Both the Meyers-Milias-Brown Act (MMBA) and PERB regulations recognize the right of an employee organization to request factfinding following a declaration of impasse. That right, however, is not absolute: Government Code section 3505.4(a) and PERB regulation 32802(a)(1) mandate that such a request be made “not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator.” In Lassen County In-Home Supportive Services Public Authority (2015), PERB held that a union forfeits its right to request factfinding when it fails to request factfinding within that statutory window period.
In Lassen the parties were negotiating an initial Memorandum of Understanding (MOU). On February 2nd (all dates referenced are in 2015), the Union’s negotiator notified the Authority that the Union rejected the Authority’s last, best, and final offer, and requested that the parties mediate their dispute. The Authority agreed, and requested that the State Mediation and Conciliation Service appoint a mediator. On February 5th, a mediator notified the parties of his appointment and inquired about available dates. By the following day, the parties and the mediator had confirmed the mediation for March 26th.
On March 13th, however, the mediator informed the parties that he could not conduct the mediation on the scheduled date. He advised them that he would attempt to find a replacement for the scheduled date, but also requested that they provide him their availability on his other available dates in case he could not find a replacement mediator for March 26th. On March 15th, the mediator notified the parties that he was unable to find a replacement and, again asked them to select alternate available dates for him to conduct the mediation. The mediation was confirmed for May 19th.
On April 17th, the Union filed its factfinding request with PERB. The Authority opposed this request on the grounds that it was untimely. Specifically, the Authority argued that since the mediator was appointed on February 5th, the Union had to file its factfinding request during the 15-day window period that was 30 to 45 days after the mediator’s appointment.
The Office of the General Counsel (OGC) granted the factfinding request, and determined that when the mediator informed the parties on March 13th that he could not conduct the mediation, as originally scheduled, the mediator’s appointment date was rescinded. In following that determination, the OGC ruled that the mediator’s March 15th request of the parties for potential alternative dates marked a new appointment date that essentially restarted the clock for submitting a factfinding request. Therefore, the OGC ruled that the factfinding request was timely, and ordered the parties to select their respective factfinding panel member.
The Authority appealed the OGC’s determination, and PERB reversed. PERB ruled that since the mediator never indicated to the parties that he would not serve as the mediator, but instead conveyed his intent to function as the mediator by requesting new dates, the original February 5th mediator appointment date remained unchanged. Accordingly, the Union’s April 17th factfinding request was untimely, as it was made outside of the statutory parameters. In so holding, PERB reiterated that once a mediator is appointed, an employee organization must file its factfinding request within 30 to 45 days after the mediator’s appointment. So long as the mediator’s identity does not change, the statutory window period applies, even if the parties encounter some difficulties or delays in the mediation scheduling process.
The lesson from this decision is that once a mediator is appointed, public employers should monitor the calendar closely. PERB will not toll the statutory deadline for mediation scheduling problems or an employer’s failure to respond to the mediation request. Thus, depending on the nature of negotiations and an evaluation of what may or may not be gained by utilizing the factfinding process, employers may be able to avoid fact finding if the union’s request for fact finding is untimely.