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CHAPTER 3. STATE EMPLOYER-EMPLOYEE RELATIONS ACT

SUBCHAPTER 1. REPRESENTATION PROCEDURES

Article 1. General Provisions
40130. Window Period.
"Window period" means the 29-day period which is less than 242 days, but more than 212 days prior to the expiration date of a memorandum of understanding between the employer and the exclusive representative. The memorandum of understanding expiration date means the last effective date of the memorandum of understanding. Notwithstanding the provisions of Section 32130, the date on which the memorandum of understanding expires shall not be counted for the purpose of computing the window period.

40145. Statement of Interest.
Any employee organization which is not the exclusive representative of certain employees but which desires notice of filing of any certification, severance, decertification or unit modification petition or issuance of notice of hearing, decision or intent to conduct election affecting such employees may file a statement of interest with the regional office. Such statement shall be in writing and shall include a list of the employment classes which the employee organization has an interest in representing, including schematic codes and class codes as defined in "Pay Scales in California State Civil Service." The filing shall remain valid for 12 months and may be renewed in writing thereafter.

40160. Parties.
"Parties" means the state employer, the employee organization which is the exclusive representative of any employee covered by a petition or intervention, any employee organization known to have an interest in representing any employees as demonstrated by having filed a current statement of interest pursuant to Section 40145, and any petitioner which has filed a valid petition pursuant to Section 40170 or 40400.

40165. List of State Employee Mailing Addresses.

(a) Except as prohibited by law, the state employer shall release to an exclusive representative a mailing list of home addresses of state employees it represents pursuant to a written request by the exclusive representative. The mechanics of such release, including but not limited to (1) timing, frequency, and manner of disclosure, (2) maintenance of names or the mailing list, and (3) cost of production shall be subject to the collective bargaining process.

(b) Except as prohibited by law, the state employer shall not be precluded from releasing a mailing list of home addresses of state employees as defined in Government Code Section 3513(c) or Section 3513(g) who are not in units represented by an exclusive representative to an employee organization as defined in Government Code Section 3513(a). The mechanics of such release, including but not limited to (1) timing, frequency, and manner of disclosure, (2) maintenance of names or the mailing list, and (3) cost of production shall be determined by the state employer.

(c) As provided by Government Code Section 6254.3, and upon written request of a state employee, the state employer shall remove the state employee's home address from the mailing lists referenced in subsections (a) and (b) prior to the release of such lists.

40170. Petition for Certification.
(a) An employee organization may file a petition pursuant to Government Code Section 3520.5 to become the exclusive representative of an appropriate unit consisting of a group of

employees who are not included in an established unit which is represented by an exclusive representative. The petition shall be filed with the Sacramento regional office; be signed by an authorized agent of the employee organization; provide the full name, address and telephone number of the employee organization; provide the name, title, address and phone number of the authorized representative of the employee organization; and identify the job titles or classifications of employees in the unit claimed to be appropriate.

(b) The petition shall be accompanied by proof of at least 30 percent support of the employees in the unit claimed to be appropriate. Proof of support is defined in 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.

40172. Posting Notice of Petition for Certification.

(a) The employer shall post a notice of the petition, using a form provided by the Board, 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 unit claimed to be appropriate are employed.

(c) The notice shall remain posted for 20 days. (d) The notice shall include a copy of the petition with the appropriate portion of the form completed by the employer prior to posting.

40174. Determination of Proof of Support.

(a) Within 20 days of the date of service of a copy of the petition for certification, the employer shall file with the regional office an alphabetical list, including job titles or classifications, of the employees employed in the claimed unit as of the last date of the payroll period immediately preceding the date the petition was filed, unless otherwise directed by the Board.

(b) If after initial determination the proof of support is insufficient, 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 final determination as to sufficiency or lack thereof regarding the proof of support. The petition shall be dismissed if the Board determines that the petition lacks sufficient proof of support.

40176. Withdrawal of Petition for Certification.

Any petition for certification may be withdrawn by an authorized representative of the employee organization that filed it at any time prior to a final decision by the Board. Such withdrawal shall be filed with the regional office. Service and proof of service of the withdrawal pursuant to Section 32140 are required.

40178. Amendment of Petition for Certification.

(a) A petition for certification may be amended to correct technical errors or to add or delete job classifications from the proposed unit at any time prior to the issuance of a notice of hearing, or notice of intent to conduct election. The amendment shall be filed with the regional office and provide the information required in Section 40170(a). Service and proof of service of the amendment pursuant to Section 32140 are required.

