Gilroy Unified School District (PERB A226E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT	
RELATIONS
	BOARD
GILROY 	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
and
GILROY
	TEACHERS
	ASSOCIATION,
CTA/NEA,
Employee
	Organization,
and
GILROY 	FEDERATION
	OF
	TEACHERS,
CFT/AFT,
Employee
	Organization.
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____________________ )
Case
	No.
	SF-OB-3
(SF-D-188)
(SF-R-215)
Administrative
	Appeal
PERB
	Order
	No. 	Ad-226
December
	12,
	1991
Appearances:	
California
	Teachers
	Association
	by
	A.
	Eugene
Huguenin,
	Jr.,
	Attorney,
	for
	Gilroy
	Teachers
	Association,
CTA/NEA;
	Van
	Bourg, 	Weinberg, 	Roger	
&	
Rosenfeld
	by
	Stewart
Weinberg,
	Attorney,
	for
	Gilroy 	Federation of 	Teachers,
	CFT/AFT.
Before
	Shank,
	Camilli
	and
	Carlyle,
	Members.
DECISION
	AND
	ORDER
CAMILLI, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the 	Gilroy 	Teachers
Association,
	CTA/NEA
	(Association) 	to 	the 	administrative
determination 	of
	a 	PERB
	Board
	agent 	(attached hereto)
	which
	held
that
	conduct 	surrounding 	the
	decertification 	election 	in 	the
established 	certificated
	bargaining unit
	of 	the 	Gilroy 	Unified
School
	District 	constituted
	a
	material 	breach 	of 	the 	election
process
	and
	significantly
	impaired 	the 	fairness 	of 	the 	election
process.

The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	matter,
including 	the 	administrative
	determination, 	the 	Association
1 s
appeal
	and
	the
	response 	of
	the
	Gilroy 	Federation 	of 	Teachers,
CFT/AFT,
	and
	finding 	the
	administrative
	determination
	to
	be
	free
from
	prejudicial 	error,
	adopts
	it
	as
	the 	decision
	of
	the
	Board
itself.
It
	is
	hereby
	ORDERED
	that
	the
	San
	Francisco
	Regional
Director
	not
	certify
	the
	results
	of 	the
	election
	tallied
	on
June
	5,
	1991,
	and
	that
	a 	new
	election
	be
	conducted.
	The
	election
objections
	concerning
	the
	ballot
	party
	and
	irregularities
	in
	the
mailed
	ballot
	procedures,
	other
	than 	those
	concerning
	the
issuance 	of
	mailed
	ballots
	to 	voters
	who
	were
	not
	eligible
	to
vote
	by
	mail,
	are
	hereby
	DISMISSED
	WITH
	PREJUDICE.
Members
	Shank 	and
	Carlyle 	joined
	in
	this
	Decision.

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
GILROY 	UNIFIED
	SCHOOL
	DISTRICT,
Employer,
-and-
GILROY 	TEACHERS 	ASSOCIATION,
CTA/NEA,
-and-
GILROY 	FEDERATION
	OF
	TEACHERS,
CFT/AFT,
Employee
	Organizations.
)
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)
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____________________ )
Case
	No.
	SF-OB-3
(SF-D-188)
(SF-R-215)
ADMINISTRATIVE
DETERMINATION
September 	26,
	1991
This
	administrative 	determination 	finds
	that
	the
	election
objections 	in 	the
	above-referenced 	case warrant
	setting 	aside
	the
decertification
	election,
	and
	orders
	a
	new
	election.
PROCEDURAL 	HISTORY
On
	June 	5,
	1991,
1
the 	Public
	Employment
	Relations
	Board
(PERB
	or
	Board)
	conducted
	a
	tally
	of
	ballots 	in
	a
	decertification
election 	in
	the 	established
	certificated
	bargaining
	unit 	of
Gilroy 	Unified
	School
	District 	(District).
	On
	the
	ballot,
	along
with 	the 	choice 	of
	"No
	Representation,"
	were
	the
	Gilroy 	Teachers
Association
	CTA/NEA 	(CTA)
	and
	the 	Gilroy 	Federation 	of 	Teachers
CFT/AFT,
	Local
	1921
	(CFT
	or 	Petitioner).
	With
	448
	employees
eligible 	to 	vote,
	204
	votes
	were
	cast 	for
	CTA; 	192
	for
	CFT; 	3
	for
No
	Representation;
	and
	there
	was 	1
	challenged
	ballot
	add
	1
	void
ballot.
	The
	official 	tally
	of 	ballots, 	personally 	served 	on 	each
1
All 	dates 	referenced 	herein 	are 	in 	the 	calendar 	year 	1991,
unless 	specified 	otherwise.

