Oxnard Unified School District and Oxnard Federation of Teachers and California School Employees Association (PERB 1341E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

OXNARD UNIFIED SCHOOL DISTRICT, )

Employer, )
)
and ) Case No. LA-DP-316
)
OXNARD FEDERATION OF TEACHERS, ) PERB Decision No. 1341
LOCAL 1273, )

) August 3, 1999
Exclusive Representative, )

and )

CALIFORNIA SCHOOL EMPLOYEES )
ASSOCIATION, OXNARD CHAPTER 800, )

Petitioner. )

Appearances: Parham & Rajcic by Mark R. Bresee, Attorney, for
Oxnard Unified School District; Lawrence Rosenzweig, Attorney,
for Oxnard Federation of Teachers, Local 1273; California School
Employees Association by Maureen C. Whelan, Staff Attorney, for
California School Employees Association, Oxnard Chapter 800.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION

DYER, Member: This case comes before the Public Employment
Relations Board (Board) on exceptions filed by the California
School Employees Association, Oxnard Chapter 800 (CSEA) toa
Board hearing officer's proposed decision (attached). In that
proposed decision, the hearing officer dismissed CSEA's
objections to an election in the Oxnard Unified School District's
(District) classified unit.

The Board has reviewed the entire record in this case,

including the hearing transcript, the proposed decision, CSEA's

exceptions, 	and the 	responses 	of 	the 	District 	and the 	Oxnard
Federation of Teachers, 	Local 	1273. 	The Board finds 	the hearing
officer's 	findings 	of 	fact 	and conclusions 	of 	law to be 	free 	from
prejudicial 	error 	and adopts 	them as 	the 	decision of 	the 	Board
itself.
ORDER
Upon the 	findings of 	fact, 	conclusions 	of 	law, 	and the
entire 	record in this 	case, 	the 	objections 	to 	the 	election are
hereby 	DISMISSED.
Member Amador 	joined 	in 	this 	Decision.
Chairman 	Caffrey's 	dissent 	begins 	on page 	3.
22

CAFFREY, 	Chairman, 	dissenting: 	The Oxnard Unified School
District 	(District) 	violated section 3543.5(d) 	of 	the Educational
Employment Relations Act 	(EERA)1 by its 	conduct 	relating to a
decertification 	election 	involving 	the 	Oxnard 	Federation 	of
Teachers, 	Local 	1273 	(OFT) 	and the California School 	Employees
Association, 	Oxnard Chapter 800 	(CSEA). 	Considering the totality
of 	the 	circumstances, 	I would sustain the objections 	filed by
CSEA and 	order a 	new election 	to be 	held.
DISCUSSION
Public 	Employment Relations 	Board 	(PERB or Board) 	Regulation
32738(c)(I)2 allows parties 	to 	file 	objections 	to an election on
the 	grounds 	that 	"the 	conduct 	complained of 	interfered with 	the
employees' 	right 	to 	freely choose a representative." 	For PERB 	to
sustain the 	election objections, 	an effect 	on the 	election result
must 	be 	shown 	or 	logically 	inferred. 	The 	Board will 	infer the
effect 	if 	the actions 	"had the natural 	and probable 	effect 	of
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5(d) 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(d) 	Dominate or interfere with the 	formation
or administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to 	join any organization 	in
preference 	to another.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
33

discouraging voter participation 	in 	the 	representation 	election."
(Tamalpais Union High School 	District 	(1976) 	EERB Decision
No. 1.)3
In considering election objections, 	PERB treats 	the
demonstration of 	improper 	conduct 	in 	the 	election as 	a 	"threshold
question." 	(State 	of 	California 	(Departments 	of 	Personnel
Administration. 	Developmental Services, 	and Mental Health) 	(1986)
PERB Decision No. 	601-S 	(DPA, 	et al.).) 	The Board next 	considers
whether 	the 	improper activities 	establish a 	"probable 	impact 	on
the employees' 	vote." 	(Jefferson Elementary School District
(1981) 	PERB Decision No. 	164.) 	The determination of probable
impact 	is 	based on a 	consideration 	of 	the 	facts 	submitted by 	the
objecting party, 	which may include, 	for example, 	the timing of
the 	improper acts 	and 	the 	number 	of 	employees 	affected by or
aware of 	the acts. 	This 	standard is an objective one; 	that 	is,
whether 	it 	can be 	reasonably 	concluded 	that voters 	were
influenced by the 	improper conduct. 	(State 	of 	California
(Department of Personnel Administration) 	(1992) 	PERB Decision
No. 	948-S; 	Clovis Unified School District 	(1984) 	PERB Decision
No. 	3 89 	(Clovis USD).) 	The Board does not require the objecting
party 	to prove 	that 	the 	conduct 	actually 	impacted employees'
votes. 	(San Ramon Valley Unified School District 	(1979) 	PERB
Decision No. 	111.) 	In deciding whether to set aside an election
3Prior to January 1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
44

result, 	the Board looks at 	the 	totality of 	the 	circumstances 	and
the cumulative effect of 	the 	improper conduct. 	(Clovis USD.)
These 	standards 	exist 	to ensure 	that 	elections 	are 	conducted
without undue 	interference, 	and to ensure that 	employees' 	votes
are not 	unnecessarily set 	aside. 	This 	results 	in a need to
balance 	competing 	interests, 	as 	occurred 	in State 	of 	California
(Department of 	Personnel Administration) 	(1986) 	PERB Decision
No. 	601-S 	(DPA). 	In that case, 	the state was found to have
violated certain portions of 	the Ralph C. 	Dills Act 	(Dills Act)4
by the actions 	of 	its agents, 	including comments which were 	found
to 	constitute 	advocacy on behalf 	of 	one 	of 	the 	competing
organizations. 	The 	state was 	also 	found to have 	interfered with
the objecting organization's access 	rights. 	Nevertheless, 	the
Board 	concluded 	that:
[t]he 	record does 	not 	support 	setting aside
the 	election and denying 	employees 	the 	free
choice 	to 	select 	another 	representative
because of 	the limited, 	almost minimal,
nature of 	the violations.
In 	the DPA case, 	the 	challenging union had won the 	statewide
election by 	600 	votes 	and 	the 	evidence 	indicated 	that 	only a
handful 	of voters may have been 	influenced by 	the 	improper
conduct.
The 	instant 	case presents 	significantly different
circumstances. 	Here 	there were 245 	eligible voters and,
excluding voided and challenged ballots, 	206 votes were 	cast 	and
4The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq.
55

counted. 	In order to prevail 	in this election, 	104 votes were
necessary. 	OFT received 120 votes. 	Therefore, 	a change of 	17
votes, 	approximately 8 percent of 	the votes cast, 	could change
the outcome of the election. 	Accordingly, 	in this 	case, 	a
determination of 	probable 	impact 	on a 	relatively 	small 	number of
votes 	is 	sufficient 	to 	find 	interference with an 	employee's 	right
to 	freely choose a 	representative, 	warranting an order to 	set
aside 	the 	election.
The Board has 	held that 	EERA section 3543.5(d) 	imposes 	a
requirement 	of 	strict neutrality on employers. 	The 	employer must
ensure 	that 	its 	conduct 	does 	not 	influence 	the 	free 	choice 	of
employees 	in an election, 	or favor one 	employee 	organization over
the 	other. 	(Santa Monica Community College District 	(1979) 	PERB
Decision No. 	103.) 	In my view, 	the record establishes 	that 	the
District 	violated 	that 	requirement.
The 	Board agent's proposed decision 	finds 	that 	District
transportation 	supervisor Rick 	Fowler 	(Fowler) 	made 	repeated
statements 	to his 	subordinates 	that 	favored OFT over CSEA, 	and
that 	these statements were 	"clearly improper" 	under DPA, 	et al.
However, 	the Board agent 	concludes 	that:
. 	. 	. 	in light of the small number of
employees 	to whom they were 	addressed and 	the
fact 	that 	two 	of 	those employees were 	CSEA
activists throughout 	the campaign, 	it 	is
determined 	that 	the probable 	impact 	of
Fowler's 	statements was minimal 	and
insufficient 	to warrant 	setting aside 	the
election.
I disagree with this 	conclusion for two reasons. 	First,
Fowler's 	repeated statements were made 	to his 	15 	subordinate bus
6

