City of Bellflower (PERB A480M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
LOCAL 3745,
Charging Party,
v.
CITY OF BELLFLOWER,
Respondent.
BELLFLOWER CITY EMPLOYEES
ASSOCIATION,
Joined Party.
Case No. LA-CE-1456-M
Administrative Appeal
PERB Order No. Ad-480-M
September 23, 2020
Appearances: Rothner, Segall & Greenstone by Glenn Rothner, Hannah Weinstein,
and Carlos Coye, Attorneys, for American Federation of State, County, and Municipal
Employees, Local 3745; City Employees Associates by Jeffrey W. Natke, General
Manager, for Bellflower City Employees Association.
Before Banks, Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Bellflower City Employees Association’s (BCEA)
administrative appeal of an order by PERB’s Office of the General Counsel (OGC)
granting a request to stay a representation proceeding before the State Mediation and
Conciliation Service (SMCS), pending resolution of a related unfair practice charge.
American Federation of State, County, and Municipal Employees, Local 3745

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(AFSCME) filed that charge, PERB Case No. LA-CE-1456-M, against the City of
Bellflower (City), alleging the City unreasonably applied its local rules when it
processed BCEA’s petition to represent City employees in three bargaining units that
AFSCME currently represents. AFSCME alleged that the City violated or unreasonably
applied its local rules. AFSCME’s unfair practice charge was styled as a blocking
charge and requested a stay of the related election. OGC issued an administrative
determination granting AFSCME’s request to stay the representation proceedings.
BCEA timely appealed.
We have reviewed the administrative determination, the record, and relevant
precedent, and we deny BCEA’s appeal. We conclude that OGC conducted an
adequate investigation, adduced facts that reasonably support the determination, and
came to a logical conclusion that the City’s alleged unreasonable application of its
local rules would so affect the election as to deprive employees of free choice.
Accordingly, we affirm OGC' s administrative determination, subject to the below
discussion clarifying the applicable standard and addressing issues BCEA raises on
appeal.
FACTUAL AND PROCEDURAL BACKGROUND1
The City adopted an employer-employee relations resolution (EERR) in
accordance with the Meyers-Milias-Brown Act (MMBA).2 The EERR sets forth
1 In this procedural posture, the Board assumes the essential facts alleged in
the charge are true. (Children of Promise Preparatory Academy (2015) PERB Order
No. Ad-428, p. 9 (Children of Promise).)
2 The MMBA is codified at Government Code section 3500 et seq. Statutory
references herein are to the Government Code, except where otherwise specified.

3
procedures for representation and decertification petitions. In or around February
2020,3 BCEA filed a single petition to become the recognized employee organization
for the employees in three units historically represented by AFSCME. BCEA then
provided the City with employee signatures purporting to satisfy the EERR’s
30 percent proof of support threshold. The employee signatures were on forms titled
“Authorization for Recognition Petition” (Authorization). The Authorizations did not
state or otherwise inform the employees that BCEA seeks to decertify AFSCME,
despite the express requirement in City Local Rule Section 8.A.4. requiring a
decertifying petitioner to furnish proof of support demonstrating that the employees “no
longer desire to be represented by the incumbent Recognized Employee
Organization.”
Additionally, the employee signatures were not grouped by bargaining unit and
the representation petition did not describe how many employees are in each of the
three previously-established bargaining units. The representation petition also did not
include a description of the composition of the unit or units claimed to be appropriate,
or a statement or reasons why the unit or units is or are appropriate. The City
accepted the petition and informed employees in each of the units that the City would
arrange for an election with SMCS.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 All subsequent dates are in 2020.

4
On June 16, AFSCME filed Unfair Practice Charge No. LA-CE-1456-M and
Request for Injunctive Relief (IR No. 790) against the City.4 The charge alleged that
the City violated its local rules by: (1) accepting a single representation petition for
decertifying three separate bargaining units, including accepting a single proof of
support submission; (2) accepting the petition even though the proof of support fails to
state that BCEA wishes to decertify AFSCME as the exclusive representative;
(3) accepting the petition even though it does not state that it seeks to decertify
ASFCME as the exclusive representative for the three bargaining units; (4) accepting
the petition despite its failure to include a description of the composition of the unit or
units claimed to be appropriate, or a statement or reasons describing the
appropriateness of the unit or units; and (5) initiating election procedures for a single
election for three separate units.5 The charge also requested that PERB stay any
election proceedings until the City complies with the EERR.
AFSCME also filed a motion pursuant to PERB Regulation 32147 requesting
that the Board expedite the processing of its charge at all divisions of the agency,
which we granted on July 6, 2020.
4 AFSCME withdrew its Request for Injunctive Relief after OGC granted the
request for stay.
5 It is worth noting that employee choice in matters of representation is
conceptually distinct from unit placement. While employees have the right to choose
which employee organization, if any, will represent them, they have no right to choose
the bargaining unit in which their classification is placed. (Regents of the University of
California (2017) PERB Order No. Ad-453-H, p.9 [citing HEERA, § 3579; City of
Livermore (2017) PERB Decision No. 2525-M, p. 14, fn. 6; County of Riverside (2012)
PERB Decision No 2280-M, p. 9].)

