State of California (Department of Personnel Administration) (California State Employees Association) (PERB A221S)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA 	(DEPARTMENT
OF
	PERSONNEL 	ADMINISTRATION),
Respondent.
)
)
)
)
)
)
)
)
)
)
)
____________________
)
Case
	No.
	S-OS-86-S
Administrative
	Appeal
PERB
	Order
	No.
	Ad-221-S
June
	20,
	1991
Appearances:	
Howard
	Schwartz,
	Assistant
	Chief 	Counsel,
	forCalifornia 	State
	Employees'
	Association; 	Christopher
	W.
	Waddell,
Chief
	Counsel,
	for 	State
	of
	California,
	Department
	of 	Personnel
Administration.
Before
	Hesse,
	Chairperson;
	Shank 	and
	Camilli,
	Members.
DECISION
HESSE,
	Chairperson: 	This
	case
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
California 	State
	Employees'
	Association
	(CSEA)
	of 	the
	Sacramento
Regional
	Director's 	administrative 	decision 	issued
	May
	29, 	1991,
denying
	CSEA's
	motion
	to
	exclude
	certain
	employees 	from
	the 	voter
eligibility 	list.
	We
	have 	reviewed
	the 	record, 	including 	the
administrative 	decision,
	and
	affirm 	the
	Regional
	Director
1 s
decision 	to
	deny
	CSEA's
	motion
	to
	exclude
	certain
	employees 	from
the 	voter
	eligibility 	list.
PROCEDURAL 	HISTORY
On
	February 	11, 	1991,
	CSEA
	and
	the 	State 	of 	California,
Department 	of 	Personnel 	Administration
	(DPA)
	entered 	into
	a
consent 	election 	agreement
	(CEA) 	which 	provided 	for 	an
	election

by
	secret 	ballot,
	under
	the 	supervision
	of
	the
	PERB
	Sacramento
Regional
	Director.
	The
	election
	was
	to
	determine 	whether
	or
	not
bargaining
	unit
	1
	employees
	desire 	to
	place
	in
	effect
	the
	fair
share
	fee
	provision
	contained
	in
	the
	partiesi 	collective
bargaining
	agreement
	(CBA)
	ef£ective
	May
	18,
	1989
	through
June
	30,
	1991.
	Although
	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act)
1
does
not
	require
	PERB
	to
	conduct
	such 	an
	election,
	PERB
	agreed
	to
conduct
	the
	election
	on
	a
	contract 	basis.
	Pursuant
	to 	the
	CEA,
the
	election
	was
	conducted
	by
	secret
	mailed
	ballots
	and
	the
ballot
	count
	was
	scheduled
	for
	June
	4, 	1991.
On 	May
	24, 	1991,
	CSEA
	filed
	with 	the
	PERB
	Sacramento
regional 	office
	a
	"Motion
	for
	Order
	to
	Exclude
	From
	Voter
Eligibility
	List
	Non-Unit
	1
	Employees."
	In
	its
	motion,
	CSEA
requested
	that
	the
	PERB
	Regional
	Director 	issue
	an
	order
declaring
	that
	all
	individuals
	who
	terminated
	their
	employment
	in
bargaining
	unit
	1
	prior 	to 	casting
	their 	ballots
	on
	the
	fair
share
	fee
	election
	be
	deemed
	ineligible
	and
	their 	ballots
	be
invalidated.
	In 	the
	alternative,
	CSEA moved
	for
	an
	order
requiring 	the
	ballots
	of
	all
	individuals
	who
	had
	terminated
	their
employment
	in
	bargaining
	unit
	1
	prior 	to 	casting
	their
	votes
	be
held
	unopened 	and 	uncounted 	pending 	an
	opportunity 	for 	further
determination 	as 	to
	their 	validity.
	On 	May
	29, 	1991,
	the
Regional 	Director 	issued 	his 	decision
	denying
	CSEA's
	motion
	to
exclude
	certain
	employees 	from
	the 	voter
	eligibility 	list.
1
The 	Ralph
	C.
	Dills
	Act
	is 	codified 	at
	Government 	Code
section
	3512
	et
	seq. 	Unless 	otherwise 	indicated, 	all 	statutoryreferences 	herein 	are 	to 	the
	Government 	Code.