party 	that
	same
	day,
	thus
	showed
	that
	a
	majority 	of
	the 	votes
	had
been
	cast 	for
	CTA.
On
	June
	12,
	the
	Petitioner 	filed
	election 	objections
pursuant 	to
	PERB
	regulation
	32738
2
with
	the
	San
	Francisco
2PERB
	regulations 	are 	codified
	at
	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et
	seq.
	Section
	32738
provides
	as
	follows:
32738.
	Objections.
(a)
	Within
	10
	days
	following
	the
	service
	of 	the
	tally
	of
ballots,
	any
	party 	to 	the
	election
	may
	file
	with
	the
	regional
office
	objections 	to 	the
	conduct
	of 	the
	election.
	Any
	objections
must 	be
	filed
	within 	the
	10
	day
	time
	period
	whether
	or 	not
	a
runoff
	election
	is
	necessary
	or
	challenged
	ballots
	are
	sufficient
in
	number
	to
	affect
	the
	results
	of 	the
	election.
(b)
	Service
	and
	proof 	of
	service 	of 	the 	objections 	pursuant
to 	section
	32140
	are 	required.
(c)
	Objections
	shall
	be
	entertained
	by
	the
	Board
	only
	on
the
	following
	grounds:
(1)
	The
	conduct 	complained
	of
	interfered
	with
	the
employees'
	right 	to 	freely
	choose
	a
	representative, 	or
(2)
	Serious
	irregularity 	in
	the
	conduct
	of
	the
election.
(d)
	The
	statement 	of 	the 	objections
	must
	contain
	specific
facts
	which,
	if
	true,
	would
	establish 	that
	the 	election
	result
should
	be
	set 	aside,
	and 	must
	also 	describe 	with
	specificity
	how
the 	alleged 	facts 	constitute 	objectionable
	conduct
	within 	the
meaning
	of 	subsection
	(c) 	above.
(e)
	No
	party
	may
	allege
	as 	grounds
	for 	setting 	aside
	an
election
	its
	own
	conduct
	or 	the
	conduct
	of
	its
	agents.
(f)
	At
	the 	direction 	of 	the
	Board,
	facts 	alleged 	as
supportive 	of 	the 	election
	conduct 	objected 	to 	shall
	be 	supported
by
	declarations.
	Such
	declarations
	must 	be
	within 	the 'personalknowledge
	of 	the 	declarant, 	or
	must
	otherwise
	be
	admissible 	in
	a
PERB
	election 	objections 	hearing.
	The
	declarations 	shall 	specify
the 	details
	of 	each 	occurrence; 	identify 	the 	person(s) 	alleged 	tohave 	engaged
	in 	the 	allegedly 	objectionable 	conduct;
	state 	theirrelationship 	to 	the 	parties; 	state
	where 	and when
	the 	allegedly
objectionable 	conduct 	occurred; 	and 	give
	a
	detailed 	description
2

Regional
	Office 	of
	PERB,
	and
	the 	objections
	were
	subsequently
assigned 	to
	the
	undersigned
	for
	investigation.
3 On
	June
	25,
	an
of 	the 	allegedly 	objectionable
	conduct.
	All
	declarations
	shall
state
	the 	date
	and
	place 	of 	execution
	and
	shall
	be
	signed
	by
	the
declarant
	and
	certified
	by
	him
	or
	her
	to
	be
	true
	under
	penalty
	of
perjury.
(g)
	The
	Board
	agent
	shall
	dismiss
	objections
	that
	fail
	to
satisfy
	the
	requirements 	of 	subsections
	(a)
	through
	(d).
	The
objecting 	party
	may
	appeal
	the 	dismissal 	to 	the
	Board
	itself
	in
accordance 	with 	Division
	1,
	Chapter 	4,
	Article
	2
	of
	these
regulations.
3
The
	powers 	and
	duties
	of
	a
	Board
	agent
	investigating
election
	objections 	are
	set 	forth 	in
	PERB
	regulation
	32739,
	as
follows:
32739.
	Powers 	and
	Duties
	of
	Board Agent
	Concerning
Objections.
	Concerning
	objections, 	the
	Board
	agent
	has
	the
	power
to:
(a)
	Direct
	any
	party 	to
	submit
	evidence 	through
declarations 	or
	documents;
(b)
	Order
	the 	inspection 	of
	document 	by 	Board
	agent
	or
	the
parties;
(c)
	Direct
	any
	party 	to
	submit 	an
	offer
	of 	proof;
(d)
	Obtain
	declarations
	from
	witnesses
	based
	on
	personal
knowledge;
(e) 	Conduct
	investigatory
	conferences 	with 	the
	parties
	toexplore
	and
	resolve 	factual 	or 	legal 	issues;
(f)
	Dismiss 	any
	objections
	which,
	after 	investigation,
	do
not 	warrant
	setting 	aside 	the 	election.
	Any
	such
	dismissal
	is
appealable 	to 	the
	Board
	itself
	pursuant 	to 	Division
	1,
	Chapter
	4,
Article
	2
	of 	these 	regulations.
(g)
	Issue
	a
	written 	determination 	se~~ing
	asiae 	the
election
	when,
	after 	investigation,
	it
	appears
	that
	such
	action
is
	warranted,
	and
	that
	no
	material 	factual 	disputes 	exist.
	Such
determination 	shall
	be
	in 	writing
	and 	served 	on
	the 	parties.
	Any
such 	determination 	is 	appealable 	to 	the
	Board
	itself
	pursuant 	to
Division 	1, 	Chapter 	4,
	Article
	2
	of 	these 	regulations.
3