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On June 18, OGC informed AFSCME, the City, and BCEA that the stay request
would be evaluated pursuant to PERB Regulation 33002.6 On June 19, the City and
BCEA opposed the stay request. On June 22, OGC issued a complaint alleging that
the City engaged in various unlawful conduct related to accepting BCEA’s
representation petition. The same day, OGC issued its administrative determination,
granting AFSCME’s request to stay the election pending resolution of its unfair
practice charge. OGC found the circumstances and factual context surrounding the
City’s alleged inconsistent or unreasonable application of its local rules indicates that
the City’s conduct would affect the exercise of free choice in an SMCS-conducted
election regarding BCEA’s petition. BCEA attempted to file an appeal of the
administrative determination, which PERB’s Appeals Assistant rejected, as at the time
BCEA was not a party to the matter. On July 1, BCEA sought joinder as an interested
party under PERB Regulation 32164, and again appealed OGC’s administrative
determination granting the stay. AFSCME filed a timely opposition to the appeal.7 The
Board granted BCEA’s application for joinder on July 30.
DISCUSSION
In an appeal from an administrative determination, the appellant must
demonstrate how or why the challenged decision departs from the Board’s precedents
or regulations. (Children of Promise Preparatory Academy (2018) PERB Order
No. Ad-470, p. 4.) In a case concerning a stay of a decertification election, “the inquiry
6 PERB Regulation 33002 applies to SMCS-conducted elections.
7 Though the City initially opposed AFSCME’s request for stay, it took no
position on BCEA’s appeal.

6
on appeal is whether the OGC abused his or her discretion.” (Imagine Schools at
Imperial Valley (2016) PERB Order No. Ad-431, p. 6.) The role of the Board on appeal
is not to reweigh facts, but to ensure that the facts support the administrative
determination. (Id. at p. 7; Children of Promise, supra, PERB Order No. Ad-428, p. 9.)
Where OGC “came to a logically reasoned conclusion in its administrative
determination,” the Board will affirm the determination. (Regents of the University of
California (2016) PERB Order No. Ad-435-H, p. 6.)
PERB Regulation 33002, subdivision (a), which governs requests to stay
SMCS-conducted elections, and which OGC applied here, states in relevant part:
“Any party to an SMCS-conducted election may request
that the Board stay the election pending the resolution of an
unfair practice charge relating to the voting unit upon an
investigation and a finding that alleged unlawful conduct
would so affect the election process as to prevent the
employees from exercising free choice.”
Though OGC did not directly note the similarity to PERB Regulation 32752, it applied
precedent under PERB Regulation 32752. Because PERB Regulation 33002 contains
nearly identical language and reflects the same underlying policy considerations as
PERB Regulation 32752, OGC appropriately applied the same analysis.
In Children of Promise, we articulated the standard we apply in interpreting
Regulation 32752 as follows:
“The question presented is whether the alleged unfair
practices by the Academy, if true, are likely to affect the
vote of the employees, and thus, the outcome of the
election. In other words, would the alleged unlawful conduct
described in the blocking charge, if true, ‘so affect the
election process as to prevent the employees from
exercising free choice.’ . . . [T]he question is resolved by
applying the blocking charge rule to the facts alleged in the

7
blocking charge and not by a mechanical or rote application
of the rule.” (Children of Promise, supra, PERB Order
No. Ad-428, adopting administrative determination at p.18,
[internal citations omitted].)
We hold that this standard also applies to a request for stay evaluated under PERB
Regulation 33002, irrespective of whether the underlying blocking charge relates to an
employer’s local rules (as here) or relates to other allegedly unlawful conduct.8 One of
the primary purposes of the MMBA is “to promote the improvement of personnel
management and employer-employee relations . . . by providing a uniform basis for
recognizing the right of public employees to join organizations of their own choice and
be represented by those organizations in their employment relationships with public
agencies.” (MMBA, § 3500, subd. (a).) In service of this purpose, the MMBA
authorizes local agencies to adopt reasonable rules and regulations for the
administration of employer-employee relations, including procedures for recognizing
employee representatives as the exclusive bargaining agent for units of employees, as
well as for decertifying an exclusive representative organization. (MMBA, § 3507; City
of Fremont (2013) PERB Order No. IR-57-M, p. 18.) Local rules requiring proof of
support and processes for representation petitions exist for the purpose of consistently
protecting the rights granted by the MMBA, such as employee free choice. To the
8 We note that the MMBA and some other PERB-enforced statutes allow public
entities to promulgate local rules, while others do not. This difference, however, does
not lead us to apply a different standard, except to the extent that each request for
stay must be evaluated on its particular facts. (See Children of Promise, supra, PERB
Order No. 428-E, adopting administrative determination at p. 18 [noting that the
question of whether employer conduct prevents employee free choice is resolved by
applying the blocking charge rule to the facts alleged and not by a mechanical or rote
application of the rule].)

