PERB To Consider New Forms Of "Proof Of Support"

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.