Pleasant Valley Elementary School District (PERB 0380E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHARLES H. ALLEN, 	et al.,
Petitioners 	- Appellants,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER 504,
and
PLEASANT 	VALLEY 	ELEMENTARY 	SCHOOL
DISTRICT,
Respondents.
Case No. 	LA-OS-52
PERB Decision No. 	380
February 28, 	1984
Appearances; 	James W. 	Marsala, 	Attorney for petitioners-
appellants .
Before Jaeger, 	Morgenstern and Burt, 	Members.
DECISION
JAEGER, 	Member: 	Appellants are 65 employees 	in a
classified 	representation 	unit 	of 	the 	Pleasant 	Valley
Elementary School 	District 	(District) 	who had 	filed 	a petition
for 	an election 	to 	rescind a 	service 	fee 	arrangement 	in 	favor
of 	the California School Employees Association 	(CSEA), 	the
exclusive 	representative 	for 	the 	unit.1 They 	appeal 	a
1The 	regional 	office 	order 	does 	not 	identify appellants
as 	the 	employees 	who petitioned 	for 	the 	rescission 	election.
However, 	this claim 	is made 	in appellants' 	notice of appeal and
is 	accepted here 	as 	accurate.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
______________ )

regional 	office 	order 	blocking 	the 	election pending 	the 	outcome
of 	an 	unfair 	practice 	charge 	filed by CSEA against 	the 	District.
FACTS2
CSEA's unfair practice charge alleged, 	inter alia, 	that 	the
District, 	by 	refusing 	to 	compel 	compliance with 	the 	service 	fee
provision of 	the 	negotiated 	agreement, 	has 	encouraged 	employees
to 	refuse 	to pay 	the 	fee 	and 	to 	file 	the 	rescission petition.
The 	regional 	office, 	pursuant 	to 	PERB 	Regulation 	32752,3
conducted 	an 	investigation as 	a 	consequence of 	which 	it
determined 	that 	the 	District's 	actions 	were 	likely 	to 	influence
the 	outcome of 	the 	rescission election. 	It 	issued 	the attached
letter 	order 	blocking 	the 	election 	"to 	effectuate 	the 	purposes
of 	the 	Act."4
Appellants 	raise 	a number 	of 	exceptions 	to 	the 	regional
office's 	conclusions, 	virtually all of 	which reiterate
arguments 	presented 	during 	the 	course 	of 	the 	investigation.
Because 	the 	documentary 	evidence 	made 	available 	to 	the
investigating 	board 	agent 	and 	submitted 	on 	appeal provides
2The 	facts 	developed 	during 	the 	investigation 	appear 	in
the 	attached 	regional 	office 	letter 	order. 	Only 	those 	germane
to our 	decision 	are 	repeated here.
3PERB 	regulations 	are 	codified at 	title 	8, 	California
Administrative Code, 	section 31001 et 	seq.
4The 	Educational Employment 	Relations Act 	(EERA) 	is
codified at 	Government 	Code 	section 	3540 et 	seq. 	Unless
otherwise 	indicated, 	all 	references are 	to the 	Government 	Code.
N	2

sufficient 	grounds 	for ordering 	that 	the 	election be 	stayed
pending 	the 	final 	outcome 	of 	the 	underlying 	unfair 	practice
charge, 	the Board 	finds 	it 	unnecessary to consider 	all of 	the
exceptions.
The 	contract 	negotiated 	by 	the 	District 	and 	CSEA 	includes
the 	following 	provisions:
The District 	shall, 	upon appropriate written
authorization 	from any 	employee, 	deduct 	and
make 	appropriate 	remittance 	for 	dues
deductions 	and 	service 	fees.
The 	District 	shall 	deduct 	dues 	in accordance
with 	the 	Association dues 	and 	service 	fee
schedule 	. 	. 	. 	from all employees who are
members 	. 	. 	. and who have submitted dues
authorization 	forms 	to the District. 	Each
employee 	covered by 	this 	agreement 	who does
not 	voluntarily acquire 	or 	maintain
membership 	in 	the Association 	shall be
required 	as 	a 	condition of 	continued
employment 	. . . 	to 	pay 	the 	Association 	a
service 	fee as 	a 	contribution 	toward 	the
administration of this Agreement 	. 	. 	.
(Emphasis 	added.)
This 	arrangement5 was 	made 	effective 	in March 	1982
following 	an 	organizational 	security 	election 	conducted by 	the
Public Employment 	Relations 	Board 	(PERB). 	In November 	1982,
CSEA filed 	an 	unfair practice 	charge 	alleging 	that 	the 	District
refused 	to 	implement 	the 	enforcement 	provisions 	of 	the
contract, 	thereby violating EERA subsection 3543.5(c). 	A
5Although 	no argument 	is 	made 	that 	such a provision 	is
unlawful or unenforceable, 	the 	Board notes 	that EERA
subsections 	3540(i) 	and 	3546 	specifically authorize 	such a
provision.
w	3

