State of California (Department of Personnel Administration) (Communications Workers of America and California Association of Psychiatric Technicians) (PERB A146S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
COP~~UNICATIONS
	WORKERS
	OF 	A.t'1ERICA,
Employee
	Organization,
APPELLANT,
and
CALIFOR..~IA ASSOCIATION
	OF
PSYCHIATRIC 	TECH.NICI.i\.NS,
Employee
	Organization,
and
STATE
	OF
	CALIFORNIA 	(DEPARTMENT
	OF
PERSONNEL 	ADMINISTRATION),
Employer.
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____________________ )
Case
	No.
	S-D-87-S;
(S-SR-18)
PERB
	Order
	No.
	Ad-146-S
Administrative
	Appeal
June
	14,
	1985
Appearances: 	Kanter, 	Williams,
	Merin
&
	Dickstein
	by
Howard
	L.
	Dickstein
	and 	Ronald 	Rosenberg
	for
	Communications
Workers
	of
	America; 	Loren E.
	McMaster
	for 	CaliforniaAssociation
	of
	Psychiatric
	Technicians.
Before
	Hesse,
	Chairperson; 	Jaeger,
	Morgenstern
	and
	Porter,
Members.
DECISION
JAEGER,
	Member:
	Communications 	Workers
	of
	America
	(CWA)
appeals 	the
	interlocutory 	order 	of 	the
	Sacramento
	regional
director
	of 	the 	Public
	Employment
	Relations
	Board
	(PERB
	or
Board)
	directing 	that
	a
	decertification 	election
	be
	held
	on
June
	17, 	1985,
	in 	Unit
	18
	of 	the 	State 	service,
	and
	requests
	a
stay
	of 	that 	election.

As
	its 	first
	ground
	for
	appeal,
	CWA
	argues
	that
	the 	proof
of
	support 	submitted
	by
	petitioner
	California
	Association 	of
Psychiatric
	Technicians
	(CAPT)
	pursuant 	to
	regulation
	32770
1
is
	deficient.
	Regulation
	32360
	provides
	that
	an
	appeal
	of
	an
administrative
	determination
	must
	be
	filed
	within
	10
	days
	of
service
	of 	the
	letter
	of
	determination.
	Here,
	the
	letter
setting
	forth
	PERB's
	determination
	that
	the proof
	of
	support
was
	adequate
	was
	served
	on
	April
	26,
	1985.
	However,
	CWA
1 s
instant
	appeal
	was
	not
	filed 	until
	May
	16,
	1985,
	more
	than
10
	days
	after
	service
	of
	the
	letter
	of
	determination.
	This
ground
	for
	appeal
	is
	therefore
	dismissed
	as
	untimely.
CWA
	also 	objects 	to 	the 	regional
	director's
	decision 	to
conduct
	this
	election
	by
	mail,
.rather
	than 	conducting
	an
on-site 	election 	at
	each
	of 	the
	locations
	where
	unit
	members
work.
	We
	find
	this
	matter 	to
	be
	a
	question 	of
	election
mechanics
	and
	therefore
	unappealable 	pursuant 	to 	regulation
32380.
2
PERB's
	rules
	and
	regulations 	are 	codified
	at 	CaliforniaAdministrative
	Code,
	title
	8,
	section
	31001
	et
	seq.
1
2
Regulation
	32380
	provides 	as 	follows:
32380.	
Limitation 	of 	Appeals.
The
	following 	administrative 	decisions 	shall
not
	be
	appealable:
(a)
	A
decision
	by
	a
	Board
	agent 	regarding
the 	mechanics 	of
	an
	election provided 	the
decision
	does 	not
	affect 	standing 	of
	a
	party
to 	appear 	on 	a
	ballot; 
2

