PERB: Public Employment Relations Board

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Chapter 1

Regulations of the
Public Employment Relations Board
As of January 1, 2012

CHAPTER 1. PUBLIC EMPLOYMENT RELATIONS BOARD

SUBCHAPTER 1. INTERNAL PROCEDURES

Article 1. Public Meetings

31001. Meetings.
Except as permitted by law, the Public Employment Relations Board itself shall deliberate and take all actions only at public meetings. The Board's policy on public meetings shall be available to the public. .

Article 2. Conflict of Interest Code

31100. General Provisions.
The Political Reform Act, Government Code Sections 81000, et seq., requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation, 2 California Code of Regulations Section 18730, which contains the terms of a standard conflict of interest code, which can be incorporated by reference, and which may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act after public notice and hearings. Therefore, the terms of 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission, along with the attached Appendix in which officials and employees are designated and disclosure categories are set forth, are hereby incorporated by reference and constitute the conflict of interest code of the Public Employment Relations Board (PERB), except as provided below.

Designated employees shall file statements of economic interests with PERB who will make the statements available for public inspection and reproduction. (Gov. Code section 81008). Upon receipt of the statements of Board Members, PERB shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission. Statements for all other designated employees will be maintained by PERB.

APPENDIX
Designated Positions	Disclosure Category

Board Members	(a) and (b)
Executive Director	(a) and (b)
Administrative Officer	(a) and (b)
General Counsel	(a) and (b)
Chief Administrative Law Judge	(a) and (b)
All attorneys employed in the Office of the General Counsel	(a)
All attorneys employed in the Division of Administrative Law	(a)
All persons employed as a Legal Adviser to a Board Member	(a)
Regional Directors	(a)
Administrative Assistant to the Chair	(a)
Legal Documents Examiner	(a)
All Public Employment Relations Representatives and Specialists	(a)
Business Services Officer	(b)
Consultant*

* Consultants shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation: The Executive Director or Administrative Officer may determine in writing that a particular consultant, although a "designated position," is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The Executive Director's or Administrative Officer's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code.

Disclosure Categories

(a) Designated employees assigned to this disclosure category shall disclose: Investments held in, income derived from, including gifts, loans, salary and reimbursements for expenses, travel or per diem, and any business positions held by a designated employee to the extent that they know or have reason to know that the entity or source is an organization of employers, employee organization, individual, law firm, labor negotiations firm or consulting firm, which is subject to the jurisdiction of the Public Employment Relations Board or has appeared within the last 12 months in a dispute before the Board as a party, a representative for a party, or has provided assistance to a party in preparation for an appearance in a dispute before the Board.

(b) Designated employees assigned to this disclosure category shall disclose: Investments held in, income derived from, including gifts, loans, salary and reimbursements for expenses, travel or per diem, and any business positions held in any entity or source of the type which provides services, supplies, materials, machinery, leased space or equipment to the Public Employment Relations Board.

SUBCHAPTER 2. DEFINITIONS AND GENERAL PROVISIONS

Article 1. Definitions

32000. EERA.
"EERA" means the Educational Employment Relations Act as contained in Chapter 10.7 of Division 4 of Title 1 of the Government Code (commencing with Section 3540).

32001. Definition of Terms Under EERA.
As applied to matters arising under EERA:

(a) Employee Organization. "Employee organization" as defined in Government Code Section 3540.1(d) shall include any two or more employee organizations as defined therein who join together to become "joint requester," "joint intervenor" or "joint petitioner."

(b) Intervening Organization. "Intervening Organization" or "Intervenor" means either of the following:

(1) An employee organization filing a competing claim of representation or a challenge to the appropriateness of the unit pursuant to Government Code Section 3544.l(b); or

(2) An employee organization filing a request to appear on the ballot following the filing of an employee petition for a representation election pursuant to Government Code Section 3544.3.

(c) School District. "School District" as used in the EERA means a school district of any kind or class, including any public community college district, within the state.

(d) As used in Chapter 2, Subchapter 2 of these regulations, "academic year" means the period of time including, and limited to, July 1 of any year through June 30 of the succeeding year.

32005. Ralph C. Dills Act.
"Ralph C. Dills Act" or "Dills Act" means the State Employer-Employee Relations Act as contained in Chapter 10.3 of Division 4 of Title 1 of the Government Code (commencing with Section 3512).

32006. Definition of Terms Under Ralph C. Dills.
As applied to matters arising under Ralph C. Dills Act:

(a) Employee Organization. "Employee organization" as defined in Government Code Section 3513(a) shall include any two or more employee organizations as defined therein who join together to become "joint petitioner," or "joint election intervenor."

(b) Election Intervenor. "Election Intervenor" means any employee organization, whether or not a party to a unit determination hearing, which files an intervention to appear on the ballot for an election in an appropriate Ralph C. Dills Act unit.

32010. HEERA.
"HEERA" means the Higher Education Employer-Employee Relations Act as contained in Chapter 12 of Division 4 of Title 1 of the Government Code (commencing with Section 3560).

32011. Definition of Terms Under HEERA.
As applied to matters arising under HEERA:

(a) "Employee organization" as defined in Government Code Section 3562(f) shall include any two or more employee organizations defined therein who join together to become a "joint requester," "joint intervenor" or "joint petitioner."

(b) In Chapter 4 of these regulations:

(l) Requester. "Requester" means an employee organization which has filed a HEERA request for recognition.

(2) Intervenor. "Intervenor" means an employee organization filing a competing claim of representation or a challenge to the appropriateness of the unit pursuant to HEERA.

(3) Petitioner. "Petitioner" means an employee organization which has filed a HEERA petition for certification.

(4) Election Intervenor. "Election Intervenor" means an employee organization, whether or not a party to the unit determination hearing, which files an intervention to appear on the ballot for an election in an appropriate unit pursuant to HEERA.

(c) As used in Chapter 4, Subchapter 2 of these regulations, "academic year" means the period of time including, and limited to, July 1 of any year through June 30 of the succeeding year.

32015. MMBA.
"MMBA" means the Meyers-Milias-Brown Act as contained in Chapter 10 of Division 4 of Title 1 of the Government Code (commencing with Section 3500).

32016. Definition of Terms Under MMBA
As applied to matters arising under MMBA:

(a) Public agency. "Public agency" means every governmental subdivision, every district, every public and quasi-public corporation, every public agency and public service corporation, every town, city, county, city and county and municipal corporation, whether incorporated and whether chartered or not. For purposes of these regulations, the term "public agency" shall exclude the City of Los Angeles, County of Los Angeles, and superior and municipal courts, and does not mean a school district or a county board of education or a county superintendent of schools or a personnel commission in a school district having a merit system as provided in Chapter 5 (commencing with Section 45100) of Part 25 and Chapter 4 (commencing with Section 88000) of Part 51 of the Education Code or the State of California. The term "public agency," as used herein, also excludes any transit agency not subject to the MMBA.

(b) Exclusive representative. References in these regulations to an "exclusive representative" means an employee organization that has been recognized or certified as an exclusive or majority bargaining agent pursuant to MMBA.

32017. TEERA.
"TEERA" means the Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act as contained in Chapter 7 of Part 11 of Division 10 of the Public Utilities Code (commencing with Section 99560).

32018. Definition of Terms Under TEERA.
As applied to matters arising under TEERA:

(a) "Employee organization" as defined in Public Utilities Code Section 99560.1(f) shall include any two or more employee organizations defined therein who join together to become a "joint requester," "joint intervenor" or "joint petitioner."

(b) "Exclusive representative" as defined in Public Utilities Code Section 99560.1(i) shall include any employee organization that, prior to January 1, 2004, was certified or recognized for a unit of supervisory employees, in accordance with Public Utilities Code Section 30750 et seq.

(c) "Established bargaining unit" shall include any unit of supervisory employees established prior to January 1, 2004, in accordance with Public Utilities Code Section 30750 et seq.

(d) In Chapter 6 of these regulations:

(l) Requester. "Requester" means an employee organization which has filed a TEERA request for recognition.

(2) Intervenor. "Intervenor" means an employee organization filing a competing claim of representation or a challenge to the appropriateness of the unit pursuant to TEERA.

(3) Petitioner. "Petitioner" means an employee organization which has filed a TEERA petition for certification.

32020. Board.
"Board" means the five-member Public Employment Relations Board, any individual Board member or any Board agent.

32030. Board Itself.
"Board itself" means only the five-member Public Employment Relations Board, or members thereof authorized by law to act on behalf of the Board.

32032. Trial Court Act.
"Trial Court Act" means the Trial Court Employment Protection and Governance Act as contained in Chapter 7 of Title 8 of the Government Code (commencing with Section 71600).

32033. Definition of Terms Under Trial Court Act.
As applied to matters arising under the Trial Court Act:

(a) Trial court. "Trial court" means a superior court.

(c) Local rules. "Local rules" means the rules and regulations of a trial court adopted pursuant to Section 71636 of the Trial Court Act.

32034. Court Interpreter Act.
"Court Interpreter Act" means the Trial Court Interpreter Employment and Labor Relations Act as contained in Chapter 7.5 of Title 8 of the Government Code (commencing with Section 71800).

32035. Definition of Terms Under Court Interpreter Act.
As applied to matters arising under the Court Interpreter Act:

(a) "Regional committee" means a regional court interpreter employment relations committee established under Government Code section 71807.

(b) Trial court. "Trial court" means a superior court.

(c) Exclusive representative. References in these regulations to an "exclusive representative" means an employee organization that has been recognized or certified as an exclusive or majority bargaining agent pursuant to the Court Interpreter Act.

(d) Local rules. "Local rules" means the rules and regulations of a regional committee adopted pursuant to Section 71823 of the Court Interpreter Act.

(e) Employer. As used in these regulations, the term "employer" includes a regional court interpreter employment relations committee established under Government Code section 71807.

32040. Executive Director.
"Executive Director" means the officer of that title appointed by the Board pursuant to Government Code Section 3541(f).

32050. General Counsel.
"General Counsel" means the officer of that title appointed pursuant to Government Code Section 3541(f).

32055. Chief Administrative Law Judge.
"Chief Administrative Law Judge" means the officer of that title designated by the Board.

32060. Headquarters Office.
"The headquarters office" means the main office of the Board itself, the General Counsel, the Chief Administrative Law Judge, and the Executive Director. The headquarters office shall be located in Sacramento, CA.

32075. Regional Office.
"The regional office" means the office established by the Board which serves the county in which the principal office of an employer is located according to the following schedule:

Counties included in the Sacramento Regional Office jurisdiction: Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Fresno, Glenn, Inyo, Kings, Lassen, Madera, Mariposa, Merced, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Stanislaus, Sutter, Tehama, Trinity, Tulare, Tuolumne, Yolo, Yuba.

Counties included in San Francisco Regional Office jurisdiction: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma.

Counties included in Los Angeles Regional Office jurisdiction: Imperial, Kern, Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura.

32080. Day. "Day" means calendar day unless otherwise specified.

32085. Workday.

(a) EERA - "Workday," as utilized in matters arising under EERA, means a day when schools in a district are in session, excluding Saturdays and Sundays, except that a day(s) may be included or excluded as a workday when the Board determines that a substantial number of affected employees would or would not be at work on that day(s).

(b) HEERA - "Workday," as utilized in matters arising under HEERA, means Monday through Friday, from September 20 through May 20, excluding Thanksgiving Day, and the Friday following Thanksgiving Day, and also excluding December 20 through January 2, except that a day(s) may be included or excluded as a workday when the Board determines that a substantial number of affected employees would or would not be at work on that day(s).

(c) Ralph C. Dills Act - "Workday," as utilized in matters arising under Ralph C. Dills Act, means Monday through Friday, excluding a holiday as defined under Government Code Section 6700 or 6701. (d) MMBA - "Workday," as utilized in matters arising under MMBA, means Monday through Friday, excluding any holiday defined under the applicable local rules or collective bargaining agreement.

(e) TEERA - "Workday," as utilized in matters arising under TEERA, means Monday through Friday, excluding the following holidays: New Year's Day, Martin Luther King Jr. Day, President's Day, Memorial Day, Fourth of July (Independence Day), Labor Day, Thanksgiving and Christmas.

(f) Trial Court Act - "Workday," as utilized in matters arising under the Trial Court Act, means Monday through Friday, excluding a holiday as defined under Government Code Section 6700 or 6701.

(g) Court Interpreter Act - "Workday," as utilized in matters arising under the Court Interpreter Act, means Monday through Friday, excluding a holiday as defined under Government Code Section 6700 or 6701.

32090. Fax Filing.

(a) "Facsimile transmission'' is the transmission of a document by a system that encodes a document into electrical signals, transmits these electrical signals over a telephone line, and reconstructs the signals to print a duplicate of the original document at the receiving end.

(b) "Facsimile machine'' means a machine that can send a facsimile transmission using the international standard for scanning, coding, and transmission established for Group 3 machines by the Consultative Committee of International Telegraphy and Telephone of the International Telecommunications Union, in regular resolution. Any facsimile machine used to send documents must send at an initial transmission speed of no less than 4800 baud and be able to generate a transmission record. Facsimile machine includes, but is not limited to, a facsimile modem that is connected to a personal computer.

