State of California (Department of Personnel Administration) (Communications Workers of America) (PERB A156S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
COMMUNICATIONS
	WORKERS
	OF
	AMERICA,
AFL-CIO,
Employee
	Organization,
and
STATE
	OF
	CALIFORNIA
	(DEPARTMENT
OF
	PERSONNEL 	ADMINISTRATION),
Employer.
)
)
)
)
)
)
)
)
)
)
)
___________________ )
Case
	No.
	S-0S-61-S
(S-SR-18)
Administrative
	Appeal
PERB
	Order
	No.
	Ad-156-S
June
	27, 	1986
Appearances: 	Kanter, 	Williams,
	Merin	
&	
Dickstein
	by
	Mark
	E.
Merin
	for
	Communications 	Workers
	of
	America,
	AFL-CIO;
	Talmadge
Jones
	and
	Lester
	L.
	Jones, 	Attorneys 	for
	State
	of
	California,
Department
	of 	Personnel
	Administration.
Before
	Hesse,
	Chairperson; 	Morgenstern,
	Burt, 	Porter
	and
	Craib,
Members. 
DECISION
HESSE,
	Chairperson:
	This
	decision 	arose 	out 	of
	a
	request
by
	the
	Communications 	Workers
	of
	America,
	AFL-CIO
	(CWA)
	that
the 	Public
	Employment
	Relations
	Board
	(PERB
	or
	Board)
	not
conduct
	an
	organizational 	security
	(or 	agency 	fee)
	election
among
	the
	members
	of 	State
	of
	California
	Bargaining 	Unit 	18,
Psychiatric
	Technicians.
	The
	state
	employer, 	Department
	of
Personnel 	Administration
	(DPA),
	requested
	that
	PERB
	proceed
with 	the
	election.
PROCEDURAL 	HISTORY
DPA
	and
	CWA
	are 	signatories 	to
	a 	memorandum
	of
understanding
	(MOU)
	covering 	employees
	in 	Unit
	18
	(psychiatric

technicians).
	The
	term
	of 	the
	agreement
	is
	July
	1,
	1985,
through
	June 	30, 	1987,
	although
	there
	is
	currently
	pending
	a
decertification
	vote
	that
	would
	unseat
	CWA
	as 	the
	exclusive
representative.
	The
	MOU
	specifically 	calls
	for
	an 	agency
	fee
election
	to
	be
	held
	either
	90
	days
	after 	certification
	of
	the
results
	of 	the
	decertification
	election,
	or,
	no
	later
	than
July 	1,
	1986.
	The
	parties
	agreed
	that
	PERB
	should 	conduct
	the
election,
	or
	if
	it
	refused
	to,
	for
	another,
	mutually
	acceptable
neutral
	party 	to
	conduct
	the
	election.
On
	February
	3, 	1986,
	DPA
	wrote
	to
	Chief
	of 	Representation
Janet
	Caraway 	(Caraway)
	concerning
	an 	agency
	fee
	election
	that
both
	CWA
	and
	DPA
	wished
	PERB
	to
	conduct.
	PERB
	agreed
	to
conduct 	the
	election.
Sometime
	in
	February
	or
	March
	1986,
	CWA
	approached
	DPA
about 	postponing 	the
	agency
	fee
	election
	until
	the
decertification 	results
	had 	been
	certified.
	After
	an
	exchange
of 	correspondence
	between
	the
	two
	parties,
	DPA
	and
	CWA
	agreed
to
	proceed 	with 	the
	election
	and
	signed
	a
	Consent
	Election
Agreement,
	on
	April
	22, 	1986,
	specifying 	the
	terms 	and
procedures 	of 	the
	election.
	PERB's
	representative,
	Caraway,
also
	signed
	after
	the 	phrase
	"Approved."
	CWA
	and
	PERB
	signed
	a
fee 	agreement 	on
	April
	21, 	1986, 	under 	which
	CWA
	promised
	to
pay
	PERB
	for
	PERB's
	conducting 	the
	election 	pursuant 	to 	the
election
	agreement.
	CWA
	tendered
	a
	check
	for 	six 	thousand
dollars
	as 	an
	initial
	payment, 	and
	PERB
	then
	commenced
	the
election 	preparations.
2