2

On 	May 	30, 	1991, 	CSEA 	filed 	in 	Sacramento 	County 	Superior
Court 	a 	"Complaint 	for 	Temporary 	Restraining 	Order, 	Preliminary
and 	Permanent 	Injunction" 	against 	PERB. 	CSEA 	claimed 	that,
pursuant 	to 	PERB 	regulations, 	individuals 	not 	employed 	on 	the
date 	they 	cast 	their 	ballots 	in 	the 	election 	are 	ineligible 	to
vote. 	CSEA 	further 	argued 	that 	PERB 	regulations 	provide 	that 	any
party 	may, 	for 	good 	cause, 	challenge 	the 	eligibility 	of 	a 	voter
and 	that 	unresolved 	challenges, 	when 	sufficient 	in 	number 	to
effect 	the 	outcome 	of 	an 	election, 	shall 	be 	resolved 	by 	PERB.
On 	May 	31, 	1991, 	representatives 	from 	CSEA, 	DPA 	and 	PERB
appeared 	in 	the 	Sacramento 	County 	Superior 	Court 	regarding 	the
motion 	for 	a 	temporary 	restraining 	order. 	At 	the 	hearing, 	PERB
representatives 	argued 	that 	CSEA 	had 	not 	exhausted 	its
administrative 	remedy 	by 	first 	requesting 	a 	stay 	from 	the 	Board.
The 	court 	suggested 	that 	CSEA 	file 	such 	a 	request, 	and 	if 	not
granted, 	CSEA would 	be 	given 	an 	opportunity 	on 	June 	3, 	1991 	to
further 	argue 	before 	the 	court 	regarding 	the 	issuance 	of 	a
temporary 	restraining 	order. 	On 	May 	31, 	1991, 	CSEA 	filed 	a
Request 	for 	Stay 	and 	Memorandum 	of 	Points 	and 	Authorities 	with
the 	Board 	requesting 	that 	the 	ballots 	of 	the 	identified 	252
former 	bargaining 	unit 	1 	employees 	be 	sequestered 	and 	remain
unopened 	and 	uncounted 	at 	the 	June 	4, 	1991 	scheduled 	ballot
count. 	On 	the 	same 	date, 	CSEA was 	contacted 	by 	the 	PERB 	General
Counsel 	and 	Deputy 	General 	Counsel 	and 	informed 	that 	the 	request
for 	stay 	was 	inadequate 	in 	that 	it 	failed 	to 	include, 	as 	required
by 	PERB 	regulation, 	an 	administrative 	appeal. 	On 	June 	3, 	1991,
3

CSEA 	filed 	its 	appeal 	to 	the 	Sacramento 	Regional 	Director's
May 	29, 	1991 	administrative 	decision with 	the 	Board 	itself. 	On
June 	3, 	1991, 	the 	Board 	issued 	PERB 	Order 	No. 	Ad-220-S 	wherein
the 	Board 	stayed 	the 	ballot 	count 	in 	its 	entirety 	pending 	review
of 	the 	appeal.
FACTS
Pursuant 	to 	the 	authority 	set 	forth 	in 	sections 	3515 	and
3515.7 	of 	the 	Dills 	Act, 	DPA 	and 	CSEA 	entered 	into 	a 	CBA 	covering
bargaining 	unit 	1, 	effective 	May 	18, 	1989 	through 	June 	30, 	1991,
which 	provided 	that 	CSEA 	could 	request 	a 	fair 	share 	fee 	election
at 	any 	time 	during 	the 	term 	of 	the 	agreement. 	The 	CBA 	also
specified 	that 	the 	election 	ttshall 	be 	conducted 	by 	the 	PERB," 	but
also 	provided 	for 	selection 	of 	another 	state 	agency 	or 	private
firm 	to 	conduct 	the 	election 	if 	PERB 	chose 	not 	to 	do 	so. 	The 	CBA
further 	specified 	certain 	conditions 	for 	the 	election, 	including
one 	condition 	regarding 	voter 	eligibility. 	Article 	3, 	section
3.2 	b 	(6) 	states:
Only 	those 	employees 	in 	Unit 	1 who 	have 	been
on 	the 	State 	payroll 	for 	a 	period 	of 	at 	least
45 	calendar 	days 	prior 	to 	the 	fair 	share 	fee
election 	shall 	be 	eligible 	to 	vote.
