Decision A419M – City and County of San Francisco

SF-IM-145-M

Decision Date: November 24, 2014

Decision Type: Administrative Appeal

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Perc Vol: 39
Perc Index: 72

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

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.

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
104.01000 – Authority of Board In General; Validity and Application of Regulations (See also 102.01)

Because the Office of the General Counsel has no role in advising the Board itself in its appellate function regarding cases pending before the Board, there is nothing improper about the Office of the General Counsel representing PERB in litigation seeking to halt PERB’s administration of MMBA section 3505.4 factfinding, even if the same issues are subsequently presented to the Board itself by appeals of administrative determinations.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.04000 – During Impasse

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.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.05000 – Post-Impasse

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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.17000 – Advisory Opinions

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.

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

A necessary element of the doctrine of collateral estoppel or res judicata of separate litigation is that the proceeding in the litigation has ended with a final judgment on the merits. When the lower court decision in the litigation is on appeal, there is no final judgment on the merits in the litigation.

1406.00000 – GENERAL LEGAL PRINCIPLES; MOOTNESS
1406.01000 – In General

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. If a party believed subsequent negotiations mooted a factfinding request, it could withdraw its declaration of impasse.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

A single legislator’s comments, even the author's, cannot be relied on for legislative history, because they do not necessarily represent the intent of the Legislature as a whole.