(d) "Fax'' is an abbreviation for "facsimile,'' and refers, as indicated by the context, to facsimile transmission or to a document so transmitted.

Article 2. General Provisions

32100. Application of Regulations.

(a) All rules and regulations within this Chapter shall apply to proceedings conducted under EERA, Ralph C. Dills Act, and HEERA and to Chapters 2, 3 and 4 within this Division.

(b) All rules and regulations within this Chapter, except for Subchapter 6, shall apply to proceedings conducted under MMBA and to Chapter 5 within this Division.

(c) All rules and regulations within this Chapter, except for Article 6 of Subchapter 6, shall apply to proceedings conducted under TEERA and to Chapter 6 within this Division.

(d) All rules and regulations within this Chapter, except for Subchapter 6, shall apply to proceedings conducted under the Trial Court Act and to Chapter 7 within this Division.

(e) All rules and regulations within this Chapter, except for Subchapter 6, shall apply to proceedings conducted under the Court Interpreter Act and to Chapter 8 within this Division.

32105. Severability.
If any section, subsection, clause or provision of these regulations is found to be invalid, the same shall not affect the remaining portion of the regulations.

32120. Filing Contracts with Board.
Each employer entering into a written agreement or memorandum of understanding with an exclusive representative pursuant to the Trial Court Act, Court Interpreter Act, TEERA, MMBA, EERA, Ralph C. Dills Act or HEERA, if requested by the Board, shall file one copy of the agreement and any amendments thereto with the Board within 15 days of the request.

32122. Place to File Representation Matters.

(a) Except as provided for in subsection (b) and Sections 32123 and 32124, the appropriate location for filing documents in representation matters shall be the regional office which serves the county in which the principal office of an employer is located, as described in Section 32075 of these regulations.

(b) The appropriate location for filing documents in representation matters under the Court Interpreter Act shall be as follows: in the case of Regions 1 and 4, the Los Angeles Regional Office; for Region 2, the San Francisco Regional Office; and for Region 3, the Sacramento Regional Office.

32123. Place to File HEERA Representation Matters.

(a) The San Francisco Regional Office shall be the appropriate location for filing documents in representation matters relating to the University of California or Hastings College of the Law.

(b) The Los Angeles Regional Office shall be the appropriate location for filing documents in representation matters relating to the California State University.

32124. Place to File Ralph C. Dills Act Representation Matters.
The Sacramento Regional Office shall be the appropriate location for filing all documents in representation matters relating to the State of California.

32130. Computation of Time.

(a) In computing any period of time under these regulations, except under Section 32776(c), (d), (e) and (f), the period of time begins to run the day after the act or occurrence referred to.

(b) Whenever the last date to file a document falls on Saturday, Sunday, or a holiday, as defined in Government Code Sections 6700 and 6701, or PERB offices are closed, the time period for filing shall be extended to and include the next regular PERB business day. The extension of time provided herein shall be applied subsequent to the application of any other extension of time provided by these regulations or by other applicable law.

(c) A five day extension of time shall apply to any filing made in response to documents served by mail if the place of address is within the State of California, ten days if the place of address is outside the State of California but within the United States, and twenty days if the place of address is outside the United States. No extension of time applies in the case of documents served in person, or by facsimile transmission as defined in Section 32090.

32132. Extension of Time.

(a) A request for an extension of time within which to file any document with the Board itself shall be in writing and shall be filed at the headquarters office at least three days before the expiration of the time required for filing. The request shall indicate the reason for the request and, if known, the position of each other party regarding the extension. Service and proof of service pursuant to Section 32140 are required. Extensions of time may be granted by the Board itself or an agent designated by the Board itself for good cause only.

(b) A request for an extension of time within which to file any document with a Board agent shall be in writing and shall be filed with the Board agent at least three days before the expiration of the time required for filing. The request shall indicate the reason for the request and, if known, the position of each other party regarding the extension and shall be accompanied by proof of service of the request upon each party. Extensions of time may be granted by the Board agent for good cause only.

32135. Filing.

(a) All documents shall be considered "filed" when the originals, and the required number of copies, if any, are actually received by the appropriate PERB office during a regular PERB business day.

(b) All documents, except proof of support as described in sections 32700, 61020, 81020 and 91020, shall also be considered "filed" when received during a regular PERB business day by facsimile transmission at the appropriate PERB office together with a Facsimile Transmission Cover Sheet, or when received by on-line filing as defined in Section 32613.

(c) A party filing documents by facsimile transmission or by on-line filing must also deposit the original, together with the required proof of service and the required number of copies, in the U.S. mail or with a delivery service for delivery to the appropriate PERB office.

(d) A facsimile filing shall be accompanied by a Facsimile Transmission Cover Sheet which includes the following:

(1) The name of the party serving or filing papers by fax and the name and telephone number of the agent transmitting the document by facsimile transmission;

(2) The name or title of the document being transmitted and the number of pages;

(3) The date and time of the transmission;

(4) The PERB case number, if any.

32136. Late Filing.
A late filing may be excused in the discretion of the Board for good cause only. A late filing which has been excused becomes a timely filing under these regulations.

32140. Service.

(a) All documents referred to in these regulations requiring "service," except subpoenas, shall be considered "served" by the Board or a party when personally delivered, deposited in the mail or with a delivery service properly addressed, or when sent by facsimile transmission in accordance with the requirements of Sections 32090 and 32135(d). All documents required to be served shall include a "proof of service" declaration signed under penalty of perjury which contains the following information: (1) The name of the declarant; (2) the county and state in which the declarant is employed or resides; (3) a statement that the declarant is over the age of 18 years and not a party to the case; (4) the address of the declarant; (5) a description of the documents served; (6) the method of service and a statement that any postage or other costs were prepaid; (7) the name(s), address(es) and, if applicable, fax number(s) used for service on the party(ies); and (8) the date of service.

(b) Whenever "service" is required by these regulations, service shall be on all parties to the proceeding and shall be concurrent with the filing in question. .

32142. Proper Recipient for Filing or Service.
Whenever a document is required to be "filed" or "served" with any of the below listed entities, the proper recipient shall be:

(a) The Board: the appropriate or designated regional office (see, e.g. Sections 32075, 32122, or 32612) unless the headquarters office is specified;

(b) The Board itself: only at the headquarters office;

(1) in the case of a public school employer: the superintendent, deputy superintendent, or a designated representative of a school district; or to the school board at a regular or extraordinary meeting;

(2) in the case of a state employer: the Governor or his designated representative on behalf of the State of California;

(3) in the case of a higher education employer:

(A) If the employer is the Regents of the University of California, the Office of the General Counsel of the University;

(B) If the employer is the Directors of Hastings College of the Law, the Office of the General Counsel of Hastings;

(C) If the employer is the Trustees of the California State University for unfair practice proceedings, service shall be on the Office of the General Counsel of the California State University; for representation proceedings, filing or service shall be on the Office of the Director of Employee Relations.

(4) in the case of a public agency employer as defined in Government Code section 3501(c): the individual designated to receive service or the chief executive officer.

(5) in the case of a transit district employer as defined in Public Utilities Code section 99560.1(g), any person authorized to act on behalf of the employer.

(6) in the case of a trial court employer as defined in Government Code section 71601(k) or 71801(k): the individual designated to receive service or the executive officer.

(7) in the case of a regional committee as defined in Government Code sections 71801(h) and 71807: the individual designated to receive service or the chair of the regional committee.

(d) An employee organization: the individual designated to receive service or to the president or if there is no president, an officer of the organization.

(e) An individual: to the named person or to their representative of record.

32145. Waiver of Time Periods.
The Board itself may waive or all parties to a proceeding, subject to the approval of the Board, may jointly waive any time period allowed for action by a party or the Board in order to expedite any pending matter.

32147. Expediting Matters Before the Board.
The Board itself, the Chief Administrative Law Judge or the General Counsel may expedite any matter pending before the Board pursuant to policy established by the Board itself. For purposes of this Section, expediting matters in the case of the Board itself means the matter shall be given priority and decided on an expedited basis.

32149. Investigative Subpoenas.
The Board may issue investigative subpoenas and subpoenas duces tecum compelling the attendance of witnesses and production of records at investigative proceedings. The provisions in Section 32150 governing issuance of subpoenas and motions to quash subpoenas shall be applicable to investigative subpoenas issued by the Board.

32150. Subpoenas.

(a) Before the hearing has commenced, the Board shall issue subpoenas at the request of any party for attendance of witnesses or production of documents at the hearing. Compliance with the provisions of Section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena for production of documents. After the hearing has commenced the Board may issue subpoenas.

(b) Any subpoenas issued pursuant to subdivision (a) shall be extended to all parts of the State and shall be served in accordance with the provisions of sections 1987 and 1988 of the Code of Civil Procedure.

(c) All witnesses appearing pursuant to subpoena, other than the parties, shall receive fees and mileage in the amount as prescribed by law for civil actions in a superior court. Fees, mileage and expenses of subsistence shall be paid by the party at whose request the witness is subpoenaed.

(d) A written motion to revoke a subpoena may be filed prior to the proceeding or made by an oral motion at the commencement of the proceeding. The Board shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.

(e) Upon a finding of the Board itself that a Board agent is essential to the resolution of a case and that no rational decision of the Board can be reached without such agent, the Board itself shall produce the agent if subpoenaed to do so by any party to the dispute.

(f) Upon the failure of any person to comply with a subpoena, the Board may apply to an appropriate superior court for an order requiring such person to appear and produce evidence and give testimony regarding the matter under investigation or in question. Requests for compliance with a subpoena shall be made to the Board agent assigned the case. If the Board agent deems it appropriate, he or she shall promptly recommend to the General Counsel that the Board seek enforcement of the subpoena. A request that the Board apply for an order may be made by the General Counsel at any stage of the proceedings. The Board shall seek enforcement on recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. If the request is granted, the record will remain open in the matter until the Board determines that the court order will not be forthcoming, or that further delay would frustrate the policies of the applicable Act, or until the testimony sought is included in the record.

32155. Disqualification of Board Agent or Board Members.

(a) No Board member, and no Board agent performing an adjudicatory function, shall decide or otherwise participate in any case or proceeding:

(1) In which he or she has a financial interest in the outcome.

(2) When he or she is related to any party or to an agent or officer of any party, or to an attorney or counsel of any party by consanguinity or affinity within the third degree computed according to the rules of law, or when he or she is indebted, through money borrowed as a loan, to any party or to an attorney or counsel of any party.

(3) When, in the case or proceeding, he or she has been attorney or counsel for any party; or when he or she has given advice to any party upon any matter involved in the proceeding before the Board; or when he or she has been retained or employed as attorney or counsel for any party within one year prior to the commencement of the case at the Board level.

(4) When it is made to appear probable that, by reason of prejudice of such Board member or Board agent, a fair and impartial consideration of the case cannot be had before him or her.

(b) Whenever such a Board agent shall have knowledge of any facts, which under the provisions of this rule disqualify him or her from presiding over any aspect of a hearing or investigation, it shall be his or her duty immediately to notify the General Counsel or the Chief Administrative Law Judge, as appropriate, setting forth all reasons for his or her belief.

(c) Any party may request the Board agent to disqualify himself or herself whenever it appears that it is probable that a fair and impartial hearing or investigation cannot be held by the Board agent to whom the matter is assigned. Such request shall be written, or if oral, reduced to writing within 24 hours of the request. The request shall be under oath and shall specifically set forth all facts supporting it. The request must be made prior to the taking of any evidence in an evidentiary hearing or the actual commencement of any other proceeding.

If such Board agent admits his or her disqualification, such admission shall be immediately communicated to the General Counsel or the Chief Administrative Law Judge, as appropriate, who shall designate another Board agent to hear the matter.

Notwithstanding his or her disqualification, a Board agent who is disqualified may request another Board agent who has been agreed upon by all parties to conduct the hearing or investigation.

(d) If the Board agent does not disqualify himself or herself and withdraw from the proceeding, he or she shall so rule on the record, state the grounds for the ruling, and proceed with the hearing or investigation and the issuance of the decision. The party requesting the disqualification may, within ten days, file with the Board itself a request for special permission to appeal the ruling of the Board agent. If permission is not granted, the party requesting disqualification may file an appeal, after hearing or investigation and issuance of the decision, setting forth the grounds of the alleged disqualification along with any other exceptions to the decision on its merits.

(e) Whenever a Board member shall have knowledge of any facts which, under the provisions of this rule, disqualify him or her to consider any case before the Board, it shall be his or her duty to declare the disqualification to the Board immediately upon learning of such facts. This declaration shall be made part of the official record of the Board. The Board member shall then refrain from participating and shall attempt in no way to influence any other person with respect to the matter.

(f) Any party to a case before the Board may file directly with the Board member a motion for his or her recusal from the case when exceptions are filed with the Board or within ten days of discovering a disqualifying interest provided that such facts were not available at the time exceptions were filed. The motion shall be supported by sworn affidavits stating the facts constituting the ground for disqualification of the Board member. Copies of the motion and supporting affidavits shall be served on all parties to the case.

