National Union of Healthcare Workers (PERB 2249M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NATIONAL UNION OF HEAL TH CARE
WORKERS,
Charging Party,
V.
SEIU-lJNITED HEALTHCARE WORKERS
WEST,
Respondent.
Case No. SA-CO-78-M
PERB Decision No. 2249-M
i\.pril 18, 2012
Appearances: Law Offices of Bennett & Sharpe by Thomas M. Sharpe, Attorney, for National
Union of Healthcare Workers; Weinberg, Roger & Rosenfeld by Vincent Harrington, Jr. and
Kerianne R. Steele, Attorneys, for SEIU-United Healthcare Workers West.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the National Union of Healthcare Workers (NUHW) of a
Board agent's dismissal of its unfair practice charge. The charge, filed June 29, 2009, alleged
that SEID-United Healthcare Workers West (SEIU) and Fresno County In-Home Supportive
Services Public Authority (Public Authority) violated the Meyers-Milias-Brown Act (MMBA)1
during a decertification election conducted by the State Mediation and Conciliation Service
(State Mediation) under the Public Authority's adopted local rules. The election was
conducted in a unit of in-home support service providers (IHSS providers or bargaining
members).
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

NUHW
styled its charge as objections to the conduct
of
an election. 2
NUHW
filed the
charge within 10 days
of
the tally
of
ballots and served it on both SEIU and the Public
Authority.
	NUHW
alleged as well irregularities in State Mediation's conduct
of
the election.3
The Board agent determined that because the election was conducted by State
Mediation under the Public Authority's local rules, and not by PERB under
PERB's
regulations, 4 PERB lacked jurisdiction to entertain
NUHW'
s allegations as objections to
the
election. Instead, the Board agent construed
NUHW'
s charge to raise unfair practice
allegations only, and only against SEIU, viz., interference with the exercise
of
employee rights.
In assessing the allegations, the Board agent considered separately each
of
NUHW's major
allegations
of
SEIU election misconduct, and did not apply a totality
of
circumstances analysis.
NUHW's
major allegations against SEIU were that SEIU agents: 	(1) obtained
unsupervised access to marked ballots and otherwise interfered with balloting by bargaining
unit members; (2) engaged in physical and verbal threats toward bargaining unit members;
(3) misrepresented information to bargaining unit members; and (4) unlawfully destroyed and
or removed bargaining unit members' personal property.
The Board agent determined that NUHW failed to state a prima facie case
of
SEIU
interference with employee rights, as follows: allegations that SEIU agents (a) improperly
obtained unsupervised access to marked ballots and otherwise interfered with balloting, and
(b) improperly engaged 	physical and verbal threats against bargaining unit members, both
2
The statement
of
charge/objections cites alleged election misconduct
of
the employer,
the Public Authority, as well as
of
SEIU. Because NUHW filed its charge only against SEIU,
we 	jurisdiction over alleged election misconduct
of
the employer.
3
NUHW alleged that it raised concerns over the conduct
of
the election twice, at the
tally of ballots and again thereafter in correspondence to State Mediation.
4 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

failed to identify by name the individual SEIU agents; allegations that SEIU engaged in
misrepresentation to voters failed to establish SEIU used forged or otherwise deceptive
documents; and allegations that SEIU agents engaged in destruction and removal of bargaining
unit members' personal property failed to establish that the SEIU conduct "had the natural and
probable effect" of discouraging voter participation in the representation election.
On appeal, NUHW contends that the Board agent should have analyzed the NUHW
allegations as election objections, and that in any event, NUHW's allegations state a prima
facie case of interference with employee rights.
We have reviewed the dismissal and the record in light ofNUHW's appeal, SEIU's
response thereto, and the relevant law. Based on this review, and for the reasons stated below,
we reverse the Board agent's dismissal, and remand the matter for issuance of a complaint
consistent with the discussion below.
BACKGROUND
The County of Fresno, by ordinance (Ordinance), established the Public Authority to
operate an IHSS program pursuant to the California Welfare and Institutions Code.
Chapter 2.80, section 100 of the Ordinance sets out the "local rules" for the Public Authority's
labor relations program for IHSS providers.5
Pursuant to the local rules, NUHW petitioned for a representation election to decertify
the incumbent SEIU as the certified labor organization representing exclusively the Public
Authority's IHSS providers. The bargaining unit consists of approximately 10,000 providers.
The Public Authority's local rules call for State Mediation to conduct a secret ballot
election and to certify that organization "if any, receiving a majority of ballots cast in a valid
5 MMBA section 3507(a) authorizes a local public agency to "adopt reasonable rules
and regulations after consultation in good faith with representatives of a recognized employee
organization or organizations for the administration of employer-employee relations."
3