drivers. 	As noted above, 	a change of 	17 votes 	could have 	changed
the outcome of 	the 	election in this 	case, 	so demonstrating
improper 	support 	of 	OFT to 	15 	employees 	could have 	a 	significant
effect 	on the election's 	outcome. 	Second, 	the Board agent's
reference 	to two of 	Fowler's 	subordinates as 	"CSEA activists"
implies 	that 	the District 	could 	improperly support 	OFT 	to 	those
employees with 	impunity, 	since 	their support 	of 	CSEA was 	clear.
Obviously, 	that 	implication 	is 	inappropriate and 	inconsistent
with the 	concept 	of 	a fair election, 	free of employer influence.
As 	the Board agent notes:
. 	. 	. 	to require employees to submit
declarations 	indicating 	their ballot 	choice
and why 	they voted 	for 	that 	choice would be
contrary 	to 	PERB's 	respect 	for ballot
secrecy. 	Further, 	a voter's 	subjective
reaction 	to alleged 	improper 	conduct 	is
essentially 	irrelevant. 	The 	standard 	is 	an
objective one, 	that 	is, 	whether a voter could
reasonably have 	been 	influenced.
(Emphasis 	in original; 	citations omitted.)
I 	am particularly 	concerned with 	the 	District's 	conduct
relating to the May 1998 	salary bonus. 	Several 	aspects 	of 	the
circumstances 	surrounding 	the bonus 	convince me 	that 	the
District's 	conduct 	was 	improper. 	The District prepared an
April 	30, 	1998, 	memorandum addressed to all employees, 	announcing
with specific 	detail 	the 	amount 	of 	the bonus and the 	dates 	on
which employees would receive 	it. 	Curiously, 	the District 	lists
itself and OFT as 	the authors 	of 	the memorandum. 	Yet, 	the
memorandum was 	not 	distributed 	to 	employees 	by 	the District.
Instead, 	the District 	faxed it 	to OFT. 	Clearly, 	had the District
intended 	to distribute 	the memorandum to employees, 	it would have
7

done so. 	The only logical 	conclusion is 	that 	the District
prepared 	the memorandum so 	that 	it 	could be given to OFT. 	OFT
prepared and distributed a May 1, 	1998, 	memorandum to employees
announcing agreement with the District 	on 	the 	salary bonus. 	The
District's 	action 	in preparing 	the memorandum and providing 	it 	to
OFT 	occurred at precisely 	the 	time 	employees 	were 	casting 	their
ballots 	in 	the 	decertification 	election.
The District's April 	30 memorandum makes 	no 	reference 	to 	the
fact 	that 	payment 	of 	the bonus was 	subject 	to approval by the
District's Board of Education. 	Ironically, 	OFT's May 1
memorandum to 	employees 	clearly 	indicates 	that 	payment 	of 	the
bonus 	is 	contingent upon Board of 	Education approval. 	The
District's Board of 	Education approved the bonus 	on May 13, 	1998,
near 	the 	completion of 	the mail 	ballot 	decertification election.
I 	conclude 	from these 	facts 	that 	the District 	prepared 	the
April 	30, 	1998, 	memorandum and provided it 	to OFT with the
knowledge 	of 	the 	timing of 	the decertification election.
The 	Board agent 	concludes 	that 	the District 	cannot be 	found
to have violated 	its 	obligation of 	strict 	neutrality or 	to have
had a probable 	impact 	on employees' 	votes, 	by merely writing a
memorandum which it never distributed. 	I disagree. 	The April 	30
memorandum was 	prepared 	for 	the 	sole purpose 	of 	providing 	it 	to
OFT. 	It 	was prepared without 	reference 	to 	the 	required Board of
Education approval 	of 	the 	salary bonus 	during 	the period 	in which
employees 	were 	deciding whether 	to 	decertify OFT as 	their
exclusive 	representative. 	I 	can think of 	nothing more 	certain 	to
8

influence employees' 	views 	of 	their exclusive representative 	than
the performance 	of 	that 	organization with 	regard 	to attaining
employee 	salary 	increases. 	By acting 	improperly with 	regard 	to
the preparation and timing of 	the 	salary bonus 	announcement, 	the
District 	violated 	its 	strict 	neutrality 	obligation and 	lent
support 	to OFT. 	It 	can reasonably be 	concluded that 	this 	conduct
had a probable 	impact 	on the votes 	of 	employees who, 	at 	the
precise 	time 	of 	the District's 	improper actions, 	were 	considering
their decertification 	election ballots.
As 	the 	Board stated 	in San Diego Unified School 	District
(1996) 	PERB Order No. Ad-278:
The 	Board has 	no more 	fundamental
responsibility 	in 	conducting 	elections 	than
to 	insure 	their 	fairness 	and 	integrity.
Considering the 	totality of 	the 	circumstances here, 	I 	conclude
that 	the District 	compromised 	the 	fairness 	of 	the 	election by 	its
improper 	conduct which had a probable 	impact 	on employees' 	votes
and 	thereby 	interfered with 	their 	right 	to 	freely 	choose 	a
representative, 	in violation of EERA section 3543.5(d). 	I would
set 	aside 	the 	election and 	order a new election 	to be 	conducted.
99

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OXNARD 	UNIFIED 	SCHOOL DISTRICT,
Employer,
and
OXNARD 	FEDERATION OF 	TEACHERS,
LOCAL 12 73,
Exclusive Representative,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	OXNARD CHAPTER 800,
Petitioner.
Representation
Case No. 	LA-DP-316
PROPOSED 	DECISION
(3/29/99)
)
Appearances: 	Parham and Racjic by Jack Parham, 	Attorney, 	for
Oxnard Union High School 	District; 	Lawrence Rosenzweig, 	Attorney,
for Oxnard Federation of Teachers, 	Local 	1273; 	Maureen Whelan,
Staff 	Counsel, 	for California School 	Employees Association,
Oxnard Chapter 8 00.
Before Jerilyn Gelt, 	Hearing Officer
PROCEDURAL 	HISTORY
On May 18, 	1998,1 the 	Public Employment 	Relations Board
(PERB or Board) 	issued a 	tally of ballots 	after a decertification
election 	it 	conducted 	in 	the 	classified bargaining unit 	in 	the
Oxnard Unified School 	District 	(District).2 Of 	the
approximately 245 eligible voters, 	12 0 voted for the 	incumbent,
1All 	dates 	referenced herein 	are 	in 	1998 	unless 	otherwise
noted.
2Ballots were mailed by PERB on April 	27, 	due 	on May 	15 	and
counted on May 	18.
)
)
)
)
)
)
)
______________ )

Oxnard Federation of 	Teachers, 	Local 	1273 	(OFT),3 85 	voted 	for
the 	petitioner, 	California 	School 	Employees Association, 	Oxnard
Chapter 	800 	(CSEA), 	and 	1 	voted 	for 	"No 	Representation."4
On May 	29, 	CSEA 	filed 	objections 	to 	the 	election 	pursuant 	to
PERB 	Regulation 	32738.5 On 	June 	4, 	PERB 	requested 	that 	CSEA
3 OFT 	represents 	three 	bargaining 	units 	in 	the 	District:
certificated, 	classified, 	and paraprofessional.
4 One 	ballot 	was 	voided 	and 	five 	were 	challenged. 	The
challenged 	ballots 	were 	not 	counted 	since 	they 	were 	not
determinative.
5 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 	et 	seq. 	PERB Regulation
32738 	provides, 	in pertinent 	part:
(c) 	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.
(d) 	The 	statement 	of 	the 	objections 	must 	contain
specific 	facts 	which, 	if 	true, 	would establish 	that 	the
election 	result 	should be 	set 	aside, 	and 	must 	also
describe 	with 	specificity 	how 	the 	alleged 	facts
constitute 	objectionable 	conduct 	within 	the 	meaning 	of
subsection 	(c) 	above.
(f) 	At 	the 	direction of 	the 	Board, 	facts 	alleged
as 	supportive 	of 	the 	election 	conduct 	objected 	to 	shall
be 	supported 	by 	declarations. 	Such 	declarations 	must
be 	within 	the 	personal 	knowledge 	of 	the 	declarant, 	or
must 	otherwise 	be 	admissible 	in 	a 	PERB 	election
objections 	hearing. 	The 	declarations 	shall 	specify 	the
details 	of 	each 	occurrence; 	identify 	the 	person(s)
alleged 	to 	have 	engaged 	in 	the 	allegedly 	objectionable
conduct; 	state 	their 	relationship 	to 	the 	parties; 	state
where 	and 	when 	the 	allegedly 	objectionable 	conduct
occurred; 	and 	give 	a 	detailed 	description 	of 	the
22

