Pleasant Valley Elementary School District (PERB A333E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PLEASANT VALLEY ELEMENTARY SCHOOL
DISTRICT,
Employer,
and
GROUP OF EMPLOYEES,
Petitioner,
and
SEIU LOCAL 998,
Exclusive Representative.
Case No. LA-DP-339-E
Administrative Appeal
PERB Order No. Ad-333
March 22, 2004
Appearances: Timothy Kennaley, Sr., for Group of Employees; Barry L. Hammitt, Executive
Director and Betty Trist, Field Representative, for SEIU Local 998.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Timothy Kennaley, Sr. (Kennaley) on behalf of Group of
Employees of a Board agent’s administrative determination regarding objections to the results
of an election over Kennaley’s petition to decertify SEIU Local 998 (SEIU).
After review of the record, we affirm the Board agent’s administrative determination
consistent with the discussion below.
BACKGROUND
Kennaley’s petition sought to decertify SEIU as the exclusive representative of an
operations and support services unit in the Pleasant Valley Elementary School District

________________________
(District). The election was held by mail ballot. Ballots were mailed from PERB on April 15,
20021, were due at PERB by May 6, and were counted on May 7. When the ballots were
counted, of 71 eligible voters, 64 returned ballots, 32 voted for SEIU, 30 for no representation,
and two ballots were declared void for not meeting the signature requirements in the Board’s
voting instructions. Kennaley filed timely objections pursuant to PERB Regulation 327382,
and SEIU and the District filed responses to the objections. In the administrative
determination, the Board agent dismissed the objections.
The objections were as follows:
Objection One: The District provided the phone numbers of unit members to SEIU but
not to Kennaley.
Objection Two: SEIU conducted a verbal and written smear campaign against
Kennaley and his wife and also jeopardized his safety by publishing his authorization card,
which showed his address and unlisted phone number. This conduct invoked fear in him and
may have had the same effect on other unit members.
Objection Three: Unit member Mike Harrison (Harrison) told Kennaley and unit
employee Harry Anderson (Anderson) that Nicasio Arucan (Arucan), a unit employee and
SEIU shop steward, told Harrison that Supervisor of Maintenance and Operations, David
Schmidt (Schmidt), said he would find a way to fire Kennaley, Anderson, and another unit
member if SEIU lost the election. When questioned, Arucan told Kennaley that he was “just
kidding.” The same day, Kennaley and two other unit employees sent a memo to Poul Hanson,
director of facilities, maintenance and operations, requesting an investigation of the matter. At
1All dates refer to 2002 unless otherwise noted.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
2

an investigatory meeting held by the District on April 16, Arucan admitted to fabricating the
threat and falsely attributing it to Schmidt. Arucan also asserted that it could be true since
management could fire employees if no union represented them. Kennaley states that, at the
April 16 meeting, the District verbally reprimanded Arucan. Kennaley alleged that he also
learned that Harrison had received a verbal reprimand. Kennaley further alleges that after the
meeting, SEIU representatives met with Harrison, Schmidt, and Poul Hanson, District director
of facilities, maintenance and operations to discuss Harrison’s reprimand. Kennaley
acknowledged that he was unaware of the substance and outcome of that meeting.
Kennaley asserts that the threat was believable in light Schmidt’s position as a
supervisor and his past position as SEIU president. Other employees heard about the incident
and so it could have affected their votes.
Objection Four: SEIU campaigned during spring break on work time in violation of
District policy. Four unit employees, including Kennaley, provided statements that they were
approached by SEIU Representative Betty Trist (Trist) about the election campaign. There
was another unit employee, Rene Quilantong, with Kennaley when this happened. Another
individual, Raymond Weed (Weed), allegedly distributed SEIU campaign literature during his
work hours. Kennaley claims that this is not permissible conduct and gives SEIU an unfair
advantage.
In the dismissal, citing Board precedent, the Board agent enunciated the standard for
setting aside an election under PERB Regulation 32738. Under that standard, Kennaley must
present a prima facie case showing that specific acts took place that interfered with the election
process. This standard involves a two-prong test: (1) improper conduct, and (2) an objective
impact on voters. The basic inquiry is whether the unlawful conduct created a “probable
impact on the employees’ vote.” In applying this test, the Board seeks to balance the need for
3