(b) In addition, amendments to add new job classifications to a proposed unit shall be subject to the following:

(1) Additional proof of support, if needed to maintain standing as a petitioner, shall be filed with the regional office concurrently with the amendment.

(2) An employer response to the amended petition shall be filed with the regional office within 15 days following the service of the Board determination of adequacy of proof submitted in support of the petition, unless otherwise directed by the Board. The response shall conform to the requirements for employer responses as set forth in Section 40180.

(c) Amendments to correct technical errors or to add or delete job classifications from a party's proposed unit which are requested after the issuance of the notice of hearing are subject to approval by the hearing officer. The hearing officer may grant the requested amendment, so long as it will not serve to unduly impede the hearing and provided that sufficient proof of support is evidenced to support any request for addition of job classifications.

40180. Employer Response Regarding Petition for Certification.

(a) Within 15 days following service of a Board determination finding sufficient proof submitted in support of the petition, the employer shall file a written response with the regional office.

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

(c) The employer shall use the following format for its response regarding a petition for certification:

(1) Name, address and telephone number of the employer and name, address and telephone number of the employer's agent to be contacted;

(2) Attach a copy of the petition for certification;

(3) Employer position regarding the petition for certification:

(A) Does the employer reasonably doubt the appropriateness of the unit proposed by the petitioner? If so, what classifications or positions remain in dispute? What is the employer's position regarding the dispute?

(B) Does the employer believe that there are other reasons why a representation election should not be held in the proposed unit? If so, please fully explain.

40182. Board Investigation.

(a) Whenever a petition for certification is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election, or take such other action as deemed necessary to decide the questions raised by the petition.

(b) A petition shall be dismissed in part or in whole whenever the Board determines that:

(1) The petitioner has no standing to petition for the action requested; or

(2) Any of the employees in the claimed unit are currently included in any established bargaining unit and are represented by an exclusive representative; or

(3) A valid 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

(4) The petition for certification was filed either after a notice of hearing or, where no hearing has been held, notice of intent to conduct election covering any of the employees in the unit proposed by the petitioner has been issued by the Board.

Article 2. Severance Petition
40200. Severance Petition.

(a) An employee organization may file a petition to become the exclusive representative of an appropriate unit consisting of a group of employees who are already members of a larger established unit represented by an incumbent exclusive representative. The petition shall be filed with the regional office on forms provided by the Board.

(b) The petition shall be accompanied by proof of majority support in the unit claimed to be appropriate. Proof of support is defined in Chapter 1, Section 32700 of these regulations.

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

40210. Posting Notice of Severance Petition.

(a) The employer shall post a notice of the severance 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 unit claimed to be appropriate are employed.

(c) The notice shall remain posted for 20 days.

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

40220. Board Determination Regarding Proof of Support - Severance Petition.

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

(b) If, after initial determination, the proof of support is insufficient, the Board may allow up to 10 days or until the last day of the "window period" as defined by Section 40130, whichever occurs first, 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 or lack thereof regarding the proof of support.

40230. Response to Severance Petition.
(a) The employer or the exclusive representative of the established unit may file a responding statement supporting or opposing the severance petition. Unless otherwise notified by the Board, 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) A copy of the severance petition;

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

(3) A statement confirming or refuting the information contained in the severance petition regarding the date the incumbent exclusive representative was recognized or certified, and the effective date and the expiration date of any current agreement covering employees in the established unit;

(4) A concise statement setting forth support of or opposition to the unit proposed by the petition.

40240. Amendment of Severance Petition; Posting Amendments.

(a) A severance petition may be amended to correct technical errors or to delete job classifications or positions from the proposed unit at any time prior to the issuance of a PERB notice of representation hearing or, where no hearing has been held, issuance of a Directed Election Order or approval of a Consent Election Agreement. The amendment shall be filed with the regional office on forms provided by the Board. Service and proof of service pursuant to Section 32140 are required.

(b) A severance petition may be amended to add job classifications or positions to the proposed unit, subject to the following:

(1) An amendment to add job classifications or positions to a proposed unit may be filed within the time frames listed in subsection (a) above, except that if there exists a memorandum of understanding between the employer and the exclusive representative covering any of the employees to be added to the proposed unit, the amendment must be filed in the manner set out in Section 32135 during the "window period" as defined by Section 40130.

(2) The amendment shall be filed with the regional office on forms provided by the Board. Service and proof of service pursuant to Section 32140 are required. Additional proof of

support, if needed to maintain standing as a petitioner, shall be filed with the regional office with the amendment.

(3) The employer shall post a notice of the amendment as soon as possible but in no event later than 15 days following service of the amendment. The notice shall conform to the requirements for posting an original petition and shall remain posted for 20 days.

