Santa Clara Unified School District (PERB A244E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
e
SANTA CLARA UNIFIED SCHOOL
DISTRICT,
Employer,
and
LOCAL 715, SERVICE EMPLOYEES
INTERNATIONAL UNION,
Petitioner,
and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS SANTA CLARA
CHAPTER 350,
Exclusive Representative.
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___________________)
Case No. SF-OB-4
(D-196, R-22B)
Administrative Appeal
PERB Order No. Ad-244
April 27, 1993
Appearances: Littler, Mendelson, Fastiff & Tichy by Richard M.
Noack, Attorney, for Santa Clara Unified School District;
Van Bourg, Weinberg, Roger & Rosenfeld by Vincent A. Harrington,
Jr., Attorney, for Local 715, Service Employees International
Union; Madalyn J. Frazzini, Attorney, for California School
Employees Association and its Santa Clara Chapter 350.
Before Blair, Chair; Hesse and Carlyle, Members.
DECISION
CARLYLE, Member: This case is before the Public Employment
Relations Board (Board) on appeal by Local 715, Service Employees
International Union (SEIU) to a Board agent's administrative
determination (attached hereto). The Board agent determined the
election objections filed by SEIU did not warrant setting aside a
decertification election.
The Board has reviewed the entire record, including the
administrative determination, SEIU's appeal, California School

Employees
	Association
	and
	its
	Santa
	Clara
	Chapter
	350's 	response
and
	the
	Santa
	Clara 	Unified
	School
	District's
	response
	thereto.
The
	Board
	finds 	the
	Board
	agent's
	findings 	of
	fact
	and
conclusions 	of
	law
	to
	be
	free
	of
	prejudicial 	error
	and
	adopts
them
	as 	the 	decision
	of 	the
	Board
	itself.
ORDER
The
	Board
	AFFIRMS
	the
	administrative
	determination
	and
ORDERS
	the 	objections 	to
	the
	election 	in
	Case
	No. 	SF-OB-4
	are
hereby
	DISMISSED.
Chair
	Blair
	and
	Member
	Hesse
	joined
	in
	this
	Decision.
2

(
STATE or CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA UNIFIED SCHOOL DISTRICT,
Employer,
-and-
LOCA L 715, SERVICE EMPLOYEES
INTERNATIONAL UNION,
Petitioner,
-and-
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND IT&aANTA CLARA
CHAPTER 350,
Exclusive Representative.
)
)
)
)
)
)
)
)
)
)
)
)
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)
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)
____________________)
Case No. SF-0B-4
(D-196, R-22B)
ADMINISTRATIVE
DETERMINATION
July 7, 1992
This administrative determination finds that the election
objections in the above-referenced case do not warrant setting
aside the election.
PROCEDURAL HISTORY
On March 19, 1992, 1 the Public Employment Relations Board
(PERB or Board) conducted a decertification election in the
established operations unit in the Santa Clara Unified School
District (District or employer) . 2 Of the approximately 190
eligible voters, 109 voted for the incumbent, California School
Employees Association and its Santa Clara Chapter 350 (CSEA or
exclusive representative), 64 voted for the petitioner, Local
1 All dates referenced herein are in 1992 unless specified
otherwise.
2 The decertification petition was filed with PERB by Local
715, Service Employees International Union on November 20, 1991.

715,
	Service
	Employees
	International
	Unidn
	(SEIU
	or
	petitioner),
and
	5
	voted
	for
	"No
	Representation."
	On
	March
	27,
	SEIU
	timely
filed
	objections
	to 	the
	election
	with
	this
	office
	pursuant
	to
PERB
	regulation
	32738.
3
The
	allegations
	contained
	in
	the
statement
	of
	objections
	are
	summarized
	as
	followsa
(1)
	Flyers
	distributed
	by	
CSEA	
prior
	to 	the
	election
contained 	statements
	which
	promised
	benefits
	and/or
	threatened
loss
	of
	benefits,
	depending
	on
	the
	outcome
	of
	the
	election.
Additionally,
	the
	flyers
	contained 	misrepresentations
	of
	the
	law
and
	PERB's
	processes.
(2)
	CSEA's
	field 	representative
	reported
	remarks
	made
	by
	a
bargaining
	unit
	member
	and
	known 	SEIU
	supporter
	during
	an 	open
debate
	between
	the
	two
	unions
	to
	that
	person's 	supervisor,
causing
	strife
	between
	the
	two
	employees
	and
	creating
	a
	coercive
and
	intimidating
	environment.
(3)
	By
	continuing 	to 	enforce 	the
	organizational
	security
clause 	in
	its
	collective
	bargaining
	agreement 	with
	CSEA
	after
	the
expiration
	of
	that
	agreement,
	the
	District
	provided 	unlawful
assistance 	to
	CSEA
	in 	the
	pre-election
	period.
(4)
	The
	District
	engaged
	in
	unlawful
	surveillance 	of 	the
petitioner's 	activities.
On
	April
	10, 	an
	Order
	for 	Production 	of
	Documents 	and 	Legal
Argument
	was
	issued 	requiring
	SEIU
	to
	file
	documents 	and
declarations 	in 	support 	of
	its
	objections, 	as 	well 	as
	legal
3PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8, 	section
	31001
	et
	seq.
2