As
	further
	grounds
	for 	appeal,
	CWA
	argues:
	that
	the
election
	order
	fails
	to
	state
	that
	CWA
	can 	be
	decertified
	only
by
	a
	vote
	of
	a
	majority
	of
	all
	unit
	members,
	rather
	than
	by
	a
simple 	majority
	of 	those
	who
	actually
	vote
	and
	that
	no
	runoff
election 	will
	be
	held
	if
	no
	ballot
	entry 	receives
	a
	majority
vote;
	that
	the
	election
	should
	be
	stayed
	until
	a
	pending
	unit
modification
	petition
	has
	been
	resolved
	and;
	that
	the
	election
should
	be
	stayed
	until
	contract 	negotiations
	between
	CWA
	and
the
	employer
	are
	completed.
	After
	fully
	considering 	these
claims,
	we
	find
	nothing
	which 	would 	compel
	us
	to
	set
	aside
	or
stay
	the 	regional
	director's
	election
	order.
As
	to
	CWA's
	argument
	that
	it
	can 	be
	decertified
	only
	if
	a
majority
	of
	the
	employees
	in
	the
	unit, 	rather
	than
	a
	majority
of 	those 	voting,
	cast 	their 	ballots
	accordingly,
	we
	find
	that
the 	matter 	has 	been
	raised
	prematurely.
	The
	question
	may
	well
be 	obviated
	by
	the
	results
	of
	the
	election.
	If
	not, 	the 	matter
may
	be
	raised
	by
	CWA
	after
	the 	votes
	have 	been
	tallied
	by
	way
of
	an
	objection 	to
	the
	conduct
	of 	the
	election
	pursuant
	to
regulation
	32738.
CWA's
	argument
	regarding 	the 	pending
	unit 	modification
petition 	similarly presents
	no 	need
	to 	set 	aside 	the 	scheduled
and
	noticed 	election.
	Because
	the
	petition 	requests
	a
reduction 	in 	the 	size
	of 	the 	unit,
	the 	only 	concern
	raised 	is
that
	some
	individuals
	may
	vote
	who
	should 	not 	in 	fact
	be
	a
	part
of 	the 	unit.
	Regulation 	32732, 	which
	permits
	a
	party 	to
	an
3

election
	to
	challenge 	the
	eligibility
	of
	any
	person
	to
	vote 	in
the
	election,
	adequately
	resolves
	this
	concern. 	Pursuant
	to
that
	regulation,
	voters
	so
	challenged
	are 	permitted 	to
	cast
their
	ballot;
	such
	ballots
	are
	then
	separately
	identified
	as
challenged
	ballots
	so
	that
	the
	right
	of
	the 	voter 	to
participate
	in
	the
	election
	can be
	resolved
	at
	a
	later
	time.
Finally,
	CWA
	urges
	a
	stay
	of
	the
	election
	based
	on
	its
claim
	that
	PERB's
	setting
	of 	the
	election
	has
	deleteriously
affected
	ongoing
	negotiations
	between
	it
	and
	the
	State
employer.
	It
	claims
	that
	the
	employer
	has
	engaged
	in 	surface
bargaining
	and
	has 	otherwise
	frustrated
	the 	bargaining
process.
	To
	the
	extent 	that
	CWA
	is
	arguing
	that
	the
	employer
has
	committed
	unfair 	practices
	as
	defined
	at
	section
	3519
	of
the 	State
	Employer-Employee
	Relations
	Act,
3
it
	may
	rely
	on
well-established
	Board
	policy
	holding
	that
	an
	election
	may
	be
blocked
	where
	there
	has 	been
	a
	failure
	on
	the
	part
	of
	the
employer
	to 	bargain 	in
	good
	faith,
	since
	that
	conduct
	by
	its
nature
	undercuts 	support 	for 	the 	exclusive
	representative
	and
may 	make 	a
	fair 	election
	impossible. 	Jefferson
	School
	District
(1979)
	PERB
	Order
	No.
	Ad-66. 	However,
	such
	a
	"blocking 	charge"
claim
	is
	properly
	initiated
	by
	filing
	charges 	with 	the 	regional
office 	setting 	forth,
	with
	specificity,
	its
	allegations 	of
unlawful 	employer 	conduct.
	Los 	Gatos
	Joint
	Union 	High
	School
The
	State
	Employer-Employee
	Relations
	Act 	(Act)
	is
codified 	at
	Government 	Code
	section
	3512
	et 	seq.
3
4

