State of California (Department of Personnel Administration) (Communication Workers of America, Psych Techs, Local 11555 and California Association of Psychiatric Technicians) (PERB A151S)

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STATE OF CALIFORNIA
~ DECISION. OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COMMUNICATIONS WORKERS OF AMERICA,
PSYCH TECHS, LOCAL 11555,

Employee Organization, Case No. S-D-87-S (S-SR-18)
and Administrative Appeal

CALIFORNIA ASSOCIATION OF PERB Order No. Ad-151-S

PSYCHIATRIC TECHNICIANS,
Employee Organization,
and

STATE OF CALIFORNIA (DEPARTMENT
OF PERSONNEL ADMINISTRATION),

)
)
)
)
)
)
)
) December 13, 1985
)
)
)
)
)
)
)
Employer.

Appearances: Law Offices of Ronald Rosenberg by Ronald
Rosenberg, and Kanter, Williams, Merin & Dickstein by Howard L.
Dickstein for Communications Workers of America, Psych Techs,
Local 11555; Loren E. McMaster for California Association of
Psychiatric Technicians; Lester R. Jones for State of California,
Department of Personnel Administration.

Before Hesse, Chairperson; Morgenstern and Porter, Members.
DECISION |
PORTER, Member: Communications Workers of America, Psych
Techs, Local 11555 (CWA), appeals a determination, attached to
this Decision, of the general counsel of the Public Employment
Relations Board (Board or PERB) to terminate the stay of the
election for decertification filed by the California Association

of Psychiatric Technicians (CAPT).1 cWA does not assert the

lat the time the election period was scheduled to commence
on June 17, 1985, there were five pending unfair practice charges

general 	counsel 	made 	inaccurate 	factual 	statements 	in 	his
letter 2 but, 	rather, 	alleges 	that 	his 	conclusions 	regarding 	the
impact 	of 	the 	allegations 	on 	voter 	free 	choice 	were 	erroneous.
The 	general 	counsel 	considered 	the 	allegations 	contained 	in
the 	two 	complaints 	currently pending 	against 	the 	employer, 	Case
Nos. 	S-CE-249-S 	and 	S-CE-261-S. 3 He 	determined 	that 	those
allegations, 	whether 	viewed 	individually 	or 	in 	totality, 	could
not 	be 	said 	to 	have 	so 	interfered 	with 	the 	election 	process 	as
to 	prevent 	employees 	from 	exercising 	free 	choice. 4
filed 	by 	CWA against 	the 	employer, 	State 	of 	California,
Department 	of 	Personnel 	Administration 	(DPA). · 	Since 	complaints
had 	not 	issued 	in 	all 	of 	the 	cases, 	and 	they 	were 	in 	varying
stages 	of 	investigation, 	the 	balloting-by-mail 	proceeded 	and 	the
returned 	ballots 	were 	impounded. 	Termination 	of 	the 	stay 	would
therefore 	result 	in 	the 	opening 	and 	tallying 	of 	the 	impounded
ballots 	rather 	than 	delaying 	the 	election 	itself.
2The 	factual 	statements 	were 	derived 	by 	general 	counsel
from 	a 	reading 	of 	the 	allegations 	in 	the 	charges 	and 	accompanying
declarations 	filed 	by 	CWA; 	the 	investigations 	that 	occurred 	by
the 	regional 	attorney 	in 	processing 	the 	charges; 	and 	by 	the
responses 	with 	attached 	declarations 	submitted 	by 	the 	parties 	to
the 	general 	counsel.
3 The 	other 	unfair 	practice 	charge 	cases 	pending 	at 	the
outset 	of 	the 	election 	period 	have 	either 	been 	dismissed, 	and
the 	dismissals 	not 	appealed, 	or 	deferred 	to 	arbitration.
4PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 	et 	seq.
Regulation 	32752 	provides, 	in 	relevant 	part:
The 	Board 	may 	stay 	an 	election 	pending 	the
resolution 	of 	an 	unfair 	practice 	charge
relating 	to 	the 	voting 	unit 	upon 	an
investigation 	and 	a 	finding 	that 	alleged
unlawful 	conduct 	would 	so 	affect 	the 	election
process 	as 	to 	prevent 	the 	employees 	from
exercising 	free 	choice.
2

DISCUSSION
PERB
	has
	previously held
	that
	the 	proper 	standard 	of
	review
of
	a
	Board
	agent's
	decision 	to 	dissolve
	a
	decertification
election
	block	
is	
whether
	the
	Board
	agent
	abused
	his/her
discretion.
	Jefferson
	School
	District
	(1980)
	PERB
	Order
	No.
Ad-82.
	The
	Board
	will
	generally 	defer 	to 	the
	conclusions
reached
	by
	its
	agent
	if
	it
	finds 	those 	conclusions 	supported
	by
facts
	developed
	during 	the
	course 	of
	a
	properly
	conducted
investigation.
	Pleasant
	Valley
	Elementary
	School
	District
	(1984)
PERB
	Decision
	No.
	380.
	The
	agent's
	order
	should
	be
	the
	result
of
	a
	sufficient
	investigation
	and
	analysis
	of 	ihe
	allegations
	of
the
	complaint
	and
	the
	potential
	impact
	on
	the
	employees
	in
	the
unit,
	and
	the
	agent's
	conclusions 	should
	be 	amply
	supported
	by
the 	record.
	Regents
	of 	the 	University 	of
	California
	(1984)
	PERB
Decision
	No.
	381-H.
Applying
	the
	above
	standard 	to
	the
	present 	case,
	we
	affirm
the 	general 	counsel's 	decision 	to 	dissolve
	the
	election 	stay.
Pursuant
	to his 	investigation,
	the 	general 	counsel
	sent
	a
	letter
on
	August 	6, 	1985
	to
	all
	the
	parties, 	inviting 	their 	written
responses
	on
	the 	issue 	of
	whether
	or 	not 	the
	election 	stay
	should
be
	continued 	in
	effect.
	He
	attached 	the
	two
	complaints
	to 	that
letter
	and-informed
	the 	parties
	of
	PERB's
	standard
	and
	precedents
that
	he 	would 	be
	applying 	in
	making
	the 	determination. 	Following
the 	responses 	submitted
	by
	the
	parties,
	the 	general 	counsel
prepared
	a
	thorough 	and
	detailed 	analysis 	of 	the 	allegations 	of
the 	complaint, 	the 	background 	information,
	and 	the 	impact 	on 	the
3

employee.s
	in 	the
	unit
	of 	the
	employer
I s
	alleged
	misconduct.
	His
conclusions
	are
	supported
	by
	the 	record.
	Therefore,
	we
	decline
to
	set
	aside
	the 	general
	counsel's
	determination,
	and
	hereby
adopt
	it
	as
	the
	decision 	of 	the
	Board
	itself.
We
	next
	turn
	to 	the
	additional 	allegations
	of
	Case
	No.
S-CE-261-S
	as
	determined
	by
	this
	Board
	in 	State
	of
	California
(Departments
	of
	Personnel 	Administration
	et
	al.)
	(1985)
	PERB
Decision
	No.
	542-s
5	
to
	decide
	whether
	those
	additional
allegations, 	either
	individually
	or
	when
	viewed
	with
	the
	existing
allegations,
	compel
	a
	different
	conclusion
	as
	to 	the 	termination
of 	the
	stay.
	For
	the
	reasons
	discussed
	below,	
we	
again 	conclude
the
	stay
	should
	be
	terminated
	and
	the
	ballots
	tallied.
Swe
	take
	official
	notice
	of
	PERE
	Decision
	No.
	542-S
	issued
this
	same
	day.
	That
	decision
	is
	relevant 	to
	the 	issue 	before
	us
in
	this
	case
	in 	that
	it
	involves	
CWA's	
appeal 	of
	a
	partial
dismissal 	of
	one
	of 	the
	complaints
	(S-CE-261-S)
	considered
	by
the 	general
	counsel
	in 	his 	termination 	of 	the
	stay.
	In
	PERB
Decision
	No.
	542-S,
	we
	have
	reversed 	the
	partial
	dismissal
	and
ordered
	that
	the
	dismissed
	portions 	of 	the 	charge
	be
	consolidatedwith 	the 	complaint.
	The
	portions
	of 	the
	complaint
	which
	had 	been
dismissed 	include 	various
	allegations
	CWA
	claims 	support
	its
charge
	that,
	under
	the
	totality
	of 	the 	circumstances,
	DPA
	failedto 	maintain
	strict
	neutrality
	during 	the
	election
	and
	therefore
violated
	the
	State
	Employer-Employee
	Relations
	Act 	(GovernmentCode
	section
	3512
	et 	seq.).
It
	should
	be
	noted
	that
	the 	general 	counsel
	was
	limited 	to
considering 	the
	allegations
	contained 	in
	complaints
	which 	had
issued 	at
	the 	time 	of 	his 	decision.
	Thus, 	he 	did 	not 	have
	the
opportunity 	to 	consider 	the 	additional 	allegations
	which
	will
become
	a
	part 	of 	the 	complaint 	as
	a
	result
	of
	PERB
	Decision
No.
	542-S. 	Since
	this 	decision 	involves
	an
	election
	and
	a
question 	concerning 	representation,
	it
	should 	be
	decided
expeditiously; 	thus, 	rather 	than 	remanding
	the 	case 	to 	generalcounsel 	for 	further 	consideration, 	the
	Board
	will 	decide 	bothwhether 	to
	uphold 	or 	reverse 	the 	general 	counsel's 	decision 	to
terminate 	the 	stay,
	and 	whether 	the 	additional 	allegations 	of
the 	complaint 	compel 	a
	different 	conclusion 	on
	the 	blocking
charge. 
4

