public
	Employment
	Relations 	Representative 	for
On the date of the election, Bell also spoke with
Ms. Barbara Lewis, a teacher at Bell's school, at approximately
p.m. and before Lewis had voted. Bell told Lewis that she
had called PERB that morning and had been told that only the
District could require a "vote" on agency shop and not a group
of teachers. Bell also told Lewis that PERB said that the two
3:20
groups could bargain together. Lewis testified, however, that
nothing Bell said to her influenced or changed her voting.
Lewis then spoke to Virginia Opperman, a teacher in the
District, during the time that the polls remained open, about
Lewis' conversation with Bell. Opperman has been on the
Association's bargaining team since January or February of 1979
until the present.
(1)
The evidence is in conflict regarding the Association's
allegation that a member of Local 3267, Ms. Jane Bennett, said
in a loud voice upon entering the board room, "Here's five more
votes for AFT" in the presence of at least five other teachers
on May 6, 1980. Ms. Jean Kaldahl, the Association's election
observer, testified that Ms. Bennett made the statement
although she was unsure of the time of the occurrence.
Mr. Dennis Carr, election observer for Local 3267 testified
that he did not hear Ms. Bennett make such a statement. Ms.
Anita Martinez, Public Employment Relations Representative for
11

the
	PERB
	appearing
	under 	subpoena
	and
	by
	order 	of
	the
	PERB
2
itself
	,
	also
	testified
	that
	she 	does
	not
	recall
Ms.
	Bennett
	making
	such
	a
	statement.
Ms.
	Kaldahl
	testified
	that
	Bennett
	spoke
	in
	a
	tone 	loud
enough
	for
	everyone
	in 	the
	room
	to
	hear.
	However,
	both 	Carr
and
	Martinez
	testified
	that
	they 	did 	not 	hear 	Bennett
	make
	the
alleged
	comment. 	The
	hearing
	officer
	thus 	concludes
	that
	if
Bennett
	made
	the 	statement
	at
	all,
	it
	was
	in
	a
	tone 	too
	soft
for
	Carr
	and
	Martinez
	to
	hear
	even 	though
	both 	Carr
	and
Martinez
	were
	seated
	right
	next
	to
	Kaldahl. 	Since
	the
Association
	did 	not
	call
	any
	of
	the
	other
	persons 	in
	the 	voting
room
	at
	the
	time
	the 	alleged
	comment 	was 	made
	to
	testify,
	the
hearing
	officer 	is
	unable
	to
	conclude
	that
	anyone,
	other
	than
Ms.
	Kaldahl, 	the
	Association's 	election
	observer
	and
	president
of 	the 	Association,
	heard
	the 	alleged 	statement
	by
	Bennett.
(2)
	Escorting 	of 	Voters
(a) 	James 	Herndon
The
	testimony
	is
	again 	in
	conflict
	regarding 	the
Association's 	allegation 	that
	James 	Herndon,
	President 	of
	Local
3267,
	on
	several 	occasions 	escorted
	members
	of 	the 	bargaining
unit 	into
	the
	po
	ing
	room:
2	
2Jefferson
	Elementary 	School
	District 	(6/19/80)
	PERB
Decision
	No.
	135.
12
the PERB appearing under subpoena and by order of the PERB
itself, also testified that she does not recall
Ms. Bennett making such a statement.
Ms. Kaldahl testified that Bennett spoke in a tone loud
enough for everyone in the room to hear. However, both Carr
and Martinez testified that they did not hear Bennett make the
alleged comment. The hearing officer thus concludes that if
Bennett made the statement at all, it was in a tone too soft
for Carr and Martinez to hear even though both Carr and
Martinez were seated right next to Kaldahl. Since the
Association did not call any of the other persons in the voting
room at the time the alleged comment was made to testify, the
hearing officer is unable to conclude that anyone, other than
Ms. Kaldahl, the Association's election observer and president
of the Association, heard the alleged statement by Bennett.
(2) Escorting of Voters
(a) James Herndon
The testimony is again in conflict regarding the
Association's allegation that James Herndon, President of Local
3267, on several occasions escorted members of the bargaining
unit into the polling room:
Jefferson Elementary School District (6/19/80) PERB
Decision No. 135.
12

[1]
	Deborah
	Ford,
	an 	employee
	of
	the
	California
Teachers
	Association
	(hereafter
	CTA},
	testified
	that
	on
	one
occasion,
	while
	walking
	to
	the
	ladies'
	room
	inside
	the
	District
offices,
	she
	saw
	Herndon
	standing
	three 	to
	four
	feet
	from 	and
facing
	the 	entrance
	to
	the
	board
	room.
[2]
	Phil
	Schneider,
	an
	employee
	of
	CTA
	and
	present
	at
the
	polls
	between 	11:30 	a.m.
	and
	12:40
	p.m.
	and
	also
	at
	3:30
p.m.,
	testified
	that
	he 	saw
	Herndon
	enter
	the
	District
	offices
three
	times.
	On
	one
	of
	those 	occasions 	in 	the
	morning,
	he 	saw
Herndon 	walk
	into
	the
	District 	offices
	with
	his
	arms
	about
	two
young
	women.
	In
	the
	afternoon,
	Schneider
	saw
	Herndon
	enter
	the
District
	offices
	twice
	escorting
	people.
	Before 	being
	escorted
into
	the
	building 	the 	people
	checked
	in
	at
	the
	Local
	3267's
table
	to
	be
	checked
	off
	the
	list
	of
	eligible
	voters.
	Herndon
escorted
	either
	one
	or
	two
	people
	into
	the 	building
	on
	each
	of
the 	occasions 	in 	the 	afternoon.
	Schneider 	heard
	conversations
occurring 	as
	Herndon
	escorted
	people
	into
	the 	building 	in
	the
afternoon.
