Consolidated Irrigation District (PERB A504M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CONSOLIDATED IRRIGATION DISTRICT,
Employer,
and
GROUP OF EMPLOYEES,
Petitioner,
and
OPERATING ENGINEERS LOCAL 3, AFL-
CIO,
Exclusive Representative.
Case No. SA-DP-284-M
Administrative Appeal
PERB Order No. Ad-504-M
August 14, 2023
Appearances: Sagaser, Watkins & Wieland by Howard A. Sagaser and Charles P.
Hamamjian, Attorneys, for Consolidated Irrigation District; Gening Liao, House
Counsel, for Operating Engineers Local 3, AFL-CIO.
Before Banks, Chair; Paulson and Nazarian, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Consolidated Irrigation District’s appeal of the attached
administrative determination (AD) by PERB’s Office of the General Counsel (OGC). In
November 2021, Operating Engineers Local 3, AFL-CIO (OE3), was certified as the
exclusive representative of employees in the District’s Water Irrigation Specialist Unit
(Unit). In January 2023, before OE3 had negotiated a first contract with the District, a
group of employees (Petitioner) filed a petition to decertify OE3 as the Unit’s exclusive
representative. In March 2023, OE3 filed an unfair practice charge, Case No. SA-CE-

2
1231-M (“blocking charge”1) alleging that the District violated the Meyers-Milias-Brown
Act (MMBA) and the Prohibition on Public Employers Deterring or Discouraging Union
Membership (PEDD)2 by: (1) facilitating the circulation and submission of the
decertification petition through Assistant Foreman Ricardo Cavazos, (2) instructing
Cavazos and Unit member Brian Slaven to circulate the decertification petition,
(3) promising benefits in exchange for decertifying OE3, and (4) refusing to negotiate
with OE3 pending the resolution of the decertification proceedings. OE3’s blocking
charge included a request that PERB stay the decertification election pending
resolution of the charge, alleging that the District’s conduct, if true, would likely
interfere with employee free choice and influence employees in their vote. OGC
agreed and stayed the election. The District timely appealed the AD, and OE3 filed a
timely opposition urging us to uphold the stay.
We have reviewed the AD, the files in this case and the blocking charge,3 and
relevant legal authority in light of the parties’ submissions. Applicable law and the
1 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 prevents, or ‘blocks,’ an election until the charge is
resolved.” (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, p. 3, fn. 3
(Gompers), quoting City of Fremont (2013) PERB Order No. Ad-403-M, p. 6, fn. 11, &
p. 8.)
2 The MMBA is codified at Government Code section 3500 et seq. PEDD is
codified at Government Code section 3550 et seq. All further undesignated statutory
references are to the Government Code. PERB Regulations are codified at California
Code of Regulations, title 8, section 31001 et seq.
3 PERB may take official notice of its own records and files. (Bellflower Unified
School District (2017) PERB Decision No. 2544, p. 6.)

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unfair practice allegations support the AD’s analysis, including the AD’s findings that
the District’s alleged conduct is likely to impact employee free choice. Accordingly, we
adopt the AD as the decision of the Board itself, subject to the following discussion.
BACKGROUND4
OE3 was certified as the exclusive representative of employees in the Unit on
November 22, 2021. The District and OE3 have not reached an agreement on a first
contract. On January 5, 2023, Cavazos, on behalf of Petitioner, filed a petition with
PERB seeking to decertify OE3 as the exclusive representative of the Unit.5 On
February 2, OGC informed the parties that since the District had not adopted local
rules concerning employee representation petitions, pursuant to PERB Regulation
61000, PERB would conduct representation proceedings under the MMBA. On
February 27, OE3 advised that it intended to file a blocking charge and requested a
stay of the election. On March 1, the District opposed OE3’s request to stay the
election. On March 13, OGC issued a letter notifying the parties that Petitioner’s proof
of support was sufficient to satisfy PERB Regulation 61350, subdivision (b), and
indicated its intent to proceed with conducting an election. On March 14, OE3 filed its
blocking charge, which requested that PERB stay the decertification election pending
the resolution of the charge.6
4 As we address further post in response to the District’s appeal, 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 I).)
5 All further undesignated dates are in 2023.
6 On March 16, OE3 filed an amended blocking charge.