The 	additional 	allegations 	involve 	the 	alleged 	posting 	on
employee 	bulletin 	boards 	of 	various 	management 	memoranda, 	as
well 	as 	the 	filing 	and 	subsequent 	withdrawal 	by 	the 	State 	of 	a
unit 	modification 	petition 	affecting 	a 	portion 	of 	the 	unit
represented 	by 	CWA. 	The 	posting 	allegations 	are 	similar 	to
those 	contained 	in 	the 	complaint 	in 	Case 	No. 	S-CE-261-S, 	and
assert 	that 	management 	correspondence 	relating 	to 	CAPT 	was
posted 	on 	employee 	bulletin 	boards 	at 	Napa, 	Sonoma, 	Porterville
and 	Lanterman 	State 	Hospitals.
Of 	the 	additional 	allegations 	which 	will 	now 	be 	included 	in
the 	complaint 	(PERB 	Decision 	No. 	542-S, 	supra), 	all 	but 	one
involve 	various 	management 	actions 	and 	memoranda, 	neutral 	on
their 	face 	but 	claimed 	by 	CWA to 	have 	unlawfully 	created 	support
for 	CAPT by 	creating 	confusion 	in 	the 	minds 	of 	employees 	through
use 	of 	terminology 	normally 	used 	in 	conjunction 	with 	the
exclusive 	representative. 	In 	addition, 	CWA alleges 	that 	these
documents 	were 	not 	the 	type 	of 	documents 	normally 	posted 	by
management 	and 	were 	posted 	on 	bulletin 	boards 	not 	normally 	used
for 	the 	posting 	of 	management 	memoranda. 	These 	factors 	form 	the
basis 	for 	CWA's 	assertion 	that 	DPA gave 	CAPT 	free 	publicity 	and
generated 	the 	impression 	that 	CAPT had 	an 	"inside 	track" 	with
the 	employer.
In 	keeping 	with 	the 	general 	counsel's 	analysis 	of 	the
similar 	allegations, 	we 	find 	that, 	while 	these 	allegations 	tend
to 	establish 	a 	prima 	facie 	case 	of 	assistance 	or 	employer
preference, 	they 	do 	not 	support 	CWA's 	blocking 	charge 	at 	issue
5

here. 	Given 	the 	facial 	neutrality 	of 	the 	memos, 	combined 	with
the 	fact 	of 	limited 	posting 	(four 	out 	of 	eleven 	hospitals) 	as
well 	as 	the 	brief 	period 	of 	time 	in 	which 	the 	memos 	were 	posted,
varying 	from 	two 	weeks 	to 	one 	and 	one-half 	months 	prior 	to 	the
voting, 	we 	conclude 	that 	the 	allegations 	considered 	in 	PERB
Decision 	No. 	542-S, 	individually 	or 	when 	combined 	with 	the
allegations 	of 	the 	two 	complaints, 	should 	not 	result 	in 	a
continued 	stay 	of 	the 	election 	process. 	The 	allegations 	simply
are 	not,· on 	their 	face, 	the 	type 	of 	conduct 	which 	''would 	so
affect 	the 	election 	process 	as 	to prevent 	the 	employees 	from
exercising 	free 	choice."
The 	analysis 	of 	the 	remaining 	allegation 	is 	somewhat
different. 	Here, 	CWA asserts 	that 	the 	filing 	and 	withdrawal 	of
the 	unit 	modification 	petition 	created 	a 	divisive 	issue, 	due 	to
the 	employer's 	alleged 	campaign 	to 	convince 	the 	senior
psychiatric 	technicians 	they 	would 	receive 	higher 	wages 	only 	if
they 	were 	not 	part 	of 	the 	unit. 	According 	to 	CWA, 	the 	employer
filed 	the 	petition 	knowing 	CWA opposed 	the 	unit 	modification 	and
knowing 	also 	that 	CWA would 	be 	forced 	to 	take 	an 	open 	stand
against 	it, 	ostensibly 	alienating 	the 	senior 	psychiatric
technicians. 	Then, 	in 	the 	middle 	of 	the 	voting 	period 	after
most 	of 	the 	ballots 	had 	been 	returned, 	DPA 	suddenly 	and
inexplicably 	withdrew 	its 	petition.
We 	find 	that, 	while 	this 	allegation 	regarding 	the 	unit
modification 	might 	well 	involve 	every 	hospital 	at 	which 	senior
psychiatric 	technicians 	are 	employed, 	we 	cannot 	conclude 	that,
on 	its 	face, 	the 	mere 	filing 	and 	withdrawal 	of 	a 	unit
6

modification
	petition
	so
	affected
	the
	election
	process
	as
	to
prevent
	the
	employees
	from
	exercising
	free 	choice.
	This
	is
particularly
	true 	in
	the
	absence
	of
	any
	specific 	allegations
that 	significant
	numbers
	of
	senior
	psychiatric
	technicians
	were
aware
	of
	or 	influenced
	by
	the
	filing
	of
	the
	unit
	modification
petition
	or
	CWA's
	response
	to
	that
	filing.
Further,
	and
	more
	significantly,
	we
	note
	that
	the
	unit
modification
	allegation
	was
	not
	raised
	by
	CWA
	until
	July
	3.
This
	was
	two
	weeks
	into
	the 	voting 	process
	and,
	according
	to
CWA,
	most
	of 	the
	ballots
	had
	already
	been
	returned 	to
	PERB.
Therefore,
	this
	allegation 	is
	more
	appropriately 	raised
	and
addressed
	as 	an
	election 	objection.	
As	
noted
	by 	former 	Board
Member 	Raymond
	J.
	Gonzales,
	in
	his
	concurring 	opinion 	in
Folsom-Cordova
	Unified
	School
	District
	(1978)
	PERB
	Order
	No.
Ad-45,
	the
	election 	objection
	process
	is
	the
	more
	appropriate
vehicle
	for
	consideration
	of
	allegations
	of
	interference
	with
employee
	free 	choice,
	rather
	than
	an
	appeal
	of 	the 	general
counsel's 	decision. 	Additionally, 	the 	objection 	process
provides 	for 	the
	possibility
	of
	a
	hearing,
	which
	could 	then
	be
consolidated 	with 	the 	unfair 	practice
	procedures
	to
	save
	the
parties
	and
	the
	agency 	time 	and 	expense.
ORDER
Based 	on
	the 	foregoing, 	the
	Board
	ORDERS
	the 	stay 	of 	the
election
	be
	terminated
	and
	ballots
	counted.
Chairperson 	Hesse 	and 	Member
	Morgenstern 	joined 	in 	this 	Decision.
7

