PERB has invited public comments on its revised EFile regulations to be considered at its December 12, 2019 meeting. The draft regulatory package can be found here. PERB is asking that stakeholders provide comments in person at its meeting on December 12, 2019, or preferably in writing before that date.
It’s no secret that employers are finding themselves on the losing end of more and more cases at PERB. So it shouldn’t be a surprise that there are a record number of PERB cases being challenged in the Courts of Appeal. As of today, there are 17 cases in the Courts of Appeal. I have to believe that this is far and away the most cases PERB has ever had challenged at one time.
Historically, a party trying to overturn a PERB decision faces long odds as the Courts of Appeal give PERB a lot of deference as an expert administrative agency. But if recent appellate decisions are an indication, the courts may be more willing to scrutinize PERB’s decisions given its recent leanings. For example, PERB has been partially overturned in the last two cases to be decided by the appellate courts. First, in December 2018, the Court of Appeal overturned most of PERB’s decision in Fresno County Superior Court (2017) PERB Dec. No. 2517-C. (Superior Court of Fresno County v PERB (2018) 30 Cal.App.5th 158.) Then, in July 2019, the Court of Appeal overturned much of PERB’s decision in City and County of San Francisco (2017) PERB Dec. No. 2540-M. (City and County of San Francisco v PERB (2019) 2019 WL 3296947) It’s rare for any PERB decision not to be completely affirmed. So for PERB to have two decisions in a row partially overturned is significant.
As mentioned above, there are now a record 17 cases being challenged in the Courts of Appeal. For those of you interested, here is a list I compiled of those 17 cases along with the appellate case numbers:
The Governor has signed AB 355 which adds the Orange County Transportation Authority (OCTA) to PERB’s jurisdiction. Last year Governor Brown vetoed AB 2886 which would have added the OCTA and the San Joaquin Regional Transit District to PERB’s jurisdiction. In his veto message, Governor Brown noted that PERB’s jurisdiction has steadily increased over the years while its funding has not. According to Governor Brown, until PERB is able to handle its workload its jurisdiction should not be further expanded.
Now that Governor Newsom has signed AB 355 it will be interesting to see whether other transit agencies will also seek to be added to PERB’s jurisdiction.
PERB has published revised draft regulatory packages in three areas: 1) e-filing, including proof of support; 2) continuances; and 3) the recusal of PERB Board members and staff. The draft regulatory packages can be found here. PERB is requesting that stakeholders provide comments at its meeting on October 10, 2019, or preferably provide comments in advance of the meeting.
Of particular interest to stakeholders are the proposed modifications to PERB Regulation 32700 regarding proof of support. Based on the initial draft regulation and the public comments made in response to that draft, it was widely anticipated that PERB would open the door to submitting electronic signatures as proof of support instead of requiring “original” signatures. As I stated in my comments to PERB at the time, I have no objection to such a change provided that there are standards for the use of electronic signatures. In the revised regulation, PERB addresses this concern by citing to the standards set forth in the Uniform Electronic Transactions Act.
However, I was surprised that the revised regulation goes much further than simply allowing electronic signatures. One of the most drastic changes is that PERB proposes to allow as proof of support the following:
Records showing that the proof of support contains the employee’s name and a cellular phone number, email address, or home address, that the employee organization sent a confirmation transmission to the cellular phone number, email address, or home address provided, indicating the language to which the employee agreed or the nature of the support demonstrated, and that the employee organization has submitted to the Board any responses to such confirmation transmissions that the employee organization received by the time of submission.
The exact intent of this language is not entirely clear to me. My assumption is that this language is meant to apply to a situation, for example, where an union emails a membership form to an employee and the employee emails a response stating, “sign me up!” but does not actually return a signed form. While the employee’s intent in this example might be clear, the language of the regulation is so broad it could open the door to much more debatable situations.
For example, what if in response to an email containing a membership form the employee responds, “Thanks. Looks great.” Is that enough to constitute proof of support from that employee? In my opinion such a response is potentially vague and should not be a substitute for a universally accepted signature. Given that the regulation will now allow electronic signatures, I see no reason why an employee shouldn’t be required to return a document with at least an electronic signature or the image of one. I’m hoping that other stakeholders will agree with me.
In addition to the above, I also provided comments to PERB on other aspects of the proposed revised regulations. My comments can be found here.
Governor Newsom has signed AB 378, the California Child Day Care Facilities Act, which allows child care workers who care for families that receive child care subsidies from the state to unionize. In a Sacramento Bee article, supporters of AB 378 claim that over 40,000 child care workers will be covered by this new law.
AB 378 represents the first expansion of PERB’s jurisdiction beyond public employees. Many “perbs” in other states already cover both public employees and some private sector employees excluded by the National Labor Relations Act. PERB now joins these other states.
Notably, AB 378 appears designed to permit bargaining between unions and the State of California, and not between unions and the employers of the child care workers. Also, the scope of representation is limited. For example, the scope of representation does not include wages and hours, but does include reimbursement rates from the State, payment procedures and “other economic matters.”
Relevant to public employers is that the California Child Day Care Facilities Act makes it an unfair practice for any public agency to discriminate against a child care worker for protected activities. The same prohibition applies to the employers of child care workers. The law also requires employers of covered child care workers to allow union access to employee orientations and contains restrictions on the issuance of “mass communications” to employees regarding their right to unionize.
There are also many other aspects of this new law that I will try to cover in future posts. Suffice to say, the fact that PERB now has jurisdiction over some private sector employees represents a new chapter in PERB’s history.
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Tim Yeung is a Partner with the law firm of Sloan Sakai Yeung & Wong LLP in Sacramento, California. He exclusively practices labor and employment law, with a particular focus on the public sector.