On 	February 	11, 	1991, 	DPA 	and 	CSEA 	agreed 	to 	the 	terms 	of 	the
CEA, 	which 	was 	approved 	by 	the 	PERB 	Sacramento 	Regional 	Director.
While 	the 	CEA 	states 	that 	the 	election 	is 	to 	be 	conducted 	in
accordance 	with 	the 	CEA 	and 	applicable 	PERB 	procedures, 	there 	are
specific 	sections 	addressing 	voter 	eligibility 	and 	challenges 	to
voter 	eligibility. 	Section 	3 	of 	the 	CEA 	states:
4

A. 	The 	eligible 	voters 	shall 	be 	those
employees 	within 	Unit 	1 who 	were 	employed 	as
of 	January 	31. 	1991. 	"Employedn 	means 	on
paid 	or 	unpaid 	status 	in 	any 	position
included 	in 	Unit 	1.
B. 	Employees 	who 	are 	ill, 	on 	vacation, 	on
leave 	of 	absence, 	less 	than 	full 	time,
permanent-intermittent, 	and 	employees 	who 	are
in 	the 	military 	service 	of 	the 	United 	States
shall 	be 	eligible 	to 	vote.
C. 	The 	following 	groups 	of 	employees 	are 	NOT
eligible 	to 	vote:
1. 	All 	employees 	who 	are 	not 	employed 	in
classifications 	or 	positions 	within 	Unit 	1,
such 	as 	employees 	in 	positions 	which 	have
been 	determined 	to 	be 	managerial,
supervisory, 	confidential 	or 	excluded 	from
coverage 	under 	the 	Dills 	Act 	by 	the 	PERB 	or
by 	written 	agreement 	of 	the 	State 	Employer
and 	CSEA.
2. 	Retired 	annuitants.
3. 	Employees 	on 	unpaid 	status 	for 	12 	or 	more
consecutive 	months 	prior 	to 	January 	31, 	1991.
D. 	Employees 	who 	hold 	more 	than 	one 	job
position 	in 	more 	than 	one 	unit 	represented 	by
CSEA 	will 	be 	eligible 	to 	vote 	only 	if 	this
primary 	position 	is 	in 	Unit 	1.
Section 	4.D. 	of 	the 	CEA 	provides 	an 	opportunity 	for 	DPA 	and
CSEA 	to 	jointly 	stipulate, 	in 	writing, 	to 	corrections 	to 	the
voter 	list 	(additions 	or 	deletions) 	prior 	to 	the 	mailing 	of
notices 	or 	ballots. 	In 	section 	2.F. 	of 	the 	CEA, 	a 	mechanism was
specified whereby, 	during 	the 	time 	period 	set 	for 	duplicate
ballots 	to 	be 	requested 	by 	employees 	on 	the 	voter 	list, 	employees
not 	included 	on 	the 	list 	of 	eligible 	voters 	could 	request 	a
challenged 	ballot.
5

Finally, 	in 	section 	7, 	entitled 	"Challenged/Void 	Ballots,''
the 	CEA 	provides 	the 	following:
A. 	The 	State 	Employer 	and 	CSEA 	each 	agree
not 	to 	challenge 	the 	eligibility 	of 	any 	voter
whose 	name 	appears 	on 	the 	list 	of 	eligible
voters.
B. 	PERB 	will 	issue 	challenged 	ballots
pursuant 	to 	section 	2.F. 	above. 	Any 	such
ballots, 	if 	cast, 	will 	comprise 	the 	only
challenged 	ballots 	in 	this 	election 	and 	will
be 	set 	aside 	unless 	they 	are 	sufficient 	in
number 	to 	affect 	the 	outcome 	of 	the 	election.
Should 	challenged 	ballots 	be 	outcome-
determinative, 	they 	will 	be 	resolved 	by 	the
PERB 	Sacramento 	Regional 	Director 	or 	his
designee, 	whose 	decision 	regarding 	the
disposition 	of 	the 	challenges 	shall 	be 	final
and 	binding 	upon 	the 	parties.