8
extent an employer violates its rules and initiates an SMCS-conducted election, the
central question is whether that conduct will prevent employees from exercising free
choice.
OGC properly framed the inquiry of the administrative determination, viz.,
whether the unfair practices the City allegedly committed (violating or unreasonably
applying its local rules in processing BCEA’s petition) would so affect the election
process as to prevent the employees from freely selecting an exclusive representative
of their choice.9 To the extent BCEA’s appeal challenges OGC’s findings, it alleges
OGC’s conclusions are unsupported by the allegations and based solely on
conjecture. For instance, BCEA does not believe it was reasonable for OGC to note
the concern that employees may have signed Authorizations only because it appeared
9 Our dissenting colleague contends OGC abused its discretion by failing to
assess whether the conduct “is of such character and seriousness” as to likely affect
employee free choice if an election is held. (Children of Promise, supra, PERB Order
No. Ad-428, p. 9, quoting Regents of the University of California (1984) PERB Order
No. Ad-381-H, p. 6.) But the dissent separates this premise from its context, where
conduct “is of such character and seriousness that, if it were proven to have occurred,
it would be reasonable to infer that it would contribute to employee dissatisfaction and
hence prevent a fair election.” (Ibid.) If a blocking charge alleges that an employer
unlawfully changed an employment term, PERB may analyze whether any bargaining
unit employee is likely to learn of the change before voting. Here, in contrast, the
blocking charge includes assertions that BCEA’s Authorizations misled the signing
employees, leaving no room to wonder whether employees may learn of alleged
violations. While the dissent nonetheless asks whether employees learned of other
alleged violations, it would lead to absurd results to narrow our focus in that manner
when the charge directly challenges whether the Authorizations tainted the process,
potentially requiring BCEA to collect new Authorizations that do not confuse the core
free choice issue: whether one or more of the three bargaining units wishes to replace
AFSCME with BCEA. We do not endorse such a misplaced focus and do not believe
OGC abused its discretion.

9
the bargaining units would be combined, thus potentially fostering greater bargaining
power.10
BCEA fails to challenge other critical OGC findings: that based on the
allegations, there is a question as to whether employees were on notice that BCEA
sought to become the exclusive representative in place of ASFCME; and that given
the ambiguity as to whether BCEA sought to represent employees in the three
bargaining units or combine the three units into one larger unit, it is unclear whether
employees understood the nature of their authorization. These uncertainties go to the
foundational purpose of local rules requiring proof of support and uniform processes
for recognition of an exclusive representative. Should AFSCME prove the City violated
or unreasonably applied one or more of its local rules prescribing foundational
requirements for recognizing or decertifying an exclusive representative, such conduct
very likely impairs employee free choice in a resulting election. Indeed, there is no
legitimate reason to hold an election when, as here, there are serious questions
regarding the basic validity of the underlying petition and its proof of support. Rather, it
10 As part of its argument, BCEA apparently asks the Board to assess OGC’s
administrative determination in light of the facts alleged in BCEA’s own unfair practice
charge against the City, UPC Case No. LA-CE-1458-M. In that charge, BCEA provides
a revised petition it allegedly filed at the City’s request, which could potentially clarify
BCEA’s intent, though not necessarily the intent of employees who had previously
signed Authorizations. Because the competing allegations in BCEA’s charge cannot
neutralize or cure the alleged defects in the petition, there remains a strong basis for a
stay in this case.