(
argument
	in 	support 	of
	its
	assertion
	tha~the
	conduct 	complained
of
	warrants
	setting
	aside
	the
	election.
4	
The
	Order
	also
	provided
an
	opportunity 	for
	responsive
	submissions
	from
	CSEA
	and
	the
District.
	All
	parties
	responded
	in
	a
	timely
	manner,
	and
	the
matter
	was
	taken 	under 	submission
	on
	May
	19.s
RULE
	OF
	LAW
Under
	PERB
	regulation
	32738(c), 	the
	Board
	will
	entertain
objections
	to
	the 	conduct 	of
	an
	election
	only
	when:
	(1)
	the
conduct
	complained
	of
	interfered
	with
	the
	employees'
	right
	to
freely
	choose
	a
	representative:
	or
	(2}
	a
	serious
	irregularity·
occurred 	in 	the
	conduct 	of
	the
	election.'	
PERB
	regulation
32738(g)
	requires 	the
	Board
	agent 	to
	dismiss
	election 	objections
which
	do
	not
	satisfy
	the 	requirements 	of
	subsections
	(a)
	through
(d).
7
Even
	if
	not
	subject
	to 	dismissal
	under
	PERB
	regulation
4
Section
	32738(£)
	provides, 	in
	pertinent 	part:
At
	the
	direction
	of 	the
	Board,
	facts 	alleged
	as
supportive 	of 	the
	election
	conduct
	objected 	to
	shall
	be
supported
	by
	declarations.
sThe
	District's
	response 	addressed 	only 	"those
	objections
which
	allege 	that
	the
	District
	engaged
	in
	wrongdoing."
6
In 	the
	instant
	case, 	only 	the
	ground
	set 	forth 	in
subdivision
	one
	is
	relevant 	as 	there
	has 	been
	no
	allegation 	that
any
	irregularity
	occurred 	in 	the 	conduct 	of 	the
	election.
7 PERB
	regulation
	32738
	(a) 	through
	{d)
	provides, 	in
pertinent 	part:
(a) 	Within
	10
	days 	following 	the 	service 	of 	the
	tally
	of
ballots,
	any
	party 	to 	the 	election
	may
	file
	with 	the
regional 	office 	objections 	to 	the 	conduct 	of 	the 	election.
3

(
32738,
	objections
	are 	to
	be
	dismissed
	if,
~
after
	investigation,
the 	objections
	do
	not 	warrant
	setting
	aside
	the
	election.
	(PERB
regulation
	32739(f).)
	Alternatively,
	an
	election
	may
	be
	set
aside
	if
	the
	results
	of 	the
	investigation
	warrant
	such
	action.
(PERB
	regulation
	32739(g).
) 1
A
	party 	objecting 	to
	an
	election
	must
	first
	present
	a
	prima
facie
	showing
	of
	objectionable
	conduct
	within 	the
	meaning
	of
subsection 	(c).
	This
	includes
	a
	factual
	showing
	that
	employee
choice
	was
	affected
	or
	that
	the
	conduct 	complained
	of
	had
	the
natural
	or
	probable
	effect
	of
	impacting
	employee
	choice. 	Santa
Monica
	Unified
	School
	District
	and
	Community
	Colleae
	District
(1978)
	PERB
	Decision
	No.
	52; 	San
	Ramon
	Valley 	Unified
	School
District
	(1979)
	PERB
	Decision
	No.
	111;
	Jefferson
	Elementary
(b)
	Service
	and
	proof 	of
	service
	of 	the
	objections 	pursuant
to 	section
	32140
	are
	required.
(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.
1
Review
	of 	the 	documents 	submitted 	by 	the
	parties 	in
	this
case 	did 	not 	reveal 	the 	existence 	of 	any
	substantial 	and/or
material 	factual 	disputes. 	Therefore,
	a
	hearing
	was
	not
required.
	(PERB
	regulation 	32739(h)).
4

! 	(
~
School
	District
	(1981)
	PERB
	Decision
	No.
	164;
	Pasadena
	Unified
School
	District
	(1985)
	PERB
	Decision
	No.
	530.
After
	this
	threshold
	showing
	is
	met,
	PERB
	will
	decide
whether
	to
	set
	aside 	the
	election
	depending
	"upon
	the
	totality
	of
circumstances
	raised 	in
	each
	case
	and,
	when
	appropriate, 	the
cumulative
	effect
	of
	the
	conduct
	which 	forms
	the
	basis 	for
	the
relief
	requested."
	Clovis 	Unified
	School
	District
	(1984)
	PERB
Decision
	No.
	389;
	State
	of
	California
	(Department 	of
	Personnel
Administration)
	(1986}
	PERB
	Decision
	No.
	601-S. 	Thus, 	even
	when
some
	impact
	on
	voters
	can
	be
	inferred,
	the
	election 	will 	not
always
	be
	set
	aside.
It
	is
	against
	these 	standards
	that
	the
	petitioner's
objections
	have 	been
	tested.
ISSUES
1.
	Did
	pre-election
	conduct
	by
	CSEA
	interfere
	with
employees'
	right 	to 	freely
	choose
	a
	representative?
2.
	Did
	pre-election
	conduct
	by
	the
	District 	interfere
	with
employees'
	right
	to 	freely
	choose
	a
	representative?
DISCUSSION
The
	CSEA
	Flyers
On
	or 	about
	March
	16,
	CSEA
	distributed
	a
	flyer 	entitled
"Negotiations
	Update", 	which 	announced
	certain
	terms 	of
	a
	new
proposed 	agreement 	with 	the
	District
	reached
	on 	March 	14.
	Among
the 	items
	identified
	as 	having 	been 	achieved
	were
	binding
arbitration, 	reclassification 	studies, 	lay-off 	protection,
	major
gains
	on
	health
	and
	safety 	issues, 	three 	holidays 	for 	Persian
5

