| SAN DIEGO EDUCATION REPORT |
| mauralarkins.com |
http://www.documents.dgs.ca.
gov/oah/SEHO_Decisions/2007030218.pdf.
BEFORE THE OFFICE OF ADMINISTRATIVE
HEARINGS
SPECIAL EDUCATION DIVISION STATE OF
CALIFORNIA
In the Matter of: POWAY UNIFIED SCHOOL
DISTRICT
Petitioner,
v.
STUDENT,
Respondent.
OAH CASE NO. N2007030218
DECISION
Administrative Law Judge (ALJ) Susan Ruff of
the Office of Administrative Hearings, Special
Education Division, State of California (OAH),
heard this matter on April 5, 2007, in San
Diego, California.
Justin Shinnefield, Esq., of Atkinson,
Andelson, Loya, Ruud & Romo,
represented Petitioner Poway Unified
School District (District) at the hearing.
Theresa Kurtz, Director of Special
Education, and Emily Shieh, Assistant
Director of Special Education, appeared
on behalf of the District.
There was no appearance by or on
behalf of the Respondent (Student).
Service of the Notice of Hearing was made by
OAH on March 7, 2007, to the address for
Student and her mother on file with the
District. This is the same address on the
letterhead of the letter that Student’s mother
sent to the District on January 19, 2007.
During the hearing, the District personnel
confirmed that this is the address they have
for Student and her mother. Counsel for the
District attempted to contact Student’s
mother by telephone on the morning of the
hearing, but received an operator-recorded
message stating that the call did not go
through and to call again later.1The District’s
due process complaint was filed on March 6,
2007. At the close of evidence on April 5,
2007, the matter was taken under
submission. 1This was the same as or similar
to the recorded message that OAH received
when OAH attempted to telephone Student’s
mother for the telephonic prehearing
conference on April 2, 2007.
----------------------------------------------------------
----------------------
Page 2
ISSUE May the District assess Student
pursuant to the proposed assessment plan
that was sent to Student and her mother on
January 24, 2007? FACTUAL FINDINGS1.
Student is a 16-year-old girl who is in the
10th grade at Mt. Carmel High School, a
school within the District. She has never
been found eligible for special education. 2.
On January 19, 2007, Student’s mother faxed
a letter to the District which stated, in part: “I
am requesting that [Student] be assessed for
a Specific Learning Disability, and
understanding how her behavior is impeding
her learning, and why she hates school.
Additionally, [Student] has become very
depressed over the District’s case against
me.” 3. District personnel interpreted these
two sentences to be a request for an
assessment of Student. In order to assess a
child to see if the child has a specific learning
disability, a school district generally tests the
child’s academic achievement, cognitive
functioning and processing of information.
Because of the mention of depression in the
letter from Student’s mother, the District
personnel determined that a social/emotional
assessment was also necessary. 4. In
addition to the letter from Student’s mother,
the District had other reasons to believe an
assessment was warranted. During the
school semester that ended just prior to the
assessment request by Student’s mother,
Student’s grades had dropped significantly...
gov/oah/SEHO_Decisions/2007030218.pdf.
BEFORE THE OFFICE OF ADMINISTRATIVE
HEARINGS
SPECIAL EDUCATION DIVISION STATE OF
CALIFORNIA
In the Matter of: POWAY UNIFIED SCHOOL
DISTRICT
Petitioner,
v.
STUDENT,
Respondent.
OAH CASE NO. N2007030218
DECISION
Administrative Law Judge (ALJ) Susan Ruff of
the Office of Administrative Hearings, Special
Education Division, State of California (OAH),
heard this matter on April 5, 2007, in San
Diego, California.
Justin Shinnefield, Esq., of Atkinson,
Andelson, Loya, Ruud & Romo,
represented Petitioner Poway Unified
School District (District) at the hearing.
Theresa Kurtz, Director of Special
Education, and Emily Shieh, Assistant
Director of Special Education, appeared
on behalf of the District.
There was no appearance by or on
behalf of the Respondent (Student).
Service of the Notice of Hearing was made by
OAH on March 7, 2007, to the address for
Student and her mother on file with the
District. This is the same address on the
letterhead of the letter that Student’s mother
sent to the District on January 19, 2007.
During the hearing, the District personnel
confirmed that this is the address they have
for Student and her mother. Counsel for the
District attempted to contact Student’s
mother by telephone on the morning of the
hearing, but received an operator-recorded
message stating that the call did not go
through and to call again later.1The District’s
due process complaint was filed on March 6,
2007. At the close of evidence on April 5,
2007, the matter was taken under
submission. 1This was the same as or similar
to the recorded message that OAH received
when OAH attempted to telephone Student’s
mother for the telephonic prehearing
conference on April 2, 2007.
----------------------------------------------------------
----------------------
Page 2
ISSUE May the District assess Student
pursuant to the proposed assessment plan
that was sent to Student and her mother on
January 24, 2007? FACTUAL FINDINGS1.
Student is a 16-year-old girl who is in the
10th grade at Mt. Carmel High School, a
school within the District. She has never
been found eligible for special education. 2.
On January 19, 2007, Student’s mother faxed
a letter to the District which stated, in part: “I
am requesting that [Student] be assessed for
a Specific Learning Disability, and
understanding how her behavior is impeding
her learning, and why she hates school.
Additionally, [Student] has become very
depressed over the District’s case against
me.” 3. District personnel interpreted these
two sentences to be a request for an
assessment of Student. In order to assess a
child to see if the child has a specific learning
disability, a school district generally tests the
child’s academic achievement, cognitive
functioning and processing of information.
Because of the mention of depression in the
letter from Student’s mother, the District
personnel determined that a social/emotional
assessment was also necessary. 4. In
addition to the letter from Student’s mother,
the District had other reasons to believe an
assessment was warranted. During the
school semester that ended just prior to the
assessment request by Student’s mother,
Student’s grades had dropped significantly...
