Employer's Refusal to Bargain is Grounds to Stay SMCS-Conducted Election under New PERB Regulations

On May 9, 2014, PERB stayed an SMCS-conducted representation election in the City of Fremont (“City”) on the grounds that the City’s alleged failure to bargain would reasonably affect the election process as to prevent employee free choice in the election.

PERB stayed the election under PERB Regulation 33002, which recently went into effect in October 2013. Regulation 33002, which applies when SMCS conducts an election, provides:

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.


The stay was justified based on an underlying unfair practice charge against the City, which alleged that the City refused to bargain with the exclusive representative. As we have previously reported, PERB will also stay an election where it is alleged that there is inadequate proof of support.

We will continue to provide updates about PERB’s application of Regulation 33002, so stay tuned.

By Sean Graham | May 28, 2014

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