conduct of elections without undue influence with an assurance that employees’ votes are not
unnecessarily set aside. Applying this test, the Board agent found that Kennaley’s objections
did not meet one or the other of these prongs and therefore, dismissed all four objections.
KENNALEY’S APPEAL
Objection One: Kennaley objects to the fact that the unlisted phone numbers for more
than 30 out of 71 eligible unit voters were denied to him. He states that this significantly
impacted the outcome of the election by not creating a “level playing field” since SEIU had
available more avenues of communication with unit employees.
Objection Two: Kennaley says that co-workers told him that SEIU’s publication of his
union authorization card was a form of intimidation and that it was geared to scare people.
The gist of the publication was, “this is what this guy did, here is his address, and come and get
him!!!” As he has worked for the District for 15 years, most employees know that he lives in
Camarillo. He cites the prevalence of news reports of violence in the workplace as well as a
vague incident involving a trash can stolen from District premises. He says most employees
are now afraid to speak out and as a result, the “smear campaign” clearly impacted the
election.
Objection Three: At the time of the election, Arucan was an SEIU shop steward, who
knew what he was doing when he made the statements about Kennaley and his co-workers
being fired if SEIU lost the election. As a shop steward, Arucan should be trained in what to
say or not say. It was Kennaley and his co-workers’ understanding that Arucan was acting as a
shop steward when making those statements. The District only investigated at Kennaley’s
request. For the first time on appeal, Kennaley asserts that when the District reprimanded
Harrison, SEIU defended him and thus obtained Harrison’s vote.
4

Objection Four: Kennaley believes that Schmidt covered for Weed when stating that he
agreed to give Weed an early break. The change in break schedules further contradicted
schedules set two weeks before this incident. Kennaley also argues that Trist engaged in
misconduct by campaigning during work time. In his objections, Kennaley presented to PERB
statements from several employees but alleges some did not come forward because of fear of
reprisals from SEIU due to the SEIU flyer in which Kennaley was personally attacked. The
election was close: of 71 eligible voters, 32 voted for SEIU, 30 voted for no union. Kennaley
asserts that the election would have been different if SEIU had not engaged in misconduct.
SEIU’S RESPONSE
SEIU states that Kennaley has provided no new evidence to support his objections to
the election and requests that the Board uphold the Board agent’s dismissal.
DISCUSSION
PERB Regulation 32738(c)(1) allows the Board to entertain objections to the election
process if “the conduct complained of interfered with the employees’ right to freely choose a
representative.” Under PERB Regulation 32738(d):
(d) The statement of the objections must contain specific facts
which, if true, would establish that the election result should be
set aside, and must also describe with specificity how the alleged
facts constitute objectionable conduct within the meaning of
subsection (c) above.
The Board agent must dismiss objections that fail to satisfy these requirements. (PERB
Reg. 32738(g).)
Under this standard, Kennaley bears the burden to present specific facts showing
interference with the election process. (San Ramon Valley Unified School District (1979)
PERB Decision No. 111, at pp. 17, 28-31.) That burden contains two elements: (1) improper
5