election. 	. .. If none of the choices on the ballot receives a majority of the ballots cast, a
runoff election shall be held between the choices receiving the two highest numbersof votes."
(Public Authority local rules, Chapter 2.80.1 00(I).)
On or about May 14, 2009, NUHW, SEIU and the Public Authority concluded a
"MEMORANDUM OF AGREEMENT FOR REPRESENTATION ELECTION TO BE
CONDUCTED THROUGH THE UNITED ST ATES MAIL" (Election Memorandum). The
Election Memorandum accords State Mediation's designated election supervisor discretion to
conduct the election, including, as to "Challenged Votes," the discretion to "eithercount or
reject said [challenged] ballot based on the eligibility list ... or any other relevant information
as determined by the Election Supervisor. 	The decision of the Election Supervisor shall not be
subject to appeal and shall be final and binding on all parties." (Appendix A, Election
Memorandum, par. 8.) Additionally, the Election Memorandum provides, as to "Results," that
"the choice receiving the most valid ballots cast will determine the results of the election. 	The
results of the election shall become final and binding on both parties ten (10) days after
certification of the election." (Appendix A, Election Memorandum, par. 11.)
Thereafter, between June 1, 2009 and June 15, 2009, State Mediation conducted a mail
ballot election in the IHSS provider bargaining unit. More than 10,000 IHSS providerswere
eligible to vote in the election. The ballot choices were SEIU, NUHW or No Labor
Organization.
On June 19, 2009, the State Mediation election supervisor tallied the ballots on a State
Mediation form entitled "Results of Representation Election" which set forth the following
information subscribed to by the election supervisor as "a true statement of the election
returns:"
1. Total number of eligible voters 	10,345
2. Total number of ballots received in P.O. Box 	5,982
4

3.
Total number
of
ballots challenged 	(160)
4. Total number
of
challenges upheld 	-0-
5.
Total number
of
ballots rejected other than challenges 	29
6.
Total number
of
valid ballots
(Add lines 4 and
5,
and then subtract from line 2) 	5,953
7.
Total number voting for ["SEIU"] 	2,938
Total number voting for ["NUHW"] 	2,705
Total number voting "No Organization" 	136
Upon tallying the ballots, the State Mediation's election supervisor announced that SEIU had
received 233 more votes than NUHW. Immediately, NUHW requested that the challenged
ballots be resolved and counted, and that all the ballots be recounted. 	State Mediation's
election supervisor denied both requests.
On June 22, 2009, by letter to State Mediation and the parties, NUHW requested that:
(1) the challenged ballots be resolved and counted; (2) due to late receipt
of
ballots by some
IHSS providers, ballots received by State Mediation in its P.O. Box after the agreed deadline
of
5:00 p.m. on June 15, 2009 be counted; and (3) due to a narrow margin
of
votes, all ballots
be recounted. 	State Mediation responded three weeks later on July 14, 2009, denying
NUHW's requests. Thereafter, on July 16, 2009, State Mediation by letter to the parties
certified SEIU as the labor organization receiving "a majority
of
the ballots cast in the election
conducted June 19, 2009."
NUHW ALLEGATIONS6
NUHW alleges that during the critical period of the election, SEIU staff and other SEIU
agents, approximately 900 persons, "pervasively engaged in conduct which interfered with the
employees' rights to freely choose a representative and which constitutes serious irregularity in
conduct 	the election."
5
At this stage of the proceedings, we must assume that the essential facts alleged in the
charge are true. (San Juan Unified School District (1977) EERB* Decision No. 12; Trustees of
the California State University (Sonoma) (2005) PERB Decision No. 1755-H.) (*Prior to
January 1978, PERB was known as the Educational Employment Relations Board or EERB.)

