Section 20365 - Post-Election Objections Procedure(a) Time for filing. Within five days after an election, any person may, pursuant to Labor Code section 1156.3(e), file with the Board a signed petition asserting that allegations made in the election petition filed pursuant to Labor Code section 1156.3(a) were incorrect, or asserting that the Board or regional director improperly determined the geographical scope of the bargaining unit, or objecting to the conduct of the election or conduct affecting the results of the election. Except as provided in subdivisions (a)(1), (a)(2) and (a)(3), the five-day period begins to run when the election ends. The election ends when the ballots have been counted and a final tally of ballots issues. (1) If challenged ballots are outcome-determinative or the ballots are impounded, the election ends when the polls close, and the five-day period for filing election objections begins to run at that time. Neither the existence of a determinative number of challenged ballots nor the impoundment of ballots shall extend the period for filing objections, and the subsequent issuance of a revised tally or delayed tally shall not reopen the period for filing objections.(2) The time for filing objections after a rerun election is governed by section 20372(c).(3) The time for filing objections after a run-off election is governed by section 20375(d).(b) An objections petition shall be filed electronically pursuant to section 20169 or, for an unrepresented party who has not consented to electronic filing, by personal service on the executive secretary, as agent of the Board, or by registered or certified mail postmarked within the five-day period. No extensions of time for filing objections shall be permitted, and no amendments to objections petitions shall be permitted for any reason after the five-day filing period has elapsed.(c) An objections petition filed with the Board shall consist of the following: the petition pursuant to Labor Code section 1156.3(e); a detailed statement of facts and law relied upon, as required by subdivision (c)(1), or declarations in support of the petition, as required by subdivision (c)(2); a declaration of service upon all other parties, including the regional director, as provided in section 20166, of the objections petition and any detailed statement of facts and law supporting declarations, and copies of the following: petition for certification, the notice and direction of election, and the tally of ballots. A party exercising the option provided by subdivision (c)(2)(D) to serve on other parties a detailed statement of facts in lieu of declarations shall file with the executive secretary the statement and a declaration of service of the statement upon all other parties, as provided in section 20166. (1) A party objecting to an election on the grounds that the Board or the regional director improperly determined the geographical scope of the bargaining unit, or that the allegations made in the petition filed pursuant to Labor Code section 1156.3(a) were incorrect, shall include in its petition a detailed statement of the facts and law relied upon.(2) A party objecting to an election on the grounds that the election was not conducted properly, or that misconduct occurred affecting the results of the election shall attach to the petition a declaration or declarations setting forth facts which, if uncontroverted or unexplained, would constitute sufficient grounds for the Board to refuse to certify the election. (A) If more than five declarations are submitted with a petition, each objection therein shall contain a reference, by number, to the declaration or declarations offered in support of that objection.(B) The facts stated in each declaration shall be within the personal knowledge of the declarant. The details of each occurrence and the manner in which it is alleged to have affected or could have affected the outcome of the election shall be set forth with particularity.(C) Allegations of misconduct shall include identification of the person or persons alleged to have engaged in the misconduct and their relationship to any of the parties, a statement of when and where the misconduct occurred; and a detailed description of the misconduct including, if speech is complained of, the contents of what was said.(D) Copies of the declarations and supporting documents or exhibits shall be served upon all other parties with the objections petition, provided that, at the option of the objecting party, a detailed statement of facts may be substituted for the declarations. This detailed statement of facts shall describe the contents of the declarations in sufficient detail to allow an opposing party to secure its own witnesses and otherwise prepare itself to counter the objections at an evidentiary hearing. An objecting party electing to serve a detailed statement of facts on other parties shall also file the statement with the executive secretary together with the declarations.(3) Documents and exhibits offered in support of the objections petition shall be identified and authenticated.(4) All declarations shall state the date and place of execution, and shall be signed and certified by the declarant to be true and under penalty of perjury, which certification shall be substantially in the following form: "I certify (declare) under penalty of perjury that the foregoing is true and correct."(5) No party may allege as grounds for setting aside an election its own conduct or the conduct of its agents.(d) Disposition of objections petitions. The Board shall dismiss any objections petition or any portion of such petition which does not satisfy the requirements of subdivisions (a), (b), and (c).(e) With respect to any portion of the petition not dismissed pursuant to subdivision (d), the Board may:(1) Direct any party to submit evidence through declarations or documents;(2) Order the inspection of documents by Board agents or by the parties;(3) Direct any party to submit an offer of proof;(4) Obtain declarations from Board agents or other persons;(5) Conduct investigatory conferences with the parties for the purpose of exploring and resolving factual or legal issues;(6) Dismiss any portion of the petition which, after investigation and on the basis of applicable precedent, is determined not to be a basis for setting the election aside;(7) Set aside the election if, after an investigation, it appears on the basis of applicable precedent it would be appropriate to do so, and there are no material factual issues in dispute.(f) Where the objections satisfy the requirements of subdivisions (a), (b), and (c) and there are material factual issues in dispute, the Board shall direct an investigatory hearing pursuant to section 20370. The hearing shall be strictly limited to the issues set forth in the notice of hearing. Hearings of more than one day's duration shall continue on the next business day and each day following until completed. Requests for continuance shall be granted only in extraordinary circumstances.(g) Prior to the Board certifying a labor organization as the exclusive bargaining representative as authorized by Labor Code section 1156.3 (f), or an investigative hearing examiner (IHE) recommending such action, the parties to the election shall be afforded the opportunity to submit written argument addressing whether certification is warranted under the standard set forth in Labor Code section 1156.3 (f).Cal. Code Regs. Tit. 8, § 20365
1. Amendment of subsection (c) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11).
2. Amendment filed 8-28-81; effective thirtieth day thereafter (Register 81, No. 35).
3. Editorial correction of subsection headings and numbers (Register 81, No. 46).
4. Change without regulatory effect amending subsections (c), (e)(7) and (f) filed 11-4-91 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 12).
5. Amendment of subsections (a), (a)(3)-(c), (d)-(e) and (e)(7), repealer of subsections (e)(8) and (f), subsection relettering, amendment of newly designated subsection (f), new subsection (g) and amendment of NOTE filed 5-2-2012; operative 5-2-2012 pursuant to Government Code section 11343.4 (Register 2012, No. 18).
6. Amendment filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35). Note: Authority cited: Section 1144, Labor Code. Reference: Section 1156.3, Labor Code.
1. Amendment of subsection (c) filed 3-14-78; effective thirtieth day thereafter (Register 78, No. 11).
2. Amendment filed 8-28-81; effective thirtieth day thereafter (Register 81, No. 35).
3. Editorial correction of subsection headings and numbers (Register 81, No. 46).
4. Change without regulatory effect amending subsections (c), (e)(7) and (f) filed 11-4-91 pursuant to section 100, title 1, California Code of Regulations (Register 92, No. 12).
5. Amendment of subsections (a), (a)(3)-(c), (d)-(e) and (e)(7), repealer of subsections (e)(8) and (f), subsection relettering, amendment of newly designated subsection (f), new subsection (g) and amendment of Note filed 5-2-2012; operative 5-2-2012 pursuant to Government Code section 11343.4(Register 2012, No. 18).
6. Amendment filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).