PERB has ruled that factfinding under the MMBA applies to all impasses, including impasses on single issues, the effects of managerial decisions, and during contract re-openers. Although not unexpected, PERB’s ruling has significant consequences for local agency collective bargaining.

The facts of this recent case are simple. AFSCME and the County of Contra Costa had reached agreement on every aspect of the creation of a new classification except salary. The parties declared impasse and AFSCME filed a factfinding request with PERB. The County opposed the request, arguing that factfinding is only available when parties reach impasse on a collective bargaining agreement. PERB disagreed, and ordered the parties to proceed to factfinding.

In its ruling, PERB noted that under the EERA (the collective bargaining law for school districts) and the HEERA (the collective bargaining law for the state university systems), factfinding has been held to extend to negotiations over all matters within the scope of representation.  According to PERB, agreement on matters within the scope of representation must necessarily include not only complete memoranda of understanding, but also any other agreement over the conditions of employment.  Given the precedent under EERA and HEERA, and the similarity between those two statutes and the MMBA, PERB held that there was no reason to treat factfinding under the MMBA differently.

In rejecting the County’s arguments about why factfinding should not apply to single-issue negotiations, PERB made the following points:

1. The MMBA uses terms such as “differences” and “disputes” when discussing factfinding, and these words are broad enough to cover any unresolved dispute over a negotiable subject;
2. The MMBA’s factfinding provisions are not limited by other provisions that reference a memorandum of understanding (MOU) because the term MOU can refer to any agreement on negotiable terms and conditions of employment, not just a comprehensive contract; and
3. Even though it may not make sense to consider all of the factfinding criteria in MMBA section 3505.4(d) in every situation, the same criteria appear in the EERA and that statute does not limit the scope of factfinding. 

PERB’s ruling is no surprise, as PERB has taken the same position in two lawsuits filed against it by local agencies that PERB ordered to factfinding on single issue impasses. In both cases, the court ruled against PERB and held that the factfinding provisions of the MMBA only apply to negotiations for a comprehensive MOU.  PERB has appealed both rulings to the court of appeal.  Similarly, Contra Costa County can appeal PERB’s recent ruling directly to the court of appeal.

Adding another layer of legal uncertainty are two bills currently before the Legislature, AB 2126 and SB 979. Both bills would change the MMBA to clearly state that factfinding applies to all impasses.  AB 2126 even states that the change is declaratory of existing law, thus arguably giving it retroactive effect.

So what’s a public employer to do? One option is to plan for factfinding any time your agency has to meet and confer over a change. Another is to resist factfinding and join the ranks of agencies that are litigating the issue at PERB and in the courts. Unfortunately, until a court gives a final answer on the issue - which could take years - employers will have to choose between costly factfinding and costly litigation.
 

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[1] County of Contra Costa (2014) PERB Order No. AD-410-M.