Order 	for 	Investigation 	and 	Production 	of 	Documents 	was 	issued
concerning 	the 	above-referenced 	matter, 	requiring 	the 	filing 	of
certain 	information 	by 	the 	District 	(Phase 	I) 	and 	also 	providing
(Phase 	II) 	an 	opportunity 	for 	responsive 	submissions 	of
information 	by 	CTA 	and 	CFT.
(h) 	Schedule 	a 	hearing 	when 	substantial 	and 	material
factual 	disputes 	exist. 	Any 	hearing 	shall 	be 	limited 	to 	the
issues 	set 	forth 	in 	the 	notice 	of 	hearing.
Timely 	submissions 	were 	received 	from 	both 	the 	District 	and
CTA. 4
On 	July 	26, 	by 	an 	Order 	and 	Request 	for 	Argument, 	parties
were 	advised 	of 	the 	determination 	that 	the 	factual 	submissions
did 	not 	present 	any 	material 	factual 	disputes 	requiring 	a
hearing, 5 and 	the 	parties 	were 	afforded 	an 	opportunity 	to 	file
argument. 	All 	parties 	responded 	in a 	timely 	fashion, 	with 	both
CTA 	and 	the 	District 	arguing 	for 	dismissal 	of 	the 	objections, 	and
the 	matter was 	taken 	under 	submission on August 	19.
4Counsel 	for 	the 	Petitioner 	verbally 	confirmed 	by 	telephone
on 	July 	24 	that 	Petitioner 	waived 	its 	opportunity 	to 	file 	a
response.
5PERB 	regulation 	32739(h) 	provides 	that 	a 	hearing 	shall 	be
scheduled 	in 	an 	objections 	case 	"when 	substantial 	and 	material
factual 	disputes 	exist." 	(Emphasis 	added; 	see, 	also, 	Los 	Angeles
Community 	College 	District 	(i983) 	PERB 	Decision 	No. 	331). 	A
party 	is 	not 	entitled 	to 	a 	hearing 	on 	election 	objections 	where
it 	is 	clear 	that, 	based 	on 	the 	content 	of 	the 	objections, 	no
possible 	factual 	showing 	could 	justify 	the 	relief 	sought. 	(NLRB
v. 	Singleton 	Packing 	Corp. 	(5th 	Cir. 	1969) 	418 	F2d 	272 	[72 	LRRM
2519] .)
4

ISSUES
In
	its 	initial
	statement 	of
	objections,
	CFT
	identified
	three
areas
	for
	investigation,
	but
	later
	withdrew
	an
	objection
	based
	on
the
	marking
	and
	circulation
	of
	a
	sample
	ballot.
	The 	two
	issues
still
	before
	PERB
	are 	the
	following:
1.
	Petitioner's
	statement 	of 	objections
	focusses
	most
	of
its
	attention
	on
	alleged
	irregularities
	concerning
	the
	mailed
ballot
	procedures,
	especially
	regarding 	the
	mailing 	of
	ballots
	to
83
	employees
	whose
	names
	were
	submitted
	to
	the
	District
	by
	CTA
	on
May
	6.
2.
	Petitioner
	also
	contends
	that
	CTA
	"held
	a
	ballot
	mailing
party
	for 	the
	83
	individuals
	as
	to
	whom
	it
	had
	arranged
	for
	the
receipt
	of
	such
	ballots.
	The
	individuals
	were
	offered
	benefits
at 	this
	party 	for 	voting 	for
	[CTA]."
FINDINGS
	OF
	FACT
Mailed
	Ballot
	Procedures
The
	Directed 	Election
	Order
	(DEO)
	issued
	on
	May 	.1 ..,,	
t=;	
by
PERB's 	San
	Francisco 	Regional
	Director,
6
provided
	in 	section
	14
f
or 	cer
t
ain	
.	
vo
t
ers
	t o
	voe
	t 	b y
	mai
'l
: 7
Mailed
	Ballots:
	All
	eligible
	voters
	on
	leave 	ofabsence,
	off-track 	teachers 	not 	teaching
	on
	the
election 	date
	and
	eligible
	voters
	who
	are 	required 	to
6
Earlier,
	a
	consent
	election
	agreement 	had 	been 	developed
for 	signature
	by
	the
	parties.
	A
dispute 	over 	the 	ballotdesignation 	of 	the 	Petitioner 	resulted 	in 	the 	issuance,' instead,of 	the
	DEO.
	It 	is
	undisputed, 	however,
	that 	the 	provisions 	of
the
	DEO
	were,
	in
	all
	sections 	relevant 	to 	this 	determination,
identical 	to 	those 	agreed 	to
	by
	all 	parties.
7
All 	other 	eligible 	voters 	were 	scheduled 	to 	vote 	on-site 	at
one 	of
	two
	locations
	on 	June 	5, 	between 	2:00 	and 	5:00 	p.rn.
5

be 	out 	of 	the 	District 	on 	the 	election 	date 	and whose
names 	have 	been 	submitted 	to 	the 	District 	by 	4:00 	p.m.
on 	May 	6, 	1991 	have 	been 	designated 	to 	receive 	mailed
ballots 	in 	this 	election. 	Ballots 	will 	be 	mailed 	to
the 	home 	addresses 	of 	these 	voters 	on 	May 	14. 	1991.
Voted 	ballots 	must 	be 	received 	by 	PERB 	by 	12:00 	p.m .•
May 	31. 	1991 	in 	order 	to 	be 	counted. 	PERB 	will 	accept
requests 	for 	duplicate 	ballots 	from 	any 	employee 	on 	the
mailed 	ballot 	list who 	has 	not 	received 	a 	ballot
between 	8:30 	a.m. 	and 	4:30 	p.rn. 	on 	May 	20. 	1991 	and 	May
21, 	1991 	ONLY. 	The 	employee 	must 	call 	him/herself 	and
may 	call 	the 	PERB 	office 	collect. 	[Emphasis 	in
original.]
Section 	15 	of 	the 	DEO 	provided, 	in 	part, 	for 	the 	District 	to 	file
with 	PERB, 	not 	later 	than 	May 	7, 	a 	list 	of 	all 	"eligible 	voters
designated 	to 	receive 	mailed 	ballots." 	A copy 	of 	this 	list 	was
to 	be 	served 	concurrently 	on CTA 	and 	CFT. 	Section 	16 	of 	the 	DEO
further 	provided 	for 	a 	Notice 	of 	Election 	to 	be 	mailed 	by 	PERB 	to
each 	eligible 	voter 	designated 	to 	receive 	a 	mailed 	ballot 	on 	May
10.
The 	District 	timely 	filed 	with 	PERB 	a 	list 	of 	28 	employees
(List 	I) 	designated 	to 	receive 	mailed 	ballots. 	The 	list 	included
an 	indication 	that 	each 	employee was 	either 	on 	leave 	of 	absence
or 	an 	off-track 	employee.
On 	May 	6, 	the 	District 	received 	from 	CTA 	a 	list 	of 	83
employees 	(List 	II) 	which 	included 	the 	notation 	that 	the
"following 	people 	have 	requested 	absentee 	ballots." 	CTA 	had
developed 	this 	list 	from 	the 	responses 	to 	a 	form 	it 	had
circulated 	to 	its 	members 	in 	the 	bargaining 	unit. 	The 	form
indicated 	that 	an 	"election 	to 	keep 	the 	[CTA] 	as 	exclusive
representative" 	was 	to 	be 	conducted 	by 	PERB 	on 	June 	5, 	and
invited 	employees 	to 	return 	the 	form 	to 	CTA 	"[i]f 	you 	think 	you
6