	Schneider
	also 	entered 	the 	building
	on 	one
	occasion
to
	use 	the
	men's 	restroom.
	While
	in 	the
	men's 	restroom,
Herndon 	came
	in 	also 	to
	use
	the
	facilities.
	Schneider
	did
	not
see
	Herndon
	escort	
anyone	
into
	the
	actual	
board 	room.
[3]
	Loren
	Gammon, 	an 	employee
	of
	CTA
	and	
present 	at
the
	polls
	from
	10:30
	a.m.
	to 	12:00
	a.m. 	and 	from 	2:30 	p.m. 	to
4:00 	p.m., 	also	
testified	
that
	he 	saw Herndon
	enter 	the
District 	offices
	4-6 	times.
	Gammon	
testified	
that
	Herndon 	had
13
[1] Deborah Ford, an employee of the California
Teachers Association (hereafter CTA) , testified that on one
occasion, while walking to the ladies' room inside the District
offices, she saw Herndon standing three to four feet from and
facing the entrance to the board room.
Phil Schneider, an employee of CTA and present at
the polls between 11:30 a.m. and 12:40 p.m. and also at 3:30
[2]
p.m., testified that he saw Herndon enter the District offices
three times. On one of those occasions in the morning, he saw
Herndon walk into the District offices with his arms about two
young women. In the afternoon, Schneider saw Herndon enter the
District offices twice escorting people. Before being escorted
into the building the people checked in at the Local 3267's
table to be checked off the list of eligible voters. Herndon
escorted either one or two people into the building on each of
the occasions in the afternoon. Schneider heard conversations
occurring as Herndon escorted people into the building in the
afternoon. 	Schneider also entered the building on one occasion
to use the men's restroom. While in the men's restroom,
Herndon came in also to use the facilities. Schneider did not
see Herndon escort anyone into the actual board room.
Loren Gammon, an employee of CTA and present at
the polls from 10:30 a.m. to 12:00 a.m. and from 2:30 p.m. to
[3]
4:00 p.m., also testified that he saw Herndon enter the
District offices 4-6 times. Gammon testified that Herndon had
13

his
	arms
	around
	the 	people
	that
	he
	escorted
	in
	and
	that
	he
spoke
	to
	the
	people 	as
	he
	escorted
	them.
[4]
	On
	the
	other
	hand,
	Carol
	Burgoa,
	who 	was
	present
at
	Local
	3267 1 s
	table
	during 	the
	hours
	when
	the
	polls
	were
open,
	testified
	that
	she
	saw
	Herndon
	enter
	the
	District 	office
building
	once
	in 	the
	morning
	and
	once
	in 	the
	afternoon 	but 	did
not 	see
	anyone
	with
	Herndon
	as
	he
	entered
	the
	building.
[5]
	Dolly 	Keefe,
	who 	was
	also 	present
	at
	Local
	3267's
table
	during 	the 	hours
	when
	the
	polls
	were
	open,
	also
	testified
that
	she
	saw
	Herndon
	enter
	the
	building
	two
	times
	alone.
[6]
	Lastly,
	James 	Herndon
	testified
	that
	he
	and
Gammon
	agreed, 	before 	the
	election, 	that
	i.t
	was
	permissible 	for
the
	parties
	to
	use
	the 	restrooms
	inside
	the
	District 	offices
since
	they
	were
	the 	only 	ones
	available
	and
	it
	was
	going
	to
	be
a
	long 	day.
	Herndon
	further
	testified
	that
	he
	entered 	the
building 	three
	times 	during 	the
	day
	to
	use
	the
	men's
	restroom
but
	that	
on 	each	
of	
those 	occasions
	he
	did 	not
	enter 	the
building
	with
	anyone.
	Herndon
	admitted,
	however,
	that
	on
several
	occasions
	he 	walked
	to 	the 	parking
	lot
	and
	visited
	with
people 	as 	they
	arrived
	and
	escorted
	them
	into
	the 	area 	but
stopped	
when 	he
	reached 	Local	
3267's 	table.
The	
testimony	
of
	Burgoa 	and	
Keefe 	must 	be deemed
inaccurate.
	In
	addition 	to 	the 	above, 	Burgoa
	testified 	that
the	
list	
of 	voters
	from 	which 	she	
was 	working 	was 	on 	a
clipboard 	enabling
	her
	to 	hold
	it
	up 	and
	observe 	those,
14
his arms around the people that he escorted in and that he
spoke to the people as he escorted them.
[4] On the other hand, Carol Burgoa, who was present
at Local 3267's table during the hours when the polls were
open, testified that she saw Herndon enter the District office
building once in the morning and once in the afternoon but did
not see anyone with Herndon as he entered the building.
[5] Dolly Keefe, who was also present at Local 3267's
table during the hours when the polls were open, also testified
that she saw Herndon enter the building two times alone.
[6] Lastly, James Herndon testified that he and
Gammon agreed, before the election, that it was permissible for
the parties to use the restrooms inside the District offices
since they were the only ones available and it was going to be
a long day. Herndon further testified that he entered the
building three times during the day to use the men's restroom
but that on each of those occasions he did not enter the
building with anyone. Herndon admitted, however, that on
several occasions he walked to the parking lot and visited with
people as they arrived and escorted them into the area but
stopped when he reached Local 3267's table.
The testimony of Burgoa and Keefe must be deemed
inaccurate. In addition to the above, Burgoa testified that
the list of voters from which she was working was on a
clipboard enabling her to hold it up and observe those,
14

including
	Herndon,
	entering
	and
	exiting
	the
	District
administrative
	offices.