C. 	Should 	the 	parties 	discover, 	while 	the
election 	is 	in 	progress, 	employee 	names 	which
have 	been 	included 	on 	the 	voter 	list 	in
error, 	they 	may 	mutually 	agree 	that 	ballots
cast 	by 	these 	individuals 	be 	voided. 	Any
such 	mutual 	agreement 	shall 	be 	in writing,
signed 	by 	both 	parties, 	and 	shall 	be 	filed
with 	the 	PERB 	Sacramento 	Regional 	Office 	not
later 	than 	May 	27. 	1991.
Pursuant 	to 	the 	CEA, 	the 	election 	proceeded 	until 	June 	3,
1991, 	when, 	as 	a 	result 	of 	the 	issue 	of 	voter 	eligibility, 	the
Board 	ordered 	a 	stay 	of 	the 	ballot 	count 	scheduled 	for 	June 	4,
1991. 	(State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1991) 	PERB 	Order 	No. 	Ad-220-S.)
ADMINISTRATIVE 	DETERMINATION
The 	Regional 	Director's 	analysis 	begins 	by 	noting 	that
CSEA's 	argument 	relies 	heavily 	on 	its 	reading 	of 	the 	meaning 	of
6

PERB
	Regulation
	32728
2 ,
	which
	provides:
Voter
	Eligibility.
	Unless
	otherwise
	directed
by
	the
	Board,
	to
	be
	eligible
	to
	vote
	in
	an
election,
	employees 	must
	be
	employed
	in
	thevoting
	unit
	as
	of
	the
	cutoff
	date
	for 	voter
eligibility,
	and
	still
	employed 	on
	the 	date
they
	cast
	their
	ballots
	in
	the
	election.
Employees
	who
	are
	ill,
	on
	vacation,
	on
	leaveof
	absence
	or
	sabbatical,
	temporarily
	laidoff,
	and 	employees
	who
	are
	in
	the
	militaryservice
	of 	the
	United
	States
	shall
	be
eligible
	to
	vote.
	Mailed
	ballots
	may
	be
utilized
	to
	maximize
	the 	opportunity
	of
	such
voters 	to
	cast
	their 	ballots.
CSEA
	argues
	that
	a
	portion
	of
	this
	regulation
	should
	be
incorporated 	into
	the
	CEA
	despite
	its
	obvious
	omission.
	In
particular,
	the
	CEA
	does
	not 	include
	a
	provision
	that
	the
individuals
	must
	still
	be 	employed 	on
	the 	date
	they
	cast
	their
ballots
	in
	the
	election 	in 	order 	to
	be
	eligible
	to
	vote. 	Rather,
the
	CEA
	includes
	a
	requirement
	that
	employees 	be 	employed
	in
	the
unit
	as 	of
	a
	date
	certain
	(i.e.,
	January
	31, 	1991).
	Even
assuming
	that
	PERB
	Regulation
	32728
	applied 	to
	this 	election,
	the
Regional
	Director 	rejected
	CSEA's
	argument.
	He
	reasoned
	the
requirement
	that
	employees 	be 	employed
	at
	the
	time 	they
	cast
their 	ballots 	is
	not 	applicable 	in
	all
	PERB-conducted
	elections.
As 	PERB
	Regulation
	32728
	states,
	the
	Board 	has
	the 	authority 	to
direct
	otherwise. 	In
	this
	case, 	the
	Sacramento 	Regional
	Director
approved
	the
	CEA,
	which
	directed 	that 	eligibility
	in
	this
election will
	not 	include 	the 	requirement
	that
	employees
	still
	be
employed
	in 	bargaining 	unit
	1
	after
	January 	31, 	1991.
2PERB
	Regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8, 	section
	31001
	et
	seq.
7

Next, 	CSEA 	argues 	that 	pursuant 	to 	PERB 	Regulation 	32732,
the 	Sacramento 	Regional 	Director 	is 	obligated 	to 	challenge 	the
eligibility 	of 	the 	voters 	who 	have 	been 	identified 	by 	CSEA 	as
ineligible. 	PERB 	Regulation 	32732 	provides:
(a) 	In 	an 	on-site 	election, 	a 	Board 	agent 	or
an 	authorized 	observer 	may 	challenge, 	for
good 	cause, 	the 	eligibility 	of 	a 	voter. 	A
person 	so 	challenged 	shall 	be 	permitted 	to
cast 	a 	challenged 	ballot.
