§ 32994. Exclusive Representative's Challenge Procedure.

(a) An agency fee payer who disagrees with the exclusive representative's determination of the chargeable expenditures contained in the agency fee amount and who files a timely agency fee challenge with the exclusive representative shall be hereafter known as an “agency fee challenger.” An agency fee challenger may file an unfair practice charge that challenges the determination of the chargeable expenditures contained in the agency fee amount; however, no complaint shall issue until the agency fee challenger has first exhausted the Exclusive Representative's Challenge Procedure. No agency fee challenger shall be required to exhaust the Exclusive Representative's Challenge Procedure where it is insufficient on its face.

(b) Each exclusive representative that has an agency fee provision shall administer a Challenge Procedure in accordance with the following:

(1) An agency fee challenge shall be filed in writing with the official designated by the exclusive representative in the annual notice.

(2) The procedure shall allow at least 30 days following distribution of the notice required under Section 32992 of these regulations for the filing of an agency fee challenge.

(3) Upon receipt of an agency fee challenge, the exclusive representative shall within 45 days of the last day for filing a challenge request a prompt hearing regarding the agency fee before an impartial decisionmaker.

(4) The impartial decisionmaker shall be selected by the American Arbitration Association or the California State Mediation Service. The selection between these entities shall be made by the exclusive representative.

(5) Any party may make a request for a consolidated hearing of multiple agency fee challenges based on case similarities, including but not limited to, hearing location. At any time prior to the start of the hearing, any party may make a motion to the impartial decisionmaker challenging any consolidation of the hearing.

(6) The exclusive representative bears the burden of establishing the reasonableness of the amount of the chargeable expenditures.

(7) Agency fee challenge hearings shall be fair, informal proceedings conducted in conformance with basic precepts of due process.

(8) All decisions of the impartial decisionmaker shall be in writing, and shall be rendered no later than 30 days after the close of the hearing.

(9) All hearing costs shall be borne by the exclusive representative, unless the exclusive representative and the agency fee challenger agree otherwise.

HISTORY

1. New section filed 3-2-89; operative 4-1-89 (Register 89, No. 12).

2. Amendment of subsection (b)(4) and Note filed 1-3-2000 as an emergency; operative 1-3-2000 (Register 2000, No. 1). A Certificate of Compliance must be transmitted to OAL by 5-2-2000 or emergency language will be repealed by operation of law on the following day.

3. Reinstatement of section as it existed prior to 1-3-2000 emergency amendment by operation of Government Code section 11346.1(f) (Register 2000, No. 18).

4. Amendment of subsection (b)(4) and Note filed 5-5-2000 as an emergency; operative 5-5-2000 (Register 2000, No. 18). A Certificate of Compliance must be transmitted to OAL by 9-5-2000 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 5-5-2000 order transmitted to OAL 7-26-2000 and filed 9-7-2000 (Register 2000, No. 36).

6. Change without regulatory effect amending Note filed 2-15-2001 pursuant to section 100, title 1, California Code of Regulations (Register 2001, No. 7).

7. Amendment of Note filed 6-11-2001 as an emergency; operative 7-1-2001 (Register 2001, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-29-2001 or emergency language will be repealed by operation of law on the following day.

8. Certificate of Compliance as to 6-11-2001 order transmitted to OAL 10-18-2001 and filed 12-4-2001 (Register 2001, No. 49).

9. Amendment of subsection (b)(4) and amendment of Note filed 2-2-2004 as an emergency; operative 2-2-2004 (Register 2004, No. 6). A Certificate of Compliance must be transmitted to OAL by 6-1-2004 or emergency language will be repealed by operation of law on the following day.

10. Certificate of Compliance as to 2-2-2004 order transmitted to OAL 5-4-2004 and filed 6-8-2004 (Register 2004, No. 24).

11. Amendment of Note filed 8-30-2004 as an emergency; operative 8-30-2004 (Register 2004, No. 36). A Certificate of Compliance must be transmitted to OAL by 12-28-2004 or emergency language will be repealed by operation of law on the following day.

12. Amendment of Note refiled 12-27-2004 as an emergency; operative 12-29-2004 (Register 2004, No. 53). A Certificate of Compliance must be transmitted to OAL by 4-28-2005 or emergency language will be repealed by operation of law on the following day.

13. Certificate of Compliance as to 12-27-2004 order transmitted to OAL 4-26-2005 and filed 5-31-2005 (Register 2005, No. 22).

14. Amendment of section heading, section and Note filed 7-23-2007; operative 8-22-2007 (Register 2007, No. 30).

15. Amendment of Note filed 12-6-2013 as an emergency; operative 12-6-2013 pursuant to Government Code section 110035.5 (Register 2013, No. 51). This regulatory action is deemed an emergency exempt from OAL review and was filed directly by the agency with the Secretary of State pursuant to Government Code section 110035.5. A Certificate of Compliance must be transmitted to OAL by 6-4-2014 or emergency language will be repealed by operation of law on the following day.

Note

Note: Authority cited: Sections 3509(a), 3513(h), 3541.3(g), 3563(f), 71639.1(b), 71825(b) and 110015, Government Code; and Section 99561(f), 99561(h) and 99561(m), Public Utilities Code. Reference: Sections 3502.5, 3515.7, 3540.1(i), 3543, 3546, 3583.5, 71632.5, 71814 and 110019, Government Code; Section 99566.1, Public Utilities Code; and Chicago Teachers Union, Local No. 1 v. Hudson (1986) 475 U.S. 292.