	Keefe,
	however,
	also
	working
	at
	Local
3267's
	table
	with
	Burgoa,
	testified
	that
	she
	and
	Burgoa 	were
checking
	names
	off
	the
	same
	list
	but
	that
	the
	list
	was
	sitting
on
	the
	table
	and 	had
	to
	be
	held
	down
	with 	her
	hands
	due
	to
	the
wind.
	Furthermore, 	both
	Burgoa 	and
	Keefe
	testified
	that
	they
saw
	Herndon
	enter
	the
	District
	offices
	alone
	on
	only
	two
occasions.
	However, 	Herndon
	himself 	admitted
	entering 	the
District
	administrative
	offices
	on
	three
	occasions. 	Therefore,
the 	hearing
	officer 	credits
	the 	testimony
	of
	Herndon
	to 	the
extent
	he
	entered 	the
	District
	administrative
	offices
	on
	three
occasions
	and
	finds
	the 	testimony
	of
	Keefe 	and 	Burgoa
	to
	be
inaccurate.
	Based
	upon
	the
	preponderance
	of 	the 	testimony,
including
	that
	of 	Schneider,
	Gammon
	and
	Ford,
	all
	of
	whom
testified
	that
	they 	observed
	Herndon
	escort
	persons
	into
	the
District
	administrative
	offices, 	conflicting
	testimony
	is
resolved 	in 	favor
	of 	concluding
	that
	Herndon
	escorted
	two 	young
women
	into
	the
	District
	administrative
	offices
	in 	the
	morning
of
	May
	6,
	1980
	with
	his
	arms
	around
	them
	(it
	was
	not,
	however,
clearly 	established 	that
	those
	women 	were
	voters 	in 	the
election)
	and
	that
	Herndon
	escorted 	voters 	into	
the	
District
administrative 	offices
	on 	two
	occasions 	in	
the	
afternoon	
and
conversations 	occurred
	between 	Herndon 	and
	the 	escorted 	voters
at	
that 	time.	
Herndon 1 s
	testimony 	to	
the	
contrary 	is
	not
credited.
15
including Herndon, entering and exiting the District
administrative offices. Keefe, however, also working at Local
3267's table with Burgoa, testified that she and Burgoa were
checking names off the same list but that the list was sitting
on the table and had to be held down with her hands due to the
wind. Furthermore, both Burgoa and Keefe testified that they
saw Herndon enter the District offices alone on only two
occasions. 	However, Herndon himself admitted entering the
District administrative offices on three occasions. Therefore,
the hearing officer credits the testimony of Herndon to the
extent he entered the District administrative offices on three
occasions and finds the testimony of Keefe and Burgoa to be
inaccurate. Based upon the preponderante of the testimony,
including that of Schneider, Gammon and Ford, all of whom
testified that they observed Herndon escort persons into the
District administrative offices, conflicting testimony is
resolved in favor of concluding that Herndon escorted two young
women into the District administrative offices in the morning
of May 6, 1980 with his arms around them (it was not, however ,
clearly established that those women were voters in the
election) and that Herndon escorted voters into the District
administrative offices on two occasions in the afternoon and
conversations occurred between Herndon and the escorted voters
at that time. Herndon's testimony to the contrary is not
credited.
15

(b) 	Thomas
	Martin
The
	testimony
	is
	also
	in
	conflict
	regarding 	the
Association's 	allegation
	that
	Thomas
	Martin
	escorted
Gloria
	Alhambra
	into
	the
	District
	administrative
	offices:
[1] 	Mike
	Ford,
	an
	employee
	of
	CTA
	and
	present
	at
	the
polls 	at
	approximately 	1:00
	p.m. 	and
	3:00
	p.m.,
	testified
	that
at
	approximately
	3:00
	p.m.
	he 	saw
	Martin
	escort
Gloria
	Alhambra,
	a
	building
	representative
	for
	Local
	3267
	at
Columbus
	School,
	into
	the
	District
	administrative
	offices.
Ford 	heard 	Martin 	speaking
	to
	Alhambra
	as
	he
	escorted 	her.
[2]
	Martin,
	on
	the 	other
	hand,
	testified
	that
	he
entered
	the 	building
	two
	times
	to
	use
	the
	men's
	room,
	once
	at
approximately
	11:00
	a.m.
	and
	again
	later
	in
	the 	day.
	Alhambra
arrived 	to
	vote
	at
	3:00
	p.m.
	When
	she
	arrived,
	Martin
	met
	her
out
	on
	the 	sidewalk
	for
	a 	moment
	to
	say
	"hello."
	Martin,
however,
	denies 	escorting
	Alhambra 	beyond
	Local
	3267's
	table.
The
	testimony
	of
	Martin
	and 	Ford
	is
	hopelessly 	in
conflict.
	Ford
	testified
	that
	he
	observed Martin
	escort
Gloria
	Alhambra
	into
	the
	District
	administrative 	offices 	at
approximately 	3:00 	p.m.
	Martin 	confirms
	that
	Alhambra
	arrived
at	
3:00
	p.m.,
	that
	he 	met
	her
	on
	the 	sidewalk	
and	
said 	"hello"
when 	she	
arrived 	at
	the	
District 	offices	
but 	denies 	escorting
her
	beyond 	Local 	3267's
	table.
The
	hearing
	officer
	concludes 	that 	to 	believe 	that 	Martin
walked 	over 	to	
where 	Alhambra	
exited 	the 	car 	in	
which
	she
16
(b) Thomas Martin
The testimony is also in conflict regarding the
Association's allegation that Thomas Martin escorted
Gloria Alhambra into the District administrative offices:
[]] Mike Ford, an employee of CTA and present at the
polls at approximately 1:00 p.m. and 3:00 p.m., testified that
at approximately 3:00 p.m. he saw Martin escort
Gloria Alhambra, a building representative for Local 3267 at
Columbus School, into the District administrative offices.
