Decision A434H – Regents of the University of California
SF-RR-965-H
Decision Date: February 29, 2016
Decision Type: Administrative Appeal
Description: An employee organization seeking to represent higher education employees appealed from an administrative determination to void and refuse to count an employee’s homemade ballot which was mailed to PERB during an mail-ballot representation election.
Disposition: The Board affirmed the administrative determination to void and refuse to count the ballot. PERB construes its regulations governing representation matters narrowly and declines to look to private-sector authority for guidance when PERB’s own regulations expressly address the issue and any policy concerns underlying the practice and procedure specified in the regulations. Because PERB regulations, require that all representation elections affecting higher education units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and a count an employees’ homemade ballot.
Decision Headnotes
100.01000 – In General
Because an agency’s rules or regulations cannot expand the scope of its authority beyond what has been authorized by the enabling statute, regulations that specify the procedure whereby an agency will carry out its mission necessarily have the effect of narrowing the scope of the agency's discretion by requiring it to act according to the procedure specified in its own regulations, as opposed to following other procedures which, while within the broad discretion granted by the statute are not the procedure chosen by the agency. Agency regulations validly enacted pursuant to a legislative grant of authority have the force and effect of law and are binding on the agency that promulgated them. Administrative agencies must follow their own rules and may only modify or repeal them through the rulemaking process rather than by decisional law.
1303.01000 – In General
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations, require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot.
1303.01000 – In General
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations, require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot.
1303.08000 – Mechanics of Election
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations, require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot.
1503.01000 – In General
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot. (PERB Reg. 32722, subds. (a) and (b).
1503.02000 – Regulations Considered (By Number)
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot. (PERB Reg. 32722, subds. (a) and (b).
1503.03000 – Regulations Considered (By Number) (Continued)
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot. (PERB Reg. 32722, subds. (a) and (b).