________________________
conduct3 as a threshold matter, and (2) a probable impact on the employees’ vote. (Jefferson
Elementary School District (1981) PERB Decision No. 164, p. 5.) It is not necessary that
“actual impact” be found (Clovis Unified School District (1984) PERB Decision No. 389
(Clovis)); instead, the Board will evaluate “the totality of circumstances raised in each case,
and when appropriate, the cumulative effect of conduct which forms the basis for the relief
requested.” (State of California (Department of Personnel Administration) (1992) PERB
Decision No. 948-S, proposed dec., at p. 25, citing Clovis.) In other words, the Board will
determine whether the misconduct was sufficient to affect the outcome. (State of California
(Departments of Personnel Administration, Developmental Services, and Mental Health)
(1986) PERB Decision No. 601-S.)
After review of the record, the Board finds that Kennaley has not met his burden to
present specific facts showing interference with the election process for the reasons discussed
below.
Objection One: The Board disagrees with Kennaley’s argument that he is necessarily
entitled to the same employee information as SEIU, the exclusive representative, in order to
create a “level playing field.” By law, the District is required to provide SEIU as the exclusive
representative with names, addresses and phone numbers of unit members upon request to
allow SEIU to fulfill its duty to represent its members. (Compton Community College District
(1990) PERB Decision No. 790; State Center Community College District (2001) PERB
Decision No. 1471.) SEIU had requested the information in spring 2001, well before the
decertification petition was filed.
3Under an earlier version of the rule, objections must show that the conduct complained
about is “tantamount to an unfair practice.” The regulation as now written requires “improper
conduct.” (Pasadena Unified School District (1985) PERB Decision No. 530 (Pasadena).)
6

________________________
The type of information to which Kennaley is entitled is found in the Consent Election
Agreement, entered pursuant to PERB Regulation 32724,4 which includes the list of voters
pursuant to PERB Regulation 32726.5 We find that Kennaley received the agreed-upon voter
information, i.e., addresses and work sites of unit employees, pursuant to the Consent Election
4PERB Regulation 32724(a) provides:
(a) When the Board has determined that an election is required,
the Board shall serve on the employer and the parties a Directed
Election Order maintaining specific instructions regarding the
conduct of the election. The Board may approve a Consent
Election Agreement of the parties regarding the conduct of an
election.
5PERB Regulation 32726 provides, in pertinent part:
(a) At a date established by the Board, the employer shall file
with the regional office a list of names of all employees included
in the voting unit as of the cutoff date for voter eligibility. Unless
otherwise directed by the Board, the voter list for an on-site
election shall be in alphabetical order by assigned polling site and
shall include the job title or classification, work location and
home address of each eligible voter. Unless otherwise directed
by the Board, the voter list for a mailed ballot election shall be in
alphabetical order and include the job title and home address of
each eligible voter, and shall be accompanied by two sets of name
and home address labels for each eligible voter.
(b) A list of eligible voters which meets the requirements of
subsection (a) above but which contains in lieu of the home
address a mailing address for each eligible voter shall be
concurrently served by the employer on each other party to the
election. Proof of service shall be filed with the regional office.
For purposes of this subsection, mailing address means the home
address of each eligible voter, except in the case where the
release of the home address of the employee is prohibited by law,
or if the Board shall determine that the release of home addresses
is likely to be harmful to the employees.
(c) Any party which receives the mailing addresses of eligible
voters pursuant to this section shall keep these addresses
confidential and shall neither distribute them to any other
organization or individual nor utilize them for any other purpose.
7

Agreement, and thus had adequate means to access employees. The Board concludes that the
District did not engage in misconduct; and therefore, this objection should be dismissed.
Objection Two: This objection concerns SEIU’s alleged smear campaign against
Kennaley and perceived threats to the safety of Kennaley and his family. Under Pasadena at
pp.13-14, fn. 3, the Board adopted the National Labor Relations Board (NLRB) standard that
an election will not be set aside on the basis of the substance of a representation made during a
campaign, but only because of the deceptive manner in which it was made. We have reviewed
the campaign literature attached to Kennaley’s objections and find nothing deceptive in the
manner in which it was made. All SEIU literature was clearly identifiable as coming from
SEIU. Furthermore, Kennaley had ample opportunity to respond to SEIU and frequently did
so.
With regard to publication of Kennaley’s union authorization card, the test is whether
the conduct “may reasonably tend to coerce or intimidate employees in the exercise of rights
protected under the Act.” (Clovis quoting NLRB v. Triangle Publications (3rd Cir. 1974) 500
F.2d 597, 598 [86 LRRM 2939].)
For purposes of elections, PERB Regulation 32726 requires that employers provide a
list of eligible voters to the Board and to other parties to the election. This regulation provides,
in pertinent part:
(c) Any party which receives the mailing addresses of eligible
voters pursuant to this section shall keep these addresses
confidential and shall neither distribute them to any other
organization or individual nor utilize them for any other purpose.
Kennaley’s union authorization card, containing an incomplete address and phone number, was
inserted into campaign literature mailed to Kennaley on April 11, 2002, in order to show that
Kennaley had previously supported SEIU. The union authorization card was not issued pursuant
8