STATE
OF
CALIFORNiA
PUBLIC 	EMPLOYMENT 	RELATlONS 	BOARD
HEAOOUA8TERS
OFFICE
1031
18TH
STREET
SACRAMENTO,
CALIFOflNIA 	95814
(916\ :l22·3088
Au
gu
s t
	ls
,	
19
6 5
Loren
	McMaster, 	Esq.
California
	Association
	of
	Psychiatric
	Technicians
900
	G
	Street,
	Suite
	2
Sacramento,
	CA
	95814
Howard
	Dickstein,
	Esq.
Communications
	Workers
	of
	America
1014
	9th
	Street
Sacramento,
	CA
	95814
Ronald
	Rosenberg,
	Esq.Law	
Offices
	of
	Ronald
	Rosenberg1730
	K
	Street,
	N.
	W.,
	Suite
	1004
Washington
	D.
	C.,
	20006	
•
Christopher
	Waddell,
	Esq.
Depaxtment 	of
	Personnel 	Administration
1115
	11th
	Street
Sacramento.
	CA
	95814
G!:ORGE
OEUKMEJIAN,
Gc,,,..mor
Re:
	Administrative 	Determination
	Regarding 	Unit
	18
	Election
	Stay;
Case
	No.
	S-D-87-S 	(S-SR-18)
Dear
	Parties:
INTRODUCTION
This
	is
	the 	administrative 	determination
	of
	an
	el~cti6n 	stay
	request
made	
by	
the
	Communication 	Workers
	of 	America,
	AFL-CIO 	(CWA)
	in
	the
pending
	state
	Unit
	18
	decertification
	case
	(Case.
No.
	S-D-87-S).
	The
determination
	begins 	with
	a
	description
	of 	the
	unfair 	practice
complaint
	allegations
	upon
	which
	the 	stay 	request 	is
	based. 	This
	is
followed
	oy
	a
	description
	of 	the 	process 	to
	be
	followed
	in 	evaluating
stay 	requests, 	application
	of 	the 	process 	to 	the 	unfair 	practice
allegations,
	and
	the
	resultant 	conclusion 	that
	the
	election 	stay
should
	be
	terminated
	and 	the
	ballots
	counted.

CAPT,	
CWA,	
DPA
Au
gu
s t 	l 5 • 	l 9 8 S
Page
	2
COMPLAINT 	ALLEGATIONS
1.
	Case
	No.
	S-CE-249-S.
This 	complaint
	alleges 	that
	the
	Department
	of 	Developmental
	Services,
a
	component
	of
	the
	state
	employer,
	established
	an
	Employee
	Safety
	Task
Force
	(ESTF)
	at
	Napa
	State
	Hospital
	on
	or
	about
	November
	13,
	1984.
The 	ESTF
	included
	employees
	within
	its
	membership
	~nd
	~dealt"
	with 	the
employer
	by
	making
	safety-related
	suggestions,
	some
	of
	which 	were
implemented
	by
	the
	employer.
	The
	employer's
	conduct
	was 	deemed
	to
	be
pr-ima
	facie
	violative
	of
	Government
	Code
	sections
	3519(a),
	(b), 	(c),
and
	(d)
	for 	the 	following 	reasons.
	The
	ESTF
	may
	be 	an
	"employee
organization" 	since
	it
	includes
	employees
	of
	the
	state
	and
	has	
as	
a
central
	purpose,
	dealing
	with
	the
	state
	employer
	on
	employee
safety-related
	matters
	which
	are 	within 	the
	scope
	of
	representation.
The
	state
	employer
	initiated
	the
	ESTF,
	exercising 	control
	over 	the
composition 	of 	the
	ESTF
	and
	other
	essential
	features
	of
	its
	operation
and
	then,
	without
	affording
	CWA
	an
	opportunity
	to
	negotiate.
implemented
	various
	ESTF
	proposals.
	The
	ESTF
	was
	formed
	to
	explore
ways
	of
	minimizing
	employee
	injuries
	and
	deaths
	due
	to
	patientviolence.
	Unit
	18
	employees 	were
	not 	the 	only
	ones
	at 	risk.
	In
	fact.
among
	other
	groups,
	six
	employee
	organizations 	representing
	employees
at	
Napa	
State 	Hospital
	were
	asked 	to
	nominate
	persons
	for	
ESTF
membership.
	Most.
complied.
2.
	Case
	No.
	S-CE-261-S.
This 	19-paragraph 	complaint
	contains
	allegations 	relating
	to	
a	
variety
of
	violative
	employer
	attivity.
	The
	first
	three 	allegations
(paragraphs
	4
	through
	9)
	allege
	conduct 	during 	the
	campaign
	period
which	
may	
constitute
	unlawful
	unilateral
	changes
	and
	assistance
	to
CAPT.
	One
	such
	act
	was
	imposition	
by	
the
	employer 	of
	the 	requirement
that
	non-employee
	CWA
	representatives
	seeking
	work
	area 	access 	give
24-hour
	advance
	notice 	plus 	the
	names
	of 	the
	employees
	to
	be
	contacted
and	
a	
summary
	of 	the
	proposed
	discussion.
	This 	occurred
	at
	Napa
	State
Hospital.
	Formerly, 	under 	the
	MOU,
	a
	non-employee
	representative	
was
required
	only 	to
	identify 	himself/herself
	to 	the
	facility
	labor
relations
	coordinator
	who 	made
	necessary 	arrangements 	for 	access
	to
employees.
	Additionally,
	CWA
	telephone 	access
	was
	changed
	at
	Patton
State 	Hospital
	on
	or 	about 	June 	20, 	1985. 	Before
	that 	date
	CWA
	had
been 	allowed 	to
	make
	calls
	from
	the
	employee
	organization
	room
	to
points 	outside 	the 	hospital 	without 	charge. 	Thereafter,
	CWA
	was
denied 	telephone 	use 	for
	a
	period
	and
	then 	allowed 	use 	on
	the
condition 	that 	all 	calls
	to 	points 	outside 	the 	hospital
	be
	billed 	to
CWA.
	Also
	at 	Patton 	State 	Hospital,
	on 	and
	after
	about
	May
	22.
	_1985,
the
	state
	employer, 	in 	contravention 	of 	past 	practice
	and 	terms 	of
	the
MOU,
	refused
	t.o
	permit 	leafletting 	at 	the 	speed
	bumps 	on
	Patton
	Avenue
by	
CWA
	representatives.
	The
	leafletting 	incident 	occurred 	at 	Patton
only.

CAPT,	
C~vA. 	DPA
.ll.ugust	
15,
	1985
Page
	3
The
	remaining
	allegations
	of
	the
	complaint 	concern
	employer
	conduct
which
	may
	h~ve
	encouraged
	unit
	employees
	to 	support
	CAPT
	rather
	than
CWA.
	(Paragraphs
	12
	through
	16.)
	Two
	of
	these
	allegations
	invol..ve
the
	providing
	of
	services
	to
	CAPT
	which 	were
	not 	provided
	to
	CWA.
	The
employer 	caused
	CAPT
	campaign
	literature
	to
	be
	delivered
	to
	Sonoma
State
	Hospital
	work
	stations
	on
	at 	least
	one
	occasion.
	and
	twice
	CAPT
was
	allowed
	tc
	use
	the
	Executive
	Conference
	Room
	at
	Stock.ton
	StateHospital 	for
	meetings
	with
	Psychiatric
	Technicians.
	On
	the
	same
	date
one
	of
	those
	meetings
	occurred,
	an
	employer 	Program
	Director 	told
	a
CWA
	representative,
	in
	the 	presence 	of
	other
	Psychiatric
	Technicians,
that
	he
	hoped
	CAPT
	"beat
	the
	hell"
	out
	of
	CWA.
Employer
	posting
	of
	letters
	and
	memos
	relating
	to
	CAPT's
	s~atus
	on
various
	employee
	organization
	and
	unit 	bulletin
	boards
	is
	also
	alleged
as
	unlawful
	assistance
	to
	CAPT.
	In
	one
	instance,
	an 	employee
representative 	at
	Metropolitan
	State
	Hospital
	posted	
a	
memo
	which
purported
	to
	.remove
	one
	CWA
	job 	steward
	and
	identified
	seven
	employees
as
	CAPT
	job
	stewards.
	In
	another
	instance,
	a
	letter
	written
	by 	a	
DPA
official
	to	
a	
CAPT
	consultant
	was
	posted
	on
	employee
	organization
	and
other
	bulletin
	boards 	thr~ughout 	the
	state
	hospital
	system.
	The
letter
	was
	accompanied 	by	
a
	cover
	memorandum
	from
	a
	Department 	of
Developmental
	Services
	Labor
	Relations
	Spec
	list
	to
	all
	hospitallabor
	relations
	coordinators.
	The
	letter,
	ostensibly 	sent 	in 	response
to
	a
	letter
	from
	the
	CAPT
	consultant
	seeking 	access 	information,
states
	that
	DPA
	has 	''recognizedN
	CAPT
	as
	an 	employee
	organization.
CAPT
	is
	then 	described
	as
	an
	''independent
	employee
	organizationincorporated
	by
	the
	State
	of
	California
	and 	formed
	to
	represent
	the
interests
	of
	Psychiatric
	Technicians
	and
	related
	classifications
	in
all
	matters
	relating
	to
	negotiations
	of
	wages,
	hours.
	and
	all
	other
ter-:ns
	and
	conditions
	of 	employment." 	Next,
	the
	names
	and
	addresses
	of
CAPT
	officers
	are
	listed.
	Thereafter
	access
	is
	discussed.
	The
	cover
memo
	points
	out 	again
	that
	DPA
	has 	''recognized~
	CAPT
	as 	an 	employee
organization
	under
	SEERA
	and
	purports
	to
	state
	the 	purposes 	for
	which
CAPT
	was 	formed
	before 	advising 	the 	coordinators
	a~
	to 	the 	access
	CAPT
should
	be
	granted.
These 	documents 	were
	posted
	on
	bulletin
	boards
	on
	or 	about
	March 	S,
1985,
	well 	before
	CAPT 	ha.d
	filed
	a
	decertification 	petition
	(March
	28,
1985) 	or 	been 	determined
	by 	?ERB
	to
	be 	an 	"employee
	organization" 	with
standing 	to
	file
	a
	decertification 	petition.
	(April
	26,
	1985).
ADMINISTRATIVE 	PROCESS
The
	object
	of 	the 	administrative 	investigation
	conducted 	and
	thisdetermination 	is 	to 	apply
	PERB's
	Stay 	of 	Election 	provision
	(Board
Regulation
	32752; 	to 	the 	facts 	of
	this 	case 	in 	accordance 	with
	PERB
and
	other 	appropriate 	precedent.