| Poway Unified School District sues student Attorney/teacher/teacher union executive Emily Shieh for the district |
| Student sues Poway http://www.documents.dgs.ca. gov/oah/seho_decisions/2005080077. pdf. BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS SPECIAL EDUCATION DIVISION STATE OF CALIFORNIA In the Matter of: STUDENT,Petitioner, vs. POWAY UNIFIED SCHOOL DISTRICT Respondent. OAH No. N 2005080077 DECISION Gary A. Geren, Administrative Law Judge (ALJ), Office of Administrative Hearings, Special Education Division (OAH), heard this matter on February 28- March 1, 2006, in San Diego, California. The Student’s mother (Parent) represented the Student (Student). Attorney Justin R. Shinnefield, from the law firm of Atkinson, Andelson, Loya, Ruud and Romo, represented the Poway Unified School District (District). Emily Shieh, Assistant Special Education Director, attended as District’s representative, and was present during most of the hearing. Student called the following witnesses to testify: Parent, Hillary Ward (School Psychologist); Betsy Ann Slavik (Occupational Therapist); Robin Lee Robinson (Area Administrator); McKayla La Borde (Resource Specialist); Barbara Everett (District’s Special Education Department Chair and Special Education Teacher); and Emily Shieh. District called the same witnesses to testify. Oral and documentary evidence were received. At the hearing’s conclusion on March 1, 2006, the record was closed, with two exceptions: (1) The parties were permitted to file ------------------------------------------------ -------------------------------- Page 2 closing briefs; and, (2) District was permitted to file and serve a motion for costs seeking reimbursement. District sought reimbursement of expenses it incurred because Parent faxed 651 pages of proposed exhibits to District’s counsel’s office prior to the commencement of the hearing. Parent was provided an opportunity to file a written response to District’s motion. District’s motion for sanctions was filed with OAH on March 7, 2006; Parent’s opposition thereto was filed on March 20, 2006. District’s closing brief was filed on March 15, 2006; Student’s closing brief was filed on March 17, 2006. All briefs were made part of the record, and with the receipt of Student’s brief on March 20, 2006, the record was closed. 1The ALJ will rule on District’s Motion for Sanctions as part of this decision. On November 14, 2005, Student filed a Request for a Due Process Hearing. On January 5, 2006, OAH ordered the hearing to commence on January 23, 2006. At a prehearing conference held on January 17, 2006, the hearing was postponed until March 28, 2006. OAH’s issuance of a final decision in this matter is due no later than April 20, 2006. ISSUES 1. Did the District appropriately assess Student for the 2004-2005 school year? 2. Did the District offer Student a free, appropriate public education (FAPE) for the 2004-2005 school year? 3. Did the District fail to prepare Student’s transition plan? 4. Should District’s Motion for Sanctions be [granted]? |
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Did the teachers
union interfere in
election of
classified
employees union?
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT
RELATIONS BOARD
POWAY UNIFIED
SCHOOL DISTRICT,
Employer,
and POWAY COUNCIL OF
CLASSIFIED EMPLOYEES,
CFT/AFT,
Petitioner,
and CALIFORNIA
SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Case No. LA-DP-333-E
Administrative Appeal
PERB Order No. Ad-310
October 10, 2001
Appearances:
Geffner & Bush by Steven
K. Ury, Attorney, for
Poway Council of
Classified Employees,
CFT/AFT, AFL-CIO;
California School
Employees Association by
David J. Dolloff, Attorney,
for California School
Employees Association
and its Poway Chapter 80.
Before Amador, Baker
and Whitehead, Members.
DECISION
AMADOR, Member:
This case is before the
Public Employment
Relations Board (PERB or
Board) on appeal by the
Poway Council of
Classified Employee
(PCCE) to an
administrative
determination (attached)
by a Board agent. The
administrative
determination found that
the election objections
filed by PCCE and the
California School
Employees Association
and its Poway Chapter 80
do not warrant setting
aside the election results
and dismissed them. After
reviewing the entire
record, the Board finds
the administrative
determination to be free
from prejudicial error and
adopts it as the decision
of the Board itself.
ORDER
The election objections
filed by the Poway Council
of Classified
Employees,CFT/AFT,
AFL-CIO and California
School Employees
Association and its Poway
Chapter 80 are
DISMISSED and the
election results shall be
certified. Members Baker
and Whitehead joined in
this Decision...
POWAY UNIFIED
SCHOOL DISTRICT,
REPRESENTATION
Employer, CASE NO.
LA-DP-333-E and POWAY
COUNCIL OF CLASSIFIED
EMPLOYEES, CFT/AFT,
ADMINISTRATIVE
DETERMINATION April 17,
2001 Petitioner, and
CALIFORNIA SCHOOL
EMPLOYEES
ASSOCIATION, Exclusive
Representative.
This administrative
determination finds that
the objections filed by the
Poway Council of
Classified Employees,
CFT/AFT, AFL-CIO
(PCCE) and California
School Employees
Association and its Poway
Chapter #80 (CSEA) do
not warrant setting aside
the election
results.BACKGROUNDFirst
ElectionOn April 28,
2000, PCCE filed a
decertification petition to
replace CSEA as the
exclusive representative
of the office-technical and
paraprofessional unit in
the Poway Unified School
District (District). An
election was held
pursuant to a consent
election agreement that
the parties reached in
June 2000. Two ballot
counts were conducted
and following the filing of
election objections on July
20, 2000, a third tally
issued which reflected the
following results:
----------------------------------
----------------------------------
------------
Page 4
Approximate number of
eligible voters 1,107 Void
Ballots
..........................................
............... 6 Votes cast for
CSEA.................................
.........353 Votes cast for
PCCE.................................
.........309 Votes cast for
No Representation
........................34 Valid
votes
counted..............................
.............696 Challenged
ballots................................
................ 2 Valid votes
counted plus challenged
ballots......698 The results
demonstrated that CSEA
had obtained a majority of
the valid votes counted.
Following a review of
election objections filed by
PCCE the Regional
Director determined
based on serious
irregularities in the
manner in which the
Public Employment
Relations Board (PERB)
monitored and counted
the votes in the mailed
ballot election, the
election results should be
set aside and a new
election should be held.
On December 22, 2000,
the Board itself upheld the
Regional Director's
recommendations and
ordered a new election.
(Poway Unified School
District (2000) PERB
Order No. Ad-306.)
Second Election Pursuant
to a Consent Election
Agreement, PERB mailed
ballots to eligible voters
on January 29, 2001; in
order to be counted, valid
ballots were due back to
PERB by February 16,
2001. On February 20,
2001,1a tally of ballots
was conducted.
The results of the initial
tally were: Approximate
number of eligible
voters..........1,079
Void Ballots
12 Votes cast for
CSEA.................................
.........347 Votes cast for
PCCE.................................
.........313 Votes cast for
No Representation
........................34 Valid
votes
counted..............................
.............694 Challenged
ballots................................
................ 0 Valid votes
counted plus challenged
ballots......694
_____________________
___ All dates referenced
hereinafter indicate 2001.
Twelve ballots were
voided in the initial tally as
a result of the voters
failing to sign the back of
the return envelopes as
directed in the voting
instructions. The parties
were asked, both prior to
the tally and following the
counting of ballots,
whether they would waive
the signature requirement
so that those ballots could
also be counted.2There
was no agreement to
waive the signature
requirement. The results
of this tally would have
required a runoff election
as no party received a
majority of ballots cast.