(g) Within ten days after the filing of a motion for recusal, the Board member alleged to be disqualified shall render a decision stating the reasons therefore. If the Board member is not on the panel assigned to hear the case, he or she shall so inform the parties and indicate that he or she does not intend to participate in the case. In the event that the Board member decides to participate, he or she shall render a decision on the motion for recusal before doing so.

(h) Any party aggrieved by a determination made pursuant to subsections (d) or (g) of this rule may include the matter of claimed disqualification in a writ of extraordinary relief filed pursuant to Government Code Section 3509.5, 3520, 3542, 3564, 71639.4 or 71825.1 or Public Utilities Code section 99562 seeking judicial review of the Board's decision on the merits.

32160. Depositions.
The Board may order the taking of testimony of a material witness within or outside the State by deposition in the manner prescribed for civil actions only upon the filing of an application by a party showing that:

(a) The witness is unable to attend the hearing because of illness, infirmity or imprisonment; or

(b) The witness cannot be compelled to attend the hearing by subpoena. The application shall state the case number, name and address of the witness, show the materiality of the testimony, and shall request an order requiring the witness to appear and testify before a named officer authorized by law to take depositions. Where the witness resides outside the State and the Board has authorized a deposition of the witness, the Board shall obtain an order of the Superior Court in Sacramento County for that purpose pursuant to Section 11189 of the Government Code.

32162. Confidentiality of Board Investigations.
The Board shall not disclose any confidential statement submitted by a party, or the identity of any person who submits such a statement, unless the person submitting the statement agrees to disclosure or disclosure is required:

(a) Pursuant to Section 32206, concerning production of statements of witnesses after direct testimony;

(b) In a court proceeding upon a complaint for injunctive relief;

(d) By final order of a court of competent jurisdiction.

32164. Application for Joinder of Parties.

(a) Any employee, employee organization or employer may file with the Board agent an application for joinder as a party in a case. Service and proof of service of the application pursuant to Section 32140 are required.

(b) The application for joinder shall be in writing, signed by the representative filing it and contain a statement of the extent to which joinder is sought and a statement of all the facts upon which the application is based. The Board shall allow each party an opportunity to oppose the application.

(c) The Board may allow joinder if it determines that the party has a substantial interest in the case or will contribute substantially to a just resolution of the case and will not unduly impede the proceeding.

(d) The Board may order joinder of an employer, employee organization or individual, subject to its jurisdiction, on application of any party or its own motion if it determines that:

(1) In the absence of the employer, employee organization or individual, as a party, complete relief cannot be accorded; or

(2) The employer, employee organization or individual has an interest relating to the subject of the action and is so situated that the disposition of the action in their absence may:

(A) As a practical matter impair or impede their ability to protect that interest; or

(B) Leave any of the parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of said interest.

SUBCHAPTER 3. HEARINGS

32165. Application to Join a Representation Hearing As a Limited Party.
In a representation proceeding the Board agent may allow any person, employer, or employee organization which did not file a timely request for recognition, intervention or petition to join the hearing as a limited party provided:

(a) The person, employer, or employee organization files a written application prior to the commencement of the hearing stating facts showing that it has an interest in the proceedings; and

(b) The Board agent determines that the person, employee organization or employer has an interest in the case and will not unduly impede the proceeding.

(c) The Board agent may grant participation in the hearing which shall be limited to the right to make an oral statement on the record and to file a written brief subject to such conditions as may be prescribed.

32166. Application to Join a Representation Hearing As a Full Party.

(a) An employee organization shall be allowed to participate fully in a representation hearing provided it has filed a written application with the regional office not less than 10 days prior to the commencement of the hearing, accompanied by either 10 percent support of any unit in dispute at the hearing, or 10 percent support of a proposed unit which overlaps another unit in dispute at the hearing. Proof of support is defined in Chapter 1, Section 32700, Chapter 5, Section 61020, Chapter 7, Section 81020, and Chapter 8, Section 91020. A copy of the written application, excluding the proof of support, shall be served on the parties. Proof of service pursuant to Section 32140 is required.

(b) The Board agent may waive the deadline for filing an application pursuant to this Section for good cause.

32168. Conduct of Hearing.

(a) Hearings shall be conducted by a Board agent designated by the Board, except that the Board itself or a Board member may act as a hearing officer.

(b) A Board agent may be substituted for another Board agent at any time during the proceeding at the discretion of the Chief Administrative Law Judge in unfair practice cases or the General Counsel in representation matters. Prior to ordering a substitution the parties shall be notified and provided an opportunity to state objections to the proposed substitution. Substitutions of Board agents shall be appealable only in accordance with Sections 32200 or 32300.

32170. Powers and Duties of Board Agent Conducting a Hearing.
The board agent conducting a hearing shall have the powers and duties to:

(a) Inquire fully into all issues and obtain a complete record upon which the decision can be rendered;

(b) Authorize the taking of depositions;

(d) Regulate the course and conduct of the hearing, including the power to exclude a witness from the hearing room;

(e) Hold conferences for the settlement or simplification of issues;

(f) Rule on objections, motions and questions of procedure;

(g) Administer oaths and affirmations;

(h) Take evidence and rule on the admissibility of evidence;

(i) Examine witnesses for the purpose of clarifying the facts and issues;

(j) Authorize the submission of briefs and set the time for the filing thereof;

(k) Hear oral argument;

(l) Render and serve the proposed decision on each party;

(m) Carry out the duties of administrative law judge as provided or otherwise authorized by these regulations or by the applicable Act.

32175. Rules of Evidence: Representation Cases.

(a) Compliance with the technical rules of evidence applied in the courts shall not be required. Oral evidence shall be taken only on oath or affirmation. However, immaterial, irrelevant, or unduly repetitious evidence may be excluded. The rules of privilege shall apply.

(b) A party seeking to offer a written document into evidence shall provide a copy of the document for each party to the hearing.

32176. Rules of Evidence: Unfair Practice Cases.
Compliance with the technical rules of evidence applied in the courts shall not be required. Oral evidence shall be taken only on oath or affirmation. Hearsay evidence is admissible but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Immaterial, irrelevant, or unduly repetitious evidence may be excluded. The rules of privilege shall apply. Evidence of any discussion of the case that occurs in an informal settlement conference shall be inadmissible in accordance with Evidence Code Section 1152.

32178. Burden of Proof: Unfair Practice Cases.
The charging party shall prove the complaint by a preponderance of the evidence in order to prevail.

32180. Rights of Parties.
Each party to the hearing shall have the right to appear in person, by counsel or by other representative, and to call, examine and cross-examine witnesses and introduce documentary and other evidence on the issues.

32185. Ex Parte Communications.

(a) No party to a formal hearing before the Board on an unfair practice complaint shall, outside the hearing of the other parties, orally communicate about the merits of the matter at issue with the Board agent presiding. Nor shall any party to a formal hearing communicate in writing with the Board agent presiding without providing a copy of the writing to the other parties.

(b) A Board agent who receives such an ex parte communication shall state on the record that the communication was made, identify the person who made it and either summarize the contents of the communication, or provide all parties with a copy of such communication. The Board agent shall then afford the other parties to the hearing the opportunity to rebut the communication on the record.

32190. Motions.

(a) Written motions made before, during or after a hearing shall be filed with the Board agent assigned to the proceeding. Service and proof of service pursuant to Section 32140 are required.

(b) Responses to motions shall be filed with the Board agent within fourteen days of service of the motion, or within such time as is directed by the Board agent. Service and proof of service pursuant to Section 32140 are required.

(d) The Board may hear oral argument or take evidence on any motion.

(e) No hearing shall be delayed because a motion is filed unless the Board so directs.

(f) Rulings on motions shall not be appealable except as specified in Sections 32200 and 32360.

32200. Appeal of Rulings on Motions and Interlocutory Matters.
A party may object to a Board agent's interlocutory order or ruling on a motion and request a ruling by the Board itself. The request shall be in writing to the Board agent and a copy shall be sent to the Board itself. Service and proof of service pursuant to Section 32140 are required. The Board agent may refuse the request, or may join in the request and certify the matter to the Board. The Board itself will not accept the request unless the Board agent joins in the request. The Board agent may join in the request only where all of the following apply:

(a) The issue involved is one of law;

(b) The issue involved is controlling in the case;

32205. Continuances.
A party may file a request for a continuance of the formal hearing no later than five days prior to such hearing. Such request shall be in writing, signed by the party or its agent, state the grounds for the request, and state the position of each party regarding the request. An oral request or a request for continuance submitted less than five days prior to the hearing may be made only under unusual circumstances. A request for a continuance shall be granted only under unusual circumstances and if the other party will not be prejudiced thereby.

32206. Production of Statements of Witnesses After Direct Testimony.

(a) After direct examination of a witness, and upon motion of any party, the hearing officer shall order the production of any statement made by the witness to a Board agent that relates to the subject matter of the testimony.

(b) A statement includes a written declaration by the witness, signed or otherwise approved by the witness, or a recording or a transcription of a recording which is a verbatim recital of something said by the witness.

(c) If the party sponsoring the testimony claims that a statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony, the party shall deliver the statement to the hearing officer for his or her private inspection. The hearing officer may excise those portions of the statements which do not relate to the subject matter of the testimony. The remainder of the statement shall be delivered to the moving party.

32207. Hearings.
The parties may submit stipulated facts where appropriate to the Board agent. No hearing shall be required unless the parties dispute the facts in the case.

32209. Correction of Transcript.
A motion to correct alleged errors in the transcript of a proceeding before a Board agent must be filed with the Board agent presiding at the proceeding within 20 days of the date of service of the transcript. The motion shall specify the alleged errors and provide a proposed corrected version. Within 10 days following the date of service of such a motion, any party may file with the Board agent a response to the motion. Service and proof of service of the motion and of any response to a motion pursuant to Section 32140 are required. Failure to file a timely motion to correct will be deemed a waiver of any objection to the accuracy of the transcript.

32210. Informational Briefs and Arguments.

(a) Any person may file a petition to submit an informational brief or to argue orally in any case at a hearing or before the Board itself.

(b) The petition shall include the following information:

(1) The case number;

(2) The title of the case;

(3) The name, address, telephone number and any affiliation of the petitioner;

(4) The name, address and telephone number of any agent to be contacted;

(5) A statement setting forth the nature of the petitioner's interest or involvement in the case;

(6) A statement setting forth the specific issues of procedure, fact, law or policy which the petitioner wishes to address.

32212. Briefs and Oral Argument.
Prior to the close of the hearing, the Board agent shall rule on any request to make oral argument or to file a written brief. The Board agent shall set the time required for the filing of briefs. Any party filing a brief shall file the original and one copy with the Board agent. Service and proof of service of the brief pursuant to Section 32140 are required.

32215. Proposed Decision.
A Board agent shall issue a written proposed decision or submit the record of the case to the Board itself for decision pursuant to instructions from the Board itself. The Board shall serve the proposed decision on each party. Unless expressly adopted by the Board itself, a proposed or final Board agent decision, including supporting rationale, shall be without precedent for future cases.

32220. Contemptuous Conduct.
Contemptuous conduct of a party or its agent shall be grounds for the exclusion of the party or agent from any proceeding related to the case.

32230. Refusal of Witness to Testify.
The refusal of a witness at a hearing to answer any question which has been ruled proper by the Board agent conducting the hearing may be grounds for striking the full testimony of such witness on the same matter and or such other action as deemed appropriate by the Board.

SUBCHAPTER 4. DECISIONS OF THE BOARD ITSELF

Article 1. Ex Parte Communications

32295. Ex Parte Communications.
No party shall communicate with the Board itself, any member of the Board itself or any legal adviser to a member of the Board, orally or in writing, about any matter pending before the Board except as provided for in these regulations.

Article 2. Appeal of Board Agent Decision to the Board Itself

32300. Exceptions to Board Agent Decision.

(a) A party may file with the Board itself an original and five copies of a statement of exceptions to a Board agent's proposed decision issued pursuant to Section 32215, and supporting brief, within 20 days following the date of service of the decision or as provided in Section 32310. The statement of exceptions and briefs shall be filed with the Board itself in the headquarters office. Service and proof of service of the statement and brief pursuant to Section 32140 are required. The statement of exceptions or brief shall:

(1) State the specific issues of procedure, fact, law or rationale to which each exception is taken;

(2) Identify the page or part of the decision to which each exception is taken;

(3) Designate by page citation or exhibit number the portions of the record, if any, relied upon for each exception;

(4) State the grounds for each exception.

(b) Reference shall be made in the statement of exceptions only to matters contained in the record of the case.

32305. Failure to File Exceptions.
Unless a party files a timely statement of exceptions to the proposed decision, the decision shall become final on the date specified therein.