complaint 	was 	issued 	in 	February 	1983 	after 	settlement
conferences 	proved 	unsuccessful.
In March 1983, 	the petition to 	rescind 	the 	service 	fee
provision was 	filed. 	In May, 	CSEA amended 	its 	charge 	to allege
that 	the District: 	openly opposed 	the 	service 	fee 	requirement;
refused 	to enforce 	the 	"condition 	of 	employment" 	provision by
not 	terminating non-compliant 	employees; 	and 	that by 	this
refusal and by 	its 	surface 	efforts 	to get 	compliance,
influenced 	employees 	to 	file 	the 	petition 	for 	rescission and
effectively prevented 	employees 	from 	exercising 	free 	choice 	in
the 	anticipated 	election.
The District's position 	is 	that 	it will 	not 	now or ever
terminate 	employees 	who 	fail 	to 	comply with 	the 	fee
requirement. 	It 	claims that 	this was 	its understanding with
CSEA when 	it 	negotiated 	the 	service 	fee provision and 	that 	the
school board 	ratified 	the provision on this basis. 	In
June 1982, 	in response to CSEA's demand 	that 	it 	enforce 	the
contract, 	the District 	sent 	the 	following:
The 	Pleasant Valley District 	Board 	of
Trustees 	will not 	now or 	in the 	future
terminate 	any employees 	for 	this 	reason.
This was agreed upon, 	in our opinion, 	with
the 	CSEA representative 	prior 	to 	the
contract, 	and the 	[school] 	Board approved
agency 	shop 	with 	this 	understanding.
DISCUSSION
PERB Regulation 	32752 provides:
The 	Board 	may 	stay 	an 	election pending 	the
resolution 	of 	an 	unfair 	practice 	charge
A	4

relating 	to 	the 	voting 	unit 	upon an
investigation and 	a 	finding 	that 	alleged
unlawful conduct 	would 	so affect 	the
election process 	as 	to prevent 	the 	employees
from exercising 	free 	choice. 	Any
determination made 	by 	the 	Board 	pursuant 	to
this 	Section may be 	appealed 	to 	the 	Board
itself 	in 	accordance with 	the provisions 	of
Division 1, 	Chapter 4, 	Article 	2 of 	these
regulations.6
In considering 	the 	stay of an election, 	the Board 	agent's
obligation 	is 	to determine 	whether 	the 	facts 	alleged 	in 	the
unfair practice complaint, 	if true, 	would be 	likely to affect
the 	vote of 	the employees and, 	thus, 	the outcome of 	the
election. 	Here, 	the 	requirement 	imposed on the Board agent was
to 	conduct 	an 	investigation 	to determine 	whether 	the 	District's
allegedly unlawful 	failure 	to 	terminate 	employees 	who 	refused
to pay 	the 	negotiated 	service 	fee 	is 	likely to 	affect 	the
manner 	in which votes 	are 	cast 	in 	the 	rescission election.
Pursuant 	to her 	investigation, 	during 	which petitioners,
CSEA, 	and 	the 	District were 	afforded 	full opportunity to 	submit
such 	information and briefing 	as 	desired,7 the 	agent 	reviewed
the 	negotiated 	agreement 	containing 	the 	service 	fee 	provision,
and 	the 	District's 	letter 	stating 	that 	it 	would not 	terminate
6The 	reference 	to 	investigating 	the 	effect 	of 	the 	alleged
unlawful 	conduct 	on 	the 	election assumes 	that 	the 	charge has
already been 	investigated 	and 	a 	complaint 	issued pursuant 	to
Regulation 32640.
7The 	District 	declined 	to participate 	in 	this proceeding,
considering 	it 	a 	matter between CSEA and petitioners.
55