CAPT,
	CWA,
	DPA
August
	15,
	1985
Page	
4
Board
	Regulation
	32752
3	
asserts
	the
	Board
1 s
	discretion
	to
	stay
	an
election
	uupon
	an
	investigation
	and
	a
	finding
	that
	alleged
	unlawful
conduct
	would
	so
	affect
	the
	election
	process
	as 	to
	prevent 	the
em-ployees
	from
	exercising 	free 	choice."
In 	an
	early
	"blocking
	charge"
	decision,
	issued 	before 	Regulation
	32752
was
	adopted. 	the
	Board
	made
	clear 	that
	each
	stay 	request
	is
	to
	be
investigated
	and
	evaluated
	on
	its
	merits
	rather
	than 	being 	disposed
	of
by	
rote
	application
	of
	a
	blocking 	charge
	rule. 	Jefferson
	School
District
	(1979)
	PERB
	Decision
	No.
	Ad-66.
	Recent
	additional
	guidance
to
	Board
	agents 	proceeding
	under
	Regulation
	32752
	was
	provided
	by
	the
Board
	in
	Pleasant
	Vallev 	Elelementary
	School
	District
	(1984)
	PERB
Decision
	No.
	380.
	At
	page
	S
	of
	that 	decision
	the
	Board
	states
	that,
Hthe
	Board 	Agent
1 s
	obligation
	is
	to
	determine 	whether
	the
	facts
alleged 	in
	the
	unfair 	practice
	complaint.
	if
	true,
	would 	be
	likely
	to
affect
	the
	vb~e
	of
	the
	employees, 	and,
	thus,
	the
	outcome
	of
	the
election."
	(
	See
	also
	Grenada
	Elementary 	School
	District
	(1984)
	PERB
Decision
	No.
	387, 	page
	14.)
	Hence,
	the
	truth
	of
	all
	relevant
	charging
allegations
	has 	been
	assumed
	in
	this
	determinati-0n. 	Regents 	of 	the
University
	of
	California
	(1984)
	PERE
	Decision
	Na.
	381-H
was
	the
	next
case 	decided
	by
	the
	Beard
	after
	Pleasant
	Valley
	ESD,
	suora.
	In
Regents,
	consistent
	r;;ith
	the
	rule
	defined 	in 	Pleasant Valley 	the
	Board
held
	that
	the
	Regional
	Director 	acted
	correctly
	in 	analyzing,
	"whethe
[the
	conduct
	alleged 	in 	the 	complaint]
	is
	of 	such
	character
	and
seriousness
	that,
	if
	it
	were 	proven
	to
	have
	occurred~
	it
	would
	be
reasonable
	to
	infer 	that
	it
	would
	contribute
	to
	employee
dissatisfaction
	and
	hence
	prevent
	a
	fair
	election."
	(Page
	6.)
Moreover, 	complaint
	allegations 	are
	not 	evaluated
	separately
	and
·
without 	regard 	to 	the
	factual 	contexts 	in
	which
	they
	arose. 	Instead,
3
The
	regulation 	in
	its
	entirety
	reads 	as
	follows:
Stay 	of
	Election.
	The
	Board	
may	
stay
an
	election
	pending 	the
	resolution
	ofan
	unfair 	practice
	charge
	relating
	to
the 	voting 	unit
	upon 	an
	investigation
and
	a
	finding 	that 	alleged 	unlawful
conduct 	would 	so
	affect
	the
	electionprocess 	as 	to 	prevent 	the
	employeesfrom
	exercising 	free 	choice.
	Any
determination
	made	
by 	the
	Board
pursuant 	to 	this 	Section
	may
	be
appealed 	to 	the 	Board
	itself
	inaccordance 	with 	the 	provisions 	of
Division 	1, 	C~apter 	4,
	Article
	2
	of
these 	regulations.

CAP.T,	
CWA,
	DPA
August
	15,
	198S
Page	
5
the
	totality
	of
	these 	circumstances
	is
	weighed.
	See
	Grenada
Elementary
	School
	Disttict,
	supra;
	Antelope
	Valley
	Community
	College
Disti:ict
	(1979)
	PERE
	Decision
	No.
	97;
	Clovis 	Unified
	School
	District
(1984)
	PERB
	Decision
	No.
	389.
The
	Board
1 s
	decisions 	in
	Santa
	Monica
	Community
	College
	District
(1979)
	PERB
	Decision
	No. 	103
	and
	Sacramento
	City
	Unified
	School
District
	(1882)
	PERE
	Decision
	No.
	214
	{cited
	by
	CWA)
	establish
	"the
simple
	threshold
	test"
	for
	determining
	if
	a
	violation
	of
	subsection
3519(d)
	has 	been 	committed. 	That
	test
	requires
	strict
	employer
neutrality,
	and
	it
	was
	applied
	when
	evaluating
	CWAis
	charges
	for
purposes
	of
	complaint
	issuance. 	Neither
	of
	those 	cases
	involved
	an
election
	stay 	request.
In
	applying 	these
	rules
	it
	is
	incumbent
	upon
	the
	investigating
	Board
agent 	to 	consider 	the
	views
	of
	all
	interested 	parties.
	Regents
	of
	the
Universitv
	of
	California,
	suor~.
	To
	this
	end,
	both
	complaints
	at
issue
	were
	served
	on
	the
	Department
	of 	Personnel
	Administration
	(DPA),
the
	representative
	of
	the
	state
	employer,
	CAPT
	and
	CWA.
	DPA
	and
	CWA
submitted
	written
	responses
	which 	have 	been
	considered
	in
	arriving 	at
this
	determination.
DISCUSSION
The
	complaint
	allegations
	are
	first
	discussed
	separately
	and
	thenweighed
	together
	as
	a
	totality
	of
	circumstances.
1. 	Case
	No.
	S-CE-249-S
This 	complaint
	alleges
	misconduct 	of
	a
	character 	that
	has 	been 	termed
serious
	by
	the
	Board
	in 	other 	cases,
	e.g.,
	Antelope
	Valley
	CCD,
	supra,
and
	Sacramento
	City
	USD,
	suora.
	Both 	of
	those 	cases 	involved
formation 	of
	an 	employer 	dominated
	organization
	which
	then 	proceed
to 	deal
	with 	apparent 	effectiveness
	with 	the 	employer.
	However,
	the
units 	in 	those 	cases
	were
	much
	smaller
	and 	more
	compact
	than 	7,500
plus
	member
	Unit 	18, 	which
	is
	spread 	over
	11
	hospitals
	throughout 	the
state.
	In 	each 	of 	those 	cases
	it
	was
	clear 	that
	the
	employer
	had
	used
the
	dominated 	organizati-0n 	to
	successfully
	demonstrate 	to
	all
	unit
employees
	that 	supporting 	another
	employee
	organization
	was
	to
	their
disadvantage.
	The
	extent
	of 	impact
	on
	voter 	free 	choice
	is
	not 	as
clear 	in
	Case
	No.
	S-CE-349-S.
	First,
	the
	ESTF
	functioned 	only
	at
	Napa
State 	Hospital
	where
	approximately 	1,100 	Unit
	18
	employees 	work.
Second,
	CWA
	was
	not 	held
	up
	to 	the
	same
	stark. 	invidious 	comparison 	as
the 	complaining 	employee
	organization 	in 	Antelope 	Valley
	CCD,
	supra,
and 	Sacramento 	Citv
	USD,
	suora. 	All 	of 	the 	exclusive 	representatives
at
	Napa
	State 	Hospital 	were
	treated 	identically.
	Each 	was
	offeied 	the
opportunity 	to 	nominate
	two 	members, 	one 	of 	which 	would 	be
	selected	
by
the 	employer. 	This 	tends 	to 	reduce 	the 	likelihood 	that 	Unit
	18

