San Diego Unified School District (PERB A278E)

STATE
	OF
	CALIFORNIA
DECISION
OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SAN
	DIEGO 	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
SAN
	DIEGO 	EDUCATIONAL SUPPORT
PERSONNEL/NEA,
Employee
	Organization,
and
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION,
Employee
	Organization.
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Case
	No.
	LA-b-301
Administrative
	Appeal
PERB
	Order
	No. 	Ad-278
June
	27, 	1996
Appearances:	
Jose
	A.
	Gonzales,
	Assistant
	General 	Counsel,
for
	San Diego
	Unified
	School
	District;
	California
	Teachers
Association
	by
	Rosalind
	D.
	Wolf,
	Attorney,
	for
	San 	Diego
Educational
	Support
	Personnel/NEA; 	Maureen
	C.
	Whelan,
	Attorney,
for 	California
	School
	Employees
	Association.
Before 	Caffrey,
	Chairman; 	Johnson and Dyer,
	Members.
DECISION
CAFFREY,
	Chairman:
	This 	case
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
San 	Diego
	Educational 	Support 	Personnel/NEA
	(ESP)
	of
	a
	Board
agent's 	administrative 	determination.
	The
	Board
	agent 	dismissed
ESP's
	objections 	to 	the 	decertification
	runoff 	election
	between
ESP
	and 	the 	California
	School 	Employees
	Association
	(CSEA)
	for
members
	of 	the 	paraeducator unit 	within 	the
	San Diego
	Unified
School
	District 	(District).
	ESP
	objected 	to 	the 	election
	on 	the
grounds 	that 	the 	District 	violated 	the 	obligation 	of
	strict

neutrality
	mandated by
	section
	3543.5(d)
	of
	the
	Educational
Employment
	Relations
	Act
	(EERA) 1
by 	showing
	favoritism
	and
support
	for
	CSEA
	in 	contract 	negotiations
	involving
	a
	separate
bargaining
	unit,
	and 	by
	delaying
	negotiations
	with
	ESP
	over
	a
successor
	agreement
	in
	the 	paraeducator
	unit.
	ESP
	also 	alleged
that
	CSEA
	representatives 	violated
	PERB
	Regulation
	32738(c)
2
by
	awarding
	voter prizes
	during
	the
	election
	period
	and 	by
soliciting
	and
	collecting
	ballots.
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	case,
including 	the
	administrative
	determination,
	ESP'S
	appeal,
	the
1EERA
	is
	codified
	at
	Government
	Code
	section
	3540
	et
	seq.
Unless 	otherwise
	indicated,
	all
	statutory
	references 	herein 	are
to 	the
	Government 	Code.
	Section
	of
	3543.5
	states,
	in 	pertinent
part:
It
	shall
	be
	unlawful
	for
	a
	public
	school
employer
	to
	do
	any
	of 	the 	following:
(d)
	Dominate
	or
	interfere
	with 	the
formation
	or 	administration
	of
	any 	employee
organization, 	or 	contribute 	financial 	or
other
	support
	to
	it,
	or
	in
	any
	way
	encourage
employees
	to 	join
	any
	organization 	in
preference 	to 	another.
2PERB
	regulations 	are 	codified
	at
	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq. 	Regulation
	32738
states,
	in 	pertinent 	part:
(c)
	Objections
	shall
	be
	entertained
	by
	the
Board
	only
	on
	the 	following 	grounds:
(1) 	The
	conduct 	complained 	of
	interfered
with 	the 	employees'
	right 	to 	freely
	choose
	a
representative, 	or
(2)
	Serious
	irregularity 	in 	the 	conduct 	of
the 	election.
2

original 	election
	objections,
	and
	the
	responses
	filed
	by
	the
District
	and
	CSEA.
	Based
	on
	the
	following
	discussion,
	the
Board
	reverses 	the 	administrative
	determination,
	sets
	aside
the
	election
	and
	orders
	that
	a
	new
	election
	be
	conducted.
BACKGROUND
ESP
	became
	the 	exclusive
	representative
	of 	the
paraeducator
	unit
	within 	the
	District
	in
	June
	1985.
	The
	most
recent 	collective
	bargaining
	agreement
	(CBA)
	between
	ESP
	and
the
	District
	expired
	on
	June
	30,
	1995
3 • 	CSEA
	filed
	a
	timely
unit 	decertification 	petition
	on March
	30.
	PERB
	conducted
	the
decertification
	election,
	and
	counted
	the
	mail-in
	ballots
	on
June 	13.
	Of
	the 	approximately
	2,829
	eligible 	unit 	voters,
719
	voted
	for
	ESP, 	682
	voted
	for
	CSEA,
	and
	44
	voted
	for
	"No
Representation."
	Since
	no
	party
	received
	a
	majority
	of
	the
votes,
	PERB
	scheduled
	a
	runoff
	election
	between
	ESP
	and
	CSEA.
The
	most
	recent
	CBA
	between
	ESP
	and
	the
	District
	required
them
	to
	begin
	negotiations
	over
	a
	successor 	contract
	by March
	3.
ESP
	and
	the
	District
	mutually 	extended
	that
	deadline.
	On
August 	17,
	ESP
	presented
	its 	initial
	proposal
	for
	a
	successor
agreement
	to
	the
	District.
	ESP
	sunshined
	this
	proposal
	on
August 	29.
	The
	District
	sunshined
	its 	initial
	proposal
	on
October
	24
	and
	November
	14.
In 	early
	August
	the
	District
	and
	CSEA
	reached
	a
	tentative
agreement 	on
	a
	successor 	contract 	in another bargaining
	unit,
	the
Operations 	Support 	Services
	(OSS)
	unit.
	The 	OSS
	unit 	tentative
3
Unless 	otherwise 	stated, 	all 	dates 	refer 	to 	1995.
3

