Updated Filing Regulations – Q&A

As announced in Notice of Approval of Regulatory Action – Electronic Filing,  the Office of Administrative Law has approved the rulemaking action that implements procedures to allow for the electronic filing and service of case-related documents and to allow for the electronic signature of union authorization cards. Notable changes in the new regulations can be found here. The regulations become effective on February 15 and below are a few frequently asked questions.

How has filing documents with PERB changed?

PERB no longer allows parties to file by fax or e-mail.  With one exception, all parties must file documents only through the ePERB portal.  The sole exception applies to individuals that are not represented by legal counsel (i.e., pro per litigants).  Unrepresented individuals may file through ePERB, but also have the option to file in person, by U.S. Mail, or a mail delivery service.  (PERB Regulation 32110.)

If a union or public employer is not represented by legal counsel, does PERB still require them to file documents through ePERB?

Yes.  The exception to the requirement that parties use ePERB applies to individuals only.  Unions and public employers, even if represented by non-attorneys, must still use ePERB when filing documents with PERB.

I am required to use ePERB when filing documents during a formal hearing?

Parties do not need to use ePERB to file, submit, or introduce documents (or evidence) during the actual formal hearing.  For pre-hearing documents (e.g., motions, requests for continuances, etc.) or post-hearing documents (e.g., closing briefs, etc.), parties must file through ePERB and properly serve the other parties.

Does PERB still require parties to mail original or multiple copies of documents when using ePERB?

It depends.  PERB no longer requires parties to file originals or copies of documents when using ePERB except for two following types of proceedings: (1) exceptions to Board agent decisions, and (2) requests to designate a decision as precedential or non-precedential.   But parties exempt from using ePERB must still file original documents when filing in person, by U.S. Mail, or other delivery service.

Am I still required to serve the other parties when I file through ePERB?

Yes.  You are responsible for properly serving the other party when filing with PERB even when filing through ePERB (or by any other authorized means).  You may serve the other party through U.S. mail, a mail delivery service, or personally serve the documents.  You may only serve documents electronically (by e-mail) if the other party has consented to electronic service.

Will ePERB electronically serve (e-serve) parties when a document is filed through the ePERB portal?

Not yet.  That ePERB feature is not yet functional.  PERB is working to update ePERB to automatically e-serve documents when a party files a document with PERB, or when PERB issues a document in a case.  But even after the e-service feature is added, ePERB will only e-serve parties after the initial filing of a case.  Parties will always be responsible for serving documents for the initial case filing.  Furthermore, parties must consent to e-service.  It is notable, however, that using ePERB is consent for e-service.

For an unrepresented individual that decides to not use ePERB, can I still e-serve that individual through e-mail?

You may only serve unrepresented individuals through e-mail if they consent to electronic service.  If an unrepresented individual files through ePERB, the use of ePERB is deemed consent for electronic service.  Otherwise, at the start of each case, PERB will ask unrepresented parties to fill out an e-service consent form for that purpose.  If an unrepresented individual does not use ePERB and refuses to sign the consent form, then service must occur by another authorized means (i.e., U.S. mail, a mail delivery service, or personally serve the documents).

Has the deadline for filing a document on a business day changed?

Yes. The new rules give parties until 11:59 p.m. on any business day for PERB to deem the document filed on that day.  The sole exception is that a request for injunctive relief must be filed by 5:00 p.m. on a business day.  (See PERB Regulations 32110, 32450, and 32455.)

If my case is currently in abeyance, will it be reactivated?

If a case has been in abeyance for more than six months, the assigned Board agent will activate the case unless the parties request it remain in abeyance for an additional six months or less.  But no case may remain in abeyance for more than two years without approval from the Board itself.