CAPT.
	CWA.
	DPA
August 	15,
	1985
Page	
6
members 	would
	have
	perceived	
CWA	
as
	particularly 	ineffectual
	and',
therefore,
	no
	longer
	worthy
	of
	employee
	support.
	simply 	because
	the
employer
	organized 	the 	task 	force
	and
	accepted
	some
	of
	its
suggestions.
Third, 	the
	task
	force
	was
	formed
	in 	the
	wake
	of
	a
	rash
	of
	deaths
	and
serious
	injuries
	to
	hospital
	employees.
	Since 	the
	problem
	involved	
a
wide
	range
	of
	employees
	not
	represented
	by
	CWA
	and
	was
	formed
	in
November
	1984
	before
	C.~PT
	began
	organizing,
	it
	is
	doubtful
	that
	Unit
18
	employees
	perceived 	the
	task 	force
	as
	an 	employer
	comment 	on
	the
relative
	merits
	of
	CWA
	versus
	CAPT
	representation.
	The
	fact 	that
there
	is
	no
	connection
	between
	the
	task 	force
	and.
CAPT
	reduces 	the
weight
	this
	complaint 	should
	be
	accorded
	in
	the
	totality
	of
circumstance,
	but
	does
	not,
	as	
DPA	
seems
	to 	argue
	remove
	it
	from
consideratio,n.
	Any
	usurpation
	of
	an
	exclusive
	representative'sstatutocy
	pr'eogatives
	by
	an 	employer
	may
	have
	some
	election
	impact.
However,
	considering 	the 	nature
	of
	the
	employe~
1 s
	actions
	and
	the
context 	in
	which
	they 	occurred,
	I
	accord
	them
	far 	less
	weight 	than
	CWA
argues
	they
	are
	due.
2.
	Case
	No.
	S-CE-261-S
Paragraphs	
3	
and
	4
	allege
	a
	change
	in
	the
	notification
	to
	management
requirement
	that
	a
	non-employee
	representative
	of
	CWA
	had
	to
	meet
	to
gain 	access 	to
	employees
	in
	work
	units.
	The
	evidence
	submittsd 	in
support. 	of
	this
	charge	
by	
CWA
	was
	limited
	to
	Napa
	State 	Hospital.
	DPA
argues
	that
	the
	charge
	referred
	only 	to
	a
	change
	at
	Napa
	and
	that
	the
Memorandum
	of
	Understanding
	(MOU)
	access 	provision
	which
	CWA
	claims
.
~as 	changed
	(Article
	XII, 	Section 	I)
	applies
	only 	to 	access
	for
representational
	purposes, 	not
	organizational
	purposes. 	According 	to
this
	argument, 	the
	MOU
	was
	not
	violated. 	instead,
	a
	reasonable
	measure
was
	imposed
	to
	deny
	CWA
	an
	unfair
	organizing
	advantage
	via
	use
	of
representational
	access
	contract 	rights 	for 	organizational
	purposes.
No
	evidence
	was
	developed 	during 	the 	charge
	investigation
	to
	indicate
that
	''the
	24-hour 	rulett
	substantially
	undermined
	CWA's.ability 	to
contact
	employees
	for 	organizational
	purposes 	or
	that
	CWA's
representational 	duties
	were
	interfered
	with. 	Declarations 	submitted
by	
CWA
	in 	the
	election 	stay 	investigation 	suggest 	that 	the
	state
employer
	may
	have 	allowed
	more 	work
	time
	discussion
	between
	CAPT
organizers
	who
	were 	employees 	of 	the
	state
	and
	other
	employees 	than
CWA
	organizer-employees
	were
	allowed. 	These
	declarations 	relate
	to
	a
subject
	beyond
	the 	scope 	of 	the 	charge
	allegation 	(the 	charge 	alleges
a
	unilateral
	change
	regarding
	non-'employee
	CWA
	representative
access). 	Further,
	most 	of 	them
	are
	so
	general 	that 	they 	deserve
little
	evidentiary weight. 	Considered 	in 	context,
	I
	see
	this
complaint 	allegation
	as 	having
	slight
	impact 	on
	voter 	exercise
	of
	free
choice.

CAPT,	
CWA,	
DPA
Au
gu s t 	l S , 	19 8 S
Page	
7
The
	telephone 	access
	and
	leafletting
	changes
	at
	Patton
	also
	seem
	to
pose
	slight
	likelihood
	of
	voter 	free
	choice
	interference.
	The
	changes
in
	CWA
	access 	to 	the
	employee
	organization
	room
	telephone
	concerned
calls
	from
	the
	hospital
	to
	points 	outside
	only.
	This 	did 	not
	prevent
CWA
	from
	calling
	employees
	at
	the
	hospital.
	Nor,
	but
	for
	a
	period
	of
six
	days,
	was
	CWA
	prevented
	from 	making
	calls
	to
	points 	outside
	the
hospital,
	so
	long
	as
	they 	paid 	for 	the
	calls.
	This
	is
	not	
a
unilateral
	change. 	such 	as
	a 	wage
	increase
	or
	decrease,
	raising,
	in	
a
high
	pcofife
	manner,
	a
	estion
	of
	CWA
1 s
	effectiveness
	as
	an
	exclusive
representative.
	The
	change
	was
	not
	likely
	to
	come
	to
	the
	attention
	of
unit
	employees
	since
	they
	were
	not
	the
	ones
	making
	the
	calls.
The
	leafletting
	change 	whereby
	the
	employer
	prevented
	CWA
representatives
	from
	distributing 	leaflets
	at
	the
	uspeed
	bumpsu 	on
Patton
	Ave.
	is 	similar.
	It
	ran 	only 	to
	Qllg_means
	of
	attempting 	to
communicate
	with 	Patton 	Hospital
	employees.
	and 	was
	felt
	directly
	only
by
	those
	seeking 	to
	leaflet.
	The
	investigation
	did 	not
	reveal 	that
CWA
	was
	deprived
	in
	any
	substantial
	way
	of 	access 	to
	employees
	for
organizatio~
	purposes, 	or
	that
	CAPT
	was
	accorded
	preferred
	treatment
in
	this
	regard.
	Hence,
	while
	these
	employer
	actions 	constituted
	prima
facie 	violations
	under
	the
	section
	3519(d)
	threshold
	test,
	they
register
	low 	on
	the
	election
	impact
	scale.
The
	next
	allegation 	in
	the 	complaint 	(paragraph
	12)
	alleges 	that
	a
state
	employer
	Personnel 	Officer/LaboI 	Relations 	Coordinator
	caused
	a
memorandum
	to
	be
	posted
	on
	various
	employee
	organization
	and
	unit
bulletin
	boards
	at
	Metropolitan
	State 	Hospital.
	The 	memorandum
addressed 	to
	all
	managers
	and
	supervisors 	purported
	to
	remove 	one
	CWA
job 	steward
	and
	identified
	seven
	employees 	as 	job
	stewards
	for
	CAPT.
CWA
1 s
	submission
	indicates 	that
	the
	memorandum 	was
	posted
	at 	several
locations 	within 	the
	hospital.
	DPA
	states 	that
	it
	was
	posted
	by
mistake
	and 	removed
	as 	soon 	as
	DPA
	was
	advised.
	According 	to
	DPA.
	a
memorandum 	was
	sent
	to
	supervisors
	and
	managers
	po;nting 	out
	that
	the
posted
	memorandum 	was
	in 	error
	and
	telling
	them
	to 	ignore
	it.
	This
retracting
	memorandum,
	though.
	was
	not 	posted. 	Since 	only
	an
exclusive 	representative
	can
	appoint 	job 	stewards 	to 	represent 	unit
employees
	in 	grievance 	matters, 	the 	posted
	memorandum
	undoubtedly
generated
	some 	employee
	confusion
	at 	Metropolitan.
	On
	the 	other
	hand.
the
	employer 	did 	take 	action 	to 	clear
	up
	the 	confusion
	and 	no
	evidence
was
	revealed 	in
	the 	charge 	or
	stay
	of
	election 	investigations
	of 	the
employer
	treating
	with
	"CAPT
	job 	stewards"
	at 	Metropolitan 	or
else~here. 	Giving
	unit
	employees 	reasonable 	credit 	for 	being 	able 	to
assess 	the
	situation,
	it
	is 	unlikely 	that
	many 	were
	misl 	for
	any
length
	of 	time 	into 	believing 	that
	CAPT
	has
	attained 	exclusive
representative 	standi
	, 	CWA's
	declarations 	notwithstanding.
	Employee
declarations 	as 	to 	the 	impact 	of 	alleged 	employer 	misconduct 	may 	have
some
	evidentiary 	value, 	but 	they 	are 	not 	determinative 	in 	assessing
impact. 	That 	may 	be 	i 	erred 	from 	the 	seriousness 	and
	character 	of
·

