Poway Unified School District (PERB A306E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

POWAY UNIFIED SCHOOL DISTRICT,

Employer, Case No. LA-DP-333-E
and Administrative Appeal
POWAY COUNCIL OF CLASSIFIED PERB Order No. Ad-306

EMPLOYEES, CFT/AFT, AFL-CIO,
December 22, 2000
Petitioner,

and
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS POWAY
CHAPTER 80,

Exclusive Representative.

Appearances: California School Employees Association by David J. Dolloff, Staff Attorney,
for California School Employees Association and its Poway Chapter 80.

Before Dyer, Amador and Baker, Members.
DECISION
AMADOR, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the California School Employees Association and its Poway
Chapter 80 to an administrative determination (attached) by a Board agent. The administrative
determination finds that the objections filed by the Poway Council of Classified Employees,
CFT/AFT, AFL-CIO concerning serious irregularity in the conduct of the decertification

election warrant setting aside the election results.

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After reviewing the entire record, the Board affirms the administrative determination.
ORDER
Based on the entire record in this case, the election objections filed by the Poway
Council of Classified Employees, CFT/AFT, AFL-CIO (AFT) are sufficient to warrant setting
aside the election results and ordering a new election. Therefore, the results of the
decertification election tallied on June 26 and July 20 will not be certified, and a re-run
election is hereby ORDERED.1 The ballot choices shall be California School Employees
Association and its Poway Chapter 80; Poway Council of Classified Employees, CFT/AFT,
AFL-CIO; and No Representation.
Members Dyer and Baker joined in this Decision.
1AFT requests that a runoff election be conducted between the two employee organizations.
A runoff election (where "No Representation" would be dropped as a ballot choice) is not
appropriate, however, because the election results are being voided.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN FRANCISCO REGIONAL OFFICE
POWAY UNIFIED SCHOOL DISTRICT,
Employer,
-and-
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION (CSEA) POWAY CHAPTER 80,
Exclusive Representative,
-and-
POWAY COUNCIL OF CLASSIFIED
EMPLOYEES, CFT/AFT, AFL-CIO,
Petitioner.
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) 	Case No. LA-DP-333
ADMINISTRATIVE
DETERMINATION
September 28, 2000
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This administrative determination finds that the objections filed by the Poway Council
of Classified Employees, CFT/AFT, AFL-CIO concerning serious irregularity in the conduct
of the decertification election warrant setting aside the election results.
Procedural History
On April 28, 2000,1 the Poway Council of Classified Employees, CFT/AFT, AFL-CIO
(AFT) filed a decertification petition seeking to replace the California School Employees
Association and its Poway Chapter 80 (CSEA) as the exclusive representative of the office-
technical and paraprofessional unit in the Poway Unified School District (District). On May
18, PERB issued an administrative determination finding that AFT had submitted adequate
proof of support with its petition. The parties entered into a consent election agreement for a
mailed

"All dates herein refer to 2000.

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ballot election on May 22. Ballots were mailed to all eligible voters on June 2, due to be
returned to PERB by June 23, and counted on June 26.
In all, three ballot counts were conducted, two on June 26 and the third on July 20.
Prior to the first count, the parties and PERB Board agent Jerilyn Gelt (Gelt) engaged in a
discussion regarding the number of ballots received by PERB's Los Angeles regional office.
Various numbers were bandied about, including 706, 708 and 714. Gelt ended the discussion
by telling the parties that the counting of the ballots would reveal the actual number of ballots
received.
At the conclusion of the first count, the tally read as follows:
Approximate number of eligible voters 	1107
Void ballots 	1
Votes cast for CSEA 	319
Votes cast for AFT 	276
Votes cast for No Representation 	31
Valid votes counted 	626
Challenged ballots 	2
Valid votes counted plus challenged ballots 	628
Although AFT and CSEA questioned the accuracy of the total number of ballots,2 the count
was concluded. Since the challenged ballots were not sufficient to affect the results of the
2CSEA did not refute this assertion in its response to AFT's objections. The District also
referenced the discussion in its response to the objections.