10
is essential to resolve those questions before proceeding in order to safeguard the
rights of all parties.11
BCEA’s assertion that its petition enjoys overwhelming support is also
unavailing. The proper focus of OGC’s inquiry is an objective evaluation of the
probable effect of the conduct alleged and the possibility of a free election. (Grenada
Elementary School District (1984) PERB Decision No. 387-E, p. 11 (Grenada).) A well-
supported petition does not overcome the probable impact on employee free choice if
the petition may be invalid because it failed to comply with local rules.
To the extent BCEA argues that the City reasonably interpreted its local rules in
processing BCEA’s petition, and to the extent BCEA otherwise addresses the
underlying merit of AFSCME’s unfair practice charge, we do not decide such issues at
this stage. In assessing a request for a stay, OGC’s task is not to determine the merits
of the underlying charge. (See Grenada, supra, PERB Decision No. 387-E,
p. 13.) Though context is relevant, BCEA’s arguments on the merits do not overcome
the likelihood the allegations, if proven, would affect employee free choice. (See
Children of Promise, supra, PERB Order No. Ad-428, adopting administrative
determination at p.15.)
Our dissenting colleague attempts to bend PERB precedent toward a private
sector approach that purports to protect employee free choice by checking an
incumbent union’s supposed opportunity to “benefit” from employer misconduct. We
11 We are not persuaded by BCEA’s argument that any irregularities in the
petition or proof-of-support process may be corrected during the election itself. While
such corrections may be possible, they are far from certain, and the mere possibility of
intervening conduct by the City does not adequately protect the important rights at
issue.

11
find no cause to respond at length to the dissent’s private sector citations, as statutory
differences and distinct principles relevant to agencies serving the public have
frequently led the Board to craft sui generis precedent. Indeed, we have often
departed from private sector labor law in our approach to representation matters,
which involve interpreting statutory and regulatory language with an eye toward
employee free choice, fair collective bargaining, stability, efficiency, avoiding
infringement on protected rights, and other goals reflected in California’s public sector
labor relations law. (See, e.g., Regents of the University of California, supra, PERB
Order No. Ad-453-H, pp. 5-8 [declining to follow private sector accretion principles, in
part because employee free choice involves different considerations in the public and
private sectors], affirmed, Regents of the University of California v. PERB (2020)
51 Cal.App.5th 159, 192 [both PERB and NLRB balance employee rights and stability,
but they employ different approaches in doing so]; see also Oak Valley Hospital
District (2018) PERB Decision No. 2583-M, pp. 6-8 [while private sector labor law
permits an employer to withdraw recognition when it has an objective basis to doubt a
union’s majority status, the MMBA does not, a difference that favors stability and by
extension favors an incumbent union].) That PERB’s blocking charge rule initially
mirrored a federal practice does not bind us to hew to more recent federal precedent,
particularly where PERB has subsequently developed its own blocking charge case
law, rooted in serving “the purposes of the statutes enforced by PERB.” (Children of
Promise, supra, PERB Order No. Ad-428, adopting administrative determination at
p. 14.)

12
BCEA has not identified any error of law in OGC’s determination, and we find
none which impacts the outcome. We conclude that OGC cited to appropriate PERB
precedent and properly applied the law to the facts alleged in AFSCME’s charge.
OGC’s conclusions are supported by the record. Therefore, we decline to set aside
the administrative determination and instead affirm the decision to grant a stay of the
election pending the outcome of AFSCME’s unfair practice charge.12 While we are
bound by the MMBA and the City’s local rules to treat this representational matter as
an unfair practice charge, we have expedited this case at all levels due to the time-
sensitive nature of the underlying questions concerning employee free choice.
ORDER
Bellflower City Employees Association’s administrative appeal of OGC’s
June 22, 2020 order in Case No. LA-CE-1456-M staying an election is DENIED.
Members Banks and Krantz joined in this Decision.
Member Shiners’ dissent begins on p. 13.
12 Unlike the dissent, we do not find useful comparison to orders where the
Board denied a request for stay of election and instead impounded ballots pending
resolution of a representation issue. (See Long Beach Community College District
(2000) PERB Order No. Ad-301; Grossmont-Cuyamaca Community College District
(2009) PERB Order No. Ad-378.) In those instances, the Board did not evaluate facts
under PERB Regulation 32752 or PERB Regulation 33002, nor does either order
meaningfully apply any cognizable standard to its relevant facts. Further, since the
instant matter involves an allegedly improper petition under the MMBA, the dissent’s
proposal to impound ballots would serve only to sow confusion among employees who
might be forced to vote twice about representation in various unit configurations.
Rather than impound the ballots in a potentially improper election under the
circumstances presented here, we believe it is wiser to decide these important
questions first and expeditiously.