need 	an 	absentee 	ballot.'' 	The 	form 	did 	not 	require 	the 	employee
to 	state 	a 	reason 	for 	needing 	such 	a 	ballot.
The 	District 	forwarded 	List 	II 	to 	PERB 	for 	issuance 	of
mailed 	notices 	and 	ballots, 	but 	inadvertently 	did 	so 	after 	the
deadline. 	PERB 	received 	List 	II 	on 	May 	13 	and 	mailed 	notices 	and
ballots 	to 	the 	employees 	on 	May 	14. 	List 	II 	was 	not 	properly
served 	on 	CFT, 	but 	a 	representative 	of 	CFT 	did 	obtain 	a 	copy 	of
the 	list 	from 	the 	District 	on 	May 	10.
Of 	the 	83 	employees 	on 	List 	II, 	11 	employees 	were 	not 	on
duty 	at 	their 	regular 	assignments 	on 	June 	5: 	5 	employees 	were
released 	to 	attend 	an 	in-service 	in Gilroy 	from 	8:00 	a.m. 	to 	3:30
p.m., 	1 	employee 	was 	on 	personal 	necessity 	leave, 	and 	5 	employees
were 	on 	sick 	leave. 	On May 	6, 	the 	date 	the 	mailed 	ballot 	list
was 	due 	to 	be 	filed, 	the 	District 	was 	aware 	of 	the 	in-service
training 	scheduled 	for 	the 	five 	employees, 	and 	knew 	that 	one 	of
the 	five 	employees 	on 	sick 	leave would 	be 	on 	leave 	on 	June 	5. 8
As 	noted 	above, 	of 	the 	448 	eligible 	voters, 	399 	valid
ballots 	and 	1 	challenged 	ballot 	were 	cast, 	resulting 	in 	an 	89
percent 	turnout. 	The 	turnout 	among 	those 	voters 	who 	voted 	by
mail 	was 	only 	slightly 	lower: 	71 	percent 	of 	the 	employees 	on
List 	I 	voted, 9 and 	83 	percent 	of 	the 	employees 	on 	List 	II 	voted. 10
8That 	employee 	is 	on 	a 	long-term 	leave 	of 	absence.
9of 	the 	28 	employees, 	17 	voted 	by 	mail 	and 	another 	3 	voted
on-site.
10of 	the 	83 	employees, 	67 	cast 	valid 	mail 	ballots, 	and 	2
employees 	voted 	on-site. 	One 	mailed 	ballot 	was 	voided 	for
reasons 	unrelated 	to 	the 	objections.
·
7

CTA's
	overall
	margin
	of
	victory
	was
	12
	votes 	over
	CFT.
11
However,
	CTA's
	margin
	of
	victory
	among
	just
	those
	employees
	who
cast
	mailed
	ballots
	was
	significantly
	higher:
	Of
	the
	83
	valid
mailed
	ballots 	cast,
	CTA
	received
	69
	votes
	and
	CFT
	only
	14.
12
Thus,
	the
	mailed
	ballot
	margin
	for
	CTA
	was
	55
	votes.
	Even
	if
	the
17
	mailed
	ballots
	from
	List
	I
	are
	assumed
	to
	have 	been
	cast
	for
CTA,
	it
	is
	re~sonable
	to
	conclude
	that
	CTA's
	margin
	of
	victory
was
	provided
	by
	the
	mailed
	ballots 	cast
	by
	employees 	on
	List 	II.
The
	Ballot
	Party
In
	support 	of
	its
	second
	objection,
	Petitioner
	submitted
only 	the 	Declaration 	of
	Richard
	Hemann,
	who
	asserts 	that
	CTA
offered 	to 	put
	stamps 	on
	envelopes
	for 	voters
	and
	"offered
refreshments"
	to 	individuals.
	Hemann
	admits,
	however,
	that
	he
was
	not
	at
	the 	"ballot 	party,"
	does
	not
	know
what
	was
	offered
	or
given 	to 	individuals,
	and
	does
	not
	even
	know how many
	employees
attended 	the 	function.
CTA
	admits, 	through
	the 	Declaration 	of
	S.
	Judy
	Mason,
	that
	a
campaign
	dinner
	was
	held
	on
	May
	21,
	that
	25
	employees
	in 	the
voting 	unit 	attended,
	that
	9
	of 	these
	employees 	were 	on
	List 	II,
that
	6
	of 	these
	latter
	employees
	brought
	their 	ballots 	to 	the
dinner.
	CTA
	denies
	that
	any 	employee 	marked
	his 	or 	her
	ballot 	at
11
CTA
	had
	only
	3
	votes
	more
	than 	the
	minimum
	required 	toavoid
	a
	runoff 	election.
	This 	margin 	might 	have 	been
	4
	votes,depending
	on
	how
	the 	challenged
	ballot
	was
	resolved.
12
As
	is
	customary
	in 	combination 	on-site/mailed 	ballot
elections,
	PERB
	issued 	ballots 	in 	different 	colors 	for 	on-sitevoting
	and 	mailed
	ballot 	voting. 	All 	mailed 	ballots
	were
	of 	thesame
	color,
	however, 	so
	it
	is 	not 	possible 	to 	distinguish 	between
the 	ballots 	of 	employees 	on 	the
	two
	lists.
8