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election, and CSEA received a majority of the valid ballots cast, it was declared the winner.
All parties signed the tally, whereupon the District and AFT representatives left the PERB
office, while CSEA representatives remained talking amongst themselves.
Shortly thereafter, Gelt informed CSEA that 71 additional ballots had been located.3
She asked that they remain in the PERB office while she attempted to locate District and AFT
representatives.
AFT representatives were located outside of the building, informed of the error, and
accompanied Gelt back to the PERB office. The District representative had already left the
premises. CSEA and AFT then witnessed the counting of the additional 71 ballots. At the
conclusion of the second count, the original tally was amended to read as follows:
Approximate number of eligible voters 	1107
Void ballots 	3
Votes cast for CSEA 	353
Votes cast for AFT 	307
Votes cast for No Representation 	34
Valid votes counted 	694
Challenged ballots 	2
3AFT states in its objections that the ballots "were in a stack on the floor behind the head
table." In its response to the objections, the District states that they were informed by Gelt on June
27 that the missing ballots had been found in a wastebasket. It is unnecessary to resolve this
discrepancy since where the ballots were found is not dispositive of the issues raised in the
objections.

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Valid votes counted plus challenged ballots 	696
Once again, the total number of ballots counted was questioned by AFT and CSEA.4
The numbers on the original tally sheet signed by the parties were crossed out and the new
totals recorded. Neither CSEA nor AFT re-signed or initialed the revised tally. Based on the
amended tally, CSEA remained the winner of the election.
THE OBJECTIONS
AFT filed timely objections to the election on July 3 pursuant to PERB regulation
32738.5 The statement of objections
4CSEA did not refute this assertion in its response to AFT's objections. There is no evidence
in the record as to the outcome of the discussion.
5PERB regulations are codified at California Code of Regulations, title 8, section 31001 et
seq. PERB regulation 32738 provides:
(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.

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alleged serious irregularity in the conduct of the election due to 1) ballots having been lost or
unaccounted for, and 2) the confusion surrounding the actual number of ballots received by
PERB. AFT alleged that if the actual number of ballots received was 7066 or more, CSEA
would not have received a majority and a runoff election would have been ordered.
On July 13, the parties were informed by the undersigned that, as the first step in the
investigation of the objections, a meeting would be held on July 20 to recount the ballots and
afford all parties an opportunity to inspect all returned ballots.
(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 personal
knowledge 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 to have
engaged in the allegedly objectionable conduct; state their relationship to the parties; state where
and when the allegedly objectionable conduct occurred; and give a detailed description 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 Chapter 1, Subchapter 4, Article 2 of these regulations.
6AFT asserts that when AFT staff person Ellen Greenhut called the PERB office on June 23,
the last day for receipt of ballots, she was informed by the Los Angeles regional office that 706
ballots had been received.

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At the July 20 meeting, 3 unopened ballot envelopes that had been deemed void at the
initial June 26 count but not recorded on the tally were found. The recount revealed that
ballots for AFT had been miscounted, resulting in 2 additional votes.7 As a result of the third
count, a corrected tally was prepared and signed by the parties which reflected the following
new totals:
Approximate number of eligible voters 	1107
Void ballots 	6
Votes cast for CS 	353
Votes cast for AF 	309
Votes cast for No Representation 	34
Valid votes counted 	696
Challenged 	2
Valid votes counted plus challenged ballots 	698
EA
T
ballots
Having garnered a majority of the valid ballots counted for the third time, CSEA remained the
winner.
On July 25, AFT amended its objections to include allegations that approximately 16
business reply blue envelopes (in which ballots were returned to the PERB office) appeared to
have been opened and resealed and, that the election had not been conducted under "laboratory
conditions." It sum, it asserted that PERB's conduct had a "probable impact" on the election
7It is PERB's practice to count ballots in groups of 50 per ballot choice, with all parties given
an opportunity to request a recount at the end of each group. Apparently, no party at the count
caught the fact that each of 2 AFT piles contained an additional ballot.

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results and as a remedy, it sought to have the election overturned and a runoff election
conducted.
POSITION OF THE PARTIES
On July 27, both the District and CSEA were afforded an opportunity to file factual
information, supported by declarations or documentary evidence, and legal argument in
response to AFT's submissions. Both filed timely responses, though neither provided
declarations or documentary evidence.
In its response, the District simply restates its version of events on June 26.8 It states
that Gelt indicated prior to the first count that 706 ballots had been received, yet the District
recites the numbers 708, 712, and 714 as totals that were also discussed. At the end of the first
count, the District recalls both AFT and CSEA questioning the accuracy of the total number of
ballots.9 The District also restated the new totals reached at the conclusion of the recount on
July 20. In sum, the District did not take a position in response to the allegations raised by
AFT in its objections nor its requested remedy.
CSEA does not dispute the handling or the counting of the ballots by PERB. It asserts
that by signing the Tally of Ballots,10 each party was on notice regarding its responsibility
8None of the events cited by the District are disputed in any of the parties' submissions,
except for the location of the missing ballots, which has been addressed above.
9As noted above, the District was not present at the second ballot count.
10As noted above, the parties did not sign or initial the changes made to the tally after the
second count.