agreement
	included
	a 	3
	percent
	salary
	increase
	and
	a 	"me
	too"
provision.
	The	
11
me
	too"
	provision
	provided
	that
	the
	OSS
	unit
would
	receive
	a
	salary
	increase
	equal
	to
	any
	higher
	salary
increase 	negotiated
	with
	any
	other
	unit 	in
	the
	District.
	On
August 	22,
	prior
	to 	the
	scheduled
	ratification
	of
	the
	OSS
	unit
contract
	by
	both
	parties,
	the
	District
	notified
	CSEA
	that
	it
would
	not
	ratify
	the
	agreement
	unless
	certain
	changes 	were
	made
to
	its
	nondiscrimination 	clause.
	CSEA
nevertheless
	ratified
	the
tentative
	agreement
	on
	August 	28.
	On
	August 	29,
	the
	District
pulled
	approval 	of 	the
	tentative
	OSS
	unit
	agreement
	from
	the
agenda
	of
	its
	regular
	board 	of 	education
meeting. 	Subsequently,
CSEA
	and
	the
	District
	reopened
	negotiations.
On
	October
	11,
	the
	District
	and
	CSEA
	agreed
	to
	a
	new
	OSS
unit 	contract
	which
	included
	changes
	to 	the 	nondiscrimination
clause,
	a
	3.85
	percent
	salary 	increase,
	and
	a
	.95
	percent
	bonus.
This
	represented
	an
	increase
	from
	the
	amount
	tentatively
	agreed
to
	in
	August
	of
	.85
	percent
	on
	the
	salary
	schedule
	plus 	the
	.95
percent
	bonus.
	The
	parties 	also
	agreed
	to
	extend
	the
	"me
	too"
provision 	to
	cover 	the
	last
	two
	years 	of 	the 	three-year
agreement.
On
	October 	17,
	the
	District
	and
	CSEA
	issued
	a
	joint
memorandum
	announcing
	their
	contract 	settlement 	for 	the
	OSS
	unit.
The
	joint
	memo
	was
	addressed 	to
	employees
	within 	the
	OSS
	unit
	as
well 	as
	employees
	in 	another unit,
	Office-Technical
	and 	Business
Services,
	who
	had 	concluded 	reopener 	negotiations 	with 	the
District.
	The
	District 	issued 	similar
	announcements 	from 	1988
	to
4

1991,
	but
	made
	no
	such
	announcements
	of
	contract 	settlements
between
	1991
	and
	1995.
	The
	District
	Board
	approved
	the
	OSS
	unit
contract
	on
	October
	24.
PERB
	mailed
	ballots
	for
	the 	runoff
	election 	in
	the
paraeducator
	unit 	to
	the
	home
	addresses 	of
	eligible
	voters
on
	October
	23.
	PERB's
	voting
	instructions
	included 	the 	following
under
	the
	heading
	"How
	To
	Cast
	Your
	Ballot":
This
	is
	a
	secret
	ballot
	election.
	An
official
	ballot,
	an envelope
	marked
	"Secret
Ballot
	Envelope" 	and
	a
	postage-paid
	return
envelope
	addressed
	to
	the 	Public
	Employment
Relations
	Board
	are
	enclosed.
	To
	cast
	your
ballot,
	follow
	these
	instructions:
3. 	Place
	the
	ballot
	{DO
	NOT
	FOLD)
	in
the 	Secret 	Ballot
	Envelope.
	Seal
the
	envelope.
4. 	Put
	the 	Secret 	Ballot
	Envelope
into
	the 	postage-paid
	return
envelope
	and
	seal 	the
	envelope.Across
	the 	flap
	{on
	the
	back 	of
this
	envelope),
	PRINT
	and
	SIGN
your
	name
	in
	the 	spaces 	provided.
5.
	Deposit 	the 	postage-paid 	return
envelope
	in
	the
	U.S. 	Mail
	in
	time
for
	your
	ballot 	to
	be
	RECEIVED
	by
the 	Public
	Employment
	Relations
Board 	no
	later
	than 	3:00 	p.m. 	on
TUESDAY,
	NOVEMBER
	14, 	1995.
	In
order 	to
	be 	counted, 	your
	ballot
must 	be
	received
	by
	this
	date
	and
time.
YOUR
	BALLOT
MUST BE 	PROPERLY 	CAST
	IN
ACCORDANCE 	WITH 	THE ABOVE
	INSTRUCTIONS 	IN
ORDER TO 	BE 	COUNTED.
	If
	you
	spoil
	your
ballot, 	call
	the 	Public
	Employment
	RelationsBoard
	at 	the 	telephone
	number 	shown 	above.
5

Prior 	to
	the
	ballot
	deadline,
	CSEA
	distributed
	site
	precinct
instructions
	to
	an
	unspecified
	number
	of
	site
	representatives.
The
	District
	includes
	192
	school
	sites.
	The
	instructions
directed
	the
	site
	representatives 	to
	"Contact
	CSEA
votes 	[sic]
at
	your
	site
	to 	assure
	ballots
	were
	marked/mailed.
	Collect
marked
	ballots 	that
	have
	not
	been
mailed
	and
	post
	them
	to
	PERE
immediately."
	CSEA's
	site
	precinct
	tally
	sheets
	specifically
include 	separate
	columns
	for 	"ballot
	mailed"
	and
	"ballot
collected."
	Eleven
	CSEA
	site
	representatives
	provided
declarations.
	In
	his
	December
	12,
	declaration,
	Anthony
	J.
Fernandez 	(Fernandez),
	a
	CSEA
	field
	representative
	and
	the
	CSEA
employee
	primarily 	responsible 	for 	coordinating
	CSEA's
	campaign,
states
	that 	"instructions
	were
	given
	to
	site
	representatives
to 	ask
	employees
	if
	they
	had
	mailed
	their 	ballots.
	Some
	site
representatives
	were
	given
	already
	marked,
	signed
	and
	sealed
ballots.
11	
In addition,
	Fernandez
	states 	that
	he
	instructed
the
	site
	representatives 	that
	employees 	were
	eligible
	for
	a
prize
	drawing
	if
	"they
	gave
	the
	site
	representative
	a
	sealed
mailable
	ballot."
	Of
	the
	CSEA
	site
	representatives 	providing
declarations, 	three
	admit
	to 	collecting
	and
	mailing
	a
	total
	of
24
	marked
	ballots.
On November
	13,
	CSEA
	site
	representatives
	conducted
	a
	prize
drawing
	for
	two 	movie
	tickets 	at
	each 	school.
	To
	enter 	the
drawing, 	employees 	needed merely
	to 	state 	that 	they 	had
	voted 	in
the 	decertification 	election.
	CSEA
also
	conducted
	a
	districtwide
drawing 	for
	a 	VCR. 	To
	enter 	this
	drawing, 	an 	employee
	filled
	out
6