submit 	declarations 	and argument 	in 	support 	of 	its 	objections
pursuant 	to PERB Regulation 32738 (f). 	CSEA filed two
declarations 	and no argument 	on June 	15. 	One 	of 	these
declarations 	raised new allegations 	regarding 	the 	conduct 	of
District 	supervisors. 	Responses 	to CSEA's 	objections were 	timely
filed by OFT 	and 	the 	District.
allegedly objectionable 	conduct. 	All 	declarations
shall 	state 	the 	date 	and place 	of 	execution and 	shall
be 	signed by 	the 	declarant 	and 	certified by him or her
to be 	true under penalty of 	perjury.
(g) 	The Board agent 	shall 	dismiss objections 	that
fail 	to 	satisfy the 	requirements 	of 	subsections 	(a)
through 	( d ) . . . .
An 	investigation of 	the 	documents 	submitted by 	all 	parties
revealed 	disputed 	facts 	which 	required 	resolution 	by 	a 	formal
hearing, 	which was held on November 	9 	and 10. 	Briefs were 	filed
and the 	case was 	submitted 	for decision on December 	28.
CSEA'S 	OBJECTIONS
CSEA filed 	four objections 	to 	the 	election, 	three 	alleging
District 	misconduct, 	and one 	alleging OFT misconduct.
Alleged 	District 	Misconduct
Objection #1 	alleged that, 	on 	"repeated occasions 	during 	the
month of April 	and the 	first 	two weeks 	of May", 	Transportation
Supervisor Rick 	Fowler 	stated 	that 	employees 	"would be 	fools 	for
voting 	for 	CSEA" 	and that 	they would be 	in danger 	of 	losing 	OFT
negotiated benefits, 	including a retirement medical benefit, 	if
CSEA won the 	election. 	The 	objection 	stated that 	Fowler
expressed this 	opinion to 	each 	and 	every employee 	under 	his
W3

supervision during 	the 	"relevant 	period." 	A new allegation
raised 	in 	CSEA's 	supporting 	declaration 	asserted 	that 	Fowler
allowed 	a unit 	employee 	to 	"damage/deface" 	CSEA posted
literature.
Objection #2 	contained allegations 	identical 	to 	those 	in
Objection #1, 	except 	that 	the 	individual 	alleged to have made 	the
statements was 	Custodial 	Supervisor Jim Gallagher. 	Additionally,
Objection #2 	stated 	that 	Gallagher 	asked unit 	employees 	which
union they 	supported during numerous visits 	to 	school 	sites.
CSEA's 	supplementary 	declaration 	raised 	new 	allegations 	claiming
that 	Gallagher 	conducted 	a 	surveillance 	of 	a 	CSEA meeting 	in
January 	1998 	and 	threatened employees 	"not 	to 	show at 	the
function 	or 	they would be 	put 	on report 	and would be 	called 	in on
the carpet."
Objection #3 	related to 	a 	flyer entitled 	"Retiree Medical
Benefits" 	issued by OFT on or about April 	24. 	The 	flyer
described the value 	of 	these 	benefits 	and 	compared 	retiree
coverage 	in 	the 	District 	to 	neighboring 	districts 	where 	employees
are 	represented by CSEA and 	another 	organization. 	The 	flyer 	also
described 	the 	composition of 	the District's 	medical 	committee 	and
trust. 	Finally, 	the 	flyer urged employees not 	to 	jeopardize
their 	retiree benefits 	and to vote 	for OFT. 	CSEA claimed that
the wording 	of 	the 	flyer 	implied a 	loss 	of benefits 	should CSEA
win 	the 	election.
Objection 	#4 	concerned 	the 	announcement 	during 	the 	election
period of 	a 	one-time 	salary bonus 	for 	all 	District 	employees
4
4

pursuant 	to 	an agreement 	between the District 	and OFT. 	CSEA
alleged 	that 	the 	District 	and OFT 	jointly announced 	the 	bonus 	in
a memo 	dated April 	30 which the District 	distributed to 	all
employees. 	The memo 	stated that 	the 	2.0718 	percent 	bonus would
be 	retroactive 	to July 1, 	1997, 	and would be distributed in the
May 2 9 	and July 10 	salary warrants.6
The 	objection 	stated 	that 	the 	District's 	past 	practice 	was
to 	issue 	salary bonuses 	in October or November, 	and that 	there
was 	no past 	practice 	of 	announcing 	the 	bonuses 	in a 	joint
communication. 	CSEA claimed that 	"the 	timing 	of 	the 	salary bonus
'agreement' 	combined with the 	joint 	communication was 	clearly
intended 	to 	influence 	the 	election outcome."
RESPONSES 	OF 	THE 	PARTIES
District's 	Response
The 	District 	submitted 	declarations 	from 	supervisors 	Fowler
and Gallagher, 	both of whom denied making 	the 	statements 	alleged
in CSEA's 	objections. 	Gallagher admitted 	informing 	custodians
that 	they could not 	attend 	a 	January 	1998 	CSEA meeting 	on work
time. 	He 	also 	acknowledged 	sitting 	in his parked 	car near that
meeting 	until 	he 	was 	approached by a District 	unit 	employee 	and
another 	individual, 	at which time he drove away.
The 	District 	also 	submitted 	a 	declaration 	from Assistant
Superintendent 	Richard W. 	Canady regarding 	the 	timing 	of 	the
6Adult 	education 	teachers 	are 	the 	only employees 	paid on 	the
10th of 	the month.
55

salary adjustments 	given to OFT unit 	members 	over 	the past 	five
years.
OFT's 	Response
OFT 	first 	argued that 	CSEA's 	objections 	should be 	dismissed
on procedural 	grounds.7 In the 	alternative, 	OFT asserted that
several 	of 	the 	allegations 	in the 	statement 	of 	objections were
not 	supported by 	the 	declarations 	and 	should be 	stricken. 	While
OFT's 	arguments were not without merit, 	PERB determined that
CSEA's 	procedural 	deficiencies 	did not 	warrant 	dismissal 	of 	the
objections. 	Furthermore, 	since 	the 	initial 	investigation of 	the
objections 	and 	the 	responses 	thereto 	revealed disputed 	facts
which required a 	formal 	hearing 	to 	resolve, 	PERB 	decided that 	all
allegations 	would be 	addressed 	in 	the 	hearing.
FACTS
Alleged Misconduct 	of 	Supervisor 	Gallagher
Gallagher 	supervises 	approximately 42 	full-time 	and 	7 	part-
time custodians, 	all 	of whom work the night 	shift 	(3:30 p.m. 	-
12:00 	a.m.). 	Gallagher met with the night 	custodians at 	each of
their work 	sites 	the 	evening before 	the 	January 	1998 	CSEA meeting
at 	Oxnard Elementary School 	District. 	He 	told 	them that 	24-hour
notice was 	necessary to 	attend any union meeting, 	and 	that 	they
could not 	use personal 	necessity leave, 	sick 	leave 	or
7CSEA's 	declarations 	were 	not 	served on OFT 	as 	required by
PERB regulations 	and PERB's June 	15 	letter. 	In addition, 	OFT
claimed 	that 	the 	declarations 	did not 	comply with 	the
requirements 	of 	the 	Code of 	Civil 	Procedure 	section 2 01.5 	(and
PERB Regulation 32738 (f)) 	in that 	neither stated the place 	of
execution or 	specified that 	the 	matters 	stated were 	within 	the
personal 	knowledge 	of 	the 	declarant.
66

compensatory time 	to 	attend 	the 	CSEA meeting.8 In 	response 	to
one 	custodian's 	question, 	Gallagher 	stated 	that 	attendance 	during
the 	lunch hour was 	acceptable.
Gallagher 	also 	told 	the 	custodians 	that 	he 	planned 	to be 	in
the 	area 	of 	the 	meeting 	and would 	report 	to 	the 	District 	anyone
he 	saw there 	on sick or personal 	leave. 	Gallagher parked his
District 	car 	approximately one 	half 	block 	from the 	site 	of 	the
CSEA meeting at 	about 	6:00 	p.m. 	the 	following evening, 	as people
were 	arriving. 	He 	remained there 	for a 	few minutes, 	until
Toliver and Phil Melnick, 	a CSEA staff 	organizer, 	began to walk
toward him. 	He 	then drove 	away.
Gallagher 	testified 	that 	his 	appearance 	near 	the 	CSEA
meeting was, 	in part, 	a response to a personal 	dispute between
himself 	and Toliver. 	He 	stated that 	he wanted to 	show Toliver
that 	he 	was 	not 	intimidated by him.
Approximately 	40-50 	District 	employees 	attended 	the 	CSEA
meeting. 	No night 	custodians 	attended the 	meeting.
Mike Miller has 	been a mechanic 	in the 	transportation
department 	for 	ten years 	and was 	a 	CSEA activist 	during 	the
campaign. 	He 	testified regarding two OFT meetings 	he 	attended at
a pizza parlor 	in November 	1997 	and 	February 	1998. 	He 	stated
that 	he was 	told by one 	of 	two night 	custodians 	in attendance
that 	Gallagher 	had given 	them permission 	to 	attend 	OFT 	meetings
on work time.
8Steven Toliver, 	a District 	bus 	driver and CSEA organizer,
testified that 	the 	custodians 	knew about 	the 	CSEA meeting 	a week
in advance.
77