13
SHINERS, Member, dissenting: This case presents a novel issue—whether an
election should be stayed based solely on allegations that a public agency employer
accepted and processed an invalid representation petition. When the Public
Employment Relations Board (PERB or Board) processes a representation petition
under statutes granting it plenary authority over representation matters, questions as
to the validity of the petition are resolved through PERB’s administrative process. This
case, however, arises under the Meyers-Milias-Brown Act (MMBA), which allows
public agency employers to adopt their own local rules regarding representation
matters, as the City of Bellflower has done here. We thus must decide, for the first
time, whether a charge alleging solely procedural defects in the way an employer has
processed a petition under its local rules justifies staying an election. Although I agree
with my colleagues that this analysis must be done on a case-by-case basis, I
disagree that a stay is warranted in this case because the City’s alleged conduct likely
would not affect employee free choice in an election. Accordingly, I dissent from the
majority’s decision to maintain the election stay in this matter.
In reviewing an administrative determination on an election stay request, the
Board must determine whether the Office of the General Counsel (OGC) abused its
discretion. (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6
(Imagine Schools); Jefferson School District (1980) PERB Order No. Ad-82, p. 12.) “If
the OGC conducts an adequate investigation and reaches a conclusion consistent
with the facts developed during the investigation, deference is due and no abuse of

14
discretion will be found.”13 (Imagine Schools, supra, PERB Order No. Ad-431, p. 7.)
An abuse of discretion will be found, however, if OGC applied the incorrect legal
standard. (Id. at pp. 11-12; Children of Promise, supra, PERB Order No. Ad-428,
p. 10; see Holtville Farms, Inc. v. Agricultural Labor Relations Bd. (1985) 168
Cal.App.3d 388, 395 [“If the Board applied the incorrect standard to the facts, that is
an abuse of discretion, i.e., an error of law.”].)
PERB Regulation 33002, subdivision (a)—the applicable regulation here—
provides:
“Any party to an SMCS14-conducted election may request
that the Board stay the election pending the resolution of an
unfair practice charge relating to the voting unit upon an
investigation and a finding that alleged unlawful conduct
would so affect the election process as to prevent the
employees from exercising free choice.”15
13 Characterizing OGC’s investigation as fact-finding is inaccurate. In
determining whether an election stay is warranted, OGC “does not resolve factual
disputes” and “assumes that the essential facts alleged in the charge are true.”
(Children of Promise Preparatory Academy (2015) PERB Order No. Ad-428, p. 9
(Children of Promise).) Because OGC makes no factual findings in deciding whether
to stay an election, the Board’s inquiry on appeal is whether the determination is
supported by the allegations in the charge.
14 California State Mediation and Conciliation Service.
15 A charge alleging “unlawful conduct [that] would so affect the election
process as to prevent the employees from exercising free choice” is commonly called
a “blocking charge” because it serves to “block,” or delay, the election. (City of
Fremont (2013) PERB Order No. Ad-403-M, p. 6, fn. 11; see Grenada Elementary
School District (1984) PERB Decision No. 387, p. 8 [noting that PERB Regulation
32752, which is nearly identical to PERB Regulation 33002, subdivision (a), codified
the “blocking charge rule” developed by the National Labor Relations Board (NLRB)].)

15
“In considering the stay of an election, the [OGC’s] obligation is to determine
whether the facts alleged in the unfair practice complaint, if true, would be likely to
affect the vote of the employees and, thus, the outcome of the election.” (Pleasant
Valley Elementary School District (1984) PERB Decision No. 380, p. 5.) To support a
stay, the conduct alleged in the charge must be “of such character and seriousness”
as to likely affect employee free choice if an election is held. (Children of Promise,
supra, PERB Order No. Ad-428, p. 9, quoting Regents of the University of California
(1984) PERB Decision No. 381-H, p. 6.)
Each stay request is to be investigated and evaluated on its merits rather than
being disposed of by rote application of the blocking charge rule. (Jefferson School
District (1979) PERB Order No. Ad-66, p. 6; see State of California (Department of
Personnel Administration) (1985) PERB Order No. Ad-151-S, pp. 3-4 (State of
California) [upholding OGC’s decision to dissolve an election stay reached after “a
thorough and detailed analysis of the allegations of the complaint, the background
information, and the impact on the employees in the unit of the employer’s alleged
misconduct,” italics added].) Blocking charge allegations must be evaluated with
regard to the factual contexts in which they arise. (Children of Promise, supra, PERB
Order No. Ad-428, adopting administrative determination at p. 16; State of California,
supra, PERB Order No. Ad-151-S, p. 3; Antelope Valley Community College District
(1979) PERB Decision No. 97, pp. 11-12.)
Here, OGC found the unfair practice charge stated a prima facie violation of the
MMBA and summarily concluded that this warranted a stay of the election, without any
analysis of the relationship between the alleged violations and employee free choice.

