Pasadena Unified School District (PERB 0530E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PASADENA UNIFIED 	SCHOOL 	DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER #434,
Employee 	Organization,
and
INTERNATIONAL 	BROTHERHOOD 	OF
TEAMSTERS, LOCAL #63,
Employee 	Organization.
Case No. 	LA-D-145
PERB Decision No. 	530
October 25, 	1985
Appearance; 	E. 	Luis 	Saenz, 	Attorney for California School
Employees Association, 	Chapter #434.
Before Hesse, 	Chairperson; Morgenstern and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on objections 	to a
decertification 	election 	filed by 	the 	California 	School 	Employees
Association, 	Chapter 	#434 	(CSEA). 	As 	set 	forth more 	fully infra,
CSEA claims 	that 	the 	International 	Brotherhood 	of 	Teamsters,
Local 	#63 	(Teamsters), 	engaged 	in conduct which 	interfered with
the employees' 	right 	to freely choose a representative. 	The
PERB hearing 	officer 	conducted 	an 	evidentiary proceeding 	and
dismissed 	CSEA's 	objections.
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For 	the reasons 	set 	forth below, 	we reject 	CSEA's 	objections
to 	the conduct 	of 	the 	election and certify the 	results 	of 	that
election.
FACTUAL 	SUMMARY
On October 14, 	1983, 	the Teamsters 	filed a decertification
petition 	requesting 	that 	an 	election be held 	in 	the 	unit 	of
classified 	employees 	of 	the 	Pasadena 	Unified 	School 	District.
At 	that 	time, 	CSEA was 	the exclusive representative. 	That
petition was 	deemed 	untimely by PERB. 	The 	Teamsters 	withdrew
that petition and refiled on March 8, 	1984. 	The Board conducted
an election on May 31, 	1984. 	The results were as 	follows:
Teamsters, 	Local #63 	137
CSEA, 	Chapter #434 	128
No 	Representation 	7
Challenged 	Ballots 	0
Void Ballots 	11
CSEA 	filed 	objections 	to 	the 	election pursuant 	to 	PERB
Regulation 	32738. 	The alleged misconduct 	consists 	of 	the
printing 	and 	circulation 	of 	an 	election 	flyer 	which pictured
individual 	employees 	and groups 	of 	employees 	beneath a heading
which 	indicated 	their 	intention 	to vote 	for 	the 	Teamsters 	in 	the
upcoming 	election and 	urged other 	employees 	to do 	the 	same.
In support of 	its 	objections 	to 	the election, 	CSEA asserts
that 	employees 	in 	the photographs 	did not 	support 	the 	Teamsters,
and 	that 	other 	employees 	voted 	for 	the 	Teamsters 	on 	the 	mistaken
belief 	that 	the pictured 	employees 	were 	indeed 	Teamsters
supporters.
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Six 	employees 	pictured on 	the 	Teamsters' 	flyer 	testified on
behalf of 	CSEA. 	Melvyn Mercado testified 	that, 	on Friday,
May 25, 	1984, 	at approximately 2:40 p.m., 	his co-worker, 	Gayl
Williams, 	and Teamsters 	employee 	Howard 	Friedman approached him
and, 	without saying anything, 	took his picture. 	Mercado said he
first saw the 	flyer 	on election day, 	May 31. 	It was posted on
the wall 	of his 	shop with his 	photo 	circled and an arrow pointing
to his picture.
Mercado 	testified 	that he had 	signed 	an 	authorization 	card
for 	the 	Teamsters 	in mid-July 1983 l and, 	on one occasion,
talked 	to Williams 	about his 	unhappiness 	with CSEA. 	However, 	he
voted 	for 	CSEA in 	the 	election.
Lawrence 	Clark 	and Alfonso 	Lopez 	were photographed 	together.
They testified that, 	during the afternoon of May 25, 	Williams
and 	Friedman 	approached 	them 	in 	the 	back 	of 	the 	service 	center.
1The 	card Mercado signed reads 	as 	follows:
AUTHORIZATION 	FOR 	REPRESENTATION
I, 	the 	undersigned employee of 	the Pasadena
Unified 	School 	District 	no 	longer 	wish 	to be
represented by 	the 	California 	School 	Employees
Association Chapter No. 	434 and hereby
designate the Teamsters, 	Local No. 	63/Public
Sector 	Division 	as 	my sole 	and 	exclusive
bargaining 	representative 	for 	all 	matters
relating to wages, 	hours, 	and other terms and
conditions 	of 	employment 	as 	authorized by
Chapter 	10.7 of 	the 	Government 	Code.
