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Under the new law, either the union or employer may notify the ALRB, via declaration, that the parties are unable to reach a collective bargaining agreement, and request mediation. If the union was certified by the Board as the employees’ representative before January 1, 2003, the parties have failed to reach agreement for at least one year after the union’s initial request for bargaining, the employer has committed an unfair labor practice, and the parties have not previously had a contract, the declaration can be filed any time 90 days after a renewed request to bargain. If the union is certified after January 1, 2003, then the declaration can be filed 180 days after an initial request for bargaining. Once the declaration is filed, the ALRB will immediately order the parties to submit to mandatory mediation. The costs of this mediation will be split between the parties.

The language of AB 2596 reads that “a party may not file a total of more than 75 declarations” with the ALRB. The governor and the bill’s supporters, however, maintain that the mediation process is limited to a total of 75 cases in the first five years of the new law, but the express language of the bill undermines that interpretation and suggests that there could be many more.

The mandatory mediation process will begin with the ALRB requesting a list of nine mediators from the California State Mediation and Conciliation Service. The parties must select a mediator within seven days of receiving the list, either by agreeing on a mediator, or by striking names from the list in a process of elimination. If a party refuses to participate in the selection process, the other party may choose the mediator. Once chosen, the mediator must immediately schedule meetings at a time and location reasonably accessible to the parties.

The mediation process will last for 30 days, and may be extended an additional 30 days by the parties. If the parties are unable to reach a complete agreement during this period, the mediator will notify the ALRB that the mediation process is exhausted, and will file a report with the ALRB establishing the terms of a collective bargaining agreement, including resolving issues over which the parties could not agree. The mediator’s determinations must be supported by the record, and he or she must provide a basis for terms that resolve issues in dispute.

Either party may petition the ALRB to review the report, which the Board may do on the basis that a provision of the agreement is unrelated to wages, hours, or other terms and conditions of employment, or on the basis that a provision of the agreement is based on clearly erroneous findings of fact. These are narrow standards of review that provide a limited ability to challenge the terms imposed by the mediator. If the Board decides not to review the agreement, the mediator’s report becomes the final order of the Board and the contract is in place. If the Board accepts portions of the agreement for review, it will order that the other portions take immediate effect as a final order of the Board. If, on review, the Board determines that a provision is unrelated to wages, hours, or other conditions of employment, or determines that a provision is based on a clearly erroneous factual finding, it will order the parties to another 30 day mediation period, and the process will start over as to those provisions.

Either party may also seek review by the ALRB if the mediator’s decision was procured by corruption, fraud, or other undue means, if the mediator was corrupt, or if the rights of the party seeking review were substantially prejudiced by the mediator’s misconduct. In such a case, the ALRB will have the parties select a new mediator, and start over.

Either party may file a court action to enforce the Board’s final order within 60 days of the order’s effective date. Also, either party may seek review of the Board’s order in the court of appeal or the California Supreme Court within 30 days of the order’s effective date. On review, the court will only consider whether the Board acted within its jurisdiction and powers, whether it followed the procedures required by law, whether the decision was procured by fraud or was an abuse of discretion, or whether the final order violates rights under the United States or California Constitution.

The new law will expire on January 1, 2008, unless other legislation extends or deletes that expiration date.

Barsamian & Moody The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360, or his or her own attorney, for individual responses to questions or concerns regarding any given situation.