CALPELRA Alert/PERB: Factfinding Applies To ALL Impasses
In the County of Fresno decision released on June 17, 2014, PERB confirmed its prior determinations that: (1) Mid-term negotiations on single mandatory topics are subject to MMBA factfinding; and (2) MMBA factfinding applies to all impasses over mandatory subjects, not just those leading to a successor MOU.[1] Not surprisingly, PERB relied on its previous decision in County of Contra Costa [2] to uphold the General Counsel’s administrative decision to order union requested factfinding over a mid-term change in shift arrangements in the Fresno county jail.

When the union requested factfinding over a negotiations dispute involving Fresno County’s increase in the number of 12-hour shifts and the creation of two new specialty assignment exempt from seniority bidding procedures, PERB's General Counsel granted the union’s request for factfinding.

County's Primary Arguments And PERB's Responses

The County appealed to PERB and contended that the mid-term negotiations on single items are not subject to the MMBA factfinding process.  In support of its contention, the County primarily argued that: (1) PERB lacked jurisdiction to review the General Counsel’s administrative decision without first holding a full evidentiary hearing on a unfair practice charge; (2) PERB is currently enjoined from ordering factfinding by the superior court’s decision in County of Riverside [3]; (3) AB 646 (MMBA factfinding) was not intended to apply to all impasses, but only to those reached while negotiating a successor comprehensive MOU; and (4) the MMBA mandated public meeting on a factfinding report before implementing a last, best, and final offer would unduly impair and delay agency adoption.
  1. PERB lacked jurisdiction to review the General Counsel’s administrative decision without first holding a full evidentiary hearing on a unfair practice charge.
    In response to the County’s first argument, PERB reiterated its previous decisions that PERB has the statutory and decisional authority to appoint factfinding panels under the MMBA.[4]
     
  2. PERB is currently enjoined from ordering factfinding by the superior court’s decision in the County of Riverside.
    In response to the County’s second argument – that the superior court’s injunction prohibits PERB from acting – PERB reiterated its decision in County of Contra Costa that because the superior court’s decision in Riverside has been appealed, under California law that appeal automatically stays any injunction orders.
     
  3. AB 646 (MMBA factfinding) was not intended to apply to all impasses, but only to those reached while negotiating a successor comprehensive MOU.
    In response to the County’s third argument – that the legislative history of AB 646 indicates that the factfinding legislation was only intended to apply to impasses over new or successor MOU’s and not to mid-term reopeners, of effects bargaining on non-bargainable decisions, or other single-issue matters – PERB reiterated its earlier decision in County of Contra Costa.   

    PERB responded in detail to the County’s arguments regarding the differences between factfinding under EERA and the MMBA.  PERB pointed out that policy matters – a union’s potential use of factfinding as a delay tactic and local agencies’ factfinding costs â€“ were policy matters to be addressed by the legislature in changing the statute.
     
  4. The MMBA mandated public meeting on a factfinding report before implementing a last, best, and final offer would unduly impair and delay agency adoption.
    PERB addressed the County’s contention that unlike the EERA, the MMBA does not require “a public meeting on proposals or negotiations over single issue that do not result in contracts or negotiations on the impact of decision outside the scope of bargaining.” Essentially, the County argued that mandating local agencies to hold a public meeting on a factfinding report before implementing a last, best and final offer, would unduly impair and delay agency adoption.  

    PERB disagreed. In its prior County of Contra Costa decision, PERB determined that an “MOU” does not just refer to a comprehensive collective bargaining agreement, but signifies any written agreement on any matter within the scope of representation, including “single subject, the effects of a decision within the managerial prerogative, mid-term negotiations, or side letters of agreement, etc,” and PERB noted that recently amended MMBA section 3505.1  (AB 537, 2013) obligates a public agency to vote to accept or reject such agreements at a duly noticed public meeting. For both reasons, all MMBA agencies are already obligated to have a public meeting to accept or reject any tentative agreement. The factfinding process added only an additional 10 days within which to hold a hearing on a factfinding report.
Impact And Practice Tips
  • If it wasn’t already clear, PERB is not going to change its decisions requiring the application factfinding to any impasse on a mandatory subject of bargaining. This decision is a reaffirmation of the Board’s previous County of Contra Costa decision.
     
  • When an MMBA agency is faced with a request for factfinding over a mid-term change, a single issue, or the effects of a non-negotiable decision, the agency must recognize that PERB’s position is fixed, and analyze the risks and costs involved. The agency should include the cost of protracted litigation through PERB and the Court of Appeal as well as a couple of years of back pay or reinstatement expenses. The risk and costs must be weighed against the risks and costs of submitting the dispute to factfinding.
     
  • The initial issue of MMBA factfinding’s application – raised originally in the superior court decisions of Riverside and San Diego counties – will be decided by a change in legislation or by a future Court of Appeal decision, not by PERB.
[1] County of Fresno (2014) PERB Decision No. Ad-414-M.
[2] County of Contra Costa (2014) PERB Decision No. Ad-410-M.
[3] County of Riverside v. Public Employment Relations Board (2013) Case No. RIC 1305661.
[4] PERB cited City of Redondo Beach (2014) PERB Order No. Ad-409-M for its statutory authority to appoint factfinding panels under MMBA section 3509; and then cited County of Contra Costa (2014) PERB Order No. Ad-410-M for its authority to review administrative decisions without first deciding a parallel unfair practice complaint.
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
CALPELRA President:  G. Scott Miller, Ventura Port District
Alert No. 14-12,  Author:  William F. Kay and M. Carol Stevens, Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
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