a
	postage-paid postcard 	attached 	to
	a
	CSEA
	flyer.
	The
	postcard
indicated
	that
	the
	employee
	had
voted
	and
	included 	the
	employee's
name,
	address,
	and
	telephone
	number.
	CSEA
picked
	the
	winner 	of
this 	raffle
	on
	November
	28.
PERB
	counted
	the 	runoff
	ballots
	on
	November
	16.
	Of
	the
approximately
	2,636
	eligible
	unit
	voters,
	679
	voted
	for
	ESP
and
	884
	voted
	for
	CSEA.
	Thus,
	CSEA
	received
	a
	majority 	of 	the
ballots
	cast.
	On
	November
	28,
	ESP
	filed
	objections 	to 	the
runoff
	election.
	The
	Board
	agent 	dismissed
	these
	objections
in
	an
	administrative
	determination
	on
	March
	18, 	1996.
ESP'S
	OBJECTIONS
ESP
	objects 	to 	the
	conduct
	of 	the
	decertification
	runoff
election
	on
	three 	separate
	grounds.
	First,
	ESP
	asserts 	that
the
	District
	showed
	favoritism
	and
	support
	toward
	CSEA
	during
the
	election
	period
	in 	violation
	of
	EERA
	section
	3543 .
.S(d).
Specifically,
	the
	District's
	actions
	in pulling 	the
	OSS
	unit
tentative
	agreement
	from
	the
	board 	of 	education
	meeting 	agenda,
subsequently 	negotiating
	a 	more
	favorable
	agreement, 	and
	in
agreeing 	to
	a 	"me
	too"
	provision 	in
	the
	OSS
	unit 	contract 	with
CSEA
	are 	cited
	by
	ESP
	as 	conduct 	showing
	favoritism 	to
	CSEA. 	ESP
also
	argues
	that
	the 	preparation
	and
	distribution
	by
	the
	District
of
	a
	joint
	memorandum
with
	CSEA
	announcing
	the
	OSS
	unit
	agreement
constitutes
	unlawful 	favoritism
	by
	the
	District.
	Additionally,
ESP
	asserts 	that
	while 	the
	District
	was
	negotiating
	and
announcing
	this
	favorable 	agreement 	with
	CSEA,
	it
	unreasonably
delayed
	commencing
	negotiations 	with
	ESP
	over
	a
	successor
7

agreement
	in
	the 	paraeducator
	unit
	so
	that
	there
	was
	no
opportunity
	for
	ESP
	to 	negotiate
	prior
	to
	the
	decertification
election.
Second,
	ESP
	argues
	that
	CSEA
	inappropriately 	influenced 	the
election
by
	offering
	and
	paying
	financial
	rewards
	and
	inducements
to vote 	for
	CSEA.
	Specifically,
	ESP
	refers
	to
	the
	prize
	drawings
conducted
	by
	CSEA
	at
	individual
	school
	sites
	and
	on 	a
districtwide 	basis.
Third,
	ESP
	alleges 	that
	CSEA
violated
	the 	secrecy
	of
the
	ballot
	and
	the 	laboratory 	conditions 	of 	the
	election
	by
actively 	soliciting
	and
	collecting
	marked
	ballots
	from
	voters.
Specifically,
	ESP
	alleges 	that
	11
	CSEA
	representatives
	solicited
and
	collected
	marked
	ballots 	at
	various
	school
	sites,
	and
	that
CSEA
	representatives
	at
	other
	school
	sites
	similarly
	solicited
and
	collected
	marked
	ballots.
DISTRICT'S
	RESPONSE
The
	District
	responds
	that
	it
	maintained
	strict
	neutrality
and
	showed 	no
	favoritism 	or 	support 	for
	either
	CSEA
	or
	ESP
	by
its
	conduct.
	The
	District 	asserts 	that
	its
	withdrawal 	of 	the
tentative
	OSS
	unit 	contract
	agreement
	with
	CSEA
	from
	the 	board
of 	education
meeting 	agenda
	resulted
	from
	its
	concern 	over 	the
nondiscrimination 	clause 	included
	in 	that 	tentative
	agreement.
In 	subsequent 	negotiations, 	the
	District 	states 	that
	it
	made
~oncessions 	to
	CSEA
	in 	order 	to 	secure 	the
	change
	in 	the
nondiscrimination 	clause.
	The
	District 	also 	argues 	that 	the
circulation 	of
	a
	joint
	memorandum
with
	CSEA
announcing 	the
8

tentative
	agreement
	on
	a
	contract
	in
	the
	OSS
	unit
	is
	consistent
its
	past
	practice.
	Finally, 	the
	District 	asserts 	that
	the	with
timing 	of
	its
	negotiations
	with
	ESP
	over
	a
	successor
	agreement
	in
the 	paraeducator
	unit 	resulted primarily
	from
	the
	fact
	that
	ESP's
initial
	bargaining proposals
	were
	not 	submitted
	until
	August
	17.
Furthermore,
	the 	lack
	of
	specificity
	of
	ESP's
	initial
	proposals
and
	decentralized 	in
	the 	nature 	of 	the 	bargaining
	unit 	resulted
the
	District's
	response 	not 	being 	sunshined
	until
	October 	24.
CSEA'S
	RESPONSE
CSEA
	responds
	to
	ESP's
	objections
	by
	stating 	that
	the
	prize
drawings
	it
	conducted
	at
	school
	sites
	and
	on
	a
	districtwide 	basis
were
	designed
	solely 	to
	encourage
	participation 	in
	the
	election
by
	eligible
	voters.
	CSEA
	asserts 	that
	the
	only 	requirement
	for
participation 	in
	these
	drawings
	was 	a
	statement
	that
	the
	employee
had
	voted,
	and
	that
	no 	showing
	of 	support
	for
	CSEA
	was
	required.
Additionally,
	CSEA
	argues
	that
	ESP
	conducted
	similar
	activities
to
	encourage
	election participation,
	and
	that
	ESP
	had
	also
conducted
	prize
	drawings
	in
	the
	original 	election.
	CSEA
	also
notes
	that
	the 	districtwide 	prize
	drawing
	was
	not 	conducted
until
	November
	28,
	after
	the 	deadline 	for 	voting 	in 	the
	election.
CSEA
	offers 	declarations
	by
	or
	concerning 	the
	11
	CSEA
representatives 	alleged
	by
	ESP
	to
	have
	solicited
	and
	collected
marked
	ballots.
	Eight 	of 	the 	declarations 	assert 	that
	no
	ballots
Three
	were
	solicited
	and/or mailed 	by
	the
	named
	individuals.
CSEA
	representatives 	declare 	that 	they 	received 	and mailed
	a
total
	of
	24 	marked
	ballots.
	However, 	CSEA
	asserts 	that 	the
9