However, upon further
review of the twelve
envelopes, it was
determined that one of the
envelopes had the printed
name of the eligible voter
on the back of the return
envelope. CSEA
challenged the Board
agent's decision to void
this one ballot. The
Regional Director revised
the tally to reflect that
there were eleven void
ballots and one
challenged ballot. The
revised tally read as
follows: Approximate
number of eligible
voters..........1,079 Void
Ballots
..........................................
..............11 Votes cast for
CSEA.................................
.........347 Votes cast for
PCCE.................................
.........313 Votes cast for
No Representation
........................34 Valid
votes
counted..............................
.............694 Challenged
ballots................................
................ 1 Valid votes
counted plus challenged
ballots......695 This
alteration resulted in a
change in the outcome.
Rather than a runoff
election being required,
the challenged ballot
became outcome
determinative. / / / / / /
_____________________
___ 2PERB has a policy
that allows parties to an
election to waive the
requirement that a mailed
ballot return envelope be
signed by the eligible
voter, so long as PERB is
able toascertain from
whom the ballot is
received and it is the only
ballot received from that
voter.
----------------------------------
----------------------------------
------------
Page 6
INITIAL OBJECTIONS
PCCE and CSEA filed
timely objections to the
February 20 tally pursuant
to PERB
PCCE's Objections
The statement of
objections filed by PCCE
alleges
misrepresentations by
CSEA during the election
campaign and
interference with
employees at their work
places during work hours.
As evidence of the alleged
misrepresentations PCCE
provides: 1. An election
flyer on CSEA letterhead
that states:We are
pleased to announce the
results of the Ratification
vote. Chapter 313
members voted to
ACCEPT the Tentative
Agreement. In order to
insure that the Tentative
Agreement (8.25% salary
increase) will be
implemented, VOTE for
CSEA in the
representational election.
2. A letter from a classified
employee, Sandy
Dunigan, to
otherclassified employees
urging them to get full
information before voting
for CSEA or PCCE.
3. A letter to CSEA
Chapter President,
Candace Frankfather,
froman Executive Board
member who resigned her
post due to employees
"being told that if they do
not vote for CSEA, they
will lose their 8.25% raise."
4. A memo from Emily
Shieh of Poway
Federation of Teachers
to the District's Director
of Human Resources,
Rita Beyers, in which it
is urged that the
District issue a
statement that the
8.25% raise would occur
regardless of the
outcome of the
representational
election.
5. A memo from a
representative of Poway
Federation of Teachers to
a District Administrator
asking that the District
provide a statement of
clarification as to the
salary settlement for
classified employees. As
evidence of interference,
PCCE submitted a copy of
a letter from Rita Beyers
to CSEA Labor Relations
Representative Scott
Hendries in which the
District calls attention to
reports of CSEA
representatives meeting
and discussing the
election with employees
during working hours. The
letter reports two incidents
on January 30 and
February 7 where CSEA
organization
representatives allegedly
engaged employees in
conversation while they
were
working. There is no
indication how many
employees were present
or who the "CSEA
representatives" were.
CSEA's Objections
CSEA's objections relate
to the Regional Director's
ruling on one ballot upon
which there were markings
which CSEA believed
invalidated the ballot. The
ballot had an "x" marked
in the box assigned to
PCCE with a circle drawn
around the name of
PCCE. In the space for no
representation the ballot
had one diagonal slash
mark (one half of an "x")
below which appeared the
hand-printed words "no
rep. mistake" with an error
pointing to the singleslash
mark. The ballot was held
to be a valid ballot for
PCCE. CSEA cites
Government Code section
3544.74in arguing that the
Board agent erred in
counting a ballot that had
more than one mark on it.
CHALLENGED BALLOT
The undersigned began
an investigation of the
challenged ballot by
contacting the voter. This
interview revealed that the
eligible voter, Gayle E.
Andrus, deposited her
ballot in the mail in time to
be counted in the tally.
She was unable to
remember whether she
printed orsigned her name
on the back of the return
envelope. She indicated
that she sometimes prints
her name as an
authorized signature.
Based upon a comparison
of writing samples
obtained from District
records, from a
declaration Ms. Andrus
submitted, and the name
printed on the envelope, it
was determined that the
printed name was that of
Ms. Andrus. Because
there wasno evidence of
tampering and the ballot
was received before the
deadline for receipt, it was
determined that Ms.
Andrus' envelope should
be opened and the ballot
counted. The results of
that recount resulted in
the following: Approximate
number of eligible voters .
. . . . . . . . .1079 Void
Ballots . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .11
Votes cast for CSEA . . . .
. . . . . . . . . . . . . . . . . . . .
.348 Votes cast for PCCE
. . . . . . . . . . . . . . . . . . . . .
. . . .313 Votes cast for No
Representation . . . . . . . .
. . . . . . . 34 Valid votes
counted . . . . . . . . . . . . . .
. . . . . . . . . . .695
Challenged ballots . . . . . .
. . . . . . . . . . . . . . . . . . . . .
. 0 Valid votes counted
plus challenged ballots . .
. . . . .695 Based upon the
revised tally of ballots
CSEA obtained a majority
of the valid votes cast.
FOLLOW-UP
OBJECTIONS BY PCCE
PCCE filed timely
objections to the third tally
of ballots in which it
argued that the
challenged ballot should
not have been counted
due to the fact that there
was not a proper
signature on the return
envelope as required in
the voting instructions and
pursuant toprecedential
decisions of the National
Labor Relations Board
(NLRB). Further, PCCE
assertsthat if the ballot
cast by Andrus in an
unsigned envelope was to
be counted, the Board
agent should have
broadened the
investigation to include
the remaining eleven
unsigned and voided
ballots. PCCE asserts that
if those ballots were
determined to have been
deposited in the U.S. mail
by eligible voters, those
ballots should also be
counted.
POSITIONS OF THE
PARTIES
... On March 27, both
CSEA and PCCE filed
timely responses to the
objections raised by the
other. Neither response
provided declarations or
documentary evidence in
support of its claims.
CSEA's Position
As to PCCE's claim of
voter interference by
CSEA, CSEA asserts that
it did not engagein any
misconduct during the
election campaign and
that it did not interfere with
employee free choice.
CSEA cites Pasadena
Unified School District
(1985) PERB Decision No.
530 (Pasadena) as the
standard by which PERB
judges allegations of
election
misrepresentations.
Further, CSEA contends
that PCCE fails to provide
specific facts as required
by Regulation 32738(d).
Finally, CSEA raises an
argument in its response
that "unclean hands" by
PCCE during the election
campaign should prevent
PCCE's objections from
being reviewed.5CSEA
disputes the PCCE
objection related to the
unsigned envelope and
argues that the Board
agent acted properly in
reversing a voided ballot
and in counting Andrus'
ballot based on PERB's
investigation.