SEIU Agents
NUHW alleged that during the election period: (1) SEIU announced that its agents
would wear SEIU identification badges;7 (2) persons then appeared in the garb
of
SEIU and
wearing the identification badge
of
SEIU; (3) such persons said to voters that they were SEIU
agents; and (4) such persons' conduct tended to or did promote the interest
of
SEIU.
Interference with Balloting
NUH\V alleges that SEIU agents frequently approached bargaining unit members at
their homes, where they demanded that the bargaining unit member vote his or her secret ballot
"on the spot" in the presence
of
the SEIU agent, and then demanded that the bargaining unit
member hand over to the SEIU agent the marked ballot, or alternatively demanded that the
bargaining unit member proceed immediately to a postal facility to mail the ballot. NUHW
alleges that when the bargaining unit member traveled to a postal facility, the SEIU agent
followed.
NUHW alleges that when thus confronted by an SEIU agent, bargaining unit members
felt "sufficiently coerced" and "compelled to comply," and did vote their secret ballot in the
presence
of
the SEIU agent and then turned the marked ballot over to the SEIU agent, or
traveled immediately to a postal facility followed by an SEIU agent.
The Board agent dismissed these allegations because NUHW failed to identify
by
name
the SEIU agents. (United Teachers-Los Angeles (Ragsdale) 	992) 	Decision No.
(Ragsdale).)
7 An SEIU election flier circulated to bargaining unit members informed readers in both
English and Spanish that "SEIU organizers have name badges in an official [SEIU] tag
holder."
6

Physical and Verbal Threats
NUHW alleges that when approaching bargaining unit members, the SEIU agents
engaged in physical and verbal threats, and menacing and abusive behavior. NUHW alleges,
inter alia, that SEIU agents: (1) kicked in a bargaining unit member's screen door to remove
an NUHW sign and replace it with an SEIU sign; (2) "shouted down" bargaining unit
members; and (3) threatened to physically beat NUHW supporters in the presence of
bargaining unit members.
The Board agent likewise dismissed these allegations because NUHW failed to identify
by name the SEIU agents. (Rasgdale.)
Misrepresentations to Voters
NUHW alleges that SEIU and its agents: (1) "pervasively falsely told members of the
bargaining unit that the loss of their health insurance would be automatic or tantamount to
automatic as a direct consequence of voting for the competing union, NUHW;"
(2) "pervasively falsely told members of the bargaining unit who were on the waiting list to
become enrolled in the Kaiser Health Plan that such individuals would automatically lose their
place in the waiting list if they voted for NUHW;" (3) pervasively falsely told bargaining unit
members that "their wages would be reduced to $8.00 an hour" (or other very similar claims)
automatically or essentially automatically if they voted for NUHW, and that wages and
benefits established in the current memorandum of understanding would "automatically
disappear" as a direct consequence of voting for NUHW; and (4) pervasively falsely told
bargaining unit members that "they would lose their jobs entirely or would lose paid hours as a
consequence of their voting for NUHW and as a consequence of their failure to promise to vote
for SEIU."
7

The Board agent concluded that each
of
the foregoing alleged misrepresentations failed
to state a prima facie case because NUHW did not allege that SEIU used forged documents to
deliver the messages. (Pasadena Unified School District (1985) PERB Decision No. 530
(Pasadena); Poway Unified School District (2001) PERB Order No. Ad-310 (Poway).)
Unlawful Destruction and Removal
of
Voters' Personal Property
NUHW alleges that SEIU agents removed, tore down and defaced pro-NUHW signs
and literature on the private property
of
bargaining unit members.
A~
bargaining unit member
exposed to this behavior ultimately refused to engage with the SEIU representative and walked
away. After a SEIU agent pointed and yelled at a bargaining unit member to take down an
NUHW sticker, the bargaining unit member was afraid the SEIU agent would rip
off
the
NUHW sticker from her door.
The Board agent concluded that each
of
these allegations failed to establish a prima
facie case
of
interference, because NUHW failed to establish: (
1)
how the alleged conduct
interfered with the election or the employee's exercise
of
protected rights, and (2) how the
alleged conduct had the "natural and probable effect"
of
discouraging voter participation.
(Tamalpais Union High School District (1976) EERB Decision No. 1 (Tamalpais). 	The Board
agent concluded further that the alleged incidents were isolated, and that NUHW failed to
establish that a substantial number
of
voters were even aware
of
the alleged conduct. (State
of
California (Department
of
Personnel Administration) (1992) PERB Decision No. 948-S
(DPA).)
DISCUSSION
Jurisdiction
We begin our analysis, as we must in a MMBA case, with our jurisdiction. MMBA
section 3509(a) provides, in pertinent part:
8