ballots
	were 	marked,
	sealed
	and
	signed
	before 	they
	were
	received
by
	the
	CSEA
	representatives;
	that
	none
	of
	the
	representatives
assisted
	anyone
	in
	marking
	a
	ballot;
	and
	that
	ESP
	has
	made
	no
allegation 	that
	CSEA
	representatives
	assisted 	in
	marking
	ballots
or
	handled
	any
	ballots
	which 	had
	not
	already
	been
	marked,
	sealed
and
	signed
	by
	the
	eligible
	voter.
	Additionally,
	CSEA
	notes
	that
since
	its
	winning 	margin
	in
	the
	election
	was
	over
	200
	votes,
	the
number
	of
	affected 	ballots
	(24) 	was
	insufficient
	to
	affect
	the
outcome
	of 	the
	election.
CSEA
	also
	supports 	the
	District's
	position 	that
	it
maintained
	strict
	neutrality 	in
	its
	conduct 	and
	favored
	neither
CSEA
	or
	ESP.
4
DISCUSSION
PERB
	Regulation
	32738(c)
	outlines 	the
	grounds
	for 	objections
to 	the
	conduct
	of
	an
	election.
	The
	regulation
	allows
	objections
if:
	(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.
	For
	PERE
to 	sustain
	the
	election 	objections,
	an
	effect
	on
	the
	election
4CSEA
also
	argues
	that
	an
	addendum
	to
	ESP's 	appeal 	of 	the
Board
	agent's 	administrative 	determination,
	filed
	on
	April 	2,
1996,
	was
	untimely
	and
	should be
	rejected
	by
	the
	Board.
	PERB
Regulation
	32360
	grants 	parties
	10
	days
	to
	file
	an 	appeal
	to
an
	administrative 	determination with 	the
	Board
	itself.
	PERB
Regulation
	32130(c)
	grants
	a
	five-day 	extension 	of 	time
	to
any
	filing
	made
	in
	response 	to
	documents
	served
	by
mail.
	PERB
served 	the 	administrative 	determination
	by mail
	on March
	18,
1996. 	Including 	the 	five-day 	extension, 	an 	appeal
	was 	due
	to
	be
filed
	no
	later
	than April 	2, 	1996.
	ESP made 	a
	timely
	filing
	of
its
	appeal 	on March 	29, 	1996, 	and
	a
	timely 	filing
	of 	an 	addendum
to
	its
	appeal 	on April 	2, 	1996.
10

result
	shown
	will 	infer
	must
	be
	or
	logically
	inferred.
	The
	Board
the
	effect
	if
	the 	actions
	"had
	the
	natural
	and
	probable
	effect
	of
discouraging
	voter
	participation
	in
	the
	representation
	election."
(Tarnalpais
	Union High
	School
	District
	(1976)
	EERB
	Decision
No.
	1.
) 5
PERB
	treats
	the
	demonstration 	of
	unlawful 	conduct
	in
	the
election
	as
	a
	"threshold 	question." 	(State 	of
	California
(Departments
	of 	Personnel
	Administration,
	Developmental
	Services.
and 	Mental
	Health
	(1986)
	PERB
	Decision
	No.
	601-S.)
	The
	next
is
	whether
	the
	unlawful
	activities
	establish
	a
	"probable
	issue
impact
	on
	the
	employees'
	vote." 	(Jefferson
	Elementary 	School
District
	(1981)
	PERB
	Decision
	No.
	164.)
	The
	Board 	does
	not
require
	the 	objecting party 	to
	prove
	the
	conduct
	actually
impacted
	the
	employees'
	votes.
	(San
	Ramon
	Valley 	Unified
	School
PERB
	Decision
	No.
	111.)
	In 	deciding
	whether
	to
	District
	(1979)
set
	aside
	an
	election 	result,
	the
	Board
	will
	look
	at
	the
	totality
the
	circumstances
	and
	the
	cumulative
	effect
	of 	the 	conduct.	of
(Clovis 	Unified
	School
	District
	(1984)
	PERE
	Decision
	No.
	389
(Clovis
	USD)
.)
	It
	is
	against 	these 	standards
	that
	the
	Board
evaluates 	elect.ion 	objections.
District
	Conduct
employer
	EERA
	section
	3543.S(d)
	prohibits
	a
	public 	school
from
	contributing 	financial 	or 	other 	support 	to
	any 	employee
organization.
	The 	Board has 	held 	that 	this 	section
	imposes
	a
5
Prior 	to 	January 	1978,
	PERB was 	known
	as 	the 	Educational
Employment
	Relations 	Board.
11

requirement 	of
	strict
	neutrality
	on
	employers.
	The
	employer must
ensure
	that
	its
	conduct 	does
	not
	influence 	the
	free
	choice 	of
employees
	in
	an
	election,
	or
	favor
	one 	employee
	organization 	or
the
	other.
	(Santa
	Monica
	Community
	College
	District
	(1979)
	PERB
Decision
	No. 	103
	(Santa
	Monica
	CCD)
.)
ESP
	contends
	that
	the
	District's
	conduct
	in
	its
	negotiations
with
	CSEA
	over
	an
	OSS
	unit
	successor
	agreement
	prior
	to 	the
runoff
	election
	showed
	favoritism
	toward 	and
	support
	for
	CSEA,
thus
	violating
	the
	requirement 	of
	strict
	neutrality.
	ESP
	points
to 	the
	District's
	removal
	of 	the
	initial
	tentative
	agreement
in 	the
	OSS
	unit
	from
	the
	board 	of 	education
	agenda,
	apparently
alleging 	that
	the
	District
	took
	this
	action 	in
	order 	to
	reopen
negotiations
	and 	pave
	the
	way
	for 	~dditional
	concessions
	to
	CSEA.
Both
	CSEA
	and
	the
	District 	assert 	that
	the
	District
	refused
to
	approve
	the
	tentative
	agreement
	due
	to
	a
	dispute
	over
	the 	text
of
	the
	agreement's 	nondiscrimination 	clause.
	The
	District 	states
that
	the 	nondiscrimination 	clause
	was
	too 	broad 	as
	written
	and,
therefore,
	was
	unacceptable.
	CSEA
	claims
	that
	it
	was
	satisfied
with 	the
	tentative
	agreement 	and
	did 	not
	wish
	to
	reopen
negotiations.
In 	support 	of
	its
	position,
	ESP
	cites
	a
	variety
	of 	cases 	in
which
	PERB
	has 	found 	employers
	violated 	the
	strict
	neutrality
requirement.
6 	The
	significant 	distinction
	between 	those 	cases
6
See 	Santa
	Monica
	CCD;
	State 	of 	California
	(Departments
of 	Personnel 	Administration, 	Mental 	Health and 	Developmental
Services)
	(1985) 	PERB
	Decision
	No. 	542-S; 	and Antelope 	Valley
Community
	College 	District
	(1979) 	PERB
	Decision
	No. 	97.
12