the
	dinner, 	or
	that
	CTA
	offered
	any
	inducement
	or
	benefit 	in
exchange
	for
	a
	favorable 	vote.
DISCUSSION
Pursuant
	to
	PERB
	regulation
	32738,
	objections 	to 	the
	conduct
of
	an
	election
	are
	entertained
	by
	the
	PERB
	on
	only
	two
	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.
A
party
	objecting 	to
	an
	election
	result
	must
	first
	present
	a
prima
	facie
	showing
	of
	conduct
	that 	constitutes
	one
	of
	the
	two
grounds. 	This
	includes
	a
	factual
	showing
	that
	employee
	choice
was
	affected 	or
	that
	the
	conduct 	complained
	of
	had
	the
	natural
and
	probable
	effect
	of
	impacting
	employee
	choice.
	(Santa
	Monica
Unified
	School
	District
	and
	Community
	College
	District
	(1978)
PERB
	Decision
	No.	
52; 	San
	Ramon
Valley 	Unified
	School
	District
(1979)
	PERB
	Decision
	No.
	111;
	Jefferson
	Elementary 	School
District
	(1981)
	PERB
	Decision
	No.
	164;
	Pasadena
	Unified 	School
District
	(1985)
	PERB
	Decision
	No.
	530.)
13
After
	this
	threshold
	showing
	is
	met,
	PERB
	will
	decide
whether
	to 	set
	aside 	the 	election 	result
	depending
	"upon
	the
totality
	of 	circumstances
	raised 	in
	each
	case 	and,
	when
appropriate, 	the 	cumulative
	effect
	of 	the 	conduct 	which 	forms
	the
basis 	for 	the
	relief
	requested." 	(Clovis 	Unified 	School
	District
13
PERB
	looks 	for 	guidance,
	inter 	alia, 	to 	federal 	labor
	law
decisions, 	including 	National 	Labor 	Relations 	Board
	(NLRB)
precedent, 	in 	election 	objections 	cases. 	(See,
	e.g., 	State 	of
California
	(1982) 	PERB
	Decision
	No.
	198-S.)
9

(1984) 	PERB 	Decision 	No. 	389; 	State 	of 	California 	(Department 	of
Personnel 	Administration) 	(1986) 	PERB 	Decision No. 	601-S.) 	Thus,
even where 	some 	impact 	on 	voters 	can 	be 	inferred, 	the 	election
result 	will 	not 	always 	be 	set 	aside.
PERB 	regulations 	require 	the 	Board 	agent 	to 	dismiss 	election
objections 	which 	do 	not 	"satisfy 	the 	requirements 	of 	subsections
(a) 	through 	(d)" 	of 	PERB 	regulation 	32738. 	Even 	if 	not 	subject
to 	dismissal 	under 	PERB 	regulation 	32738, 	objections 	are 	to 	be
dismissed 	by 	the 	Board 	agent 	if, 	after 	investigation, 	the
objections 	"do 	not 	warrant 	setting 	aside 	the 	election." 	(PERB
regulation 	32739(f).) 	Alternatively, 	the 	Board 	agent 	may 	set
aside 	the 	election 	if 	the 	results 	of 	the 	investigation warrant
such 	action. 	(PERB 	regulation 	32739(g) .)
It 	is 	against 	these 	standards 	that 	Petitioner's 	objections
have 	been 	tested.
The 	Ballot 	Party
The 	"factual" 	submission by 	the 	Petitioner 	on 	this 	point
amounts 	to 	the 	assertion 	of 	its 	belief 	that 	improper 	inducements
were 	offered 	to 	voters 	at 	the 	May 	21 	dinner 	by 	CTA. 	In 	its
brief, 	CFT 	argues 	that 	this 	objection 	should 	be 	sustained 	based
on 	CTA's 	admission 	that 	food 	and 	beverages 	were 	provided 	at 	the
dinner.
This 	element 	of 	the 	objections 	fails 	to 	state 	a 	pr~ma 	facie
case 	as 	required 	under 	PERB 	regulation 	32738(d), 	and 	must 	be
dismissed 	for 	that 	reason. 	Even 	if 	the 	threshold 	test 	was 	met 	on
this 	point, 	the 	application 	of 	relevant 	precedent 	would 	not
10

