PERB Affirms Office of General Counsel’s Administrative Decision To Stay Decertification Election Pending Resolution Of Union’s UPC

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Oct 06, 2023

Operating Engineers Local 3 (OE3), AFL-CIO was certified as the exclusive representative of certain employees of the Consolidated Irrigation District.  In January 2023, before the Union had negotiated a preliminary contract with the District, a group of District employees filed a petition to decertify the Union.  In March 2023, the Union filed an unfair practice charge (UPC) alleging that the District had: facilitated the decertification petition; promised benefits to employees in exchange for decertifying the Union; and refused to negotiate with the Union pending the results of the decertification proceedings.  OE3’s UPC included a request that PERB stay the decertification election pending resolution of the UPC, alleging that the District’s conduct, if true, would likely interfere with employee free choice and influence employees in their vote.

The Public Employment Relations Board’s (PERB’s) Office of General Counsel (OGC) reviewed the Union’s request to stay the decertification election.  The OGC made an administrative determination to stay the charge.  The District appealed the OGC’s administrative determination to PERB.

In determining whether an election stay is warranted, PERB “does not resolve factual disputes” and “assumes that the essential facts alleged in the charge are true.”  In an appeal concerning an administrative stay of a decertification election, PERB determines whether the OGC abused its discretion.

PERB reviewed the Union’s allegations, which centered around the actions of Assistant Foreman Ricardo Cavazos.  Cavazos supervised the employees at issue and served as a manager in the foreman’s absence.  Around December 2022, District management allegedly instructed Cavazos how to solicit Unit member support for decertifying the Union as the exclusive representative, including promising Unit members a pay raise in exchange for decertifying the Union.  Cavazos allegedly circulated a decertification petition and informed Unit members that they would receive a raise in exchange for signing the petition.

After the decertification petition was filed, the Union alleged it attempted to continue with contract negotiations, including scheduling a session for March 15, 2023.  Union Business Agent, Allen Dunbar, repeatedly requested the District to provide contract proposals, but the District did not do so.  During the March 15 session, the District allegedly declared that it would not continue with contract negotiations until the decertification process was completed.  The District also allegedly refused to engage with the Union on outstanding matters.

During the PERB proceedings, the parties argued whether Cavazos was an agent of the District.  PERB noted that several of the allegations related to Cavazos were of such a nature that they would likely taint the election even if Cavazos was not an agent.  PERB said that to the extent the District instructed Cavazos to circulate a decertification petition, and gave him leeway to promise benefits in exchange for decertifying OE3, the District’s alleged conduct would likely impact employee free choice, whether or not OE3 could establish Cavazos’s actual or apparent agency.

Finally, PERB found that the District’s alleged refusal to negotiate pending the resolution of decertification proceedings independently supported staying the election.   

Consolidated Irrigation District, Group of Employees, and OE3– PERB Order No. AD-504M, August 14, 2023.

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