New PERB Regs Effective 1/1/22

Effective January 1, 2022, new PERB regulations are going into effect regarding: (1) the circumstances requiring Board members and employees to recuse themselves from proceedings; (2) the filing of exceptions to Proposed Decisions; (3) the use of subpoenas and motions in formal hearings; and (4) standards for obtaining continuances of a formal hearing. The text of the new regulations can be found here.

Here are some of the highlights of the new regulations:

  1. Subpoenas: The regulations now distinguish between a “testimonial subpoena” and a “records subpoena” and, for the first time, provide timelines for the service of subpoenas. There are also new timelines for filing a motion to revoke or limit a subpoena. Also of note, as an alternative to seeking Superior Court enforcement of a subpoena the new regulations now allow the ALJ to draw an “adverse inference” from a party’s failure to comply with a valid subpoena. (PERB Reg. 32150)
  2. Motions: The regulations now provide that any motions, including motions to dismiss and motions “styled as motions for summary judgment or for judgment on the pleadings,” must be filed no later than 45 days prior to the first day of hearing. (PERB Reg. 32190)
  3. Continuances of a Formal Hearing: Requests to continue a formal hearing filed fewer than 7 days prior to the hearing must now demonstrate “extraordinary circumstances.” Requests filed more than 7 days prior to the hearing must still demonstrate “good cause.” (PERB Reg. 32205)
  4. Exceptions to the Board: There is now a 14,000 word limit for the statement of exceptions to a proposed decision and for any response. (PERB Reg. 32300, 32310) For the first time, the regulations now expressly permit the filing of a reply brief within 10 days following the filing of the response to exceptions/cross-exceptions. The reply brief is limited to 5,000 words. (PERB Reg. 32312)

 

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Governor Signs AB 237: Mandates Continuation of Health Insurance for Striking Employees

On October 9, 2021, the Governor signed AB 237 which makes it an unfair practice for an employer to discontinue its health insurance premium contribution for a striking employee. AB 237 covers any “authorized strike” which is defined as a strike sanctioned by the relevant central labor council or the membership of the union representing the striking employees. So a wildcat strike is not covered. Where there is a sanctioned strike, AB 237 requires the employer to treat the striking employees as if they are working for purposes of any contributions towards health care or other medical coverage.

Comments:

  1. As I previously wrote, most public employers have rules that an employee needs to be on some form of paid status for a certain number of days in a month to receive the employer’s contribution towards any health insurance premiums. Thus, the timing and/or duration of a strike could cause an employee to forfeit the employer’s contribution in a given month. In my opinion, there is nothing wrong with an employer enforcing such an established rule. But AB 237 now prohibits such a rule for striking employees.
  2. Extended strikes are rare in the California public sector. Most strikes are 1 to 5 days and seldom do they affect an employee’s entitlement to health insurance. So this new law will have little practical effect. However, I still think it’s bad public policy because a strike, by definition, means that you are not working; therefore you should not expect to get pay and/or benefits for the time you are not working. I don’t think employers should intentionally cut off the health insurance of striking employees—that would be an unfair practice even under existing law—but I don’t think employees on strike should receive benefits that are intended for those at work.

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Board To Consider Changes To Expedited Case Processing Regulation

The Board will discuss proposed revisions to PERB regulation 32147, related to expedited cases, at its October 14, 2021, Board meeting. The text of the proposed draft is available here. PERB is inviting members of the public to comment during PERB’s regularly scheduled Board meeting of October 14, 2021, or in writing prior to or during the meeting. More details can be found on PERB’s website here.

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Governor Signs SB 270: Authorizes Monetary Penalties for Violation of PECC

On September 27, 2021, Governor Newsom signed SB 270 which provides for monetary penalties for certain violations of the Public Employee Communications Chapter (PECC) (Gov. Code §3555 et. seq.). Under the PECC, public employers must provide a union with the “name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address” of any new bargaining unit employee within 30 days of hire and of all bargaining unit employees every 120 days. (Gov. Code, §3558.) This section of the PECC was enacted in 2017 in anticipation of a Janus-type decision from the Supreme Court. Since its enactment, some unions have complained that employers are not providing all the information required by the PECC. As a result, several unions pushed for the enactment of SB 270.

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Proposed Initiative Would Bar Public Sector Collective Bargaining

Tim Draper, a venture capitalist, has submitted a ballot initiative that would prohibit collective bargaining for public sector employees in California. Specifically, the initiative would amend the California Constitution to provide that:

Notwithstanding any other provision of law, neither the State nor any of its political subdivisions shall contract with a public employee labor organization or otherwise collectively bargain with a public employee labor organization on employer-employee relation matters

According to a post from Draper, “Union bosses donate to politicians. Politicians set union salaries and benefits. This can lead to favoritism, or even corruption. Government unions are anathema to being a free country.” Instead of collective bargaining, Draper’s initiative would allow the State Personnel Board to set salaries and benefits for all state employees. The initiative is silent on what would happen to other public employees. Presumably, salaries and benefits for other public employees would be set by the public employers.

The initiative has been submitted to the Attorney General for preparation of the circulating title and summary. Once that is complete, signature gathering can begin. Draper will need to gather 997,139 signatures to get the initiative onto the November 2022 ballot.

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