and
	the
	instant 	situation
	is
	that
	the
	allegations
	of 	unlawful
support
	relate
	to
	conduct
	engaged
	in
	by
	the
	District
	in
	its
negotiations
	with
	CSEA
	in
	a
	bargainina
	unit
	not 	involved
	in
the
	election.
	The
	requirement 	of
	employer
	neutrality
	does
	not
prohibit
	an 	employer
	from
	fulfilling
	its
	statutory 	obligation
to 	negotiate
	with
	an
	exclusive
	representative
	of
	one
	unit
	while
a
	representation 	election
	is
	pending
	in
	an
	entirely 	different
bargaining
	unit.
	The
	Board
	has
	refused
	to
	find
	a
	violation
	where
a
	pay
	increase
	was
	granted
	to
	non-unit
	employees
	as 	well
	as 	to
unit
	employees
	during
	an
	organizing
	campaign.
	(Clovis
	USD.)
Furthermore,
	there
	is
	no
	evidence
	to
	support
	ESP'S
	inference
that
	CSEA
	colluded with 	the
	District
	to
	stall
	ratification
	of
the
	OSS
	agreement. 	Rather,
	the
	fact 	that
	CSEA
went
	forward 	with
its
	ratification
	vote
	after
	being
	notified
	of 	the
	District's
intention
	to
	remove
	approval 	of
	the
	agreement
	from
	the 	board 	of
education
	agenda
	is
	evidence
	of
	CSEA's
	desire 	to
	move
	forward
with 	the 	process. 	Therefore,
	ESP's
	claim
	that
	the
	District
violated
	its
	requirement 	of
	neutrality
	by
	pulling 	the
	tentative
agreement
	from
	the
	agenda
	is
	without
	merit.
ESP
	also 	alleges 	that
	the
	District
	negotiated
	a 	"me
	too"
provision 	in
	CSEA's
	contract 	while
	it
	had
	refused 	to 	agree
	to
such
	a
	provision 	in
	previous 	negotiations 	with
	ESP. 	The
	District
denies 	that
	it
	has 	refused 	to 	negotiate
	"me
	too"
	provisions 	with
ESP.
	In 	support 	of
	its
	position, 	the
	District 	offers 	copies 	of
the
	wage
	sections 	of 	other 	contracts 	with
	ESP 	which
	contain
	a 	"me
too" 	provision. 	Accordingly, 	the 	Board 	finds 	that
	ESP
	has 	failed
13

the
	to
	present
	evidence
	sufficient
	to
	conclude
	that
	District's
negotiation
	of
	a 	"me
	too"
	contract 	provision
	with
	CSEA
violated
the 	requirement 	of
	strict
	neutrality.
ESP
	further
	contends
	that
	the
	additional
	wage
	increase
agreed
	to
	by
	the
	District
	for
	OSS
	unit
	employees
	is
	evidence
of
	support 	for
	CSEA.
	Both
	the
	District
	and
	CSEA
point
	out
	that
the
	initial
	tentative
	agreement
	reached
	in
	August
	contained
	a
11
me
	too"
	clause 	for 	the
	first
	year.
	Since
	the
	District
	had
subsequently
	made
	a
	higher
	wage
	offer
	than
	that
	contained
	in
	the
tentative
	OSS
	unit
	agreement
	to
	a
	unit
	comprised
	of
	certificated
teachers,
	both
	CSEA
	and
	the
	District 	assert 	that
	the
	District
	was
obligated 	to 	increase 	the
	wage
	proposal
	to
	CSEA. 	ESP
	contends
that
	the
	District
	was
	under
	no
	legal 	obligation 	to 	grant
	CSEA
	the
offer	additional
	wage
	increase
	at
	that
	time
	since 	the 	higher
	wage
to 	the
	teachers
	had
	not
	been
	accepted 	or
	ratified.
	Even
	if,
	as
ESP
	claims, 	the
	District
	was
	under
	no
	obligation
	at 	that 	point
in
	time
	to 	offer
	the 	higher
	salary
	proposal,
	ESP
	has
	failed 	to
demonstrate
	that 	the
	District's
	action violated
	its
	requirement
of
	neutrality.
	It
	appears
	that
	the
	District's
	increased
	wage
offer 	resulted
	from
	factors 	unrelated 	to
	the
	decertification
election,
	such as 	the 	dispute 	over 	the 	agreement's
nondiscrimination 	clause
	and
	the 	general
	status
	of 	the
negotiations 	process
	relative 	to 	the
	OSS
	unit.
	ESP
	has
	failed 	to
demonstrate
	that 	the
	District's
	conduct
	violated
	its
	obligation
of
	neutrality.·
14

ESP
	alleges
	that
	the 	issuance 	of
	a
	joint
	memo
	from
	the
District
	and
	CSEA
	announcing
	their
	contract 	settlement
	in
the
	OSS
	unit
	was
	a
	departure
	from
	its
	established practice
	and
showed
	support
	for
	CSEA. 	ESP
	asserts 	that
	under
	the
	established
practice,
	new
	contract 	settlements 	are
	announced by
administrative
	circular
	issued
	by
	the
	employee
	services
	director
after
	District
	board
	approval.
	However,
	the
	District
	and
	CSEA
dispute
	that
	the 	issuance 	of 	the
	joint
	memo
	was
	a
	departure
	from
past 	practice.
	To
	support
	this
	claim,
	the
	District
	submits
several
	examples
	of 	such
	joint
	announcements
	issued
	between
1988
	and 	1991. 	Again,
	since 	the
	joint
	memo
	involved
	lawfully
negotiated 	contracts
	that 	affected
	bargaining
	units
	not 	involved
in 	the 	decertification 	election,
	and
	since
	ESP
	has 	provided
	no
evidence
	that
	the
	memo
	was
	circulated
	outside 	the
	units 	affected
by
	the 	tentative
	agreement,
	its
	issuance
	is
	not
	objectionable
conduct. 	Furthermore,
	ESP
	has 	not 	demonstrated
	that 	there
	was
a
	clearly
	established 	practice
	from 	which
	the
	District
	departed
when
	it
	issued 	the
	joint
	memo
	regarding 	the 	contract 	settlements.
ESP
	also
	claims
	that
	the
	District
	unreasonably 	delayed
sunshining
	its 	initial
	proposal 	for
	a
	successor
	agreement
	with
ESP
	and,
	therefore, 	deprived
	ESP
	of 	the 	opportunity 	to 	negotiate
prior
	to 	the
	decertification 	election. 	In 	support 	of
	this
	claim,
ESP
	offers
	a
	comparison 	of 	tirnelines 	between
	the
	District's
sunshining 	of
	its 	initial
	proposal 	to
	ESP
	and
	to 	the
	Pea~e
Officers 	Association
	(POA)
	which
	represents
	a
	unit 	of 	security
officers 	within 	the 	District.
	The 	ESP
	and
	POA
	initial
	proposals
15

