Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Employer's Written Response to the Petition. Upon service and filing of a petition, as set forth above, the employer so served shall provide to the regional director or the regional director's designated agent, within the time limits set forth in subdivision (d), the following information accompanied by a declaration, signed under penalty of perjury, that the information provided is true and correct:
(1) The employer's full and correct legal name, a description of the nature of its legal entity, a full and correct address, and the name, address, telephone number, email address, and the location and title of a person within the employer's organization who is authorized to accept service of papers. Such person shall also be one who is authorized to make agreements with the Board and the parties regarding the petition unless the employer has notified the regional office that it has a designated outside attorney or other outside representative who is to be contacted regarding the petition.
(2) A complete and accurate list of the complete and full names, current street addresses, landline and cellular telephone numbers, email addresses, and job classifications of all agricultural employees, including employees hired through a labor contractor, in the bargaining unit sought by the petitioner in the payroll period immediately preceding the filing of the petition. "Current street addresses" means the address where the employees reside while working for the employer. The employee list shall also include the names, current street addresses, landline and cellular telephone numbers, email addresses, and job classifications of persons working for the employer as part of a family or other group for which the name of only one group member appears on the payroll. If the employer contends that the unit sought by the petition is inappropriate, the employer shall additionally, and within the time limits set forth in subdivision (d), provide a complete and accurate list of the names, addresses, landline and cellular telephone numbers, and email addresses of the employees in the unit the employer contends to be appropriate, together with a written description of that unit. If an employer chooses to submit, in addition to the information required, W-4 forms, social security numbers, employee signature facsimiles, or similar information, the regional director shall use such information to confirm the validity of the union's showing of interest only to the extent deemed appropriate in the regional director's discretion. Such information may also be used by the regional director to the extent deemed appropriate in the regional director's discretion in order to resolve allegations of fraud in the showing of interest pursuant to section 20300(i)(4)(A) of these regulations.
(3) The names of employees employed each day during the payroll period immediately preceding the filing of the petition. This information may be submitted in the form of a copy of the employer's original payroll records or in some other form acceptable to the Board agent assigned to the case. The regional offices shall not disclose these records to any party.
(4) The duration and timing of payroll periods for the unit sought, for example, weekly, Sunday-Saturday payroll, or bimonthly payroll commencing on the 1st and 15th of each month. If employees in the unit sought are paid on more than one payroll period, the employer shall give the duration and timing of each payroll period and lists of which employees are covered by each payroll period.
(5) The names, addresses, telephone numbers, and email addresses of all labor contractors supplying labor during the pertinent payroll period(s).
(6) A statement of the peak employment (payroll period dates and number of employees) for the current calendar year in the unit sought by the petition. If the employer contends that the petition was filed at a time when the number of employees employed constituted less than 50% of its peak agricultural employment for the current calendar year, the employer shall provide evidence sufficient to support that contention.
If it is contended that the peak employment period has already passed, such evidence shall include payroll records which show both the names and actual number of (agricultural) employees employed each day and the number of hours each employee worked during the peak payroll period. If it is contended that the peak payroll period will occur later in the calendar year, such evidence shall include payroll records which show both the names and actual number of (agricultural) employees employed each day and the number of hours each employee worked during the peak payroll period from the previous year(s), as well as any other information in the employer's possession which would be relevant to the determination of peak employment requirements.
(7) If the employer challenges the accuracy of any of the other allegations of the petition required by Labor Code section 1156.3(a), in particular subdivisions (a)(2), (3), and (4), the employer shall provide information to support these contentions.
(8) A statement of which languages, if any, other than Spanish and English, the employer requests be included on the ballots in any election conducted pursuant to the petition, and the approximate number of employees who can effectively read the requested language and no other in which the ballot would otherwise be printed.
(b) Form of List. The list included in the employer's written response to the petition for certification should be in the following form:
(1) Typewritten or otherwise legibly prepared.
(2) Alphabetical. However, if the payroll is prepared according to crew or work group, the list should be provided alphabetically within each crew or work group.
(3) If the employer maintains an employee list in an electronic format, it shall alphabetize the list pursuant to subdivision (b)(2) and produce such alphabetized list in its electronic format to the regional director.
(c) Where Provided. The employer's written response to the petition under subdivision (a) shall be presented at the regional office of the Board noted as the place of filing on the face of the petition, unless the employer is notified by an agent of the Board that the case has been transferred to another region, or unless, in any particular case, some other arrangement for making the information available at a different location is agreed to by the regional director or Board agent assigned to the case.
(d) Timing for Filing Employer's Written Response. The requirements set forth in subdivisions (a) through (c) shall be satisfied by making such information available in the place specified in subdivision (c) not more than 48 hours after the filing of a petition with proof of service. However, when said 48-hour period expires on a Sunday or legal holiday, the time to provide such information shall be extended to the corresponding hour on the next business day.
(e) Recordkeeping Requirement. Employers shall at all times maintain accurate records of the current street addresses, landline and cellular telephone numbers, and email addresses of all agricultural employees, including employees hired through a labor contractor, and of persons working for the employer as part of a family or other group for which the name of only one group member appears on the payroll.
(f) Effect of failure to comply with subdivisions (a) through (e):
(1) If an employer fails to comply with the requirements of subdivisions (a) through (e), and such failure frustrates the determination of particular facts, the regional director may invoke any or all of the following presumptions:
(A) That there is adequate employee support for the petition and for any intervention.
(B) That the petition is timely filed with respect to the employer's peak of season.
(C) That all persons who appear to vote, who are not challenged by the board agent or by a party other than the employer, and who provide adequate identification, are eligible voters. This presumption shall be invoked only when no employee list is submitted or when the regional director determines that the list as submitted is substantially inadequate for the purpose of determining employee eligibility. Invocation of this presumption does not prevent the employer's observers from recommending challenges to the Board agent on the grounds listed in section 20355.
(2) The determination of whether or not an employee list complies with the requirements of these regulations or is timely filed will be made by the regional director. If the regional director determines that a list is not complete or accurate, the regional director shall state the reasons therefor in writing and serve a copy of such written reasons on all parties.
(3) The failure of an employer to provide the information required by subdivision (a) within the time period specified shall not be excused by the employer's desire to consult with its attorney or by the failure of the person served pursuant to section 20300(e) to inform it of the service of a petition for certification on it.
(4) The failure of an employer to provide a complete or accurate employee list shall not be excused by the fact that the employer based its information on information supplied to it by a labor contractor.
1. Amendment of subsection (e)(1)(C) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11.)
2. Amendment of subsection (a)(6) filed 9-20-91; operative 10-21-91 (Register 92, No. 4).
3. Change without regulatory effect amending subsection (e)(2) filed 11-4-91 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 12).
4. Editorial correction of Reference cite (Register 96, No. 52).
5. Amendment of subsections (a)(2) and (a)(3) filed 7-8-99; operative 8-7-99 (Register 99, No. 28).
6. Amendment of subsection (a)(6) and repealer of subsections (a)(6)(A)-(B) filed 11-1-99; operative 12-1-99 (Register 99, No. 45).
7. Amendment of section and NOTE filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).
Note: Authority cited: Section 1144, Labor Code. Reference: Sections 1156.3, 1156.4 and 1157.3, Labor Code.
