Public Hearing to Receive Comments on the Notice of Proposed Rulemaking of Chapter 5 Of Title 6, Subtitble B, of the District of Columbic Municipal Regulations (DCMR)
Monday, November 18, 2019
The Public Employee Relations Board met in Room 200 E, 1100 4th Street SW, Washington, D.C., at 10 am, Charles Murphy, Chair, presiding.
CHARLES MURPHY, Chair
MARY ANNE GIBBONS, Member
ANN HOFFMAN, Member
BARBARA SAMSON, Member
DOUGLAS WARSHOF, Member
CLARENE MARTIN, Executive Director, PERB
Chair Murphy called the hearing to order at 10:13 a.m. The purpose of the hearing is to receive public comment on the Notice of Proposed Rulemaking (NPR) to amend the rules of the Public Employee Relations Board (PERB). The PERB’s rules were first published in 1990 and have been amended 4 times, most recently in 2015. PERB has begun the current amendment process in order to help ensure consistency with existing law and statutes, to improve readability, reduce unnecessary repetition of statutory language, and to increase efficiency. The ultimate objective is to create a more practical and understandable set of rules for parties coming before the agency. The Board has authority to amend rules under the Comprehensive Merit Personnel Act (CMPA) and the DC Administrative Procedures Act. PERB began the process in March of 2018 with consultation from staff attorneys and labor relations experts. The NPR was then approved for publication and duly noticed in the DC Register in March 2019 in order to solicit public comments. Based on the comments received, the Board voted to hold a public hearing to receive further input from the public.
The first commenter was Ms. Brenda Zwack of the law firm Murphy Anderson. Ms. Zwack described her work representing numerous municipal workers and unions in DC, and noted that she had previously filed written comments to the Board on this issue on behalf of her clients. She addressed three concerns she had with the PR changes.
The first was a general concern with the broadening of authority granted to the Executive Director role. In particular, Ms. Zwack felt that the new rules enabled the Director to act without consulting the Board. Ms. Zwack also raised the concern that the new rules could lead to conflict of interest and partiality issues in regard to the current Executive Director, Ms. Martin, who is perceived to have close ties to management.
Ms. Zwack pointed to two specific areas of concern in the proposed rules Regarding Section 507.5,which describes how management decertification of unions, Ms. Zwack said her clients worry that the amend rules inappropriately broadens the types of evidence that can be used by the Board to conclude that a union is no longer interested in representing employees. For example, failure to demand negotiations for a new contract and union non-participation in labor management meetings can occur for perfectly rational reasons given the nature of specific bargaining agreements in the District which do not suggest that unions are no longer interested in representing employees.
Ms. Zwack also expressed concern over the proposed changes to Section 505.1(e), which she believes creates a new cause of action that would allow consolidation of bargaining units represented by different unions within an agency. Ms. Zwack argued that such a change would lead to strife among different unions competing for bargaining units and related anecdotes from her own experience to that effect.
The second speaker, Ms. Barbara Milton, president of AFGC Local 631, felt the amended rules would necessitate lawyers to understand its contents, which would be too complicated for lay persons. Further, she expressed concern over reduced timeframes for taking action, as information gathering is time consuming in itself. She concluded by asking for the Board to reconsider allowing the public to hear case decisions.
The third public commenter, Barbara Hutchinson, a labor lawyer, stressed the importance of having a third party objectively look at disputes. She also echoed Ms. Milton’s concern of the shortened timeframes in unit determination and Ms. Zwack’s concerns about union consolidation. She further took issue with certification of elections in Section 515.5 as it may violate DC Code because the law does not permit the Board to issue a determination that no union was selected. Regarding Section 515.6, Ms. Hutchinson noted that the Board is required under the Code to hold hearings if there are discrepancies and cannot make a determination about who is on the ballot. She also pointed out that the amended Rule 526 would permit arbitrator awards to be issued in a timeframe contrary to the statute, which requires an aware to be issued within 45 days.
The final speaker was Michelle Hunter, President of National Association of Government Employees Local R3-6. She expressed the feeling of her members that increasingly the PERB is not seen as a fair and impartial arbiter of labor disputes. She urged the Board to take into account the comments that have been received and reconsider the proposed rules.
Chair Murphy thanked the speakers for participating in the hearing and said their comments would be take into consideration. The meeting was concluded at 10:41 a.m..