PERB Order No. A151S•State of California (Department of Personnel Administration) (Communication Workers of America, Psych Techs, Local 11555 and California Association of Psychiatric Technicians) (PERB A151S)
State of California (Department of Personnel Administration) (Communication Workers of America, Psych Techs, Local 11555 and California Association of Psychiatric Technicians) (PERB A151S)
PERB Order No. A151SCalperb13 de dez. de 1985
Texto completo
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD COMMUNICATIONS WORKERS OF AMERICA, PSYCH TECHS, LOCAL 11555, Employee Organization, and CALIFORNIA ASSOCIATION OF PSYCHIATRIC TECHNICIANS, Employee Organization, and STATE OF CALIFORNIA (DEPARTMENT OF PERSONNEL ADMINISTRATION), Employer. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) __________________ ) Case No. S-D-87-S (S-SR-18) Administrative Appeal PERB Order No. Ad-151-S cember 13, 1985 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 PERE) to terminate the stay of the election for decertification filed by 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
18CAPT. 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
1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
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:mmContinue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.