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to monitor the counts and was acknowledging that the totals accurately reflected the results of
the election.11 In addition, CSEA asserts that AFT's July 25 ballot tampering allegation should
have been raised at the recount and is unsubstantiated. Therefore, CSEA requests that the
objections be denied.
ISSUES
1) Did serious irregularities occur in the conduct of the decertification election?
2) If so, should the decertification election results be set aside and a new election
ordered?
DISCUSSION
PERB is the neutral State agency charged with conducting representation elections
pursuant to the Educational Employment Relations Act.12 Pursuant to PERB regulation 32738,
objections to the conduct of an election are entertained by 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.
11CSEA bolsters its argument by quoting the following statement which appears on the
Tally of Ballots form:
The undersigned acted as authorized observers in the counting and
tabulating of ballots indicated above. We hereby certify that the
counting and tabulating were fairly and accurately done, that the
secrecy of the ballots was maintained and that the results were as
indicated above. We also acknowledge service of this tally.
12EERA is codified at Government Code section 3540 et seq.

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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 (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
13PERB looks for guidance, inter alia, to federal labor law decisions, including National
Labor Relations Board (NLRB) precedent, in election objection cases. (See, e.g., State of California
(1982) PERB Decision No. 198-S.) However, it does not always follow NLRB per se rules in the
area of election objections. (San Diego Unified School District (1996) PERB Order No. Ad-278.

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).)
Since its inception, the Board's policy and practice has been to maintain and protect the
integrity and neutrality of its election processes, with an eye towards maintaining high
standards to avoid any taint in the balloting process. In order for the Board to succeed in its
mission, the parties must have confidence in the Board's processes. As the NLRB noted,
The commission of an act by a Board agent conducting an
election which tends to destroy confidence in the Board's election
process, or which could reasonably be interpreted as impugning
the election standards we seek to maintain, is a sufficient basis
for setting aside the election. (Athbro Precision Engineering
Corp., 166 NLRB No. 116, 65 LRRM 1699.)
Election objections regarding the integrity of the election process require assessment of
whether a reasonable possibility of irregularity exists. Since this is paramount, "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." (San Diego USD, supra.)
However, "an election need not be perfect to be valid. Mistakes are made in any human
endeavor. The question is whether

the mistakes were sufficient to affect the outcome" of the election. (State of California (1986)
PERB Decision No. 601).
July 3 Objections
A significant question raised by the objections revolves around the number of ballots
received by PERB. Both AFT and the District state that they were informed by PERB on the
last day for receipt of ballots and/or prior to the first count that 706 ballots had been received
by the Los Angeles regional office. CSEA did not address or dispute this statement, even
though it was afforded an opportunity to so. Thus, it is undisputed that the parties were under
the impression that PERB had received at least 706 ballots. After the third count, however, the
tally of ballots accounted for only 704 ballots. This is a crucial discrepancy, since an increase
in the number of ballots beyond 704 could negate CSEA's majority status and necessitate a
runoff election. Unquestionably, the potential of missing ballots sufficient in number to affect
the outcome constitutes a serious election irregularity and raises doubts as to the fundamental
integrity, fairness and validity of the election. (San Diego USD, supra).
A lack of confidence in the election appears justified given this discrepancy and the
totality of events including the initial misplacement of 71 ballots, their subsequent count and
addition to the June 26 tally, and the recount on July 20 where a new tally of ballots was issued
to correct mistakes contained in the June 26 tallies. PERB and the parties will never know the
true

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number of ballots received, but the critical errors committed by the Board cannot be used to
penalize one of the parties to the election.
AFT complains that beginning prior to the first count, confusion regarding the number
of ballots received arose among the parties. Although comments were exchanged citing
different numbers of ballots, the discussion was inconclusive. Coupled with the appearance of
the 71 additional ballots which confirmed the parties' initial concerns, and the resurgence of
identical doubts regarding ballot numbers after the second count, a lack of confidence in the
Board's election process is more than justified.
CSEA seeks to diminish AFT's objections regarding the confusion over the number of
ballots by arguing that by signing the tally of ballots form, each party was attesting to the
accuracy of the results. It is important to note that the June 26 tallies were flawed. In addition,
PERB raised the question initially regarding the accuracy of the first ballot count by alerting
the parties that additional ballots had been located, and conducting the second and third ballot
counts. Under the facts of this case, therefore, the signatures on the two tallies (original June
26 tally14 and the July 20 tally) are not an explicit waiver to the filing of objections regarding
the ballot counts. Nor does regulation 32738 prohibit such objections. The
14As noted above, neither AFT nor CSEA re-signed or initialed the tally once the new totals
were recorded.