The 	Teamsters 	introduced 	into evidence 	cards 	signed by
Mercado, 	Alfonso Lopez, 	Phichai Prathumratana, 	Edward Mooney,
Ruben Garcia, 	Sheila de Cora, 	Lawrence Clark, 	Patrick Russell
and J. W. 	Sowell.
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Lopez had 	just 	purchased 	a 	new Harley Davidson motorcycle 	and
Clark 	and 	two other 	employees 	were 	admiring 	it.
And as 	we were 	looking at 	the motorcycle, 	Gayl
and Mr. 	Friedman walked up. 	And Gayl 	asked me
was that my motorcycle, 	and I said, 	"No, 	it's
Al's." 	And he was 	telling us how beautiful 	it
was 	and 	asked us 	if we 	could get 	around 	it 	so
he 	could 	take a picture 	of 	us 	and 	the
motorcycle. 	So we got around 	it, 	and we all
posed 	for 	the picture.
Clark 	testified 	that 	Friedman said, 	"[t]his 	is 	for 	the
Teamsters" 	just 	as Williams 	got 	ready to snap the picture.
After 	they took 	the picture, 	they walked off. 	Lopez' 	testimony
similarly recounts 	the 	incident, 	although he 	stated 	that 	the
Teamsters 	were not 	mentioned until 	after 	the picture 	was 	taken
and Williams 	and 	Friedman were 	walking 	away. 	Neither 	Clark 	nor
Lopez had any clear 	idea on May 25 	as 	to the purpose 	for 	the
photo, 	although Clark 	said he 	thought 	that, 	since he also owned
a Harley Davidson, 	Williams 	was 	going 	to make him and Lopez 	a
copy or hang one 	in 	the shop.
Both 	Clark 	and 	Lopez 	testified 	that 	they did not 	see 	the
Teamsters' 	flyer 	until 	the morning of 	election day. 	Both men
also testified 	that 	they signed decertification cards, 	but 	that
they were 	not 	Teamsters 	supporters 	and 	voted 	for 	CSEA in 	the
election.
According 	to 	Dexter 	Clark, 	Williams 	and Friedman approached
him late 	in 	the 	afternoon on May 	25. 	Clark 	said 	that Williams
asked him 	if he 	wanted his 	picture 	taken. 	Clark 	said yes. 	While
Williams 	proceeded 	to 	take 	the picture, 	Friedman handed 	Clark 	a
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sign which read 	"Vote Teamster." 	According to Clark, 	". 	. 	. 	by
the time 	I got hold of 	it, 	Gayl had snapped a picture." 	Clark
said he 	never 	saw 	the 	sign 	Friedman 	gave him. 	When asked why he
thought 	the picture was 	taken, 	Clark 	testified 	that he 	thought
Williams 	had 	a 	new 	camera but 	that he 	did not 	know what 	was
going on because 	it 	all happened too 	fast 	and 	it 	was 	late on a
Friday afternoon when he was 	on his 	way home. 	Clark 	said 	that
he 	voted 	for 	CSEA.
William F. 	A. 	Averill 	and 	Cesareo Baltazar were photographed
together. 	Averill 	testified 	that 	the picture was 	taken 	close 	to
quitting 	time, 	around 2:40 - 	2:45 	Friday afternoon. 	He 	said
that Williams 	approached him and asked 	if he 	could 	take his
picture. 	Averill had no objection, 	testifying 	". 	. 	. 	15 minutes
before you 	leave on a 	Friday, 	you don't 	really care what's 	going
on." 	Friedman handed Averill 	the 	"Vote 	Teamster" 	bumpersticker.
Averill 	said he 	looked at 	the bumpersticker 	at 	the 	same 	time
that 	Friedman handed 	it 	to him, 	but 	the whole 	incident happened
fast. 	After Williams had taken the picture, 	Averill 	gave the
bumpersticker back 	to Friedman saying 	"I don't want 	this 	thing."
Averill 	said he 	first 	saw 	the 	flyer on election day, 	posted
on the door 	of 	the 	gardening department. 	He 	testified he was
not a 	Teamsters 	supporter 	and, 	although undecided before 	the
election, 	voted 	for CSEA.