Included among the appropriate powers of the board are the
.power to order elections, to conduct any election the board
orders, and to adopt rules to apply in areas where a public agency
has no rule.
MMBA section 3509(c) provides:
The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation,
recognition, and elections.
Under MMBA section 3509(c), PERB applies local rules in representation matters. '-Ne
rely on PERB' s MMBA regulations only when a MMBA local agency has no rule that governs
a representation issue. (County of Siskiyou/Siskiyou County Superior Court (2010) PERB
Decision No. 2113-M; County of Orange (2010) PERB Decision No. 2138-M.) Thus, as this
matter concerns a representation election, we look to the Public Authority's local rules
governing labor relations under the MMBA.
Representation Procedures
The local rules of the Public Authority provide for representation petitions and
elections in Chapter 2.80.1 00(F-J) as follows:
F. Provider Labor Organization-Certification Petition.
1. A labor organization which seeks to become a certified labor
organization shall file a petition for certification accompanied by
proof of provider approval of at least fifteen percent, who desire
the petitioning labor organization to be their sole representative;
2. Proof of provider approval means that the labor organization
submitting a petition to the [Public Authority's] executive
director or designee has demonstrated proof of approval by the
provider whom it claims to represent by means of any one or any
combination of the following:
a. Signed and dated signatures on a petition,
b. Signed and dated authorization cards; provided, however, that
no petition or authorization card may be used as proof of provider
approval unless it specifically provides that the intent of the
9

signer is to secure certification for the labor organization named
therein. 	For purposes
of
subdivision (a)
of
this subsection, only
signatures executed within ninety calendar days prior to the date
the petition for certification is filed shall be accepted as
proof
of
provider approval. In the instance
of
a provider designating more
than one labor representative through either
of
the above
mechanisms, a written notice shall be sent to that provider by the
executive director or designee requesting that the provider
designate only one labor organization within ten calendar days;
3. Upon the receipt and validation
of
certification petition, the
executive director or designee shall post a thirty-day notice with
the central labor council
of
Fresno and 11adera Counties and
published at least once in the legal section
of
the Fresno Bee;
4.
If
proof
of
employee approval is validated, the executive
director or designee shall arrange for a secret ballot election, to
be conducted in accordance with the rules
of
the State Mediation
and Conciliation Service. Only those providers who were
employed in such capacity at least fifteen days preceding the date
of
the secret ballot election shall be entitled to vote.
G. Election-Organizations on Ballot. In an election, the names
of
the petitioning labor organization and
of
any other labor
organizations which submit proof
of
provider approval
of
at least
ten percent shall appear on the ballot together with the choice
of
'No Labor Organization'.
H. Election-Cost. The cost
of
conducting a certification election
shall be borne equally by the authority and petitioning labor
organization.
I. Certification Following Election. 	State mediation shall certify
as a certified labor organization, that organization,
if
any,
receiving a majority
of
ballots cast in a valid election. In the
event that a majority
of
such ballots cast is for no labor
organization, state mediation shall certify that no certified labor
organization represents the providers.
If
none
of
the choices on
the ballot receives a majority
of
the ballots cast, a runoff election
shall be held between the choices receiving the two highest
numbers
of
votes. 	State mediation shall certify as the certified
labor organization the choice receiving the majority vote 	a
valid runoff election or shall certify that no certified labor
organization represents the providers.
J. Unfair Election Practices. Unfair practice charges made
during an election shall be submitted to the Public Employment
Relations Board for resolution.
10