(b) 	In 	a 	mailed 	ballot 	election, 	a 	Board
agent 	or 	an 	authorized 	agent 	of 	any 	party 	to
the 	election 	may 	challenge, 	for 	good 	cause,
the 	eligibility 	of 	a 	voter. 	Such 	challenges
shall 	be 	made 	prior 	to 	the 	tally 	of 	the
ballots.
(c) 	When 	sufficient 	in 	number 	to 	affect 	the
outcome 	of 	the 	election, 	unresolved
challenges 	shall 	be 	resolved 	by 	the 	Board.
However, 	the 	Regional 	Director 	concluded 	that 	nothing 	in 	the
language 	of 	PERB 	Regulation 	32732 	requires 	the 	Board 	agent 	to
challenge 	the 	eligibility 	of 	certain 	voters. 	Further, 	the
Regional 	Director 	stated 	that 	granting 	CSEA's 	request 	to
challenge 	the 	eligibility 	of 	certain 	voters 	would 	result 	in 	an
obvious 	subversion 	of 	the 	plain meaning 	of 	the 	CEA. 	Moreover,
the 	Regional 	Director 	noted 	that 	in 	section 	7.A. 	of 	the 	CEA, 	the
parties 	expressly 	waived 	any 	right 	or 	opportunity 	to 	challenge
the 	eligibility 	of 	employees 	who 	were 	eligible 	as 	of 	the 	cut-off
date 	for 	voter 	eligibility. 	Rather, 	the 	only 	opportunity 	for
challenging 	ballots 	was 	contained 	in 	section 	7.C. 	of 	the 	CEA.
That 	provision 	allows 	CSEA 	and 	DPA, 	but 	only 	mutually, 	to
identify 	voters 	included 	on 	the 	voter 	list 	in 	error 	and 	to
stipulate 	that 	their 	ballots 	be 	voided. 	In 	the 	present 	case,
8

CSEA
	does
	not
	argue
	that
	the
	252
	employees
	named
	were
	included
	on
the 	voter
	list
	in
	error,
	but
	instead
	asserts
	they
	have
	since
	left
the
	bargaining
	unit.
	Also,
	CSEA's
	own
	supporting
	documents
attest
	to
	the
	fact 	that
	DPA
	does
	not
	join 	in
	this
	request.
CSEA'S 	APPEAL
CSEA
	states 	this
	appeal
	is
	necessary
	to 	resolve 	the
"issue
	of
	whether
	the
	Public
	Employment
	Relations
	Board,
	the
State
	of
	California
	and
	CSEA
	may,
	solely
	by
	contract,
	avert,
avoid
	and
	make
	nugatory
	PERB
	Regulation
	32728."
	CSEA
	also
	argues
the
	appeal
	is
	necessary
	to
	determine 	whether
	the
	PERB
	Regional
Director
	erred
	in 	his
	interpretation
	of 	the
	terms
	of 	the
	CEA.
In
	its
	"Supplemental
	Memorandum
	of 	Points
	and
	Authorities 	in
Support 	of
	Appeal
	From
	Administrative 	Determination,"
	CSEA
	argues
that:
	(1)
	PERB
	has
	no
	authority 	to 	selectively
	exempt
	itself
from
	its
	own
	laws 	and
	regulations;
	(2)
	CSEA
	did 	not 	unmistakably
waive
	or
	concede
	to 	the
	inapplicability
	of 	the 	voter
	eligibility
provisions 	set 	forth 	in
	PERB
	Regulation
	32728; 	and 	(3)
	PERB
Regulation
	32380(a)
3
does
	not 	preclude
	CSEA's
	appeal 	as
	the
appeal 	involves 	issues 	of
	fundamental
	rights
	and
	obligations 	of
much
	broader
	consequences 	than 	the
	mere
	procedural
	mechanics
	of
an
	election.
3PERB
	Regulation 	32380(a)
	provides, 	in 	pertinent 	part:
The
	following 	administrative 	decisions 	shallnot 	be
	appealable:
(a)
	A
decision
	by
	a
	Board
	agent 	regarding
the 	mechanics 	of 	an
	election provided 	the
decision 	does 	not 	affect 	standing 	of
	a
	party
to 	appear 	on 	a
	ballot. 