support 	a 	finding 	which 	would 	warrant 	setting 	aside 	the 	election.
As 	noted 	in 	the 	court's 	decision 	in 	Kux 	Manufacturing 	Co. 	v. 	NLRB
(CA 	6, 	1989) 	132 	LRRM 	2935, 	"supplying 	food 	and 	soft 	drinks 	is
commonplace 	in American 	elections 	and 	is 	not 	equivalent 	to 	buying
votes." 	There 	is 	no 	evidence 	here, 	or 	really 	even 	any 	hint, 	that
the 	refreshments 	offered 	by 	CTA 	on 	May 	21 	were 	of 	such 	a 	value 	or
type 	(especially 	alcoholic) 	as 	has 	warranted 	findings 	in 	favor 	of
setting 	aside 	election 	results. 	(See, 	for 	example, 	NLRB 	v. 	Labor
Services, 	Inc., 	721 	F2d 	13, 	114 	LRRM 	3259 	(CA 	1, 	1983), 	denying
enforcement 	to 	265 	NLRB 	463, 	111 	LRRM 	1650 	(1982); 	Owens-
I 11 i no is , 	Inc . , 	2 7 1 NLRB 	12 3 5 , 	11 7 	LRRM 	11 o4 	( 198 4 ) . )
Mailed 	Ballot 	Irregularities
An 	"objection 	relating 	to 	the 	integrity 	of 	the 	election
process 	requires 	an 	assessment 	of 	whether 	the 	facts 	indicate 	that
a 	reasonable 	possibility 	of 	irregularity 	inhered 	in 	the 	conduct
of 	the 	election." 	(People's 	Drug 	Stores, 	202 	NLRB 	1145, 	82 	LRRM
1763 	(1973); 	footnote 	omitted.) 	Likewise, 	"[i]n 	assuring 	the
integrity 	of 	the 	election 	process 	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." 	(Brink's
Armored 	Car, 	Inc., 	278 	NLRB 	141, 	121 	LRRM 	1129 	(1986); 	citations
omitted.)
To 	the 	extent 	that 	CFT's 	case 	for 	setting 	aside 	t~is
election 	rests 	on 	the 	untimely 	submission 	of 	List 	II, 	and 	the
other 	errors 	of 	late 	service 	and 	mailing 	of 	notices 	related
thereto, 	its 	case 	is 	unpersuasive. 	Both 	PERB 	and 	the 	NLRB 	have
11

long 	recognized
	that
	an
	election
	need
	not
	be
	perfect 	to
	be
	fair.
The
	Board
	has 	adopted
	the 	policy
	of
	the
	NLRB
	in
	this
	area,
	and
ruled
	that
	de 	minimis
	errors
	and
	omissions
	will
	not
	be
	found
	to
be
	"serious"
	irregularities 	sufficient
	to 	sustain 	election
objections.
	(See
	State
	of
	California
	(1982)
	PERB
	Decision
	No.
198-S,
	and
	cases
	cited 	therein; 	State
	of
	California
	(Department
of 	Personnel 	Administration)
	(1986)
	PERB
	Decision
	No.
	601-S;
	and
Polymers,
	Inc.,
	174
	NLRB
	282,
	70
	LRRM
	1148,	
enfd.	
414 	F2d
	999,
	71
LRRM
	3107
	(CA
	2,
	1969),	
cert.
	denied	
396
	U.S. 	1010,
	73
	LRRM
2121.)
	The
	errors
	here
	were
	not 	of
	sufficient
	weight
	or
"seriousness" 	to 	sustain
	the 	objections,
	nor
	is
	it
	reasonable
	to
infer 	that
	the
	errors
	had 	any
	natural 	or
	probable
	impact 	on
employee
	choice.
The
	relevant 	question
	is
	whether
	the
	submission
	of
	List 	II
and
	the
	issuance
	by
	PERB
	of
	mailed
	ballots 	to
	those
	83
	employees
constitutes
	grounds
	for
	setting
	aside 	the
	election.
	As
	recited
above,
	the 	facts 	indicate 	that, 	at
	most,
	11
	of 	the
	83
	employees
on
	the
	list
	were
	eligible
	to 	vote
	by
	mail
	pursuant 	to 	the
	DEO,
and
	a
	more
	reasonable
	interpretation 	indicates 	that
	only
	1
	was
	so
eligible
	(the
	employee 	on
	long-term 	leave).
	Moreover,
	the
	list
was
	the 	result
	of
	a
	flyer 	circulated
	by
	CTA
	which
mischaracterized 	the
	eligibility
	requirement 	for
	a
	mailed
	ballot.
In 	addition, 	there 	is
	no
	escaping 	the 	reality 	that
	it
	was
	the
lopsided
	margin
	for
	CTA
	from
	the 	mailed
	ballots
	which
	tipped 	the
scales 	in
	CTA's
	favor 	in 	this 	election.
12

