IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH – During Impasse

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The factfinding procedures added to the MMBA by AB 646, and codified at MMBA sections 3505.4 through 3505.7, apply to any bargaining impasse over negotiable terms and conditions of employment, and not only to impasses over new or successor MOU. The plain language of EERA and HEERA extends factfinding to negotiations over all matters within the scope of representation, not just to negotiations over new or successor CBAs. An “MOU” signifies a written agreement on any matter within the scope of representation. It can address a single subject, the effects of a decision within the managerial prerogative, mid-term negotiations, or side letters of agreement. The term “MOU” is not limited to a document that results from negotiations for a comprehensive agreement of a set duration. All negotiations are negotiations “for an MOU.” At the time AB 646 was passed, the Legislature is presumed to have known that PERB applied existing impasse resolution procedures to single-issue bargaining disputes, mid-term contract negotiations, and effects bargaining disputes, and that the duty of parties to meet and confer in good faith under MMBA covers more than simply the duty to meet and confer over the terms of an MOU. The Legislature did not intend that MMBA factfinding be cabined to the narrow classification of bargaining disputes over comprehensive MOUs.