On 	April 	29, 	1986, 	CWA wrote 	to 	Caraway, 	asking 	that 	PERE
"cease 	all 	preparations 	for 	such 	election 	and 	that 	PERB 	not
hold 	this 	election 	until 	unfair 	practice 	charges 	relating 	to
the 	election 	are 	resolved 	or 	until 	further 	agreement 	between
the 	parties." 	On 	that 	same 	day, 	CWA 	stopped 	payment 	on 	its
April 	21 	check, 	but 	CWA 	offered 	to 	pay 	PERB 	for 	any 	expenses
incurred 	up 	to 	April 	29.
On 	May 	2, 	DPA 	responded 	to 	CWA's 	request 	by 	communicating
to 	Caraway 	that 	the 	election 	should 	proceed 	because 	(1) 	PERB
had 	a 	contractual 	and 	regulatory 	duty 	to 	conduct 	the 	consent
election, 	and 	(2) 	the 	equities 	demanded 	that 	CWA 	live 	up 	to 	the
several 	signed 	agreements 	that 	called 	for 	the 	agency 	fee
election 	to 	be 	held 	before 	July 	1. 	CWA 	responded 	on May 	6,
1986, 	raising 	the 	same 	arguments 	it 	made 	in 	its 	April 	29
letter, 	and 	arguing 	that 	PERB 	had 	no 	legal 	duty 	to 	hold 	the
election.
On 	May 	8, 	the 	Board 	itself 	ordered 	its 	agents 	to 	proceed
with 	the 	election. 	Through 	error, 	a 	letter 	from 	Caraway, 	also
dated 	May 	8, 	was 	sent 	to 	DPA 	and 	CWA 	informing 	the 	parties 	that
PERB 	would 	not 	proceed 	with 	the 	election. 	This 	erroneous
letter 	was 	not 	discovered 	until 	May 	9, 	when 	a 	Board 	agent
called 	CWA 	and 	DPA 	to 	inform 	them 	of 	the 	Board's 	decision.
On 	May 	13, 	1986, 	0f/A 	filed 	for 	an 	Alternative 	Writ 	of
Mandate 	and 	a 	Temporary 	Restraining 	Order 	(TRO) 	in 	superior
court, 	based 	on 	the 	argument 	that 	Caraway's 	letter 	was 	an
administrative 	determination 	that 	was 	subject 	to 	appeal. 	The
3

superior
	court 	issued 	the
	Alternative
	Writ
	and
	a
	TRO
	on
	May
	15,
directing
	PERB
	to
	reinstate
	Caraway's
	letter.
	The
	Board
	did
	so
on
	May
	16
	and
	DPA
	appealed 	the
	letter
	to
	the
	Board
	on
	the
	same
day.
	CWA
	filed
	a
	timely
	response
	on
	May
	27.
DISCUSSION
The
	Board,
	on
	May
	8, 	1986,
	instructed
	its
	agents
	to
	proceed
with 	the
	election.
	That
	instruction,
	however,
	was
	nullified
	by
the
	superior
	court's
	decision
	on
	May
	15,
	directing
	the
	Board
	to
treat
	Caraway's
	letter
	as
	an
	administrative 	decision,
appealable
	under
	PERE
	regulation.
	In 	the
	interests
	of
resolving
	this
	matter 	expeditiously,
	the
	Board
	has 	complied
with 	the
	judge's 	order,
	and
	has 	duly 	considered
	this
	dispute,
de
	novo,
	after
	the
	parties
	briefed
	the 	issue 	to 	the
	Board.
Based 	on
	the
	arguments
	made
	before
	us 	by
	the
	parties,
	we 	now
overrule
	Caraway, 	and
	order
	that
	the
	agency 	fee
	election
proceed, 	for 	the 	reasons
	set
	forth
	below.
1.
	Equitable
	Reasons
	to
	Proceed
PERE
	is
	authorized
	by
	statute
	to
	take
	action
	"as
	the 	board
deems
	necessary 	to 	discharge
	its
	powers 	and
	duties
	and
otherwise 	to
	effectuate
	the 	purposes
	[of
	the
	Act]."
1	
PERB's
duty 	extends 	to 	insuring 	that
	employees
	are
	not 	forced 	to
participate
	in 	the
	activities
	of
	a
	union
	by payment
	of
	fair
share 	fees, 	except 	pursuant 	to 	participation 	authorized 	by 	an
lGovernment
	Code
	section 	3541.3, 	incorporated 	into 	the
State
	Employer-Employee
	Relations
	Act
	(SEERA)
	at 	section
3513(g).
4

