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)

Comments:

1. 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.

1. whether expedited processing is necessary to preserve the Board’s ability to issue an effective remedy;
2. whether the case involves alleged conduct that would irreparably harm the exercise of employee or employee organization rights;
3. whether the case involves an important and unresolved question of law, the prompt resolution of which would significantly benefit one or more segments of the public sector labor-management community;
4. whether the case arises from or relates to a representation or recognition dispute;
5. whether a court injunction is in place pending resolution of the case;
6. the number of employees affected, the size of any potential monetary remedy, or the nature, scope, or importance of any potential non-monetary remedy; and
7. any compelling circumstances showing that expedited processing is warranted.

While certainly better than the existing regulation, the proposed criteria are still broad enough that the majority of PERB cases arguably would qualify. As I’ve told PERB several times in response to requests to expedite cases, if you try to expedite every case you end up expediting nothing. The proposed amended regulation also provides that when a case is expedited, no extension of time to file a pleading or continuance of a formal hearing will be granted unless it is by mutual agreement of the parties or the requesting party demonstrates “extraordinary circumstances.” What are “extraordinary circumstances”? I’m not sure. But I think it’s safe to assume that unless an extension or continuance is by mutual agreement don’t expect to get one in an expedited case.

SB 270 introduces an entirely new framework for enforcing Government Code section 3558. Here is how it works:

1. Prior to filing an unfair practice charge with PERB, the union must give the employer notice that the employer has provided an inaccurate or incomplete list of employees;
2. The employer then has 20 calendar days to cure the alleged violation by providing the union an accurate and complete list. An employer may avail itself of this right to cure only 3 times in any 12-month period;
3. If the employer does not cure the violation within 20 calendar days, the union may file an unfair practice charge with PERB;
4. In addition to normal remedies, SB 270 authorizes PERB to award a civil penalty not to exceed $10,000. The exact amount of the penalty is determined by PERB based on the employer’s annual budget, severity of the violation, and any prior history of violations by the employer. The penalty is paid to the State General Fund.
5. In addition, PERB shall award a prevailing party attorneys’ fees and costs that accrue from the inception of proceedings before the board’s Division of Administrative Law until final disposition of the unfair practice charge.

These changes become operative on July 1, 2022, not January 1st.

Comments:

1. This is the first statute under PERB’s jurisdiction that provides for a civil penalty and the first one that provides for an award of attorneys’ fees and costs to a prevailing party. I hope this isn’t a preview of things to come. But employers will need to be very careful in litigating these cases to avoid having to pay a penalty or fees/costs to the union.
2. With respect to the civil penalty, there is much that is unknown. For example, if a union represents multiple bargaining units, can the union file a separate unfair practice charge for each bargaining unit, and thereby potentially get a $10,000 penalty for each unit? If the employer fails to provide home addresses and personal email addresses, can a union file an unfair practice charge for the home addresses and another one for the personal email addresses? Finally, if the employer fails to provide home addresses for 100 employees, is that a single violation eligible for up to a $10,000 penalty or 100 separate violations?
3. With respect to the award of attorneys’ fees and costs, at least the Legislature made it available to the prevailing party. As initially introduced, SB 270 would have only award attorneys’ fees and costs to a prevailing charging party (i.e. union). Further, practitioners should take note that the award of attorneys’ fees and costs is mandatory. However, it only applies to proceedings before PERB’s ALJ division. Thus, if you’re an employer and a Complaint is issued by the Office of General Counsel, and there is a high likelihood you are going to lose, you should definitely try to settle the case to avoid having to go to a hearing and pay the union’s attorneys’ fees.
4. Finally, the obvious way to avoid all of this is to ensure that you are providing accurate and complete lists to the union. It will also be critical to cure any violations within the 20-day safe harbor period. Fortunately, these changes do not become operative until July 1, 2022.

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.