9

In
	essence,
	CSEA
	requests
	that,
	consistent
	with
	PERB
Regulation
	32728,
	the
	Board
	should 	exclude
	from
	the
	voter
eligibility
	list
	for 	the
	fair
	share 	fee
	election
	those
	employees
who
	have
	terminated
	their
	employment
	in
	bargaining
	unit
	1
	prior
to 	casting
	their
	ballots.
	In 	the
	alternative,
	CSEA
	requests
	that
the
	ballot
	of
	any
	such
	employee 	be
	sequestered
	and
	left
	unopened
and
	uncounted, 	pending
	determination 	of
	whether
	such
	ballots
could
	affect
	the
	outcome
	of
	the
	election
	and,
	if
	so,
	that
	CSEA
	be
given
	an
	opportunity
	to 	further
	adjudicate 	the 	issue
	of
	voter
eligibility.
DPA
	filed
	a
	one-sentence 	response
	that
	it
	opposes
	CSEA's
appeal
	for 	the
	reasons
	set
	forth 	in 	the 	administrative 	decision.
DISCUSSION
Unlike
	a
	certification
	or
	decertification 	election
	where
PERB
	has
	a
	statutory
	duty
	to
	conduct
	the
	election,
4
the
	present
case 	involves
	an 	agency
	fee 	(or
	fair
	share 	fee)
	election
	which
PERB
	is
	not 	required 	to
	conduct
	either
	by
	statute
	or
	PERB
regulations.
5
Pursuant
	to 	the
	parties'
	CBA, 	CSEA
	and
	DPA
	entered
	into
	a
CEA
	which
	was
	approved
	by
	PERB. 	By
	the 	express 	terms 	of
	the
	CEA,
voter
	eligibility 	is
	limited 	to 	those
	employees
	in 	bargaining
unit
	1 who
	were 	employed
	as 	of 	January
	31, 	1991.
	In 	addition 	to
4
See
	sections
	3520.5 	and 	3521
	of 	the 	Dills
	Act;
	PERB
Regulations 	32700-32786, 	40130-40330.
5
See
	sections 	3515.7 	and
	3540.l(i) 	of 	the 	Dills
	Act;
	PERB
Regulations
	32720 	and 	40430.
10

the 	voter 	eligibility 	provisions, 	the 	CEA 	provides 	that 	the
parties 	waive 	their 	rights 	to 	challenge 	voter 	eligibility.
CSEA 	argues 	that 	PERB 	Regulation 	32728 	applies 	to 	the
present 	election. 	However, 	the 	applicable 	provision 	of 	PERB
Regulation 	32728, 	that 	individuals 	must 	still 	be 	employed 	on 	the
date 	they 	cast 	their 	ballot 	to 	be 	eligible 	to 	vote, 	is 	absent
from 	the 	CEA. 	As 	evidenced 	by 	the 	unambiguous 	language 	of 	the
CEA, 	the 	parties 	agreed 	to 	determine 	voter 	eligibility 	using 	a
different 	criteria 	than 	PERB 	Regulation 	32728.
PERB 	caselaw 	establishes 	that 	parties 	to 	a 	valid, 	PERB
approved 	CEA 	are 	bound 	by 	its 	terms. 	In 	its 	very 	first 	decision,
Tamalpais 	Union 	High 	School 	District 	(1976) 	EERB 	Decision 	No. 	1, 6
the 	Board 	held 	that 	the 	parties 	are 	bound 	by 	the 	terms 	of 	their
CEA. 	Specifically, 	in 	determining 	voter 	eligibility, 	the 	Board
held 	it 	need 	not 	decide 	whether 	the 	challenged 	voters 	were
ineligible 	to 	vote 	under 	the 	Rodda 	Act. 7 Rather, 	the 	CEA 	was
controlling.