CTA
	argues
	that
	issuance
	of
	mailed
	ballots
	to
	the
	employees
on
	List
	II
	did
	not
	constitute
	serious
	irregularity
	in 	the
	conduct
of 	the
	election,
	and
	attempts
	to 	distinguish
	PERB's
	processes,
regulations
	and
	precedent
	from
	those 	of 	the
	NLRB
	concerning
	use
of
	mailed
	ballots.
	CTA
	notes
	that
	NLRB
	policy
	does
	not
	allow 	for
the
	use
	of
	mail
	ballots, 	in
	a
	"mixed"
	mail
	and
	on-site 	election,
for
	employees
	"who
	are
	ill,
	on
	vacation, 	or 	are
	on
	leave 	of
absence
	due
	to
	their
	own
	decision 	or 	condition."
	(NLRB
Casehandling
	Manual
	(Part
	Two),
	Representation 	Proceedings,
Section
	11336.1; 	emphasis
	added.)
	But
	it
	does
	not 	follow
	that,
because
	NLRB
	policy
	is
	more
	rigid 	in
	this
	area,
	PERB
	has
	no
relevant 	policy, 	regulations 	or
	standards
	which 	must 	be
	observed.
PERB
	regulation
	32738
	provides 	as 	follows:
32728.
	Voter
	Eligibility.
	Unless
	otherwise
directed
	by
	the
	Board,
	to
	be
	eligible
	to
	vote
in
	an
	election,
	employees 	must 	be
	employed
	in
the 	voting
	unit
	as
	of 	the 	cutoff 	date 	for
voter
	eligibility,
	and
	still
	employed 	on
	the
date 	they
	cast
	their 	ballots 	in
	the
	election.
Employees
	who
	are
	ill,
	on
	vacation,
	on
	leave
of
	absence
	or 	sabbatical,
	temporarily
	laid
off.
	and 	employees
	who
	are 	in 	the 	militaryservice 	of 	the
	United
	States 	shall
	be
eligible 	to
	vote.
	Mailed
	ballots
	may
	be
utilized 	to
	maximize
	the 	opportunity 	of
	such
voters 	to 	cast
	their 	ballots.
	(Emphasis
added.)
PERB
	will,
	where
	circumstances
	justify
	it,
	conduct 	an
	entire
election
	by
	mail
	or will, 	in
	an
	on-site 	election, 	designate
	a
class
	of 	employees
	(e.g.,
	those
	on
	leave 	of 	absence)
	to 	vote
	by
mail, 	pursuant 	to 	regulation
	32728.
	Neither
	PERB
	regulations 	nor
PERB's
	election 	procedures 	provide 	for 	an	
11
absentee
11	
ballot
13

mechanism, 	whereby
	an
	individual
	employee
	may,
	for
	convenience
sake
	or
	otherwise,
	request
	and
	receive
	a
	mailed
	ballot.
In
	this
	case, 	the
	DEO
	issued 	for
	this
	election
	contained
	a
very
	specific 	definition
	of
	which
	eligible
	voters
	would
	be
eligible
	to
	vote
	by
	mail,
	limiting
	the 	opportunity
	to 	those
	who
were
	"on
	leave 	of
	absence,
	off-track
	teachers
	not
	teaching
	on
	the
election
	date
	and
	eligible
	voters
	who
	are 	required 	to
	be
	out
	of
the
	District
	on
	the
	election 	date."
	(Section
	14;
	emphasis
added.)
	As
	noted 	above,
	it
	is
	undisputed
	that
	all
	parties
	agreed
to
	this
	provision 	of
	the
	election
	order.
	The
	Board
	has
	held
	that
the 	provisions 	of
	a
	consent
	election
	agreement
	control 	the
	terms
and
	conditions 	of
	an
	election,
	including 	voter
	eligibility.
(State
	of
	California
	(Department
	of
	Personnel 	Administration}
(1991)
	PERB
	Order
	No.
	Ad-221-S;
	see, 	also,
	Tamalpais
	Union 	High
School
	District
	(1976)
	EERB
14
Decision
	No. 	1
	and
	Los
	Angeles
Unified
	School
	District
	(1980)
	PERB
	Decision
	No.
	113.)
	The
	same
rule
	must 	be
	held
	to
	apply
	to 	the 	provisions 	of
	a
	directed
election
	order, 	especially
	where
	the 	relevant 	provisions
	are 	in
fact 	the
	result
	of 	the
	parties'
	agreement.
The
	reasoning 	applied 	in 	the 	courts 	in
	reviewing 	an
	NLRB
decision 	in
	a
	similar 	case
	is
	quite 	appropriately 	relied
	upon
here:
A
party 	to
	an 	agreement
	authorizing
	a
	consent
election 	"is 	entitled 	to 	expect
	that 	other
parties
	and
	agents 	of 	the
	Board
	will
diligently
	uphold 	provisions 	of 	the 	agreement
14
Prior 	to 	January 	1, 	1978, 	PERB 	was 	known
	as 	the
Educational
	Employment
	Relations 	Board 	(EERB).
14

that
	are
	consistent
	with
	Board
	policy
	and
	are
calculated 	to
	promote
	fairness 	in
	the
election."
	(KCRA-TV
	v.
	NLRB
	(
1984)
	271
	NLRB
1288,	
1289,	
quoting
	Summa
	Corp.
	v.
	NLRB,
	625
F2d
	293,
	295
	(9th
	Cir.
	1980).	
Accord:	
NLRB
v.
	Granite
	State
	Minerals,
	674
	F2d
	101,
	102
(1st 	Cir.
	1982).)
In
	KCRA-TV,
	the 	court 	ruled
	that
	the
	election
	should
	be
overturned	
11
only
	if
	the
	breach
	is
	material 	or
	prejudicial, 	in
	the
sense
	that
	the
	conduct
	causing
	the
	breach
	significantly
	impairs
the
	fairness
	of 	the
	election
	process." 	After
	applying
	this 	test,
the 	court
	held
	that
	the
	election's
	fairness
	had
	been
	"materially
breached
11	
because
	the
	Board
	agent
	had
	issued,
	at
	one
	party's
request,
	mailed
	ballots
	to
	two
	employees
	not
	eligible
	to 	vote
	by
mail.
	(KCRA-TV,
	supra.)
As
	discussed
	in
	another
	NLRB
	case,
The
	question
	which
	the
	Board 	must
	decide
	in
each
	case
	in
	which
	there
	is
	a
	challenge
	to
conduct
	of 	the 	election
	is
	whether
	the
	manner
in
	which
	the
	election
was
	conducted
	raises
	a
reasonable
	doubt 	as
	to 	the 	fairness
	and
validity
	of 	the
	election.
In 	considering
	whether
	there
	has 	been
	a
breach 	of
	security 	in
	an
	election, 	or
	a
reasonable
	possibility
	of
	such
	a
	breach,
	we
are
	examining
	into 	questions 	of
	fact
	and
inference.
	To
	answer
	these 	questions,
	we
look
	at 	all
	the 	facts.
	(Polymers.
	Inc.
,
supra.)
Having
	considered
	all
	the 	facts 	in 	this
	case, 	including 	the
specific 	definition
	agreed
	to
	by
	the 	parties
	governing which
voters
	would 	be
	eligible 	to 	vote
	by
	mail, 	the 	large
	number
	of
voters
	who
	did 	not 	meet
	this 	definition
	and
	yet
	were
	permitted 	to
vote 	by 	mail, 	the 	circumstances 	under 	which
	this 	list
	was
15