2
MOU.	
CWA
	and
	DPA
	agreed
	that
	fees 	could
	be
	deducted
	from
employee
	paychecks
	for
	the
	period 	July
	1,
	1985-June
	30,
	1986,
without
	benefit
	of 	approval
	by
	election
	of
	a
	majority 	in 	the
unit.
	In
	exchange
	for 	receiving 	these
	funds
	for
	a
	year,
	CWA
agreed
	that
	a
	fee
	election
	would
	be
	required 	to 	authorize
deductions
	after
	July
	1,
	1986.
	Having
	received 	the
	benefit
	of
its
	bargain,
	CWA
	is
	obligated 	to
	follow 	through
	with 	the 	quid
pro
	quo,
	i.e.,
	the
	agency 	fee
	election.
A
	second
	equitable
	reason 	favoring 	proceeding 	with 	the
election 	is 	that
	the
	unit
	employees 	have
	no
	formal
representation 	in 	these 	proceedings, 	so, 	mindful
	of 	the
dictates
	of 	the
	U.S.
	Supreme
	Court
	in
	Chicago
	Teachers
2sEERA
	section
	3515
	reads, 	in 	relevant
	part:
3515.
	RIGHT
	TO
	JOIN
	OR
	PARTICIPATE 	IN
ACTIVITIES
	OF 	EMPLOYEE 	ORGANIZATIONS:
SELF-REPRESENTATION
Except 	as 	otherwise 	provided
	by
	the
Legislature,
	state
	employees
	shall
	have
	the
right 	to
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing 	for 	the 	purpose 	of
representation
	on
	all
	matters 	of
employer-employee
	relations. 	State
employees
	also 	shall
	have
	the
	right
	to
refuse 	to 	join 	or
	participate
	in 	the
activities
	of
	employee
	organizations, 	except
that
	nothing
	shall
	preclude 	the
	parties
	from
agreeing 	to
	•.•
	a
	fair
	share 	fee
provision,
	as 	defined 	in 	subdivision 	(j)
	of
Section
	3513,
	pursuant 	to
	a 	memorandum
	of
understanding.
See
	also
	Chicago 	Teachers 	Association 	v. 	Hudson 	(1986)
us
5

3
Association
	v.
	Hudson,	
PERB
	must
	protect
	the
	employees'
statutory
	and
	contractual
	right
	to
	decide
	whether
	their
	agency
fee
	obligations
	should
	continue.
	PERB
	is
	in
	the
	best
	position
to
	do
	just
	that
	by 	going 	forward
	with 	the
	election.
Third,
	PERB
	should 	proceed 	because
	CWA
	does
	not
	come
	to
	the
Board
	with
	"clean 	hands."
	CWA
	admits
	that
	there
	is
	a
	dispute
as
	to
	whether
	it
	hcts
	breached 	the
	MOU,
	and
	acknowledges
	that
DPA
	could
	file 	suit
	in 	superior 	court 	against
	CWA
	for 	breach
	of
the
	consent
	agreement
	as 	well 	as
	the
	MOU.
4
Whether
	the
	acts
by
	CWA
	are
	ultimately
	judged 	by 	such
	a
	court 	to
	be
	a
	breach,
	Qr
to
	be
	justified
	by
	some
	action
	on
	the
	part
	of
	DPA
	is
	not
	for
~-E_RB
	to
	decide.
	But,
	the
	Board 	does 	have
	the
	duty
	to
	promote
the
	resolution
	of 	labor
	relations
	problems
	by
	negotiation.
When
	such
	resolution 	is
	not
	possible,
	PERB
	encourages
	the
parties
	to
	abide
	by 	an 	agreement
	while 	seeking
	redress 	before
the 	Board.
~_;:;...c.=-=--=-=:-=---=.:::..:::.:::.:::.:..:::...:...::..=.::.--=:..=..::~=--.::.::___:.:..:.::.::...-=--=-=::...=..::....:_-=-:::_:=-=--=---=-=:....::...==--=..:..::..:.__.=:
r
"'
Here,
	CWA
	negotiated
	an 	agreement
	but
	has
	failed 	to 	carry
through
	its
	obligations,
	thereby 	denigrating 	the
	negotiation
proces£. 	Furthermore,
	CWA
	had
	available
	to
	it
	the 	option 	of
going 	forward 	with 	the
	election,
	and
	then 	challenging 	the
ballots 	if
	necessary.
5
This
	would
	result
	in 	the
	least
	amount
3(1986) 	U.S.
4we
	note
	that
	on June 	20, 	1986,
	DPA
	filed
	a
	complaint
against
	CWA
	for 	declaratory 	relief, 	interpleader,
	and
accounting,
	and 	has 	alleged 	that
	CWA
	breached 	the
	MOU.
5
The
	election
	agreement 	provides 	for 	ballot 	challenges
that 	are
	outcome 	determinative 	to 	be 	resolved 	by 	Caraway.
6