In 	Los 	Angeles 	Unified 	School 	District 	(1980) 	PERB 	Decision
No. 	113, 	the 	Board 	defined 	its 	role 	in 	consent 	elections. 	The
Board 	stated 	its 	participation was 	"ministerial 	as 	a 	matter 	of
convenience 	to 	the 	parties 	concerned." 	This 	is 	especially 	true
in 	the 	present 	case 	as 	the 	CBA 	provided 	that 	the 	parties 	could
6Prior 	to 	January 	1, 	1978, 	PERB 	was 	known 	as 	the 	Educational
Employment 	Relations 	Board 	(EERB).
7The 	Educational 	Employment 	Relations 	Act 	was 	formerly
referred 	to 	as 	the 	Rodda 	Act.
11

select 	another 	state 	agency 	or 	private 	firm 	to 	conduct 	the
election 	if 	PERB 	chose 	not 	to 	do 	so.
Finally, 	in 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1986) 	PERB 	Order 	No. 	Ad-156-S, 	the 	Board 	held
that 	PERB 	has 	the 	right 	to 	proceed 	under 	a 	CEA 	to 	conduct 	the
election, 	even 	if 	one 	party 	no 	longer wishes 	PERB 	to 	hold 	the
election. 	Through 	statutory 	interpretation 	and 	PERB 	Regulations
32720 	and 	40430, 	the 	Board 	found 	PERB 	is 	authorized 	to 	take 	the
action 	necessary 	to 	implement 	the 	protection 	of 	section 	3515 	of
the 	Dills 	Act 	to 	hold 	the 	election 	as 	originally 	agreed 	to. 8
8section 	3515 	of 	the 	Dills 	Act 	provides:
Except 	as 	otherwise 	provided 	by 	the
Legislature, 	state 	employees 	shall 	have 	the
right 	to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of 	their
own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of 	employer-
employee 	relations. 	State 	employees 	also
shall 	have 	the 	right 	to 	refuse 	to 	join 	or
participate 	in 	the 	activities 	of 	employee
organizations, 	except 	that 	nothing 	shall
preclude 	the 	parties 	from 	agreeing 	to 	a
maintenance 	of 	membership 	provision, 	as
defined 	in 	subdivision 	(i) 	of 	Section 	3513,
or 	a 	fair 	share 	fee 	provision, 	as 	defined 	in
subdivision 	(k) 	of 	Section 	3513, 	pursuant 	to
a 	memorandum 	of 	understanding. 	In 	any 	event,
state 	employees 	shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with 	the 	state.
This 	section was 	subsequently 	amended, 	effective 	January 	1, 	1990.
This 	change 	has 	no 	impact 	on 	the 	disposition 	of 	this 	case.-
PERB 	Regulation 	32720 	provides:
Authority 	to 	Conduct 	Elections. 	An 	election
shall 	be 	conducted 	when 	the 	Board 	issues 	a
decision 	directing 	an 	election 	or 	approves 	an
agreement 	for 	a 	consent 	election, 	pursuant 	to
12

As
	the
	statute,
	regulations
	and
	cases
	illustrate,
	PERB
	is
bound
	to
	follow
	the
	terms
	of
	the
	CEA.
	The
	fact
	that
	CSEA
	now
disagrees
	with
	the
	terms
	of 	the
	CEA
	does
	not 	preclude
	PERB
	from
proceeding with
	the
	election.
9
Although
	CSEA
	argues
	that
	it
	does
	not
	waive
	or
	concede
	the
inapplicability
	of
	PERB
	Regulation
	32728
	to
	the
	election,
	CSEA
did
	agree
	to 	the
	explicit
	voter
	eligibility
	provision
	of
	the
	CEA.
This 	language
	is
	clear
	and 	unambiguous:
	"The
	eligible
	voter
the 	provisions 	of 	Division
	2,
	Chapters
	1
	and
2;
	Division
	3,
	Chapter
	l;
	or 	Division
	4,
Chapter
	1
	of 	these 	regulations.
The
	Board
	shall
	determine
	the
	date,
	time,
place
	and 	manner
	of
	the
	election
	absent
	an
approved 	agreement
	of
	the
	parties.
PERB
	Regulation
	40430
	provides:
Alternative
	Procedures
	For Vote.
Notwithstanding
	the 	provisions
	of
	thisArticle,
	the
	employer 	and
	the 	exclusive
representative
	may
	mutually 	agree
	upon
alternative
	procedures 	regarding
	a
	vote
	on
	a
fair
	share 	fee
	provision 	pursuant
	to
Government
	Code
	section
	3515.7(d).