Ford heard Martin speaking to Alhambra as he escorted her.
Martin, on the other hand, testified that he
entered the building two times to use the men's room, once at
[2]
approximately 11:00 a.m. and again later in the day. Alhambra
arrived to vote at 3:00 p.m. When she arrived, Martin met her
out on the sidewalk for a moment to say "hello. " Martin,
however, denies escorting Alhambra beyond Local 3267's table.
The testimony of Martin and Ford is hopelessly in
conflict. Ford testified that he observed Martin escort
Gloria Alhambra into the District administrative offices at
approximately 3:00 p.m. Martin confirms that Alhambra arrived
at 3:00 p.m., that he met her on the sidewalk and said "hello"
when she arrived at the District offices but denies escorting
her beyond Local 3267's table.
The hearing officer concludes that to believe that Martin
walked over to where Alhambra exited the car in which she
16

arrived,
	greeted
	her
	and
	walked
	with
	her
	to
	Local
	3267's
	table
but
	stopped
	at
	that
	point
	and
	proceeded
	no
	further
	with
Alhambra
	strains
	credulity
	beyond
	its
	reasonable
	limits.
	The
hearing
	officer
	believes
	it
	more
	probable
	that
	Martin 	continued
to
	walk
	with
	Alhambra
	into
	the
	District
	administrative
	offices
after
	greeting
	her
	when
	she
	arrived
	as
	testified
	by
	Ford.
	The
hearing
	officer 	credits
	the 	testimony
	of
	Ford
	and
	accordingly
concludes
	that
	Martin
	escorted
	Alhambra
	into
	the
	District
administrative
	offices
	and
	spoke
	with 	her 	while 	doing
	so.
Objection
	3
No
	additional
	evidence
	regarding 	Objection
	3 	was
	presented
other
	than 	the
	fact,
	as
	found
	above,
	that
	unfair
	practice
charges
	stemming 	from
	negotiations
	between
	the
	Association
	and
the
	District
	were
	pending
	for
	a
	considerable 	period 	of
	time
	and
that
	the
	Association's 	progress
	at
	the 	bargaining
	table
	with
the
	District
	was 	an
	issue
	during 	the
	election
	campaign.
	Those
findings 	of
	fact
	under
	the 	sub-caption
	"Background"
	are
therefore
	incorporated 	herein
	by
	reference	
as	
if
	fully 	stated.
Additionally,
	those 	findings 	of
	fact
	under
	sub-caption
"Election 	Issues" 	are 	incorporated 	herein	
by	
reference 	as
	if
fully 	stated.
ISSUE
17
ISSUE
Whether
	the
	decertification 	election
	held 	in 	the
	District
between 	the	
Association,	
Local	
3267 	and 	no
	representation
	on
May	
6,
	1980 	must 	be	
set 	aside 	pursuant 	to
	PERB
	Regulation
	30076
because:
arrived, greeted her and walked with her to Local 3267's table
but stopped at that point and proceeded no further with
Alhambra strains credulity beyond its reasonable limits. 	The
hearing officer believes it more probable that Martin continued
to walk with Alhambra into the District administrative offices
after greeting her when she arrived as testified by Ford. The
hearing officer credits the testimony of Ford and accordingly
concludes that Martin escorted Alhambra into the District
administrative offices and spoke with her while doing so.
Objection 3
No additional evidence regarding Objection 3 was presented
other than the fact, as found above, that unfair practice
charges stemming from negotiations between the Association and
the District were pending for a considerable period of time and
that the Association's progress at the bargaining table with
the District was an issue during the election campaign. Those
findings of fact under the sub-caption "Background" are
therefore incorporated herein by reference as if fully stated.
Additionally, those findings of fact under sub-caption
"Election Issues" are incorporated herein by reference as if
fully stated.
Whether the decertification election held in the District
between the Association, Local 3267 and no representation on
May 6, 1980 must be set aside pursuant to PERB Regulation 30076
because :
17

(1) 	A
PERB
	agent
	disseminated 	misinformation
	on
	crucial
election
	issues;
(2)
	PERB
	did 	not
	sufficiently
	safeguard 	the
	polling
	area
conditions 	to
	ensure
	that
	voters
	could
	exercise
	a
	free
	choice
in
	the
	election;
	or
(3) 	The
	election
	was
	improperly 	ordered
	prior
	to
	the
resolution
	and
	remedying
	of
	prior
	unfair
	practice
	charges
against
	the
	District.
CONCLUSIONS
	OF
	LAW	CONCLUSIONS OF LAW
Objection
	l
As
	found
	above,
	Gelt
	answered
	Bell's
	questions 	regarding
"coalition
	bargaining"
	and
	agency
	shop.
	It
	is
	concluded
	that
Objection
	1
	must 	be
	overruled.
The
	testimony 	regarding
	Gelt's
	response
	to
	Bell's
	question
regarding
	whether
	people
	from
	both
	employee
	organizations
	in
the
	District
	could
	sit
	down
	at
	the 	bargaining
	table
	as
	a
bargaining
	team
	with
	the
	District
	shows
	that
	Gelt
	answered	
that
as 	far
	as 	she
	knew
	people
	from
	both
	organizations
	could
	sit
down
	at
	the 	bargaining
	table
	as
	a
	bargaining
	team
	unless
something
	in 	the 	respective 	organization's
	by-laws 	prevented
them 	from
	doing
	so.
	Gelt's
	response
	was
	therefore	
proper
	and
in	
accordance 	with 	precedent 	developed 	pursuant 	to	
the 	National
Labor
	Relations
	Act
	(hereafter
	NLRA).