Gulf
	Days
	of
	Thanksgiving,
	a 	wage
	increas1
	and
	additional 	release
time
	for
	union
	activities.
	The
	flyer
	then
	stated:
This
	proposed 	agreement
	is
	contingent
	upon 	CSEA
winning
	the
	election
	on
	Thursday,
	Harch
	19th.
	If
Local
	715
	SEIU
	wins,
	you
	will
	not
	have
	the
	right
to
	vote
	on
	this
	contract.
	SEIU
	will
	have
	to
	start
from
	zero.
	Your
	vote
	for
	CSEA
	will
	assure
	your
right
	to
	vote
	on
	what
	we
	think
	is
	a
	superior
contract.
The
	final
	line
	urged
	readers 	to
	"VOTE
	CSEA
	ON
	MARCH
	19THu.
On
	or
	about
	March
	17,
	SEIU
	distributed
	a
	flyer
	in 	response
to
	CSEA's
	flyer.
	It
	stated:
ABOUT
	THE
	CSEA 	PROPOSED
	CONTRACT
...
If
	you
	like
it ...
VOTE
	IT
	IN
	and
	it's
	yours
	to
	keep,
	despite
CSEA's
	insistence
	that
	it
	is
	not.	
VOTE
	CSEA	
OUT!
and
	we'll
	have
	the
	best
	of
	all
	possible
	worlds:	
A
contract
	that
	we
	can
	live
	with,
	and 	most
importantly
	a
	Union
	that
	will
	enforce
	it!!!
The
	final
	line
	urged
	readers
	to
	"VOTE
	FOR
	LOCAL
	715
	ON
	March
	19".
A
	second
	CSEA
	flyer,
	issued
	on
	or
	about
	March
	18,
	was
entitled
	"IMPORTANT
	NOTICE,"
	and
	stated:
DON'T
	BE
	FOOLED
	BY
	SEIU	
LAST
	MINUTE	
TRICKS!
	In
	a
desperate
	move,
	Local 	715
	has
	put 	out
	false
information.
	They
	have
	stated 	that
	the 	proposed
contract
	is
	yours 	even
	if
	you
	vote
	for
	Local 	715,
SEIU.
	This
	is
	absolutely 	untrue.
CSEA's
	Tentative
	Agreement 	has
	not
	been
	ratified.
	The
soonest
	you
	will
	be
	able 	to 	vote
	on
	the
	contract
	is
March
	30th. 	Until
	ratified,
	the 	contract
	is
	not
guaranteed.
	If
	Local
	715 	SEIU
	is
	somehow
	elected,
Local
	715 	must
	negotiate
	its
	own
	contract.
	This
	is
	the
law.
Also, 	Bear 	Neft
	is
	your 	assigned 	Field
Representative
	now 	and
	after
	the
	election.
	Any
rumors
	to 	the 	contrary 	are 	false.
The
	flyer
	concluded
	by
	urging 	readers 	to 	stop 	"this
	foul 	play
	by
Local
	715 	and 	vote
	CSEA!"
6

(
SEIU
	that
	objectionable
	alleges
	the
	CSEA
	flyers
	c<fnstitute
conduct
	on 	two
	grounds.
	First,
	the
	flyers 	constituted
	a
	threat
election
of
	loss
	of
	benefits
	contingent
	upon
	the
	outcome
	of 	the
impression
	that
	the
	employees
	would
	lose
in
	that
	they
	created
	the
lost
the
	benefits
	in 	the
	proposed	
agreement	
if
	CSEA
	the
	election.
Conversely, 	they
	created
	the 	impression
	that
	only
	by
	CSEA
	winning
the
	election
	could
	the
	employees
	obtain
	the
	benefits
	in 	the
proposed
	agreement.
	The
	petitioner 	asserts 	that
	such
	conduct
tends 	to
	coerce
	and
	restrain
	employees
	in 	the
"reasonably
exercise
	of
	their 	rights."
contained
	Secondly,
	SEIU
	states 	that
	the
	flyers 	intentional
misrepresentations
	of 	the
	law
	desi~ned
	to
	manipulate
	voters 	in
period
	immediately
	preceding 	the
	election.
	the
CSEA
	responds
	that,
	by
	arguing
	that
	its
	flyers
	are
objectionable
	in
	that
	they 	contained
	a
	threat
	of
	loss 	and/or
	a
requirement 	of
promise 	of
	benefits,
	SEIU
	imposes
	on
	CSEA
	the
strict
	neutrality
	applicable 	only
	to
	employers.
	It
	claims
	that
the 	"statements 	in
	CSEA's
	flyers
	were
	legitimate
	and
unobjectionable 	pre-election
	campaigning
	protected
	by
	free
	speech
guarantees." 
the
	that
	the
CSEA
	responds
	to
	second
	allegation
	by
	asserting
state
	the 	law, 	and
	that,
	even
	if
	they 	contained
flyers
	accurately
misrepresentations, 	recent 	case
	law
	holds
	that
	an
	election 	will
statements.not
	be
	set 	aside 	based
	on
	misleading
	campaign
In 	Pasadena 	Unified 	School
	District
	(1985)
	PERB
	Decision
	No.
530, 	the 	Board 	adopted 	the 	standard 	set 	forth 	in 	Midland 	National
7

(
Life
	Insurance
	Co.
	(1982)
	263
	NLRB
	127,#J.10
	LRRM
	1489,
	in
	which
the 	National
	Labor
	Relations
	Board
	(NLRB)
	stated
	it
	would:
. 	no
	longer
	probe
	into the 	truth
	or
	falsity
	of
the
	party's
	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	
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
....
	[W]e
	will
	continue
	to
protect 	against 	other
	campaign
	conduct,
	such
	as
threats,
	promises,
	or 	the
	like,
	which
	interferes
with
	employee
	free 	choice.
Similarly,
	misstatement 	of
	NLRB
	case
	law
	has
	been
	held 	not 	to
	be
grounds
	for
	setting
	aside 	the
	election.
	Furrs, 	Inc.
	(1982)
	265
NLRB
	1300,
	112.LRRM	
1034.
In 	the
	instant
	case,
	under 	the
	Midland
	standard 	adopted 	by
the
	Board, 	whether
	the 	statements 	in
	CSEA's
	flyers
	were
	true
	or
false 	is
	immaterial.
	SEIU
	does
	not 	contend,
	nor 	has
	it
	presented
any
	evidence 	to 	support
	a
	contention,
	that
	the
	flyers
	were
	forged
or
	altered
	documents.
	It
	is
	also 	significant
	to 	note
	that
	SEIU
responded 	with
	its
	own
	flyer 	disputing
	the 	statements 	contained
in
	CSEA's
	initial
	flyer.
9
Thus,
	it
	remains
	to
	be
	determined 	only 	whether
	the
statements 	in
	CSEA's
	flyers 	constituted
	promises 	of
	benefits 	or,
9Even 	under 	the
	NLRB's 	more
	stringent
	previous 	rule 	in
Hollywood 	Ceramics 	Company,
	Inc.
	(1962) 	140
	NLRB
	221, 	when 	one
party
	has 	time 	to
	make 	an
	effective 	reply 	to
	campaign
	statements
made
	by 	the 	other, 	the 	election 	will 	not
	be
	set 	aside 	even
	if
	the
initial
	statements
	were
	false
	and 	misleading.
8

