Decision A410M – County of Contra Costa

Implicitly contained within the authority to determine whether a factfinding request is sufficient is the jurisdiction to assess whether the request is properly before the Board, i.e., whether the conditions precedent to a valid request for factfinding exist. Just as courts have jurisdiction to determine the scope of their jurisdiction, PERB necessarily has jurisdiction to determine whether the provisions of MMBA section 3505.4 apply to a particular factfinding request.

The Board has the authority to consider whether or not the factfinding procedures of the MMBA, including MMBA section 3505.4, apply to single-issue bargaining disputes or any other disputes outside negotiations for a new or successor MOU. The Office of the General Counsel’s administrative determination is not an “advisory” opinion, since it resolved a controversy that was squarely placed before the Office of the General Counsel when the County claimed that factfinding did not apply to the bargaining dispute over which the union requested factfinding. The Board’s consideration of the Office of the General Counsel’s administrative determination is not a conflict of interest, since the General Counsel does not provide legal guidance to Board Members regarding cases under the Board’s consideration. There is nothing improper about the General Counsel defending PERB in litigation, even if the same issues are subsequently presented to the Board itself by appeals of administrative determinations.

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 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.

The Office of the General Counsel’s administrative determination is not an “advisory” opinion, since it resolved a controversy that was squarely placed before the Office of the General Counsel when the County claimed that factfinding did not apply to the bargaining dispute over which the union requested factfinding.

PERB is presently not bound by the superior court’s order in County of Riverside v. Public Employment Relations Board (2013) Case No. RIC 1305661 enjoining PERB from appointing a factfinding panel in any bargaining dispute arising under the MMBA other than in MOU negotiations. PERB appealed the court’s decision, which has the effect of staying the effectiveness of the superior court’s decision until the case is finally determined by the appellate court. Because there is no final decision in the County of Riverside litigation yet while an appeal of the superior court’s decision is pending, neither res judicata nor collateral estoppel apply until and unless the judgment is final.

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. 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 limited only to bargaining disputes over comprehensive MOUs. Nothing in AB 646 interferes with the ultimate decision-making authority of public agencies to determine wages or manage its finances.