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June 10, 2016

PERB Judge Dismisses Unfair Practice Charges Because Outdated Local Rule and Alleged Election Irregularities Caused No Actual Harm


Service Employees International Union, Local 721 ("SEIU") represented the Coachella Valley Water District’s ("District") employees for many years until an election on January 30, 2014, when the employees voted to decertify the SEIU and voted in challenger City Employees Associates ("CEA") as their representative. SEIU filed an unfair practice charge against the District with the Public Employment Relations Board ("PERB"), claiming that the District gave CEA unfair advantages at the expense of SEIU during the year before the election and on the day of the election. Jay Trinnaman of Atkinson, Andelson, Loya, Ruud & Romo represented the District.

The Judge’s Ruling
On May 19, 2016, in a 44-page Proposed Decision, the administrative law judge for PERB dismissed all of SEIU’s claims against the District. After assessing each of the claims, the judge concluded, "In sum, SEIU has failed to demonstrate any unlawful conduct by the District that interfered with employees’ free choice in the election, or that the District had any influence whatsoever on the outcome of the voting."

First, the judge stated that most of SEIU’s allegations concerning denial of access to the District’s employees were never included in the formal charges or complaint, even after SEIU amended its complaint two times. Because the District was not given proper notice of the charges, it did not have an adequate opportunity to defend itself. The judge dismissed these charges.

Second, the judge found no evidence that any District managers or human resources staff knew that CEA allegedly had solicited potential members on the District’s property.

The third issue involved alleged unlawful campaigning. During a six-month period before the election, SEIU organizers found flyers from CEA on District bulletin boards. SEIU did not inform the District until two days before the election. The District removed the flyers. The judge held that the District was not required to actively monitor its bulletin boards. The judge found no evidence that the District intentionally ignored any improperly posted materials about the election on its bulletin boards.

Fourth, the judge addressed the District’s outdated election rule that allowed for the recognition of an organization only if it obtained a majority of all employees eligible to vote or if it received a majority of all votes cast in the election provided at least 60% of all eligible employees voted. This rule contradicted section 3507.1(a) of the Meyers-Milias-Brown Act (MMBA), which requires only a majority of actual votes cast for recognition. However, because the District neither applied nor enforced this outdated rule, it caused no harm. Consequently, the judge held, the District did not violate the MMBA.

The fifth issue involved a curtailed meeting in December 2013 in which SEIU representatives showed up at a District facility and met with two on-duty employees. This visit violated the District’s rules requiring visitors to get prior approval and prohibiting visits to on-duty employees. The District’s facility manager escorted the SEIU representatives from the building.

The judge dismissed SEIU’s claim that the District had interfered with the election and influenced the choice between employee organizations in violation of MMBA section 3506.5. The judge stated that there is no presumptive right of access to an employer’s facilities by union representatives during employees’ on-duty time. The judge found that the District’s requirements that visitors, including union representatives, give advance notice of their intent to visit a site and check in upon arrival were reasonable, given known safety issues and ongoing construction at the sites. The judge found no showing of preference for CEA or any influence on employees’ choices in the decertification election.

Sixth, the judge found that District agents were connected to or responsible for only one of the many alleged irregularities that SEIU claimed invalidated the election: namely, SEIU was not emailed the voter list. At one of its sites on election day, the District failed to simultaneously provide CEA and SEIU with a complete eligible voter list by 6:00 a.m. The District emailed CEA the list an hour before SEIU received it. The judge determined that SEIU was not harmed because it already had the voter list in its possession.

Conclusion
Employers who receive a decertification petition are placed in a difficult position. Based on the duty of strict neutrality, they cannot play favorites with either the incumbent or the challenger. However, because of the contentious environment during a campaign and the high stakes of an election, an employer may face accusations of interference or favoritism by an association that claims to have been slighted, even if the employer is simply following its own local rules with respect to communication and access issues. This decision underscores the fact that unintentional errors by an employer during the decertification process likely will not negate an otherwise appropriately conducted election unless the charging party is able to demonstrate actual harm.

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