Baltazar similarly described the 	incident, 	adding 	that, 	when
Friedman handed him the bumpersticker, 	it was 	upside down and,
before the picture was 	taken, 	Friedman righted 	it. 	Baltazar
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said he voted 	for 	CSEA. 	On cross-examination, 	he admitted 	to
giving Williams 	a 	"V for Victory" 	sign 	the day after 	the
election. 	On redirect examination, 	he explained 	that 	the hand
motion he 	returned 	to Williams 	was 	only to say 	"hi."
In addition to those employees photographed, 	six additional
employees 	testified 	on CSEA's 	behalf. 	Edward Mooney 	testified
that he was 	surprised 	to see the photographs 	of Mercado, 	Averill
and Baltazar on the 	Teamsters' 	flyer. 	He stated that, 	because
of 	the 	flyer, 	he believed them to be Teamsters' 	supporters 	and
that 	the 	flyer 	influenced 	the 	way he 	voted. 	Mooney also
testified that, 	on election day, 	after he saw the 	flyer, 	he
could not 	get 	to Mercado before he 	voted.
Patrick 	Russell 	testified 	that Mercado's 	picture 	on 	the
flyer 	influenced him to vote 	for 	the 	Teamsters 	because, 	since
Mercado had more 	seniority, 	he valued Mercado's 	opinion. 	Since
he had no 	time 	to 	talk 	to Mercado after 	seeing 	the 	flyer,
Russell 	said 	that 	the 	flyer 	changed his 	vote.
Similarly, 	Elden Bulen 	testified 	that he 	saw the 	flyer 	on 	the
morning of 	election day. 	He was 	influenced by the 	flyer 	to vote
for 	the Teamsters because of Mercado, 	L. 	Clark and Lopez. 	Bulen
testified 	that he 	figured Mercado knew something he 	did 	not.
Sheila de 	Cora also testified 	that, 	when she 	saw Mercado's
picture on the 	flyer, 	she 	thought he must have a good reason 	to
vote 	for 	the Teamsters. 	She 	testified:
A. 	I was all set to join, 	vote 	for CSEA. 	And
I saw Mel's picture as 	a Teamster, 	and
since 	I 	rely on him to keep me 	informed
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about 	things, 	I 	figured he was much better
informed than I was, 	and if he voted 	for
Teamsters, 	then he must have had a very-
good 	reason 	for 	doing 	that.
Q. 	Well, 	at 	7:00 	in the morning of May 31,
when you 	first 	saw Joint 	Exhibit No. 	1,
did you believe that Mel Mercado, 	and all
those 	other 	individuals 	pictured on Joint
Exhibit No. 	1 supported 	the Teamsters?
A. 	Yes, 	I did.
Q. 	Then Joint 	Exhibit No. 	1 	caused you to
vote 	for 	the Teamsters.
A. 	Yes.
Ruben Garcia 	testified 	that 	it 	was 	Lawrence 	Clark's 	picture
that 	influenced his 	vote. 	He 	said he believed 	Clark 	and 	the
others photographed 	to be 	Teamsters 	supporters 	and, 	because of
the 	flyer, 	he 	voted 	for 	the Teamsters 	instead of 	CSEA.
Finally, 	Phichai 	Prathumratana 	testified that he 	is 	a good
friend of Mercado and 	follows 	his 	advice. 	The 	flyer 	influenced
him because he 	thought 	that, 	if Mercado had changed his 	opinion,
he would change his, 	too. 	The 	flyer 	caused him to vote 	for 	the
Teamsters.
Three witnesses 	testified on behalf 	of 	the 	Teamsters. 	Carole
Cook, 	a Teamsters organizer, 	testified that the 	flyer 	is a
frequently-used organizing 	tool, 	and that 	it was her 	idea 	to use
it 	in this 	election. 	She said that, 	when photographing every
employee, 	those 	taking the pictures 	should 	identify themselves
fully and state 	why the pictures 	were being 	taken. 	Cook
accompanied Williams 	during 	the morning of May 25, 	and said 	that
her 	affiliation with 	the 	Teamsters 	was 	clearly stated. 	She
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testified 	that Williams 	took 	at 	least 	two shots 	of 	each 	employee.