The foregoing local rules provide for employees to choose representation by an
organization, or by no organization, through a showing
of
interest and where appropriate an
election among bargaining unit employees conducted by State Mediation. 	State Mediation
conducts elections pursuant to a consent election agreement
of
its own devise,
of
which the
Election Memorandum herein is typical. 	State Mediation's election procedures described in
the Election Memorandum accord the designated election supervisor, typically a State
Mediation employee, significant discretion in conducting the election, and in determining
which challenged ballots,
if
any, shall be counted. Neither the Public Authority's local rules
nor State Mediation's procedures provide a party to an election the right to challenge directly
alleged election irregularities or alleged improper conduct by a party to the election.8
Here, the local rules define unfair labor relations practices in Chapter 2.80.1 00(R). It is
unlawful for organizations or their agents to:
1.
	Interfere with, restrain or coerce providers in the exercise
of
the rights recognized or granted in this chapter; [or]
...
5.
Violate any section
of
this chapter.
Thus, the Public Authority's local rules forbid conduct by employee "organizations or their
agents" which conduct interferes with, restrains or coerces providers [employees] in the
exercise
of
rights under either MMBA or the local rules, e.g., the MMBA right freely to choose
8 By contrast, under PERB's MMBA election regulations, a party to the election may
challenge directly a serious irregularity in the conduct of the election, or actions of a party
which interfere with employee rights freely to choose a representative. 	timely filed,
will investigate such challenge, and upon finding irregularity or interference, PERB may set
aside the election and order another after a suitable interval. PERB also entertains as unfair
practice charges alleged interference with employee rights arising during a representation
election.
11

a representative and the right under the local rules to participate in a representation election
conducted by State Mediation.
Accordingly, we conclude, with the Board agent, that we should consider, pursuant to
our unfair practice jurisdiction, the alleged representation election misconduct, to wit, that
conduct which
if
engaged in by "organizations or their agents" would interfere with, restrain or
coerce providers in the exercise
of
their rights under Chapter 2.80.100(F)(4), to vote in
"a
secret ballot election." In so doing, however, we apply a totality
of
circumstances analysis to
discern whether the alleged conduct either interfered with employees' right to freely choose a
representative, or constituted a serious irregularity in the conduct
of
the election.
We conclude that SEIU's alleged conduct weighed in its totality may have interfered
with employee's right freely to choose a representative or constituted a serious irregularity in
the running
of
the election. Thus, we remand the case for issuance
of
a complaint consistent
with this decision.
NUHW's
Allegations
We approach this case as an unfair practice charge
of
interference with IHSS provider
[employee] rights. 	Accordingly, we ask whether the providers casting a secret mail ballot were
exercising protected rights, whether conduct attributed to SEIU tended to interfere with,
intimidate, restrain, coerce or discriminate against providers in the exercise
of
protected rights,
and whether SEIU's conduct was justified by legitimate business reasons. 	(MMBA
section 3506; PERB Regulation 32604; Public Employees Assn.
v.
Board
of
Supervisors (1985)
167 Cal.App.3d 797.)
But our inquiry does not end there. A party objecting to an election result, and seeking
a new election, must present a prima facie showing of conduct that tends to or does interfere
with employee choice or had the natural and probable effect of interfering with employee
12

choice. (Pasadena; Jefferson Elementary School District (1981) PERB Decision No. 164;
San Ramon Valley Unified School District (1979) PERB Decision No. 111; Santa }vfonica
Unified School District and Santa Monica Community College District (1978) PERB Decision
No. 52.)
When asked to set aside an election based on interference, we treat demonstration of
unlawful conduct in an election as a threshold question. (State of California (Department of
Personnel Administration, Developmental Services, and A1ental Health) (1986) PERB
Decision No. 601-S.) The party seeking to have the election set aside assumes a further
burden, submitting specific facts showing how the conduct interfered with the election.
(Pleasant Valley Elementary School District (2004) PERB Order No. Ad-333.) In deciding
whether to set aside an election, we examine "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 (Clovis).) 	Where
the alleged conduct is egregious, proof of actual interference is not required. For example, in
San Diego Unified School District (1996) PERB Order Ad-278, we set aside a runoff election
between two employee organizations, and ordered a new election, where one employee
organization obtained unsupervised access to marked ballots in a mail ballot election.
Here, the Board agent assessed separately each allegation rather than considered the
totality of the circumstances. Moreover, the Board agent declined to consider the conduct of
alleged SEIU agents whom NUHW did not identify by name. We disagree on both counts.
Totality of Circumstances
In State of California (Departments of Personnel Administration, lvfental Health and
Developmental Services) (1985) PERB Decision No. 542-S (Communication Workers), PERB
reversed a Board agent's partial dismissal of several separate unfair practice allegations of
13