No 	testimony was presented 	to 	support 	the 	allegations 	in
Objection #2 	that 	Gallagher made 	improper 	statements 	about 	CSEA
in the 	presence 	of 	classified unit 	members 	or 	that 	he 	asked
employees which union they supported. 	In 	fact, 	three 	custodians
testified that 	they never heard Gallagher make 	any 	such 	remarks.
Alleged Misconduct 	of 	Supervisor 	Fowler
Toliver 	testified 	that 	he 	asked 	Fowler 	if 	he 	could 	address
the 	bus 	drivers 	regarding 	CSEA during 	their monthly 	safety
meeting 	at 	the 	end of 	1997. 	Fowler told him that 	he 	could do 	so
during 	the 	break.
Toliver testified that 	in March or April, 	he was 	called to a
meeting with Superintendent 	Bill 	Studt, 	Personnel 	Director Wayne
Edmonds 	and 	Fowler. 	Studt 	informed him that 	he 	had 	received
information 	that 	Toliver was 	engaging 	in 	campaign 	activities
during work time. 	Studt 	then told him that, 	according to
District 	policy, 	he 	could not 	use District 	equipment 	for
campaigning, 	and that 	he 	could not 	campaign on-site 	during work
time. 	When Toliver questioned these 	instructions, 	Studt
consulted with Edmonds 	and 	corrected himself, 	stating 	that
Toliver was 	allowed 	to 	campaign on-site 	during 	break 	time.9
Fowler 	testified 	that 	he 	believed 	the 	superintendent 	was
instructing 	both him and 	Toliver 	regarding 	campaign parameters,
9In 	late 	1997 	and/or early 	1998, 	Edmonds met 	separately with
both 	CSEA 	and 	OFT 	representatives 	regarding 	their 	campaign
activities. 	He 	told both groups 	that 	they could 	speak with
employees 	regarding the 	campaign during breaks, 	lunch and non-
work time. 	He 	also 	informed them that 	they could not 	use
District 	equipment 	for 	campaigning.
8

and that 	it 	was 	his 	responsibility to ensure 	that 	campaign
activities 	did not 	take place 	during work time. 	Toliver
testified 	that 	Fowler made 	unwarranted 	accusatory 	comments 	to 	him
about 	using District 	time 	to 	conduct 	union business 	approximately
three 	times 	during 	the 	election period.
Toliver 	also 	testified 	regarding 	a 	monthly 	safety meeting 	in
early April 	at 	which 	12-13 	of 	the 	15 	bus 	drivers 	and Fowler were
present. 	The 	bus 	drivers 	were 	discussing 	the possibility of 	the
District 	contracting out 	transportation. 	Fowler 	indicated 	that
the District 	was 	seriously looking 	into 	it, 	noting 	that 	Dr.
Canady 	and 	another 	management 	employee 	had 	requested 	route 	sheet
information 	from him. 	Fowler 	told 	the 	drivers 	that 	they 	could
"win a battle, 	but 	lose 	a war." 	Toliver understood that 	comment
to mean 	that 	the District 	would contract 	out 	transportation 	if
CSEA won 	the 	election. 	Toliver was 	aware 	that 	OFT 	and the
District 	were 	discussing 	contracting 	out 	at 	the 	bargaining 	table.
Toliver 	stated 	that 	Fowler made 	no 	comments 	specifically about
the 	election or voting.
Bus 	drivers Albert 	Lemos 	and Dennis 	Boiling both also
recalled 	Fowler making 	comments 	which 	they 	considered 	to 	be
supportive of 	OFT at 	the April 	safety meeting. 	Lemos 	testified
that 	Fowler 	said 	they should 	"look at 	the 	big picture" 	when
deciding who 	to vote 	for, 	because 	the District 	was 	considering
contracting 	out. 	Lemos 	interpreted 	this 	to mean that 	"you could
lose what you have" 	if 	CSEA won the 	election. 	Boiling remembered
Fowler making 	similar 	comments 	on one 	occasion 	to 	himself 	and one
9

or two 	other bus 	drivers 	in the break room at 	Rio Mesa High
School, 	but 	he was unsure as 	to when this 	conversation took
place.
Lemos 	also 	recalled a 	conversation with 	five 	bus 	drivers 	at
the 	Rio 	Mesa bus 	barn 	in which 	Fowler opined 	that 	the 	employees
would be 	"stronger" 	if 	they stayed with OFT. 	Lemos was 	unclear
as 	to when 	this 	conversation took place.
Boiling 	testified 	that 	Fowler's 	statements 	had no 	impact 	on
how he voted. 	Toliver 	stated that 	he believed all 	of 	the bus
drivers 	voted 	for CSEA 	in the 	election.
Miller 	also 	testified 	regarding 	Fowler's 	alleged 	improper
statements. 	He 	stated that 	in early fall 	of 	1997, 	Fowler
expressed support 	of 	the decertification effort. 	However, 	in
January, 	Fowler began making negative 	comments 	regarding CSEA.
Miller 	said 	that 	he 	heard 	Fowler 	say 	that 	employees 	would be
"fucking 	stupid to vote 	for CSEA" 	once 	in January or 	February.
He 	claimed that 	Fowler made 	similar 	comments 	often, 	but 	was
unspecific 	as 	to 	the 	content 	of 	the 	comments 	or when they were
made. 	Miller 	stated 	that 	he 	never personally heard 	Fowler 	tell
anyone 	they would 	lose 	their benefits 	if 	CSEA won 	the 	election,
but 	that 	bus 	drivers 	would 	express 	such 	concerns 	to 	him after
speaking 	to 	Fowler. 	Miller testified that 	a majority of 	the
transportation department 	employees 	favored CSEA 	in 	the 	election.
According to Miller, 	Fowler also made 	statements 	to 	the
effect 	that 	the 	District 	was 	considering 	contracting 	out
transportation 	if 	the decertification attempt proceeded, 	but 	he
10

could not 	be 	specific 	as 	to when these 	comments 	were 	made.
Miller 	stated 	that 	he was 	unaware 	that 	contracting 	out 	was 	an
issue 	currently being 	addressed 	in bargaining 	between 	OFT 	and 	the
District.
Miller 	testified 	that 	Fowler 	accused 	him of 	using 	work 	time
to conduct 	CSEA business, 	while allowing John Harbour, 	OFT
executive 	director during the 	1997-98 	school 	year, 	free 	access 	to
the 	bus 	yard.10 He 	asserted that 	he 	saw Harbour at 	the yard at
least 	once 	a week during 	the 	campaign period, 	and 	that 	Harbour
"harassed" 	CSEA supporters, 	including himself, 	while there.
Miller 	stated 	that 	he 	posted CSEA flyers 	in the yard, 	but
that 	they were 	often defaced and 	torn down. 	He 	testified 	that
the 	OFT 	flyers posted by Michael 	Ferraro, 	the bus 	driver trainer,
were 	not 	defaced or 	torn down. 	He 	accused Ferraro 	of 	defacing
the 	CSEA 	flyers 	with Fowler's permission, 	but 	admitted that 	he
had no 	evidence 	to 	support 	this 	accusation.
Ferraro 	credibly testified 	that 	he 	did not 	deface 	or 	remove
the 	flyers, 	and that 	Fowler did not 	give him permission to do 	so.
In addition, 	Ferraro 	stated 	that 	he 	never heard 	Fowler 	say that
employees 	would be 	fools 	to vote 	for 	CSEA or that 	they would 	lose
benefits 	if 	CSEA won the 	election.
10During his 	two years 	as 	OFT executive 	director, 	Harbour
was 	on 	full 	release 	time 	from his 	teaching position with 	the
District. 	His 	responsibilities 	included negotiating 	contracts
for all 	three 	units, 	monitoring the 	contractual 	salary formula,
processing grievances 	and, 	during 	the 	decertification period,
campaign activities.
11

Alleged 	Employer 	Misconduct
The 	District 	and OFT have 	a 	complex 	salary 	agreement 	which
is 	contained 	in Article 	16 	of 	the 	certificated 	contract 	and
incorporated by 	reference 	in 	the 	classified 	contract. 	The
agreement 	provides 	a 	"unit 	share" 	salary 	formula which allows 	for
a 	share 	of 	designated District 	revenues 	to 	be 	allocated 	to 	the
units 	for on-going expenses 	(salary and benefits).
The 	formula 	is 	based on actual 	and projected revenues 	(i.e.,
state 	funding, 	average daily attendance 	(ADA) 	and occasional 	one-
time 	funding sources) 	as well 	as unit-related expenditures. 	The
contract 	provides 	that 	if 	these 	amounts 	are 	greater or 	less 	than
projected, 	the 	parties 	will 	meet 	to determine 	when and how an
adjustment 	shall 	be made. 	If 	the 	amount 	of 	an adjustment 	is
small, 	it may be 	carried over to the 	following year.
Harbour 	testified 	that 	initial 	meetings 	to 	discuss 	the 	unit
share projections 	occur every year 	in August, 	when 	state budget
and ADA projections 	are 	first 	available. 	Subsequent 	meetings
occur at various 	times 	throughout 	the year. 	Initial 	estimates
are 	typically 	conservative 	in order 	to 	avoid a 	situation 	in which
employees would have 	to pay monies 	back to 	the 	District.
The 	District 	is 	subject 	to 	several 	audits 	throughout 	the
year. 	The 	first 	audit 	takes place 	in October, 	when the 	first ADA
count 	is 	submitted to the 	state. 	Another audit 	occurs 	in April,
when a 	second ADA count 	is 	submitted. 	There 	is 	also 	an audit
after the 	end of 	the 	fiscal 	year on June 	30.
12

