On June 30, 2012, the memorandum of understanding (MOU) between the Redondo Beach Police Officers Association (Association) and the City of Redondo Beach expired. For a period of sixteen months, the parties negotiated over a successor MOU for the 2013-2014 fiscal year. On July 11, 2013, the Association provided the City with a memorandum entitled: "Meet and Confer/Declaration of Impasse/Request for Mediation MOU for period of July 1, 2012 to June 30, 2013." At some point thereafter, the Association requested mediation, which is voluntary pursuant to the City's local rules.

The City declined the Association's mediation request on October 23, 2013 and, approximately three weeks later, presented the Association with a "Last Best and Final Offer" (LBFO). The City gave the Association until November 20, 2013 to accept, or "the City shall consider the failure to timely agree to result in a concurrent declaration of impasse by the City and [the Association] shall be concurrently on notice that an impasse has been declared without provision to it of further notice in that regard."

In a letter dated November 20, 2013, the Association requested factfinding. PERB's Office of the General Counsel issued an administrative determination that the Association's factfinding request was not timely. The Association appealed, and PERB affirmed.

As an initial matter, PERB addressed whether it had the authority to consider the Association's appeal. Government Code section 3509 of the Meyers-Milias-Brown Act (MMBA) lists some of PERB's powers and duties, but then states that the powers and duties do not apply to management employees. Section 3511 states that changes made to Section 3509 do not apply to peace officers. Because the Association appears to represent management employees and peace officers, PERB may not have jurisdiction over appeals governed by Section 3509. However, PERB's authority over this appeal comes from Section 3505.4, which does not contain any exceptions for management employees or peace officers. Thus, PERB held that it has jurisdiction over the Association's appeal.

Section 3505.4 provides that an employee association may request that the parties' differences be submitted to a factfinding panel. "If the dispute was not submitted to mediation, an employee organization may request that the parties' differences be submitted to a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of a declaration of impasse…." PERB Regulation 32802 further provides that the factfinding request may be filed "(1) Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant either to the parties' agreement to mediate or a mediation process required by a public agency's local rules; or (2) If the dispute was not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse."

The Association declared impasse on July 11, 2013, and requested "all official procedures and processes that are associated with such declaration." While it later requested mediation, the parties did not agree to submit their dispute to mediation. Thus, the Association's deadline to request factfinding was 30 days after it provided the City with its written notice of impasse. The fact that the City waited well beyond the 30-day period to deny mediation did not alleviate the Association's responsibility to meet its deadline to request factfinding, especially when its own declaration of impasse triggered the deadline.

Therefore, PERB denied the Association's appeal.

Note:

In our April 2014 Client Update, we reported on the case of Santa Clara County Correctional Peace Officers' Association, Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, and included the following Note:

"As the Court of Appeal noted in its decision, the MMBA did not mandate an impasse resolution procedure when the Association filed its writ petition. That same year, the Legislature passed AB 646, which amended the MMBA. Effective January 1, 2012, if either party provides a written notice of impasse, the employee association may request factfinding, which is a process similar to advisory arbitration. The timing for requesting fact-finding depends on whether the parties first decide to mediate, which remains voluntary under the MMBA. If the parties use impasse mediation, the employee association has 30-45 days from the appointment or selection of the mediator to request factfinding. If the parties do not go to mediation, the employee association has 30 days from the declaration of impasse."

We wanted to provide further clarification regarding the types of disputes to which factfinding procedures apply. There is currently a dispute over whether an employee association may request factfinding for any dispute arising from mandatory bargaining or only for disputes arising when the parties are bargaining a new or successor memorandum of understanding (MOU). While PERB takes the former position, two superior courts have ruled against PERB, finding that the post-impasse AB 646 factfinding procedures do not apply to all bargaining disputes; they only apply when bargaining for a new or successor MOU. 

Superior court orders do not create precedent (i.e., they are not binding on any other courts), and thus the question remains unsettled until an appellate court addresses the issue or until the legislature intervenes. There is currently a bill pending before the California State Assembly, A.B. 2126, which seeks to amend Government Code section 3505.4 "to include those differences that arise from any dispute over any matter within the scope of representation as to which an obligation to meet and confer exists, and are not limited to negotiations after impasse after collective bargaining for a new or successor memorandum of understanding." We will keep you updated on the status of this bill and the appellate court's resolution of the superior court orders.

City of Redondo Beach v. Redondo Beach Police Officers Association (Police Management Unit), PERB No. A409M, __ PERC ¶ ___.