| 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/decisionbank/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/decisionbank/pdfs/A310E.pdf.