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PERB Adopts Emergency Regulations on Mandatory Factfinding

December 9, 2011
The Public Employment Relations Board (PERB) adopted emergency regulations at its Dec. 8 hearing to implement AB 646 (Chapter 680, Statutes of 2011), which will take effect Jan. 1, 2012. The emergency rulemaking package will now move to the Office of Administrative Law (OAL) for review and approval.

AB 646 authored by Assembly Member Toni Atkins (D-San Diego) imposes mandatory factfinding only at the request of an employee organization when an impasse is reached and requires that the parties split the costs of the factfinding panel. The League, as well as several other public agency associations, opposed this bill because it intrudes on a local agency's ability to determine its own impasse rules, a long standing provision of the MMBA, and will significantly increase costs for local agencies.

Prior to the Dec. 8 hearing, PERB staff drafted proposed regulations and asked that comment letters be submitted in response to the proposed emergency regulations. The League, along with the California State Association of Counties and the California Special Districts Association, submitted a comment letter on Nov. 29, 2011.

Les Chisholm, division chief for PERB, presented comments to PERB and expressed that the emergency regulations were necessary because the legislation imposes new duties on PERB that PERB is incapable of fulfilling without new regulations.

PERB staff took into consideration all the comments they received and presented the final draft to PERB at the hearing. The final staff draft was revised several times, and the final version took into account the request by many management stakeholders that an outer time limit be established by when an employee organization must request factfinding. The League argued that a timeframe like this would ensure that the factfinding process would not be unduly delayed and therefore risk an untimely resolution of negotiations.

The proposed regulations provide that if the parties opt to mediate that a factfinding request can be filed not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator. In cases where a dispute is not submitted to a mediator, the request for fact-finding must occur within 30 days following the date that either party provided the other with written notice of declaration of impasse.

One outstanding question that PERB rightfully did not attempt to resolve with the emergency regulations was whether AB 646 requires that mediation occur as a precondition to an employee organization's ability to request factfinding. Further, if an agency does not provide, as part of its local rules, the option to mediate once impasse is reached the question remains about whether the agency must agree to factfinding if requested by an employee organization. Assembly Member Atkins submitted a letter to PERB prior to the hearing indicating that the intent of the bill was to grant an employee organization the ability to request factfinding regardless of whether an agency provides the option to mediate. This question may likely to be resolved through litigation.

Next Steps

Once the emergency rulemaking package is filed with OAL there will be a five day comment period. If OAL accepts the emergency rulemaking package it will be filed with the Secretary of State at which time the regulations become effective unless another date is requested by PERB. The emergency regulations will remain in place for 180 days once effective. PERB has the option for two 90-day extensions.

Visit the PERB website for more information.

For questions please email Natasha Karl.

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