(
conversely, 	~hreats
	of
	loss
	of
	benefits
	cfepending
	on
	the
	outcome
of
	the
	election.
While
	PERB
	has
	no
	case
	law
	directly
	on
	point,
	the
	NLRB
	has
generally
	held
	that
	a
	union's
	promise
	of
	benefits
	which
	are 	not
within
	its
	power
	to 	confer
	unilaterally
	do
	not 	warrant
	setting
aside
	an
	election.
	Alyeska
	Pipeline
	Serv.
	Co.
	(1989)
	261
	NLRB
125,
	110
	LRRH
	1011.
	In
	this
	case,
	the
	benefits
	promised 	by
	CSEA
were
	contained 	in
	a
	recently 	negotiated
	tentative
	agreement
	not
yet
	ratified
	by
	either
	party.
	Since
	CSEA
	had
	no
	control
	over
whether 	the
	tentative
	agreement
	would 	be
	ratified
	by
	either
	the
District
	or
	its
	own
	members,
	the 	statements 	contained 	in
	the
flyers
	cannot
	be
	viewed
	as 	promises 	of
	benefits
	or
	threats
	of
loss
	of
	benefits
	which
	warrant
	setting
	aside
	the
	election.
Thus,
	for 	the 	reasons
	stated
	above,
	the
	CSEA
	flyers 	are
found
	not 	to
	constitute
	objectionable
	conduct.
Conversation
	Among 	CSEA
	Representative
	and
	District
	Employees
On
	Harch 	10,
	CSEA
	and
	SEIU
	engaged
	in
	an
	open
	debate
	in
	the
auditorium 	of
	a
	District
	high 	school.
	Among
	those 	involved
	were
CSEA
	Field 	Representative
	Bear 	Neft
	and
	Blythe 	Hinkel,
	a
bargaining 	unit
	member 	from
	the
	transportation
	department
	who
	was
a
	known 	SEIU
	supporter.
	One
	of 	the
	issues 	raised	
by 	Hinkel
during 	the 	debate
	was
	her 	contention
	that
	CSEA
	representatives
improperly
	met
	with
	management
	representatives 	alone; 	she
asserted 	that
	she
	was 	aware
	of 	such
	a
	meeting(s) 	between
	Neft
	and
her 	supervisor,
	Linda
	Ferreira.
9

(
After
	the 	debate,
	a
	meeting 	of
	the
	~istrict's
	Governing
Board
	took
	place
	in
	the
	same
	location.
	Neft
	and
	Hinkel
	both
attended
	the
	meeting;
	Ferreira
	was
	also
	in 	attendance,
	sitting
	in
the
	row
	ahead
	of
	Neft.
	Some
	time
	during
	the
	meeting,
	Hinkel
	left
her
	seat
	and
	moved
	to
	a
	seat
	next
	to
	Neft
	and 	engaged
	her
	in
conversation.
11
At
	some
	point
	during
	their
	discussion,
	Neft 	tapped
	Ferreira
on
	the
	shoulder.
	She
	then
	reported 	Hinkel's
	statement 	regarding
their
	alleged
	meeting(s)
	and
	asked
	Ferreira
	to
	confirm 	or
	deny
the
	allegation. 	Ferreira
	denied 	meeting
	alone 	with 	Neft,
	and
then 	questioned
	Hinkel
	regarding 	her
	accusation.
	This
	incident
was
	distressing
	to 	Hinkel,
	who
	sent
	a
	letter
	on 	March 	12
complaining 	of
	it,
	among
	other 	things, 	to
	CSEA.
	Hinkel
	also
circulated
	the
	letter
	among
	District	
employees.
SEIU
	asserts 	that
	by 	the
	actions
	described
	above,
	CSEA
fomented
	hostility
	between
	Hinkel
	and
	her 	supervisor
	and
	conveyed
a
	message
	to
	SEIU
	supporters
	that
	"CSEA 	was
	acting
	jointly
	with
the
	Employer,
	and
	the
	Employer
	with
	it,
	to
	retaliate
	against
Local
	715
	supporters." 	Further,
	SEIU
	claims
	that
	"Hinkel's
participation
	in
	this
	open
	debate
	was 	a
	protected
	activity,
	and
CSEA's
	'set-up'
	of 	her 	with
	her 	supervisor,
	where 	she 	had
	to
18 The
	description
	of 	events
	relating 	to
	this 	allegation
	have
been 	gleaned
	from 	a
	declaration 	submitted 	by 	Neft
	and 	a 	March 	12
letter
	to
	CSEA
	from
	Hinkel 	complaining 	about 	the 	events.
	The
letter
	was
	submitted 	as
	an
	attachment 	to
	a
	declaration 	submitted
by 	another 	transportation
	employee, 	Beatrice 	Lomeli,
	who 	was
present 	at 	the 	board 	meeting 	but 	unable 	to 	overhear 	the
conversation.
	No
	declaration
	was
	submitted
	by 	Hinkel.
10