were
	both
	sunshined
	on August 	29.
	The
	District
	sunshined
	its
initial
	proposal
	to
	the
	POA
	on
	October
	10, 	and
	its
	initial
proposal
	to
	ESP
	on
	October
	24
	and
	November
	14.
The
	District
	sets
	forth
	several
	reasons
	for
	responding
	to
ESP'S
	proposal
	later
	than
	to
	POA's.
	The
	District
	received
	ESP's
initial
	proposal
	two 	weeks
	later
	than
	POA's. 	The
	POA
	proposal
was
	more
	specific,
	and
	POA
	had
met
	with 	the
	District
	as
	early
as
	March
	to
	apprise 	the
	District
	of
	its
	proposals.
	Finally,
while 	the
	POA
	bargaining
	unit
	is
	under
	the 	supervision
	of
	one
supervisor,
	ESP's
	unit
	members
	are
	distributed
	throughout
	the
District,
	necessitating
	more
	time
	to
	contact 	the
	affected
administrators 	for
	their
	input.
The
	facts
	do
not
	support
	ESP's
	contention
	that
	the
	District
unreasonably 	delayed 	sunshining
	its
	proposal
	and,
	therefore,
deprived
	ESP
	of
	the 	opportunity
	to 	negotiate 	before 	the
decertification 	election.
	Had
	the
	District
	sunshined
	its
proposal
	on
	October 	10,
	the
	same
	date
	it
	sunshined
	its
	proposal
to 	the
	POA,
	less
	than
	two 	weeks
	remained
	for 	the
	parties 	to
engage
	in 	negotiations
	prior
	to 	the 	mailing 	of
	ballots
	on
October 	23. 	Furthermore,
	ESP
	and
	the
	District
	mutually 	waived
their
	contractual 	timelines 	for
	sunshining.
	Those
	timelines
required
	ESP
	to 	present
	its 	initial
	proposal
	in 	the 	beginning 	of
March 	1995 	and
	the
	District 	to 	present
	its
	proposal 	five
	weeks
later.
	Adherence
	to 	these 	timelines
	would 	have 	allowed
	the
bargaining 	process 	to 	begin 	in 	the 	spring 	of 	1995.
	In
	light
16

of
	this
	joint
	waiver
	and
	the
	relatively 	brief
	delay
	in
	the
District's
	response,
	ESP's
	allegations
	concerning
	the
	District's
delay 	of 	the
	sunshining 	process
	are
	rejected.
In
	summary,
	the
	Board
	concludes
	that
	ESP
	has
	not
	shown
	that
the
	District,
	by
	its
	conduct,
	violated
	the
	obligation
	of
	strict
neutrality
	required
	by
	EERA
	section
	3543.S(d).
	Consequently,
ESP's
	election
	objecLions
	relating
	to
	the
	District's
	conduct
	are
rejected.
CSEA
	Conduct
ESP
	contends
	that
	the
	election
	should
	be
	set
	aside
	because
the
	prize
	drawings 	conducted
	by
	CSEA
	represent
	an
	unlawful
promise
	and
	grant
	of
	valuable
	benefits 	to
	employees
	during
an
	election
	period.
	As
	noted
	above,
	CSEA
	conducted
	two
	types
of 	drawings,
	one
	at
	individual
	schools
	for
	two
	movie
	tickets,
and 	one
	on
	a
	districtwide 	basis 	for
	a 	VCR.
	In 	both
	instances,
employees 	had
	only
	to
	identify
	themselves 	and
	indicate
	that
	they
had
	mailed
	their 	ballots
	to
	PERB
	to
	participate 	in
	the
	drawing.
The
	movie
	tickets
	were 	awarded 	on
	November
	13,
	the
	day
	before
the
	end 	of 	the
	balloting
	period,
	and
	the
	VCR
	drawing
	was
	held
approximately
	two 	weeks
	after
	the
	November 	16
	ballot
	count.
PERB
	has 	looked
	to 	National
	Labor
	Relations
	Board
	(NLRB)
cases 	for
	guidance
	in 	this 	area. 	In National
	Gypsum 	Co. 	(1986)
280
	NLRB
	1003 	[122
	LRRM
	1295], 	the
	employer
	held
	raffles 	shortly
before 	the 	election,
	awarded
	prizes 	of 	substantial 	value,
	and
required participants 	to
	complete 	and
	sign
	a
	questionnaire 	based
on
	the 	employer's 	campaign
	literature.
	The
	NLRB
	found
	that 	the
17

responses
	on
	the 	signed
	questionnaires 	indicated 	to
	the
	employer
"where
	add:i.tional
	campaign
	efforts
	should
	be 	focused,
	and
afforded
	potential
	for
	directing
	pressure
	at
	particular
employees."
	The
	NLRB
	ordered
	that
	a 	new
	election
	be
	conducted.
In
	Owens-Illinois, 	Inc.
	(1984) 	271
	NLRB
	1235 	[117
	LRRM
1104],
	the
	NLRB
	upheld
	objections 	against
	a
	union
	which
	gave
away 	$16
	jackets 	to 	voters
	between
	two
	polling
	periods.
	The
NLRB
	found
	that
	since 	the
	jackets
	were
	given
	away
	on
	election
day
	itself,
	they 	could
	have
	appeared
	as
	a
	reward
	to
	those
	who
had
	voted 	for
	the
	union
	and
	as
	an
	inducement
	to
	those
	who
	had
	not
yet 	voted.
	However,
	the
	NLRB
	has
	found
	the
	use 	of
	inducements
permissible
	when
	they
	relate
	to 	furthering
	the
	election
	process,
are
	independent
	from
	a
	showing
	of 	support 	of 	the
	offering 	party,
and
	are
	of
	insufficient
	value
	to 	create
	a
	feeling
	of
	obligation
in 	the
	mind
	of 	the
	winner.
	(Thrift
	Drug 	Co. 	(1975) 	217
	NLRB
	1094
[89
	LRRM
	1292];
	Crestwood
	Manor 	(1978} 	234
	NLRB
	1097 	[97
	LRRM
1396];
	Stride 	Rite 	Corporation
	(1981) 	254
	NLRB
	297 	[106
	LRRM
1107) . )
In
	this
	case, 	to 	participate 	in 	the 	prize
	drawings,
	voters
were
	required
	only
	to 	identify
	themselves 	and
	state 	that 	they
	had
voted.
	They were
	not 	required 	to 	identify 	their 	affiliation, 	if
any, 	with
	either
	organization, 	nor
	to 	state
	how
	they 	had
	voted.
Both
	ESP 	and
	CSEA
	engaged
	in 	this
	type 	of 	conduct 	during 	the
original 	and/or 	runoff 	elections.
	The
	timing 	of 	the 	awarding 	of
the 	prizes
	by
	CSEA
	is 	also 	significant.
	The
	school
	site
	drawings
occurred
	on 	November 	13, 	one 	day
	prior 	to 	the 	end 	of 	the
18