PCCE's Position
PCCE argues that the
Board agent acted
properly in resolving the
intent of a voter who had
made more than one mark
on his or her ballot.
However, PCCE continues
to assert misconduct by
CSEA and Board agent
error in resolving the
challenged ballot.
ISSUES
1. Did CSEA misrepresent
the facts through
campaign flyers,
speeches and
communiqués so as to
interfere with employee
free choice? 2. Did CSEA
interfere with employee
free choice by visiting
eligible employees during
working hours to discuss
the election?
3. Did the Board Agent
improperly determine the
selection of a ballot choice
on one voter's ballot?
4. Did the Board Agent
improperly determine that
a timely received ballot in
an unsigned but printed
return envelope should be
counted?
DISCUSSION
Pursuant to Regulation
32738, objections to the
conduct of an election are
entertained by PERB on
only two grounds: 1) The
conduct complained of
interfered with the
employees' right to freely
choose a representative,
or 2) Serious irregularity
in the conduct of the
election. A party objecting
to an election result must
first present a prima facie
showing of conduct that
constitutes one of the two
grounds. This includes a
factual showing that
employee choice was
affected or that the
conduct complained of
had a natural and
probable effect on
employee choice. (Santa
Monica Unified School
District and Community
College District (1978)
PERB Decision No. 52;
San Ramon Valley Unified
School District (1979)
PERB Decision No. 111;
Jefferson Elementary
School District (1981)
PERB Decision No. 164;
Pasadena 6After this
threshold showing is met,
PERB will decide whether
to set aside the
electionresult depending
"upon the totality of
circumstances raised in
each case and, when
appropriate, the
cumulative effect of the
conduct which forms the
basis for the relief
requested." (Clovis Unified
School District (1984)
PERB Decision No. 389;
State of California
(Department of
Personnel Administration)
(1986) PERB Decision No.
601-S.) Thus, even where
some impact on voters
can be inferred, the
election result will not
always be set aside.
Regulation 32738(g)
requires the Board agent
to dismiss election
objections which do not
"satisfy the requirements
of subsections (a) through
(d)." Even if not subject to
dismissal under
Regulation 32738(g),
objections are to be
dismissed by the Board
agent if, after
investigation, the
objections "do not warrant
setting aside the election."
(Regulation 32739(f).)
Alternatively, the Board
agent may set aside the
election if the results of
the investigation warrant
such action. (Regulation
32739(g).) PCCE's
Objection Alleging CSEA
Misrepresentation and
InterferenceIn Pasadena,
PERB adopted the NLRB
standard set forth in
Midland National Life
Insurance Co. (1982) 163
NLRB 127 [110 LRRM
1489], in which the NLRB
stated it would: . . . no
longer probe into the truth
or falsity of the party's
campaign statements, and
that we will not set
elections aside on the
basis of misleading
campaign statements. We
will, however, intervene in
cases where a party has
used forged documents
which render the voters
unable to recognize
propaganda for whatit is.
Thus, we will set an
election aside not
because of the substance
of the representation, but
the deceptive manner in
which it was made, a
manner which renders
employees unable to
evaluate the forgery for
what it is . . . The
campaign flyer on CSEA
letterhead which urges
employees to vote for
CSEA "to ensure that the
Tentative Agreement will
be implemented" does not
rise to the level of a
misrepresentation under
the Pasadena standard.
(See also Santa Clara
Unified School
District(1993) PERB Order
No. Ad-244.) There is no
evidence of fraud but
rather an opinion as to
what might happen if
CSEA does not win the
election. This election
flyer does render an
employee unable to
ascertain the truth.PCCE
submitted a memo from
classified employee Sandy
Dunigan to her coworkers
(Attachment D) as part of
the evidence to establish
misrepresentation by
CSEA. This memo
effectively refutes PCCE's
argument that employees
were misled. If Ms.
Dunigan were able tosee
this as campaign
propaganda, arguably
other employees would
also. For this reason, this
objection is dismissed.
The copy of the letter from
the District to CSEA,
pointing out what the
District felt were
indiscretions by CSEA
representatives, does not
substantiate a claim that
employees' rights to freely
choose a representative
were interfered with. The
letter from the District to a
CSEA representative only
contends that employees
were engaged in
conversations with CSEA
representatives during
working hours on two
occassions.. There is no
contention that CSEA
caused any interference
with employee rights. An
allegation of unlawful
interference in an election
setting can not be
assumed. (See Jefferson
Elementary School District
(1981) PERB Decision No.
164.) The reported
incidents were apparently
isolated and there was
noinformation provided by
PCCE as to what probable
impact these two incidents
may have had on a unit of
over 1,000 members.
Therefore, the PCCE
initial objections do not
warrant setting aside the
results of the February 20
tally. CSEA's Objection
That Ballot With More
than One Mark Should
Have Been Voided Since
its inception, the Board's
policy and practice has
been to maintain and
protect the integrity and
neutrality of its election
processes with an eye
towards maintaining high
standards to avoid any
taint in the balloting
process. (Tamalpais
Union High School
District(1976) EERB
Decision No. 1.)7In order
for the Board to succeed
in its mission the parties
must have confidence in
the Board's processes. As
the NLRB noted: The
commission of an act by a
Board agent conducting
an election which tends to
destroy confidence in the
Board's election process,
orwhich could reasonably
be interpreted as
impugning the election
standards we seek to
maintain, is a sufficient
basis for setting aside
the election. (Athbro
Precision Engineering
Corp., 166 NLRB No. 116
[65 LRRM 1699].) Election
objections regarding the
integrity of the election
process require
assessment of whether a
reasonable possibility of
irregularity exists. Since
this is paramount, "the
Board goes to great
lengths to ensure that the
manner in which elections
are conducted raises no
reasonable doubt as to
their fairness or validity."
(San Diego USD, supra.)
As to CSEA's objections
that the Board agent
abused her discretion by
deciding a ballotthat had
more than one mark in it
should be counted, there
is no evidence that the
intent of the voter was
misrepresented by the
Board agent's count.
CSEA attempts to portray
NLRB decisions in
mismarked ballot cases as
divided. However, the
NLRB has clearly stated
that itwill "count a ballot
where, despite an
irregularity in the manner
in which it has been
marked, itclearly
expresses the voter's
intent." (See Brooks
Brothers 316 NLRB 176
(1995); also Mediplex 319
NLRB 281 (1995)
(counting a ballot marked
as a "no" vote where the
"yes" boxwas marked but
had eraser marks and
"no" vote was marked with
a double line).) CSEA
argues that more than
one mark on a ballot
demonstrates a second
choice and the ballot
should be voided. CSEA
relies on the language of
Government Code section
3544.7(a) that states: "
Any ballot upon which
there is recorded more
than one choice shall be
void and not be counted."
