Decision A462M – City of Oakland
SF-IM-195-M
Decision Date: April 30, 2018
Decision Type: Administrative Appeal
Description: During an open-ended strike by SEIU-represented employees, SEIU filed a request for factfinding on the basis that SEIU and the City employer were unable to agree on which employees were “essential” under County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564. The employer appealed the Office of the General Counsel’s administrative determination approving SEIU’s factfinding request, arguing that the subject of which public employees are essential under County Sanitation is outside the scope of representation and, therefore, beyond the scope of the MMBA’s factfinding provision.
Disposition: The Board affirmed the approval of the factfinding request. The Office of the General Counsel is not required to determine whether the subject of the parties’ dispute is within the scope of representation when deciding the sufficiency of a factfinding request. PERB’s review of a factfinding request is limited to determining whether the request satisfies the statutory and regulatory prerequisites.
Perc Vol: 42
Perc Index: 141
Decision Headnotes
301.01000 – In General
Neither PERB nor the courts have addressed whether public employers or exclusive representatives are required to meet and confer over which employees are essential to public health and safety, and therefore may not strike. (pp. 6-7)
900.01000 – In General
PERB’s review of a factfinding request is limited to determining whether an exclusive representative’s request satisfies the procedural requirements of Gov. Code Section 3505.4 and PERB Regulation 32802. (p. 4) Although factfinding only applies to disputes over matters within the scope of representation, the Office of the General Counsel will not assess whether the subject of the parties’ dispute is within the scope of representation before approving the factfinding request. (pp. 3-4, 6) The Office of the General Counsel must approve the request unless the Board has previously declared a subject outside the scope of bargaining via the unfair practice process. Where neither PERB nor the courts have rendered such a decision, a factfinding request otherwise in compliance with the statutory and regulatory prerequisites must be approved.
900.02000 – Declaration/Determination of Impasse
PERB’s review of a factfinding request is limited to determining whether an exclusive representative’s request satisfies the procedural requirements of Gov. Code Section 3505.4 and PERB Regulation 32802. (p. 4) Although factfinding only applies to disputes over matters within the scope of representation, the Office of the General Counsel will not assess whether the subject of the parties’ dispute is within the scope of representation before approving the factfinding request. (pp. 3-4, 6) The Office of the General Counsel must approve the request unless the Board has previously declared a subject outside the scope of bargaining via the unfair practice process. Where neither PERB nor the courts have rendered such a decision, a factfinding request otherwise in compliance with the statutory and regulatory prerequisites must be approved.
900.04000 – During Impasse
Factfinding is available for any dispute over a matter within the scope of representation so long as the employee organization’s factfinding request complies with the statutory and regulatory prerequisites. (pp. 4-5) The appropriate avenue to resolve whether a subject is within the scope of representation is through the unfair practice process where a full factual record may be developed. (pp. 6-7) Where neither PERB nor the courts have previously determined whether the subject of essential employee status is outside the scope of representation, the Office of the General Counsel will not make a preliminary scope of representation decision as part of its determination of whether to approve the factfinding request. (p. 6)
1000.02164 – Other
Neither the Board nor the courts have addressed whether public employers or exclusive representatives are required to meet and confer over which employees are essential to public health and safety, and therefore may not strike. (pp. 6-7)