Late Sunday evening, Governor Jerry Brown utilized his power under the Public Transportation Labor Disputes Act (Gov. Code, §3610 et. seq.) to stop the BART strike scheduled for Monday morning. The Governor did this by appointing a three member investigation board pursuant to Government Code section 3612. The board must issue a written report to the Governor within seven days. During that seven-day period, any strike is prohibited.
Under Government Code section 3612, the report of the investigation board “shall include a statement of the facts with respect to the dispute, including the respective positions of the parties, but shall not contain recommendations.” Additionally, the report must be made available to the public. The three individuals appointed to the investigation board are: Jacob Appelsmith, Chairman; Robert Balgenorth; and Micki Callahan.
- The use of a three-member investigation or “factfinding” board is common in labor relations. Often times the union and employer will each get to appoint one “partisan” member while a third “neutral” member is selected some other way. Although there is no such requirement under the Public Transportation Labor Disputes Act, it appears that the Governor had this process in mind. I think Robert Balgenorth can fairly be characterized as the “union” member while Micki Callahan is the “employer” member. The Chairman, Jacob Appelsmith, is therefore the “neutral” member.
- As one might expect, the union member and the employer member on any three-member panel generally cancel each other out. Therefore the true power lies with the remaining neutral member. Here, that person is Jacob Appelsmith. I would expect that Mr. Appelsmith is going to be lobbied hard by both sides in the coming week. However, given Mr. Appelsmith’s close connection to the Governor, I suspect he may also lobby Mr. Balgenorth and Ms. Callahan to try to reach as much consensus as possible.
- Under EERA, HEERA, and MMBA, the factfinding panel is expressly authorized to issue “findings and recommendations.” I’ve always thought the term “factfinding” is somewhat of a misnomer since the real purpose of these panels is to issue recommendations. Here, Government Code section 3612 expressly states that the investigation board shall not issue recommendations. However, we all know that “facts” can easily be arranged in a way to lead the reader to a particular conclusion. So even though there will be no “recommendations” per se, the findings of the board can still have a significant impact on the parties.
- One more interesting note, when she was with the State Mediation and Conciliation Service, Micki Callahan helped to edit the “California Public Transit Labor Relations Guide.” (Click here.) The guide is a great primer on the labor relations statutes governing public transit in California.