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Union Missed Deadline To Request Factfinding

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Feb 02, 2024

Operating Engineers Local Union No. 3 (OE3) and the City of Stockton were bargaining over a successor MOU.  On July 7, the City and OE3 jointly asked the Public Employment Relations Board’s (PERB) State Mediation and Conciliation Service (SMCS) to assign a mediator, but neither party declared an impasse at that time.  On July 31, the City sent OE3 a written declaration of impasse pursuant to the City’s local rules.

On September 14—exactly 45 days after the City’s July 31 written declaration of impasse—OE3 initiated a factfinding request.  On September 19, the City opposed the request, claiming that OE3 failed to file it in a timely manner.  On September 20, PERB’s Office of the General Counsel issued an administrative determination approving OE3’s request.  The City appealed.

The Meyers-Milias-Brown Act (MMBA) provides two alternate deadlines for a union to request factfinding.  The employee organization may request a factfinding panel not sooner than 30 days, but not more than 45 days, following the selection of a mediator pursuant to the parties’ mediation process.  If not submitted to mediation, an employee organization may request a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of impasse.

OE3 argued that it timely filed its request between 30- and 45-days following appointment or selection of a mediator. OE3 argued that: a) appointment of a pre-impasse mediator does not trigger a right to request factfinding; b) the PERB therefore must disregard the July 7 appointment date, which predated the parties’ impasse; and c) the PERB should find that the mediator was constructively reappointed or reselected when the City declared impasse on July 31.

PERB held that there was not a sufficient basis for finding that July 31 qualified as a constructive reappointment date and rejected OE3’s interpretation.  PERB adopted a more straightforward interpretation: the City’s July 31 impasse declaration created a 30-day filing window lasting through August 30.  Because OE3 did not file its factfinding request within that window, OE3 waived its right to do so.

City of Stockton v. OE, PERB Order Ad-507-M (2023).

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