In 	addressing 	the 	issue 	of	
whether 	a
	union's 	inclusion 	of
members
	of
	other 	unions
	on
	its
	bargaining 	committee
	justifies
18
(1) A PERB agent disseminated misinformation on crucial
election issues;
(2) PERB did not sufficiently safeguard the polling area
conditions to ensure that voters could exercise a free choice
in the election; or
(3) The election was improperly ordered prior to the
resolution and remedying of prior unfair practice charges
against the District.
Objection 1
As found above, Gelt answered Bell's questions regarding
"coalition bargaining" and agency shop. It is concluded that
Objection 1 must be overruled.
The testimony regarding Gelt's response to Bell's question
regarding whether people from both employee organizations in
the District could sit down at the bargaining table as a
bargaining team with the District shows that Gelt answered that
as far as she knew people from both organizations could sit
down at the bargaining table as a bargaining team unless
something in the respective organization's by-laws prevented
them from doing so. Gelt's response was therefore proper and
in accordance with precedent developed pursuant to the National
Labor Relations Act (hereafter NLRA) .
In addressing the issue of whether a union's inclusion of
members of other unions on its bargaining committee justifies
18

an
	employer's
	refusal
	to 	bargain,
	the
	Second
	Circuit
	declared:
[The]
	right
	of
	employees
	and
	the
corresponding
	right
	of
	employers
	.•.
	to
choose
	whomever
	they
	wish
	to 	represent
	them
in
	formal
	labor
	negotiations,
	is
	fundamental
to
	the
	statutory
	scheme.
	[71
	LRRM
	at
	2421]
While
	noting
	that
	the
	freedom
	to
	select
	representatives
	was
	not
absolute,
	the
	court
	held
	that
	for
	an
	employer
	to 	prevail
	in
	its
objections 	to
	the 	presence 	of
	outside
	members
	of 	the
	union
negotiating
	committee,
	the
	employer 	must
	sustain
	the
	burden
	of
proving
	a
	"'clear
	and
	present'
	danger
	to
	the
	collective
bargaining 	process."
	Finding
	no
	such
	clear
	and
	present
	danger,
the
	Second
	Circuit
	held
	that
	General
	Electric
	Company 	was
	not
lawfully
	entitled
	to 	refuse 	to 	bargain
	with
	a
	multi-union
committee 	so 	long	
as	
the
	committee
	sought
	to 	bargain
	solely
	on
behalf 	of 	the
	employees
	who 	would 	be
	covered
	under
	the
	contract
being
	negotiated.
	General
	Electric
	Co.
	v.
	NLRB
	(2d
	Cir.
	1969)
412
	F.2d
	512 	[71
	LRRM
	2418.]
Regarding 	agency
	shop, 	the 	evidence
	shows
	that
	Bell
	asked
Gelt
	if
	there
	had
	to
	be
	a
	separate 	election
	among
	the 	people
voting
	on 	a
	contract
	in 	order 	for 	the
	agency 	shop
	clause 	to
	be
effective.
	It
	was
	clearly 	established 	that
	Bell
	was
	referring
to 	the
	time
	the
	iti
	contract
	ratification
	and
	not
	a
subsequent
	rescission.
	t's
	response
	that
	only 	the
	employer
may
	require
	a
	separate 	election
	on 	agency 	shop 	ause
	was
entirely 	ia
	in
	ew
	the 	question 	asked.
19
an employer's refusal to bargain, the Second Circuit declared:
[The] right of employees and the
corresponding right of employers . 	to
choose whomever they wish to represent them
in formal labor negotiations, is fundamental
to the statutory scheme. 	[71 LRRM at 2421]
While noting that the freedom to select representatives was not
absolute, the court held that for an employer to prevail in its
objections to the presence of outside members of the union
negotiating committee, the employer must sustain the burden of
proving a "'clear and present' danger to the collective
bargaining process." Finding no such clear and present danger,
the Second Circuit held that General Electric Company was not
lawfully entitled to refuse to bargain with a multi-union
committee so long as the committee sought to bargain solely on
behalf of the employees who would be covered under the contract
being negotiated. 	General Electric Co. v. NLRB (2d Cir. 1969)
412 F. 2d 512 [71 LRRM 2418. ]
Regarding agency shop, the evidence shows that Bell asked
Gelt if there had to be a separate election among the people
voting on a contract in order for the agency shop clause to be
effective. It was clearly established that Bell was referring
to the time of the initial contract ratification and not a
subsequent rescission. Gelt's response that only the employer
may require a separate election on agency shop clause was
therefore entirely appropriate in view of the question asked.
19

It
	is
	thus
	clear 	that
	Gelt's
	answers
	to
	Bell's
	questions
regarding
	"coalition
	bargaining"
	and
	agency 	shop
	were
	correct
responses
	to
	the
	narrow
	questions
	asked.
	Any
	misinformation 	or
possible
	confusion
	which
	may
	have
	resulted
	from
	Bell's
subsequent
	conversations
	with
	other
	members
	of 	the
	bargaining
unit
	regarding 	the 	information 	given
	by
	Gelt 	are
	entirely
	the
responsibility
	of
	Bell.
It
	is
	therefore
	concluded
	that
	because
	Gelt's
	responses
were
	accurate,
	Objection
	1
	is
	overruled.
Objection
	2
Resolution 	of
	conflicting
	testimony 	regarding 	the
allegation 	that
	Jane 	Bennett
	said
	upon
	entering
	the
	board
	room
"Here's 	five
	more
	votes
	for
	AFT"
	has
	led 	the 	hearing
	officer
	to
conclude
	that
	no
	one,
	other
	than 	Kaldahl, 	heard 	Jane 	Bennett
state
	"Here's 	five
	more
	votes 	for
	AFT."
In
	Tamalpais
	Union 	High
	School
	District
	and
	Tamalpais
Federation 	of 	Teachers,
	CFT/AFT/AFL-CIO and
	Tamalpais
	District
Teachers
	Association,
	CTA/NEA
	(7/20/76)
	EERB
	Decision
	No.