32310. Response to Exceptions.
Within 20 days following the date of service of the statement of exceptions, any party may file with the Board itself an original and five copies of a response to the statement of exceptions and a supporting brief. The response shall be filed with the Board itself in the headquarters office. The response may contain a statement of any exceptions the responding party wishes to take to the recommended decision. Any such statement of exceptions shall comply in form with the requirements of Section 32300. A response to such exceptions may be filed within 20 days. Such response shall comply in form with the provisions of this Section. Service and proof of service of these documents pursuant to Section 32140 are required.

32315. Oral Argument on Exceptions.
A party desiring to argue orally before the Board itself regarding the exceptions to the proposed decision shall file with the statement of exceptions or the response to the statement of exceptions a written request stating the reasons for the request. Upon such request or its own motion the Board itself may direct oral argument.

32320. Decision of the Board Itself.

(a) The Board itself may:

(1) Issue a decision based upon the record of hearing, or

(2) Affirm, modify or reverse the proposed decision, order the record re-opened for the taking of further evidence, or take such other action as it considers proper.

(b) The Board shall serve a copy of the decision on each party.

(c) All decisions and orders issued by the Board itself are precedential and may be cited in any matter pending before a Board agent or the Board itself. The precedential status of decisions issued by the Board itself includes decisions issued prior to July 1, 1997.

32325. Remedial Power of the Board.
The Board shall have the power to issue a decision and order in an unfair practice case directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of the applicable statute.

Article 3. Administrative Appeals

32350. Definition of Administrative Decision.

(a) An administrative decision is any determination made by a Board agent other than:

(1) a refusal to issue a complaint in an unfair practice case pursuant to Section 32630,

(2) a dismissal of an unfair practice charge, or

(3) a decision which results from the conduct of a formal hearing or from an investigation which results in the submission of a stipulated record and a proposed decision written pursuant to Section 32215.

(b) An administrative decision shall contain a statement of the issues, fact, law and rationale used in reaching the determination.

32360. Appeal Requirements.

(a) An appeal may be filed with the Board itself from any administrative decision, except as noted in Section 32380.

(b) An original and five copies of the appeal shall be filed with the Board itself in the headquarters office within 10 days following the date of service of the decision or letter of determination.

(c) The appeal must be in writing and must state the specific issue(s) of procedure, fact, law or rationale that is appealed and state the grounds for the appeal.

(d) Service and proof of service of the appeal pursuant to Section 32140 are required.

32370. Request for Stay of Activity.
An appeal will not automatically prevent the Board from proceeding in a case. Parties seeking a stay of any activity may file a request for a stay with the administrative appeal which shall include all pertinent facts and justification for the request. The Board may stay the matter, except as is otherwise provided in these regulations.

32375. Response to the Administrative Appeal. Within 10 days following the date of service of the appeal, any party may file a response to the appeal. An original and five copies of the response shall be filed with the Board itself in the headquarters office. Service and proof of service of the response pursuant to Section 32140 are required.

32380. Limitation of Appeals.
The following administrative decisions shall not be appealable:

(a) A decision by a Board agent regarding the mechanics of an election provided the decision does not affect standing of a party to appear on a ballot;

(b) Except as provided in Section 32200, any interlocutory order or ruling on a motion.

(d) A decision by a Board agent pursuant to Section 32802 regarding the sufficiency of a request for factfinding under the MMBA.

Article 4. Reconsideration

32400. Administrative Remedies.
A motion for reconsideration need not be filed to exhaust administrative remedies.

32410. Request for Reconsideration.

(a) Any party to a decision of the Board itself may, because of extraordinary circumstances, file a request to reconsider the decision within 20 days following the date of service of the decision. An original and five copies of the request for reconsideration shall be filed with the Board itself in the headquarters office and shall state with specificity the grounds claimed and, where applicable, shall specify the page of the record relied on. Service and proof of service of the request pursuant to Section 32140 are required. The grounds for requesting reconsideration are limited to claims that: (1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. A request for reconsideration based upon the discovery of new evidence must be supported by a declaration under the penalty of perjury which establishes that the evidence: (1) was not previously available; (2) could not have been discovered prior to the hearing with the exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery; (4) is relevant to the issues sought to be reconsidered; and (5) impacts or alters the decision of the previously decided case.

(b) Any party shall have 20 days from service to file a response to the request for reconsideration. An original and five copies of the response shall be filed with the Board itself in the headquarters office. Service and proof of service of the response pursuant to Section 32140 are required.

(c) Unless otherwise ordered by the Board, the filing of a Request for Reconsideration shall not stay the effectiveness of a decision of the Board itself except that the Board's order in an unfair practice case shall automatically be stayed upon filing of a Request for Reconsideration.

Article 5. Request for Injunctive Relief

32450. Request.

(a) An original and six (6) copies of a request from a party that the Board seek injunctive relief shall be filed with the General Counsel at the headquarters office with a copy to the appropriate regional office as designated in sections 32075 and 32612 and shall include:

(1) The written request, accompanied by reasons stating why injunctive relief is appropriate;

(2) A copy of the charge or complaint; and

(3) Declarations, on personal knowledge, setting forth in detail all pertinent facts underlying the request for injunctive relief.

(b) Service and proof of service on the respondent is required of all documents filed with the General Counsel. Under this section service and proof of service shall be conducted pursuant to section 32140 except that service by mail must be done by express mail or by another common carrier promising overnight delivery thereof. If the request is made during a work stoppage or lockout, personal service on the respondent of all documents filed with the General Counsel is required.

(c) Notice that such a request is being made shall be provided no less than 24 hours prior to the filing to the General Counsel and the party against whom the relief is sought. Such notice may be by telephone or in person, or by any other means reasonably calculated to provide notice.

(d) An affidavit of notice shall be filed with the request. Such affidavit shall indicate to whom, at what time, and in what manner the notice required by subparagraph (c) above was accomplished.

32455. Investigation.
Upon filing of a request for the Board to seek injunctive relief, the General Counsel shall initiate an investigation. The General Counsel shall give notice reasonably calculated to inform the parties an investigation is proceeding. The respondent shall be apprised of the allegations against it, and may state its position in the course of the inquiries. The original and six (6) copies of any written position statements or other documents filed with the General Counsel must be filed at the headquarters office with a copy to the appropriate regional office as designated in section 32075, and service and proof of service on the opposite party. Any filing with the General Counsel in accordance with this section by mail, shall be done by express mail, or by another common carrier promising overnight delivery thereof. Service and proof of service on opposite party shall be pursuant to section 32140 except that service shall be by express mail instead of first class mail. The Board agent may contact and question such persons as necessary to effectuate the investigation.

32460. Recommendation.
After investigation, the General Counsel shall make a recommendation to the Board within 120 hours after the receipt of a request, unless the request is made during a work stoppage or lockout, in which case the General Counsel shall make a recommendation to the Board within 24 hours after the request is received.

32465. Decision of the Board Itself.
Upon receipt of the General Counsel's report, the Board itself shall determine whether to seek injunctive relief.

32470. Lack of Board Quorum.
In the event that a quorum of the Board itself is unavailable to act upon the request for injunctive relief within 24 hours after the time the General Counsel's recommendation is filed, the Board authorizes the General Counsel to seek injunctive relief in every case in which the General Counsel has reasonable cause to believe that such action is in accordance with Board policy and that legal grounds for injunctive relief are present.

Article 6. Request for Judicial Review

32500. Review of Representation Case.

(a) Any party to a decision in a representation case by the Board itself, except for decisions rendered pursuant to Chapter 5, Chapter 7 or Chapter 8 of these Regulations, may file a request to seek judicial review within 20 days following the date of service of the decision. An original and five copies of the request shall be filed with the Board itself in the headquarters office and shall include statements setting forth those factors upon which the party asserts that the case is one of special importance. Service and proof of service of the request pursuant to Section 32140 are required.

(b) Any party shall have 20 days following the date of service of the request to file a response. An original and five copies of the response shall be filed with the Board itself in the headquarters office. Service and proof of service of the request pursuant to Section 32140 are required.

SUBCHAPTER 5. UNFAIR PRACTICE PROCEEDINGS

32602. Processing Violations.

(a) Alleged violations of the EERA, Ralph C. Dills Act, HEERA, MMBA, TEERA, Article 3 of the Trial Court Act, the Court Interpreter Act, and alleged violations of local rules adopted pursuant to the MMBA, Trial Court Act or Court Interpreter Act, shall be processed as unfair practice charges.

(b) Except as provided in subsections (c), (d) and (e), unfair practice charges may be filed by an employee, employee organization, or employer against an employee organization or employer.

(c) A charge alleging that an employer or an exclusive representative has failed to comply with Government Code section 3523, 3547, 3547.5, or 3595, or Public Utilities Code section 99569, may be filed by any affected member of the public.

(d) A charge alleging that an exclusive representative has failed to comply with Government Code section 3515.7(e), 3546.5, 3584(b), or 3587, or Public Utilities Code Section 99566.3 may only be filed by an affected employee.

(e) A charge alleging that an exclusive representative has failed to comply with Government Code Section 3502.5(f), 71632.5(f), or 71814(f) may only be filed by the employer or an affected employee.

32603. Employer Unfair Practices under MMBA.

It shall be an unfair practice for a public agency to do any of the following:

(a) Interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of rights guaranteed by Government Code section 3502 or by any local rule adopted pursuant to Government Code section 3507.

(b) Deny to employee organizations rights guaranteed to them by Government Code section 3503, 3504.5, 3505.1, 3505.3, 3507.1, 3508(d) or 3508.5 or by any local rule adopted pursuant to Government Code section 3507.

(c) Refuse or fail to meet and confer in good faith with an exclusive representative as required by Government Code section 3505 or any local rule adopted pursuant to Government Code section 3507.

(d) Dominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another in violation of rights guaranteed by Government Code section 3502 or 3508(d) or any local rule adopted pursuant to Government Code section 3507.

(e) Fail to exercise good faith while participating in any impasse procedure mutually agreed to pursuant to Government Code section 3505 or 3505.2, or required by the MMBA or any local rule adopted pursuant to Government Code section 3507.

(f) Adopt or enforce a local rule that is not in conformance with the MMBA.

(g) In any other way violate MMBA or any local rule adopted pursuant to Government Code section 3507.

32604. Employee Organization Unfair Practices under MMBA.
It shall be an unfair practice for an employee organization to do any of the following:

(a) Cause or attempt to cause a public agency to engage in conduct prohibited by the MMBA or by any local rule adopted pursuant to Government Code section 3507.

(b) Interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of rights guaranteed by Government Code section 3502 or by any local rule adopted pursuant to Government Code section 3507.

(c) Refuse or fail to meet and confer in good faith as required by Government Code section 3505 or by any local rule adopted pursuant to Government Code section 3507.

(d) Fail to exercise good faith while participating in any impasse procedure mutually agreed to pursuant to Government Code section 3505 or 3505.2, or required by the MMBA or any local rule adopted pursuant to Government Code section 3507.

(e) In any other way violate MMBA or any local rule adopted pursuant to Government Code section 3507.

32605. Copies of Unfair Practice Charges Required to be Filed. Any party filing an unfair practice charge or amended charge must file the original and one copy with the appropriate regional office.

32606. Employer Unfair Practices under Trial Court Act.
It shall be an unfair practice for a trial court to do any of the following:

(a) Interfere with, intimidate, restrain, coerce or discriminate against trial court employees because of their exercise of rights guaranteed by Government Code section 71631 or by any local rule adopted pursuant to Government Code section 71636.

(b) Deny to employee organizations rights guaranteed to them by the Trial Court Act or by any local rule adopted pursuant to Government Code section 71636.

(c) Refuse or fail to meet and confer in good faith with an exclusive representative as required by Government Code section 71634.2 or any local rule adopted pursuant to Government Code section 71636.

(d) Dominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another in violation of rights guaranteed by Government Code section 71631 or any local rule adopted pursuant to Government Code section 71636.

(e) Fail to exercise good faith while participating in any impasse procedure mutually agreed to pursuant to Government Code section 71634.4 or required by any local rule adopted pursuant to Government Code section 71636.

(f) Adopt or enforce a local rule that is not in conformance with the Trial Court Act.

(g) In any other way violate the Trial Court Act or any local rule adopted pursuant to Government Code section 71636.

32607. Employee Organization Unfair Practices under Trial Court Act.
It shall be an unfair practice for an employee organization to do any of the following:

(a) Cause or attempt to cause a trial court to engage in conduct prohibited by the Trial Court Act or by any local rule adopted pursuant to Government Code section 71636.

(b) Interfere with, intimidate, restrain, coerce or discriminate against trial court employees because of their exercise of rights guaranteed by Government Code section 71631 or by any local rule adopted pursuant to Government Code section 71636.

(c) Refuse or fail to meet and confer in good faith as required by Government Code section 71634.2 or by any local rule adopted pursuant to Government Code section 71636.

(d) Fail to exercise good faith while participating in any impasse procedure mutually agreed to pursuant to Government Code section 71634.4 or required by any local rule adopted pursuant to Government Code section 71636.

(e) In any other way violate the Trial Court Act or any local rule adopted pursuant to Government Code section 71636.