of
	disruption 	to
	the
	election
	and
	negotiation
	processes.
	But
CWA
	has
	chosen
	to
	deny
	its
	obligations
	under
	the
	MOU
	and
	the
consent
	agreement.
	To
	permit
	a
	party 	to
	the
	negotiations
process 	to
	abrogate
	its
	responsibilities,
	when
	the
	same
	result
could
	have 	been
	achieved
	by
	less 	intrusive
	means,
	is 	manifestly
unfair.
CWA.
	alleges 	that
	the
	election
	should 	not 	proceed 	because
(1)
	DPA's
	actions
	have
	tainted
	the
	election
	atmosphere;
	and
	(2)
the 	confusion 	regarding 	the
	identity
	of 	the
	exclusive
representative
	eliminates
	the
	possibility
	of
	a
	fair 	election.
As
	to
	CWA's
	concern 	about 	the
	election
	atmosphere,
	we
	note
	that
CWA
	has 	already 	availed
	itself
	of 	the 	proper
	forum
	to 	resolve
such 	an
	allegation
	by
	filing
	an
	unfair 	practice
	charge.
Because
	the
	conduct
	by
	DPA
	at
	issue
	preceded 	the 	signing 	of 	the
election
	agreement,
	and
	for 	the 	reasons 	discussed 	herein,
	we
see
	no
	reason
	to
	take 	the 	unusual
	step 	of
	suspending
	the
election
	pending
	the
	resolution
	of 	the 	charges.
Finally,
	CWA's
	concerns 	about 	the 	"confusion"
	that
	would
result 	if
	an
	election
	would 	be
	held 	are
	unfounded.
	The
	delay
in
	certification 	is
	due
	to
	CWA's
	challenges 	to
	that
decertification 	election.
	The
	results 	will
	not
	be
	final 	for
several
	months
	at 	best.
	It
	would 	be
	patently 	unfair 	to 	the
unit
	members
	if
	CWA's
	delay 	of 	the
	representational 	election
could 	serve 	as 	an 	excuse 	to 	delay 	the 	fee
	election.
	The
	fee
election 	ballot 	clearly 	states 	that 	the 	agency 	fee 	would 	be
paid 	to
	CWA,
	not 	to 	the 	decertifying 	union. 	Indeed, 	the
	name
7

