(a) Either party, within seven days of the filing of the report by the mediator, may petition the board for review of the report. The petitioning party shall, in the petition, specify the particular provisions of the mediator’s report for which it is seeking review by the board and shall specify the specific grounds authorizing review by the board. The board, within 10 days of receipt of a petition, may accept for review those portions of the petition for which a prima facie case has been established that (1) a provision of the collective bargaining agreement set forth in the mediator’s report is unrelated to wages, hours, or other conditions of employment within the meaning of Section 1155.2, (2) a provision of the collective bargaining agreement set forth in the mediator’s report is based on clearly erroneous findings of material fact, or (3) a provision of the collective bargaining agreement set forth in the mediator’s report is arbitrary or capricious in light of the mediator’s findings of fact.
(b) If it finds grounds exist to grant review within the meaning of subdivision (a), the board shall order the provisions of the report that are not the subject of the petition for review into effect as a final order of the board. If the board does not accept a petition for review or no petition for review is filed, then the mediator’s report shall become a final order of the board.
(c) The board shall issue a decision concerning the petition and if it determines that a provision of the collective bargaining agreement contained in the mediator’s report violates the provisions of subdivision (a), it shall, within 21 days, issue an order requiring the mediator to modify the terms of the collective bargaining agreement. The mediator shall meet with the parties for additional mediation for a period not to exceed 30 days. At the expiration of this mediation period, the mediator shall prepare a second report resolving any outstanding issues. The second report shall be filed with the board.
(d) Either party, within seven days of the filing of the mediator’s second report, may petition the board for a review of the mediator’s second report pursuant to the procedures specified in subdivision (a). If no petition is filed, the mediator’s report shall take immediate effect as a final order of the board. If a petition is filed, the board shall issue an order confirming the mediator’s report and order it into immediate effect, unless it finds that the report is subject to review for any of the grounds specified in subdivision (a), in which case the board shall determine the issues and shall issue a final order of the board.
(e) Either party, within seven days of the filing of the report by the mediator, may petition the board to set aside the report if a prima facie case is established that any of the following have occurred: (1) the mediator’s report was procured by corruption, fraud, or other undue means, (2) there was corruption in the mediator, or (3) the rights of the petitioning party were substantially prejudiced by the misconduct of the mediator. For the sole purpose of interpreting the terms of paragraphs (1), (2), and (3), case law that interprets similar terms used in Section 1286.2 of the Code of Civil Procedure shall apply. If the board finds that any of these grounds exist, the board shall within 10 days vacate the report of the mediator and shall order the selection and appointment of a new mediator, and an additional mediation period of 30 days, pursuant to Section 1164.
(f) (1) Notwithstanding Section 1164.9, within 60 days after the order of the board takes effect, even if a party seeks to challenge, appeal, overturn, modify, or stay in any manner any order of the board under these provisions, either party or the board may file an action to enforce the order of the board, in the superior court for the County of Sacramento or in the county where either party’s principal place of business is located.
(2) To the extent that the board’s decision in Ace Tomato Co., Inc. (2012) 38 ALRB No. 8, states that a party cannot enforce a board order while an appeal or challenge to the board order in any form is pending, this section abrogates that decision. During the pendency of any challenge, appeal, writ of review, or other action seeking to modify or overturn a board order, the parties shall be required to implement the terms of the board’s order immediately upon issuance of the order.
(3) No final order of the board shall be stayed during any review under this chapter unless the court finds and states in its findings that (1) the appellant or petitioner has demonstrated, by clear and convincing evidence, that he or she will be irreparably harmed by the implementation of the board’s order, and (2) the appellant or petitioner has demonstrated, by clear and convincing evidence, a likelihood of success on appeal. For purposes of this section, the court deciding the stay shall provide written findings and analysis supporting the decision to grant a stay.
(Amended by Stats. 2018, Ch. 718, Sec. 2. (AB 2751) Effective January 1, 2019.)