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The blocking charge, as amended, alleges that the District interfered with
employees’ exercise of free choice, interfered with OE3’s right to represent Unit
members, and failed to bargain in good faith, in violation of the MMBA and the PEDD.
Specifically, OE3 alleges that when Cavazos circulated the decertification petition on
behalf of Petitioner, he did so as an agent of District management, and at the direction
of District management. OE3 contends that in or around December 2022, District
management held meetings with Cavazos and Slaven involving the decertification
petition. During these meetings, the District instructed Cavazos and Slaven how to
solicit Unit member support for decertifying OE3 as the exclusive representative,
including promising Unit members a pay raise in exchange for decertifying OE3.
Cavazos then circulated a decertification petition and informed Unit members that they
would receive a raise in exchange for signing the petition. OE3 subsequently
attempted to continue with contract negotiations, including scheduling a session for
March 15. OE3’s Business Agent, Allen Dunbar, repeatedly requested contract
proposals prior to the session, but the District did not provide any. During the March
15 session, the District declared that it would not continue with contract negotiations
until the decertification process was completed. The District has since refused to
engage with OE3 on outstanding matters.7
On March 15, OGC provided until March 27 for Petitioner and the District to file
a response to OE3’s stay request. On March 27, the District submitted a position
7 The District disputes the truth of many of the facts alleged in the blocking
charge. (See AD at pp. 5-6.) Because here we assume the essential facts in the
charge are true (Children of Promise I, supra, PERB Order No. Ad-428, p. 9) we do
not again recount the District’s version of facts here.

5
statement in response to the blocking charge, which disputed OE3’s allegations and
opposed the stay request. Petitioner did not file a response to the request to stay. On
March 29, OGC issued a complaint regarding the allegations in the blocking charge.
On April 18, the District and OE3 participated in an informal conference on the
blocking charge but were not able to reach a resolution. On April 20, OGC issued the
attached AD, granting OE3’s request to stay the election pending resolution of the
blocking charge. The District timely appealed the AD, and OE3 filed a timely
opposition, urging us to uphold the stay.
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 (Children of Promise II).) In an appeal concerning a stay of a
decertification election, “the inquiry on appeal is whether the OGC abused [its]
discretion.” (Imagine Schools at Imperial Valley (2016) PERB Order No. Ad-431, p. 6
(Imagine).) “The Board has described this standard of review as whether ‘the
conclusions [in the determination are] supported by facts developed during the course
of a properly conducted investigation.’” (Gompers, supra, PERB Order No. Ad-481,
p. 4; Children of Promise I, supra, PERB Order No. Ad-428, p. 8.)
However, in determining whether an election stay is warranted, PERB “does not
resolve factual disputes” and “assumes that the essential facts alleged in the charge
are true.” (Children of Promise I, supra, PERB Order No. Ad-428, p. 9.) If the Board
agent’s investigation reveals conflicting issues of material fact, the conflict must be

6
resolved at the formal hearing; the Board agent may not resolve the conflict at the
investigation stage. (Id. at p. 10.) Each stay request is to be investigated and
evaluated on its merits rather than disposed of by rote application of the blocking
charge rule. (Jefferson School District (1979) PERB Order No. Ad-66, p. 6.) Blocking
charge allegations must be evaluated based upon the factual contexts in which they
arise. (Children of Promise I, supra, PERB Order No. Ad-428, adopting administrative
determination at p. 16; State of California (Department of Personnel Administration)
(1985) PERB Order No. Ad-151-S, p. 3.)
Because OGC makes no factual findings in deciding whether to stay an
election, the Board’s inquiry on appeal is whether the determination to stay the
election is supported by the allegations in the blocking charge. (Gompers, supra,
PERB Order No. Ad-481, p. 4.) 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 I, 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.)
The District does not contend that the AD is unsupported by the allegations in
the charge or incorrectly applied existing law to those allegations. Instead, the District
primarily challenges the truth of the allegations in OE3’s blocking charge, and the lack
of evidence provided in support of those allegations.8
8 To the extent the District also alleges OGC did not accurately recount the
procedural history in the AD, it fails to explain how such alleged errors could have any
impact on the outcome of the instant appeal.