of
	the 	decertifying
	union
	does
	not 	appear
	on
	the
	ballot.
Should
	CWA
	produce
	any
	evidence
	that
	the
	employees
	cannot
	make
an
	informed
	choice
	in 	the
	fee
	election,
	it
	can
	request
	that
	the
ballots
	be
	impounded. 	But
	inchoate
	fears
	should 	not
	justify
	a
request
	that
	employees 	be
	stripped
	of
	their 	statutory
	and
contractual 	right
	to
	vote
	on
	fee
	deductions.
On
	the 	other
	hand,
	failure
	to
	proceed 	with
	the
	election
	may
well
	result
	in 	confusion
	on
	the
	issue 	of
	whether
	the
	employer
may
	lawfully
	continue
	to
	deduct
	fair
	share 	fees
	after
	July
	1,
1986,
	or
	whether
	it
	has
	a
	legal 	obligation 	to
	continue
	to
	make
the 	deductions.
6
The
	most
	sensible
	way
	to 	eliminate
	any
confusion
	over
	the
	legality
	of 	deductions
	after
	July
	1, 	1986,
is
	to
	proceed 	with 	the
	election.
7
2.
	Contractual,
	Legal,
	and
	Statutory
	Reasons
	to
	Proceed
DPA
	and
	CWA
	agreed
	in
	their
	MOU
	that
	PERB
	should 	conduct 	an
election
	by
	July
	1,
	1986.
8
Thereafter,
	DPA
	and
	CWA
	entered
into
	a
	consent
	election
	agreement 	under
	SEERA
	section
6The
	employer's 	agent, 	the
	Controller,
	can
	make
	salary
deductions 	for
	agency
	fees 	only 	as
	authorized
	by
	statute.
SEERA
	section
	3515.7
	authorizes 	those 	deductions
	when
	the
parties
	have
	entered 	into
	an
	MOU
	providing 	for
	such
deductions.
	That
	authorization 	is
	in
	doubt
	past 	July
	1, 	1986,and
	thus 	the
	legality 	is
	in 	question 	for 	deductions
	made
	past
that 	date
	if
	no
	election 	is 	held.
7Members
	Craib
	and
	Burt
	would
	overrule
	Caraway 	and
authorize 	the
	election
	on
	equitable
	grounds 	because 	an
	election"effectuates
	the 	purposes 	of
	[SEERA]." 	(Gov. 	Code
	sec.
3541.3.)
	Members
	Craib 	and 	Burt
	do
	not 	agree
	that
	an
	election
is
	compelled 	by
	contract, 	statute 	or 	regulation.
8The
	MOU
	between
	CWA
	and
	DPA
	sets 	forth 	in 	relevant 	part:
8

93515.7(d), 	and 	PERB 	approved 	the 	agreement 	under 	Regulation
32720. 10 PERB 	and 	CWA 	then 	entered 	into 	a 	contract 	on 	April
21, 	1986, 	in 	which 	PERB 	agreed 	to 	conduct 	the 	election 	pursuant
to 	the 	MOU 	and 	the 	consent 	election 	agreement 	between 	DPA 	and
CWA. 	In 	exchange, 	CWA 	would 	compensate 	PERB 	for 	the 	expenses
of 	the 	election.
10. 	Agency 	Shop 	Fees 	Election
a. 	An 	Agency 	Shop 	Fees 	Election 	shall 	be
held 	no 	later 	than 	ninety 	(90) 	days 	after
certification 	of 	the 	exclusive 	representative
by 	the 	PERB 	but 	in 	no 	event 	later 	than
July 	1, 	1986.
Agency 	Shop 	shall 	be 	in 	effect 	from 	the 	date
of 	this 	Agreement 	until 	the 	election 	is 	held
at 	which 	time 	it 	shall 	terminate 	unless 	the
majority 	of 	those 	voting 	elect 	to 	continue
Agency 	Shop.
b. 	The 	Fair 	Share 	Election 	shall 	be
conducted 	pursuant 	to 	the 	following:
(2) 	An 	Agency 	Shop 	Election 	shall 	be
conducted 	by 	the 	PERE. 	However, 	if 	the 	PERE
chooses 	not 	to 	conduct 	such 	elections, 	the
Agency 	Shop 	Election 	shall 	be 	conducted 	by 	a
State 	agency 	or 	a 	private 	firm 	mutually
selected 	by 	the 	State 	and 	CWA.
9sEERA 	section 	3515.7(d) 	reads, 	in 	relevant 	part:
Notwithstanding 	this 	subdivision, 	the 	state
employer 	and 	the 	recognized 	employee
organization 	may 	negotiate, 	and 	by 	mutual
agreement 	provide 	for, 	an 	alternative
procedure 	or 	procedures 	regarding 	a 	vote 	on
a 	fair 	share 	fee 	provision.
lOsee 	footnote 	12 	and 	accompanying 	text.
9