However, it is possible for
a voter to make more than
one mark on a ballot and
not make two choices. For
example, if a voter were to
underline California in
California School
Employees Association
and place an "x" in the No
Representation box it is
reasonableto assume that
the "x" is the choice of the
voter and that the
underline of California was
not a choice.Based on the
Board agent's review of
the ballot and the due
discretion applied to the
marks on the ballot, the
Board agent acted
properly in counting the
ballot as valid. The
statutory language relied
upon by CSEA does not
eliminate the responsibility
of the Board agent to
ascertain the intent of a
voter who has made more
than one mark on a ballot.
CSEA's objection does not
demonstrate that the
Board agent erred in
counting a completed "x"
in one box and deciding a
"\" in another box was not
another choice, given the
written comments of the
voter.
PCCE's Objection to
Counting Ballot in
Unsigned Envelope
PCCE references the
integrity of the mail ballot
system in its follow-up
objection and in support
of its argument that the
Board agent should not
have counted the
challenged ballot. PCCE
cites Thompson Roofing
291 NLRB 743 (1980) as
the rule PERB should
follow. That decision held
that the Board agent
acted properly in not
counting a mailed ballot
that had a printed name
rather than a written name
of the voter.8PCCE
argues that if PERB
decides voters need not
follow voting instructions,
it will have difficulty
enforcing any of its voting
procedures in mail ballot
elections in the future.
PCCE questions the
credibility and integrity of
the PERB election
process in light of the
earlier errors in counting
ballots and the
subsequent ruling in this
matter, an election
decided by one vote.
PERB's election
instructions in this
election, as in all mailed
ballot elections, advised
voters to read the entire
ballot; to mark an x with a
pen or pencil in one box
only; to not sign the ballot;
to not fold the ballot; to
place their ballot in the
secret ballot envelope; to
place theirsecret ballot
envelope into the postage
paid return envelope and
seal the envelope; to print
and sign their name in the
spaces provided on the
back of the envelope and
to place it in the U.S. mail
in time to be received by
the deadline. In this case,
as in all other PERB run
mailed ballot elections, the
parties were asked if they
wanted to waive the
signature requirement
based on PERB's
assurance that ballots
received were
identifiable as those from
eligible voters. CSEA and
the District agreed to
waive the signature
requirement, but PCCE
was not willing to waive
the requirement. Based
on PCCE's refusal to
agree to the signature
waiver, 11 ballots were
voided. Atthe meeting to
discuss the challenged
ballot, PCCE attempted to,
in effect, de-void the
ballots by requesting
CSEA and the District to
sign a waiver. CSEA
refused to sign a waiver
and indicated those
ballots should not affect
the outcome. PCCE's
attempt to characterize
PERB's counting of a
ballot from a voter who did
not sign in cursive as the
start of a slippery slope
thatwill undercut the
parties' view of the
sanctity of PERB run
elections is undercut by
PERB's long standing
policy to allow the parties
to waive the signature
requirement. PCCE's own
eleventh hour attempt to
get the parties to agree to
a waiver undercuts its
argument that an
unsigned ballot is not
properly cast. PERB does
require a voter to confirm,
by placing their name on a
returned ballot envelope,
that he/she cast the ballot.
That process was
completed here. The
eligible voterfurther
confirmed, through a
declaration and in phone
conversations with the
Board agent, that she did
place the ballot in the mail
and that she either printed
or signed her name on the
back of the returned
envelope. The
requirement that the voter
affirm that he/she was in
control of the ballot was
met in this case. There
was no evidence to the
contrary. PCCE's
argument that PERB
should have conducted
the same type of
investigation with the
other unsigned ballots is
meritless due to the fact
that those ballots were
voided at theinitial tally
and were not challenged
by any party and
therefore not subject to
further investigation. The
objection that the
challenged ballot should
not be counted is
dismissed.
CONCLUSIONS OF
LAWBased upon the
reasons stated above,
both CSEA's and PCCE's
election objections are
DISMISSED and the
election results shall be
certified. ... A party
seeking a stay of any
activity may file such a
request with its
administrative appeal, and
must include all pertinent
facts and justifications for
the request (Cal. Code
Regs., tit. 8, sec. 32370).
Roger Smith Labor
Relations Specialist
http://www.perb.ca.gov/decisio
nbank/pdfs/A310E.pdf.
union interfere in
election of
classified
employees union?
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT
RELATIONS BOARD
POWAY UNIFIED
SCHOOL DISTRICT,
Employer,
and POWAY COUNCIL OF
CLASSIFIED EMPLOYEES,
CFT/AFT,
Petitioner,
and CALIFORNIA
SCHOOL EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Case No. LA-DP-333-E
Administrative Appeal
PERB Order No. Ad-310
October 10, 2001
Appearances:
Geffner & Bush by Steven
K. Ury, Attorney, for
Poway Council of
Classified Employees,
CFT/AFT, AFL-CIO;
California School
Employees Association by
David J. Dolloff, Attorney,
for California School
Employees Association
and its Poway Chapter 80.
Before Amador, Baker
and Whitehead, Members.
DECISION
AMADOR, Member:
This case is before the
Public Employment
Relations Board (PERB or
Board) on appeal by the
Poway Council of
Classified Employee
(PCCE) to an
administrative
determination (attached)
by a Board agent. The
administrative
determination found that
the election objections
filed by PCCE and the
California School
Employees Association
and its Poway Chapter 80
do not warrant setting
aside the election results
and dismissed them. After
reviewing the entire
record, the Board finds
the administrative
determination to be free
from prejudicial error and
adopts it as the decision
of the Board itself.
ORDER
The election objections
filed by the Poway Council
of Classified
Employees,CFT/AFT,
AFL-CIO and California
School Employees
Association and its Poway
Chapter 80 are
DISMISSED and the
election results shall be
certified. Members Baker
and Whitehead joined in
this Decision...
POWAY UNIFIED
SCHOOL DISTRICT,
REPRESENTATION
Employer, CASE NO.
LA-DP-333-E and POWAY
COUNCIL OF CLASSIFIED
EMPLOYEES, CFT/AFT,
ADMINISTRATIVE
DETERMINATION April 17,
2001 Petitioner, and
CALIFORNIA SCHOOL
EMPLOYEES
ASSOCIATION, Exclusive
Representative.
