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

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PERB is authorized to administer the MMBA through the factfinding process, not merely through unfair practice proceedings. PERB's authority to appoint a factfinding panel derives from MMBA section 3505.4, and is not predicated on an alleged violation of the MMBA. Neither the administrative determination ordering the parties to factfinding nor a ruling by the Board itself on the City’s appeal of the administrative determination is an advisory opinion. The plain meaning of AB 646 did not limit factfinding procedures only to impasses in negotiations for comprehensive MOUs. The placement of the factfinding language of AB 646 following the portion of MMBA section 3505 concerning the duty to meet and confer in good faith does not mean that AB 646 applies only to comprehensive MOUs. The enumeration in MMBA section 3505.4(c) of eight criteria that the factfinding panel must consider does not mean that factfinding applies only to comprehensive MOUs. The MMBA and PERB’s regulations only condition factfinding on a declaration of impasse by one of the parties, and neither the MMBA nor PERB’s regulations provide for a factfinding request being mooted by subsequent negotiations. Impasse can be “undeclared,” since changed circumstances, such as significant concessions in negotiations by either party, may break an impasse. It is incumbent on the party declaring impasse under MMBA to withdraw its declaration if it believes impasse has been broken by changed circumstances.