The County of Fresno and Service Employees International Union, Local 521 (SEIU) were engaged in negotiations over proposals by the County to create two new specialized assignments for Correctional Officers in the County Jail.  The assignments would be exempt from the seniority-based bidding procedure.  The County also proposed to increase the number of 12-hour shifts in the County Jail.  The parties met unsuccessfully and conferred three times and the County implemented its proposals.  SEIU filed its request for fact finding on October 30, 2013 after claiming that the parties declared impasse two days earlier. 

The County objected to the request on the grounds that (1) it was premature because no written notice of impasse had been issued by either party, (2) PERB was enjoined from approving any request for fact finding in any bargaining dispute except for a new or successor comprehensive memorandum of understanding (MOU) and (3) the legislative history of AB 646 [providing for fact finding] shows the Legislature intended to limit fact finding procedures only to collective bargaining agreements or MOUs. 

The Office of General Counsel for PERB rejected the County's objections and ordered the parties to select fact finding panel members.  The County appealed, and PERB affirmed.

At the outset, PERB determined that it had jurisdiction to determine whether the provisions of Government Code section 3505.4 apply to a fact finding request.  The County had argued that PERB lacked the jurisdiction to hear the appeal of the Office of General Counsel's administrative determination because PERB may only enforce the Meyers-Milias-Brown Act (MMBA) through unfair practice charges.  PERB rejected this argument, noting that its authority to appoint a fact finding panel is not based on any alleged violations of the MMBA, and derives from a different section of the MMBA than the one that covers unfair practice charges. 

PERB also rejected the County's argument that its decision regarding fact finding could unfairly prejudice the outcome in the separate unfair practice charge proceeding.  It noted that while the issues conceivably overlapped, its decision would not cause any prejudice because it was not dictating an outcome in the underlying bargaining dispute; it was simply determining whether the Office of the General Counsel correctly determined that the fact finding process applied to this bargaining dispute.  The only remedy PERB could issue in this case would be to order the parties to engage in fact finding, while resolution of the unfair practice charge could result in an order for the County rescind its unilaterally-imposed changes. 

The County also argued that because a superior court issued an injunction in County of Riverside v. Public Employment Relations Board (2013) (Case No. RIC 1305661) barring PERB from approving any request for fact finding in any bargaining dispute other than for a new or successor comprehensive MOU, PERB was prohibited from processing SEIU's fact finding request in this case.  PERB rejected the argument, noting that it is well settled that a court decision is not binding until it is final.  Because the superior court's opinion is currently on appeal, it is not final and PERB is not bound by it. 

The County also argued that the legislative history of AB 646, the bill that instituted the new fact finding procedures, indicates that it was only intended to apply to impasses in negotiations for new or successor MOUs.  Accordingly, fact finding does not apply to impasses in bargaining over mid-term reopeners, or the effects of non-mandatory subjects of bargaining such as layoffs or other single-issue disputes. 

PERB previously addressed this argument in County of Contra Costa (2014) PERB Decision No. A410M, and held that AB 646 did not limit fact finding procedures to impasses in negotiations for comprehensive MOUs.  Further, PERB applies the impasse resolution procedures provided in the Educational Employment Relations Act (EERA), a statutory scheme similar to the MMBA, to all bargaining disputes.  PERB presumed that the Legislature knew this when it passed AB 646, and reasoned that it could have drafted specific language if it only intended for fact finding to apply to new or successor comprehensive MOUs. 

For the foregoing reasons, PERB affirmed the Office of the General Counsel's order that the parties select fact finding panel members.      

Note:

As mentioned above, this is PERB's second decision in which it has held that AB 646's fact finding procedures apply to any dispute arising from mandatory bargaining.  Two superior courts have addressed the issue and have reached the opposite conclusion, finding that an employee association may request fact finding only for disputes arising when the parties are bargaining a new or successor MOU. 

This dispute will likely be resolved by either the appellate courts or the Legislature.  One of the superior court rulings, County of Riverside, is currently pending before the Court of Appeal.  There is also a bill, AB 2126,  currently pending before the California State Assembly.  If AB 2126 is passed in its current form, the MMBA will be amended to clarify that the impasse procedures apply to a dispute over any matter within the scope of representation.  LCW will keep you updated on the status of this bill and the appellate court's resolution of the superior court decision in  County of Riverside.  In the meantime,this decision makes clear that until this issue is resolved, PERB will allow employee associations to request fact finding for any dispute that arises from mandatory bargaining.  

County of Fresno (2014) PERB Decision No. A414M, __ PERC ¶ ___.