This administrative
determination finds that
the objections filed by the
Poway Council of
Classified Employees,
CFT/AFT, AFL-CIO
(PCCE) and California
School Employees
Association and its Poway
Chapter #80 (CSEA) do
not warrant setting aside
the election
results.BACKGROUNDFirst
ElectionOn April 28,
2000, PCCE filed a
decertification petition to
replace CSEA as the
exclusive representative
of the office-technical and
paraprofessional unit in
the Poway Unified School
District (District). An
election was held
pursuant to a consent
election agreement that
the parties reached in
June 2000. Two ballot
counts were conducted
and following the filing of
election objections on July
20, 2000, a third tally
issued which reflected the
following results:
----------------------------------
----------------------------------
------------
Page 4
Approximate number of
eligible voters 1,107 Void
Ballots
..........................................
............... 6 Votes cast for
CSEA.................................
.........353 Votes cast for
PCCE.................................
.........309 Votes cast for
No Representation
........................34 Valid
votes
counted..............................
.............696 Challenged
ballots................................
................ 2 Valid votes
counted plus challenged
ballots......698 The results
demonstrated that CSEA
had obtained a majority of
the valid votes counted.
Following a review of
election objections filed by
PCCE the Regional
Director determined
based on serious
irregularities in the
manner in which the
Public Employment
Relations Board (PERB)
monitored and counted
the votes in the mailed
ballot election, the
election results should be
set aside and a new
election should be held.
On December 22, 2000,
the Board itself upheld the
Regional Director's
recommendations and
ordered a new election.
(Poway Unified School
District (2000) PERB
Order No. Ad-306.)
Second Election Pursuant
to a Consent Election
Agreement, PERB mailed
ballots to eligible voters
on January 29, 2001; in
order to be counted, valid
ballots were due back to
PERB by February 16,
2001. On February 20,
2001,1a tally of ballots
was conducted.
The results of the initial
tally were: Approximate
number of eligible
voters..........1,079
Void Ballots
12 Votes cast for
CSEA.................................
.........347 Votes cast for
PCCE.................................
.........313 Votes cast for
No Representation
........................34 Valid
votes
counted..............................
.............694 Challenged
ballots................................
................ 0 Valid votes
counted plus challenged
ballots......694
_____________________
___ All dates referenced
hereinafter indicate 2001.
Twelve ballots were
voided in the initial tally as
a result of the voters
failing to sign the back of
the return envelopes as
directed in the voting
instructions. The parties
were asked, both prior to
the tally and following the
counting of ballots,
whether they would waive
the signature requirement
so that those ballots could
also be counted.2There
was no agreement to
waive the signature
requirement. The results
of this tally would have
required a runoff election
as no party received a
majority of ballots cast.
However, upon further
review of the twelve
envelopes, it was
determined that one of the
envelopes had the printed
name of the eligible voter
on the back of the return
envelope. CSEA
challenged the Board
agent's decision to void
this one ballot. The
Regional Director revised
the tally to reflect that
there were eleven void
ballots and one
challenged ballot. The
revised tally read as
follows: Approximate
number of eligible
voters..........1,079 Void
Ballots
..........................................
..............11 Votes cast for
CSEA.................................
.........347 Votes cast for
PCCE.................................
.........313 Votes cast for
No Representation
........................34 Valid
votes
counted..............................
.............694 Challenged
ballots................................
................ 1 Valid votes
counted plus challenged
ballots......695 This
alteration resulted in a
change in the outcome.
Rather than a runoff
election being required,
the challenged ballot
became outcome
determinative. / / / / / /
_____________________
___ 2PERB has a policy
that allows parties to an
election to waive the
requirement that a mailed
ballot return envelope be
signed by the eligible
voter, so long as PERB is
able toascertain from
whom the ballot is
received and it is the only
ballot received from that
voter.
----------------------------------
----------------------------------
------------
Page 6
INITIAL OBJECTIONS
PCCE and CSEA filed
timely objections to the
February 20 tally pursuant
to PERB
PCCE's Objections
The statement of
objections filed by PCCE
alleges
misrepresentations by
CSEA during the election
campaign and
interference with
employees at their work
places during work hours.
As evidence of the alleged
misrepresentations PCCE
provides: 1. An election
flyer on CSEA letterhead
that states:We are
pleased to announce the
results of the Ratification
vote. Chapter 313
members voted to
ACCEPT the Tentative
Agreement. In order to
insure that the Tentative
Agreement (8.25% salary
increase) will be
implemented, VOTE for
CSEA in the
representational election.
2. A letter from a classified
employee, Sandy
Dunigan, to
otherclassified employees
urging them to get full
information before voting
for CSEA or PCCE.
3. A letter to CSEA
Chapter President,
Candace Frankfather,
froman Executive Board
member who resigned her
post due to employees
"being told that if they do
not vote for CSEA, they
will lose their 8.25% raise."
4. A memo from Emily
Shieh of Poway
Federation of Teachers
to the District's Director
of Human Resources,
Rita Beyers, in which it
is urged that the
District issue a
statement that the
8.25% raise would occur
regardless of the
outcome of the
representational
election.
5. A memo from a
representative of Poway
Federation of Teachers to
a District Administrator
asking that the District
provide a statement of
clarification as to the
salary settlement for
classified employees. As
evidence of interference,
PCCE submitted a copy of
a letter from Rita Beyers
to CSEA Labor Relations
Representative Scott
Hendries in which the
District calls attention to
reports of CSEA
representatives meeting
and discussing the
election with employees
during working hours. The
letter reports two incidents
on January 30 and
February 7 where CSEA
organization
representatives allegedly
engaged employees in
conversation while they
were
working. There is no
indication how many
employees were present
or who the "CSEA
representatives" were.
CSEA's Objections
CSEA's objections relate
to the Regional Director's
ruling on one ballot upon
which there were markings
which CSEA believed
invalidated the ballot. The
ballot had an "x" marked
in the box assigned to
PCCE with a circle drawn
around the name of
PCCE. In the space for no
representation the ballot
had one diagonal slash
mark (one half of an "x")
below which appeared the
hand-printed words "no
rep. mistake" with an error
pointing to the singleslash
mark. The ballot was held
to be a valid ballot for
PCCE. CSEA cites
Government Code section
3544.74in arguing that the
Board agent erred in
counting a ballot that had
more than one mark on it.
CHALLENGED BALLOT
The undersigned began
an investigation of the
challenged ballot by
contacting the voter. This
interview revealed that the
eligible voter, Gayle E.
Andrus, deposited her
ballot in the mail in time to
be counted in the tally.
She was unable to
remember whether she
printed orsigned her name
on the back of the return
envelope. She indicated
that she sometimes prints
her name as an
authorized signature.
Based upon a comparison
of writing samples
obtained from District
records, from a
declaration Ms. Andrus
submitted, and the name
printed on the envelope, it
was determined that the
printed name was that of
Ms. Andrus. Because
there wasno evidence of
tampering and the ballot
was received before the
deadline for receipt, it was
determined that Ms.
Andrus' envelope should
be opened and the ballot
counted. The results of
that recount resulted in
the following: Approximate
number of eligible voters .