	1,
the
	Board
	itself
	held:
In 	adopting
	Rule 	30076,
	[now
	Regulation
32738]
	it
	was
	the
	intent	
of	
the
	EERB
	[nowPERBJ
	to 	overturn 	representation-election
results	
only	
when
	conduct	
affecting
	the
results 	of	
the
	election
	amounts
	to
	an
unlawful
	practice
	under
	Article
	4
of
	the
Rodda
	Act 	or
	constitutes 	"serious
irregularity
	in 	the 	conduct
	of
	the
election.
11
[Footnote 	omitted.
J
20
It is thus clear that Gelt's answers to Bell's questions
regarding "coalition bargaining" and agency shop were correct
responses to the narrow questions asked. Any misinformation or
possible confusion which may have resulted from Bell's
subsequent conversations with other members of the bargaining
unit regarding the information given by Gelt are entirely the
responsibility of Bell.
It is therefore concluded that because Gelt's responses
were accurate, Objection 1 is overruled.
Objection 2
Resolution of conflicting testimony regarding the
allegation that Jane Bennett said upon entering the board room
"Here's five more votes for AFT" has led the hearing officer to
conclude that no one, other than Kaldahl, heard Jane Bennett
state "Here's five more votes for AFT."
In Tamalpais Union High School District and Tamalpais
Federation of Teachers, CFT/AFT/AFL-CIO and Tamalpais District
Teachers Association, CTA/NEA (7/20/76) EERB Decision No. 1,
the Board itself held:
In adopting Rule 30076, [now Regulation
32738] it was the intent of the EERB [now
PERB] to overturn representation-election
results only when conduct affecting the
results of the election amounts to an
unlawful practice under Article 4 of the
Rodda Act or constitutes "serious
irregularity in the conduct of the
election. " [Footnote omitted. ]
20

It
	is
	concluded
	by
	the 	hearing
	officer,
	based
	upon
	an
objective
	test,
	that
	the
	alleged
	statement
	by
	Jane
	Bennett,
heard
	by
	only
	Jean
	Kaldahl,
	president
	and
	election
	observer 	for
the 	Association,
	was
	not 	"conduct
	affecting
	the
	results
	of
	the
election"
	pursuant
	to
	PERB
	Regulation
	32738 	and
	is
	therefore
accordingly 	overruled.
Regarding
	the
	allegation
	of
	escorting 	of
	voters, 	resolution
of
	conflicting
	testimony
	has
	led
	the 	hearing
	officer
	to
conclude
	that
	James 	Herndon
	escorted
	two 	young 	women
	into
	the
District
	administrative
	offices
	on
	the
	morning
	of
	May
	6,
	1980
with
	his
	arms
	around
	them 	and
	escorted
	either
	one
	or
	two
	voters
on	
two
	different
	occasions
	in 	the 	afternoon.
Regarding
	the
	allegation 	that
	Thomas
	Martin
	escorted
Gloria
	Alhambra
	into
	the
	District
	administrative
	offices,
resolution
	of
	conflicting
	testimony 	has
	led 	the 	hearing
	officer
to
	conclude
	that
	Martin 	did
	escort
	Gloria
	Alhambra
	into
	the
District
	administrative
	offices
	at
	approximately 	3:00 	p.m.
	on
May
	6,
	1980.
The
	National
	Labor
	Relations
	Board
	(hereafter
	NLRB),
	in
considering
	allegations
	of
	electioneering,
	declared
	its	
policy
in
	Milchem,
	Inc.
	(1968) 	170	
NLRB
	362 	[67
	LRRM
	1395]	
by	
stating
that	
elections	
would 	be	
overturned	
where	
representatives 	of
	any
party 	to 	the
	election
	engaged
	in 	"prolonged" 	conversations 	with
voters 	waiting 	to 	cast 	their 	ballots,
	regardless 	of
	the	
content
of
	the 	remarks 	exchanged. 	(170
	NLRB
	at
	362.)
21
It is concluded by the hearing officer, based upon an
objective test, that the alleged statement by Jane Bennett,
heard by only Jean Kaldahl, president and election observer for
the Association, was not "conduct affecting the results of the
election" pursuant to PERB Regulation 32738 and is therefore
accordingly overruled.
Regarding the allegation of escorting of voters, resolution
of conflicting testimony has led the hearing officer to
conclude that James Herndon escorted two young women into the
District administrative offices on the morning of May 6, 1980
with his arms around them and escorted either one or two voters
on two different occasions in the afternoon.
Regarding the allegation that Thomas Martin escorted
Gloria Alhambra into the District administrative offices,
resolution of conflicting testimony has led the hearing officer
to conclude that Martin did escort Gloria Alhambra into the
District administrative offices at approximately 3:00 p.m. on
May 6, 1980.
The National Labor Relations Board (hereafter NLRB) , in
considering allegations of electioneering, declared its policy
in Milchem, Inc. (1968) 170 NLRB 362 [67 LRRM 1395] by stating
that elections would be overturned where representatives of any
party to the election engaged in "prolonged" conversations with
voters waiting to cast their ballots, regardless of the content
of the remarks exchanged. 	(170 NLRB at 362.)
21

The
	NLRB
	reasoned
	that
	the
	potential
	for
	distraction,
	last
minute
	electioneering,
	and
	unfair
	advantage,
	justified
	a
"strict
	rule" 	against
	such
	conduct, 	without
	requiring
	an
examination
	into
	the 	substance 	or
	effect
	of
	the
	conversations.