7
In the attached AD, OGC properly begins its analysis with PERB Regulation 61190,
which governs election stays under the MMBA. PERB Regulation 61190 provides, in
relevant part:
“The Board may stay an 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.”
OGC then notes the proper standard for whether to stay an election pending a
blocking charge: “the Board agent must analyze whether the conduct alleged ‘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.’” (AD at p. 7; Regents of the University of California (1984)
PERB Decision No. 381-H, p. 6.) Further, the AD correctly explains “[t]he only relevant
issue is whether the employer’s conduct, as alleged in the complaint, will so taint the
election process as to interfere with employee free choice.” (AD at pp. 7-8, quoting
Imagine, supra, PERB Order No. Ad-431, p. 13.)
OGC goes on to assess OE3’s allegations under this standard, finding that the
District’s alleged interference, domination, deterrence or discouragement of employee
free choice, and refusal to bargain were each of the character and seriousness that
rendered them likely to impact employee choice in the decertification election. We
agree.
Contrary to the District’s arguments, the grounds to challenge an administrative
determination staying an election do not include a dispute about the facts. A
determination to stay an election is not intended to involve adjudication of the unfair

8
practice charge itself. (Children of Promise I, supra, PERB Order No. Ad-428,
adopting administrative determination at p. 15.) “It is neither the Board agent’s
obligation nor function to resolve disputed facts or venture into a pre-judgment of the
merits of the unfair practice complaint.” (Grenada Elementary School District (1984)
PERB Decision No. 387, p. 13 (Grenada), quoting Pleasant Valley Elementary School
District (1984) PERB Decision No. 380, p. 7.) Nor shall the Board agent resolve
defenses and answers on the merits of the complaint, because those matters must be
addressed in the unfair practice hearing. (Gompers, supra, PERB Order No. Ad-481,
adopting administrative determination at p. 15.) The District’s arguments that OE3
cannot prove its allegations are thus immaterial to OGC’s assessment of the stay
request, and do not provide a reason to overturn OGC’s determination granting the
stay.
Likewise, while the District also argues that OE3 presented insufficient
evidence to support its allegations, the proper time for the parties to present evidence
and testimony is at the formal hearing. (See PERB Regs. 32178 & 32680.) At this
stage of the case we cannot determine whether employer misconduct actually
occurred, and, if it did occur, whether it tainted the decertification petition; it is the
possibility of such an effect that requires us to stay the decertification election until the
Board resolves those issues through its adjudicative process. (Gompers, supra, PERB
Decision No. Ad-481, p. 8.)
While some of the parties’ arguments, and thus OGC’s analysis, focus on
Cavazos’s alleged status as an agent of the District, we note that several of the
allegations related to him are of such a nature that they are likely to taint the election

9
process even if Cavazos is not a District agent. To the extent the District instructed
Cavazos and Slaven to circulate a decertification petition, and gave them leeway to
promise benefits in exchange for decertifying OE3, the District’s conduct would likely
impact employee free choice, whether or not OE3 can establish Cavazos’s actual or
apparent agency.
Further, while the AD fully and appropriately addresses the alleged PEDD
violations as they relate to the election stay, we note that the Board itself has not
reviewed an administrative determination staying an election based in part on an
alleged PEDD violation since it announced its standard for assessing PEDD violations.
PEDD section 3550 provides that “[a] public employer shall not deter or discourage
public employees or applicants to be public employees from becoming or remaining
members of an employee organization, or from authorizing representation by an
employee organization, or from authorizing dues or fee deductions to an employee
organization.” In Gompers, the Board found to the extent that employer
communications were shown later at hearing to deter and discourage union
membership in violation of the PEDD, those communications would also, “‘in all
likelihood’ contribute to employee dissatisfaction.” (Gompers, supra, PERB Order
No. Ad-481, adopting administrative determination at pp. 26-27, quoting Jefferson
School District (1980) PERB Order No. Ad-82, pp. 5-6.) When the Board issued
Gompers, supra, PERB Order No. Ad-481, the PEDD had been enacted but not yet
interpreted by the Board. Then, in Regents of the University of California (2021) PERB
Decision No. 2755-H, PERB held that “‘deter or discourage’ means to tend to
influence an employee’s free choice regarding whether or not to (1) authorize union

10
representation, (2) become or remain a union member, or (3) commence or continue
paying union dues or fees.” (Id. at p. 21.) To establish a prima facie case of a section
3550 violation, the charging party need only show that the challenged conduct or
communication is reasonably likely to deter or discourage employee free choice, not
that the conduct actually did deter or discourage employees. (Id. at p. 24.) In cases
that involve union organizing, section 3550 leaves it to employees on opposite sides of
the organizing debate to lobby their colleagues without the employer’s involvement.9
(Clovis Unified School District (2021) PERB Order No. IR-63, p. 30, citing Alliance,
supra, PERB Decision No. 2795, pp. 70-71 [judicial appeal pending].) While the PEDD
protects a narrow set of employee prerogatives, because conduct that violates the
PEDD specifically tends to influence employee free choice, such conduct is especially
likely to impact an election and thus necessitates a stay. OGC properly concluded that
the District’s conduct which allegedly deters or discourages employee free choice—
offering a raise to Unit members in exchange for decertifying OE3 and directing an
employee perceived by Unit members as an agent of the District to collect signatures
in support of decertification—is likely to encourage employees to vote in favor of
decertification, and therefore likely to affect the outcome of the election.
9 In certain circumstances, an employer may assert an affirmative defense that
a business necessity compels the employer to take some action that may also
incidentally influence employee free choice. (Alliance Marc & Eva Stern Math &
Science High School et. al. (2021) PERB Decision No. 2795, pp. 70-71 [judicial appeal
pending] (Alliance).) But such an affirmative defense is not part of OGC’s assessment
when deciding whether to grant a stay. (Gompers, supra, PERB Order No. Ad-481,
adopting administrative determination at p. 15.)