CAPT,
	CWA,	
DPA
Au
gu
s t 	l S , 	1 9 8 5
Page	
8
the
	alleged
	misconduct.
	See 	San
	Ramon
	Valley 	Unified
	School
	Dis~rict
(1979)
	PERB
	Decision
	No.
	111; 	see
	also
	Carian	
v.	
Agricultural
	Labor
Relations
	Board
	(1984)
	36
	Cal.
	3d
	654,
	661
	and
	G.
	H.
	Hess,
	Inc.
	-tl949)
82
	NLRB
	No. 	52
	[23
	LRRM
	1581].
Paragraphs
	13
	and 	14
	concern
	two
	related
	charges.
	CAPT
	was
	allowed
use
	of
	the 	Executive
	Conference
	Room
	at
	Stockton
	Hospital
	on
	two
occasions 	in 	the 	spring
	of
	1985
	and,
	at
	or 	about
	the
	time 	the
	first
	of
those
	meetings
	was
	to 	occur,
	an
	employer
	program
	director
	told
	CWA's
chief
	steward
	in
	the 	presence
	of
	other 	Psychiatric
	Technicians
	that
	he
hoped
	CAPT
	"beat 	the
	hell"
	out
	of
	CWA.
	CWA
	argues
	that
	this
	conduct
had
	a
	significant
	impact
	on
	unit
	employees'
	atti~udes
	toward
	the
decertification
	election,
	convincing
	employees
	that
	the
	state
	employer
wanted
	CAPT
	as 	the 	employee's 	exclu~ive
	representative
	and
	implying
that
	the
	employees 	would,
	therefore,
	advance
	their 	interests
	by
	voting
for
	CAPT. 	DPA
	replies 	that
	other
	employee
	organizations
	seeking
	to
represent 	hospital
	employees
	had
	been
	allowed
	to 	use
	the
	room
	upon
request
	but
	that
	CWA
	had
	never
	requested 	use.
	This
·is
	not
	directly
refuted	
by	
CWA
	who
	relies
	on
	Clovis
	USD,
	suQra,
	for 	the
	proposition
that
	an
	employee
	organization
	is
	not
	required
	to 	ask
	in 	order
	to
	be
entitled
	to 	receive
	equal
	employee
	organizing 	access
	treatment
	from
	an
employer.
	However,
	CWA
	was
	not 	prevented
	from
	meeting
	with
	employees
on
	hospital
	premises.
	The
	meetings 	took
	place 	in 	the
	employee
organization
	room. 	Hence,
	with
	respect
	to
	this 	allegation
	it
	would
appear
	that
	CdA r..;as
	not 	deprived 	of
	the 	opportunity
	to
	contact
employees
	for 	organizational
	purposes.
	and
	that
	the 	only 	adverseimpact
	is
	the
	possible 	suggestion
	or 	"implied
	promise"
	that
	employees
would
	fare
	better
	in
	their
	dealing 	with 	the
	employer
	if
	CAPT
	were
	to
replace
	CWA
	as
	exclusive
	representative.
	The
	program
	director's
remark
	ties
	in
	with
	this
	since
	it
	was
	made
	at
	or 	about
	the
	timeemployees 	were
	assembling 	for
	CAPT's
	first
	meeting
	in 	the 	executive
conference
	room.
	It
	contained
	no
	direct 	threat
	or 	promise
	of 	benefit
and,
	without
	more, 	would
	as
	an
	exercise
	of
	free
	speech, 	or
	an
	isolated
statement
	of 	opinion
	by
	a
	supervisor
	or 	manager.
	not
	be
	considered 	as·
evidence 	in 	determining
	if
	CWA's
	charge
	met
	the
	section
	3Sl9(d)
threshold
	test.
	Proximity 	of 	the
	comment
	to 	the
	CAPT
	meeting
	and
	the
presence
	of
	other 	violative
	employer 	conduct 	discussed 	herein 	brings
it
	within 	the 	3Sl9(d) 	ambit. 	Nonetheless, 	the 	limited 	use 	of 	the
executive 	conference
	room
	granted
	CAPT. 	CWA's
	ability
	to 	hold 	meetings
with 	Stockton
	employees
	in 	other 	hospital
	facilities
	and
	the 	fact 	that
the 	offensive
	remark
	was 	a
	personal 	expression
	of 	hope
	by
	one 	program
administrator 	at
	a
	single 	hospital 	discount 	their 	probable 	impact
	on
voter 	free 	choice.
The
	only 	clear-cut 	evidence 	of
	preferential 	treatment 	to
	CAPT
	in 	terms
of 	delivery 	of 	campaign
	literature
	to 	employees
	at 	their
	work
	stations
(paragraph
	15)
	rel1tes 	to
	a
	single 	instance 	at
	Sonoma
	State 	Hospital
where, 	apparently,
	one 	mailing
	was
	delivered.
	DPA
	asserts 	that 	it
	w
a	
one-time 	mistake 	involving 	only
	a 	few 	pieces 	of 	mail.
	CWA
	suggests
·