16
Employer conduct that constitutes an unfair practice does not necessarily “have a
natural or probable effect on employee free choice.” (Salinas Valley Memorial
Healthcare System (2010) PERB Order No. Ad-387-M, p. 3; State of California
(Departments of Personnel Administration, Developmental Services, and Mental
Health) (1986) PERB Decision No. 601-S, p. 3.) For this reason, as described ante,
our election stay precedent requires OGC to examine whether the alleged misconduct
is “of such character and seriousness” as to likely affect employee free choice. That
same precedent also requires OGC to consider the factual context of the charge. By
not considering either of these criteria and instead focusing solely on whether the
charge stated a prima facie unfair practice, OGC failed to make the determination
required by PERB Regulation 33002, subdivision (a), viz., whether the City’s “alleged
unlawful conduct would so affect the election process as to prevent the employees
from exercising free choice.” Additionally, by not addressing these aspects of the legal
standard, OGC failed to fully consider whether the charge allegations sufficiently
justify the infringement on employees’ statutory rights caused by an election stay.
(See Templeton v. Dixie Color Printing Co. (5th Cir. 1971) 444 F.2d 1064, 1069
[noting that “[a]s a consequence [of a blocking charge], the appellees have been
deprived during all this time of their statutory right to a representative ‘of their own
choosing’ to bargain collectively for them”].) This legal error constituted an abuse of
discretion.
Before analyzing the charge allegations under the proper standard, it is
important to recognize the purpose of the two aspects of the standard overlooked by
OGC in the administrative determination. It has long been recognized that the blocking

17
charge rule may be used by an incumbent union to stymie a decertification election.
(See, e.g., NLRB Casehandling Manual (Part 2) Representation Proceedings § 11730
(Jan. 2017) [“it should be recognized that the [blocking charge] policy is not intended
to be misused by a party as a tactic to delay the resolution of a question concerning
representation raised by a petition”]; NLRB v. Hart Beverage Co. (8th Cir. 1971)
445 F.2d 415, 420 [“it appears clearly inferable to us that one of the purposes of the
Union in filing the unfair practices charge was to abort Respondent’s petition for an
election, if indeed, that was not its only purpose”]; NLRB v. Midtown Service Co.
(2d Cir. 1970) 425 F.2d 665, 672 [“If . . . the charges were filed by the union,
adherence to the [blocking charge] policy in the present case would permit the union,
as the beneficiary of the Employer’s misconduct, merely by filing charges to achieve
an indefinite stalemate designed to perpetuate the union in power.”].)16 Although not
expressly identified as such in prior Board decisions, in my view the requirement that
OGC consider both the “character and seriousness” of the employer’s alleged
misconduct and the surrounding factual context serves to screen out blocking charges
that appear designed to obstruct an election—a safeguard of critical importance given
that OGC must assume the factual allegations in the charge are true. (See Children of
Promise, supra, PERB Order No. Ad-428, p. 9 [in determining whether an election stay
16 As the majority notes, PERB has departed from federal precedent with regard
to certain representation matters. This is not one of those matters, however, as PERB
unequivocally adopted the NLRB’s blocking charge rule without modification. (See
Grenada Elementary School District, supra, PERB Decision No. 387, p. 8 [noting that
PERB Regulation 32752 codified the NLRB’s “blocking charge rule”].) Accordingly,
NLRB interpretative guidance and federal court decisions addressing the potential use
of a blocking charge to thwart an election are undoubtedly instructive here.

18
is warranted, OGC “does not resolve factual disputes” and “assumes that the essential
facts alleged in the charge are true”].)
Turning to the first overlooked aspect of the applicable legal standard, the City’s
alleged conduct in accepting and processing Bellflower City Employees Association’s
(BCEA) recognition petition was not “of such character and seriousness” that it likely
would affect employee free choice. It is well-established “that an election may properly
be blocked where there has been a failure to bargain in good faith, since that conduct
by its very nature undercuts support for an individual union or unions in general, and
renders a fair election impossible.” (Grenada Elementary School District, supra, PERB
Decision No. 387, p. 9.) Accordingly, the Board has affirmed election stays based on
allegations that the employer negotiated in bad faith. (See, e.g., Children of Promise,
supra, PERB Order No. Ad-428, adopting administrative determination at pp. 18-22;
Grenada Elementary School District, supra, PERB Decision No. 387, pp. 6, 9;
Jefferson School District, supra, PERB Order No. Ad-82, pp. 2-3, 16 [noting the Board
sustained a prior stay order due to the employer’s unfair bargaining practices
preceding a decertification petition].) The Board also affirmed a stay where the
employer allegedly sent a misleading communication about the incumbent union to
employees while a decertification petition was pending, which could have the effect of
undermining the union in the eyes of employees. (Imagine Schools, supra, PERB
Order No. Ad-431, pp. 13-16; but see Manton Joint Union Elementary School District
(1992) PERB Decision No. 960, adopting proposed decision at pp. 5-6 [election not