________________________
-to PERB Regulation 32726 and so its publication does not violate the regulation. However, even
if SEIU engaged in misconduct in publishing the information, the real question is whether
publication of the Kennaley’s union authorization card reasonably tended to coerce or
intimidate voters in the election. There was no explicit or implied threat in the campaign
literature. Although Kennaley states on appeal that individual employees informed him that
they felt intimidated by the publication of Kennaley’s address, neither the identity of the
employees, the circumstances, nor the timing of the statements is identified in Kennaley’s
objections or on appeal. It is unlikely that the publication of an incomplete address and phone
number would cause a reasonable voter to feel threatened without evidence of actual threats.
We find that this objection did not show probable impact on the employees’ votes.
Objection Three: This objection involves Arucan’s false statement that the supervisor
would fire Kennaley and other unit employees if SEIU lost. We find no impact on the election
arising out of this incident. Although Arucan engaged in misconduct, when reported by
Kennaley, the District promptly investigated the incident and held a meeting with the affected
employees at which the District discredited Arucan’s statement. Kennaley opines that SEIU
defended Harrison, who informed Kennaley of Arucan’s statement and who was then allegedly
reprimanded by the District. On appeal, Kennaley asserts that because SEIU defended
Harrison, SEIU became Harrison’s hero and gained his vote.6 We find that Kennaley’s
assertion is pure speculation and is clearly irrelevant to any potential impact of Arucan’s false
statement on the election process. Since there was no actual threat of reprisal made by the
supervisor and the employees were made aware of Arucan’s misrepresentation on April 16,
well before the ballots were due, we dismiss this objection.
6This conflicts with Kennaley’s earlier statement contained in his original objection that
he was unaware of the substance and outcome of SEIU’s meeting with Harrison and the
District management regarding Harrison’s alleged reprimand.
9

________________________
Objection Four: This objection involves two incidents in which SEIU officials
allegedly campaigned unlawfully during work time. The first one involved unit employee
Weed distributing SEIU literature in employee mailboxes during his working hours. The
District investigated the matter based upon a complaint it received and the investigation
revealed that Weed’s supervisor had consented to a different break time to allow Weed to
distribute the literature. On appeal, Kennaley accuses Weed’s supervisor of covering for Weed
but does not provide evidence to prove that accusation. The Board finds the accusation to be
mere conjecture and thus, finds no misconduct.
The second incident involves Trist’s conduct in approaching Kennaley and other
employees about the campaign during work hours. Trist’s alleged conduct would violate a
District rule and Board precedent barring such activity.7 SEIU did not reply to the Board
agent’s request to provide a declaration responding to this objection. The Board agent thus
found misconduct and the Board agrees.
Once misconduct is established, the inquiry then becomes whether the misconduct has a
“probable impact on the employees’ vote.” Looking at the totality of the conduct, Kennaley
does not provide any evidence that Trist’s conduct caused employees to vote for SEIU. In fact,
Kennaley, and at least two of the three other employees submitting statements in support of the
objections, expressed displeasure at Trist’s interruption of their job duties. The incident also
occurred during spring break, sometime between April 1 through April 5, within a week after
the District had advised employees to report inappropriate campaign activities.8 However, no
one complained about Trist. There is no evidence that Trist attempted to coerce or pressure
7Cf., Long Beach Unified School District (1980) PERB Decision No. 130.
8The District had issued a memo dated March 25 containing election guidelines, which,
among other items, advised employees to report inappropriate campaign activities.
10

employees in any way. We conclude, therefore, that Trist’s misconduct did not create a
probable impact on the employees’ vote.
In light of the above discussion, the Board concludes that Kennaley’s objections are
without merit.
ORDER
The objections by Timothy Kennaley, Sr. to the election in Case No. LA-DP-339-E are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Neima joined in this Decision.
11