CAPT,
	CWA,
	DPA
August
	15,
	198S
Page
	9
that
	the 	discriminatory
	mail
	delivery 	practice	
may	
have 	been
	mor~
widespread 	than 	the 	evidence
	has
	so
	far
	revealed.
	On
	the
	other
	hand,
the
	August
	9,
	1985,
	declaration
	of
	CWA
	Representative
	Douglas
	Grant,
relying
	on
	information 	supplied
	by
	an
	Agnews
	State
	Hospital
	employee,
undercuts
	CWA's
	assertion 	that
	employee
	organization
	mail 	never
	has
been
	delivered
	to
	employee
	work
	stations.
	The
	Agnews
	employee
	averred
that
	before 	the
	election
	campaign.
	all
	staff 	at
	that 	hospital
	"used
intra-hospital
	mail
	to
	circulate
	personal
	and
	even
	work
	related
	union
information."
	The
	limited
	scope 	of
	the
	delivery
	of
	CAPT
	mail
	at
Sonoma
	and
	that 	fact
	that
	"union 	informationll
	may
	have 	been
	deliveredto
	work
	stations
	in
	th~
	past,
	with 	or 	without
	employer 	knowledge,
depreciates
	the
	likelihood
	that
	the
	conquct
	described 	in
	this
allegation
	influenced
	employees
	to
	vote 	for
	CAPT.
The
	remaining
	allegations
	(paragraph
	16)
	concern
	the 	widespread
posting
	of
	two
	documents.
	One
	is
	a
	February
	26, 	1985,
	letter
	from
	aDPA
	official
	to
	a 	CAPT
	consultant.
	The
	letter
	goes
	beyond
	merely
informing 	the
	CAPT
	consultant 	regarding 	access 	groundrules.
	as
	he 	had
requested.
	It
	purports 	to 	"recognize"
	CAPT
	as
	an 	employee
organization
	"under
	35l3{a)," 	describes
	CAPT
	as
	an
	"independent"
organization
	cr~ated 	to
	represent 	psychiatric 	technicians 	in
	their
dealings
	with
	their
	employer
	and
	lists
	the
	names
	and
	addresses
	of
	CAPT
officers.
	The
	second
	document
	is
	a
	memorandum
	from
	a
	Department 	of
Developmental
	Services
	Labor
	Relations
	Specialist
	to
	all
	hospitallabor
	relations
	coordinators.
	It
	attached
	a
	copy
	of 	the 	February
	26,
1985,
	letter
	and
	repeated
	a
	description
	of
	the 	purposes
	for
	which
	CAPT
was
	organized 	before 	discussing
	CAPT'S
	access
	rights.
	Neither 	the
letter
	nor
	the
	memorandum,
	on
	their
	faces, 	are 	statements 	of
	state
employer
	preference 	for
	CAPT
	as 	Unit
	18
	exclusive
	representative
rather
	than
	q-TA,
	as
	was
	indicated
	to
	CWA
	in
	a 	PERB
	warning
	letter
	on
July
	22.
	1985~
	and
	a
	July
	26, 	1985,
	supplement.
	Further, 	the 	access
granted 	to
	CAPT
	seemed
	in
	line
	with 	the 	access
	PERB
	has
	determined 	to
be
	a
	statutory 	right
	of
	all
	employee
	organizations.
	(
	State
	of
California,
	(Department 	of
	Corrections)
	(1980)
	PERB
	Decision
	No.
127-S.
	See
	also 	University
	of
	California
	(Berkeley)
	(1984)
	PERE 	.
Decision
	No.
	420-H.)
	Nor
	is
	it
	alleged 	that
	the
	documents
	purport 	to
grant 	greater 	organizing 	access 	to
	CAPT
	than 	to
	CWA.
These
	allegations
	were
	included 	in 	the 	complaint 	for
	two
	reasons.
First,
	since 	the 	term 	"recognize" 	is
	normally 	used
	in 	labor 	relations
(and
	in
	SEERA)
	to
	signify 	that
	an 	employee
	organization 	is
	an
exclusive 	representative,
	it
	is 	possible 	that
	employees 	were 	misled	
by
DPA's
	use 	of
	this
	term
	into 	believing 	that
	CAPT
	had 	somehow
	ascended
to
	that 	status.
	Second, 	the 	postings 	tended 	to 	help 	publicize
	CAPT
	in
a
	favorable 	light.
	CAPT 	was
	described 	as 	an 	independent 	organization
and 	one 	of 	the 	decertification
	campaign
	issues
	was
	that 	unit
	employees
would
	benefit
	by
	ridding 	themselves 	of
	CWA
	and
	its 	affiliation
	to 	theAFL-CIO.
	It
	was
	also 	helpful 	to
	CAPT
	to 	have 	the 	names,
	hospitals 	of
employment, 	and 	addresses 	of
	its 	principal 	officers 	posted 	throughout
-
·

CAPT,	
CWA,	
DP.
Au
gu
s t 	1 s , 	1 9 a s
Page
	10
the
	hospital
	system
	by
	the
	employer.
	However.
	the 	degree 	of 	impact
these
	documents
	had 	on
	election
	free
	choice
	is
	questionable.
	To·
the
extent
	employees 	were
	initially
	confused 	as 	to
	their
	meaning
	in
	terms
of
	the 	standing
	of
	CWA
	and
	CAPT
	as
	exclusive
	representative,
	that'
confusion
	should
	have 	been
	dispelled
	well 	before
	the
	voting
	took
	place
between 	June
	17
	and
	July
	17.
	This
	is
	so
	because 	the
	investigations
revealed
	no
	evidence
	that
	the
	employer
	negotiated
	with
	CAPT
	concerningterms
	and
	conditions
	of
	employment
	or 	allowed
	CAPT
	representatives
	to
represent 	unit
	employees
	in
	grievance
	arbitration
	matters
	between
March
	and
	July.
	Also,
	another
	memorandum
	posted	
by	
the
	employer
	on
most
	if
	not
	all
	of
	the
	same
	bulletin
	boards
	states
	that
	CWA
	retained
its
	access
	rights
	under
	the
	MOU
	and
	adjures
	managers
	and
	supervisorsto 	maintain 	"absolute
	neutrality
11
	in
	the
	campaign 	between
	CWA
	and
CAPT.
	(Gary
	W.
	Scott
	memorandum
	dated
	May
	3, 	1985.) 	In
	sum,
	theprimary 	reason
	for 	including~these
	allegations
	in 	the 	complaint
	is
that
	they
	can
	be
	characterized
	as
	"assisting"
	CAPT
	by
	typing.
duplicating
	and
	posting
	documents 	which 	gave
	CAPT
	free
	election
publicity.
	For
	the
	reasons
	stated
	above,
	the
	possibility
	of
	employee
confusio~
	was
	not 	consideced
	significant.
	Granting
	clerical
assistance
	to
	one
	employee
	organization
	while
	not 	doing
	the
	same
	for
another
	may
	be
	considered 	in 	determining
	if
	the
	section
	3519(d)
threshold
	test 	is
	met
	(Clovis
	USD,
	supra.)
	It
	may
	as 	well,
	of
	course,
be
	weighed
	in
	the
	totality
	of
	circumstances 	to 	decide
	if
	the
	electior
process
	was
	so
	tainted
	as 	to
	warrant 	blocking 	or
	set
t_ing
	the
	electio.
aside
	(Clovis,
	id.).
3.
	Totality
	of 	Circumstances
As
	indicated 	in 	the
	above 	review 	of 	each 	complaint
	allegation.
	I
believe 	that
	the 	conduct 	involved
	had
	far 	less 	potential 	for
influencing
	employee
	free 	election
	choice 	than
	CWA
	argues.
	My
	view
	of
these 	allegations
	as
	a
	totality
	of 	circumstances
	is 	similar.
Each
	of 	the 	cases 	in
	which
	PERE
	has
	either
	imposed 	an
	election 	stay
	or
set 	aside
	an
	election
	has
	involved
	a 	more
	telling
·and
	comprehensive
course
	of 	employer 	misconduct 	than
	is
	present 	in
	this 	case.
	In
Jefferson
	School
	District
	(1977)
	PERB
	Order
	No.
	Ad-22.
	the
	Board
upheld 	the
	stay
	of
	a
	decertification 	election
	when
	the
	employer
	had
undermined
	the 	exclusive 	representative
	by
	refusing 	ta 	negotiate
	ingood
	faith
	with 	respect
	to
	27
	of 	the 	exclusive 	representative'snegotiating 	pcoposals. 	Frustrating
	such 	an
	essential 	right
	on
	thatbroad 	basis 	obviously
	would
	cause
	many
	unit
	members
	to 	question
	the
effectiveness
	of
	their
	bargaining 	agent. 	In 	Pleasant 	Valley
	ESD,
supra,
	an 	employer
	who 	had
	contractually
	agreed
	that
	payment 	of
	a
service 	fee
	was 	a
	condition 	of 	continued
	employment
	for 	unit
	members
flatly
	refused 	to 	terminate 	the
	employment 	of 	those
	who
	did 	not .pay.An
	election 	to 	rescind 	the 	service 	fee 	arrangement
	was
	stayed 	by 	theBoard 	pending 	resolution 	of 	the 	employee
	organization's 	unilateralchange 	complaint 	against 	the 	employer. 	Again, 	the 	employer's 	allege
--

