Updated Q & A – Filings Regulations
Below are updated Questions and Answers. As previously 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 became effective on February 15. Updates to the Q & A posted on February 8, 2021 are reflected below.
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 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. To file pre-hearing documents (e.g., motions, requests for continuances, etc.) or post-hearing documents (e.g., closing briefs, etc.), parties must use ePERB and properly serve all 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 the following two proceedings: (1) exceptions to Board agent decisions, and (2) requests to designate a decision as precedential or non-precedential. But unrepresented individuals exempt from using ePERB must still file original documents when filing in person, by U.S. Mail, or other delivery service.
UPDATED – Am I still required to serve the other parties when I file through ePERB?
For the initial filing of a case, the filing party must always serve the other parties either in person, by U.S. Mail, or through a delivery service. This initial method for serving documents is required whether the party files through ePERB or through one of the filing methods authorized for unrepresented individuals. After the initial filing occurs, PERB will open the case in ePERB, assign a case number, and add the representatives’ e-mail addresses. This allows ePERB to auto-serve party representatives in the future whenever a party files through e-PERB or when PERB issues a document. Please note that parties may not use ePERB to auto-serve unrepresented individuals who do not use ePERB. Even when using ePERB to auto-serve parties, the filing party must always include a proof of service with the filing.
ADDED – How do I auto-serve parties using ePERB?
To file a document and use ePERB to auto-serve parties, you will be asked to click “submit” the document and proof of service. When you click “submit” on the portal, the other parties will automatically be served. Once you file and auto-serve the parties, you will receive an e-mail notification showing the identity of the parties served. Your proof of service must match the served parties on the e-mail notification you received. Every party is responsible for making sure ePERB serves the correct parties. If any party is an unrepresented individual not using ePERB, and has not consented to service by e-mail, you may not use ePERB to serve that individual. Instead, you must serve the unrepresented individual through U.S. mail, a mail delivery service, or personally serve the documents. It is important to remember that when filing a document through ePERB, you must always include a proof of service, even when using ePERB to auto-serve the parties.
UPDATED – How do I serve an unrepresented individual that is not using ePERB?
Unrepresented individuals are not required to file through ePERB, unlike public employers and labor organizations. If an unrepresented individual decides to file through ePERB, then the other parties may serve the individual through ePERB’s auto-serve function. Even if an unrepresented individual does not use ePERB, you may serve unrepresented individuals through e-mail if they consent to electronic service. But if an unrepresented individual decides to not use ePERB and does not consent to electronic service, you must serve that individual by U.S. Mail, in person, or by some other mail delivery service. The proof of service you file with PERB must show the method of service chosen.
ADDED (Updated 4/5/21) – How do I Opt Out of auto-service when filing via the ePERB Portal?
There are certain documents parties should never serve on the other parties. To keep ePERB from auto-serving those documents when you file them with PERB, you may opt out of auto service by selecting “Opt Out” prior to clicking submit. The “Opt Out” option should always be used for filing confidential documents with PERB, such as proof of support for representation cases, extension of time from a warning letter, or formal hearing exhibits prior to the formal hearing. If you select Opt Out and the document needs to be served on the other parties, it will be your responsibility to properly serve them and provide a proof of service to PERB.
Updated (4/5/21) – Has the deadline for filing a document on a business day changed?
Yes. For parties using ePERB only, the new rules give them until 11:59 p.m. on any business day for PERB to deem the document filed on that day. But, for unrepresented individuals filing in person, through U.S. Mail, or a delivery service, a document is deemed filed on the business day PERB actually receives the document at the appropriate Regional office. Because PERB’s Regional offices close at 5:00 p.m., PERB cannot receive documents after that time. Regardless of the filing method, 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.