improper election conduct, where the Board agent had weighed the allegations separately
rather
than"
considered the totality
of
the circumstances. The Board noted:
In our view, the critical inquiry is whether the factual allegations
set forth in the charge,
if
true, would lend support to the legal
theory that the Charging Party puts forth. 	Each individual factual
assertion need not stand alone
as
conduct violative
of
the Act but,
rather, the totality
of
circumstances must be considered
....
(Ibid. 	Emphasis added.)
SEIU Agents
The acts
of
an agent within his actual or apparent authority are binding on the principal.
(Antelope Valley Community College District (1979) PERB Decision No. 97.) The same
agency rules that apply to employers apply as well to employee organizations. (See Aladdin
Hotel (1977) 229 NLRB 499; Local
15,
Operating Engineers (1977)
231
NLRB 563; Certain-
Teed Products Corp.
v.
NLRB
(l
977) 562 F.2d 500.) Apparent authority may be found from
manifestations by the principal that create a reasonable basis for employees to believe that the
principal has authorized the alleged agent to perform the act in question. (State
of
California
(Department
of
Veterans Affairs & Personnel Administration) (2008) PERB Decision
No. 1997-S; Inglewood Teachers Assn.
v.
Public Employment Relations Bd. (1991)
227 Cal.App.3d 767, 781.)
In almost every case, we are concerned with whether a person whose conduct is under
scrutiny is an agent
of
either an employer or an employee organization. Only employers and
employee organizations may be respondents in unfair practice charge cases under our statutes.
Such entities act through agents. Often a charging party knows the name of the alleged agent
of the employer or employee organization. However, the name of the alleged agent is not
always known, nor is it necessary to a prima facie case. Without providing the name of an
individual, a charge may allege sufficient facts to establish prima facie that the individual is an
14

agent, officer or employee of, or otherwise acts for, or may be deemed to act for, a respondent.
As we noted in Communication Workers:
[W]e do not find it fatal to the charge that [charging party's] declarants failed to
name the managerial personnel. ... [A ]t this stage of these proceedings,
[charging party's] declarations should be read as representations that individuals
can and will testify as to certain facts. 	At any subsequent evidentiary
proceeding, due process guarantees will ensure that the employer be given an
opportunity to fully cross-examine witnesses called by [charging party] and,
through its own witnesses, to rebut the allegations ....
(Ibid.)
We hold that the name of a person alleged to be an agent of an employee organization
or an employer is not an indispensable element in a prima facie case. We reject a formulaic
application of an oft-quoted statement from our decision in Ragsdale. We favor a more
nuanced analysis turning on the elements of the particular prima facie case. In Ragsdale, the
Board itself adopted the warning and dismissal letters of the Board agent as the decision of the
Board. We do not believe that in so doing the Board then intended to adopt a statement from
the Board agent's warning letter as a iitmus test for assessing the sufficiency of factual
allegations. 	Our test for sufficiency of allegations was and is set forth in our regulation,
namely, "a clear and concise statement of the facts and conduct alleged to constitute the unfair
practice." (PERB Reg. 32615(a)(5).) The Ragsdale formulation, that a "Charging Party must
allege with specificity who, what, when, where and how" of the respondent's alleged violation
may be useful in explaining to a charging party how to plead a violation, but is it is not a
hurdle over which every charging party must leap at the risk of dismissal.
Thus, where, as here, it is alleged that: ( 1) SEIU announces that its agents will wear
identification badges; (2) persons then appear in the garb of SEIU and wearing the
identification badge of SEIU; (3) such persons say to voters that they are SEIU agents; and
(4) such persons' conduct tends to or does promote the interest of SEIU, we may conclude
15

