Earlier this week I wrote about the staff report to the Board on implementing AB 119. Now that we have the staff report, here is Part III of my FAQ’s related to AB 119. This part focuses on PERB’s role. (Click here for Part I and here for Part II.)
How is an arbitrator selected for compulsory interest arbitration? Upon request, the State Mediation and Conciliation Service (SMCS)—which is now part of PERB—will provide a list of arbitrators. The staff report recommends that PERB utilize existing SMCS procedures for requesting and processing requests for lists of arbitrators. The statute requires the list to be provided within seven (7) days, but PERB’s practice is to provide the list almost immediately. But remember that PERB requires a payment of $50 for the list. Once the list is provided, the parties have seven days to make a mutual selection from the list of arbitrators or go through a process where each party takes a turn striking a name until there is only one remaining. (Gov. Code §3557(b)(2).)
Where will PERB get the names of proposed arbitrators? How many arbitrators will be on the list? The bill doesn’t specify these details other than that the list will contain seven names. The staff report recommends utilizing existing procedures. Presumably, PERB will utilize its list of factfinders to provide arbitrators for AB 119.
Will I get information about the proposed arbitrators? Under its current procedures, PERB provides a one-page bio for each arbitrator on a proposed list. Based on the staff report I’m assuming that practice will continue for AB 119. Here’s an important practice tip: PERB does not guarantee that any of the arbitrators on the proposed list has the availability to complete an arbitration within a specific time period. Just like the factfinding statute, AB 119 provides that arbitration must be completed within 30 days. But that hardly ever occurs in factfinding. Typically, the parties mutually agree to waive the 30-day deadline. If it’s important to you to finish arbitration in 30 days, you need to check to ensure that the arbitrators on the list have the availability to do so.
Can I have PERB conduct the arbitration? Only if you are a city or county. AB 119 provides that within five (5) days of the request for arbitration, a city or county can object to an arbitrator from SMCS and ask that PERB appoint an administrative law judge (ALJ) or other PERB employee to act as an arbitrator. However, if a city or county elects this option it will be responsible for the full cost of the PERB arbitrator, instead of splitting the cost with the union.
What will PERB charge for its own personnel? The staff report recommends adopting the rate schedule utilized by the Department of General Services (DGS) for the Office of Administrative Hearings (OAH). Under that schedule, the current rate for an administrative law judge is $270 per hour. One interesting question is whether PERB would charge that same rate even if a regional attorney of other non-ALJ was appointed to hear a case. I note that under the DGS rate schedule, a “hearing officer” outside of the OAH is $170 per hour. Also unknown is whether PERB personnel will be willing to travel to conduct an arbitration.
Can a city or county take a “peek” at the SMCS list and then decide to object and ask for a PERB arbitrator? AB 119 provides that a city or county may object to using an arbitrator from SMCS within 5 days of a request to arbitrate and request that PERB appoint one of its own employees as the arbitrator. If, as anticipated, PERB provides the list of arbitrators within a day of receiving a request, a city or county could theoretically review that list and still have time to object and ask for a PERB arbitrator. I can’t say that this is the intent of AB 119, but the timing might allow it.
Who will PERB assign if a PERB employee is requested? The staff report says that PERB may appoint an ALJ or other employee. While PERB ALJs are the logical choice, don’t forget that PERB’s regional attorneys often act as hearing officers and could also be assigned.
If a PERB employee acts as the arbitrator, will the resulting decision be precedential? Presumably not because it is not a decision of the Board itself. (See PERB Reg. 32320.)
Will a decision issued by a PERB employee be subject to appeal/exceptions to the Board? AB 119 provides that the decision of the arbitrator will be “final and binding.” Such a decision does not fall under PERB’s traditional procedures for appeals or exceptions, so unless there is a change in law or regulations, I don’t believe an arbitration decision can be appealed (or exceptions filed) directly to the Board. The staff report does not address this issue.
Will the arbitrator’s decision be subject to “repugnancy” review by PERB? This is an interesting question. When PERB defers an unfair practice charge to final and binding arbitration, it reserves the right to review the resulting decision under a “repugnancy” standard. In such cases PERB has jurisdiction because it is charged with adjudicating unfair practice charges. But would PERB have jurisdiction to review an otherwise “final and binding” decision under AB 119? For example, suppose the arbitrator holds that the orientation requirements do not apply to part-time and temporary workers, in clear contradiction to AB 119. Would PERB step in to correct the decision? And if PERB will not, or cannot not, is there any other recourse? It’s unclear.
Will the arbitrator’s decision be subject to being “vacated” under CCP 1285 et seq.? Unclear. The California Arbitration Act (CCP section 1280 et. seq.) provides a mechanism to “vacate” arbitration decisions, albeit on very limited grounds. However, those arbitration decisions are typically ones where the parties have agreed to arbitration through a contract. Does the act apply when the arbitration is compelled by statute, as opposed to agreement by the parties? It’s unclear.
How will the arbitration decision be enforced? This is another interesting question. Under the California Arbitration Act, there is a mechanism to “confirm” an arbitration award which basically turns it into a court judgment. That court judgment can then be enforced just like any other court judgment. Can an award under AB 119 be confirmed under CCP 1280 et. seq. like any other arbitration award? It’s unclear.