32608. Employer Unfair Practices under Court Interpreter Act.
It shall be an unfair practice for a trial court or regional committee to do any of the following:

(a) Interfere with, intimidate, restrain, coerce or discriminate against court interpreters because of their exercise of rights guaranteed by Government Code section 71813 or by any local rule adopted pursuant to Government Code section 71823.

(b) Deny to employee organizations rights guaranteed to them by the Court Interpreter Act or by any local rule adopted pursuant to Government Code section 71823.

(c) Refuse or fail to meet and confer in good faith with an exclusive representative as required by Government Code section 71818 or any local rule adopted pursuant to Government Code section 71823.

(d) Dominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another in violation of rights guaranteed by Government Code section 71813 or any local rule adopted pursuant to Government Code section 71823.

(e) Fail to exercise good faith while participating in any impasse procedure mutually agreed to pursuant to Government Code section 71820 or required by any local rule adopted pursuant to Government Code section 71823.

(f) Adopt or enforce a local rule that is not in conformance with the Court Interpreter Act.

(g) In any other way violate the Court Interpreter Act or any local rule adopted pursuant to Government Code section 71823.

32609. Employee Organization Unfair Practices under Court Interpreter Act.
It shall be an unfair practice for an employee organization to do any of the following:

(a) Cause or attempt to cause a trial court or regional committee to engage in conduct prohibited by the Court Interpreter Act or by any local rule adopted pursuant to Government Code section 71823.

(b) Interfere with, intimidate, restrain, coerce or discriminate against court interpreters because of their exercise of rights guaranteed by Government Code section 71813 or by any local rule adopted pursuant to Government Code section 71823.

(c) Refuse or fail to meet and confer in good faith as required by Government Code section 71818 or by any local rule adopted pursuant to Government Code section 71823.

(d) Fail to exercise good faith while participating in any impasse procedure mutually agreed to pursuant to Government Code section 71820 or required by any local rule adopted pursuant to Government Code section 71823.

(e) In any other way violate the Court Interpreter Act or any local rule adopted pursuant to Government Code section 71823.

32612. Venue of Charge.

(a) Except as otherwise provided in this section, a charge may be filed in any regional office described in Section 32075 which serves any county in which the conduct or act constituting the alleged unfair practice occurred or is occurring, the county in which any employee affected by the alleged unfair practice works or the county in which the principal office of the employer is located.

(b) Any charge involving a worksite located outside the State of California shall be filed with the regional office serving the county in which the principal office of the employer is located.

(c) Any charge involving a regional committee established pursuant to Government Code section 71807 shall be filed with the Los Angeles Regional Office in the cases of Regions 1 and 4; with the San Francisco Regional Office in the case of Region 2; and with the Sacramento Regional Office in the case of Region 3.

(d) The Board may transfer any case to a different regional office. The Board may consolidate charges as it deems appropriate.

32613. On-Line Filing.

(a) "On-line filing'' and "electronic filing" refer to utilization of the web-based electronic filing service provided by the Board as an alternative means to file an unfair practice charge pursuant to this Subchapter.

(b) Utilization of on-line filing requires access by the user to the following:

(1) Personal computer with a Windows or Mac operating system;

(2) Internet web browser;

(3) Internet connection; and

(4) Digital copies of any attachments that are to be submitted with the charge.

(c) Utilization of on-line filing will require the user to provide an e-mail address, establish a user password, and agree to the terms of the following Disclaimer Statement found on the PERB website:

This application uses Javascript which will not work with some Ad Blocking Software. We suggest that you either turn off your Ad Blocking Software, or add our site URL (www.perb.ca.gov) to the trusted sites on your Ad Blocking Software. PERB is not responsible for difficulties encountered between your internet provider and PERB's network. An unfair practice charge (UPC) is considered "filed" when actually received before the close of business (5 p.m.) on a regular PERB business day. (PERB Regulation 32135.) The date and time a UPC is deemed filed will be determined by the date/time stamp applied by our server which points to Santa Cruz, CA: Scruz-net, inc. 165.227.1.1: ns.scruz.net Service area: Western U.S. If, after submitting your UPC, you do not receive an e-mail response containing a confirmation your charge has been successfully filed within a few minutes, there was a problem with your submission and your claim will not be considered filed. Using the PERB on-line filing application does not relieve the user of the responsibility for filing the signed original plus one copy of the charge along with the original signed proof of service in the appropriate PERB office (PERB Regulations 32605 and 32615). A copy of the completed unfair practice charge and proof of service form must also be served on the party being charged (respondent) by someone other than the charging party. A proof of service form must be attached to each copy of the charge to prove that a copy of the charge has been served on the respondent. If you have uploaded your attachments at the time of electronically filing your UPC, you DO NOT need to submit copies of the same attachments through the U.S. Mail to PERB. However, a copy of the charge and all attachments must be served on the responding party. Failure to provide the original signed UPC, signed Proof of Service and attachments (if necessary) to the appropriate PERB office within 5 business days from the date stamp provided by PERB's server in your confirmation e-mail will result in the UPC being dismissed except in cases where good cause is demonstrated.

(d) Upon successful submission of an unfair practice charge, including any attachments, and the proof of service, through utilization of on-line filing, PERB will provide confirmation of receipt via e-mail to the e-mail address provided by the user.

32615. Contents of Charge.

(a) A charge may be filed alleging that an unfair practice or practices have been committed. The charge shall be in writing, signed under penalty of perjury by the party or its agent with the declaration that the charge is true, and complete to the best of the charging party's knowledge and belief, and contain the following information:

(1) The name and address of the party alleged to have engaged in an unfair practice. If the party is the State of California, the name and address of the "appointing power" as defined in Government Code Section 18524, and of the Governor shall be set forth;

(2) The name, address, and telephone number of the charging party;

(3) The name, address, and telephone number of an authorized agent of the charging party to be contacted;

(4) The sections of the Government Code and/or, under MMBA, Article 3 of the Trial Court Act, or the Court Interpreter Act, the applicable local rules, or the sections of the Public Utilities Code, alleged to have been violated;

(5) A clear and concise statement of the facts and conduct alleged to constitute an unfair practice;

(6) A statement whether or not an agreement or memorandum of understanding exists between the parties, and the date and duration of such agreement or memorandum of understanding;

(7) A statement of the extent to which and the inclusive dates during which the parties have invoked any grievance machinery provided by an agreement, or, where applicable, have invoked procedures provided by the employer for resolving public notice complaints;

(8) A statement of the remedy sought by the charging party;

(b) A charge filed under MMBA, Article 3 of the Trial Court Act, or the Court Interpreter Act alleging a violation of local rules must also contain a copy of the applicable rule(s).

32620. Processing of Case.

(a) When a charge is filed, it shall be assigned to a Board agent for processing.

(b) The powers and duties of such Board agent shall be to:

(1) Assist the charging party to state in proper form the information required by section 32615;

(2) Answer procedural questions of each party regarding the processing of the case;

(3) Facilitate communication and the exchange of information between the parties;

(4) Make inquiries and review the charge and any accompanying materials to determine whether an unfair practice has been, or is being, committed, and determine whether the charge is subject to deferral to arbitration, or to dismissal for lack of timeliness.

(5) Dismiss the charge or any part thereof as provided in Section 32630 if it is determined that the charge or the evidence is insufficient to establish a prima facie case; or if it is determined that a complaint may not be issued in light of Government Code Sections 3514.5, 3541.5, 3563.2, 71639.1(c) or 71825(c), or Public Utilities Code Section 99561.2; or if it is determined that a charge filed pursuant to Government Code section 3509(b) is based upon conduct occurring more than six months prior to the filing of the charge.

(6) Place the charge in abeyance if the dispute arises under MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter Act and is subject to final and binding arbitration pursuant to a collective bargaining agreement, and dismiss the charge at the conclusion of the arbitration process unless the charging party demonstrates that the settlement or arbitration award is repugnant to the purposes of MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter Act, as provided in section 32661.

(7) Issue a complaint pursuant to Section 32640.

(c) The respondent shall be apprised of the allegations, and may state its position on the charge during the course of the inquiries. Any written response must be signed under penalty of perjury by the party or its agent with the declaration that the response is true and complete to the best of the respondent’s knowledge and belief. Service and proof of service pursuant to Section 32140 are required.

(d) Facts obtained from oral responses that reveal potential deficiencies in the allegations must be communicated to the charging party before dismissal of a charge under Section 32630. The Board agent shall advise the charging party in writing of the deficiencies in the charge in a warning letter, unless otherwise agreed by the Board agent and the charging party. The warning letter shall identify the facts obtained from any response which reveal a deficiency in the charge. Responses which are obtained after the warning letter and which support dismissal of the charge must be communicated to the charging party before the dismissal is issued under Section 32630. The dismissal must identify the deficiencies in the charging party’s allegations.

32621. Amendment of Charge.
Before the Board agent issues or refuses to issue a complaint, the charging party may file an amended charge. The amended charge must contain all allegations on which the charging party relies and must meet all of the requirements of Section 32615. The amended charge shall be processed pursuant to Section 32620.

32625. Withdrawal of Charge.
Any request for withdrawal of the charge shall be in writing, signed by the charging party or its agent, and state whether the party desires the withdrawal to be with or without prejudice. Request for withdrawal of the charge before complaint has issued shall be granted. Repeated withdrawal and refiling of charges alleging substantially identical conduct may result in refusal to issue a complaint. If the complaint has issued, the Board agent shall determine whether the withdrawal shall be with or without prejudice. If, during hearing, the respondent objects to withdrawal, the hearing officer may refuse to allow it. Service and proof of service of the withdrawal pursuant to Section 32140 are required.

32630. Dismissal/Refusal to Issue a Complaint.
If the Board agent concludes that the charge or the evidence is insufficient to establish a prima facie case, the Board agent shall refuse to issue a complaint, in whole or in part. The refusal shall constitute a dismissal of the charge. The refusal, including a statement of the grounds for refusal, shall be in writing and shall be served on the charging party and respondent.

32635. Review of Dismissals.

(a) Within 20 days of the date of service of a dismissal, the charging party may appeal the dismissal to the Board itself. The original appeal and five copies shall be filed in writing with the Board itself in the headquarters office, and shall be signed by the charging party or its agent. Service and proof of service of the appeal on the respondent pursuant to Section 32140 are required.

The Appeal shall:

(1) State the specific issues of procedure, fact, law or rationale to which the appeal is taken;

(2) Identify the page or part of the dismissal to which each appeal is taken;

(3) State the grounds for each issue stated.

(b) Unless good cause is shown, a charging party may not present on appeal new charge allegations or new supporting evidence.

(c) If the charging party files a timely appeal of the dismissal, any other party may file a statement in opposition to the appeal within 20 days following the date of service of the appeal. The original opposition and five (5) copies shall be filed in writing with the Board itself in the headquarters office, and shall be signed by the filing party. Service and proof of service of the statement pursuant to Section 32140 are required.

32640. Issuance of Complaint.

(a) The Board agent shall issue a complaint if the charge or the evidence is sufficient to establish a prima facie case. The complaint shall contain a statement of the specific facts upon which Board jurisdiction is based, including the identity of the respondent, and shall state with particularity the conduct which is alleged to constitute an unfair practice. The complaint shall include, when known, when and where the conduct alleged to constitute an unfair practice occurred or is occurring, and the name(s) of the person(s) who allegedly committed the acts in question. The Board may disregard any error or defect in the complaint that does not substantially affect the rights of the parties.

(b) The Board shall serve the complaint on the charging party and respondent.

(c) The decision of a Board agent to issue a complaint is not appealable to the Board itself except in accordance with Section 32200.

32644. Answer.

(a) The respondent shall file with the Board an answer to the complaint within 20 days or at a time set by the Board agent following the date of service of the complaint. Service and proof of service of the answer pursuant to Section 32140 are required. If a formal hearing is set less than 20 days after the complaint is served, the answer shall be filed no later than the date of hearing stated in the notice of hearing or as otherwise directed by the Board agent. Amended complaints served after the answer is filed shall be deemed denied, except for those matters which were admitted in the answer and which have not been changed in the amended complaint.

(b) The answer shall be in writing, signed by the party or its agent and contain the following information:

(1) The case number appearing on the complaint;

(2) The name of the charging party;

(3) The name, address, telephone number and any affiliation of the respondent;

(4) The name, address, telephone number and capacity of any agent of the respondent to be contacted;

(5) A specific admission or denial of each allegation contained in the complaint. If the respondent does not have knowledge of information sufficient to form a belief as to the truth of a particular allegation, the respondent shall so state and such statement shall operate as a denial of the allegation;

(6) A statement of any affirmative defense;

(7) Notwithstanding the Code of Civil Procedure Section 446, a declaration under penalty of perjury that the answer is true and complete to the best of the respondent's knowledge and belief.

(c) If the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent's right to a hearing.

32645. Non-prejudicial Error.
The Board may disregard any error or defect in the original or amended charge, complaint, answer or other pleading which does not affect the substantial rights of the parties.

