Lassen County In-Home Supportive Services Public Authority (PERB A426M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LASSEN COUNTY IN-HOME SUPPORTIVE
SERVICES PUBLIC AUTHORITY,
Employer,
and
CALIFORNIA UNITED HOMECARE
WORKERS,
Exclusive Representative.
Case No. SA-IM-153-M
Administrative Appeal
PERB Order No. Ad-426-M
June 25, 2015
Appearances: Robert
M.
Burns, County Counsel, for Lassen County In-Home Supportive
Services Public Authority; Weinberg, Roger & Rosenfeld by Robert Szykowny, Attorney, for
California United Homecare Workers.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Lassen County In-Home Supportive Services Public
Authority (Authority) from an administrative determination by the PERB Office
of
the General
Counsel that the factfinding request filed with PERB on April 17, 2015,1 by the California
United Home Care Workers (Union) under the Meyers-Milias-Brown Act (MMBA)2 was
timely. The parties were ordered to proceed with selection
of
the factfinding panel, and both
parties have complied with that order. Factfinding is currently scheduled for July. The
Authority also requests that PERB stay all activity on this case until it can issue a decision on
the merits
of
the appeal.
1 Unless otherwise noted, all dates refer to 2015.
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

For the reasons described below, we hereby grant the appeal and reverse the Office
of
the General Counsel's administrative determination finding that the Union timely requested
factfinding. The Union's request is therefore denied, and any factfinding dates currently
scheduled are hereby vacated.
FACTUAL SUMMARY
The parties were attempting to negotiate an initial memorandum
of
understanding
(MOU). On February 2, the Union's negotiator, Will Hirst (Hirst), notified his counterpart,
Rick Haeg (Haeg), by e-mail that the Authority's last, best and final offer was rejected and
requested that the parties proceed to mediation.
By mutual agreement, Haeg contacted the State Mediation and Conciliation Service
(SMCS) on or about February 4. On February 5, Mediator Seymour Kramer (Kramer) notified
the parties that he had been assigned to the mediation and solicited available dates from them.
By February 6, the parties and Kramer had agreed that mediation would occur on March 26.
On March 13, Kramer notified the parties that he would not be able to participate in the
mediation scheduled for March 26. He stated that he would attempt to find another mediator to
meet with the parties at the appointed time, but that finding a replacement for the scheduled
date might not be possible due to staffing issues. Kramer also requested that the parties
circulate available dates between April
13
and May 15 in case he was not able to find a
replacement.
Two days later, on March 15, Kramer e-mailed the parties that he was unable to find a
replacement for March 26, and renewed his request that the parties send him a new set
of
available dates between April 13 and May 15, "so [he] can get this Mediation back on
calendar." Mediation was re-scheduled for May 19.3
3 The record does not indicate when this date was agreed to.
2

On April 17, the Union filed a request for factfinding with PERB, asserting that the
parties have been unable to reach agreement on their initial MOU. The Authority opposed the
request as untimely. According to the Authority, the mediator was appointed on February 5,
and under both MMBA section 3505.4(a) and PERB Regulation 32802,4 the request for
factfinding should have been filed between March 5 and March 20.
ADMINISTRATIVE DETERMINATION
Both MMBA section 3505.4(a) and PERB Regulation 32802(a)(l) require that a
request for factfinding by an exclusive representative be filed "not sooner than 30 days, but not
more than 45 days, following the appointment or selection
of
a mediator
....
"
The Office ,of the General Counsel noted that this is a matter
of
first impression, as
PERB has not provided guidance on the question
of
whether a mediator's appointment date is
re-set under the MMBA when he or she is unable to keep a mutually agreed to mediation date.
The Office
of
the General Counsel determined that when Kramer informed the parties
on March
13
that he would not be able to participate in the March 26 mediation, "the initial
appointment date was effectively rescinded." According to the Office
of
the General Counsel,
when Kramer sent the March
15
e-mail informing the parties he could not find a substitute and
would have to conduct the mediation himself, but at a later date, a "new appointment date
occurred." Thus, in light
of
the new March
15
appointment date, the Union's April 17 request
was timely, as it fell within the 15-day window prescribed in MMBA section 3505.4(a). With
the statutory requirements for factfinding met, the parties were ordered to select their
factfinding panel member.
4 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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APPEAL
On appeal, the Authority disputes the Office
of
the General Counsel's determination
that Kramer's March
13
communication effectively rescinded his appointment as mediator, and
that he was re-appointed on March 15, when he informed the parties that a new mediation date
would have to be chosen. According to the Authority, although Kramer discovered a conflict
in his schedule after the parties agreed to the March 26 mediation date, he still intended to
remain as mediator "as long as he was soliciting agreeable dates to do so." (Appeal, p. 3.)
