New Regs: Initial MMBA Factfinding Determination Subject To Appeal

On August 22, 2013, the Office of Administrative Law approved PERB’s proposed regulations regarding: 1) State Mediation and Conciliation Service conducted representation and agency shop elections; and 2) MMBA factfinding sufficiency determination appeals. These new regulations take effect on October 1, 2013.

The most significant change is that a Board agent’s decision whether to accept a request for factfinding is now appealable to the Board. (Click here for new reg.) Previously, PERB Regulation 32380(d) provided that such determinations are not appealable. The new regulations delete that language. The new regulations also allow a party to request that an appeal of a factfinding determination be expedited. (PERB Reg. 32147.)

This regulatory change will matter the most in situations where a Board agent has denied a request for factfinding by the union. Previously, such a determination was not appealable and therefore the employer could proceed to the next step—typically, imposing a last, best, final offer (LBFO)—without worrying about factfinding. Now, however, because a denial of a request for factfinding is appealable, an employer facing such a situation will have a difficult choice to make. The employer can take the chance that the factfinding decision will be affirmed and proceed to imposing a LBFO. However, if the Board later holds that the factfinding request was sufficient, the employer risks having the LBFO rescinded by PERB.

In some situations the employer might find the possibility of having a LBFO rescinded a year or two later (which is how long the PERB process could take…) too risky. In this case, the employer might be forced to go through the factfinding process even though a Board agent has ruled against the factfinding request. Having to go through factfinding will add another 2 to 4 months to the process, but at least that will eliminate the risk of an adverse decision farther down the road.