While 	PERB 	cannot 	enforce 	the 	MOU 	between 	the 	parties, 	well
established 	contract 	law 	gives 	PERB 	the 	right 	to 	proceed 	under
the 	contract 	it 	has 	with 	CWA 	to 	conduct 	the 	election. 	Although
one 	party 	to 	this 	bilateral 	contract 	(CWA) 	has 	indicated 	it 	no
longer 	wishes 	PERB 	to 	hold 	the 	election, 	such 	a 	breach 	does 	not
strip 	PERB 	of 	its 	ability 	to 	proceed. 	The 	breach 	by CWA 	allows
PERB 	the 	right 	either 	(1) 	to 	refuse 	to 	proceed 	or 	(2) 	to 	hold
the 	election, 	and 	pursue 	damages 	against 	CWA 	if 	it 	wishes 	to.
This 	Board 	believes 	that 	it 	should 	proceed 	because 	the 	third
party 	beneficiaries, 	Unit 	18 	employees, 	are 	best 	served 	by 	the
holding 	of 	the 	election, 	and 	the 	purposes 	of 	SEERA 	are 	best
effectuated 	by 	holding 	such 	an 	election.
State 	employees 	have 	the 	right 	to 	refuse 	to 	join 	or
participate 	in 	the 	activities 	of 	an 	employee 	organization,
except 	that 	employees 	may 	be 	required 	to 	pay 	a 	fair 	share 	fee
"pursuant 	to 	a 	memorandum 	of 	understanding." 	(SEERA 	sec.
3515.) 11 In 	this 	case, 	the 	MOU 	calls 	for 	an 	agency 	fee
election. 	To 	deny 	the 	employees 	the 	chance 	to 	vote 	in 	a 	fee
election 	would 	not 	only 	violate 	the 	MOU, 	but 	would 	result 	in 	a
violation 	of 	section 	3515 	by 	requiring 	the 	employees 	to
participate 	in 	union 	activities, 	through 	use 	of 	the 	agency 	fee,
in 	spite 	of 	the 	lack 	of 	authorization 	for 	such 	usage 	after
July 	l, 	1986.
Therefore, 	through 	statutory 	interpretation, 	PERB 	is
llsee 	footnote 	2, 	supra, 	for 	text 	of 	section 	3515.
10

authorized
	to
	take 	the
	action
	necessary
	to
	implement
	the
protections
	of
	section
	3515,
	specifically,
	to
	hold 	the
	election
as
	originally
	agreed
	to.
PERE
	regulations
	may
	also
	be
	relied
	upon
	to
	support
	a
decision 	that
	the
	election
	proceed.
	The
	fee
	agreement 	between
CWA
	and
	PERB
	specifically 	states
	that
	the
	election 	will
	be
	held
"in
	accordance 	with
	the
	terms
	of
	[the
	consent
	agreement]
	and
applicable
	PERB
	procedures."
	(Emphasis
	added.)
Regulation
	32720
	mandates,
	"An
	election 	shall
	be
	conducted
when
	the
	Board
	approves
	an
	agreement
	for
	a
	consent
election
	pursuant 	to
	•.•
	Division
	3
	Chapter
	1 	[SEERA
regulations,
	including 	Regulation
	40430, 	which
	provides 	for
	an
1
agency 	fee
	election
	pursuant 	to
	an
	MOU].
112
The
	parties
	can
	agree
	to
	the
	mechanics
	of
	an
	election,
	as
was
	done
	here, 	pursuant 	to 	Regulation
	40430:
Notwithstanding 	the
	provisions 	of
	this
Article,
	the
	employer 	and
	the 	exclusive
representative
	may
	mutually 	agree
	upon
alternative
	procedures 	regarding
	a
	vote
	on
	a
fair
	share 	fee
	provision 	pursuant 	to
Government
	Code
	section 	3515.7(d).
Here,
	PERB
	signified
	its
	approval 	of 	the 	consent·
election
12PERB
	Regulation
	32720
	reads:
32720.
	Authority 	to
	Conduct
	Elections.
	An
election 	shall
	be 	conducted
	when
	the
	Board
issues
	a
	decision 	directing
	an
	election 	or
approves 	an 	agreement 	for
	a
	consent
election, 	pursuant 	to 	the 	provisions 	of
Division
	2, 	Chapters
	1
	and 	2;
	Division
	3,
Chapter
	l;
	or 	Division 	4, 	Chapter
	1
	of 	these
regulations.
	(Emphasis 	added.)
11

by
	approving 	the
	contract
	between
	CWA
	and
	DPA
	that
	set
	out 	the
terms
	and
	conditions
	of 	the
	election.
	No
	events
	have
transpired
	since
	that
	document
	was
	signed
	that
	would
	require
the 	withdrawal
	of
	PERB's
	approval.
Thus,
	in
	addition 	to
	the
	equitable
	reasons
	in
	favor
	of
proceeding,
	PERB
	has
	contractual,
	statutory,
	and
	regulatory
reasons
	to
	proceed 	with 	the
	election.
ORDER
The
	letter
	of
	Janet
	Caraway
	of
	May
	8, 	1986,
	is
	hereby
OVERRULED,
	and
	the
	Board
	ORDERS
	that
	the 	Bargaining 	Unit
	18
agency 	fee
	election
	proceed.
Members
	Burt,
	Porter,
	and
	Craib 	joined 	in
	this
	Decision.
Member
	Morgenstern's
	dissent
	begins
	on
	page
	13.
12