According to Cook, 	some people 	refused 	to have 	their pictures
taken 	for 	the 	flyer, 	and Williams 	did 	not 	take 	their pictures
. .
Gayl 	Williams 	testified 	that he photographed 	the 	employees
for 	the 	flyer. 	Cook accompanied him in the morning, 	Friedman 	in
the afternoon. 	Williams 	said that 	it 	took 	15-30 seconds 	to take
each picture 	and 	that 	the plan was 	to photograph only Teamsters
supporters. 	During 	the morning session, 	Williams 	said he 	let
Cook 	do most 	of 	the 	talking 	and 	did 	not 	start 	focusing 	the 	camera
until 	the employee said 	it was 	alright 	to do so. 	He 	testified
that, 	to the best of his knowledge, 	no photographs were taken of
people 	to whom the 	flyer 	and 	its purpose were not 	explained.
Williams 	said 	that Mercado seemed 	uncommitted 	to 	either 	side
during 	the 	election. 	Mercado approached Williams 	and 	Friedman
during 	the 	afternoon 	session and 	asked what Williams 	was 	doing.
Williams 	told him about 	the 	flyer.
Q. 	So Mel 	approached you?
A. 	Um-hmm.
Q. 	And asked you what you were doing?
A. 	What's 	going on, 	or what's happening or
something like 	that. 	And 	I explained 	to
him what 	was 	going on.
Q. 	What did you say?
A. 	That 	we were putting 	together 	a 	collage
of pictures 	for a 	Teamster news bulletin.
Q. 	What did he 	say?
A. 	All right.
8

Q. 	Well 	did someone 	ask him 	if 	they could
take his picture?
A. 	I 	really don't recall.
Q. 	But you do recall you said, 	what did you
say, 	A-ok?
A. 	Yeah. 	Something to that effect, 	yes.
Williams 	also 	testified 	about 	the picture of 	Clark 	and 	Lopez.
Although Williams 	recalled 	saying 	that 	the motorcycle 	was
beautiful, 	he 	also 	said 	that 	Friedman 	told 	the men about 	the
flyer 	and asked 	for permission 	to 	take 	their pictures. 	One
employee, 	Kenneth Crumlett, 	who was 	nearby, 	refused and walked
off.
Williams' 	testimony about 	taking 	the picture 	of 	Dexter 	Clark
is brief 	and unclear. 	However, 	as 	to Averill and Baltazar,
Williams 	remembered 	taking 	two 	shots 	because 	Baltazar 	was
holding 	the bumpersticker 	upside 	down on 	the 	first 	shot.
Williams 	said 	that 	Friedman had 	200-300 	flyers 	printed 	and
they began distributing 	them on Wednesday morning.
Howard Friedman, 	employed by the 	Teamsters 	and 	in charge 	of
the Pasadena campaign, 	also testified at 	the hearing. 	He said
that 	at 	least 	a half 	dozen Teamsters 	mailings 	were 	sent 	to
employees' 	home addresses. 	As 	to the particular 	flyer 	in
question here, 	he stated:
A. 	. . . 	I made 	certain that we 	informed 	the
employees. 	First, 	received permission to
take their picture. 	And, 	second,
carefully explain 	to 	them the 	use 	of 	the
bulletin.
9
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Q. 	Are you 	aware of 	any situations 	where 	the
employees 	were 	not 	told what 	the purpose
of 	the photographs 	were?
A. 	I am not aware of any such situations.
Q. 	Were 	there 	any employees 	whose pictures
were 	taken who did not 	give permission 	to
have 	their picture 	taken.
A. 	I am not aware of any.
Q. 	Were 	there 	any employees 	who didn't 	give
their 	permission?
A. 	Yes.
Q. 	And what happened 	in those 	cases?
A. 	Their pictures 	were not 	taken.
Referring to Mercado, 	Friedman said 	that he gave his
permission 	to be photographed. 	Friedman 	testified 	that he 	was
told by Williams 	and 	another 	that Mercado was 	"leaning 	toward
the Teamsters."
As 	to the picture of L. 	Clark and Lopez, 	Friedman said he
remembered 	telling 	them about 	the 	flyer 	and 	urging 	Crumlett 	to
join 	the others 	in the photo. 	Crumlett chose not 	to and stepped
aside while 	the picture of 	the others 	was 	taken.