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Finally, the District’s alleged refusal to negotiate pending the resolution of
decertification proceedings independently supports staying the election. “[A]n 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, supra, PERB Decision
No. 387, p. 9; accord Clovis Unified School District (1984) PERB Decision No. 389,
p. 25 [an employer, by “obstructing negotiations with the exclusive representative,”
had “interfere[d] with employees[’] right to select an exclusive representative to meet
and negotiate with the employer on their behalf”].) The District’s alleged unfair
practices occurred before OE3 and the District successfully negotiated a first contract.
As the Board explained in Gompers:
“Because during first-contract bargaining ‘management has
very strong incentives to violate the duty to bargain in good
faith because it can defeat the union entirely’ (Fisk &
Pulver, [First Contract Arbitration and the Employee Free
Choice Act (2009)] 70 La. L.Rev. at p. 54), labor boards
‘should be especially sensitive to claims that bargaining for
a first contract has not been in good faith’ (APT Medical
Transportation (2001) 333 NLRB 760, fn. 4; id. at p. 760
(conc. opn. of Liebman, M.), quoting NLRB v. Katz (1962)
369 U.S. 736, 747 [‘The Board should therefore exercise
special care in monitoring the first contract bargaining
process and closely scrutinize behavior which “reflects a
cast of mind against reaching agreement.”’]).”
(Gompers, supra, PERB Order No. Ad-481, p. 6.) Here, OE3 alleges that the District
completely refuses to bargain pending resolution of the decertification petition. The
Board has consistently held that where a duty to bargain exists, an employer’s outright
refusal to bargain with a recognized employee organization violates the duty to

12
bargain in good faith. (City of Fremont (2013) PERB Order No. IR-57-M, p. 22; see
also Region 2 Court Interpreter Employment Relations Committee & California
Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 42.) Whether the
District’s alleged bad faith bargaining predates the decertification petition is
immaterial; it is the alleged bargaining violation’s contemporaneous potential to sway
employee free choice, during the period before OE3 has been able to establish itself,
which necessitates the stay.
For these reasons, and we affirm and adopt OGC’s attached AD staying the
decertification election in Case No. SA-DP-284-M, pending resolution of the blocking
charge in Operating Engineers Local Union No. 3, AFL-CIO v. Consolidated Irrigation
District, Unfair Practice Charge No. SA-CE-1231-M.
ORDER
The administrative determination staying the decertification election in Case
No. SA-DP-284-M is AFFIRMED.
Chair Banks and Member Nazarian joined in this Decision.

1
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CONSOLIDATED IRRIGATION
DISTRICT,
Employer,
and
OPERATING ENGINEERS LOCAL UNION
NO. 3, AFL-CIO,
Exclusive Representative,
and
GROUP OF EMPLOYEES,
Petitioner.
REPRESENTATION
CASE NO. SA-DP-284-M
ADMINISTRATIVE DETERMINATION
April 20, 2023
Appearances: Sagaser, Watkins & Wieland PC by Charles P. Hamamjian, Attorney
for Consolidated Irrigation District; Gening Liao, House Consel for Operating
Engineers Local Union No. 3; Ricardo Cavazos, Representative for Group of
Employees.
Before Fernando A. Reyes, Regional Attorney.
INTRODUCTION
The incumbent union, Operating Engineers Local Union No. 3, AFL-CIO (OE3),
requests that the Public Employment Relations Board’s (PERB) Office of the General
Counsel (OGC) stay the decertification election pending resolution of its unfair practice
charge in Operating Engineers Local Union No. 3, AFL-CIO v. Consolidated Irrigation
District, Case No. SA-CE-1231-M (“blocking charge”). For the reasons discussed
below, OE3’s request to stay the decertification election pending resolution of the
blocking charge is GRANTED.