Over the past 	five years, 	application of 	the unit 	share
formula 	has 	resulted 	in annual 	on-schedule 	salary 	increases
(except 	for 1996-97), 	as well as off-schedule salary bonuses.
The bonuses were 	issued in July 	1993, 	April 	and June 	1995,
October 	1995, 	October 1996, 	October 	1997 	and May 	1998.11 It 	is
the 	alleged 	joint 	announcement 	of 	the May bonus 	which 	forms 	the
basis 	for CSEA's 	objection.
Harbour 	testified 	that 	he became 	aware 	in October 	1997 	that
the 	initial 	ADA projections were 	low. 	He 	scheduled a meeting
with the District 	on January 15, 	to 	request 	that 	a bonus be paid
at 	that 	time. 	He 	testified that 	the bonus was based on low ADA
projections 	for 	1997-98 	and 	one-time 	equalization money paid by
the 	state12 in 	1997-98 	for the 	1996-97 	school 	year.13 The
District 	was 	unwilling to grant 	the bonus 	in January due 	to 	its
uncertainty about 	the numbers, 	and another meeting was 	held on
March 	12. 	At 	that meeting, 	the District 	stated that 	it 	could not
finalize 	the 	adjustment 	amount 	until 	after 	the April 	ADA audit
was 	completed. 	Another meeting took place 	on April 	29, 	when the
11Harbour testified 	that 	an 	off-schedule 	salary payment 	was
made 	in September 	1997. 	This 	contradicts 	Canady's 	declaration,
which 	stated that 	the 	September 	1997 	increase was 	on-schedule.
-In the 	context 	of 	the questioning, 	it 	appears 	that 	Harbour 	spoke
in error, 	and that 	the declaration, 	admitted into evidence
without objection, 	is more reliable.
12This 	is 	money paid to 	districts 	which received 	funds 	below
the 	state 	average.
13The 	parties 	stipulated 	that 	the 	May bonus 	was 	money
allocated for the 	1997-98 	school 	year. 	This does 	not 	appear to
contradict 	Harbour's 	statement.
13

final 	amount 	for the 	salary bonus was 	determined, 	subject 	to
school 	board approval.
Angelita Dalan, 	a 	financial 	account 	technician and CSEA
supporter, 	testified that 	she 	questioned 	the District's
accountant, 	Randy Winton, 	about the timing of 	the bonus. 	She
thought 	that 	the 	timing was 	highly unusual 	since 	she 	believed
that 	the 	bonus 	was 	based on unaudited 	funds 	for the 	1997-98
budget. 	Winton 	told Dalan 	that 	Harbour had 	requested 	an ADA
update 	from him, 	and that 	he believed the 	quick estimate 	he
prepared became 	the 	basis 	for 	the 	bonus.
Two memoranda were written regarding 	the 	bonus. 	One 	was
written by Canady 	and 	the 	other by OFT.
Canady wrote 	a 	memorandum on District 	letterhead 	to 	all
represented employees 	from the District 	and OFT 	dated April 	3 0
announcing 	a 	2.0718 	percent 	salary bonus 	to be 	distributed on
May 29 	and July 10. 	However, 	Canady did not 	distribute 	the memo;
he 	faxed a 	copy to Harbour 	for his 	information.14
Vicki 	Holmbom, 	OFT classified vice president, 	testified that
she 	saw Canady's 	memo on Harbour's 	desk 	in the 	OFT office.
Holmbom typed and signed a note 	on the memo 	to Dalan. 	She 	then
sent 	a 	copy to Dalan and gave 	copies 	to 	two 	of 	her 	friends 	at 	two
District 	high 	schools 	and 	two 	friends 	in her office pool.
Dalan testified that 	she 	saw the memo 	at 	two 	locations 	in
Hueneme High School, 	and was 	also 	shown a 	copy by a 	friend at
14There 	was 	no 	testimony 	regarding 	Canady's 	intended purpose
for the memo.
14

Channel 	Islands High School. 	James Lopez, 	a custodian at
Camarillo High 	School, 	testified that 	he 	never 	saw a 	copy of
Canady's 	memo 	during 	the 	election 	campaign.
OFT's 	flyer 	to 	certificated, 	classified and paraeducator
staff 	announced 	a 	2.0718 	percent 	off-schedule 	salary bonus
retroactive to July 1, 	1997, 	to be 	included in their May 2 9 or
July 	10 	paychecks 	pending 	school 	board approval.15 The 	flyer
was 	distributed 	to 	employees 	on May 	1.
RULE OF LAW
Under PERB Regulation 32738 (c) (1), 	the Board will entertain
objections 	to 	the 	conduct 	of 	an election when the 	conduct
complained of 	interfered with the 	employees' 	right 	to 	freely
choose a representative. 	Such objections, 	however, 	must meet the
following requirements 	set 	forth in PERB Regulation 32738(d):
The 	statement 	of 	the 	objections must 	contain
specific facts which, 	if true, 	would
establish 	that 	the 	election 	result 	should be
set 	aside, 	and must 	also describe with
specificity how 	the 	alleged 	facts 	constitute
objectionable 	conduct 	within 	the 	meaning 	of
subsection 	(c) 	. . . .
Objections 	which 	fail 	to 	satisfy these 	requirements 	are
dismissed. 	(PERB Regulation 	32738(g).)
A party objecting 	to 	an 	election must 	present 	a prima 	facie
showing 	that 	specific 	acts 	took place which 	interfered with 	the
election process. 	(San Ramon Valley Unified 	School 	District
(1979) 	PERB Decision No. 	111.) 	This burden of proof contains two
components, 	both of 	which must 	be 	established by the 	objecting
15The 	school board approved the bonus on May 13 .
15

party. 	The 	first 	component 	is 	improper conduct, 	and the 	second
is 	impact 	on voters. 	Thus, 	even where the objecting party
demonstrates 	conduct 	constituting 	an unfair practice,16 such
unlawful 	conduct 	is 	only a 	threshold question, 	which will 	not
require 	that 	an election be 	rerun unless 	impact 	is 	also
demonstrated.
The basic 	inquiry is whether, 	taken as a whole, 	the various
unlawful 	activities 	establish a 	"probable 	impact 	in 	the
employees' 	vote." 	(Jefferson Elementary School 	District 	(1981)
PERB Decision No. 	164.) 	The determination of probable 	impact 	is
made 	based on 	a 	consideration of 	the 	facts 	submitted by 	the
objecting party, 	which may include, 	for example, 	the number,
nature 	and timing of 	the 	improper acts, 	and the number of
employees 	affected by or aware 	of 	the 	acts.
It 	is unnecessary that 	actual 	impact 	be 	shown. 	(San Ramon
Valley Unified School District, 	supra, 	PERB Decision No. 	111.)
Indeed, 	to 	require 	employees 	to 	submit 	declarations 	indicating
their ballot 	choice 	and why 	they voted 	for 	that 	choice 	would be
contrary to 	PERB's 	respect 	for ballot 	secrecy. 	Further, 	a
voter's 	subjective 	reaction 	to 	alleged 	improper 	conduct 	is
essentially irrelevant. 	The 	standard is 	an objective 	one, 	that
is, 	whether a voter 	could reasonably have 	been 	influenced.
(State 	of 	California 	(Department 	of 	Personnel 	Administration
16Under 	earlier Board regulations, 	the 	conduct 	complained of
needed to be 	"tantamount 	to 	an unfair practice." 	Under 	current
regulations, 	the 	conduct 	complained of needs 	to be 	at 	least
"improper." 	(Pasadena Unified School 	District 	(1985) 	PERB
Decision No. 	530.)
16