Recognizing
	the 	impossible
	task 	of 	eliminating
	all
conversations
	in 	the
	polling 	area,
	however,
	the
	NLRB
	stated
that
	its
	rule 	in
Milchem 	would
	not
	necessarily
	void
	elections
upon
	the 	occurrence
	of
	"any
	chance,
	isolated,
	or
	innocuous
comment."
	Id.
	at
	363.
	In
	Milchem,
	therefore,
	the
	NLRB
	set
aside
	an
	election
	where
	a
	union
	representative
	had
	engaged
	in
an
	estimated 	five-minute
	conversation.
	It
	is
	therefore
	clear
that
	a
	five-minute 	conversation
	is
	not
	de 	minimus 	and
	requires
a
	second
	election.
The
	PERB
	itself
	has
	not 	addressed 	the 	issue 	of
	similar
alleged
	irregularities
	in 	the 	conduct
	of 	the
	election
	and
	has
accordingly 	not 	adopted
	the
	strict
	rule
	of
	Milchem. 	However,
the 	hearing
	officer
	concludes
	that
	even
	the
	application 	of 	the
strict
	rule 	of
	Milchem would
	not
	require 	the 	overturning 	of 	the
election
	in
	this
	case.
As
	found 	above,	
by	
agreement 	between
	the
	parties 	at
	the
pre-election 	conference, 	Martinez 	declared	
that	
there	
would 	be
no	
electioneering
	between	
the 	respective 	organization's 	tables
and
	the 	board
	room 	which
	constituted
	a
	distance 	of
approximately
	25
	feet.
	The
	evidence
	shows	
that	
Herndon 	and
Martin 	both	
escorted 	voters 	as 	they	
walked
	into 	the	
District
22
The NLRB reasoned that the potential for distraction, last
minute electioneering, and unfair advantage, justified a
"strict rule" against such conduct, without requiring an
examination into the substance or effect of the conversations.
Recognizing the impossible task of eliminating all
conversations in the polling area, however, the NLRB stated
that its rule in Milchem would not necessarily void elections
upon the occurrence of "any chance, isolated, or innocuous
comment." 	Id. at 363. In Milchem, therefore, the NLRB set
aside an election where a union representative had engaged in
an estimated five-minute conversation. It is therefore clear
that a five-minute conversation is not de minimus and requires
a second election.
The PERB itself has not addressed the issue of similar
alleged irregularities in the conduct of the election and has
accordingly not adopted the strict rule of Milchem. However,
the hearing officer concludes that even the application of the
strict rule of Milchem would not require the overturning of the
election in this case.
As found above, by agreement between the parties at the
pre-election conference, Martinez declared that there would be
no electioneering between the respective organization's tables
and the board room which constituted a distance of
approximately 25 feet. The evidence shows that Herndon and
Martin both escorted voters as they walked into the District
22

administrative
	offices.
	There
	was, 	however,
	no
	evidence
	to
show
	that
	either
	Herndon
	or 	Martin
	escorted 	voters
	beyond
	the
double
	glass
	doors
	of
	the
	District
	administrative
	offices
	and
into
	the
	board
	room
	where
	polling
	was
	actually
	being
conducted.
	It
	is
	therefore
	concluded
	that
	the
	time
	which
Herndon
	and
	Martin
	had
	to
	speak
	to 	voters
	as 	they
	walked
	the
approximate
	25-foot
	distance
	between
	the
	organizations' 	tables
and
	the
	District
	administrative
	offices
	was
	extremely
	short
	in
duration
	and 	would
	not
	fall
	within
	the
	prohibited
	"prolonged"
conversation 	rule
	of
	Milchem.
	Any
	conversations
	which
	occurred
between 	Herndon,
	Martin
	and
	voters
	would,
	by
	necessity,
	have
	to
be
	so
	brief
	as
	to	
be 	de 	minimus. 	Such
	a
	de 	minimus
	approach
	is
in
	accordance 	with
	the
	NLRB
	which
	has 	held
	that
	where
conversations 	are
	over
	a 	much
	shorter 	duration
	than 	the
	one
condemned
	in
	Milchem,
	Milchem's
	per 	se
	rule
	is
	inapplicable
	and
it
	is
	necessary 	to
	make 	a
	case-by-case 	inquiry
	into
	the 	nature
and
	effect
	of 	the 	conversations,
	which
	inquiry
	must 	be
	tempered
by 	a
	sense 	of 	realism.
	NLRB
	v. 	Bostik 	Division
	USM
	Corp. 	(6th
Cir.
	1975) 	517
	F.2d
	971 	[89
	LRRM
	2585]. 	Accordingly, 	Objection
2
	is
	overruled.
Objection	
3
The	
propriety 	of 	conducting
	this 	election
	pending 	the
resolution 	of 	unfair 	practice
	charges
	stemming 	from
negotiations
	between 	the	
Association	
and
	the	
District
	was
addressed 	by 	the
	PERB
	itself
	in 	Jefferson
	School
	District
23
administrative offices. There was, however, no evidence to
show that either Herndon or Martin escorted voters beyond the
double glass doors of the District administrative offices and
into the board room where polling was actually being
conducted. It is therefore concluded that the time which
Herndon and Martin had to speak to voters as they walked the
approximate 25-foot distance between the organizations' tables
and the District administrative offices was extremely short in
duration and would not fall within the prohibited "prolonged"
conversation rule of Milchem. Any conversations which occurred
between Herndon, Martin and voters would, by necessity, have to
be so brief as to be de minimus. Such a de minimus approach is
in accordance with the NLRB which has held that where
conversations are over a much shorter duration than the one
condemned in Milchem, Milchem's per se rule is inapplicable and
it is necessary to make a case-by-case inquiry into the nature
and effect of the conversations, which inquiry must be tempered
by a sense of realism. NLRB v. Bostik Division USM Corp. (6th
Cir. 1975) 517 F. 2d 971 [89 LRRM 2585]. Accordingly, Objection
2 is overruled.