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BACKGROUND
OE3 was certified as the exclusive representative of employees in the Water
Irrigation Specialist Unit (Unit) of the Consolidated Irrigation District (District) on
November 22, 2021. The parties have not reached an agreement on an initial
collective bargaining agreement (CBA).
On January 5, 2023,1 Ricardo Cavazos (Cavazos), on behalf of a group of
employees (Petitioner), filed a petition with PERB seeking to decertify OE3 as the
exclusive representative of the Unit. The matter was assigned to the OGC for further
processing and investigation.
On February 2, the OGC informed the parties that since the District had not
adopted local rules concerning employee representation petitions, pursuant to PERB
Regulation 61000, PERB would conduct representation proceedings under the
Meyers-Milias-Brown Act (MMBA) in accordance with its regulations.2 The District
posted the notice of decertification petition for the requisite period of time, and no
intervening employee organizations filed with PERB a petition to represent the Unit.
On February 27, OE3 advised that it intended to file a blocking charge and
requested a stay of the election.
On March 1, the District opposed OE3’s request to stay the election.
1 All dates are in 2023, unless otherwise specified.
2 The MMBA is codified at Government Code section 3500 et seq. The text of
the MMBA and PERB regulations may be found at www.perb.ca.gov.

3
On March 13, the OGC issued a letter notifying the parties that the proof of
support submitted by Petitioner was sufficient to satisfy PERB Regulation 61350,
subdivision (b), and indicated its intent to proceed with conducting an election.
On March 14, OE3 filed its blocking charge, which requested that the
decertification election be stayed pending the resolution of the blocking charge. The
blocking charge alleges that the District interfered with employees’ exercise of free
choice and interfered with OE3’s right to represent Unit members by: (1) facilitating the
circulation and submission of the decertification petition through Cavazos, (2)
instructing Cavazos and Unit member Brian Slaven (Slaven) to circulate the
decertification petition, (3) promising benefits in exchange for decertifying OE3, and
(4) refusing to negotiate with OE3 pending the resolution of the decertification
proceedings.
On March 15, the OGC issued a letter regarding OE3’s stay request, and
provided until March 27 for Petitioner and the District to file a response to OE3’s
request.
On March 27, the District submitted a position statement in response to the
blocking charge, which disputed OE3’s allegations and opposed the stay request.
Petitioner did not file a response to OE3’s stay request.
On March 29, the OGC issued a Complaint regarding the allegations in the
blocking charge.
On April 18, the parties participated in an informal conference, but were not
able to reach a resolution.

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BLOCKING CHARGE
In its blocking charge, OE3 alleges that “the District’s conduct is likely to
interfere with employee free choice and influence employees in their vote regarding a
decertification petition, [and] requests that the related decertification petition. . .be
stayed pending the resolution of [the blocking] charge.” OE3’s specific allegations in
its blocking charge are described below.
Cavazos occupies an Assistant Foreman position, is responsible for
supervising the shop, and serves as manager in the absence of Foreman Richard
Lopez. OE3 contends that Unit members perceive Cavazos as a member of
management because he “sits in an office all day, does not conduct the duties of other
Irrigation Specialists, has a company truck, and lives in company housing on
property.” No other Unit member has a company truck. Cavazos supervises Unit
members’ work, recommends discipline, and completes performance evaluations.
Additionally, during a meeting with all Unit members before or around November
2021,3 District Operations Manager Walt Frost announced that “Rick [Cavazos] has
been given full authority to give people jobs if he sees people not working.” Further,
during the first session of contract negotiations, OE3 and the District agreed to
exclude Cavazos from the Unit because he was a supervisor.
In or around December 2022, District management, including Assistant General
Manager Michael Carbajal (Carbajal) and Human Resources Manager Tanya Ruiz
3 The blocking charge states the alleged meeting in question took place
“sometime before November 2022. . . after the employees first contacted the union.”
In reviewing the information provided by the District in its position statement to the
blocking charge and the date that OE3 was first certified, it appears the meeting was
held before or around November 2021.

