Decision A507M – City of Stockton
SA-IM-246-M
Decision Date: December 21, 2023
Decision Type: Administrative Appeal
Description: Operating Engineers Local Union No. 3 (OE3) filed a request with PERB’s Office of the General Counsel (OGC) to submit its bargaining differences with the City of Stockton to a factfinding panel pursuant to MMBA section 3505.4. OGC granted the request, and the City appealed.
Disposition: The Board reversed, dismissing OE3’s factfinding request on the ground that OE3 did not file it within 30 days of the City’s written impasse declaration. OE3 claimed that the filing window was 30 to 45 days following the impasse declaration because PERB should find that the parties’ pre-impasse mediator was constructively reappointed as a post-impasse mediator on the date of the impasse declaration. The Board rejected that argument.
Perc Vol: 48
Perc Index: 97
Decision Headnotes
900.01000 – In General
PERB reviews an MMBA factfinding request only to determine whether the request was procedurally proper, meaning that (1) there was a written declaration of impasse from either party, or a mediator was appointed or selected to assist the parties in bridging their bargaining differences; and (2) the factfinding request was timely filed after one of these triggering events. (City of Compton (2023) PERB Order No. Ad-506-M, p. 4.) (p. 5.)
900.01000 – In General
MMBA section 3505.4, subdivision (a) and PERB’s implementing regulation (PERB Reg. 32802) provide two alternate deadlines for a union to request factfinding: (1) Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant either to the parties’ agreement to mediate or a mediation process required by a public agency’s local rules; or (2) If the dispute was not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse. (pp. 4-5.)
900.01000 – In General
“Appointment or selection of a mediator” in MMBA section 3505.4 and PERB Regulation 32802 means appointment or selection of a post-impasse mediator. Where an employer and a union agree to use a pre-impasse mediator to fulfill a post-impasse mediation process required pursuant to local rules or negotiation ground rules, the mediator selected pre-impasse takes on a legally significant new role after impasse, which amounts to a constructive reappointment or reselection. In contrast, where mediation is purely voluntary, PERB will not find constructive reappointment when a mediator chosen pre-impasse meets with the parties post-impasse. In that circumstance, the window for requesting factfinding is the 30 days after a written declaration of impasse. (pp. 6-7.)
900.04000 – During Impasse
MMBA section 3505.4, subdivision (a) and PERB’s implementing regulation (PERB Reg. 32802) provide two alternate deadlines for a union to request factfinding: (1) Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant either to the parties’ agreement to mediate or a mediation process required by a public agency’s local rules; or (2) If the dispute was not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse. (pp. 4-5.)
900.07000 – Mediation
“Appointment or selection of a mediator” in MMBA section 3505.4 and PERB Regulation 32802 means appointment or selection of a post-impasse mediator. Where an employer and a union agree to use a pre-impasse mediator to fulfill a post-impasse mediation process required pursuant to local rules or negotiation ground rules, the mediator selected pre-impasse takes on a legally significant new role after impasse, which amounts to a constructive reappointment or reselection. In contrast, where mediation is purely voluntary, PERB will not find constructive reappointment when a mediator chosen pre-impasse meets with the parties post-impasse. In that circumstance, the window for requesting factfinding is the 30 days after a written declaration of impasse. (pp. 6-7.)