This guest post was authored by Bruce A. Barsook

Yesterday (December 8), the Public Employment Relations Board (PERB) adopted proposed emergency regulations to implement AB 646 (Chapter 680, Statutes of 2011), the recently enacted legislation requiring factfinding in bargaining disputes under the MMBA.  The emergency rulemaking package now will be submitted to the Office of Administrative Law (OAL) for its review and approval.

AB 646 imposes mandatory factfinding upon the request of an employee organization when a bargaining impasse is reached.

Prior to the December 8 meeting, PERB invited interested parties to submit proposed regulations and other commentary regarding the implementation of the statute.  LCW and other interested parties, including management and labor firms and organizations, submitted proposed regulatory language, as well as comments.  A copy of LCW’s proposed regulations and commentary is posted on the PERB website and here.

The proposed emergency regulations provide that if the parties mediate and such mediation does not resolve the negotiations impasse, a factfinding request may be filed not sooner than 30 days but not more than 45 days, following the appointment of the mediator.  Obtaining an outer time limit was an important goal for public sector management, as we argued that an unreasonable delay in the process would frustrate the purposes of the MMBA and be inconsistent with timely resolution of bargaining disputes.

An unresolved question in the new statute is whether an employee organization may demand factfinding (and thereby delay a unilateral imposition of terms and conditions of employment by the local agency) in the absence of the parties using mediation.  At the December 8 hearing there was some uncertainty as to how PERB (or the courts) would handle such a situation.  The issue may have to be resolved through litigation (or “clean-up” legislation).  Notwithstanding the uncertainty in the law, PERB adopted a proposed regulation related to this issue.  The proposed regulation provides that if the parties do not use mediation, the request for factfinding must occur within 30 days following the declaration of impasse.  Although those who believe the statute does not require factfinding in the absence of mediation will not be pleased with such a regulation, all parties will find some benefit from the addition of clarity as to whether there is a time period for submission of factfinding requests.

PERB has indicated that it intends to submit its proposed rules to OAL on December 19, 2011.  Once the proposed emergency rules are 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 will become effective. 

Further information can be obtained from the PERB website, and of course, we will keep you posted.  In the meantime, if you have any questions please contact one of our labor relations attorneys at any of our four offices.