32647. Amendment of Complaint Before Hearing.
After issuance of a complaint, the charging party may move to amend the complaint by filing with the Board agent:

(a) a request to amend the complaint, and

(b) an amended charge meeting the requirements of Section 32615.

32648. Amendment of Complaint During Hearing.
During hearing, the charging party may move to amend the complaint by amending the charge in writing, or by oral motion on the record. If the Board agent determines that amendment of the charge and complaint is appropriate, the Board agent shall permit an amendment. In determining the appropriateness of the amendment, the Board agent shall consider, among other factors, the possibility of prejudice to the respondent.

32649. Answer to Amendment.
Within 20 days or a time set by the Board agent after service of an amendment to the complaint, the Board agent may require the respondent to file an amendment to its answer, which shall respond only to the new allegations in the amended complaint. The respondent shall file with the Board proof of service of its amended answer.

32650. Informal Conference.

(a) A Board agent may conduct an informal conference or conferences to clarify the issues and explore the possibility of voluntary settlement. No record shall be made at such a conference.

(b) A Board agent shall give reasonable notice of such conference to each party directed to attend.

32661. Repugnancy Claims.

(a) An unfair practice charge concerning conduct subject to Government Code Section 3514.5(a)(2) or 3541.5(a)(2), or subject to final and binding arbitration pursuant to a collective bargaining agreement for parties governed by the TEERA, MMBA, HEERA, Trial Court Act or Court Interpreter Act, may be filed based on a claim that the settlement or arbitration award is repugnant to the applicable Act.

(b) The charge shall comply with the requirements of Section 32615. It shall allege with specificity the facts underlying the charging party's claim that the arbitrator's award is repugnant to the purposes of the applicable Act.

(c) In reviewing the charge to determine whether a complaint shall issue, the Board agent shall have all of the powers and duties specified in Section 32620. A Board agent's issuance of a complaint under this section shall not be appealable to the Board itself except as provided in Section 32360.

(d) The Board itself may, at any time, direct that the record be submitted to the Board itself for decision.

32680. Formal Hearing.
If the informal conference procedure fails to result in voluntary settlement, the Board may order a hearing. The hearing shall be conducted by the Board according to the provisions of Chapter 1, Subchapter 3 (commencing with Section 32165) of these regulations.

32690. Notice of Formal Hearing and Prehearing Memorandum.

(a) The Board shall serve on each party a notice of the formal hearing which shall state the date, time and place of the hearing.

(b) The Board may also serve on each party a pre-hearing memorandum which shall set forth the following information:

(1) A summary of the proceedings to date, including but not limited to a statement of the charge, a summary of any negotiations excluding offers of settlement and a statement of the issues settled;

(2) A statement of the issues to be decided at the formal hearing.

SUBCHAPTER 6. REPRESENTATION PROCEEDINGS

Article 1. General Provisions

32700. Proof of Support.

(a)(1) Proof of employee support for representation petitions, including decertification petitions, petitions for certification, requests for recognition, severance requests or petitions, and unit modification petitions, shall clearly demonstrate that the employee desires to be represented by the petitioning employee organization for the purpose of meeting and negotiating or meeting and conferring on wages, hours and other terms and conditions of employment.

(2) Proof of employee support for a decertification petition filed pursuant to section 32770(b)(1) shall clearly demonstrate that the employee no longer desires to be represented by the exclusive representative.

(3) Proof of employee support for a rescission petition filed pursuant to section 34020(c), 40400(c), 51700 or 71700 shall clearly demonstrate that the employee desires a vote to rescind the existing organizational security arrangement.

(4) Proof of employee support for a reinstatement petition filed pursuant to section 34050, 51725 or 71725 shall clearly demonstrate that the employee desires to reinstate the organizational security provision.

(b) The proof of support shall indicate each employee's printed name, signature, job title or classification and the date on which each individual's signature was obtained. An undated signature or a signature dated more than one calendar year prior to the filing of the petition requiring employee support shall be invalid for the purpose of calculating proof of support. Any signature meeting the requirements of this section shall be considered valid even though the signatory has executed authorizations for more than one employee organization.

(c) Any proof of support validly obtained within one year immediately prior to the date the petition or amendment requiring employee support is filed shall remain valid and may be used as proof of support to qualify for appearance on the ballot in an election, provided the employee's job classification is included in the unit in which the election is to be conducted.

(d) For purposes of determining proof of support, a joint petitioner may meet the required percentage by combining the total of the proofs of support for each of the employee organizations which make up the joint petitioner.

(e) Subject to subsections (a), (b), (c) and (d) of this section, proof of support may consist of any one of the following original documents or a combination thereof:

(1) Current dues deduction authorization forms;

(2) Membership applications;

(3) Authorization cards or petitions signed by employees. The purpose of the petition shall be clearly stated on each page thereof;

(4) A notarized membership list, provided it is accompanied by the date of each member's signature on an enrollment form, membership application, or designation card or cards, supported by a declaration under penalty of perjury that the employee organization has on file the aforementioned documents which indicate the employee's desire to be represented by the employee organization. A sample of such signed forms shall accompany the list.

(5) Other evidence as determined by the Board.

(f) Documents submitted to the board as proof of employee support shall remain confidential and not be disclosed by the board to any party other than the petitioner, except to indicate whether the proof of support is sufficient.

(g) Any party which contends that proof of employee support was obtained by fraud or coercion, or that the signatures on such support documents are not genuine, shall file with the regional office evidence in the form of declarations under penalty of perjury supporting such contention within 20 days after the filing of the petition which the proof of support accompanied. The Board shall refuse to consider any evidence not timely submitted, absent a showing of good cause for late submission. When prima facie evidence is submitted to the Board supporting a claim that proof of support was tainted by such misconduct, the Board shall conduct further investigations. If, as a result of such investigation, the Board determines that the showing of support is inadequate because of such misconduct, the petition shall be dismissed.

Article 2. Elections

32720. Authority to Conduct Elections. An election shall be conducted when the Board issues a decision directing an election or approves an agreement for a consent election, pursuant to the provisions of Articles 3, 4 or 5 of this Subchapter; Chapter 2, Subchapters 1 and 2; Chapter 3, Subchapter l; Chapter 4, Subchapter 1 or 2; or Chapter 6 of these regulations. The Board shall determine the date, time, place and manner of the election absent an approved agreement of the parties.

32721. Parties.
"Parties" means the TEERA, EERA, HEERA or Ralph C. Dills Act employer, the employee organization which is the exclusive representative of employees in the voting unit, any employee organization eligible to appear on the ballot in a representation election, or any group of employees which has filed a valid petition pursuant to Section 32770(a), 34020(a), 40400(a), 51700, or 71700.

32722. Ballot.

(a) All elections shall be conducted by secret ballot under the supervision of the Board.

(b) Ballots shall be prepared under the supervision of the Board. The order of voting choices and the wording of each ballot entry shall be determined by the Board absent an approved agreement of the parties.

(c) Except in the case of a runoff election, in which the ballot entries are determined pursuant to Section 32736, or an election conducted pursuant to either Article 3 of this Chapter or section 32781(c), the ballot entry of "No Representation" shall appear on each ballot in a representation election.

(d) At any time prior to issuance of the notice of election (pursuant to section 32724(b)), an employee organization may file a request with the regional office to have its name removed from the ballot. The request shall disclaim any interest in representing the employees in the described unit. Service and proof of service of the request pursuant to Section 32140 are required.

32724. Directed Election Order/Consent Election Agreement; Notice of Election.

(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.

(b) Thereafter, the Board shall serve a notice of election on the parties. The notice shall contain a sample ballot, a description of the voting unit, and information regarding the balloting process. Unless otherwise directed by the Board, the employer shall post such notice conspicuously on all employee bulletin boards in each facility of the employer in which members of the described unit are employed.

(c) The Board shall supply the employer with sufficient copies of the notice for posting. The posting shall be accomplished by the date specified in the Consent Election Agreement or the Directed Election Order. The notice shall remain posted through the final day for casting ballots.

32726. List of Voters.

(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.

32728. Voter Eligibility.
Unless otherwise directed by the Board, to be eligible to vote in an election, employees must be employed in the voting unit as of the cutoff date for voter eligibility, and still employed on the date they cast their ballots in the election. Employees who are ill, on vacation, on leave of absence or sabbatical, temporarily laid off, and employees who are in the military service of the United States shall be eligible to vote. Mailed ballots may be utilized to maximize the opportunity of such voters to cast their ballots.

32730. Observers.
Each party shall be allowed to station an authorized observer selected from the nonmanagement, nonsupervisory employees of the employer at each polling place during an on-site election to assist in the conduct of the election and to challenge the eligibility of voters. If the unit consists of supervisory employees the parties may designate supervisors as observers.

32732. Challenges.

(a) In an on-site election, a Board agent or an authorized observer may challenge, for good cause, the eligibility of a voter. A person so challenged shall be permitted to cast a challenged ballot.

(b) In a mailed ballot election, a Board agent or an authorized agent of any party to the election may challenge, for good cause, the eligibility of a voter. Such challenges shall be made prior to the tally of the ballots.

(c) When sufficient in number to affect the outcome of the election, unresolved challenges shall be resolved by the Board.

32734. Tally of Ballots.

(a) Each party shall be allowed to station an authorized agent at the ballot count to verify the tally of ballots.

(b) At the conclusion of the counting of ballots, the Board shall serve a tally of the ballots on each party.

(c) Unless otherwise authorized by statute, a majority of the valid votes cast shall determine the outcome of the election.

32735. Resolution of Challenges. When the tally of ballots discloses that the challenged ballots are sufficient in number to affect the outcome of the election, the Board agent shall conduct an investigation and, where appropriate, conduct a hearing or take such other action as deemed necessary to determine the eligibility of the challenged voters. Any determination made by a Board agent pursuant to this Section may be appealed to the Board itself in accordance with the provisions of Chapter 1, Subchapter 4, Article 2 or 3 of these regulations, as appropriate.

32736. Runoff Elections.
In a representation election, the Board shall direct a runoff election when a valid election results in none of the choices receiving a majority of the valid votes cast. The ballot for the runoff election shall provide for a selection between the two ballot entries receiving the largest and second largest number of valid votes cast in the election.

32738. Objections.

(a) Within 10 days following the service of the tally of ballots, any party to the election may file with the regional office objections to the conduct of the election. Any objections must be filed within the 10 day time period whether or not a runoff election is necessary or challenged ballots are sufficient in number to affect the results of the election.

(b) Service and proof of service of the objections pursuant to Section 32140 are required.

(1) The conduct complained of interfered with the employees' right to freely choose a representative, or

(2) Serious irregularity in the conduct of the election.

(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.

(e) No party may allege as grounds for setting aside an election its own conduct or the conduct of its agents.

(f) At the direction of the Board, facts alleged as supportive of the election conduct objected to shall be supported by declarations. Such declarations must be within the personal knowledge of the declarant, or must otherwise be admissible in a PERB election objections hearing. The declarations shall specify the details of each occurrence; identify the person(s) alleged to have engaged in the allegedly objectionable conduct; state their relationship to the parties; state where and when the allegedly objectionable conduct occurred; and give a detailed description of the allegedly objectionable conduct. All declarations shall state the date and place of execution and shall be signed by the declarant and certified by him or her to be true under penalty of perjury.

(g) The Board agent shall dismiss objections that fail to satisfy the requirements of subsections (a) through (d). The objecting party may appeal the dismissal to the Board itself in accordance with Chapter 1, Subchapter 4, Article 3 of these regulations.

32739. Powers and Duties of Board Agent Concerning Objections.
Concerning objections, the Board agent has the power to:

(a) Direct any party to submit evidence through declarations or documents;

(b) Order the inspection of documents by Board agents or the parties;

(d) Obtain declarations from witnesses based on personal knowledge;

(e) Conduct investigatory conferences with the parties to explore and resolve factual or legal issues;

(f) Dismiss any objections which, after investigation, do not warrant setting aside the election. Any such dismissal is appealable to the Board itself pursuant to Chapter 1, Subchapter 4, Article 3 of these regulations.

(g) Issue a written determination setting aside the election when, after investigation, it appears that such action is warranted, and that no material factual disputes exist. Such determination shall be in writing and served on the parties. Any such determination is appealable to the Board itself pursuant to Chapter 1, Subchapter 4, Article 3 of these regulations.

(h) Schedule a hearing when substantial and material factual disputes exist. Any hearing shall be limited to the issues set forth in the notice of hearing.

32740. Withdrawal of Objections.
Any party may withdraw its objections to an election prior to a final decision by the Board.

32742. Hearings on Objections and Challenges.
Objections to the conduct of an election which have not been dismissed pursuant to Section 32739(f), or unresolved challenged ballots sufficient in number to affect the outcome of the election may be resolved through the hearing procedures described in Chapter 1, Subchapter 3 (commencing with Section 32165) of these regulations.

32744. Exception to Decision on Objections or Challenges.
Exceptions to a Board agent's proposed decision on objections to the conduct of the election or challenged ballots may be taken in accordance with the procedures set forth in Chapter 1, Subchapter 4, Article 2 (commencing with Section 32300) of these regulations.