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determination regarding when a signature on a tally form would constitute a waiver regarding
the right to file objections, or cast doubt on objections filed, is left to be determined in a future
case.
July 25 Amendment to Objections
AFT raises a concern regarding 16 business reply blue envelopes which contained
ballots returned to the regional office that appeared to have been opened and resealed.15 This
allegation is not supported with either facts or argument and is so unclear as to leave the reader
wondering what exactly is being alleged, who is accused of the wrongdoing, and the effect on
the election. Therefore, since this allegation is vague and unsubstantiated, it is rejected.
AFT also claims that the election was not conducted under "laboratory conditions"16
and that PERB's conduct had a probable
15Business reply blue envelopes were included in the ballot packet sent by PERB to eligible
voters. Voters were instructed to mark their ballots, enclose the ballot in the business reply
envelope, and print and sign their name across the envelope's back flap. AFT does not assert that
the signatures were compromised.
16Laboratory conditions is a standard established by the NLRB in General Shoe Corp. 77
NLRB 124, 21 LRRM 1337 (1948), enforced, 192 F2d 504, 29 LRRM 2112 (CA 6, 1951), cert.
denied, 343 US 904, 29 LRRM 2606 (1952) for judging conduct in a representation election. In its
decision, the Board stated
Conduct that creates an atmosphere which renders improbable a free
choice will sometimes warrant invalidating an election, even though
that conduct may not constitute an unfair labor practice...
In election proceedings, it is the Board's function to provide a
laboratory in which an experiment may be conducted, under
conditions as nearly ideal as possible, to determine the uninhibited
desires of the employees.

impact on the election results. As noted above, PERB has refused to be constrained to follow
NLRB per se rules in the area of election objections and has rejected rigid application of a
"laboratory conditions" test. (See e.g., Sierra Sands Unified School District (1993) PERB
Decision No. 977; Tamalpais Union High School District (1976) EERB Decision No. 1.)
PERB looks to the totality of circumstances and the cumulative effect of the conduct alleged.
Having considered all of the facts in this case, the only reasonable conclusion is that the
totality of circumstances surrounding the three ballot counts establishes that serious
irregularities occurred in the conduct of the election which had a probable or actual impact
upon the election results. Accordingly, the election results shall be set aside.
CONCLUSION AND ORDER
For the reasons discussed above, and based on the entire record in this case, the election
objections filed by the Poway Council of Classified Employees, CFT/AFT, AFL-CIO are
sufficient to warrant setting aside the election results and ordering a new election. Therefore,
the results of the decertification election tallied on June 26 and July 20 will not be certified,
and a re-

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run election is hereby ORDERED.17 The ballot choices shall be California School Employees
Association (CSEA) Poway Chapter 80, Poway Council of classified Employees, CFT/AFT,
AFL-CIO and No Representation.
The election objections concerning all other irregularities concerning the conduct of the
decertification election 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. (Cal. Code Regs., tit. 8, sec. 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:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95814-4174
FAX: (916) 327-7960
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the
17AFT requests that a runoff election be conducted between the two employee organizations.
A runoff election (where No Representation would be dropped as a ballot choice) is not appropriate,
however, because the election results are being voided.

carrier's receipt, not later than the last day set for filing. (Cal. Code Regs., tit. 8, sec. 32135(a);
see also Cal. Code Regs., tit. 8, sec. 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of Cal. Code Regs., tit. 8, sec. 32135(d), provided the
filing party also places the original, together with the required number of copies and proof of
service, in the U.S. mail. (Cal. Code. Regs., tit. 8, secs. 32135(b), (c) and (d); see also Cal.
Code Regs., tit. 8, secs. 32090 and 32130.)
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 San

Francisco 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
personally delivered or deposited in the first-class mail postage paid and properly addressed.
A document filed by facsimile transmission may be concurrently served via facsimile
transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, sec. 32135(c).)
Extension of Time
A request for an extension of time in which to file an appeal or opposition to an appeal
with the Board itself must be in writing and filed with the Board at the previously noted
address. A request for an extension must be filed at least three calendar days before the
expiration of the time required for filing the document. The request must indicate good cause
for and, if known, the position of each other party regarding the extension, and shall be
accompanied by proof of service of the request upon each party (California Code of
Regulations, title 8, section 32132).
Dated: _______________________ 	__________________________
Anita I. Martinez
Regional Director