PERB Confirms Factfinding Applies to “Single Issue” Negotiations
May 19, 2014 by Adrian Barnes
The issue of requiring independent factfinding is governed in California by the Meyers-Milias-Brown Act (MMBA). There have been several decisions by the Public Employment Relations Board (PERB) as well as the courts that cover factfinding in the practice of public sector labor law. Beeson, Tayer and Bodine (BT&B) have written previously about this and refer you to our earlier article on MMBA factfinding for an overview of definition and procedures. In this most recent decision involving American Federation of State, County and Municipal Employees (AFSCME) Local 2700 and Contra Costa County, the Public Employment Relations Board (PERB) has for the first time ruled that factfinding procedures under the Meyers-Milias-Brown Act (MMBA) apply to single-issue disputes as well as to bargaining for Memoranda of Understanding. PERB’s General Counsel had previously issued administrative decisions taking the same position and ordering parties to factfinding on single issues, but changes to PERB regulations effective October 1, 2013 meant that Contra Costa County was permitted to appeal the General Counsel’s administrative decision ordering factfinding to the PERB Board itself.
The PERB Board’s decision is not, unfortunately, the last word on the matter. Prior to the change in regulations permitting appeals to the Board, parties seeking to challenge administrative decisions on this issue had to take their case to superior court. In 2013, as discussed in more detail in our December 30, 2013 post, a superior court in County of Riverside v. PERB agreed with a public employer that the MMBA’s factfinding procedures do not apply to single-issue disputes. The court issued an order and injunction which purported to prohibit PERB from conducting factfinding on disputes over single issues and to require PERB to dismiss all cases involving requests for factfinding on single-issue disputes (including AFSCME Local 2700’s case). PERB appealed the court’s order and injunction, and has taken the position that the order and injunction are stayed pending the outcome of that appeal. PERB also appealed a similar decision issued by another superior court in San Diego Housing Commission v. PERB, which found that factfinding under the MMBA does not apply to bargaining over the effects of a layoff.
Although we cannot predict the outcome of the appeals in the County of Riverside and San Diego Housing Commission cases, we do know that, at present, unions can expect PERB to order factfinding under the MMBA in all disputes over mandatory subjects of bargaining in which the parties have reached impasse. Unions may also bring unfair labor practice charges should employers refuse to proceed to factfinding on any such dispute on the ground that such a refusal constitutes a failure to bargain in good faith.
Finally, there is legislation pending that is intended to provide a final and lasting resolution to this issue. AB 2126 was introduced on February 20, 2014 and would, among other things, make all impasses over a mandatory subject of bargaining subject to factfinding under the MMBA. SB 979, also recently introduced, contains the same proposal. Both are consistent with PERB’s position on factfinding under the MMBA and are best understood as attempts to clarify existing law to make clear it supports that position.
We at BT&B will provide further updates on this issue as it is tackled by the courts of appeal. We have an active labor law practice in Oakland and Sacrament and encourage you to visit our blog focusing on legal findings and issues associated with the representation of unions and employees. You can also follow us on Twitter for updates and resources.
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