District
	(1979)
	PERB
	Order
	No.
	Ad-69.
	PERB's
	regional
	director
can
	then 	determine
	the 	merits
	of
	CWA's
	blocking 	claim
	upon
investigation.
	We
	note
	that
	in
	a
	supplemental
	filing
	(see
p.	
6,
	infra)
	CWA
	indicates 	that
	since 	the 	date 	of 	the
	instant
appeal
	it
	has
	in
	fact 	filed
	just
	such
	charges.
To
	the
	extent
	that
	CWA
	is
	arguing
	that
	the
	election
	should
be
	stayed
	so
	that
	it
	can 	complete
	negotiations
	with
	the
employer,
	it
	is
	simply 	unsupported
	by
	the
	Act.
	Section
	3520.5
guarantees 	the
	right
	of
	State
	employees
	to
	revoke
	their
selection
	of
	an 	employee
	organization
	as
	their
	exclusive
representative.
	Further,
	the 	procedural
	time
	lines 	set
	out 	in
regulation
	32776(c)
	are
	deliberately
	drawn
	so
	that
	a
decertification 	effort
	can
	occur
	where
	a
	collective
	bargaining
agreement
	is
	about
	to 	expire.
	Thus,
	contrary 	to
	CWA's
	argument
that
	ongoing
	negotiations 	mitigate 	in
	favor 	of
	a
	stay,
	we
	find
that
	those 	events 	demonstrate 	the 	importance 	of 	going 	forward
with 	the
	election.
	Under
	established
	PERB
	policy,
	Board
approval 	of
	a
	decertification 	petition 	triggers
	a
	question
concerning
	representation
	(QCR)
	period.
	During
	this
	period,
the
	employer
	has 	an
	obligation 	to 	maintain
	strict
	neutrality
	in
its
	treatment 	of
	all
	employee
	organizations
	which
	may
	be
competing
	in 	the 	forthcoming
	election.
	Santa
	Monica 	Community
College
	District
	(1979)
	PERB
	Decision
	No.
	103. 	This 	duty
requires 	the 	employer
	to 	refrain
	from 	any 	conduct 	which
	may
influence, 	intentionally
	or 	not, 	the
	outcome 	of 	the 	election.
5
j

See
	also,
	Clovis 	Unified
	School
	District
	(1984)
	PERE
	Decision
No.
	389.
	Even 	more
	significantly,
	the
	Board
	has
	held
	that
	an
employer
	has
	no
	duty
	to 	negotiate
	with
	an
	exclusive
representative
	when
	it
	has
	a
	reasonable
	and 	good
	faith
	doubt 	as
to
	the 	existence
	of
	majority
	employee
	support
	of
	that
organization. 	Pittsburg
	Unified
	School
	District
	(1983)
	PERE
Decision
	No.
	318.
	It
	is 	clear,
	then,
	that
	the
	negotiation
	of
	a
contract
	during 	the
	pendency
	of
	a
	QCR
	is
	fraught 	with
obstacles.
	Thus,
	contrary 	to
	CWA's
	argument,
	the
	better
procedure
	is
	to
	hold 	the
	election
	as
	soon
	as
	due
	process
permits 	in 	order 	to
	keep
	the
	QCR
	period
	as
	short
	as
	possible
and
	to
	restore
	a
	setting
	in
	which
	negotiations
	may
	proceed
productively.
CWA
	has 	brought
	two
	other
	claims
	before
	this
	Board
	by
	way
of
	supplementary
	filings
	to
	their
	appeal.
	First,
	CWA
	claims
that
	the 	ordered
	election 	will
	be
	unfairly 	affected
	by
	unfair
practices
	committed
	recently	
by 	the 	employer.	
am 	states 	that
it
	has
	filed
	charges 	with
	PERB's
	regional
	office 	alleging
	these
unfair 	practices
	and
	that,
	pursuant 	to
	Board
	policy, 	the
election
	should
	be
	blocked
	until
	these 	charges
	are 	resolved.
CWA's
	second 	claim
	consists
	of
	a
	challenge
	to
	the
	status
	of
CAPT
	as 	an 	employee
	organization.
Pursuant 	to 	established
	Board
	procedure
	and
	regulation
32705(b), 	these
	two
	claims 	are 	properly 	presented 	to 	the
Sacramento 	regional 	office 	for
	initial
	determination.
	We
	have
6

therefore 	referred 	these 	claims 	to 	that 	office 	for
administrative 	determination 	as 	appropriate. 	Whether 	these
claims 	warrant 	a 	stay 	of 	the 	election 	or 	an 	impounding 	of
ballots 	is 	a 	matter 	to 	be 	considered by 	the 	regional 	director
following 	her 	investigation.
ORDER
For 	the 	above 	reasons, 	the 	appeal 	of 	the 	proof 	of 	support
determination 	is 	DISMISSED 	as 	untimely, 	the 	regional 	director's
order 	directing 	a 	decertification 	election 	in 	Unit 	18 	is
AFFIRMED, 	the 	appeal 	of 	the 	regional 	director's 	decision 	to
conduct 	an 	election by 	mail 	is 	DENIED, 	and 	the 	request 	to 	stay
the 	election 	is 	DENIED 	insofar 	as 	it 	relies 	on 	the 	foregoing.
The 	blocking 	charge 	request 	and 	the 	challenge 	to 	the 	status 	of
CAPT 	as 	an 	employee 	organization, 	and 	any 	request 	to 	stay 	the
election 	arising 	from 	these 	two 	matters, 	are 	REFERRED 	to 	the
regional 	director 	for 	initial 	determination.
Chairperson 	Hesse, 	Members 	Morgenstern 	and 	Porter 	joined 	in
this 	Decision.
7