Court of Appeals Holds MMBA Fact-finding Applies to all Impasses, not Just Those Concerning MOUs
by David G. Ritchie on March 31, 2016
The Fourth District Court of Appeals issued two decisions yesterday that held that fact-finding under the Meyers-Milias-Brown Act (“MMBA”) applies to all impasses between exclusive representatives and MMBA public agencies such as cities, counties, and special districts. The results in these cases means that when impasse is reached in negotiations involving a city, county or special district with an exclusive representative employee organization, and that dispute involves subject matters within the scope of representation, the public agencies could be forced to engage in non-binding fact-finding if the exclusive representative meets certain conditions. (Of note, it is only the exclusive representative and not the public agency that has the ability to trigger fact-finding under the law.)
Our experience representing public employers during fact-finding proceedings shows that employers must adequately prepare to address all of the criteria that will be considered well in advance. Because the gathering and analysis of this information is time-consuming, and impasse proceedings can occur over a very short time frame, begin preparations for negotiations early, with the potential need to address the fact-finding criteria in mind from the beginning of negotiations. This applies equally to negotiations over comprehensive memoranda of understanding (“MOUs”) or single-issue negotiations and is further reinforced by the decisions in the cases discussed here.
The Two Decisions
The Public Employment Relations Board (“PERB”) had previously interpreted the MMBA fact-finding process, contained in Government Code 3505.4, brought into existence through AB 646 in 2012 (the MMBA fact-finding law), as applicable to all impasses, without regard to whether those impasses were a product of a failure to reach agreement over a comprehensive memorandum of understanding or if they pertained to single-issue negotiations.
In Riverside County v. Public Employment Relations Board, the County implemented a new policy for IT employees, requiring them to pass background checks. The County engaged in impact bargaining with the Exclusive Representative, SEIU Local 721, but failed to reach agreement. The Union declared impasse and, after the parties did not opt for mediation, SEIU 721 requested fact-finding through the PERB under California Government Code 3505.4. PERB granted the request; however, the County objected and filed a petition for writ of mandate seeking (among other things) declaratory relief and a ruling that MMBA fact-finding was not available in single-issue disputes that do not arise from negotiations over a new or successor overall MOU.
Separately, in San Diego Housing Commission v. Public Employment Relations Board, a housing commission had decided to lay off two represented employees. Negotiations over the impacts of the layoffs with Service Employees International Union, Local 221 broke down and the union requested fact-finding under the MMBA once impasse was reached. The Commission objected to the fact-finding request being granted and filed a petition for writ of mandate seeking declaratory relief in similar fashion to Riverside. In both of these cases, the public agency prevailed at the trial court level on the issue of fact-finding over impasses in single issue negotiation situations.
The Court ordered the two cases be considered together and issued decisions in each, providing a thorough explanation in the San Diego Housing Commission case of its interpretation of the fact-finding law. The court notes that prior to AB 646, public agencies did not have any obligation to engage in fact-finding following impasse, while afterward unions became able to compel fact-finding as an impasse procedure that would, if used properly, delay any imposition of a last, best and final offer until after fact-finding was complete. The Court took note of the fact that PERB has interpreted the fact-finding law on several grounds: (1) there is no express limitation in the law stating that it is restricted to disputes arising from negotiations over a comprehensive MOU; (2) analogous provisions in the Education Employer-Employee Relations Act (“EERA”) and Higher Education Employer-employee Relations Act (“HEERA”) had previously been applied to all impasses, and PERB approaches similar acts for public employees in a consistent manner; (3) applying fact-finding to all impasses is consistent with the legislative history of AB 646; and (4) this approach is consistent with the ongoing obligation to bargain over any subject within the scope of representation and distill the resulting agreement into an MOU.
The Court held that PERB is vested with the authority to interpret the acts within its jurisdiction and that the court would defer to PERB’s interpretation unless clearly in error. The Court also held that the Commission did not challenge PERB’s broad interpretation, but argued that it should be interpreted as applying to impasses relating to negotiations over comprehensive MOUs instead, citing four reasons:
- The eight criteria mandated to be considered during fact finding, collectively, could only apply in the context of negotiations for a comprehensive MOU.
- That the words “any applicable” in reference to mediation and fact finding, as well as the lack of ability to unilaterally implement an MOU (rather than terms in the last, best, final) show that there isn’t a legislative intent to apply fact-finding to any negotiable issue.
- Commentary from supporters and opponents of AB 646, that are part of the legislative history allegedly show it was intended to address failures to agree over collective bargaining agreements.
- The EERA and HEERA fact-finding and other impasse proceedings are substantially different enough from the MMBA fact-finding and thus should not be interpreted as applying to all impasses.
The Court addresses all of these individually, and found, in addition to specific reasons dismissing all of these arguments, that adopting any of them would result in an interpretation of the fact-finding law that was in conflict with the overall purposes of the MMBA when considered in its entirety. Specifically, that the general purpose of the Act is to promote full communications between public agencies and employees by providing reasonable mechanisms to resolve disputes over wages hours and other working conditions.
How Should Agencies Respond?
In light of these decisions, public agencies should:
- Prepare to address factors considered during fact-finding from the outset of negotiations.
- Plan carefully in advance of any declaration of impasse in order to understand the impacts of decision-making on timelines affecting fact-finding.
- Comply with timely requests to submit impasse disputes to fact-finding.
- Negotiation impasses and fact-finding can be very challenging, especially where an employer may be attempting to deal with other issues such as allegations of unfair practices arising out of the negotiations. Seek labor relations counsel that is experienced in resolving or addressing these types of situations prior to or early on in the negotiations process.