Objection 3
The propriety of conducting this election pending the
resolution of unfair practice charges stemming from
negotiations between the Association and the District was
addressed by the PERB itself in Jefferson School District
23

(3/7/80)
	PERB
	Order
	No. 	AD-82.
	There
	the
	Board
	concluded,
	in
sustaining
	the
	San
	Francisco
	Regional
	Director's
	determination
to
	proceed
	to
	an
	election
	in
	this
	case 	notwithstanding 	the
pendency
	of
	mutual
	refusal
	to 	negotiate
	charges:
Accordingly,
	we
	believe
	that
	the
	regional
director
	reasonably
	determined
	that,
	absent
other
	evidence
	of
	bad
	faith,
	when
	the
parties
	have
	in
	fact
	reached
	an
	agreement
covering 	the
	items 	enumerated
	supra
	at
footnote	
11	
(including
	some
	of 	the 	disputed
issues 	raised
	in 	the
	unfair
	practicecharges),
	the
	section
	3543.S(c) 	charge
	based
on
	negotiability
	is
	akin
	to
	a
	technical
refusal
	to
	bargain
	and
	does
	not 	without
other
	factors 	require
	a
	decertificationelection
	to
	be
	delayed.
The
	PERB
	itself,
	therefore,
	has
	addressed 	the 	issue
	of
whether
	the
	election
	in 	the
	District
	should
	have 	been
	held
pending
	resolution 	of 	unfair
	practice
	charges.
	The
	hearing
officer
	believes
	that
	he
	is
	bound 	by
	that
	decision
	as
	res
judicata,
	and
	accordingly, 	Objection
	3
	is
	overruled.
PROPOSED
	ORDER	PROPOSED ORDER
Based 	upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
law
	and
	the
	entire
	record 	of
	this
	matter, 	the
	objections 	to
	the
conduct
	of 	the
	election 	filed	
by	
the 	Jefferson
	Classroom
Teachers
	Association,
	CTA/NEA
	are
	hereby
	overruled.
Pursuant
	to
	California Administrative
	Code,
	title
	8, 	part
III,
	section
	32305,
	this
	Proposed 	Decision
	and
	Order
	shall
become
	final
	on 	August
	11,
	1980
	unless
	a
	party
	files
	a
	timely
statement 	of 	exceptions.
	See	
California Administrative	
Code,
24
(3/7/80) PERB Order No. AD-82. There the Board concluded, in
sustaining the San Francisco Regional Director's determination
to proceed to an election in this case notwithstanding the
pendency of mutual refusal to negotiate charges:
Accordingly, we believe that the regional
director reasonably determined that, absent
other evidence of bad faith, when the
parties have in fact reached an agreement
covering the items enumerated supra at
footnote 11 (including some of the disputed
issues raised in the unfair practice
charges) , the section 3543.5 (c) charge based
on negotiability is akin to a technical
refusal to bargain and does not without
other factors require a decertification
election to be delayed.
The PERB itself, therefore, has addressed the issue of
whether the election in the District should have been held
pending resolution of unfair practice charges. The hearing
officer believes that he is bound by that decision as res
judicata, and accordingly, Objection 3 is overruled.
Based upon the foregoing findings of fact, conclusions of
law and the entire record of this matter, the objections to the
conduct of the election filed by the Jefferson Classroom
Teachers Association, CTA/NEA are hereby overruled.
Pursuant to California Administrative Code, title 8, part
III, section 32305, this Proposed Decision and Order shall
become final on August 11, 1980 unless a party files a timely
statement of exceptions. See California Administrative Code,
24

title
	8,
	part
	III,
	section
	32300.
	Such
	statement 	of 	exceptions
and
	supporting
	brief
	must
	actually
	be
	received
	by
	the
	Executive
Assistant 	to
	the
	Board
	at
	the 	headquarters
	office
	in
	Sacramento
before
	the
	close
	of 	business
	(5:00
	p.m.)
	on
	August
	11,
	1980
	in
order 	to
	be
	timely
	filed.
	See
	Cal.ifornia 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
	proceeding. 	Proof
	of
	service
shall
	be
	filed
	with 	the
	Board
	itself.
	See
	California
Administrative
	Code,
	title
	8,
	sections
	32300
	and 	32305,
	as
amended.
Should
	no
	exceptions 	to
	this
	Proposed
	Decision
	be
	filed
within
	the
	time
	specified
	above 	and
	this
	Proposed
	Decision
becomes
	final,
	the 	regional
	director 	will
	immediately
	certify
the
	Jefferson
	Federation 	of 	Teachers,
	Local 	3267,
	AFT/AFL-CIO
as 	the 	exclusive 	representative
	of
	certificated
	employees
	in
the
	Jefferson
	Elementary School
	District.
Dated:
	July
	22,
	1980 James
	W.
	Tamm
San
	Francisco 	Regional
	Director
By :
25
Kenneth
	A.
	Perea
Hearing
	Officer
title 8, part III, section 32300. Such statement of exceptions
and supporting brief must actually be received by the Executive
Assistant to the Board at the headquarters office in Sacramento
before the close of business (5:00 p.m. ) on August 11, 1980 in
order to be 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 proceeding. Proof of service
shall be filed with the Board itself. See California
Administrative Code, title 8, sections 32300 and 32305, as
amended.
Should no exceptions to this Proposed Decision be filed
within the time specified above and this Proposed Decision
becomes final, the regional director will immediately certify
the Jefferson Federation of Teachers, Local 3267, AFT/AFL-CIO
as the exclusive representative of certificated employees in
the Jefferson Elementary School District.
Dated: July 22, 1980 James W. Tamm
San Francisco Regional Director
Kenneth A. Perea
Hearing Officer
25