(
explain
	or
	justify
	herself
	clearly
	creat~d
	a
	coercive
	and
intimidating
	environment."
CSEA
	responds
	by
	stating
	that
	Neft 	did 	not 	divulge
	any
information
	which
	Hinkel 	could
	reasonably 	expect	
would
	be	
kept
confidential.
	Additionally,
	CSEA
	points
	out
	that
	there
	is
	no
evidence
	that
	the
	employer
	retaliated
	against
	Hinkel 	because
	of
her 	"public 	statements."
The
	statements
	made 	by
	Hinkel
	during
	an 	open
	debate
	could
not 	reasonably
	be
	expected
	to
	remain
	confidential.
	However,
Neft's
	action 	in 	reporting
	them
	to
	Ferreira
	in
	Hinkel's
	presence
clearly
	placed
	Hinkel
	in
	an
	uncomfortable
	position.
	Nonetheless,
such
	an
	isolated 	incident,
	made
	widely
	known
	apparently 	only
	by
Hinkel's 	distribution
	of
	her
	March 	12
	letter
	to
	CSEA
	complaining
of
	the 	incident,
	does
	not
	constitute
	objectionable
	conduct.
	If
anything, 	the
	incident
	as
	reported
	by 	Hinkel
	would 	be 	more
	likely
to
	diminish 	the 	exclusive
	representative
	in 	the
	eyes 	of
	unit
employees
	rather
	than
	encourage
	them
	to
	vote
	for
	CSEA.
Furthermore, 	the
	remarks
	made
	by
	Ferreira
	on
	the 	spur 	of
	the
moment
	hardly
	rise
	to
	the
	level
	of
	District-planned
	retaliation
against
	SEIU.
	No
	evidence
	exists 	that
	any
	action
	was
	taken
	by
the
	District
	against
	Hinkel
	or
	any
	other
	SEIU
	supporter 	as
	a
result
	of
	this 	incident.
	Thus,
	this 	allegation 	is
	seen 	as 	having
slight, 	if
	any, 	impact
	on
	voter 	exercise
	of 	free 	choice.
District
	Enforcement 	of 	Organizational 	Security
	Clause
In 	late
	January
	and
	early 	February, 	approximately
	69
bargaining 	unit
	members
	submitted 	forms 	to 	the
	District
11

requesting
	that
	it
	"immediately
	stop
	dedt.fction
	for
	dues
	or
service
	fees
	currently
	being
	remitted
	to
	CSEA."
	In 	response,
	the
District
	sent
	those
	employees
	a
	memo
	indicating
	that
	such
deductions
	would
	cease
	with
	their
	February
	pay
	warrants.
	The
memo	
also 	stated
	that
	the
	employees
	would
	then
	be
...
	obligated 	to
	pay
	membership 	dues
	or 	service
fees
	directly
	to
	CSEA.
If
	the
	District 	is
	notified
	by
	CSEA
	that
	you
	have
not
	made
	arrangements
	to
	pay
	either
	membership
dues
	or
	service 	fees
	directly
	to
	CSEA,
	the
District
	will
	be
	obligated
	to
	deduct
	from
	your
paycheck
	the
	equivalent
	amount
	of 	the
	service 	fees
according
	to 	Article
	V,
	Section
	(3) 	of
	the
	CSEA
contract.
11
and
	Although
	negotiations
	had 	been
	taking 	place
	between
	CSEA
of
	the	the
	District
	since
	June
	1991, 	before 	the
	expiration
contract,
	no
	new
	written
	agreement
	was
	in
	effect 	prior
	to 	the
election.
	However,
	in 	the
	first
	or
	second
	negotiating 	session,
the
	parties 	orally
	agreed
	to
	extend 	the
	contract
	until
	a 	new
agreement
	was
	reached. 	This 	agreement
	wag
	confirmed
	in
	a
	letter
from
	dated
	February
	6
	to
	CSEA
	Field 	Representative 	Bear
	Neft
Superintendent
	Bob
	Carter,
	Ed.D. 	and
	Associate 	Superintendent
Nicholas
	R.
	Gervase.
11
Article
	V
Section
	3
	of 	the 	1988-1991
	agreement
	provides,
in 	pertinent 	part:
Revocation
	-
	In 	the 	event
	that
	an 	employee 	revokes
the
	dues
	or 	service 	fee 	authorization 	or
	fails 	to
make
	arrangement 	with
	CSEA
	for 	the
	direct
	payment
of 	dues 	or 	service 	fees, 	the 	District,
	upon
notification
	from 	CSEA,
	shall
	deduct 	the
equivalent
	amount
	of 	the 	services 	fees 	and 	forward
them
	to
	CSEA.
12

(
It
	is
	SEIU's
	position
	that
	the 	orgarfizational
	security
clause
	expired
	with
	the
	contract
	in
	June,
	1991,
	and
	that
	no
lawful 	extension
	was
	in 	place.
	SEIU
	asserts 	that
	the
	District's
intent
	to 	enforce 	the
	organizational 	security
	provision,
	as
announced 	by
	its
	memo, 	was
	unlawful
	and
	constituted
	an
	unfair
practice
	in
	that
	it
	restrained
	and
	coerced 	those
	employees
	in 	the
exercise
	of
	their
	rights
	under
	the 	Educational
	Employment
Relations
	Act
	(EERA
	or
	Act).
12	
The
	petitioner
	also
	claims
	that,
by
	such
	action,
	the
	District
	provided
	unlawful
	assistance 	to
	CSEA
during
	the
	pre-election
	period
	and
	clearly
	expressed
	a
	District
preference 	for
	CSEA. 13 SEIU
	argues
	that
	such
	conduct,
	which
affected
	at 	least
	69
	unit
	members,
	is
	objectionable 	in
	that
	it
interfered
	with
	the
	employees'
	right
	to
	freely
	choose
	a
representative.
that 	contract
	Both
	the
	District
	and
	CSEA
	contend 	the
	1988-91
was
	lawfully
	extended,
	that
	the
	District
	was
	th~refore 	obligated
to
	comply
	with 	the
	organizational 	security
	provision 	in
	that
contract,
	and
	that
	the 	issuance 	of 	the
	memo
	to 	the
	affected
employees
	was
	an
	appropriate 	step 	in 	ensuring
	such
	compliance.
Government
	Code
	section 	3540.1(i)(2)
	provides
	that
	an
organizational 	security
	arrangement 	in
	a
	collective 	bargaining
agreement
	may
	require
	an 	employee
	to
	pay 	dues
	or
	a
	service 	fee:
et.	
iiThe
	EERA
	is 	codified 	at
	Government 	Code
	section
	3540
seq.
13 PERB
	records 	reflect 	that 	there 	are 	currently
	on
	file
	no
unfair 	practice 	charges 	filed
	by 	SEIU
	against 	the
	District.
13