non-compliant 	employees. 	Based on 	these documents, 	she decided
that 	it 	was 	possible 	to assume 	that 	employees 	who had 	complied
with 	the 	fee 	requirement 	would 	consider 	it 	unfair 	that 	they
continue 	such payments 	while 	other 	employees 	pay nothing 	and
are 	not 	compelled 	to pay by 	the District. 	She 	determined 	that
as 	a consequence of the District's action, 	the employees' 	vote
on 	the 	matter 	of 	rescinding or keeping 	the 	fee 	requirement
would 	likely be 	affected, 	and 	that 	the 	election 	should
therefore be 	stayed 	pending 	the 	outcome 	of 	the 	underlying
unfair 	practice case.
Appellants 	argue 	that 	employees have 	no reason 	to 	feel
secure 	in 	the District's 	refusal 	to 	terminate non-payers and
therefore would vote 	for 	rescission anyway. 	This 	argument 	is
both presumptuous 	and misguided, 	ignoring 	the 	real 	issue: 	the
likely 	impact 	of 	the 	District's 	position 	on 	those 	employees 	who
have 	complied 	with 	the 	fee 	requirement 	and 	on 	those 	employees
who are 	members 	of 	the 	Association.8 This 	latter 	combination
8It 	is 	also 	reasonable 	to assume 	that 	CSEA members 	who
succeeded 	in both 	negotiating 	the 	fee 	provision 	and 	securing
approval 	in 	the 	subsequent 	security election, 	recognized that
the 	threat 	of 	termination 	was 	the 	most 	effective 	way 	to assure
that 	those 	who benefited 	from 	CSEA's 	services paid 	their 	fair
share 	of 	the 	cost 	of 	representation. 	The 	loss 	of 	this potent
"incentive" 	to compliance, 	which would 	shift 	the burden of
securing 	compliance 	from 	the 	District 	to CSEA and 	leave 	CSEA
with 	expensive 	and 	time-consuming 	alternative 	methods 	of
collecting 	its 	fees, 	could easily diminish 	the 	members'
interest 	in 	the arrangement. 	In point, 	the 	record 	indicates
that CSEA has 	filed 	proceedings 	in 	small 	claims 	court 	for
collection of unpaid 	service 	fees.
6

comprises 	some 	104 of 	the 	166 unit 	employees, 	almost 63 percent
of 	the 	eligible 	voters. 	A significant 	shift 	in 	their 	attitude
toward 	the 	requirement 	could 	easily 	affect 	the 	outcome 	of 	the
election.
Appellants 	also 	refer 	to 	the 	District's 	claim 	that 	it has
an 	agreement 	with CSEA that 	non-compliant 	employees 	would 	not
be 	terminated, 	a 	claim that 	CSEA disputes. 	This 	is 	a matter 	to
be 	addressed 	in 	the 	unfair practice hearing. 	It 	is 	neither 	the
Board 	agent's 	obligation 	nor 	function 	to 	resolve 	disputed 	facts
or 	venture 	into a pre-judgment 	of 	the 	merits 	of 	the 	unfair
practice 	complaint. 	The 	complaint 	alleged an unequivocal
contractual 	obligation 	imposed 	on 	the 	District 	and 	the
District's 	unequivocal 	refusal 	to 	terminate 	non-compliant
employees. 	The 	agent 	was correct to accept both as 	fact 	for
the purposes 	of her 	investigation.
In reviewing an agent's order 	staying an election, 	the
Board 	will 	generally defer 	to 	the 	conclusions 	reached by 	the
agent 	if 	it 	finds 	those 	conclusions 	supported by facts
developed 	during 	the 	course 	of 	a 	properly conducted
investigation 	Here, 	we 	find 	that 	the 	agent's 	conclusions 	were
based on 	factual determinations 	of 	which all parties 	were 	aware
and 	to 	which 	they had 	full 	opportunity 	to 	respond.
ORDER
The 	Board hereby ORDERS 	that 	the 	order 	of 	the 	regional
office 	staying 	the 	rescission 	election petitioned 	for 	by
77

appellants, 	pending 	the 	outcome of 	the unfair practice
complaint 	arising 	out 	of 	charges 	filed by CSEA against 	the
District, 	is AFFIRMED.
Members 	Morgenstern and Burt 	joined 	in 	this Decision.
8