prima facie that the person is an SEIU agent without the need for the person's name. If the
person's conduct is improper, it may be attributed prima facie to SEIU.
Because NUHW did not allege the individual names
of
alleged SEIU representatives,
the Board agent dismissed without further assessment the alleged conduct
of
the alleged SEIU
agents. 	Under the circumstances here, NUHW's inability to identify by name the individuals
involved did not require dismissal
of
the charge.
SEIU' s
i~..Jleged
Campaign Misrepresentations
NUHW alleges that SEIU agents "pervasively falsely told members
of
the
bargaining unit" that, as a consequence
of
voting for NUHW, they would: (1) lose their health
insurance; (2) lose their place on the Kaiser Health Plan waiting list; (3) have their wages
reduced to $8.00 an hour; or (4) lose their jobs entirely. The Board agent determined that
NUHW failed to establish a prima facie case
of
misrepresentation because NUHW did not
allege that SEIU used forged documents during the course
of
the campaign. (Pasadena.)
We conclude that NUHW's allegations state conduct which would reasonably tend to
interfere with or restrain voters, and does not merely involve representations which voters
would assess reasonably as mere electioneering puffery. In these circumstances we do
not ask
whether the statement was made in a fraudulent manner that would prevent an employee from
discerning its misleading character. We do not assess threats under our campaign
m1srepresentat10ns
. 	. test, 9 rather 	whether given the totality
of
the circumstances the
alleged conduct tends to, or does, interfere with employees' right freely to choose a
representative. 	the National Labor Relations Board (NLRB), we protect against campaign
misconduct such as threats, promises or the like, which interfere with employee free choice, as
16
West Contra Costa Healthcare District (2010) PERB Decision No. 2145; Poway;
Pasadena.

well as against statements made in a fraudulent manner preventing an employee from
evaluating the truth
of
the statement. (Midland National Life Insurance
Co.
(1982)
263 NLRB 127; see also Triple E Produce Corp.
v.
Agricultural Labor Relations Bd. (1983)
35
Cal.3d 42, 50 [recognizing that a different test applies to campaign misconduct in the form
of
direct threats to employees in the exercise
of
their right to vote].)
Here, NUHW alleged that SEIU threatened IHSS providers. We conclude these
allegations are vvithin the totality
of
circumstances supporting our conclusion that NUH\X/ has
stated a prima facie case
of
interference with employees' right to freely choose a
representative.
Alleged Destruction and Removal
Of
Personal Property
NUHW alleges that SEIU agents destroyed and removed unit members' personal
property. The Board agent, relying on Tamalpais, concluded that NUHW failed to show that
this conduct "had the natural and probable effect"
of
discouraging voter participation in the
representation election. The Board agent also concluded, relying on DPA,
10
that the incidents
in the declarations appear to be isolated and that no information is provided to show that a
substantial number
of
voters were aware of the conduct.
We concur with the Board agent that by themselves these allegations would be
insufficient to establish prima facie conduct which,
if
true, interfered with employees' right to
freely choose a representative or constituted a serious irregularity in the conduct of the
election. But since we assess the totality of conduct, not each allegation separately, these
allegations must be part of the overall assessment of SEIU' s conduct. (Clovis; Communication
Workers.)
10
In DPA, the Board held that where a threat made by a union official is remote in time
to the election and not widely circulated to a point where a substantial number of voters even
knew about the threat, no impact on the election could be inferred.
17

CONCLUSION
Based on review
of
the entire record, we conclude, with the Board agent, that PERB has
jurisdiction over NUHW's allegations as an unfair practice, but not as objections
to an
election. We hold an assessment
of
these unfair practice allegations should consider the
totality
of
the circumstances, not weigh the sufficiency
of
the allegations separately. We hold
that at this stage, and on this record, NUHW need not identify by name the persons who
allegedly obtained unsupervised access to marked ballots and/or allegedly engaged in coercive
behavior and or destruction or removal
of
private property. 	Finally, we hold that NUHW has
alleged that SEIU agents threatened voters and that such allegations must also be considered in
the totality
of
circumstances when determining whether NUHW has stated a prima facie case
of
interference with employees' right to freely choose a representative. Therefore, we
conclude that a prima facie case
of
interference has been established.
ORDER
The Public Employment Relations Board (Board) reverses the Board agent's dismissal
of
the National Union Healthcare Workers' unfair practice charge and REMANDS the charge
to the Office
of
General Counsel for issuance
of
a complaint in accordance with this Decision.
Chair Martinez and Member Dowdin Calvillo joined in this Decision.
18