(
for
	the
	duration
	of
	the
	agreemErtit,
	or
	a
	period 	of
three 	years
	from
	the
	effective
	date
	of
	the
agreement, 	whichever
	comes
	first.
(1981)
	As
	noted 	by	
the
	Board
	in
	Los
	Altos
	School
	District
PERB
	Decision
	No.
	190,
	at
	fn.
	12s
.
	the
	words
	•three	
years	
from
	the
	effective
date
	of
	the
	agreement•
	takes
	into
	account
	that
security
	agreements
	cannot
	exceed
	the
	permitted
term
	of
	the
	collective
	bargaining
	agreement.
Subsection
	3540.l(h)
	prohibits
	any
	collective
bargaining
	agreement
	from
	exceeding
	three 	years.
It
	is
	arguable
	that
	extending
	a
	three
	year
	agreement
containing
	agency
	fee
	beyond
	the
	third
	year
	would
	violate
sections
	3540.l(h)
	and
	(i)(2)
	of
	EERA.
14
However,
	reaching
	an
	interim
	agreement 	(of
	less
	than
	three
years)
	which
	remains
	in
	effect 	until
	negotiations
	are
	completed
may
	not
	violate
	either
	section 	3540.l(h)
	or
	{i)(2),	
even	
when
	the
terms 	are
	identical
	to
	those 	of 	the 	expired
	agreement.
The
	agreement 	reached 	by
	CSEA
	and
	the
	District 	is
	described
in 	the
	February 	6th
	letter
	from
	the
	District
	representatives 	to
Bear
	Neft,
	which
	states,
	in 	pertinent 	part:
.
	the
	parties
	agreed
	that
	all
	provisions 	of
the
	1988-91
	collective
	bargaining
	agreement
	would
14
But 	see
	McDonnell
	Douglas 	Corp. 	and
	UAW
	Local 	1093,
	NLRB
Gen.
	Counsel 	Advice
	Memo.,
	Case
	Nos. 	16-CA-
	13095-1,-2
	and
	16-
CB-2914-2,
	126
	LRRM
	1374 	(1987) 	where
	the
	NLRB
	found
	that
enforcement 	of
	an
	organizational 	security
	agreement
	after
	the the
	expiration
	of 	the
	contract
	is
	permitted
	when
	the 	employer 	and
union
	had
	orally
	agreed 	to 	extend
	that
	provision 	of 	the 	contract;
and 	Robbins
	Door 	and 	Sash
	Co.
	(1982)
	109
	LRRM
	1182. 	See
	also
	Los
Altos, 	supra,
	where
	the
	Board
	held 	that,
	under
	EERA,
	"the
	--
negotiability
	of
	organizational 	security
	agreements
	is 	subject 	to
treatment
	[no}
	different
	from
	other 	negotiable 	items 	such 	as
wages, 	hours 	or 	appropriate 	terms
	and
	conditions 	of 	employment."
14

(
remain
	in
	full
	force
	and
	effec}
	until
	a
	successor
agreement
	was
	reached.
·It
	is 	difficult
	to
	determine 	whether
	the
	parties'
	agreement
	was
to
	extend
	the
	three
	year
	contract
	or 	reach
	a 	new
	interim
agreement
	that
	would
	be
	in
	effect
	during
	negotiations. 	In
	any
case,
	it
	is
	unnecessary
	to 	resolve
	this
	issue
	because, 	even
	if
the
	District's
	conduct
	were
	illegal,
	SEIU's
	argument
	that
	it
must,
	therefore,
	be
	objectionable,
	is
	not
	persuasive.
	Not
	every
instance
	of
	illegal
	conduct
	is
	necessarily
	objectionable
	conduct;
conversely,
	not
	all
	objectionable
	conduct
	is
	necessarily
	illegal.
Unified
	School
	District
	(1984)
	PERB
	Decision
	No.
	389.
Clovis
In
	instance,
	the
	this
	69
	unit
	employees
	submitted 	to
District
	requests 	to 	terminate
	their
	dues
	or 	service 	fees
complied
	deduction
	on
	forms
	given
	them 	by
	SEIU. 	The
	District
with
	their
	requests,
	and
	also 	sent
	them
	a
	memo
	which
	informed
them
	of
	their
	contractual 	obligation 	to
	pay
	CSEA
	directly.
	Even
assuming, 	arguendo,
	that 	this
	conduct
	was
	illegal,
	the 	degree 	of
free 	choice
	is
	questionable; 	reasonable
	minds
impact
	on
	employee
could 	conclude
	that
	the 	employer's
	action,
	if
	influential
	at 	all,
voters 	to 	vote
	for 	either
	CSEA
	or
	SEIU.
	In
might
	have
	influenced
SEIU
	has 	not
	met
	its
	burden
	of
	showing
	how
	this
	conduct
any
	case,
was
	likely
	to
	have
	an
	effect
	on
	the
	election;
	no
	facts
	have 	been
submitted
	from 	which 	impact 	can 	be
	inferred,
	merely
	conclusory
such
theories
	of 	law. 	Moreover,
	in
	light
	of
	PERE
	precedent,
15