STATE OF 	CALIFORNIA 	. 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS Angeles Regional Office
3470 Wilshire Blvd, Suite 1001
Los Angeles, California 90010
(213)736-3127
June 17, 	1983
Mr. James W. Marsala and Associates
620 East Main Street, Suite 204
Ventura, CA 	93001
Ms. Patricia Roy, Field Representative
California School Employees Association
548 South Spring Street, Suite 359
Los Angeles, CA 	90013
Mr. Edward Jones
Negotiation Center
177 Riverside Drive, Suite F
Newport Beach, CA 	92663
Re: 	LA-OS-52
Pleasant Valley Elementary School District
Dear Interested Parties:
The California School Employees Association Chapter 504 	(CSEA)
filed an unfair practice charge (LA-CE-1673) 	against the
Pleasant Valley Elementary School District 	(District) with this
office on November 5, 1982. 	The charge alleges that the
District engaged in bad faith bargaining when it refused to
enforce the provision in the organizational security clause of
the collective bargaining agreement requiring that employees
pay an agency fee as a "condition of continued employment" and
that the District had, by this action, denied the employees
their right to representation and denied CSEA its right to
represent employees.
Pursuant to PERB Regulation 32620(b)1, the Los Angeles PERB
Regional Attorney conducted an investigation, determined that 	.,
the charge stated a prima facie violation, and issued a
complaint on February 3, 1983. 	On March 10, 1983 an informal
conference was held at which no settlement was reached
1PERB Regulation 32620 provides 	in pertinent part:
(b) The powers and duties of such Board
agent shall be to:
;-:~:,,,-~.::---.
<.	·,	;Q•	 	-·
'-,,	 ~}·-•>,~~;;	·~~
-----·-""""

June 1 7 , 1983
Page 2
(4) Make inquiries and review the charge
and any accompanying materials to determine
whether an unfair practice has been, or is
being, committed, and determine whether the
charge is subject to deferral to arbitration,
or to dismissal for lack of timeliness.
(5) Dismiss the charge or any part
thereof as provided in Section 32630 if it is
determined that the charge or the evidence is
insufficient to establish a prima facie case;
or if it is determined that a complaint may
not be issued in light of Government Code
sections 3514.5, 3541.5 or 3563.2 or because
a dispute arising under HEERA is subject to
final and binding arbitration.
(6) 	Issue a complaint pursuant to section
32540.
On March 28, 1983 an organizational security rescission
petition was filed with this office by a group of employees of
the District seeking to rescind the organizational security
arrangement authorized by a PERB conducted election in
March 1982.
On May 16, 1983 CSEA, amended its unfair practice charge to
allege that the District board members openly opposed the
organizational security provision; that they refused to enforce
the "condition of continued employment" provision by not
terminating employees; that only surface enforcement had
occurred "compelling" employees through ineffectual letters and
memos; and that these actions influenced unit members to seek a
rescission election and have effectively prevented employees
from exercising free choice in such an election.
The District's position is that it will not now nor in the
future terminate its employees for non-compliance; that this
was agreed upon with CSEA prior to reaching agreement on the
organizational security provision; and that their contractual
obligation to "urge and compel" employees to join the union has
been fulfilled through written and verbal communications. 	The
District has also indicated that it will not compel compliance
through automatic dues deduction without enployee
authorizations.
This case presents the question of whether or not CSEA's unfair
practice charge should "block" the rescission election. 	For
the reasons that follow, it is found that the unfair practice
charge does block the election and should be resolved before an
election is conducted.