Friedman had met 	Averill 	and 	Baltazar 	on 	several 	occasions
during the 	last weeks 	of 	the 	election campaign, 	had given 	them
both Teamsters' 	hats 	and, 	on occasion, 	had seen them wearing the
hats. 	When 	Friedman 	told 	them about 	the 	flyer he was 	preparing,
neither were 	reluctant 	to be photographed. 	According 	to
Friedman, 	he 	showed 	them the words 	on 	the bumpersticker 	when he
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handed 	them to 	the men. 	He 	recalled 	that 	Baltazar's
bumpersticker 	was 	upside 	down 	and Williams 	had 	to 	take 	a 	second
picture.
DISCUSSION
PERB Regulation 	32738 provides 	that, 	within 10 days 	following
the 	tally of ballots, 	any party to an election may 	file
objections 	to 	the 	conduct 	of 	the 	election. 	Regulation 	32738(c)
states as 	follows:
Objections 	shall 	be 	entertained by 	the 	Board
only on 	the 	following 	grounds:
(1) 	The conduct 	complained of 	interfered with
the employees' 	right to freely choose a
representative, or
(2) 	Serious 	irregularity in the conduct of
the election.
Applying the Board's prior case 	law to the 	instant 	case,2
the 	threshold question 	is 	whether 	use 	of 	the photographs 	on 	the
Teamsters' 	flyer was 	improper. 	If 	the Board finds 	that the six
employees, 	either 	expressly or by 	implication, 	authorized 	the
2Previous 	PERB Regulations 	permitted 	objections 	to
elections 	where 	serious 	irregularities 	occurred 	and 	where 	the
conduct 	complained of 	was 	"tantamount 	to an unfair practice."
Under 	the past 	Regulations, 	the 	Board 	first 	determined whether
the conduct was 	tantamount 	to an unfair practice and, 	if 	that
threshold 	question was 	satisfied, 	then 	entertained 	the 	election
objection and, 	in certain cases, 	ordered the results 	overturned.
See 	San Ramon Valley Unified 	School 	District 	(1979) 	PERB
Decision No. 	lll 	and Jefferson 	Elementary School 	District
(1981) 	PERB Decision No. 	164. 	Under the current language of
Regulation 32738, 	demonstration of 	unlawful 	conduct 	remains 	a
threshold concern. 	Clovis 	Unified School 	District 	(1984) 	PERB
Decision No. 	389.
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use of their photographs 	for 	the Teamsters' 	flyer, 	then,
clearly, 	no deceptive or 	otherwise 	improper 	conduct 	occurred.
First, 	contrary to CSEA's 	assertions, 	we find it of little
consequence 	that 	none of 	the 	six 	employees 	were 	told of 	the
purpose of 	the photos 	until after 	the pictures 	were 	taken. 	The
critical 	issue 	is whether, 	either directly or 	indirectly, 	the six
employees 	were 	ever aware of 	the purpose of 	the photographs.
Mercado said he 	was 	told nothing, 	but Williams 	and 	Friedman 	said
Mercado was 	told about the 	flyer; 	L. 	Clark and Lopez 	said 	they
were told the picture was 	"for 	the Teamsters"; 	and D. 	Clark,
Averill 	and 	Baltazar 	all 	were photographed holding 	Teamsters'
bumperstickers. 	Thus, 	based on these facts, 	we conclude that
all 	of 	the 	employees 	were aware 	that 	their pictures 	were being
taken and were 	either directly told about 	the 	flyer 	or, 	since
they were holding 	"Vote 	Teamster" 	bumperstickers, 	must have been
aware of 	the pictures' 	connection to the election.
Given this 	awareness, 	we 	find 	it 	significant 	that none of
the men spoke out, 	made any inquiries 	of Williams 	or 	Friedman,
or 	asked 	that 	their picture 	not 	be 	used 	in 	connection with 	the
-
election. 	For example, 	consider Lopez, 	who testified that, 	as
the picture was being taken, 	Friedman said, 	"This 	is 	for the
Teamsters."
Q. 	Now, 	what did you think Mr. 	Friedman
meant when he stated, 	"This 	is 	for 	the
Teamsters"?
A. 	Well, 	I didn't really know. 	You know, 	I
didn't 	know what 	they were 	going 	to 	use
it for.
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Q. 	Did you pay much attention 	to 	the 	comment?