9
CSEA's
	reference 	to
	Chaffey
	Joint
	Union 	High
	School
District
	(1988)
	PERB
	Decision
	No. 	669
	is
	misleading. 	This
dismissal
	case 	involved
	interference 	allegations 	against 	both 	the
employer
	and 	employee
	organization 	for
	their
	conduct 	during
	an
agency 	fee
	election.
	The
	Board 	found
	that, 	in 	the
	totality
	of
circumstances, 	the 	allegations 	stated
	a
	prima
	facie 	interference
violation 	against
	both 	the
	employer 	and 	employee
	organization.Accordingly, 	the
	Board
	ordered 	the 	general 	counsel
	to 	issuecomplaints.
In
	its
	discussion 	of 	the
	CEA,
	the
	Board 	found
	that 	the
	Board
agent's
	approval 	of
	a 	CEA
	was
	not
	sufficient 	to
	immunize 	an
employee
	organization
	from
	a
	finding 	of
	a
	breach 	of 	the 	duty 	of
fair 	representation. 	Contrary 	to
	CSEA's
	argument,
	there
	was 	no
discussion 	in
	Chaffey 	Joint
	Union 	High 	School
	District 	that
parties 	to
	a 	CEA 	may
	not 	insulate 	themselves 	from
	statutory 	or
regulatory 	provisions. 
13

shall
	be
	those
	employees
	within
	unit
	1 who
	were 	employed
	as 	of
January
	31,
	1991."
	By
	agreeing
	to
	this
	specific
	language
limiting
	voter
	eligibility
	to
	a
	date
	certain,
	the
	parties
	have
forgone
	the 	provisions
	of
	PERB
	Regulation
	32728.
Additionally,
	the
	CEA
	includes 	provisions
	limiting 	the
challenges 	to
	any
	ballots.
	The
	parties
	agreed
	11
not
	to 	challenge
the
	eligibility
	of
	any
	voter
	whose
	name
	appears
	on
	the
	list
	of
eligible
	voters."
	The
	only
	opportunity 	for 	challenging
	voters
under
	the
	CEA
	provides
	that
	CSEA
	and
	DPA
	may
	mutually
	identify
voters
	included
	on
	the
	list
	in 	error
	and
	stipulate 	that
	their
ballots
	be
	voided.
	Here,
	there
	is
	no
	such
	stipulation. 	Further,
CSEA
	does
	not 	argue
	that 	certain 	individuals'
	names
	were
	included
on
	the
	voter
	list
	in 	error,
	but
	asserts 	that
	these
	individuals
have
	since
	left
	the
	bargaining
	unit.
	By
	arguing 	the
applicability
	of
	PERB
	Regulation
	32728,
	CSEA
	is
	attempting
	to
circumvent
	its
	agreement
	not
	to
	challenge 	the
	eligibility
	of
voters
	named
	on
	the 	voter
	eligibility
	list.
Lastly,
	CSEA
	argues
	that
	PERB
	Regulation
	32380(a) 	does
	not
preclude
	its
	appeal 	as
	the 	issues 	involve
	fundamental
	rights
	and
obligations
	of 	broader
	consequences
	than 	the
	mechanics
	of
	an
election.
	In 	the 	present 	case, 	the 	election
	has 	proceeded 	and
the
	ballots
	are 	ready 	to
	be 	counted 	pursuant 	to 	the 	terms
	of 	the
CEA.
	Instead,
	CSEA's
	appeal 	involves 	the 	proper
	interpretation
of 	the
	CEA
	regarding 	voter
	eligibility.
	As
	the
	Board
	concludes
the
	CEA
	is 	clear
	and 	unambiguous 	on
	its
	face, 	the
	Board
	finds
14

that
	the
	election
	should 	proceed
	pursuant
	to
	the
	terms
	of
	the
CEA.
ORDER
The
	Board
	hereby
	lifts
	the
	stay
	of
	the
	ballot
	count
	in
	Case
No.
	S-OS-86-S
	and
	orders 	the
	Sacramento
	Regional
	Director
	to
proceed with
	the
	election.
Members
	Shank 	and
	Camilli 	joined
	in
	this
	Decision.
15