June 17, 1983
Page 3
Discussion and Conclusions
PERB Regulation 32752 provides that:
The Board may stay an election pending the
resolution of an unfair practice charge
relating to the voting unit upon an
investigation and a finding that the alleged
unlawful conduct would so affect the
election process as to prevent the employees
from exercising free choice.
To date, 	the Public Employment Relations Board 	(Board or PERB)
has dealt with this rule in three decisions, all involving the
same school district. 	In Jefferson School District (3/7/80)
PERB Decision No. Ad-82, the Board said that the "blocking
charge rule" serves to insulate an election from unfair
practices that may influence its outcome. 	The board also said
that, "It is therefore appropriate for PERB to delay
decertification elections in circumstances in which the
employees' dissatisfaction with their representative is in all
likelihood attributable to the employer's unfair practices
rather than to the exclusive representative's failure to
respond to and serve the needs of the employees it
represents." 	Jefferson School District (6/29/79) PERB Decision
No. Ad-66.
Likewise the National Labor Relations Board (NLRB) has long
recognized that certain unfair practices interfere with the
exercise of free choice in an election and tend to foreclose
the possibility of holding a fair election (see NLRB v. Gissel
Packing Co.(1969) 395 U.S. 575, 611-612, n.33, 23 L Ed. 2d 547,
[71 LRRM 2481] and Franks Bros. Co. v. NLRB (1943) 321 U.S.
702, 	[14 LRRM 591]).
•Although the instant case deals with a rescission election, the
principle in Jefferson, which dealt with a decertification
election is equally applicable here. 	Like Jefferson, this case
poses a situation where an unfair practice complaint has been
issued but not resolved. 	In applying the "blocking charge
rule" PERB has said that it will not be applied mechanically
but will be examined on a case by case basis to determine
whether applying the rule will serve or deter the purposes of
the Educational Employment Relations Act 	(EERA or Act)
Jefferson School District, supra 	PERB Decision No. Ad-66. 	In
the instant case, CSEA and the District negotiated an
organizational security arrangement to become effective upon a
majority vote in a PERB conducted election. 	The agreement

June 17, 1983
Page 4
requires employees to join CSEA, pay a service fee or claim a
religious objection as a condition of continued employment.
The agreement also requires that the, "District shall take such
action as to compel the employees to pay the required fee."
Following a public meeting at which the Board of Trustees
ratified the agreement, two board members who had voted against
the agreement issued the following statement quoted in a
newspaper article; "Employees should not be forced by a threat
to their employment to provide financial support to an
organization with which they do not agree."
The provision was approved March 24, 	1982 by a 77-48 vote out
of approximately 166 eligible voters. 	On March 31, May 5 and
May 28, 1982 the District sent letters to the classified
employees "compelling" them to comply with the provision. 	The
letters reiterated the language of the agreement and urged
employees to comply.
On or before April 12, 1982 a group of employees (53) opposed
to the election results, wrote a letter to the District about
their displeasure with the provision. 	On or about April 19,
1982, these employees circulated one of several memos
containing similar statements which said,
"Most Important!!! "Please do not give in to
the pressure to sign the form allowing the
District to deduct either a service fee or
join CSEA! 	We will win if we all stick
together. 	It was not the Board's intent to
fire anyone who refused to join the union.
(Emphasis in original).
On June 17, 1982, the Pleasant Valley Board of Trustees at it's
regular public meeting, 	responded to a June 10 CSEA letter
demanding the terminations of approximately 74 employees who
had not complied. 	The Board of Trustees indicated it would
continue with letters such as had already been written. 	On
that date, 	the Board issued the following statement:
"The Pleasant Valley School District Board of
Trustees will not now or in the future
terminate any employees for this reason.
This was agreed upon, in our opinion, with
the CSEA representative prior to the
contract, and the Board approved agency shop
with this understanding."