19
stayed but ballots impounded based on allegation that superintendent sent letter to
employees expressing support for decertification of incumbent union].)17
Conversely, the Board has declined to stay an election and instead impounded
ballots when a party has requested a stay pending PERB’s resolution of the validity of
a petition.18 For example, in Long Beach Community College District (2000) PERB
Order No. Ad-301, the Board found that staying an election pending an appeal of
OGC’s refusal to dismiss a decertification petition would not effectuate the purposes of
the applicable statute, and instead ordered the election to proceed with the ballots
impounded pending resolution of the appeal. (Id. at p. 2.) Similarly, in Grossmont-
Cuyamaca Community College District (2009) PERB Order No. Ad-378, the Board
declined to stay an election pending resolution of an appeal of a dismissal of a
decertification petition for lack of support and ordered the election to proceed with the
ballots to be impounded until the appeal was resolved. (Id. at p. 2.)
Here, American Federation of State, County, and Municipal Employees, Local
3745’s (AFSCME) charge alleged that the City improperly accepted and processed
17 More often, the effect of alleged employer misconduct that occurs between
the filing of a petition and an election is determined via post-election objections. (See,
e.g., West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M,
pp. 25-26 [resolving objections over employer’s alleged grant of preferential access to
rival union after it filed decertification petition]; Oxnard Unified School District (1999)
PERB Decision No. 1341, adopting proposed decision at pp. 17-29 [analyzing and
dismissing objections based on allegations that, during the election period, a manager
disparaged the incumbent union to multiple employees, and that the employer granted
employees a bonus and circulated a flyer touting benefits under the existing collective
bargaining agreement].)
18 Generally, “the vote and impound procedure [] prevent[s] delay and enable[s]
elections to be held when interest and momentum are at their peak.” (Laurin, The Vote
and Impound Procedure: Not Always a Guardian of Employee Free Choice (1987) 62
Ind. L.J. 1127, 1129.)

20
BCEA’s petition. Specifically, the charge alleged that BCEA’s petition was defective
because: (1) BCEA did not file a separate petition for each of the three bargaining
units it sought to represent; (2) BCEA did not provide separate proof of support for
each bargaining unit it sought to represent; (3) the petition failed to include a proper
description of the bargaining units BCEA sought to represent; (4) the petition failed to
state that BCEA sought to decertify AFSCME as the exclusive representative of the
bargaining units it sought to represent; and (5) BCEA’s proof of support documents
failed to state that signatory employees wished to decertify AFSCME as their
exclusive representative.
AFSCME’s charge contains no allegations of the kind that PERB has previously
found justified staying an election because they tend to undermine the incumbent
union in the eyes of employees, such as bad faith bargaining or misleading
communications about the union. Rather, AFSCME’s allegations of procedural defects
in BCEA’s petition are akin to the disputes over the validity of a petition that justified
denying a stay but impounding ballots in Grossmont-Cuyamaca Community College
District, supra, PERB Order No. Ad-378 and Long Beach Community College District,
supra, PERB Order No. Ad-301.19 Moreover, AFSCME’s charge does not allege any
19 The majority manufactures a distinction without a difference, claiming these
decisions do not provide a “useful comparison” because they do not involve blocking
charges. But no prior Board decision involves a blocking charge based solely on
alleged defects in a petition because when a representation matter is subject to
PERB’s regulations, procedural defects of the type alleged in AFSCME’s charge are
resolved through PERB’s administrative process. (Grossmont-Cuyamaca Community
College District, supra, PERB Order No. Ad-378, p. 2; Long Beach Community
College District, supra, PERB Order No. Ad-301, pp. 1-2.) These decisions
demonstrate that the Board has impounded ballots when, as here, the validity of a
petition is in dispute.