CAPT,
	CWA,	
DP,
August
	15,	
198'::i
Page
	ll
misconduct
	had
	to
	have
	stirred
	deeply 	the 	resentment
	of
	employees	
'l;lho
complied
	with 	the
	service
	fee
	provision
	and
	strongly
	influenced
	many
to 	want
	to
	get
	rid
	of
	the 	provision
	if
	the
	employer
	was
	not
	going
	to
enforce
	it.
	Likewise,
	in
	Regents 	of
	the
	Universitv
	of
	Californi~.supra,
	a
	decertification 	election
	was
	stayed
	where
	the 	employer's
conduct,
	assuming
	it
	occurred,
	had
	a
	clear
	tendency
	to
	diminish
	the
exclusive 	representative 	in
	the
	eyes 	of
	unit
	employees.
	Benefits
	were
granted
	to 	non-represented
	employees
	and
	withheld
	from
	unit
employees,
	Working
	conditions 	within
	scope
	were
	unilaterally
	changedand
	surface
	bargaining
	made
	the 	prospect
	of
	reaching
	an
	agreement
appear 	hopeless.
In
	Santa
·Monica
	CCD.
	supra,
	full
	time
	employees
	comprising
	the
	power
base
	of
	one 	employee
	organization
	competing
	in	
a	
representation
election
	were
	granted	
a	
wage
	increase
	while
	the
	part-time
	employees
generally
	supportive
	of 	the
	other 	organization
	were
	denied
	an
	increase
because
	their
	organization
	refused
	to
	waive
	the
	statutory 	right
	to
negotiate
	wages
	in
	the 	following
	year.
	The
	employer
	compounded
	its
misconduct
	by
	publishing
	a
	newsletter
	to
	everyone
	in 	the 	school
community
	laying
	blame
	for 	the
	plight
	of 	the
	part-time
	employees
	at
the
	feet
	of 	the
	complaining
	employee
	organization.
	A
violation 	was
found
	and
	the
	election
	would
	have 	been
	set
	aside
	had
	the
	election
	bar
period
	not
	already
	passed. 	In
	Grenada
	ESD,
	supra. 	the 	likelihood 	that
the 	employer's
	conduct
	would
	have
	influenced 	voter 	free
	choice
	was
equally 	apparent.
	The
	employer 	reneged
	on
	a
	tentative
	agreement,
failed
	to 	provide
	a
	final
	typed
	version
	of
	a
	tentative
	agreement, 	then
refused
	to
	negotiate
	with 	the
	exclusive
	representative 	t:hereafter
	and
granted
	a
	unilateral
	one-time
	pay
	increase 	to
	unit
	employees.
	The
Board
	stayed 	the
	election.
In 	Sacramento
	USD,
	suura,
	and
	Clovis
	USD,
	supra. 	the
	Board 	found
violations 	sufficient
	to 	warrant
	setting 	elections 	aside
	based
	on
similar,
	well 	defined, 	patterns
	of 	misconduct~ 	In 	each
	case 	theemployer
	dealt
	with
	a
	dominated 	or
	assisted
	employee
	organization
	on
matters
	of
	criti~al
	importance 	to
	unit
	employees,
	extolled 	the
	virtue
of
	the 	organization
	to
	unit
	employees
	and 	~ommitted
	other 	acts
	which
clearly 	assisted
	and
	demonstrated
	employer
	preference 	for
	thatorganization.
The
	totality
	of 	circumstances 	in 	this
	case 	does 	not 	approach 	themagnitude 	present 	in
	any 	of 	the
	above
	cases.
	That
	is
	not 	to 	say
	thatthe
	PERE
	cases 	decided 	to 	date 	spell
	out 	the
	minimum
	degree 	of
misconduct
	that
	must 	be
	alleged 	to
	sustain
	an
	election 	stay
	or 	proven
to 	cause
	an
	election
	to
	be
	set 	as1ae.
	The
	stay 	of
	election 	standard
is 	as 	stated 	in 	the 	regulation
	and
	defined
	by
	the 	Board
	in 	Pleasant
Valley
	ESD,
	suora; 	namely,
	is
	it
	likely 	that 	the 	employer's 	allegedmisconduct 	would
	affect 	the 	employees' 	vote?
	·
·

CAPT,
	CWA. 	D!?A
August 	15,
	1985
Page	
12
The
	alleged
	employer
	misconduct
	in
	this
	case
	is
	generally
	of
	a
peripheral
	nature.
	With
	the
	exception
	of
	the
	establishment
	of
	and
dealing
	with 	the
	ESTF
	at
	Napa
	State
	Hospital,
	none
	of
	the
	employer's
actions 	resulted
	in
	changes
	in
	terms
	and
	conditions
	of
	employment.
Further,
	the
	ESTP
	was
	established
	before
	CAPT
	started
	organizing
	and
was
	unrelated
	to
	CAPT.
	It
	was
	set
	up,
	albeit 	potentially
	in
	violation
of
	provisions
	of
	SEERA,
	to
	deal
	with
	a
	serious, 	specific 	safety
problem
	and
	CWA
	was
	offered 	the
	same
	participation 	right
	accorded
other
	similarly 	situated
	employee
	organizations.
	This
	activity,
removed
	in
	point
	of 	time
	and
	subject
	matter
	from
	the
	CAPT-CWA
	election
contest,
	adds
	little
	to
	a
	totality
	o~·circumstances
	likely
	to
	have
influenced 	~nit 	voters 	in
	June.
	The
	Patton 	incidents
	may
	have
hampered
	minimally
	CWA
	organizing
	efforts
	but
	the
	employees
themselves, 	other
	than
	possibly 	losing
	out
	on
	some
	information.
	were
not
	directly
	impacted.
	Much
	the
	same
	can
	be
	said
	of
	the 	remaining
allegations.
	A
	prima
	facie
	case
	of
	assistance
	or
	employer
	preference
has 	been
	made
	out 	but
	it
	is 	thin.
In
	sum,
	but
	for 	the
	ESTF
	incident 	at
	Napa,
	the
	acts
	of 	employer
misconduct 	did 	not
	change 	terms
	or
	conditions
	of
	employment
	for 	unit
employees.
	Nor
	did 	the 	employer's
	actions
	enable
	CAPT
	to
	represent
unit
	employees
	in 	derogation
	of
	CWA's
	exclusive
	representative
	statu~
or 	deny
	CWA
	a
	reasonable 	opportunity 	to 	present
	its
anti-decertification
	case 	to
	unit
	employees.
Despite
	CWA
1 s
	declarations
	from 	employees
	who
	claim
	that
	the
employer's 	actions
	were
	threatening
	to
	them
	as
	CWA
	adherents.
	when
	due
credit
	to 	the
	powers
	of 	discernment 	of 	Unit
	18
	employees
	is
	given. 	the
totality
	of 	circumstances
	is
	not
	likely
	to
	have
	influenced
	their
exercise
	of
	free 	choice. 	Consequently,
	the 	expressed
	desire
	of
	a
substantial
	portion
	of 	the
	unit
	employees 	to
	have
	a
	question
concerning
	representation
	resolved
	becomes
	paramount,
	and
	the 	election
should 	proceed.
This 	determination
	was
	reached 	without
	benefit
	of
	a
	hearing.
	That
	theemployer 	misconduct
	alleged
	does 	not 	appear
	likely
	to
	have
	influenced
voters 	free 	choice 	based
	on
	the 	facts
	determinable 	through
investigation
	does 	not 	negate 	the
	possibility 	that
	upon
	the
	filing
	of
election 	objections 	regarding 	these 	matters
	and
	full
	hearing
	on
	the
unfair 	practice
	complaints 	the
	Board
	will 	set 	aside 	the
	election.
CONCLUSION
For
	the 	reasons 	stated
	above,
	it
	is
	my
	determination 	that 	the 	election
stay 	should 	be
	terminated
	and
	the 	ballots 	counted.
An
	appeal 	to 	this 	decision 	pursuant 	to
	PERB
	Regulations 	section
	32350
through 	32380
	may 	be 	made
	within
	10 	calendar 	days 	following 	the 	date
~

CAPT,	
CWA,
	DPA
August
	15,
	1985
Page
	13
of
	service
	of
	this
	decision	
by	
filing
	a
	statement
	of
	facts
	upon 	which
the 	appeal
	is
	based
	with
	the
	Board
	itself
	at
	1031
	18th
	Street,
	Suite200,
	Sacramento,
	California
	95814.
	Copies
	of
	any
	appeal
	must
	be-
concurrently
	served
	upon
	all
	other
	parties
	and
	the
	Sacramento 	Regional
Office.
	Proof
	of
	service
	pursuant
	to
	Regulation
	32140
	is
	required.
Very
	truly
	yours.
Dennis	
M.	
Sullivan
General
	Counsel
DMS:mm