5
(Ruiz), held meetings with Cavazos and Unit member Slaven involving a
decertification petition. During these meetings, the District instructed Cavazos and
Slaven how to solicit Unit member support for decertifying OE3 as the exclusive
representative, including promising Unit members a pay raise in exchange for
decertifying OE3.
Subsequently, Cavazos circulated a decertification petition and informed Unit
members that they would receive a raise in exchange for signing their support for the
petition.
Since the decertification petition was filed, OE3 has attempted to continue with
contract negotiations, including scheduling a session for March 15. OE3 Business
Agent, Allen Dunbar, repeatedly requested contract proposals prior to the session, but
the District did not provide any proposals. During the March 15 session, the District
declared that it would not continue with contract negotiations until the decertification
process was completed. The District has since refused to engage with OE3 on
outstanding matters.
THE DISTRICT’S POSITION
The District opposes the stay request. Additionally, the District disputes OE3’s
contention that Cavazos acted as the District’s agent, and contends that he is not in a
supervisory or management role. The District also contends that it never discussed
excluding Cavazos from the Unit with OE3, nor did the District indicate that Cavazos
was a supervisor during a meeting with Unit members. Further, the District contends
that Cavazos’ involvement in collecting signatures in support of the decertification

6
petition, even if he were determined to be a supervisor, would not invalidate the
petition.
The District also denies OE3’s allegations that in or around December 2022,
District agents Carbajal and Ruiz met with and instructed Slaven and Cavazos how to
solicit Unit member support for decertifying OE3, and disputes that it promised a raise
to Unit members if OE3 was decertified.
Regarding the alleged refusal to bargain, the District contends that it never
refused to bargain with OE3 prior to the filing of the decertification petition, and that
OE3 pushed for a meeting to bargain a potential contract only after the decertification
petition was filed with PERB. The parties agreed to meet on March 15, during which
meeting the District reiterated the terms of its last offer and OE3 did not offer a
response. The District contends that it was the only party that discussed the terms of
an offer for an initial CBA during the March 15 meeting, while OE3 did not offer any
proposals, counters, or comments to the District’s proposal.
ISSUE
Whether the alleged unlawful actions described in the blocking charge would so
affect the election process as to prevent Unit members from exercising free choice.
DISCUSSION
The primary goal of the MMBA is to provide a uniform basis for recognizing the
right of employees to join organizations of their own choice. (Gov. Code, §§ 3500 &
3502.)
PERB Regulation 61190 governs blocking charges and requests to stay
elections administered by PERB under the MMBA. It provides in relevant part:

7
“The Board may stay an 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. . . .”
“The proper focus of the [OGC’s] inquiry is an objective evaluation of the
probable effect of the conduct alleged and the possibility of a free election.” (Imagine
Schools of Imperial Valley (2015) PERB Order No. Ad-431, at p. 10 (Imagine).) In
making this determination, the OGC is “obligated to presume the allegations in the
blocking charge are true.” (Children of Promise Preparatory Academy (2015) PERB
Order No. Ad-428, adopting administrative determination, p. 15; see Grenada
Elementary School District (1984) PERB Decision No. 387, p. 14 (Grenada) [in
evaluating whether to block an election, the Board agent must presume the facts
alleged in the complaint are true].) Accordingly, the determination to stay an election
is not intended to involve adjudication of the unfair practice charge itself.
The Board has held that the Board agent must analyze whether the conduct
alleged “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.” (Regents of the University of California (1984) PERB
Decision No. 381-H, p. 6.) The only relevant issue is whether the employer’s conduct,
as alleged in the complaint, will so taint the election process as to interfere with
employee free choice. (Imagine, supra, PERB Order No. Ad-431, at p. 13.) Although
the truth of all relevant allegations contained in the charges must be assumed, the
allegations are not evaluated separately and without regard to the factual contexts in

8
which they arose. (Children of Promise Preparatory Academy, supra, PERB Order
No. Ad-428, adopting administrative determination at p. 16.)
In the present case, OE3 asserts that the District’s conduct is likely to interfere
with and influence employees’ exercise of free choice to vote in a decertification
election. OE3’s specific allegations in favor of staying the decertification election are
addressed below.
Interference
The MMBA expressly grants employees the right to form, join, and participate in
the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations (Gov. Code, § 3502),
and prohibits public agencies from interfering with, intimidating, restraining, coercing,
or discriminating against covered public employees because of their exercise of these
rights. (Gov. Code, §§ 3506 & 3506.5, subd. (a).) The MMBA also grants employee
organizations the right to represent members in their employment relations with public
agencies, and prohibits public agencies from denying that right. (Gov. Code, §§ 3503
& 3506.5, subd. (b).) A charging party must show that the employer’s conduct tends
to or does result in some harm to employee or employee organization rights. (City of
San Diego (2020) PERB Decision No. 2747-M, p. 36.) This standard applies in cases
where the employer is alleged to have interfered with the rights of employees or
restrained or coerced employees in their exercise of rights. (Novato Unified School
District (1982) PERB Decision No. 210, p. 5, n. 7.)
Although the MMBA does not specifically include “agent” in the definition of
“employer,” PERB applies common law principles of agency authority to cases arising