compiled
	and
	the
	significant
	margin
	of
	mailed
	ballot
	votes
	cast
for
	CTA
	(considered
	in
	light
	of
	the
	overall
	voting
	pattern),
	the
only 	reasonable 	conclusion
	is
	that
	a
	material
	breach 	of
	the
election
	process 	did 	occur.
	Further,
	this
	material
	breach
	calls
into
	question 	the 	fairness
	and
	validity
	of
	the
	election,
	and
warrants
	setting
	it
	aside.
CONCLUSION
	AND
	ORDER
For
	the
	reasons 	discussed
	above,
	and
	based
	on
	the 	foregoing
findings
	of
	fact,
	the 	discussion,
	and
	the
	entire
	record
	of
	this
proceeding, 	the
	election
	objections
	filed
	by
	the
	Gilroy
Federation of
	Teachers
	CFT/AFT,
	Local
	1921
	concerning
	the
issuance 	of
	mailed
	ballots
	to 	voters
	who
	were
	not
	eligible
	to
vote
	by
	mail
	are
	held
	to
	warrant
	setting
	aside 	the
	election 	in
Case
	No.
	SF-D-188.
	The
	San
	Francisco
	Regional
	Director
	is
ORDERED
	not
	to
	certify
	the
	results
	of 	the
	election
	tallied
	on
June 	5,
	and
	to
	conduct
	a 	new
	election.
The
	election
	objections
	concerning
	the
	ballot
	party
	and
	all
other 	irregularities
	in 	the
	mailed
	ballot
	voting 	procedures
	are
hereby
	DISMISSED.
Right 	of
	Appeal
An
	appeal 	of
	this
	decision 	to 	the
	Board
	itself
	may
	be
	made
within 	ten
	(10)
	calendar
	days 	following 	the 	date 	of 	service 	of
this
	decision
	(PERB
	regulation
	32360).
	To
	be
	timely
	filed,
	the
original
	and
	five 	(5) 	copies 	of
	any 	appeal 	must 	be
	filed 	with 	the
Board
	itself 	at 	the 	following 	address:
MEMBERS, 	PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
1031 	18th 	Street, 	Suite
	200
Sacramento,
	CA
	95814-4174
16

A
document
	is
	considered
	"filed"
	when
	actually
	received
before
	the 	close 	of 	business
	(5:00
	p.m.)
	on
	the
	last
	day
	set
	for
filing,
	".
	.
	or
	when
	sent
	by
	telegraph 	or
	certified
	or
	Express
United
	States
	mail,
	postmarked
	not
	later
	than
	the
	last
	day
	set
for
	filing
	.
	."
	(regulation
	32135).
	Code
	of
	Civil
	Procedure
section
	1013
	shall
	apply.
The
	appeal
	must
	state
	the
	specific
	issues
	of 	procedure,
fact,
	law
	or
	rationale 	that
	are
	appealed
	and 	must
	state
	the
grounds
	for 	the
	appeal
	(regulation
	32360(c)).
	An
	appeal
	will
	not
automatically 	prevent 	the
	Board 	from
	proceeding
	in
	this
	case.
	A
party
	seeking
	a
	stay
	of
	any
	activity
	may
	file
	such
	a
	request
	with
its
	administrative
	appeal,
	and 	must
	include
	all
	pertinent 	facts
and
	justifications
	for 	the 	request 	(regulation
	32370).
If
	a
	timely 	appeal
	is 	filed,
	any
	other party
	may
	file
	with
the
	Board 	an
	original
	and
	five
	(5)
	copies 	of
	a
	response
	to 	the
appeal 	within 	ten
	(10)
	calendar
	days
	following
	the 	date 	of
service
	of 	the
	appeal
	(regulation
	32375).
Service
All
	documents
	authorized 	to	
be	
filed
	herein
	must
	also
	be
"served"
	upon
	all
	parties 	to 	the 	proceeding
	and 	on
	the
	Sacramento
regional 	office.
	A
	"proof 	of 	service''
	must 	accompany
	each 	copy
of
	a
	document
	served
	upon
	a
	party 	or 	filed
	with 	the
	Board
	itself
(see 	regulation
	32140
	for 	the 	required 	contents
	and
	a
	sample
form).
	The 	document
	will
	be 	considered 	properly 	"served"
	when
17

personally
	delivered 	or 	deposited
	in
	the
	first-class
	mail 	postage
paid
	and
	properly
	addressed.
9--	
-U-
91	
Dated:
____________
_
18
Les
	Chisholm
Regional
	Director