(
conduct
	has
	far 	less 	potential
	for
	influeticing 	free
	choice 	than
SEIU
	argues.
15
District
	Surveillance
	of
	Union
	Activities
SEIU
	alleges
	that
	the
	District
	engaged
	in
	unlawful
surveillance
	of	
two
	meetings
	held
	by members	
of
	SEIU's
	Local
Committee
	at
	restaurants
	in 	the 	period
	preceding 	the
	election.
In 	support 	of
	this
	allegation,
	it
	submits
	the
	declaration
	of
Beatrice
	Lomeli,
	an 	employee
	of 	the
	District
	and
	member
	of 	the
Committee.
	Ms.
	Lomeli
	states 	that
	Robert 	Buchser,
	Valley
	High
School
	Principal,
	was
	seen
	dining
	at
	the
	same
	restaurants
	on
those 	occasions.
	She
	also
	states 	that
	Mr.
	Buchser
	was
	never
close
	enough
	to
	hear 	anything
	said,
	but
	that
	"he
	was
	in
	a
position
	to
	observe 	persons
	who
	were
	in 	attendance
	at
	the
meeting."
	She
	asserts 	that 	his
	presence
	on
	the
	second
	occasion
caused
	some
	night 	custodians
	at
	the
	meeting
	to
	become
uncomfortable.Ii
In
	his 	declaration,
	Buchser
	states 	that
	he
	and
	his
	wife 	dine
out
	frequently,
	up
	to
	six
	or
	seven
	nights
	a 	week.
	He
	does
	not
dispute
	that
	he 	and
	his
	wife 	(and
	daughter
	on 	one
	of 	the
occasions) 	dined 	in 	the
	same
	restaurants
	as 	the
	Committee
members.
	In
	fact,
	on
	the
	first
	night,
	he
	approached
	their
	table
and
	greeted
	them,
	was
	introduced 	to 	the
	SEIU
	organizer
	and
	told
15
Compare,
	for
	example,
	to 	Pleasant 	Vallev 	Elementary 	School
District
	(1984)
	PERB
	Decision
	No.
	380.
16
No
	declarations
	were
	submitted 	by 	the 	night 	custodians 	to
support 	this 	assertion. 
16

(
they
	were
	having
	an
	organizational
	meeti~.
	He
	then 	excused
himself
	and
	rejoined 	his
	family.
On
	the
	second
	occasion
	at
	some
	point
	during
	his
	meal,
	he
noticed
	that
	some
	of 	the
	same
	individuals	
were	
at
	the
	restaurant
in
	which
	he
	and
	his	
wife
	were
	dining.
	He	
did
	not
	go
	to
	their
table,
	although
	he
	did
	acknowledge
	the
	presence 	of
	one
	or
	two
	of
the
	employees.
Buchser,
	who
	has 	never
	participated
	in
	classified
negotiations
	for
	the
	District,
	declares
	that
	he
had
	no
	prior
	knowledge
	that
	the
	employees
	I 	saw
	at
these
	restaurants
	would 	be
	present
	or
	that
	they
would
	be
	having
	a
	meeting
	that
	involved 	union
activities.
	I 	was
	not
	asked
	by 	anyone
	associated
with 	the
	District
	to
	spy
	on
	or 	to
	report
	on
	the
activities
	of
	any
	group
	of
	classified
	employees.
I
	did 	not
	report 	or
	even 	mention
	to
	anyone
	in 	the
District
	Personnel
	Office
	that
	I
	had
	seen
	a
	group
of
	employees
	at
	a
	restaurant.
	While
	it
	may
	have
occurred 	to
	me
	at
	the
	time
	that
	the
	two
happenstances
	were
	a
	coincidence, 	there
	was
nothing
	particularly
	unique 	about 	the 	events
	that
caused
	me
	to
	remember 	them
	in
	detail.
SEIU
	asserts 	that
	the 	presence 	of
	Buchser
	at
	the
	same
restaurants
	on
	the
	same 	two
	nights
	as 	the
	SEIU
	organizing
committee
	was
	"extraordinary"
	and
	"creates
	the
	clear
	presumption
that
	he 	was
	there 	to 	observe 	those
	activities."
	SEIU
	argues
	that·
such
	surve~llance 	or 	appearance 	of
	surveillance
	by 	an 	employer 	or
its
	agents
	is
	an
	unf~ir 	practice,
	and
	is
	objectionable 	pre-
election
	conduct.
The
	District
	contends
	that 	Principal
	Buchser 	had 	no
	interest
in 	the
	outcome 	of 	the 	election
	and 	was
	coincidentally 	present 	at
the
	two
	restaurants. 	Buchser 	confirms 	this 	in 	his 	declaration,
17