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under the MMBA. (Inglewood Unified School District (1990) PERB Decision No. 792,
pp. 19-22, affd. sub nom. Inglewood Teachers Assn. v. Public Employment Relations
Bd. (1991) 227 Cal.App.3d 767, 780.) Agency may be established by showing: (1) the
purported agent had actual authority to act on behalf of the employer; (2) the
purported agent had apparent authority to act on behalf of the employer; or (3) the
employer ratified the purported agent’s conduct. (City of San Diego (2015) PERB
Decision No. 2464-M, adopting proposed decision, pp. 38-39, affd. sub nom. Boling v.
Public Employment Relations Bd. (2018) 5 Cal.5th 898.)
At issue is whether Cavazos is an agent of District management, and/or acted
with actual or apparent authority from the District. Assuming the allegations in the
charge are true, District management held meetings with and instructed Cavazos and
Slaven on a strategy for gathering Unit member support for decertifying OE3, namely
promising Unit members would receive a raise if they decertified OE3. Cavazos—
acting as an agent of the District and/or at the direction of the District—then solicited
signatures from Unit members showing support for the decertification petition,
informed Unit members that they would receive a pay raise in exchange for
decertifying OE3, and submitted the petition to decertify OE3.
Because Cavazos was directed by the District to facilitate the decertification
petition, his actions may be attributed to the District for the purpose of determining
whether the District’s conduct is likely to interfere with employee free choice, and thus,
affect the outcome of the election. (Imagine, supra, PERB Order No. Ad-431, at p.
13.)

10
Offering a pay raise to Unit members in exchange for decertifying OE3 is
coercive and interferes with employee and employee organization rights because it
makes a promise of a benefit to Unit members if they decertify their exclusive
representative. (See City of Arcadia (2019) PERB Decision No. 2648-M, pp. 28-30.)
Similarly, Cavazos impliedly threatened that continued representation by OE3 would
result in an outcome where Unit members would not receive pay raises. (See
Coachella Valley Mosquito & Vector Control District (2009) PERB Decision No. 2031-
M, pp. 21-23, overruled in part on other grounds in City of Roseville (2016) PERB
Decision No. 2505-M.)
The District’s instruction to Cavazos to facilitate the decertification petition and
Cavazos’ conduct in collecting signatures and promising raises to Unit members if
OE3 is decertified, interfere with and constrain Unit employee and employee
organization rights, and is likely to affect employee free choice in an election.
Unlawful Domination
The District may not “dominate or interfere with the formation or administration
of any employee organization, contribute financial or other support to any employee
organization, or in any way encourage employees to join any organization in
preference to another” (Gov. Code, § 3506.5, subd. (d)), and is prohibited from actions
that tend to influence employee free choice or provide stimulus in one direction or the
other (Santa Monica Community College District (1979) PERB Decision No. 103, p.
22). Assuming the allegations in the charge are true, the District instructed Cavazos
about how to solicit Unit member signatures and garner support for the decertification
petition, and Cavazos promised Unit members a raise if they decertified OE3. These

11
purported actions by the District and Cavazos, as the District’s agent, show a
preference for the group of Unit members to decertify OE3, are likely to influence Unit
employees to vote in favor of decertifying OE3, and are thereby likely to interfere with
employees’ exercise of free choice.
Prohibition on Public Employers Deterring or Discouraging Union Membership
A public employer shall not deter or discourage public employees from
becoming or remaining members of an employee organization. (Gov. Code, § 3550.)
To deter or discourage means to tend to influence an employee’s free choice
regarding whether or not to authorize representation, become or remain a union
member, or commence or continue paying union dues or fees. (Regents of the
University of California (2021) PERB Decision No. 2755-H, p. 3 (Regents).) The
standard set out in Regents applies equally in an organizing context. (See Regents of
the University of California (2021) PERB Decision No. 2756-H.) There, in response to
an organizing flyer posted by a union, the employer posted a document on its website
which compared salary increases between represented and unrepresented staff and
made various claims about the employer’s efforts to compensate, protect and support
unrepresented employees. (Id. at pp. 1-2.) The Board found that the unfair practice
charge filed by the union stated a prima facie case that the employer’s conduct
deterred or discouraged public employees and tended to influence employee
decisions on union membership and support. (Id. at p. 9.)
To determine whether conduct is reasonably likely to deter or discourage
employee choice on union matters, the Board looks to the context surrounding the
employer’s conduct. (Cf. Los Angeles Unified School District (1988) PERB Decision

