PERB confirms that electronic proof of support documents cannot be used in decertification petitions

For most of the history of public sector labor law in California, only proof of support documents with “original signatures”—meaning ink or “wet” signatures—were permitted to initiate the representation and decertification proceedings. This changed with the revisions to Public Employee Relations Board (PERB) Regulation 32700 in 2021, which allowed the use of “electronically signed proofs of support” in representation petitions. Now, in a recent decision called Pasadena Area Community College District (Jan. 11, 2023) PERB Order No. Ad-500, PERB confirmed what appeared clear from the text of this revised regulation—electronically signed proof of support documents are not allowed in decertification cases.

The new language of PERB Regulation 32700(d)(4) allows electronic signatures only in reference to “employees who are not exclusively represented by an employee organization and who have signed or electronically signed proofs of support clearly demonstrating a desire to be represented by the petitioning employee organization.” Nowhere else is in the regulations are electronic signatures even mentioned. PERB noted this point in its decision, holding that “[t]he plain language of the revised regulation thus left PERB’s longstanding requirement of original signatures unchanged for exclusively represented employees who wish to change or decertify their representative or sever themselves from a represented unit.” (Pasadena Area Community College District, PERB Order No. Ad-500, at p. 7.)

PERB cited two policy reasons for drawing this distinction between representation and decertification cases. First, individuals can bring decertification petitions, and individuals (as opposed to unions) are less able to follow the complex record-keeping and fraud protection requirements for obtaining valid electronic signatures. And second, it is within PERB’s discretion to place additional limits on decertification petitions compared to representation petitions, as decertification necessarily destabilizes employer-employee relations.

Prior to filing a representation petition at a public sector facility, confer with your usual labor counsel to make sure that electronic signatures are permitted under the facility’s local rules. And if you have any questions about this development, please contact your usual labor attorney.