(4) A response from any party to the amended petition may be filed with the regional office within 15 days following the service of the Board's determination of adequacy of proof of support, unless otherwise directed by the Board. The response shall conform to the requirements for responses as set forth in Section 40230.

(c) Amendments to correct technical errors, add or delete job classifications or positions from a party's proposed unit which are requested after the issuance of the notice of hearing are subject to approval by the hearing officer. The hearing officer may grant the requested amendment, so long as it will not serve to unduly impede the hearing, and provided that sufficient proof of support is evidenced to support any request for addition of job classifications. Posting of any such amendments shall be at the discretion of the hearing officer.

40250. Withdrawal of Severance Petition.
Any severance petition may be withdrawn by an authorized representative of the employee organization that filed it. Such withdrawal shall be filed with the regional office. Service and proof of service pursuant to Section 32140 are required.

40260. Board Investigation.

(a) Whenever a severance petition is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election or take such other action as deemed necessary to decide the questions raised by the petition. (b) A petition shall be dismissed in part or in whole whenever the Board determines that:

(1) The petitioner has no standing to petition for the action requested; or

(2) 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 the severance petition, 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

(3) A valid 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.

Article 3. Representation Election
40300. Notice of Intent to Conduct Election.
Upon determination to conduct a representation election, other than an election directed by a Board decision, the Board shall issue a notice of intent to conduct election to all interested parties. A notice of decision which orders a representation election shall serve as a notice of intent to conduct election.

40310. Intervention to Appear on Ballot.

(a) Within 20 days following issuance of a notice of intent to conduct election in the appropriate unit, any employee organization may file an intervention to appear on ballot. The intervention shall be filed with the regional office on forms provided by the Board. The intervention shall be accompanied by proof of support of at least 30 percent of the employees in the appropriate unit. Proof of support is defined in Chapter 1, Section 32700 of these regulations.

(b) Service of the intervention, exclusive of the proof of support, and proof of service pursuant to Section 32140 are required.

40320. Board Determination Regarding Proof of Support.

(a) Within 20 days of issuance of a notice of intent to conduct election, the employer shall file with the regional office an alphabetical list, including job titles or classifications of employees employed in the appropriate unit, as of the last date of the payroll period immediately preceding the date of issuance of the notice of intent to conduct election, unless otherwise directed by the Board.

(b) If, after initial determination, the proof of support is insufficient, 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 or lack thereof regarding the proof of support.

40330. Conduct of Elections.
All elections shall be conducted by the Board in accordance with election procedures described in Chapter 1, Subchapter 6, Article 2 of these regulations.

Article 4. Rescission of Fair Share Fee Provision
40400. Employee Petition.

(a) A petitioner in an established unit may file with the regional office a petition to rescind an existing fair share fee provision pursuant to Government Code Section 3515.7(d).

(b) The petition shall be filed utilizing forms provided by the Board and shall be signed by an authorized representative.

(c) Proof that at least 30 percent of the employees in the unit desire a vote to rescind the existing fair share fee provision shall be filed with the regional office concurrent with the petition. Proof of support shall conform to the requirements of Section 32700(b), (c), (e)(3), (f) and (g), and must have been obtained within one calendar year.

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

40410. Board Determination Regarding Proof of Support.

(a) Within 20 days following service of the petition to rescind a fair share fee provision, the employer shall file with the regional office an alphabetical list containing the names and job titles or classifications of the persons employed in the unit described in the petition as of the last date of the payroll period immediately preceding the date the petition was filed, unless otherwise directed by the Board.

(b) If after initial determination the proof of support is insufficient, 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 or lack thereof regarding the proof of support.

40420. Employee Vote.

(a) The Board shall dismiss the rescission petition if a valid election has been conducted on the fair share fee provision during the term of the memorandum of understanding in effect at the time the petition was filed.

(b) Provided the rescission petition is timely and properly filed pursuant to this Article 4, and the proof submitted in support of the petition is determined to be adequate pursuant to Section 40410, a rescission election among the employees in the established unit shall be conducted under procedures established by the Board, and in accordance with election procedures described in Chapter 1, Subchapter 6, Article 2 of these regulations.

(c) The fair share fee provision shall be rescinded if a majority of the employees in the negotiating unit covered by the provision vote to rescind the provision.

40430. Alternative Procedures For Vote.
Notwithstanding the provisions of this Article, the employer and the exclusive representative may mutually agree upon alternative procedures regarding a vote on a fair share fee provision pursuant to Government Code Section 3515.7(d).