Morgenstern,
	Member,
	dissenting:
	Contrary
	to
	my
	colleagues,
I
	find
	that
	the
	chief
	of 	the 	Board's
	representation 	division
acted
	appropriately
	in 	declining 	to
	conduct
	the
	fair
	share
	fee
election
	under
	the 	circumstances
	in
	this
	case.
1PERE
	Regulation
	32720	
sets
	forth
	the 	circumstances
	under
which
	the
	Board
	is
	permitted
	to
	conduct
	an
	election.
	It
provides, 	in
	pertinent 	part:
Authority 	to
	Conduct
	Elections.
	An
	election
shall
	be
	conducted
	when
	the
	Board
	issues
	a
decision
	directing
	an
	election
	or
	approves
an
	agreement
	for
	a
	consent
	election,
	••.
Since
	no
	order 	of 	the
	Board
	has
	issued
	directing
	the
	instant
election,
	the 	Board's
	exclusive
	authority
	to
	conduct
	this
election 	is
	based
	on
	the
	mutual
	consent
	of 	the
	parties.
At
	this
	juncture,
	however, 	one
	party
	to
	that
	agreement,
	the
Communications 	Workers
	of
	America
	(CWA),
	has
	withdrawn
	its
consent
	and
	has 	voiced
	an
	objection 	to
	our 	proceeding 	with
	the
fee
	election.
	The
	first
	question 	in
	this
	dispute, 	therefore,
	is
whether
	CWA
	should
	be
	permitted 	to
	withdraw
	from
	the 	previously
agreed-to
	consent
	election
	agreement.
PERE
	Regulations 	are
	silent
	as
	to 	the
	parties' 	ability
	to
withdraw
	from
	election
	agreements.
	The
	National
	Labor
	Relations
Board
	(NLRB)
	specifically
	addresses 	the
	possibility
	of 	such 	an
occurrence 	in
	its
	Casehandling
	Manual
2
and
	permits 	withdrawal
lpERB
	Regulations 	are 	codified 	at 	California 	Administrative
Code,
	title
	8,
	section
	31001
	et
	seq.
2NLRB
	Casehandling 	Manual,
	Part 	II, 	section
	11098.
13

from
	consent
	election
	agreements
	but
	only
	under
	prescribed
conditions.
	While
	PERB
	may
	wish
	to 	enunciate
	such
	a
	rule 	to
cover
	future
	consent
	election
	situations,
	none
	currently
	exists
and
	no
	standards
	have 	been
	enunciated.
	Thus,
	we
	have
	no
	basis
for
	precluding
	CWA'
s
	withdrawal.
Given
	the
	above
	and
	absent
	any
	legal
	requirement
	that
	the
Board
	proceed 	with
	this 	election,
	it
	is
	unwise
	to
	embroil
	the
Boa.rd
	in
	what
	is, 	at
	its
	core,
	a
	contractual
	dispute
	between
	the
parties.
	Moreover,
	if,
	as
	the.majority
	posits
	at
	page
	5,
	the
parties'
	agreement
	sets 	July
	1,
	1986
	as
	the
	cut-off
	date 	for
"fees
	collected
	without
	benefit
	of
	election,"
	then 	the
	equitable
arguments
	to
	proceed 	with
	the
	election
	are
	irrelevant:
	the
contract
	would
	prohibit
	the
	alleged 	inequity.
	Indeed,
	holding
the
	election 	is
	unlikely 	to
	settle
	anything.
Under
	these 	circumstances
	and
	absent
	any
	statutory
	or
regulatory 	authority 	to
	hold
	CWA
	to
	its
	agreement,
	I
	find
	a
consent
	agreement
	that
	no
	longer
	reflects
	consent
	an
insufficient 	basis 	to
	hold
	this
	fee
	election.
14