32746. Revised Tally of Ballots.
Should a ruling on challenged ballots direct that any such ballots be voided or opened and counted, the Board shall serve a revised tally of ballots on each party at the conclusion of the counting and/or voiding of such ballots. Each party shall be allowed to station an authorized agent at the ballot count to verify the tally of ballots.

32748. Objections to Revised Tally of Ballots.

(a) Within 10 days following the service of a revised tally of ballots, any party may file with the regional office objection to the revised tally.

(b) Service and proof of service of the objections pursuant to Section 32140 are required.

(c) Objections to a revised tally of ballots shall be entertained by the Board only on the grounds of serious irregularity in the conduct of the challenged ballot count or issuance of the revised tally.

32750. Certification of Results of Election or Certification of Exclusive Representative.
Except in the case of elections conducted pursuant to section 32763 or section 32786(a), the Board shall certify the results of the election or issue a certification of an exclusive representative if the results of the election are conclusive and no timely objections are filed.

32752. Stay of Election.
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. Any determination to stay an election made by the Board pursuant to this section may be appealed to the Board itself in accordance with the provisions of Chapter 1, Subchapter 4, Article 3 of these regulations.

32754. Bar to Conducting Election.
The Board shall dismiss a petition requiring a representation election if it determines:

(a) Under the EERA, either that the conditions of Government Code Section 3544.7(b)(1) or (2) exist or that a representation election result has been certified affecting the described unit or a portion thereof within the 12 months immediately preceding the date of filing of the petition; or

(b) Under the Dills Act, (1) there is currently in effect a memorandum of understanding between the employer and another employee organization recognized or certified as the exclusive representative of any employees covered by a petition requiring an election, unless the petition is filed less than 242 days but more than 212 days prior to the expiration date of such memorandum or the end of the third year of such memorandum, provided that if such memorandum has been in effect for three years or more, there shall be no restriction as to time of filing the petition; or, (2) that a representation election result has been certified affecting the described unit or a subdivision thereof within the 12 months immediately preceding the date of filing of the petition; or

(d) Under the TEERA, either of the conditions of Public Utilities Code Section 99564.4(b)(1) or (2) exist.

Article 3. Request for Amendment of Certification

32761. Request.

(a) An employee organization may file with the regional office a request to amend its certification or recognition in the event of a merger, amalgamation, affiliation or transfer of jurisdiction, or in the event of a change in the name or jurisdiction of the employer.

(b) The request shall be in writing, signed by an authorized agent of the employee organization and shall contain the following information:

(1) The name, address and telephone number of the employee organization and the name, address and telephone number of the agent to be contacted;

(2) The name, address and telephone number of the employer;

(3) A brief description and the PERB case number of the established unit;

(4) A clear and concise statement of the nature of the merger, amalgamation, affiliation or other change in jurisdiction and the new name of the employee organization and/or employer.

32762. Employer Response.
The employer may file a responding statement to the request filed pursuant to Section 32761. The statement shall be filed with the regional office within 15 days following the date of service of the request. Service and proof of service pursuant to Section 32140 are required.

32763. Board Investigation.

(a) Upon receipt of a request filed pursuant to Section 32761, the Board shall conduct such inquiries and investigations or hold such hearings as deemed necessary, and/or conduct a representation election, in order to decide the questions raised by the request.

(b) The Board may dismiss the request if the requester has no standing to petition for the action requested or if the request is improperly filed. The Board may deny a request based on the investigation conducted pursuant to subsection (a) above.

(c) Upon approval of a request, the Board shall issue a certification reflecting the new identity of the exclusive representative and/or employer. Such certification shall not be considered to be a new certification for the purpose of computing time limits pursuant to Section 32754 of these regulations.

(d) Any determination made by the Board pursuant to this section may be appealed to the Board itself in accordance with the provisions of Chapter 1, Subchapter 4, Article 2 or 3 of these regulations, as appropriate.

Article 4. Decertification Petition

32770. Petition.

(a) A petition for an election to decertify an existing exclusive representative in an established unit may be filed by a group of employees within the unit or an employee organization. The petition shall be filed with the regional office utilizing forms provided by the Board.

(b) The petition shall be accompanied by proof that at least 30 percent of the employees in the established unit either:

(1) No longer desire to be represented by the incumbent exclusive representative; or

(2) Wish to be represented by another employee organization. Proof of support is defined in Chapter 1, section 32700 of these regulations.

(c) Service of the petition, excluding the proof of at least 30 percent support, and proof of service pursuant to Section 32140 are required.

32772. Posting Notice of Decertification Petition.

(a) The employer shall post a notice of the decertification petition as soon as possible but in no event later than 15 days following service of a copy of the petition.

(b) The notice shall be posted conspicuously on all employee bulletin boards in each facility of the employer in which members of the established unit are employed.

(c) For Ralph C. Dills Act and TEERA petitions, the notice shall remain posted for a minimum of 20 days. For EERA and HEERA petitions, the notice shall remain posted for at least 15 workdays.

(d) The notice shall consist of a copy of the decertification petition with the appropriate portion of the form completed by the employer prior to posting.

(e) The employer shall serve a copy of the notice on the regional office and the parties when the notice is posted.

32774. Board Determination Regarding Proof of Support.

(a) Within 20 days of the date the decertification petition is filed with the regional office, the employer shall file with the regional office a description of the established unit and an alphabetical list, including job titles or classifications, of employees in the established unit as of the last date of the payroll period immediately preceding the date the decertification petition was filed, unless otherwise directed by the Board.

(b) Upon completion of the review of the proof of support, the Board shall inform the parties in writing of the determination as to sufficiency or lack thereof regarding the proof of support.

32776. Board Investigation/Election.

(a) Upon receipt of a petition for decertification, the Board shall investigate and, where appropriate, conduct a hearing and/or an election or take such other action as necessary.

(b) The petition shall be dismissed if the existing exclusive representative files a valid disclaimer of interest in representing employees in the unit within 20 days of the date the petition is filed with the regional office.

(c) Under EERA, the petition shall be dismissed whenever either of the conditions of Government Code Section 3544.7(b)(1) or (2) exist or a representation election result has been certified affecting the described unit or a portion thereof within the 12 months immediately preceding the date of filing of the petition.

(d) Under Ralph C. Dills Act, the petition shall be dismissed (1) whenever there is currently in effect a memorandum of understanding between the employer and another employee organization recognized or certified as the exclusive representative of any employees covered by a petition requiring an election, unless the petition is filed during the window period defined in Section 40130 of these regulations, or the end of the third year of such memorandum, provided that if such memorandum has been in effect for three years or more, there shall be no restriction as to time of filing the petition; or, (2) whenever a representation election result has been certified affecting the described unit or a subdivision thereof within the 12 months immediately preceding the date of filing of the petition.

(e) Under HEERA, the petition shall be dismissed whenever either of the conditions of Government Code Sections 3577(b)(1) or (2) exist.

(f) Under TEERA, the petition shall be dismissed whenever either of the conditions of Public Utilities Code Section 99564.4(b)(1) or (2) exist.

(g) The "window period" in the term of an existing memorandum of understanding for filing a decertification petition is defined for Ralph C. Dills Act in Section 40130, for HEERA in Section 51026, and for TEERA in Section 71026 of these regulations. The "window period" in the term of an existing lawful written agreement for filing a decertification petition is defined for EERA in Section 33020 of these regulations.

Article 5. Petition for Unit Modification

32781. Petition.
Absent agreement of the parties to modify a unit, an exclusive representative, an employer, or both must file a petition for unit modification in accordance with this section. Parties who wish to obtain Board approval of a unit modification may file a petition in accordance with the provisions of this section.

(a) A recognized or certified employee organization may file with the regional office a petition for modification of its units:

(1) To add to the unit unrepresented classifications or positions;

(2) To divide an existing unit into two or more appropriate units;

(3) To consolidate two or more established units into one appropriate unit.

(b) A recognized or certified employee organization, an employer, or both jointly may file with the regional office a petition for unit modification:

(1) To delete classifications or positions which by virtue of change in circumstances are no longer appropriate to the established unit because said classification(s) or position(s) are management, supervisory, confidential, not covered by TEERA, EERA, HEERA or Ralph C. Dills Act, or otherwise prohibited by statute from inclusion in the unit;

(2) To make technical changes to clarify or update the unit description.

(3) To resolve a dispute as to unit placement or designation of a new classification or position.

(4) To delete classification(s) or position(s) not subject to (1) above which are not appropriate to the unit because said classification(s) or position(s) are management, supervisory, confidential, not covered by TEERA, EERA, HEERA or Ralph C. Dills Act, or otherwise prohibited by statute from inclusion in the unit, provided that:

(A) The petition is filed jointly by the employer and the recognized or certified employee organization, or

(B) There is not in effect a lawful written agreement or memorandum of understanding, or

(C) The petition is filed during the "window period" of a lawful written agreement or memorandum of understanding as defined in these regulations in Section 33020 for EERA, Section 40130 for Ralph C. Dills Act, Section 51026 for HEERA, or Section 71026 for TEERA.

(c) All affected recognized or certified employee organizations may jointly file with the regional office a petition to transfer classifications or positions from one represented established unit to another.

(d) The petition shall be signed by an authorized agent of each petitioning party and shall include the following information:

(1) The name, address and telephone number of the exclusive representative(s) of the unit(s) affected by the petition;

(2) The name, address and telephone number of the employer and the name, address and telephone number of the agent to be contacted;

(3) A brief description and the title(s) of the established unit(s);

(4) The approximate number of employees in the established unit;

(5) The approximate number of employees covered by the petition;

(6) The effective and expiration dates of the current written agreement or memorandum of understanding, if any, covering employees in the established unit;

(7) A description of the modification(s) sought by the petition;

(8) The name and address of any other employee organization known to have an interest in representing employees covered by the petition;

(9) A statement of the reasons for the modification(s).

(e)(1) If the petition requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.

(2) If the petition requests the addition of classifications or positions to an established unit and the classifications or positions are also included in a proposed appropriate unit in a pending request for recognition or petition for certification, the Board shall require proof of at least thirty percent support of persons employed in the classifications or positions to be added.

(3) Proof of support is defined in Section 32700 of these regulations.

(f) A copy of a petition filed solely by an exclusive representative or an employer shall be concurrently served on the other party, and on any additional interested party. Proof of service pursuant to Section 32140 is required. Proof of support, if required, shall be filed only with the regional office.

32783. Response to Petition.

(a) Unless otherwise notified by the Board, a party or interested party may file a response to a petition filed solely by an exclusive representative or an employer. Such response shall be filed with the regional office within 20 days following the date of service of the petition. Service and proof of service of the response pursuant to Section 32140 are required.

(b) The response shall be in writing, signed by an authorized agent of the responding party and contain the following information:

(1) The name, address and telephone number of the petitioner(s);

(2) The name, address and telephone number of the respondent and the name, address and telephone number of the agent to be contacted;

(3) A statement confirming or refuting information contained in the petition regarding the size and description of the established unit(s), the date(s) of recognition or certification, the approximate number of employees involved in the modification request and the identity of any other employee organization known to claim to represent affected employees;

(4) A concise statement setting forth the reasons for support of or opposition to the unit modification proposed by the petitioner(s).

(5) The PERB unit modification case number.

32784. Board Determination Regarding Proof of Support.

(a) If proof of support has been filed pursuant to section 32781(e)(1) or (2), the employer shall, within 20 days of the date the support was filed, file with the regional office an alphabetical list, including job titles or classifications, of all employees proposed to be added to the unit as of the last date of the payroll period immediately preceding the date the petition was filed with PERB, unless otherwise directed by the Board.

(b) The Board may allow up to 10 days to perfect the proof of support.

(c) Upon completion of the review of the proof of support, the Board shall inform the parties in writing of the determination as to sufficiency of the proof of support.

32786. Disposition of Petitions.

(a) Upon receipt of a petition for unit modification, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election, or take such other action as deemed necessary in order to decide the questions raised by the petition and to ensure full compliance with the provisions of the law.

(b) The Board shall dismiss a petition (1) if it is found to be improperly or not timely filed; or, (2) if proof of support submitted falls short of the required level of support; or, (3) if a representation election result has been certified within the 12 months immediately preceding the date of filing of the petition which covers any employees proposed to be added to the unit; or, (4) if, within the previous 12 months, the employer has lawfully recognized, or the Board has certified, the exclusive representative in the described unit or a subdivision thereof.

(c) The Board may request proof of support or order an election among unrepresented employees to be added to a unit, if classifications found appropriate to be added to the unit do not include all classifications originally petitioned for.

(d) Board Order of Unit Modification.

(1) The Board shall issue an order of unit modification whenever the disposition of a petition filed under this Article results in the modification of a unit.

(2) The order shall not be considered to be a new certification for the purpose of computing time limits pursuant to Section 32754.

Article 6. Impasse Procedures

32791. Parties' Selection of Mediator.
At any time after a party declares impasse, the parties may mutually agree upon their own mediation procedures, including the right to arrange for a mediator of their choice, in lieu of the mediation procedure set forth in these regulations.