balloting
	period.
	However,
	ballots
	had
	to
	have
	been
mailed
	by
that
	date 	in 	order
	to
	be
	received
	by
	PERB
	by
	the
	November 	14
	due
date.
	The
	districtwide 	prize
	was
	awarded 	on
	November
	28,
	well
after
	the
	balloting
	had
	been 	completed.
	Based
	on
	these
	facts,
the
	Board
	concludes
	that
	ESP's
	election
	objections 	to
	CSEA's
conduct
	relating
	to 	the
	prize
	drawings
	it
	conducted
	are
	without
merit
..
The
	remaining
	issue
	involves
	CSEA's
	collection
	and
mailing
of
	marked
	ballots.
	PERB
	has
	held
	that
	an
	objection 	regarding
the
	integrity
	of 	the
	election
	process
	requires
	an
	assessment
of 	whether
	the
	facts 	indicate 	that
	a
	reasonable
	possibility
	of
irregularity
	occurred. 	(Gilroy Unified
	School
	District
	(1991)
PERB
	Order
	No. 	Ad-226
	(Gilroy
	USD)
	citing
	Peoples
	Drug
	Stores
(1973) 	202
	NLRB
	1145 	[82
	LRRM
	1763]
.) 	Because
	the
	integrity
of
	the 	election
	process
	must 	be
	assured,
	11
the
	Board goes
	to
great 	lengths 	to
	ensure
	that
	the
	manner
	in
	which
	elections 	are
conducted
	raises
	no
	reasonable
	doubt
	as
	to
	their
	fairness 	or
validity."
	(Gilroy
	USD
	citing
	Brink's
	Armored
	Car,
	Inc.
	(1986)
278
	NLRB
	141 	[121
	LRRM
	1129]
	(Brink's
	Armored
	Car).}
It
	is
	undisputed
	that
	CSEA
	representatives
	gained
unsupervised 	access
	to 	at 	least
	24 	marked
	ballots.
Unquestionably,
	this 	constitutes
	a
	serious 	election 	irregularity.
The
	Board must
	determine 	whether
	this 	irregularity 	is
	so
	serious
as
	to 	call 	into 	question 	the
	fundamental
	integrity, 	fairness
	and
validity
	of 	the 	election.
Initially,
	it
	should be 	noted 	that 	great 	value
	is 	placed
19

on
	mail
	ballot
	secrecy 	within
	PERB's
	election
process.
	PERB
prepares
	and
	mails 	the
	ballot
	to
	the
	employee's
	home
	address.
This
	procedure 	allows
	employees
	to 	cast
	their
votes
	away
	from
the
	electioneering
	pressures
	of
	the
	parties.
	PERB
	voting
instructions
	begin with
	the 	statement:
	"This
	is
	a
	secret
ballot
	election."
	The
	voting
	instructions 	direct
	the
	employee
to 	place
	the
	secret 	ballot
	into
	the 	postage-paid
	return
	envelope
provided
	by
	PERB. 	The
	employee
	then
	prints
	and
	signs
	his 	or
	her
name
	on
	the
	back
	of
	that
	envelope.
	Finally, 	the
	instructions
specifically 	direct
	the
	employee
	to
	deposit 	the 	postage-paid
return
	envelope
	in
	the
	U.S.
	mail.
	These
	steps 	are
	designed
	to
ensure
	ballot
	secrecy
	and
	guard
	against
	unsupervised 	access
	to
marked
	ballots,
	including 	the
	specific 	instruction 	that
	the
voter
	mail
	the
	marked
	ballot 	to
	PERB
	via
	the
	U.S.
	postal
	system.
In
	a
	previous
	election 	irregularity
	case,
	PERB
	set
	aside
	a
mixed
	mail
	and
	on-site 	election
	when
	it
	was
	determined
	that
	a
party 	to
	the
	election
	jeopardized 	the
	integrity
	of 	the
	election
process.
	(Gilroy
	USD.)
	In
	a
	decertification 	election,
	a
	party
to 	the 	election 	circulated
	a
	flyer
	and
	sign
	up 	form
mischaracterizing 	the
	eligibility
	requirements
	for
	mail
	ballots.
This
	flyer 	also 	characterized 	the
	purpose 	of 	the 	election 	as
keeping 	the
	incumbent 	union 	as 	the 	exclusive 	representative.
As 	a
	result
	of
	this 	flyer,
	82
	ineligible
	employees
	signed
	up
for 	mail 	ballots.
	The 	82 	employees 	were
	originally 	eligible
for 	the 	on-site 	election.
	The 	Board 	found 	a
	material 	breach 	of
the 	election process 	which
	"calls 	into question 	the 	fairness
	and
20

validity
	of
	the
	election."
PERB
	has
	not
	previously
	considered
	a
	case
	which
	involved
unsupervised
	party
	access
	to
	marked 	employee
	mail
	ballots.
In 	considering 	access
	to
	marked
	ballots,
	the
	NLRB
	focuses
	on
whether
	the
	manner
	in
	which
	the
	election
	was
	conducted
	raises
	a
reasonable
	doubt
	as
	to
	the
	fairness
	and
	validity
	of
	the
	election.
(Polymers.
	Inc.
	(1969) 	174
	NLRB
	282 	[70
	LRRM
	1148]
.)
	The
	NLRB
goes
	to 	great
	lengths
	to 	protect
	the
	integrity
	of
	the
	election
process,
	and
	has 	determined
	that
	the
	danger
	that
	the 	laboratory
conditions
	surrounding
	an
	election
	may
	be
	destroyed
	are
	greater
in
	mail
	balloting 	situations
	due
	to
	the
	absence 	of
	direct
	board
supervision
	over
	the
	employees'
	voting. 	(Brink's
	Armored
	Car.)
Therefore,
	mail
	elections 	require
	a 	more
	rigorous
	review
	of
irregularities,
	particularly
	those 	involving
	marked
	ballots.
The
	NLRB
	sets
	aside
	an
	election
	whenever
	an
	irregularity
involving
	marked
	ballots
	occurs
	that 	casts
	doubt
	or
	a
	cloud 	over
the
	integrity
	of 	the
	election. 	(Austill
	Waxed
	Paper
	Co. 	(1968)
169
	NLRB
	1109 	[67
	LRRM
	1366]
.)
	In 	Paprikas
	Fono 	(1984) 	273
	NLRB
1326 	[118
	LRRM
	1150],
	the
	NLRB
	set
	aside
	an
	election
	because 	the
board 	agent 	improperly 	handled 	challenged
	ballots
	following 	the
election.
	The
	board 	agent
	failed 	to place 	the 	challenged
	ballots
in
	a
	sealed
	envelope
	in 	the 	presence 	of 	the
	parties. 	Instead,
he
	took 	the 	ballots 	to 	his 	office
	and
	placed
	them
	in
	a
	sealed
envelope 	the 	following 	day.
	The
	board 	found 	no
	evidence 	of
tampering, 	but
	found
	the 	ballots
	had not 	been 	adequately
safeguarded.
	The
	NLRB
	based
	its
	decision
	on 	the 	appearance 	of
21