June 17, 1983
Page 5
On November 5, 1982 CSEA, filed the instant unfair practice
charge, 	in addition to filing suit in Ventura County Superior
court against classified employees who had not complied.2
By not compelling employees to comply with the organizational
security provision, as negotiated by their representative, the
District has encouraged bargaining unit dissatisfaction with
the provision. 	A significant number of employees have not
complied with the provision. 	At the time of the election there
were only 48 votes against approval of the 	agreement. 	Yet on
June 10, 1982, less than three months after the election,
approximately 74 employees had not complied. 	To date, more
than one year later, approximately 62 employees have still not
complied.
The figures cited arguably represent a shift in employee
sentiment caused by the employer's alleged unfair practice. 	It
may reasonably be presumed that some employees have felt that
it is unfair or even useless to comply with the provision while
others are not doing so and are not being forced to. 	This
change in enployee sentiment would affect exercise of free
choice in an organizational security election.
The election will be blocked until the unfair practice has been
resolved.
A separate and independent ground for blocking the rescission
election at this time is found in EERB Regulation 34040 which
bars the filing of a rescission petition for one year from the
date an organizational security arrangement has been voted
upon.3 This insulation period provides a reasonable amount
2The 	suit was dismissed on the basis that jurisdiction
belonged to municipal or small claims court. 	CSEA has recently
filed in municipal court.
3 P E R B Regulation 34040 provides as follows:
Bar to Rescission. 	The Board shall dismiss any petition to
rescind the existing organizational security arrangement if a
majority of the employees voting in an election conducted by
the Board have voted to approved the arrangement within the 12
months immediately preceding the filing of the petition.

June 1 7 , 1933
Page 6
of time for an arrangement to either succeed or fail. 	Because
CSEA's unfair practice charge alleges that the arrangement was
not enforced during the first year of it's existence, 	the
arrangement was denied a reasonable amount of time to succeed.
If the District is found to have committed an unfair practice,
one of the potential remedies would be to extend the election
bar for an additional year to provide this reasonable working
period. 	To hold an election now would allow the District to
profit from it's own wrongdoing, 	if the election results in
rescinding the arrangement and if the unfair practice charge is
ultimately resolved in CSEA's favor. 	Therefore, the pending
unfair practice charge should be adjudicated before an election
is conducted.
Based on all of the above, 	it is found that the blocking charge
rule shall be applied in this case. 	In so doing we are
foreclosing the possibility of conducting a tainted election,
as well as preserving the purposes of the Act in promoting
employer-employee relations.
Petitioner's Arguments Against
Applying the Blocking Charge Rule
The petitioner has advanced several arguments why PERB should
not apply the blocking charge rule.
(1) 	The first argument is that the organizational security
election in 1982 was not held in compliance with PERB rules and
regulations. 	This argument has no bearing on whether the
alleged unfair practice charge has influenced the election
process. 	Moreover, the argument is moot since no timely
objections were filed and the election results were certified
accordingly. 	In addition, petitioner is referred to 109
Cal.App3d 878 	(1980), aff. Oakland Unified School District
(10/19/78) PERB Order No. Ad-48 where the appellate court
upheld the Board's conclusion that only an employer -and an
exclusive representative have standing to file objections to an
organizational security election.
(2) 	Petitioner asserts that the allegations of unfair
practices are not made against and should not affect the rights
of the classified employees. 	In making this argument,
petitioner states that the NLRB will not block an election if
the alleged violations do not affect employees in the
bargaining unit. 	They cite Stokely Foods Inc. 	(1948) 	78 NLRB
842 and Cuneo Press of Indiana (1955) 	114 NLRB 764. 	Those

June 17, 1983
Page 7
cases are clearly distinguishable from the instant case4 in
that the alleged violations here have squarely affected unit
members by encouraging non-canpliance as well as contributing
to a shift in employee sentiment.
(3) 	A "Blocking Charge" should not be applied where it seems
unlikely that the alleged violation would affect the election.
Petitioner argues that in the instant case the alleged
violations are unlikely to affect the election results. 	As
indicated earlier, the alleged violations apparently did affect
employees' willingness to comply with the union security
provision. 	The petitioner cites two NLRB cases which are
distinguishable. 	In Carson Pirie Scott and Co. 	(1946) 69 NLRB
935 and Chevron Oil Co. Administrative Decision (1967) NLRB
case 22-RC-3355, the NLRB found that the employees
dissatisfaction with the union was not attributable to the
employer's unfair practice.
Petitioner also cites Jefferson School District, PERB Decision
No. 82, supra, where the Board upheld the regional director's
finding that refusal to bargain charges filed two years
previously would no longer block an election. 	Petitioner
asserts that in Jefferson as in the instant case, employees
requested an election and therefore one should be held. 	But in
Jefferson, the exclusive representative's members indicated a
desire to proceed to an election. 	They did so because all
local officers had resigned and because they were without
effective representation. 	In addition, the refusal to bargain
charges had been filed two years previously and were considered
by the parties to be "technical" refusals to bargain based on
negotiability, not bad faith bargaining charges.
4In 	Stokley Foods three non-unit individuals filed
unfairs against the employer alleging that they were
discriminatorily refused employment. 	The NLRB refused to
block a representation election because nothing in the record
indicated the three individuals would be included in the
affected unit and because the substance of the unfair did not
affect the employees in the unit. 	In Cuneo the NLRB refused to
set aside election results because of objections by the
employer that the election should never have been held because
of its pending unfair against a union not a party to the
election which still represented some of its employees.