(1992) 	PERB Decision No. 	948-S; 	Clovis Unified School District
(1984) 	PERB Decision No. 	389.)
The 	regulations 	and 	legal 	standards 	which exist 	to 	ensure
that 	elections 	are 	conducted without 	undue 	interference 	from
parties 	also exist 	to ensure 	that 	employees' 	votes 	are 	not
unnecessarily set 	aside. 	This 	results 	in a need to balance
competing 	interests, 	as 	occurred in State 	of 	California
(Department 	of 	Personnel Administration) 	(1986) 	PERB Decision No.
601-S 	(State of California). 	In that case, 	the state was 	found
to have violated certain portions 	of 	the Ralph C. 	Dills Act
(Dills Act)1 7 by the actions of its agents, 	including comments
which were 	found 	to 	constitute 	advocacy on behalf 	of 	one 	of 	the
competing organizations. 	The 	state was 	also 	found 	to have
interfered with 	the 	objecting 	organization's 	access 	rights.
Nevertheless, 	the Board concluded that
[t]he 	record does 	not 	support 	setting 	aside
the 	election and denying 	employees 	the 	free
choice 	to 	select 	another 	representative
because of 	the 	limited, 	almost minimal,
nature of 	the violations.
It 	is 	against 	these 	standards 	that 	the 	objections 	in this
case 	have 	been measured.
DISCUSSION
As 	noted above, 	CSEA 	filed 	four objections 	to 	the 	election.
Objection #3 	alleged 	that 	an OFT 	flyer 	contained a 	threat 	of 	loss
of 	benefits. 	CSEA presented no 	testimony to 	support 	this
17The 	Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq.
17

allegation, 	nor was 	it 	addressed in CSEA's brief. 	Furthermore,
on its 	face, 	the 	flyer contained no 	such threat. 	Objections 	#3 	is
therefore 	dismissed.
In 	its brief, 	CSEA relies on evidence 	it 	introduced
concerning 	several 	events 	outside 	the 	scope 	of 	the 	four
objections 	to 	support 	its 	contention 	that 	the 	election 	should be
set 	aside.18 These 	events 	include 	(1) 	the attendance of
District 	employees 	at 	an OFT meeting 	in a pizza parlor 	in
November 	1997 	and February; 	(2) 	the 	alleged campaign activities
of Harbour at 	the bus yard; 	(3) 	the meeting of 	Superintendent
Studt with Toliver and Fowler; 	and 	(4) 	the occasions 	at which
Fowler made 	remarks 	to bus 	drivers 	concerning 	contracting 	out
transportation. 	CSEA's 	statement 	of 	objections 	was 	never 	amended
to 	include 	allegations 	arising 	from these 	events.
OFT 	argues 	that 	allegations 	arising 	from events 	outside 	the
scope 	of 	the 	objections 	filed by CSEA are 	irrelevant 	and 	should
be 	dismissed. 	In addition to 	those 	stated above, 	OFT asserts
that 	CSEA's 	allegations 	regarding Gallagher's 	conduct 	surrounding
the 	1998 	CSEA meeting are 	also outside 	the 	scope 	of 	the
objections 	and 	should be 	disregarded.
OFT points out 	that 	PERB Regulation 32 73 8 	requires that
objections 	to 	the 	conduct 	of 	an election must 	contain 	specific
18Testimony 	regarding 	these 	events 	was 	admitted 	into
evidence 	over 	the 	consistent 	relevance 	objections 	of 	OFT 	and 	the
District, 	and with the 	admonition by the undersigned that 	the
testimony would be 	given 	its 	appropriate 	weight 	in 	this 	decision.
The 	parties 	were 	also 	instructed 	that 	they could 	submit 	argument
in 	support 	of 	their relevance 	objections 	in their briefs.
18

facts 	and 	supporting 	argument 	and must 	be 	filed within 	a 	10-day
period following 	the 	service 	of 	the 	tally of 	ballots. 	In
addition, 	if 	declarations 	are 	required, 	as 	they were 	in this
case, 	the declarations must 	give 	a detailed description of 	the
objectionable 	conduct. 	OFT argues 	that 	these 	rules 	do not 	allow
for 	adjudication of 	new allegations 	which have 	not 	been processed
administratively. 	Furthermore, 	OFT claims 	that 	basic 	due process
requires 	notice 	of 	the 	alleged misconduct 	prior 	to 	the
commencement 	of 	the hearing.
While 	PERB has 	not 	expressly addressed this 	issue, 	case 	law
under the National 	Labor Relations 	Board 	(NLRB) 	is 	instructive.
In Clark Manor Nursing Home Corp. 	(1982) 	254 NLRB 455 	[106 LRRM
1231], 	enforced in part 	and reversed in part 	on other grounds,
671 	F.2d 657 	[109 LRRM 3151], 	the NLRB determined that 	an
election may be 	set 	aside 	based 	on 	conduct 	discovered during 	the
investigation of 	objections 	to an election, 	even though the
specific 	conduct 	was 	not 	raised 	in 	the 	statement 	of 	objections.
However, 	this policy is a restricted one.
In Burns 	International 	Security Services 	(1981) 	2 56 NLRB
959, 	960 	[107 LRRM 1425], 	the NLRB held that 	this policy does not
allow 	consideration 	of 	evidence 	raised 	in untimely
"supplementary" 	objections 	based on newly discovered 	evidence
which had no bearing on the 	timely objections, 	and which was
discovered by 	the 	filing party 	after 	the 	timely 	objections 	were
filed. 	The board noted that
The 	line 	between 	evidence 	discovered 	during
the 	investigation and new, 	untimely
19

objections 	will 	not 	always 	be 	glaringly
clear. 	The 	difficulty lies 	in balancing the
desirability of 	insuring 	that 	the 	election
results 	truly reflect 	the 	free 	choice 	of 	the
employees 	against 	the 	potential 	mischief
inherent 	in permitting 	an 	objecting party 	to
take 	control 	over 	the 	investigation 	away 	from
the Regional Director. 	[Id.]
While 	it 	may be 	appropriate 	to 	consider new evidence 	that
bears 	directly on 	timely objections, 	such 	consideration may cause
delay in the 	investigation. 	Therefore, 	allegedly newly
discovered 	evidence 	should 	normally be 	considered 	only upon 	clear
and convincing proof 	that 	it 	is not 	only newly discovered, 	but
also 	previously 	unavailable. 	[Id.]
The 	NLRB 	has 	also 	refused 	to 	consider new allegations
unrelated 	to 	the 	timely 	filed objections 	even 	though 	they were
submitted prior 	to 	the 	initiation of 	the 	investigation 	and within
the 	timelines 	for 	submission of 	supporting 	evidence.19
None 	of 	the 	allegations 	of 	objectionable 	conduct 	arising
from the 	four events 	listed on page 	18 	was 	raised prior 	to 	formal
hearing. 	CSEA made 	no 	showing 	that 	evidence 	concerning 	these
events 	was 	newly discovered or previously unavailable. 	On 	the
contrary, 	each of 	these 	events 	involved District 	employees 	who
were 	active 	CSEA organizers 	during 	the 	decertification 	campaign.
Therefore, 	in light 	of PERB regulations, 	NLRB precedent 	and due
process 	considerations, 	no 	findings 	in this 	decision shall 	be
based on the 	following events: 	(1) 	the attendance of District
employees at 	the OFT pizza parlor meetings; 	(2) 	Harbour's
19Rhone-Poulenc, 	Inc. 	(1984) 	271 NLRB 1008 	[117 LRRM 1164],
enforced 	(1986) 	789 	F.2d 188 	[122 	LRRM 2193].
20

activities at 	the bus yard; 	(3) 	the meeting of 	Superintendent
Studt with Toliver and Fowler; 	and 	(4) 	Fowler's 	comments
regarding 	contracting out.20
What 	distinguishes 	the 	allegations 	of 	misconduct 	by
Gallagher 	is 	that 	they were 	raised 	in CSEA's 	supporting
declaration 	and 	addressed 	in 	the 	District's 	responding
declaration, 	thereby arguably putting OFT 	on notice 	that 	they
20Even 	if 	these 	allegations 	had been 	raised 	in 	CSEA's
statement 	of objections, 	they do not 	rise 	to the 	level 	of
objectionable 	conduct 	for 	the 	following 	reasons.
Miller was 	the 	only witness who 	testified regarding 	(1) 	the
alleged attendance 	on work 	time 	of 	District 	employees 	at 	the 	OFT
pizza parlor meetings 	and 	(2) 	Harbour's 	alleged harassment 	and
unfettered access 	to 	the 	bus yard 	for campaign activities.
Miller's 	demeanor while 	testifying, 	including 	unsolicited hostile
remarks 	to 	the 	OFT attorney, 	revealed his 	antagonism toward OFT.
In 	light 	of 	this, 	his unsubstantiated testimony regarding 	these
matters 	is 	found to be unreliable. 	In addition, 	as discussed
infra, 	the OFT meetings 	occurred prior to 	the 	filing of 	the
decertification petition 	and 	the 	commencement 	of 	the 	employer's
obligation of 	strict 	neutrality.
There 	is 	no 	evidence 	to 	support 	CSEA's 	allegations 	that 	the
superintendent's 	meeting 	with 	Fowler 	and 	Toliver was 	threatening
or 	exhibited 	favoritism to 	one 	organization over 	another. 	No
action was taken against Toliver, 	and, 	in fact, 	Fowler believed
the 	superintendent's 	instructions were 	directed at 	him as 	well 	as
Toliver. 	Furthermore, 	the 	superintendent's 	instructions
regarding 	access 	and use 	of 	District 	equipment 	were 	consistent
with PERB 	case 	law. 	(Long Beach Unified 	School 	District 	(1980)
PERB Decision No. 	130; 	Marin Community College District 	(1980)
PERB Decision No. 	145.)
Finally, 	Fowler's 	statements 	that 	the District was 	looking
into 	contracting 	out 	transportation were 	supported by 	the 	fact
that 	the 	issue was 	known 	to be 	a 	current 	topic 	of 	discussion at
the bargaining table. 	Under the NLRB, 	an employer may lawfully
offer 	noncoercive 	opinion 	and make 	predictions 	based upon
"objective 	fact" 	about 	"demonstrably probable 	consequences 	beyond
his control." 	(NLRB v. 	Gissell Pacing Co. 	(1969) 	395 U.S. 	575,
618 	[71 	LRRM 2481].) 	Fowler's 	remarks were based on objective
fact 	and 	did 	not 	specifically 	inform employees 	that 	they would
lose 	their jobs 	if 	CSEA won the 	election.
21