A. 	No, 	not really.
Lopez 	testified 	that, 	while he knew both Williams 	and
Friedman were 	involved with 	the 	Teamsters, 	he did not 	ask 	them
what 	they were going to do with the picture. 	Similarly, 	Clark
testified 	that, 	while he 	did not 	know what 	Friedman meant 	when
he said, 	"This 	is 	for 	the Teamsters," he did not ask.
In our opinion, 	testimony such as 	this 	suggests 	at a minimum
that 	these 	six 	employees 	acquiesced 	to 	(if 	not 	cooperated 	with)
the Teamsters' 	campaign plan. 	Examination of the 	flyer 	itself
supports 	this 	conclusion. 	Most of 	the 	six are 	smiling and all
appear 	to be posing 	for 	the 	camera.
Measured 	against 	the 	current 	National 	Labor 	Relations 	Board
(NLRB) 	standard, 	where an election will be set aside not on the
basis 	of 	the 	substance of 	the 	representation, 	but 	the deceptive
manner 	in which 	it was 	made,3 it 	is 	irrelevant whether 	the
3 In Midland National 	Life 	Insurance Co. 	(1982) 	263 NLRB 127
[110 LRRM 1489], 	the NLRB overruled its decisions 	in Hollywood
Ceramics Co. 	(1962) 	140 NLRB 221 	[51 LRRM 1600] 	and General Knit
of California, 	Inc. 	(1978) 	239 NLRB 619 and returned to the rule
advanced 	in Shopping Kart Food Markets, 	Inc. 	(1977) 	228 NLRB 1311
[94 LRRM 1705]. 	In its discussion, 	the NLRB reviewed the
vacillating 	Board decision and 	the 	difficulties 	in 	adopting 	the
appropriate 	standard of 	administrative 	review. 	Under 	the Midland
rule, 	the NLRB announced that 	it would:
. 	. 	. 	no longer probe into the truth or
falsity of 	the parties' 	campaign statements,
and 	that 	we will 	not 	set 	elections 	aside on
the basis 	of misleading 	campaign statements.
We will, 	however, 	intervene in cases where a
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pictured employees 	in 	fact 	intended 	to vote 	for 	the 	Teamsters.
Under 	the Midland 	rule, 	the 	election would be overturned only 	if
the photograph was 	a forgery, made 	in a deceptive manner. 	As
noted supra, 	the 	evidence 	urges 	the 	conclusion that 	the 	employees
cooperated 	with Williams 	and 	Friedman 	by permitting 	them 	to 	take
their pictures 	and, 	when 	told 	that 	the pictures 	were 	"for 	the
Teamsters," 	made no 	inquiries 	and 	voiced no objections.
party has 	used 	forged 	documents 	which 	render
the 	voters 	unable 	to 	recognize propaganda 	for
what 	it 	is. 	Thus, 	we will set an election
aside 	not 	because 	of 	the 	substance 	of 	the
representation, 	but because of 	the deceptive
manner 	in which 	it was 	made, 	a manner which
renders 	employees 	unable 	to evaluate 	the
forgery 	for 	what 	it 	is. 	(Footnotes 	omitted.)
Based on the 	totality of 	the 	circumstances, 	we conclude 	that
CSEA failed 	to 	satisfy 	its 	burden 	of 	showing 	that 	the 	Teamsters
engaged 	in unlawful 	conduct. 	Accordingly, 	it has 	not
demonstrated 	an adequate 	basis 	to overturn 	the 	election.
While affirming 	the hearing officer's 	conclusion, 	we are
nevertheless 	compelled 	to note 	our 	disagreement 	with his 	ruling
as 	to the admissibility of 	the 	evidence 	of 	voter 	impact. 	In 	San
Ramon, 	supra, 	the Board said 	it was 	unwilling to require 	that 	the
secrecy of 	an 	individual's 	election 	conduct 	be 	invaded 	in order
to present 	affirmative proof 	that 	the protested 	activity had 	a
direct 	impact on the election results. 	Here, 	however, 	the six
employees 	came 	forward voluntarily. 	The hearing officer, 	by
14
4	4 rt	1t 	is nonetheless noteworthy that, 	of the six, 	Mercado,
Lopez 	and 	L. 	Clark had 	signed 	cards 	for 	the 	Teamsters 	indicating
their 	opinion 	that 	CSEA should 	be 	decertified.