UNION'S RESPONSE
The Union responded that impasse resolution procedures are intended to give the
parties every opportunity to reach a settlement
of
their negotiations, and the Authority's
position, which amounts to a "mere technicality" (Response to Appeal, p. 2), defeats the
purpose
of
the statute. The language in MMBA section 3505.4(a) refers to the appointment
of
"a
mediator." This suggests, according to the Union, that a specific mediator must be in place
in order to trigger the factfinding request timeline that runs from the "appointment or
selection"
of
a mediator. Thus, the Union argues that when Kramer informed the parties on
March
13
that he could not mediate on March 26, he "effectively rescinded his initial
appointment" (Response to Appeal, p. 3), and the window for requesting factfinding should be
re-set as
of
March
15
when Kramer solicited a second round
of
mediation dates.
The Union also opposes the Authority's request for stay, arguing that the request fails
to articulate any justification for the stay, especially in light of the fact that a factfinding panel
has already been selected and July 7 has been set for the hearing.5
5 The Authority filed a reply to the Union's response. Our regulations governing
administrative appeals to the Board itself (PERB Reg. 32350) make no provision for a reply to
a response. Without foreclosing our discretion in an appropriate future case to request and
consider supplemental briefing, we decline to consider the Authority's reply to the Union's
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response brief. (See e.g., County
of
Santa Clara (2012) PERB Decision No. 2267-M, p. 2,
fn. 3.)
DISCUSSION
Both MMBA section 3505.4(a) and PERB Regulation 32802 use clear, unambiguous
language to prescribe the window period within which an exclusive representative may request
factfinding. 	The triggering event in both is the "appointment or selection
of
a mediator," if, as
in this case, the parties submitted their dispute to mediation.
The Board held in Santa Clara Valley Water District (2013) PERB Decision
No. 2349-M, in relevant part:
When interpreting a statute, "we begin with its plain language,
affording the words their ordinary and usual meaning" and
"giv[ing] meaning to every word
of
the statute,
if
possible,
[to] avoid a construction that makes any word surplusage"
[citations omitted] or that "ascribes to the Legislature
...
the
commission
of
a meaningless act." [Citations omitted.] Only
where the plain meaning
of
the statute is unclear may we turn to
other sources to discern legislative intent.
...
Additionally, because "statutes should be interpreted to promote,
rather than defeat, the legislative purpose and policy" underlying
the statutory scheme, "the legislative intent underlying a statutory
scheme is
of
primary importance." [Citation omitted.] We may
therefore consider the impact
of
an interpretation on public policy
"for where uncertainty exists[,] consideration should be given to
the consequences that will flow from a particular interpretation."
[Citation omitted.] Although an interpretation consistent with the
"plain meaning"
of
the statutory text is preferred, a literal
interpretation or application
of
a statute which will nullify the
legislative intent or lead to absurd or undesirable consequences
constitutes an improper construction. [Citations omitted.]
As PERB noted in City
of
Redondo Beach (2014) PERB Order No. Ad-409-M, pp. 6-7
(Redondo Beach): "By including a definite time ~imit on the ability
of
employee organizations
to request factfinding, presumably the Legislature intended to ensure that the factfinding
process occur in a timely manner. The responsibility to request factfinding in a timely manner
is therefore the sole responsibility of the employee organization." The Board rejected the
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union's argument that it should be relieved
of
the statutory timelines because the employer had
not timely responded to the union's request to engage in voluntary mediation.
In the present case, Kramer was appointed on February
5.
	When he notified the parties
on March
13
that he could not keep the previously scheduled date
of
March 26, Kramer did not
explicitly or implicitly rescind his appointment. This is made clear by the fact that Kramer
asked the parties to send him available mediation dates in case he was unable to find a
replacement. Requesting additional dates from the parties is inconsistent with a rescission
of
the original appointment. Kramer's words indicate that he foresaw the distinct possibility that
he would remain as mediator, and that there was no reason to withdraw his appointment at that
time.
The Union had the option to request factfinding within the initial window period in
order to avoid the risk
of
forfeiting its opportunity to do so. The original window for
requesting factfinding was still open when Kramer notified the parties on March
13
that he
could not meet with them on March 26. At that point, the Union had from March 5 until
March 23 to request factfinding. However, it did not do so. In keeping with our decision in
Redondo Beach, supra, PERB Order No. Ad~409-M, we conclude that it is up to the union to
keep track
of
the statutory window period and to file its request for factfinding within that
period, regardless
of
whether mediation dates are changed.
Request for Stay
We deny the Authority's request for a stay made pursuant to PERB Regulation 32370,
since the request is moot in light of this decision. We also note that the Authority failed to
comply with PERB Regulation 32370, because the request was not accompanied by a
justification for the request.
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ORDER
The Office
of
the General Counsel's administrative determination in Case
No. SA-IM-153-M is hereby REVERSED. California United Homecare Workers' request for
factfinding in hereby DENIED. Any currently-scheduled factfinding dates between the parties
concerning the issues in this case are hereby VACATED. We also hereby DENY Lassen
County In-Home Supportive Services Public Authority's request for stay
of
activity.
Chair Martinez, Members Huguenin and Banks joined in this Decision.
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