would be 	addressed at 	the 	hearing. 	These 	allegations 	are 	also
related 	to 	the 	alleged misconduct 	contained 	in Objection 	#2.
Therefore, 	Gallagher's 	conduct 	regarding 	the 	1998 	CSEA meeting
will 	be 	considered herein.
For the 	reasons 	stated above, 	the 	allegations which will 	be
discussed below 	are 	limited 	to 	Gallagher's 	alleged misconduct 	as
contained 	in Objection 	#2 	and 	in 	the 	allegations 	concerning 	the
January 	1998 	CSEA meeting, 	the 	alleged 	improper 	statements 	made
by Fowler 	in Objection #1, 	and the 	announcement 	and issuance of
the May 	1998 	salary bonus 	as 	stated 	in Objection #4.
Gallagher's 	Alleged 	Misconduct
No 	evidence 	was 	presented 	to 	support 	the 	specific
allegations 	in Objection #2, 	i.e., 	that Gallagher told his
subordinates 	that 	they would be 	"fools 	for voting 	for CSEA," 	that
they would 	lose 	benefits 	if 	CSEA won the 	election, 	and 	that 	he
queried unit 	employees 	as 	to which union they supported. 	These
allegations 	are 	therefore 	dismissed.
It 	is 	undisputed that 	Gallagher 	informed 	the 	custodians 	the
night 	before 	the 	January 	1998 	CSEA meeting 	that 	they 	could not
attend the meeting on personal 	leave, 	since 	24-hour notice was
required to 	approve 	such time 	off. 	Gallagher's 	instructions were
in line with District policy, 	and, 	therefore, 	not
objectionable.21
21CSEA alleges 	that 	the 	custodians 	were 	intimidated by
Gallagher during these meetings. 	According to witnesses,
however, 	this 	is nothing new. 	Gallagher is generally perceived
as 	an 	intimidating 	supervisor.
22

It 	is 	also undisputed that 	he 	parked his 	car near the
meeting 	site 	for a 	few minutes 	as 	people were 	arriving. 	This
type 	of 	surveillance 	is 	generally 	found 	to 	constitute 	an unfair
labor practice under the National 	Labor Relations Act. 	(Harbin,
The Developing Labor Law 	(3d Edition, 	1997 	Cumulative
Supplement), 	pp.127-128.) 	However, 	it is axiomatic under NLRB
case 	law that 	conduct 	occurring prior 	to 	the 	filing of 	a
representation petition will 	not 	be 	considered 	in post-election
objections.22 This 	is 	true 	even when 	such conduct 	constitutes
an unfair labor practice.23 In certain circumstances, 	where
pre-petition conduct 	is 	so 	egregious 	as 	to not 	only constitute 	an
unfair labor practice but 	also abuse 	the 	electoral 	process, 	the
NLRB 	has 	considered 	such 	conduct 	and 	found 	it 	sufficient 	to
overturn an election.24
In this 	case, 	while Gallagher's 	surveillance of 	the January
1998 	CSEA meeting was 	improper, 	it 	lasted only a 	few minutes 	and
occurred more 	than 	one month prior 	to 	the 	filing 	of 	the
decertification petition 	(and over 	three 	months 	prior 	to 	the
election). 	There 	is no evidence that 	this 	incident was part of a
22This 	rule was enunciated in Ideal 	Electric 	& Mfg. 	Co.
(1961) 	134 NLRB 	1275 	[49 LRRM 1316]. 	PERB has 	similarly held
that 	an 	employer's 	obligation 	to maintain 	strict 	neutrality
during 	the 	pendency of 	a 	question 	concerning 	representation 	is
initiated by the 	filing of 	a 	representation petition. 	(Pittsburg
Unified School District 	(1983) 	PERB Decision No. 	318; 	Santa
Monica Community College District 	(1979) 	PERB Decision No. 	103.)
"Allied Stores 	Corporation 	(1992) 	308 NLRB 	184 	[141 	LRRM
1009]; 	Mountaineer Bolt 	(1990) 	300 NLRB 667 	[135 LRRM 1228,
1229] .
24Ron Tirapelli 	Ford 	(1993) 	987 	F.2d 433 	[142 	LRRM 2655].
23

pattern of misconduct, 	nor was 	it 	so egregious 	as 	to be
considered abusive of PERB's 	electoral 	process. 	Therefore, 	the
allegations 	concerning Gallagher's 	surveillance 	of 	the 	January
1998 	CSEA meeting 	are 	dismissed.
Fowler's 	Alleged 	Improper 	Statements
In Rio 	Hondo 	Community College 	District 	(1980) 	PERB Decision
No. 	12 8,25 the Board concluded that 	an employer has 	the 	right
. 	. 	. 	to express its views on employment
related matters 	over which 	it 	has 	legitimate
concerns 	in order 	to 	facilitate 	full 	and
knowledgeable debate. 	. 	. 	.
But 	the 	right 	of 	employer 	speech 	is 	not 	unlimited and
. 	. 	. 	speech which contains a threat of reprisal
or 	force 	or promise 	of 	benefit 	will 	be perceived
as 	a means 	of violating the Act 	and will,
therefore, 	lose 	its 	protection 	. . . .
Several 	witnesses 	testified 	that 	Fowler made 	remarks 	to bus
drivers 	under his 	supervision during 	the 	pre-election period
suggesting 	that 	they should 	"look at 	the big picture" 	when
considering whether 	to vote 	for CSEA or OFT. 	He 	stated that 	they
could 	"win the 	battle but 	lose 	the war" 	if 	they voted 	for CSEA,
and 	that 	they would be 	"stronger" 	if 	they 	stayed with OFT because
it 	also 	represents 	certificated employees. 	One 	employee
testified that 	Fowler 	stated on one 	or 	two 	occasions 	that
employees 	would be 	"fucking 	stupid 	if 	they voted 	for 	CSEA," 	and
continued 	to 	make 	similar 	comments 	during 	the 	election period.
25See 	also 	Kern Community College 	District 	(1985) 	PERB
Decision No. 	533.
24

In State 	of 	California, 	the Board held that 	remarks 	similar
to 	Fowler's 	made 	by 	supervisory employees 	stepped 	beyond 	the
bounds 	of 	opinion 	and constituted advocacy on behalf 	of 	one 	of
the competing organizations. 	In that 	case, 	such remarks 	included
statements 	that 	one 	of 	the 	competing organizations 	was 	a much
better organization than the other, 	and 	"I 	hope 	they beat 	the
hell 	out 	of 	you." 	The 	Board 	found that 	those 	statements were
improper 	in 	the 	context 	of 	the 	election 	(and also 	constituted
unfair practices) 	since 	they had the 	"natural 	effect 	of
discouraging 	an 	employee 	from engaging 	in protected 	conduct."
Because 	these 	statements 	were made 	to 	a very small 	group 	of
employees, 	however, 	the Board held that 	their impact was minimal
and, 	along with the other objectionable 	conduct, 	did not 	warrant
setting 	aside 	the 	election.
In this 	case, 	Fowler's 	remarks 	supportive of OFT were also
made 	to 	a 	small 	group of 	employees 	in the 	transportation
department, 	albeit 	a much larger percentage of 	the bargaining
unit 	(6 percent) 	than in State of California. 	His 	remarks were
repeated at 	various 	times 	during 	the 	election period.
Fowler's 	repeated 	statements 	to his 	subordinates 	that 	they
would be 	better 	off 	with OFT 	rather 	than CSEA were 	clearly
improper under State of 	California. 	However, 	in light 	of 	the
small 	number of 	employees 	to whom they were 	addressed 	and 	the
fact 	that 	two 	of 	those 	employees were 	CSEA activists 	throughout
the campaign, 	it 	is determined that 	the probable 	impact 	of
25

