IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH – In General

Single Topic for Decision A506M

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“PERB’s review of a factfinding request is limited to determining whether the request satisfies the procedural requirements of MMBA section 3505.4 and PERB Regulation 32802.” (County of Santa Clara (2020) PERB Order No. Ad-483-M, p. 4, citing City of Oakland (2018) PERB Order No. Ad-462-M, p. 4.) PERB does not evaluate whether the parties are in fact at impasse. (County of Santa Clara, supra, PERB Order No. Ad-483-M, p. 4.) Nor is it required to determine whether the impasse concerns a matter within the scope of representation. (City of Oakland, supra, PERB Order No. Ad-462-M, p. 6.) Instead, PERB’s inquiry is limited to determining whether (1) there was “a written declaration of impasse from either party, or the appointment or selection of a mediator,” and (2) the factfinding request was timely filed after one of these triggering events. (County of Santa Clara, supra, PERB Order No. Ad-483-M, p. 4, quoting Santa Cruz Central Fire Protection District (2016) PERB Order No. Ad 436-M, p. 5 (Santa Cruz).)

Here, it was undisputed that AFSCME gave the City a written declaration of impasse and filed its factfinding request with PERB within 30 days of the impasse declaration, thereby satisfying the procedural requirements under MMBA section 3505.4, subdivision (a) and PERB Regulation 32802, subdivision (a)(2). The City argued, however, that PERB should have denied AFSCME’s factfinding request as premature because the parties were not actually at impasse. But issues of whether a party bargained in bad faith, including whether a party properly declared impasse, must be decided through unfair practice proceedings. (See City of Folsom (2015) PERB Order No. Ad-423-M, pp. 5-6.) “PERB's unfair practice proceedings are better suited to resolving the often complex legal and factual issues raised by unfair practice allegations and for protecting the parties' rights to notice and meaningful opportunity to be heard before issues of liability are decided.” (Id. at p. 6, citing City and County of San Francisco (2014) PERB Order No. Ad-415-M, pp. 13 14.) PERB has reiterated on multiple occasions that in resolving a request for factfinding, it does not evaluate whether the parties are in fact at impasse. (See, e.g., County of Santa Clara, supra, PERB Order No. Ad-483-M, p. 4; City of Salinas (2018) PERB Order No. Ad-457-M, p. 6; Santa Cruz, supra, PERB Order No. Ad-436-M, pp. 6-7.) The City’s appeal failed to establish any reason for a different result.