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No. 659, p. 9 [“Statements made by an employer are to be viewed in their overall
context (i.e., in light of surrounding circumstances) to determine if they have a
coercive meaning”].)
Here, at the direction of the District, Cavazos allegedly collected signatures
from Unit members showing support for the decertification petition and promised Unit
members a raise in exchange for decertifying OE3. Offering a raise to Unit members
in exchange for decertifying OE3 and directing Cavazos, an employee perceived by
Unit members as an agent of the District, to collect signatures in support of
decertification is likely to encourage employees to vote in favor of decertification, and
therefore likely to affect the outcome of the election.
Refusal to Bargain
A refusal to bargain serves as a basis to stay an election. Government Code,
section 3506.5, subdivision (c), provides that it is a violation for a public agency
employer to “refuse or fail to meet and negotiate in good faith with a recognized
employee organization.” An outright refusal to bargain has the potential to frustrate
bargaining and may be found unlawful as a per se violation of the duty to bargain in
good faith. (State of California (Department of Personnel Administration) (2003)
PERB Decision No. 1516-S, p. 4; see Dublin Professional Fire Fighters, Local 1885 v.
Valley Community Services District (1975) 45 Cal.App.3d 116, 118.)
“Out of its wide experience, the Board many times has expressed the view that
the unlawful refusal of an employer to bargain collectively with its employees’ chosen
representative disrupts the employees’ morale, deters their organizational activities,
and discourages their membership in unions.” (Children of Promise Preparatory

13
Academy, supra, PERB Order No. Ad-428, adopting administrative determination at p.
19.) The weakening of union support resulting from the employer’s recalcitrance in
bargaining an initial collective bargaining agreement ordinarily cannot be remedied by
a subsequent bargaining order. (Gompers Preparatory Academy (2020) PERB Order
No. Ad-481, p. 5.) As a result, “[r]efusing to bargain for a first contract is a powerful
weapon in the arsenal of employers determined to remain union free, as it prevents a
nascent union from ever getting off the ground.” (Id. at pp. 5-6, quoting Fisk & Pulver,
First Contract Arbitration and the Employee Free Choice Act (2009) 70 La. L.Rev. 47.)
Further, the Board has held 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, supra, PERB Decision No. 387, at p. 9.) This includes a
refusal to bargain after the filing of a decertification petition because the focus remains
not on the reasons for filing the decertification petition, but on the ability of the
members of the unit to exercise free choice in an election. (See Id. at pp. 12-15 [the
Board found the fact that some of the District’s alleged actions occurred after the filing
of a decertification petition rather than before is immaterial in determining whether or
not a fair election is possible]; Pittsburg Unified School District (1983) PERB Decision
No. 318, pp. 22-23.)
After the decertification petition (PERB Case No. SA-DP-284-E) was filed, OE3
attempted to continue contract negotiations with the District, and scheduled a
bargaining session for March 15. OE3’s Business Agent, Allen Dunbar, repeatedly
requested that District negotiators provide initial CBA proposals prior to the scheduled

14
March 15 bargaining session. The District did not provide OE3 with any proposals
prior to March 15, and, during the March 15 bargaining session, the District declared
that it would not continue negotiations until the pending decertification petition is
resolved. The District’s refusal to continue contract negotiations until after the
decertification process concludes eliminates OE3’s ability to effectively negotiate with
the District on behalf of Unit members, and could make OE3 appear weak and
ineffective, contribute to employee dissatisfaction with OE3, and ultimately prevent a
fair election. (See e.g., Imagine, supra, PERB Order Ad-431, at p. 10; Children of
Promise Preparatory Academy, supra, PERB Order No. Ad-428, adopting
administrative determination at pp. 19-20.)
CONCLUSION
Based on the facts, conclusions of law and entire record herein, OE3’s request
to stay the decertification election is GRANTED. Pursuant to PERB Regulation
61190, it is hereby ORDERED that Case No. SA-DP-284-M be placed in abeyance
pending the resolution of Operating Engineers Local Union No. 3, AFL-CIO v.
Consolidated Irrigation District, Unfair Practice Charge No. SA-CE-1231-M.

The administrative determination also contained an explanation of appeal rights;
that portion of the administrative determination, which is superseded, is not
shown here.