Fowler's 	statements 	was 	minimal 	and 	insufficient 	to warrant
setting 	aside 	the 	election.
The 	May 	1998 	Salary Bonus
No 	evidence 	was 	presented 	regarding 	the District's 	past
practice 	of 	announcing 	the 	issuance 	of 	off-schedule 	salary
adjustments 	(bonuses). 	In this 	instance, 	although an
announcement 	was prepared by Canady, 	neither he 	nor 	any other
District 	official 	distributed 	it. 	Canady did 	fax a 	copy to 	the
OFT office 	for Harbour's 	review. 	Holmbom typed 	a note 	to Dalan
on a 	copy of 	the 	announcement, 	and sent 	it 	to Dalan and to 	four
other 	friends 	in the District.
CSEA alleges 	that 	Canady's 	memo 	is 	objectionable 	since 	it
appeared 	to 	be 	from the 	District 	and OFT 	(thus 	giving 	OFT 	credit
for the bonus), 	and was 	suitable 	for distribution, 	even though it
was 	distributed by an OFT agent 	rather than the 	District. 	CSEA
contends 	that 	the memo had a probable 	effect 	on the 	election, 	and
the 	fact 	that 	it 	was 	not 	distributed by the District 	is
immaterial.
On the 	contrary, 	since 	Canady's memo was 	not 	distributed to
employees by the District, 	and was, 	in fact, 	sent only to the OFT
office, 	the District 	can hardly be 	found to have violated 	its
obligation of 	strict 	neutrality by merely writing 	it. 	Even a
finding 	that 	the 	memo was 	improperly distributed 	to 	five
individuals 	by OFT would not 	constitute 	objectionable 	conduct,
since 	there was 	no 	showing 	that 	more 	than a 	few 	individuals 	saw
the memo. 	Therefore, 	this allegation is dismissed.
26

It 	is undisputed that 	the District 	and OFT reached
agreement 	on April 	29 	on the 	amount 	(2.0718 	percent) 	of 	the bonus
to be 	issued to 	all 	District 	employees 	on May 29 	or July 	10,
subject 	to Board of 	Education approval. 	It 	is 	also undisputed
that 	OFT announced this 	bonus 	in a memo 	to 	all 	employees 	dated
May 	1, 	shortly after 	the ballots 	were mailed to 	classified
employees on April 	27. 	The District's 	Board of 	Education
subsequently approved the 	issuance 	of 	the 	bonus 	at 	its May 	13
meeting.
The 	record reflects 	that 	the 	agreement 	on the 	May bonus 	was
reached pursuant 	to 	the 	contractual 	salary 	formula 	and 	the
established 	bargaining 	relationship 	between 	OFT 	and 	the 	District.
The practice, 	in short, 	is 	for OFT to review ADA figures
periodically 	and 	to 	seek 	an 	off-schedule 	salary 	adjustment 	when
and 	if 	it 	determines 	that 	on-schedule 	increases 	based on
preliminary ADA 	figures 	were 	low. 	While 	the bonuses 	for 	the past
three years 	were 	issued 	in October, 	bonuses 	have previously been
issued at 	other times, 	i.e., 	in July 1993, 	and April 	and June
1995.
OFT began to pursue 	the bonus 	at 	issue 	in this 	case 	after
October 	1997, 	when the 	first ADA audit was 	sent 	to the 	state by
the 	District. 	OFT met with the 	District 	in January 	in an effort
to have 	the bonus 	issued that month, 	but 	the District's numbers
were not yet 	certain. 	At 	the next meeting, 	held in March, 	the
District 	stated 	that 	the 	figures 	on which 	the 	adjustment 	would be
based 	could not 	be 	finalized until 	after 	its 	second ADA audit 	was
27

completed 	in mid-April. 	The 	figures were 	finalized and agreement
reached on April 	29.
CSEA contends 	that 	the 	issuance 	of 	the 	May bonus 	was 	highly
unusual 	given that 	the 	District 	was 	facing 	a deficit 	budget.
This 	contention 	is 	misplaced. 	As 	explained 	fully on the 	record,
the 	salary 	formula 	is 	based on 	specific 	revenues 	not 	related 	to
the District's 	expenditures 	and ending balance. 	The 	amount 	of 	an
off-schedule 	salary 	adjustment 	is 	determined by 	comparing 	the
District's 	actual ADA numbers with 	initial 	projections, 	as well
as 	other one 	time 	allotments. 	The May bonus was 	based on ADA
money 	for 	that 	year 	as 	well 	as 	state 	equalization money based on
prior year 	figures 	but paid 	in 	1997-98.
CSEA also 	claims 	that 	the bonus 	was 	given at 	an unusual
time, 	that 	is, 	before the end of the 	fiscal year on June 30. 	As
noted above, 	salary adjustments 	have 	previously been paid prior
to the 	end of 	the 	fiscal 	year. 	The determining 	factor 	is 	the
amount 	of 	available money; 	small 	amounts 	are 	typically carried
over 	to 	the 	next 	year. 	Although one 	CSEA witness 	testified that
she believed the 	timing of 	the bonus was 	suspicious, 	the
District's past 	practice 	during 	the 	last 	five 	years 	belies 	these
suspicions. 	In addition, 	no other evidence was presented to show
that 	timing of 	the bonus 	was 	intended to 	impact 	the 	election.
In 	Pittsburg Unified 	School 	District 	(1983) 	PERB Decision
No. 	318, 	the Board upheld the NLRB rule 	that 	an employer is not
relieved 	from 	its 	bargaining 	relationship 	with 	an 	incumbent 	union
by the 	filing 	of 	a 	decertification petition.
28

. 	. 	. 	While the filing of a valid
[decertification] 	petition may-
raise a doubt 	as 	to majority-
status, 	the filing, 	in and of
itself, 	should not 	overcome the
strong presumption 	in 	favor 	of 	the
continuing majority 	status 	of 	the
incumbent 	and 	should not 	serve 	to
strip 	it 	of 	the 	advantages 	and
authority 	it 	could 	otherwise
legitimately claim. 	[RCA del
Caribe 	(1982) 	262 NLRB 963 	[110
LRRM 	1369.]
Under 	the 	terms 	of 	the 	collective 	bargaining agreements 	for
all 	three units 	represented by OFT as well 	as 	its past practice,
the 	District 	was 	required 	to 	fulfill 	its 	contractual 	obligation
with OFT by meeting 	to 	determine 	the 	amount 	of 	the 	salary
adjustment, 	if any, 	to be 	issued. 	Once the District's 	figures
were certain, 	it was obligated to distribute the bonus, 	which it
did. 	Given past practice, 	it 	is 	reasonable 	to assume 	that 	all
employees 	had an expectation of 	a 	salary bonus 	at 	some 	time
during the year. 	OFT's May 	1 	announcement made 	it 	clear that 	all
employees, 	including classified, 	would receive the bonus, 	if
board approved, 	after the 	election. 	Approval 	by the 	school 	board
was 	also 	not 	scheduled until 	balloting was 	completed. 	Based on
these 	factors, 	it 	is 	safe to assume 	that 	the classified employees
knew they would be 	entitled to 	the bonus, 	like 	all 	other
employees, 	regardless of who won the election.
For these reasons, 	it 	is determined that 	the District did
not 	engage 	in objectionable 	conduct when it 	agreed on April 	2 9 	to
the 	off-schedule 	salary adjustment 	for 	all 	employees 	and 	approved
that 	adjustment 	by board 	action on May 	13.
29

CONCLUSION
Based 	on 	the 	entire 	record 	in 	this 	matter 	and 	applicable
case 	law, 	the 	objections 	to the 	election are hereby DISMISSED.
Appeal 	Language
Pursuant 	to California Code of Regulations, 	title 	8,
section 	323 05, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with the
Board 	itself within 20 	days 	of 	service 	of 	this Decision. 	The
Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 95814-4174
FAX: 	(916) 	327-7960
In accordance with PERB regulations, 	the 	statement 	of
exceptions 	should 	identify by page 	citation 	or 	exhibit 	number 	the
portions 	of 	the 	record, 	if any, 	relied upon for such exceptions.
(Cal. Code Regs., tit. 	8, 	sec. 32300.)
A document 	is 	considered 	"filed" 	when 	actually 	received
before the 	close of business 	(5 p.m.) 	on the 	last 	day set 	for
filing 	or when mailed by 	certified or Express 	United 	States 	mail,
as 	shown on the postal 	receipt 	or postmark, 	or delivered to a
common carrier promising overnight 	delivery, 	as 	shown on the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(Cal. Code Regs., tit. 8, 	sec. 32135 (a); see also Cal. Code
Regs., tit. 8, 	sec. 32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by
facsimile 	transmission before 	the 	close 	of 	business 	on the 	last
30

day 	for 	filing 	together with a 	Facsimile 	Transmission 	Cover 	Sheet
which meets the requirements of Cal. 	Code Regs., 	tit.8, 	sec.
32135(d), 	provided the 	filing party also places 	the original,
together with 	the 	required number of 	copies 	and proof 	of 	service,
in the U.S. mail. 	(Cal. Code. Regs., tit. 	8, 	secs. 32135(b), 	(c)
and 	(d); 	see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and
32130.)
Any 	statement 	of 	exceptions 	and 	supporting brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served on
a party or 	filed with the Board itself. 	(See 	Cal. 	Code Regs.,
tit. 	8, 	secs. 32300, 	32305, 	32140, and 32135(c).)
Jerilyn Gelt
Hearing 	Officer
3 1