(
both
	also
	on
	and
	points
	out
	that
	he 	made
	his
	pretence
	known
occasions.
	Furthermote,
	SEIU's
	declarant,
	Lomeli,
	confirmed
	that
Buchser
	was
	not
	in
	a
	position 	to
	overhear 	the 	committee's
conversations.
No
	evidence
	was
	presented
	that
	the
	principal's
	presence
	had
any
	effect
	beyond 	making
	some
	committee
	members
	uncomfortable.
Indeed,
	it
	appears
	that
	their
	discomfiture
	was
	not
	sufficient
	to
cause 	the
	committee
	to
	either
	cease
	meeting 	or
	move
	elsewhere
away 	from
	the 	public
	facility.
	As
	the
	District
	stated
	in
	its
brief,
	if
	"this
	were
	surveillance,
	it
	could 	not
	have
	been
	more
ineffective."
	Further,
	no
	showing
	has
	been
	made
	to
	demonstrate
how
	the 	alleged 	surveillance
	might
	have
	interfered
	with
	the
employees'
	right
	to 	freely 	participate
	in
	the
	election.
	The
•surveillance"
	was
	witnessed 	only 	by
	members
	of 	SEIU's
	organizing
committee,
	whose
	commitment
	to 	the
	petitioner,
	one 	would
	presume,
could 	withstand
	such
	an
	occurrence. 	Therefore,
	this
	conduct
	is
found
	to
	have 	had
	little,
	if
	any, 	impact
	on
	the 	employees'
ability
	to 	freely
	choose 	an
	exclusive 	representative.
Totality
	of 	Circumstances
As
	indicated
	above
	in 	the 	review 	of 	each
	allegation
	of
objectionable
	conduct, 	the 	conduct 	involved
	had
	far 	less
potential,
	if
	any,
	for 	influencing
	employee
	free 	choice 	than
	SEIU
argues. 	Similarly,
	when
	viewed 	under
	a
	totality
	of 	circumstances
test,
	the 	allegations
	do
	not
	rise 	to 	the 	level
	of 	conduct 	so
objectionable 	as 	to 	warrant
	setting 	aside 	the
	election.
18

(
Each
	of 	the
	cases
	in
	which
	PERB
	has
~et
	aside
	an
	election
has
	involved
	a 	more
	telling
	and
	comprehensive
	course
	of
misconduct 	than
	is
	present 	in
	this
	case. 	In 	Clovis
	Unified
School
	District,
	supra, 	the
	employer
	dealt
	with
	a
	dominated
	or
assisted
	employee
	organization
	on
	matters
	of
	critical
	importance
to
	unit
	employees,
	extolled
	the
	virtue
	of 	the
	organization
	to
unit
	employees
	and
	committed
	other 	acts
	which
	clearly 	assisted
and
	demonstrated
	employer
	preference 	for ·that organization.
17
In
Gilroy
	Unified
	School
	District
	(1992)
	PERB
	Order
	No.
	Ad-226,
	the
incumbent
	exclusive
	representative
	was
	found
	to
	have
	materially
breached 	the 	consent
	election
	agreement,
	calling 	into 	question
the
	fairness
	and
	validity
	of
	the
	election.
In
	this
	case,
	neither
	the 	alleged
	misconduct
	by
	the
	employer
nor
	the 	exclusive
	representative
	has 	been
	found
	to
	have
	likely
interfered
	with 	the
	employees'
	opportunity 	to 	exercise
	their
	free
choice 	in 	the
	election.
CONCLUSION
	AND
	ORDER
For 	the 	reasons
	stated
	above,
	the 	objections 	to 	the
	election
in
	this
	case 	are 	hereby
	DISMISSED.
Right 	of
	Appeal
An
	appeal 	of
	this
	decision 	to 	the
	Board
	itself
	may 	be 	made
within 	ten
	(10)
	calendar
	days 	following 	the 	date 	of 	service 	of
this
	decision
	{PERB
	regulation
	32360).
	To 	be
	timely
	filed,
	the
17
See
	also
	Kern 	County
	Superintendent 	of 	Schools 	(1985)
	PERB
Decision
	No. 	533.
19

(
original
	and
	five
	(5)
	copies
	of
	any
	appea'l 	must
	be
	filed
	with
	the
Board
	itself
	at
	the 	following 	address:
MEMBERS,
	PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
1031
	18th
	Street,
	Suite
	200
Sacramento,
	CA
	95814-4174
A
	document
	is
	considered
	•filed"
	when
	actually
	received 	before
the
	close
	of
	business
	(5:00 	p.m.)
	on
	the
	last
	day
	set
	for
	filing,
.
	or
	when
	sent
	by
	telegraph
	or·
certified
	or
	Express 	United
States
	mail,
	postmarked
	not
	later
	than 	the
	last
	day
	set
	for
filing
	...
" 	(
regulation
	32135).
	Code
	of
	Civil
	Procedure
section
	1013
	shall
	apply.
The
	appeal
	must
	state
	the
	specific
	issues
	of 	procedure,
fact,	
law	
or
	rationale 	that
	are
	appealed
	and 	must
	state
	the
grounds
	for 	the 	appeal
	(regulation
	32360{c)).
	An
	appeal
	will
	not
automatically 	prevent 	the
	Board
	from
	proceeding_
in
	this
	case.
	A
seeking
	a
	stay
	of
	any
	activity
	may
	file
	such
	a
	request
	with
	party
its
	administrative 	appeal,
	and 	must
	include
	all
	pertinent 	facts
and
	justifications
	for 	the 	request 	(regulation
	32370).
If
	a
	timely 	appeal
	is 	filed,
	any
	other 	party
	may
	file
	with
Board
	an
	original
	and
	five
	(5)
	copies
	of
	a
	response
	to 	the	the
appeal 	within
	ten
	(10)
	calendar
	days
	following 	the 	date 	of
service
	of 	the 	appeal
	(regulation
	32375).
Service
All
	documents
	authorized 	to
	be
	filed
	herein
	must
	also
	be
"served"
	upon
	all 	parties
	to 	the 	proceeding
	and 	on
	the
	San
Francisco 	regional 	office.
	A
	"proof 	of 	serviceh
	must 	accompany
each 	copy 	of
	a
	document 	served
	upon
	a
	party 	or
	filed
	with 	the
20

(
Board
	itself
	(see
	regulation
	32140
	for
	tn'e
	required
	contents
	and
a
	sample 	form).
	The
	document
	will
	be
	considered 	properly
"served"
	when
	personally,delivered
	or 	deposited
	in
	the
	first-
class
	mail 	postage 	paid
	and
	properly
	addressed.
Dated:
	.July 	7,
	1992
Specialist
21