PERB: Mediation Not Required Before Factfinding Under MMBA

County of Santa Clara (2020) PERB Dec. No. A483-M (Issued on 12/17/20)

In this case a union declared impasse in its negotiations with a county and requested factfinding under MMBA section 3505.4. The county’s local rules, however, require that the parties engage in mediation when there is an impasse in negotiations. Since the union did not request mediation, the county challenged the union’s request to PERB for factfinding. The Office of the General Counsel approved the union’s factfinding request and the Board affirmed.

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Attorneys’ Fees Awarded as Make Whole Remedy for Refusal to Arbitrate

Sacramento City Unified School District (2020) PERB Dec. No. 2749-E (Issued on 11/02/20)

The district and union in this case were parties to a collective bargaining agreement (CBA) containing a grievance procedure culminating in binding arbitration. The union sought to arbitrate a grievance (the details of which are not relevant to my discussion of this case). The district refused. The union filed a motion to compel arbitration in superior court and prevailed.

The union then filed an unfair practice charge with PERB alleging that the district’s refusal to arbitrate the grievance constituted an unlawful unilateral change; namely, a repudiation of the parties’ CBA grievance provision. The ALJ agreed and PERB affirmed. Notably, PERB affirmed the ALJ’s order that to make the union whole, the district was required to reimburse the union for its attorneys’ fees incurred in bringing the motion to compel arbitration.

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Deferral to Arbitration is Immediately Appealable

County of Santa Clara (2020) PERB Dec. No. Ad-482-M (Issued on 11/2/20)

The statutory language of EERA, the Dills Act, and JCEERA provides for the deferral of an unfair practice charge to arbitration where certain conditions are met. For example, EERA provides that PERB may not “[i]ssue a complaint against conduct also prohibited by the provisions of the agreement between the parties until the grievance machinery of the agreement, if it exists and covers the matter at issue, has been exhausted, either by settlement or binding arbitration.” (Gov. Code, §3541.5(a)(2).) An unfair practice charge that is deferred to arbitration under one of these acts is dismissed. (PERB Reg. 32620(b)(5).) That dismissal is then appealable to the Board. (PERB Reg. 32635.)

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New Filing Regulations Effective February 15, 2021

The Office of Administrative Law has approved PERB’s proposed regulations that will allow for the electronic filing and service of case-related documents and to allow for the electronic signature of union authorization cards. The new regulations become effective on February 15, 2021, and the text of the regulations can be found here.

According to PERB, notable changes in the regulations include:

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Member Krantz Reappointed to PERB; Member Banks Designated Chair

On January 22, 2021, Governor Newsom reappointed Member Ari Krantz to the Board of PERB. Member Krantz’ term had expired at the end of 2020. Presumably, Member Krantz was reappointed for a full 5-year term. Member Krantz’ reappointment will require Senate confirmation.

In addition, Governor Newsom also designated Member Eric Banks as the new Chair of PERB. PERB has not had an official Chair since Mark Gregersen left the Board in June 2018. The Chair position is designated by the Governor and does not require Senate Confirmation.

[Note: A prior version of this post incorrectly stated that PERB has not had an official Chair since Anita Martinez. The post has been corrected to note that after Anita Martinez served as Chair, Mark Gregersen served as Chair of PERB until June 2018.]

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