irregularity
	created
	by
	the
	procedures 	used.
	The
	NLRB
	went
	so
far 	as 	to
	say
	that
	it
	"would
	set
	aside
	an
	election
whenever
	there
has
	been
	any
	unsupervised 	access
	to 	the
	ballot
	box"
	(emphasis
	in
original)
. 7
This 	unsupervised access
	may
	include 	access
	by
	a
neutral
	board
	agent.
In
	New
	York
	Telephone
	Co. 	(1954) 	109
	NLRB
	788 	[34
	LRRM
1441],
	the
	NLRB
	set
	aside
	a
	runoff 	mail
	ballot
	election
	due
	to
	a
discrepancy
	between
	the
	number
	of
	returned
	ballots
	and
	tallied
votes.
	During
	the
	initial
	tally,
	the
	board 	agent 	noted
	729
	of
the
	4467
	returned
	ballots
	were
	missing.
	The
	parties
	searched 	the
room
	but 	did
	not
	locate
	the
	missing
	ballots.
	The
	next
	week,
	the
board 	agent
	found
	the
	box
	of
	unopened
	ballots.
	The
	board
	agent
had
	locked
.the
	room
	containing 	the 	missing
	ballots
	during
	the
time
	they
	were
	missing,
	and
	no
	evidence 	of
	tampering
	existed.
The
	board 	agent
	opened 	and
	tallied
	the
	missing
	ballots 	in 	the
presence
	of
	the
	parties.
	However,
	since 	the
	irregularity
concerned 	an
	essential
	condition 	of 	the
	election
	and 	exposed
	a
sufficient
	number
	of
	ballots
	to 	question, 	the
	NLRB
	ordered
	a 	new
election.
PERB
	does 	not 	always 	follow 	the 	per 	se 	rules
	of 	the
	NLRB
in 	the 	area 	of
	election 	objections. 	(State 	of
	California
(Department 	of 	Personnel'Administration)
	(1992)
	PERB
	Decision
No.
	948-S;
	Sierra
	Sands
	Unified School
	District
	(1993) 	PERB
7
The
	NLRB
	declines 	to 	set 	aside 	elections
	based
	on
irregularities
	when
	the 	unsupervised access
	was
	to
	unmarked
ballots.
	(Trico 	Products 	Corporation
	(1978) 	238
	NLRB
	380
[99
	LRRM
	1265]; 	Bell 	Foundry 	Corporation
	(1987) 	126
	LRRM
	2705.)
ballot
22

Decision
	No.
	977.)
	However,
	both
	the
	NLRB
	and
	PERB
	cases
highlight
	the
	importance
	of
	preserving 	the 	laboratory 	conditions
surrounding 	the
	mail
	ballot
	election 	in
	order
	to 	protect 	the
integrity
	of
	the
	election
	process.
The
	Board
	considers
	any
	unsupervised 	access
	to
	marked
ballots
	by
	a
	party 	to
	the
	election
	to
	be
	a
	serious
	election
irregularity.
	When 	a
	party 	to
	the
	election
	engages
	in
	a
concerted
	effort
	to 	obtain
	unsupervised 	access
	to
	marked
	ballots
in
	direct
	violation
	of
	PERB's
	voting
	instructions,
	the
	laboratory
conditions
	of 	the
	election
	are
	compromised
	and
	its
	fairness,
validity
	and
	integrity
	are 	called 	into
	question.
In
	this
	case,
	CSEA
	engaged
	in
	an
	organized, 	concerted,
multiple-site 	effort
	to
	gain 	access
	to
	marked
	ballots, 	in 	direct
violation
	of
	PERB's
	voting
	instructions.
	That
	effort
	succeeded,
resulting 	in
	the 	unsupervised 	possession
	by
	CSEA,
	a
	party 	to
	the
election,
	of
	at 	least
	24
	marked
	ballots 	at at 	least
	three
	sites.
Thus, 	an
	essential
	condition 	of 	the
	election
	has 	been
violated
by
	CSEA. 	Under
	these 	circumstances,
	it
	is
	unnecessary
	for 	the
Board
	to 	evaluate
	CSEA's
	intent 	in
	gaining 	access
	to
	the
	marked
ballots,
	or 	to 	consider
	whether
	CSEA's
	unsupervised 	possession
led 	to 	ballot
	tampering,
	or 	to
	determine 	whether
	CSEA
possessed
a
	sufficient
	number
	of
	ballots 	to
	change
	the
	election's
	outcome
in
	light
	of 	the 	margin 	of 	victory.
The 	Board has
	no more 	fundamental
	responsibility 	in
conducting 	elections 	than 	to 	insure 	their 	fairness
	and
	integrity.
CSEA's 	conduct
	constitutes 	an 	egregious 	election 	irregularity
23

in
	violation
	of
	an
	essential 	election
	condition
	which
	has
compromised
	the
	fairness
	and
	integrity
	of
	the
	election.
Therefore, 	the
	Board
	concludes
	that
	the
	election
must
	be
	set
aside
	and
	a 	new
	election
	conducted.
8
ORDER
Based
	on
	the
	election
	objection
	filed
	by
	the
	San
	Diego
Educational
	Support
	Personnel/NEA
	concerning
	the
	California
School
	Employees
	Association's
	(CSEA)
	solicitation
	and
	collection
of
	marked
	mail
	ballots,
	the
	Board
	ORDERS
	the
	San
	Francisco
Regional
	Director 	to
	set
	aside 	the 	runoff
	election
	tallied
	on
November
	16, 	1995,
	not
	to
	certify
	the
	results,
	and
	to
	conduct
a 	new
	election.
	The
	Board
	DISMISSES
	the
	election 	objections
concerning 	the
	District's
	obligation
	of
	strict
	neutrality
	and
the
	prize
	drawings 	conducted	
by	
CSEA.
Members
	Johnson 	and 	Dyer
	joined 	in
	this
	Decision.
8
The 	Board 	does 	not 	hereby 	conclude
	that
	any
	unsupervised
access 	to
	a 	marked
	ballot 	violates
	an
	essential 	electioncondition
	and 	compromises
	the
	integrity
	of 	the 	election 	to 	the
extent 	that
	it
	must 	be
	set 	aside. 	Incidental 	handling 	of
	a
sealed,
	marked
	ballot,
	such 	as 	through an 	employee's
	deposit 	of
a
	coworker's
	ballot 	in
	a
	mailbox,
	may
	occur
	in
	a
	mail
	election.
The 	Board
	will 	consider 	circumstances 	involving 	unsupervised
access 	to
	marked
	ballots
	on a
	case-by-case 	basis 	evaluating 	the
specific
	conduct 	of 	the 	parties 	to 	the 	election 	relative 	to 	the
unsupervised 	access.
24