21
facts showing that employees in the affected units were aware of the purported
procedural defects in BCEA’s petition, and thus we cannot infer that those alleged
defects likely would affect their ability to vote freely in an election. (See State of
California, supra, PERB Order No. Ad-151-S, pp. 6-7 [employer’s filing and later
withdrawal of a unit modification petition did not support an election stay in the
absence of any allegations that unit employees were aware of or influenced by the
employer’s conduct].) Consequently, the City’s alleged misconduct is not “of such
character and seriousness that, if it were proven to have occurred, it would be
reasonable to infer that it would contribute to employee dissatisfaction and hence
prevent a fair election.” (Children of Promise, supra, PERB Order No. Ad-428, p. 9.)20
As to the second overlooked aspect of the applicable legal standard, the factual
context surrounding AFSCME’s charge allegations indicates the charge was filed for
the primary purpose of thwarting the election. Attached to AFSCME’s charge was a
copy of BCEA’s petition and the accompanying proof of support. According to the
20 I disagree with the majority’s assertion that when the validity of a petition is
disputed, the dispute must be resolved before an election can occur “in order to
safeguard the rights of all parties.” The prompt resolution of questions concerning
representation is a primary objective of the MMBA. (See MMBA, §§ 3500, 3502; cf.
NLRB Casehandling Manual (Part 2) Representation Proceedings § 11300 (Jan.
2017) [same under National Labor Relations Act].) Impounding ballots allows
employees to vote “when interest and momentum are at their peak” (Laurin, supra, 62
Ind. L.J. 1127, 1129), thereby allowing employees to fully exercise their right to
choose their exclusive representative—a right necessarily impeded by delaying an
election for months or years (Templeton v. Dixie Color Printing Co., supra, 444 F.2d at
p. 1069). At the same time, impounding ballots preserves the incumbent union’s right
not to be decertified through an invalid election. Impounding ballots therefore properly
balances the rights of employees and the competing employee organizations, rather
than putting a thumb on the scale in favor of the incumbent union.

22
petition, the number of employees in the three bargaining units BCEA sought to
represent totaled 51. The proof of support was signed by 40 employees. AFSCME
does not dispute the validity of the signatures but only challenges the fact that they
were not broken out by bargaining unit. It thus is reasonable to infer that a majority of
employees currently represented by AFSCME expressed a desire to instead be
represented by BCEA.
According to AFSCME’s charge, BCEA’s petition and proof of support were filed
with the City in February 2020. On April 28, 2020, the City sent a letter to employees
in the three affected bargaining units notifying them of BCEA’s petition and informing
them the City would be arranging for a secret ballot election pursuant to its Employer-
Employee Relations, Policies and Procedures Resolution. On June 5, 2020, SMCS
corresponded with AFSCME, BCEA, and the City about scheduling an election. On
June 16, 2020, AFSCME filed the underlying unfair practice charge, a request that the
election be stayed, and a request for injunctive relief.
AFSCME’s own allegations show that as of February 2020 it knew of the
purported defects in BCEA’s petition and that a majority of employees in its three
bargaining units had signed proof of support for BCEA. The charge does not allege
that AFSCME attempted to bring the purported petition defects to the City’s attention
at any time prior to its unfair practice charge. Instead, AFSCME raised these
purported defects for the first time in its charge, filed just days after the parties
corresponded with SMCS about scheduling an election based on the petition. This
sequence of events demonstrates that AFSCME’s primary reason for filing the

23
underlying charge was to delay or prevent an election it had reason to believe it would
lose. Viewed in context, AFSCME’s charge allegations do not justify an election stay.
By failing to analyze whether the City’s alleged misconduct is “of such character
and seriousness” as to likely affect employee free choice, or to consider the factual
context surrounding the charge, OGC failed to adequately determine whether the
City’s “alleged unlawful conduct would so affect the election process as to prevent the
employees from exercising free choice,” as required by PERB Regulation 33002,
subdivision (a), and thus failed to fully consider whether the charge allegations
sufficiently justified the infringement on employees’ statutory rights caused by an
election stay. This legal error constituted an abuse of discretion. Under the correct
legal standard, OGC should have found a stay was not warranted because the City’s
acceptance and processing of BCEA’s petition despite its alleged procedural defects
is unlikely to affect employee free choice and AFSCME’s charge, viewed in context, is
primarily an attempt to thwart the election. Accordingly, I would reverse the
administrative determination, dissolve the election stay, direct SMCS to conduct a
secret ballot election on BCEA’s petition, and impound the ballots pending resolution
of AFSCME’s underlying unfair practice charge.21
21 The majority asserts that “impounding ballots would serve only to sow
confusion among employees.” Impounding ballots is no more confusing to employees
than conducting an election and tallying votes subject to the election being set aside
based on post-election objections. (See PERB Regs. 32738 [allowing post-tally
election objections when PERB conducts the election]; 33009 [allowing post-tally
election objections when SMCS conducts the election].) More importantly, impounding
ballots allows employees to vote “when interest and momentum are at their peak”
(Laurin, supra, 62 Ind. L.J. 1127, 1129). By maintaining the stay, my colleagues allow
employees’ support for BCEA to dissipate while AFSCME’s charge is adjudicated,
thereby furthering the apparent purpose of the charge.