. . . . . . . . .1079 Void
Ballots . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . .11
Votes cast for CSEA . . . .
. . . . . . . . . . . . . . . . . . . .
.348 Votes cast for PCCE
. . . . . . . . . . . . . . . . . . . . .
. . . .313 Votes cast for No
Representation . . . . . . . .
. . . . . . . 34 Valid votes
counted . . . . . . . . . . . . . .
. . . . . . . . . . .695
Challenged ballots . . . . . .
. . . . . . . . . . . . . . . . . . . . .
. 0 Valid votes counted
plus challenged ballots . .
. . . . .695 Based upon the
revised tally of ballots
CSEA obtained a majority
of the valid votes cast.
FOLLOW-UP
OBJECTIONS BY PCCE
PCCE filed timely
objections to the third tally
of ballots in which it
argued that the
challenged ballot should
not have been counted
due to the fact that there
was not a proper
signature on the return
envelope as required in
the voting instructions and
pursuant toprecedential
decisions of the National
Labor Relations Board
(NLRB). Further, PCCE
assertsthat if the ballot
cast by Andrus in an
unsigned envelope was to
be counted, the Board
agent should have
broadened the
investigation to include
the remaining eleven
unsigned and voided
ballots. PCCE asserts that
if those ballots were
determined to have been
deposited in the U.S. mail
by eligible voters, those
ballots should also be
counted.
POSITIONS OF THE
PARTIES
... On March 27, both
CSEA and PCCE filed
timely responses to the
objections raised by the
other. Neither response
provided declarations or
documentary evidence in
support of its claims.
CSEA's Position
As to PCCE's claim of
voter interference by
CSEA, CSEA asserts that
it did not engagein any
misconduct during the
election campaign and
that it did not interfere with
employee free choice.
CSEA cites Pasadena
Unified School District
(1985) PERB Decision No.
530 (Pasadena) as the
standard by which PERB
judges allegations of
election
misrepresentations.
Further, CSEA contends
that PCCE fails to provide
specific facts as required
by Regulation 32738(d).
Finally, CSEA raises an
argument in its response
that "unclean hands" by
PCCE during the election
campaign should prevent
PCCE's objections from
being reviewed.5CSEA
disputes the PCCE
objection related to the
unsigned envelope and
argues that the Board
agent acted properly in
reversing a voided ballot
and in counting Andrus'
ballot based on PERB's
investigation.
PCCE's Position
PCCE argues that the
Board agent acted
properly in resolving the
intent of a voter who had
made more than one mark
on his or her ballot.
However, PCCE continues
to assert misconduct by
CSEA and Board agent
error in resolving the
challenged ballot.
ISSUES
1. Did CSEA misrepresent
the facts through
campaign flyers,
speeches and
communiqués so as to
interfere with employee
free choice? 2. Did CSEA
interfere with employee
free choice by visiting
eligible employees during
working hours to discuss
the election?
3. Did the Board Agent
improperly determine the
selection of a ballot choice
on one voter's ballot?
4. Did the Board Agent
improperly determine that
a timely received ballot in
an unsigned but printed
return envelope should be
counted?
DISCUSSION
Pursuant to Regulation
32738, objections to the
conduct of an election are
entertained by PERB on
only two grounds: 1) The
conduct complained of
interfered with the
employees' right to freely
choose a representative,
or 2) Serious irregularity
in the conduct of the
election. A party objecting
to an election result must
first present a prima facie
showing of conduct that
constitutes one of the two
grounds. This includes a
factual showing that
employee choice was
affected or that the
conduct complained of
had a natural and
probable effect on
employee choice. (Santa
Monica Unified School
District and Community
College District (1978)
PERB Decision No. 52;
San Ramon Valley Unified
School District (1979)
PERB Decision No. 111;
Jefferson Elementary
School District (1981)
PERB Decision No. 164;
Pasadena 6After this
threshold showing is met,
PERB will decide whether
to set aside the
electionresult depending
"upon the totality of
circumstances raised in
each case and, when
appropriate, the
cumulative effect of the
conduct which forms the
basis for the relief
requested." (Clovis Unified
School District (1984)
PERB Decision No. 389;
State of California
(Department of
Personnel Administration)
(1986) PERB Decision No.
601-S.) Thus, even where
some impact on voters
can be inferred, the
election result will not
always be set aside.
Regulation 32738(g)
requires the Board agent
to dismiss election
objections which do not
"satisfy the requirements
of subsections (a) through
(d)." Even if not subject to
dismissal under
Regulation 32738(g),
objections are to be
dismissed by the Board
agent if, after
investigation, the
objections "do not warrant
setting aside the election."
(Regulation 32739(f).)
Alternatively, the Board
agent may set aside the
election if the results of
the investigation warrant
such action. (Regulation
32739(g).) PCCE's
Objection Alleging CSEA
Misrepresentation and
InterferenceIn Pasadena,
PERB adopted the NLRB
standard set forth in
Midland National Life
Insurance Co. (1982) 163
NLRB 127 [110 LRRM
1489], in which the NLRB
stated it would: . . . no
longer probe into the truth
or falsity of the party's
campaign statements, and
that we will not set
elections aside on the
basis of misleading
campaign statements. We
will, however, intervene in
cases where a party has
used forged documents
which render the voters
unable to recognize
propaganda for whatit is.
Thus, we will set an
election aside not
because of the substance
of the representation, but
the deceptive manner in
which it was made, a
manner which renders
employees unable to
evaluate the forgery for
what it is . . . The
campaign flyer on CSEA
letterhead which urges
employees to vote for
CSEA "to ensure that the
Tentative Agreement will
be implemented" does not
rise to the level of a
misrepresentation under
the Pasadena standard.
(See also Santa Clara
Unified School
District(1993) PERB Order
No. Ad-244.) There is no
evidence of fraud but
rather an opinion as to
what might happen if
CSEA does not win the
election. This election
flyer does render an
employee unable to
ascertain the truth.PCCE
submitted a memo from
classified employee Sandy
Dunigan to her coworkers
(Attachment D) as part of
the evidence to establish
misrepresentation by
CSEA. This memo
effectively refutes PCCE's
argument that employees
were misled. If Ms.
Dunigan were able tosee
this as campaign
propaganda, arguably
other employees would
also. For this reason, this
objection is dismissed.
The copy of the letter from
the District to CSEA,
pointing out what the
District felt were
indiscretions by CSEA
representatives, does not
substantiate a claim that
employees' rights to freely
choose a representative
were interfered with. The
letter from the District to a
CSEA representative only
contends that employees
were engaged in
conversations with CSEA
representatives during
working hours on two
occassions.. There is no
contention that CSEA
caused any interference
with employee rights. An
allegation of unlawful
interference in an election
setting can not be
assumed. (See Jefferson
Elementary School District
(1981) PERB Decision No.