32792. Request That Board Determine Impasse and Appoint Mediator.

(a) After declaring impasse orally or in writing to the other party or after jointly declaring impasse, either or both parties may request the Board to determine that an impasse exists and appoint a mediator. This request may initially be made by telephone, but a request in writing shall follow. The request shall be signed under penalty of perjury that the information alleged therein is true and complete to the best of the requesting party's/parties' knowledge and belief, and contain the following information:

(1) The name, address and telephone number of the employer and the exclusive representative;

(2) The name, title, address and telephone number of the agent to be contacted for each party;

(3) A description of the established unit, the approximate number of employees in the unit and the date the exclusive representative was recognized or certified;

(4) The type of dispute;

(5) The date(s) the parties' initial proposals were presented to the public;

(6) The date negotiations commenced, the number of negotiating sessions and the approximate total number of hours spent in negotiations to date;

(7) The status of negotiations, including the date impasse was declared by the party/parties pursuant to this section, the number and subject matter of issues on which the parties have reached tentative agreement, and the total number and subject matter of issues which remain in dispute;

(8) A clear and concise description of the negotiations which have occurred, including the extent to which the parties have made counter-proposals and have discussed the issues which remain in dispute, and any facts which indicate that future meetings without the assistance of a mediator would be futile.

(b) Unless the request is made jointly, the filing party shall concurrently serve a copy of the written request on the other party. Proof of service pursuant to Section 32140 shall be filed with the regional office.

32793. Board Determination of Impasse.

(a) The Board shall, within five working days following the receipt of the written request for appointment of a mediator, orally notify the parties that the Board has determined that:

(1) An impasse exists and a mediator has been appointed, or

(2) Impasse has not been reached.

(b) Thereafter, the Board shall serve the parties with written notice of the determination.

(c) In determining whether an impasse exists, the Board shall investigate and may consider the number and length of negotiating sessions between the parties, the time period over which the negotiations have occurred, the extent to which the parties have made and discussed counter-proposals to each other, the extent to which the parties have reached tentative agreement on issues during the negotiations, the extent to which unresolved issues remain, and other relevant data.

(d) "Working days," for purposes of this Section only, shall be those days when the offices of the Public Employment Relations Board are officially open for business.

(e) The determination as to whether an impasse exists shall not be appealable to the Board itself.

32795. Subsequent Requests That Board Determine Impasse and Appoint Mediator.
Following the Board's determination that an impasse does not exist, a party may subsequently request that the Board determine that an impasse exists and appoint a mediator whenever there is a change in the facts upon which the initial determination was based. Subsequent requests shall follow the procedures set forth in Section 32792.

32797. Appointment of a Factfinder Under EERA and HEERA.
Not sooner than 15 days after the appointment of a mediator by the Board, or not sooner than 15 days after the parties have attempted to resolve their dispute through a mediation procedure on which they have mutually agreed, the Board shall appoint a person to chair a factfinding panel, if:

(a) The mediator has filed a written declaration that factfinding is appropriate to the resolution of the dispute with the regional office, and

(b) Either party has requested by written notification to the other, that their differences be submitted to a factfinding panel. A copy of the written request shall be filed with the regional office.

32798. Appointment of Person to Chair Factfinding Panel Under EERA and HEERA.

(a) Under EERA, the Board shall select and appoint the chairperson unless notified by the parties that they have mutually agreed upon a person to chair the panel in lieu of a chairperson selected by the Board.

(b) Under HEERA, the Board shall select and appoint the chairperson.

32799. Parties' Statement for Factfinder Under EERA and HEERA.
In cases where the Board has appointed a person to chair the factfinding panel, the parties shall prepare a statement of the issues to be placed before the panel. The statement should be jointly filed, if possible, although the parties may file separate statements if they disagree about the issues to be placed before the panel.

32800. Publication of Factfinder's Report Under EERA and HEERA.

(a) Under EERA, the employer shall make public the entire, verbatim final report signed by the chairperson of the factfinding panel within 10 days of its receipt by the parties.

(b) Under HEERA, should the factfinding panel decide to publish the report pursuant to Government Code Section 3593, such publication shall be made by the employer in the manner described in subsection (c) below.

(c) Publication shall be made by posting a notice that the factfinder report has been issued and is available to the public. The notice shall be posted in the locations normally used for posting public notices regarding regular meetings of the employer and shall indicate the times and places where the public may inspect a copy of the report. The employer shall insure that a reasonable number of copies shall be made available to the public.

32802. Request for Factfinding Under the MMBA.

(a) An exclusive representative may request that the parties’ differences be submitted to a factfinding panel. The request shall be accompanied by a statement that the parties have been unable to effect a settlement. Such a request may be filed:

(1) Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant either to the parties’ agreement to mediate or a mediation process required by a public agency’s local rules; or

(2) If the dispute was not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse.

(b) A request for factfinding must be filed with the appropriate regional office; service and proof of service pursuant to Section 32140 are required.

(c) Within five working days from the date the request is filed, the Board shall notify the parties whether the request satisfies the requirements of this Section. If the request does not satisfy the requirements of subsection (a)(1) or (2), above, no further action shall be taken by the Board. If the request is determined to be sufficient, the Board shall request that each party provide notification of the name and contact information of its panel member within five working days.

(d) “Working days,” for purposes of this Section and Section 32804, shall be those days when the offices of the Public Employment Relations Board are officially open for business.

(e) The determination as to whether a request is sufficient shall not be appealable to the Board itself.

32804. Appointment of Person to Chair Factfinding Panel Under the MMBA.

If a request is determined to be sufficient under Section 32802, the Board shall, within five working days following this determination, submit to the parties the names of seven persons, drawn from the list of neutral factfinders established pursuant to Government Code section 3541.3(d). The Board will thereafter designate one of the seven persons to serve as the chairperson unless notified by the parties within five working days that they have mutually agreed upon a person to chair the panel in lieu of a chairperson selected by the Board. In no case will the Board be responsible for the costs of the chairperson.

Article 7. Arbitration Procedures

32810. List of Arbitrators.
A list of persons to serve as arbitrators in disputes shall be established by the Board and shall be maintained at all regional offices and shall be made available to the parties.

32811. Selection of Arbitrators.
The parties to a written agreement may at their own initiative select an arbitrator. If the parties choose not to or are unable to select an arbitrator, they may request assistance from the Board. The request shall be filed in the appropriate regional office. If, pursuant to an agreement, the parties request Board assistance, the Board shall furnish the parties with:

(a) The complete list of arbitrators maintained by the Board; and/or

(b) A list containing an odd number of arbitrators from which the parties may select an arbitrator or, failing agreement, may alternately strike names from the list with the last name being the arbitrator selected. Either party may reject one list furnished and may request a new list.

32812. Notification of Selection.
Upon selection of an arbitrator from the list provided pursuant to Section 32811, the parties shall promptly notify the Board of their selection. Once an arbitrator is selected, the parties shall make all arrangements for the arbitration directly with the arbitrator.

32813. Cost of Arbitration.
The cost of the arbitration shall be the responsibility of the parties.

SUBCHAPTER 7. COMPLIANCE

Article 1. Compliance

32980. Compliance.

(a) The General Counsel is responsible for determining that parties have complied with final Board orders. The General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter. The Board itself may, based on a recommendation of the General Counsel, authorize the General Counsel to seek court enforcement of a final Board order.

(b) If an administrative decision based on an investigation is issued, the decision may be appealed to the Board itself pursuant to Chapter 1, Subchapter 4, Article 3 of these regulations.

(c) If a proposed decision based on a hearing is issued, the decision may be appealed to the Board itself pursuant to Chapter 1, Subchapter 4, Article 2 of these regulations.

SUBCHAPTER 8. AGENCY FEE REGULATIONS

Article 1. Agency Fee

32990. Agency Fee.
"Fair share" and "agency shop" forms of organizational security shall be known herein as "agency fee." All agency fee arrangements, agreements and provisions (hereinafter referred to as "provisions") shall be subject to the following regulations.

32992. Notification of Nonmember.

(a) The exclusive representative shall provide annual written notice to each nonmember who will be required to pay an agency fee. The notice shall include:

(1) The amount of the exclusive representative's dues and the agency fee;

(2) The percentage of the agency fee amount that is attributable to chargeable expenditures and the basis for this calculation;

(3) The amount of the agency fee to be paid by a nonmember who objects to the payment of an agency fee amount that includes nonchargeable expenditures (hereinafter referred to as an "agency fee objector"); and

(4) Procedures for (A) objecting to the payment of an agency fee amount that includes nonchargeable expenditures and (B) challenging the calculation of the nonchargeable expenditures.

(b) (1) The calculation of the chargeable and nonchargeable expenditures will be based on an audited financial report, and the notice will include either a copy of the audited financial report used to calculate the chargeable and nonchargeable expenditures or a certification from the independent auditor that the summarized chargeable and nonchargeable expenditures contained in the notice have been audited and correctly reproduced from the audited report, or

(2) the calculation of the chargeable and nonchargeable expenditures may be based on an unaudited financial report if the exclusive representative's annual revenues are less than $50,000 and a nonmember is afforded a procedure sufficiently reliable to ensure that a nonmember can independently verify that the employee organization spent its money as stated in the notice.

(1) At least 30 days prior to collection of the agency fee; or

(2) Concurrent with the initial agency fee collection provided escrow requirements in Section 32995 are met; or

(3) In the case of public school employees, where the agency fee year covers the traditional school year, on or before October 15 of the school year, provided escrow requirements in Section 32995 are met.

32993. Exclusive Representative's Objection Procedure.
Each exclusive representative that has an agency fee provision shall administer an Objection Procedure in accordance with the following:

(a) An agency fee objection shall be filed in writing with the designated representative of the exclusive representative.

(b) The procedure shall allow at least 30 days following distribution of the notice required under Section 32992 of these regulations for the filing of an agency fee objection.

32994. Exclusive Representative's Challenge Procedure.

(a) An agency fee payer who disagrees with the exclusive representative's determination of the chargeable expenditures contained in the agency fee amount and who files a timely agency fee challenge with the exclusive representative shall be hereafter known as an "agency fee challenger." An agency fee challenger may file an unfair practice charge that challenges the determination of the chargeable expenditures contained in the agency fee amount; however, no complaint shall issue until the agency fee challenger has first exhausted the Exclusive Representative's Challenge Procedure. No agency fee challenger shall be required to exhaust the Exclusive Representative's Challenge Procedure where it is insufficient on its face.

(b) Each exclusive representative that has an agency fee provision shall administer a Challenge Procedure in accordance with the following:

(1) An agency fee challenge shall be filed in writing with the official designated by the exclusive representative in the annual notice.

(2) The procedure shall allow at least 30 days following distribution of the notice required under Section 32992 of these regulations for the filing of an agency fee challenge.

(3) Upon receipt of an agency fee challenge, the exclusive representative shall within 45 days of the last day for filing a challenge request a prompt hearing regarding the agency fee before an impartial decisionmaker.

(4) The impartial decisionmaker shall be selected by the American Arbitration Association or the California State Mediation Service. The selection between these entities shall be made by the exclusive representative.

(5) Any party may make a request for a consolidated hearing of multiple agency fee challenges based on case similarities, including but not limited to, hearing location. At any time prior to the start of the hearing, any party may make a motion to the impartial decisionmaker challenging any consolidation of the hearing.

(6) The exclusive representative bears the burden of establishing the reasonableness of the amount of the chargeable expenditures.

(7) Agency fee challenge hearings shall be fair, informal proceedings conducted in conformance with basic precepts of due process.

(8) All decisions of the impartial decisionmaker shall be in writing, and shall be rendered no later than 30 days after the close of the hearing.

(9) All hearing costs shall be borne by the exclusive representative, unless the exclusive representative and the agency fee challenger agree otherwise.

32995. Escrow of Agency Fees.

(a) If agency fee objectors are identified before fee collection begins for the agency fee year, there shall be an advance reduction in fees and/or advance rebate for those agency fee objectors.

(b) If agency fees are collected before agency fee objectors are identified, the exclusive representative shall place in escrow, in an independently controlled escrow account, in an independent financial institution, all agency fees collected until the exclusive representative provides appropriate rebates and/or fee reductions for agency fee objectors.

(c) If not otherwise escrowed, the exclusive representative shall place in escrow, in an independently controlled escrow account, in an independent financial institution, all agency fee amounts reasonably in dispute until all agency fee challengers are identified and, thereafter, continue to escrow the amounts in dispute for all agency fee challengers until the challenges are resolved by the impartial decision maker or mutual agreement between the agency fee challenger and the exclusive representative has been reached on the proper amount of the agency fee, whichever comes first.

(d) Interest at the prevailing rate shall be paid by the exclusive representative on all rebated fees.

32996. Filing of Notice and Agency Fee Appeal Procedures.
The Board may require an exclusive representative with an agency fee provision to file a copy of its annual notice, Objection Procedure and/or Challenge Procedure with the Board.

32997. Compliance.
It shall be an unfair practice for an exclusive representative to collect agency fees in violation of these regulation

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