June 17, 1983
Page 8
These facts are clearly distinguishable from the instant case
where CSEA, members have not signed a request to proceed and
where the alleged unlawful conduct is continuing to the present.
(4) 	A "blocking charge" would allow a union to effectively
thwart statutory provisions for an election. 	In advancing this
argument petitioner cites section 3546(b) of the EERA which
provides that an organizational security agreement which is in
effect may be rescinded by majority vote of the employees in
the negotiating unit in accordance with EERB rules and
regulations. 	Petitioner asserts that the rescission petition
fully complies with PERB regulations and with statutory
requirements, and should not be blocked for the sole reason
that an unproved unfair practice charge has been filed.
Petitioner cites NLRB v. Minute Maid Corp. 	(5th Cir. 1960) 283
F2d 705 [47 LRRM 2073]. 	Templeton v. Dixie Color Printing
Co	Co 	5th	5th Cir. 1971) 444 F2d 1064 [77 LRRM 2392]; and NLRB v.
Gebhardt-Vogel Tanning Co. (7th, Cir. 1968) 389 F2d 71 [67 LRRM
2364]. 	In these cases, particularly in Templeton, the courts
held that the NLRB could not mechanically apply the blocking
charge rule without considering and acting upon the petitions
before it. 	They held, inter alia, that the mere filing of an
"unproved" unfair practice charge does not relieve the NLRB of
it's duty to consider and act upon a petition.
In the instant case, the blocking charge rule has not been
applied mechanically. 	The parties were given an opportunity to
file briefs and supporting documents in support of their
positions. 	The rescission petition, unlike the NLRB petitions,
has been considered and acted upon in this administrative
determination. 	Although the unfair practice charge is
"unproven", 	the charge has been investigated and a complaint
has issued on the basis that a prima facie showing of an unfair
practice by the District has been made. 	Applying the blocking
charge rule in this case does not thwart the statutory
provisions for an election, but rather it ensures the integrity
of the election process.
(5) 	The school District's conduct did not influence classified
employees to seek a new election petition. 	Petitioner asserts
that the rescission petition was initiated solely by the
classified employees of the District without any influence from
the District and therefore, the 	election should be held. 	It
appears undisputed that approximately 53 employees voiced their
dissatisfaction with the provision as early as two weeks after
the election. 	During the course of the following year, the
District has publicly refused to enforce the union security

June 17, 1983
Page 9
agreement and the numbers of employees who have resisted
compliance have grown. 	The purpose of an unfair practice
proceeding is to determine whether the District's acts have
interfered with the rights of CSEA as exclusive representative,
as well as with employees' rights to be represented, by
encouraging non-conpliance with the union security clause,
including actions to seek its rescission. 	Thus petitioners'
assertion that the District's acts did not influence employees
•	to file a rescission petition will be resolved by the unfair
practice proceedings.
An appeal of this decision pursuant to FERB Regulations 32350
through 32380 may be made within 10 calendar days following the
date of service of this decision by filing an original and 5
copies of a statement of the facts upon which the appeal is
based with the Board itself at 1031 18th Street, Suite 200,
Sacramento, California 95814. 	Copies of any appeal must be
concurrently served upon all parties and the Los Angeles
Regional Office. 	Proof of service pursuant to Regulation 32140
is required.
Sincerely,
Frances A. 	Kreiling
Regional 	Director
PATRICIA HERNANDEZ
Senior 	Representative