considering 	the possible 	invasion of privacy of 	employees 	whose
votes 	changed 	to CSEA, 	misreads 	PERB's 	standard. 	If the
Teamsters' 	conduct had been improper, 	then the critical question
would have been 	whether 	it 	was 	sufficiently 	likely that 	the
improper 	conduct 	influenced 	the 	vote 	and 	caused 	employees 	to 	vote
as 	they did.5	5 	Proof 	that 	other 	employees 	withdrew Teamsters
support 	does 	not 	disturb the 	impact 	on 	the 	six 	voters 	who
testified.
ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law, 	and
the 	entire record 	in this 	case, 	the objections 	to the conduct of
the 	election 	filed by the 	California 	School 	Employees
Association, 	Chapter 	#434, 	in Case No. 	LA-D-145 are hereby
DISMISSED.
Chairperson Hesse 	joined 	in 	this 	Decision. 	Member 	Porter's
concurrence begins on p. 	16.
5si	S
15
since	nce 	we 	find 	that 	the 	evidence 	does 	not 	clearly
establish 	improper conduct, 	it 	is 	unnecessary to reach the
issue of voter 	impact. 	However, 	it 	is again noteworthy that 	of
the 	six who testified regarding 	the 	flyer's 	impact, 	five had
previously 	favored 	decertification 	of 	CSEA.

Porter, 	Member, 	concurring: 	I concur 	in the dismissal of
the objections.
Prior 	decisions 	of 	this 	Board have 	dealt 	with 	objections
to 	elections 	involving alleged 	misconduct 	and/or 	asserted
irregularities which involved, 	respectively, 	employers, 	Board
agents, 	and competing employee organizations. 	These decisions
have 	dealt 	with 	both 	former 	and present 	PERB 	Regulation
32738(c). 	San Ramon Valley Unified School 	District 	(1979) 	PERB
Decision No. lll; Jefferson 	Elementary School 	District 	(1981)
PERB Decision No. 	164; 	Clovis 	Unified 	School 	District 	(1984)
PERB Decision No. 	389.
A distillation 	of 	the 	foregoing 	decisions 	renders 	in
essence 	the 	following 	approach by 	this 	Board 	to election
objection cases:
(a) 	the 	objecting party has 	the burden of presenting
evidence of: 	(1) 	the occurrence of misconduct and/or
irregularities, 	and 	(2) 	that such misconduct or
irregularities 	interfered with the employees' 	free
choice, and
(b) 	once that burden has been met, 	this 	Board will 	then
look 	at 	the 	totality of 	the 	circumstances 	occurring
in each case —including 	the seriousness, 	the 	timing,
any off-setting or 	remedial 	circumstances, 	and 	the
cumulative effect, 	if any, 	of the misconduct or
irregularities— 	to 	determine
16

whether 	there 	was 	such a material 	effect 	on 	the
employees' 	freedom of choice 	that 	the election
results 	should be 	set 	aside.
In the 	instant 	case, 	the evidence did not 	establish
misconduct by the Teamsters. 	However, 	in its discussion of the
Teamsters' 	conduct, 	the majority opinion cites and refers 	to
the NLRB's Midland rule at pp. 	13-14, 	supra. 	The NLRB Midland
rule 	deals 	with 	what 	type 	of 	misconduct 	could overturn 	an
election result. 	Under Midland, 	the NLRB will not overturn an
election 	for 	misleading 	campaign 	statements 	or
misrepresentations 	unless 	the 	statements 	were 	obtained 	or 	done
in a deceptive manner, 	such as by forgery. 	I am not persuaded
that 	the Midland 	rule 	should 	be 	applied 	to 	election objection
cases 	under 	EERA. 	Obviously, 	a party can engage 	in misconduct
by way of 	misleading 	statements 	or 	misrepresentations 	without
doing so deceptively or by way of 	forgeries. 	When there 	is
misconduct 	—whether 	engaged 	in deceptively 	or 	n o t — 	which
interferes with the employees' 	free choice, 	then the election
result 	should be 	subject 	to overturning depending 	on 	the
totality of 	the 	circumstances 	and whether 	the 	effect 	on 	the
employees' 	freedom of choice was material. 	Clovis 	Unified
School District 	(1984) 	PERB Decision No. 	389.
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