164.) The reported
incidents were apparently
isolated and there was
noinformation provided by
PCCE as to what probable
impact these two incidents
may have had on a unit of
over 1,000 members.
Therefore, the PCCE
initial objections do not
warrant setting aside the
results of the February 20
tally. CSEA's Objection
That Ballot With More
than One Mark Should
Have Been Voided Since
its inception, the Board's
policy and practice has
been to maintain and
protect the integrity and
neutrality of its election
processes with an eye
towards maintaining high
standards to avoid any
taint in the balloting
process. (Tamalpais
Union High School
District(1976) EERB
Decision No. 1.)7In order
for the Board to succeed
in its mission the parties
must have confidence in
the Board's processes. As
the NLRB noted: The
commission of an act by a
Board agent conducting
an election which tends to
destroy confidence in the
Board's election process,
orwhich could reasonably
be interpreted as
impugning the election
standards we seek to
maintain, is a sufficient
basis for setting aside
the election. (Athbro
Precision Engineering
Corp., 166 NLRB No. 116
[65 LRRM 1699].) Election
objections regarding the
integrity of the election
process require
assessment of whether a
reasonable possibility of
irregularity exists. Since
this is paramount, "the
Board goes to great
lengths to ensure that the
manner in which elections
are conducted raises no
reasonable doubt as to
their fairness or validity."
(San Diego USD, supra.)
As to CSEA's objections
that the Board agent
abused her discretion by
deciding a ballotthat had
more than one mark in it
should be counted, there
is no evidence that the
intent of the voter was
misrepresented by the
Board agent's count.
CSEA attempts to portray
NLRB decisions in
mismarked ballot cases as
divided. However, the
NLRB has clearly stated
that itwill "count a ballot
where, despite an
irregularity in the manner
in which it has been
marked, itclearly
expresses the voter's
intent." (See Brooks
Brothers 316 NLRB 176
(1995); also Mediplex 319
NLRB 281 (1995)
(counting a ballot marked
as a "no" vote where the
"yes" boxwas marked but
had eraser marks and
"no" vote was marked with
a double line).) CSEA
argues that more than
one mark on a ballot
demonstrates a second
choice and the ballot
should be voided. CSEA
relies on the language of
Government Code section
3544.7(a) that states: "
Any ballot upon which
there is recorded more
than one choice shall be
void and not be counted."
However, it is possible for
a voter to make more than
one mark on a ballot and
not make two choices. For
example, if a voter were to
underline California in
California School
Employees Association
and place an "x" in the No
Representation box it is
reasonableto assume that
the "x" is the choice of the
voter and that the
underline of California was
not a choice.Based on the
Board agent's review of
the ballot and the due
discretion applied to the
marks on the ballot, the
Board agent acted
properly in counting the
ballot as valid. The
statutory language relied
upon by CSEA does not
eliminate the responsibility
of the Board agent to
ascertain the intent of a
voter who has made more
than one mark on a ballot.
CSEA's objection does not
demonstrate that the
Board agent erred in
counting a completed "x"
in one box and deciding a
"\" in another box was not
another choice, given the
written comments of the
voter.
PCCE's Objection to
Counting Ballot in
Unsigned Envelope
PCCE references the
integrity of the mail ballot
system in its follow-up
objection and in support
of its argument that the
Board agent should not
have counted the
challenged ballot. PCCE
cites Thompson Roofing
291 NLRB 743 (1980) as
the rule PERB should
follow. That decision held
that the Board agent
acted properly in not
counting a mailed ballot
that had a printed name
rather than a written name
of the voter.8PCCE
argues that if PERB
decides voters need not
follow voting instructions,
it will have difficulty
enforcing any of its voting
procedures in mail ballot
elections in the future.
PCCE questions the
credibility and integrity of
the PERB election
process in light of the
earlier errors in counting
ballots and the
subsequent ruling in this
matter, an election
decided by one vote.
PERB's election
instructions in this
election, as in all mailed
ballot elections, advised
voters to read the entire
ballot; to mark an x with a
pen or pencil in one box
only; to not sign the ballot;
to not fold the ballot; to
place their ballot in the
secret ballot envelope; to
place theirsecret ballot
envelope into the postage
paid return envelope and
seal the envelope; to print
and sign their name in the
spaces provided on the
back of the envelope and
to place it in the U.S. mail
in time to be received by
the deadline. In this case,
as in all other PERB run
mailed ballot elections, the
parties were asked if they
wanted to waive the
signature requirement
based on PERB's
assurance that ballots
received were
identifiable as those from
eligible voters. CSEA and
the District agreed to
waive the signature
requirement, but PCCE
was not willing to waive
the requirement. Based
on PCCE's refusal to
agree to the signature
waiver, 11 ballots were
voided. Atthe meeting to
discuss the challenged
ballot, PCCE attempted to,
in effect, de-void the
ballots by requesting
CSEA and the District to
sign a waiver. CSEA
refused to sign a waiver
and indicated those
ballots should not affect
the outcome. PCCE's
attempt to characterize
PERB's counting of a
ballot from a voter who did
not sign in cursive as the
start of a slippery slope
thatwill undercut the
parties' view of the
sanctity of PERB run
elections is undercut by
PERB's long standing
policy to allow the parties
to waive the signature
requirement. PCCE's own
eleventh hour attempt to
get the parties to agree to
a waiver undercuts its
argument that an
unsigned ballot is not
properly cast. PERB does
require a voter to confirm,
by placing their name on a
returned ballot envelope,
that he/she cast the ballot.
That process was
completed here. The
eligible voterfurther
confirmed, through a
declaration and in phone
conversations with the
Board agent, that she did
place the ballot in the mail
and that she either printed
or signed her name on the
back of the returned
envelope. The
requirement that the voter
affirm that he/she was in
control of the ballot was
met in this case. There
was no evidence to the
contrary. PCCE's
argument that PERB
should have conducted
the same type of
investigation with the
other unsigned ballots is
meritless due to the fact
that those ballots were
voided at theinitial tally
and were not challenged
by any party and
therefore not subject to
further investigation. The
objection that the
challenged ballot should
not be counted is
dismissed.
CONCLUSIONS OF
LAWBased upon the
reasons stated above,
both CSEA's and PCCE's
election objections are
DISMISSED and the
election results shall be
certified. ... A party
seeking a stay of any
activity may file such a
request with its
administrative appeal, and
must include all pertinent
facts and justifications for
the request (Cal. Code
Regs., tit. 8, sec. 32370).
Roger Smith Labor
Relations Specialist
http://www.perb.ca.gov/decisio
nbank/pdfs/A310E.pdf.