CALPELRA Alert:  Court Of Appeal/
MMBA Factfinding Applies To ALL Impasses
The Fourth Appellate District of the California Court of Appeal decided two cases on March 30, 2016, concluding that MMBA factfinding applies to so-called “single issue” bargaining disputes, and not just to impasses arising in MOU bargaining.  The Court also rejected constitutional challenges to the MMBA factfinding provisions.

San Diego Housing Commission Decision
In the first case, San Diego Housing Commission v. Public Employment Relations Board, the Court of Appeal agreed with PERB and overruled the trial court’s 2014 decision that concluded that factfinding did not apply to an impasse in negotiations regarding the impacts of a decision to lay off two employees represented by the Service Employees International Union, Local 221.   The Court of Appeal concluded that factfinding applies to “any bargainable matter,” and not just to impasses arising during comprehensive MOU bargaining. 
 
The Court rejected all of the arguments made by the San Diego Housing Commission as well as those made by the League of California Cities and the California State Association of Counties, who submitted arguments in the case as Amici Curiae.  After an overview of the meet and confer obligations under the MMBA and a discussion of the legislation adding factfinding requirements to the MMBA, the Court discussed PERB’s 2014 decisions concluding that factfinding applies “to any bargaining impasse over negotiable terms and conditions of employment, and not only to impasses over new or successor [MOUs].”  (San Diego Housing Commission at p. 10, quoting PERB decisions in County of Contra Costa (2014) PERB Dec. No. Ad-410-M, pp. 2-3, and citing City & County of San Francisco (2014) PERB Dec. No. Ad-419-M.)
 
The Court explained that PERB’s interpretations of the public sector labor relations statutes are entitled to deference because PERB is an agency with specialized knowledge of these laws.[1] The Court went on to agree with PERB’s decision on the following:
  1. The MMBA does not contain any language expressly limiting the factfinding provisions to impasses occurring during comprehensive MOU negotiations.
  2. PERB has consistently applied analogous factfinding provisions under EERA and HEERA to all types of bargaining disputes.
  3. Applying the factfinding requirements to all bargaining disputes is consistent with the legislative history of AB 646.
  4. Applying factfinding to all bargaining disputes is consistent with the MMBA-established duty to bargain on any bargainable issue, and furthers the purposes of the MMBA.

County of Riverside Decision
The Court of Appeal ordered the San Diego Housing Commission case discussed above to be considered along with the case of the County of Riverside v. Public Employment Relations Board, a case involving an impasse in bargaining over the effects of the County’s decision to implement a new background check policy for information technology employees represented by SEIU, Local 721.  The trial court had ruled that the County was not required to comply with the factfinding requirements of the MMBA when the parties reached impasse over the effects bargaining, and issued an injunction precluding PERB from processing factfinding requests under the MMBA for matters other than those involving new or successor MOU negotiations.  The County and Union filed cross appeals, and the Court of Appeal reversed the trial court’s decision.
 
The Court of Appeal referenced the conclusions in the San Diego Housing Commission case discussed above, and also rejected the County’s arguments that the MMBA’s factfinding provisions violate the City and County “home rule” powers protected by the State Constitution (the trial court had also rejected these home rule arguments).  Noting that factfinding panels make only advisory recommendations, the Court explained, “The factfinding provisions do not delegate to factfinding panels any power to make any binding decisions affecting public agency operations . . . [and] [t]he public agency still retains the ultimate power to refuse an agreement and make its own decisions.” The Court distinguished the State Supreme Court’s decision invalidating binding interest arbitration provisions, based on the binding nature of arbitration decisions.  (County of Riverside v. Superior Court (2003) 30 Cal.4th 278.)
 
The Court went on to find that the trial court should have granted PERB’s anti-SLAPP motion dismissing the case, and consequently found that PERB is entitled to an award of attorney fees and costs in the case.  In the single victory for the County, the Court rejected PERB’s argument that the trial court should have imposed monetary sanctions against the County for violating a scheduling order.
Practitioner Tips

Unlike the decisions by the trial courts that affected only the parties to those cases, Court of Appeal decisions have statewide effect.  After these decisions, public agencies who resist factfinding will not be able to seek relief from sympathetic superior courts.  Unless another Appellate District reaches a contrary conclusion, or the California Supreme Court decides to consider and overrule these decisions, these decisions will remain binding on public agencies and lower courts across the state. Given the strength of PERB’s arguments and these court decisions, most public agencies will be better served by preparing for and completing factfinding, rather than by refusing to engage in the process.
Note:  Because these Court of Appeal decisions are so important, CALPELRA will provide additional Practitioner Tips this week.
[1] Court of Appeal judicial review is in general deferential to PERB.  Banning Teachers Ass’n. v. Public Employment Relations Bd. (1988) 44 Cal.3d 799, 804; Inglewood Teachers Ass’n. v. Public Employment Relations Bd. (1991) 227 Cal.App.3d 767, 776.  On issues of law, the “clearly erroneous” standard of review applies.  Under this standard, the Court of Appeal will defer to PERB’s legal conclusions unless they are clearly erroneous.  Banning Teachers, supra, 44 Cal.3d at 804; Inglewood Teachers, supra, 227 Cal.App.3d at 776.  If PERB’s statutory construction is "defensible, it should not be rejected merely because the courts might prefer another view of the statute."  Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012. 
 
The standard of review on factual issues is likewise highly deferential.  PERB’s factual findings are conclusive if supported by substantial evidence.  Gov’t. Code § 3542(c).   “Appellate courts must accept PERB’s factual findings, including ultimate facts, as conclusive if they are supported by substantial evidence on the record as a whole.”  Inglewood Teachers, supra, 227 Cal.App.3d at 781.  Under the substantial evidence test, the court may not reweigh the evidence or “consider that an alternate finding may be equally reasonable, or even more reasonable, than” PERB’s findings.  Id.; see also, Regents of Univ. of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617.  When PERB “chooses between two conflicting views, a reviewing court may not substitute its judgment” for PERB’s.  Regents, supra, 41 Cal.3d 601, 617.
2016 CALPELRA President:  Lori Walsh, County of Placer
Alert No. 16-07 Author:  Janet Cory Sommer, Burke, Williams & Sorensen
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.
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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