CALPELRA Alert:  Practitioner Tips/
MMBA Factfinding Applies To All Impasses
As reported in our March 31, 2016, Alert, the Fourth Appellate District of the California Court of Appeal issues two decisions on March 30, 2016, concluding that MMBA factfinding applies not only to impasses arising during negotiations for a complete memorandum of understanding (MOU), but also to non-MOU bargaining disputes, such as single issue or effects negotiations.  The Court of Appeal also rejected constitutional challenges to the MMBA factfinding provisions.
 
CALPELRA’s March 31, 2016, Alert explained the Court of Appeal rulings.  In this Alert, we provide tips for employer negotiators and practitioners.

What Happens If These Decisions Are Appealed To The California Supreme Court?
One or both of the agencies may appeal these Court of Appeal decisions to the California Supreme Court. The Supreme Court may either accept or deny the appeal. If the Supreme Court refuses to accept these cases on appeal, the decisions will represent the definitive law for the entire State of California unless the legislature amends the relevant MMBA sections.

What Should You Do If Your Agency Is Faced With An MMBA Factfinding Request?
First, unless the union’s request was untimely, prepare for and participate in the factfinding process.

Second, if the union’s factfinding request was untimely, you should dispute the union’s request for factfinding.  PERB rigorously enforces these timelines[1], and will not certify factfinding if the union fails to submit a timely request.
 
Third, if the agency disputes any of the following issues, the agency should immediately file an unfair labor practice charge.
  • Whether the matter being submitted to factfinding is a mandatory subject of meet and confer or is outside the scope of bargaining;
  • Whether the union prematurely declared impasse or whether a true impasse exists; and/or
  • Whether there was any other violation of the union’s good faith obligations that interfered with the impasse or the factfinding process.
While filing an unfair practice, the agency could concurrently seek PERB’s injunctive relief. For example, the agency could seek injunctive relief to halt a factfinding proceeding on issues outside the scope of bargaining. Remember that PERB’s decision to seek injunctive relief is discretionary and an agency may have difficulty meeting the relatively high bar for this type of injunctive relief.
 
If an agency refuses to proceed to factfinding instead of filing an unfair practice charge as described, the Administrative Law Judge, PERB, and the courts will give the agency the same answer given in San Diego Housing Commission v. Public Employment Relations Board and County of Riverside v. Public Employment Relations Board.

What About The Delays Caused By Factfinding?
Management representatives are often concerned about the delays created by the MMBA factfinding process. If your agency’s negotiations involve compensation increases, you may take some comfort in the current change in bargaining dynamics of bargaining created by the improved economic times.
 
Most public agencies are negotiating compensation increases. Potential compensation increases put pressure on unions to deliver compensation increases by completing negotiations as soon as possible. Delays caused by factfinding work against union desires to start wage increases. Don’t be surprised if you see unions avoiding further delays by declaring impasse, but not requesting factfinding.
 
Under the first 25 years of the EERA we saw this dynamic in schools bargaining – management requested factfinding on non-wage matters while unions attempted to close out wage negotiations to avoid the delay of factfinding.

Should We Be Surprised By The Court Of Appeal's Decisions?
Even though I share everyone’s concern that factfinding is an expensive and substantial burden on management, I was not surprised by the result in these Court of Appeal decisions.  As most of you know, I have been predicting this decision based on the law and other California labor relations statutes. During CALPELRA’s Labor Relations Academy programs during the past few years, practitioners have raised this question, and I have always been skeptical that the Court of Appeal would conclude that MMBA factfinding applies only to impasses arising during negotiations for a complete MOU, and not to non-MOU bargaining disputes, such as single issue or effects negotiations.

My skepticism was based on the following:
  • Previous California Supreme Court decisions directing courts to defer to PERB when interpreting the labor relations statutes under PERB’s jurisdiction; and
  • The MMBA factfinding language which does not expressly prohibit factfinding on non-MOU bargaining disputes, such as single issue or effects negotiations; and
  • Earlier PERB decisions under the EERA and HEERA applying factfinding to all impasses involving any mandatory subject of negotiations. As a general rule, Courts of Appeal presume that at the time the legislature enacted the MMBA factfinding sections, the legislature knew about PERB’s prior decisions.

What About New Legislation?
Sacramento watchers with more experience than I can provide the probability of whether the current legislature would enact legislation reversing these decisions. But given that the legislature recently passed an MMBA amendment that would require factfinding on all impasse involving mandatory subjects, it is unlikely that it would now favor diametrically opposed legislation.
 
I urge public sector management to insist the legislature enact legislation similar to EERA and HEERA giving management the equal right to demand factfinding.  Properly used, management could benefit from the right to request factfinding in appropriate circumstances.  The right to request factfinding would provide management another tool for controlling the timing and nature of negotiations.
[1] MMBA Section 3505.4(a) states: The employee organization may request that the parties’ differences be submitted to a factfinding panel not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant to the parties’ agreement to mediate or a mediation process required by a public agency’s local rules. If the dispute was not submitted to mediation, an employee organization may request that the parties’ differences be submitted to a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of a declaration of impasse. 
2016 CALPELRA President:  Lori Walsh, County of Placer
Alert No. 16-08 Author:  William F. Kay, CALPELRA Labor Relations Academy Creator/Co-Director
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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