PERB Approves Demand for Fact Finding Over Gun Policy

In 2016, the Ventura County Professional Peace OfficersAssociation (“Association”) and the County of Ventura began negotiating a Firearm Manual. In January of 2017, an impasse was declared over negotiations regarding a specific chapter covering the conduct of armed probation officers.

In February of 2017, the Association filed a request for factfinding with the Public Employees Relations Board (“PERB”). The request was made pursuant to Section 3505.4 of the Meyers-Milias-Brown Act (“MMBA”), as well as, PERB Regulation 32802.

Ventura County objected to the factfinding request. It argued that the policy at issue in the Firearm Manual addressed the use of force by sworn staff. According to the County, matters concerning use of force are not within the scope of representation and therefore not subject to factfinding under the MMBA.  The Association responded that because the Firearm Manual involves the use of deadly force standard applicable in the discharge of a firearm, it is a matter of employee safety and therefore within the scope of representation.

PERB’s Office of the General Counsel issued an administrative determination approving the Association’s request for factfinding. It held that it was not required to determine whether a matter is within the scope of representation before approving a factfinding request. Since the Office of the General Counsel’s role is limited to determining whether the conditions of MMBA section 3505.4 and PERB Regulation 32802 have been met, it was not empowered to determine whether the dispute or difference subject to factfinding is a matter within the scope of representation. As a result, it approved the Association’s request that the parties’ bargaining dispute be submitted to a factfinding panel.

The County appealed this administrative determination.  According to the County, the Office of the General Counsel should have first assessed whether the matter submitted to the factfinding was a matter within the scope of representation.

In ruling against the County, PERB noted that although factfinding is ultimately required only for disputes over matters within the scope of representation, the Office of General Counsel is not required in every case to make a definite determination to that effect before approving a factfinding request. Such a process is unwieldy and generally inconsistent with the time-sensitive nature of the factfinding process.

According to PERB, the principal purpose of factfinding is to assist the parties in reaching a voluntary and prompt resolution to their dispute through intervention of a neutral. To require a preliminary determination as to whether a matter is within the scope of representation before approving a factfinding request “would encourage both delay and gamesmanship, thus defeating the principal purpose of factfinding.”

Appellate Court: Pulbic Agencies Cannot Avoid MMBA Fact-Finding Over Individual Bargaining Disputes

In a closely watched opinion, the Fourth District Court of Appeal held the provisions in the Meyers-Milias-Brown Act (MMBA) for impasse resolution through advisory fact-finding apply to impasses arising during the negotiation of any bargainable matter, and are not limited to impasses arising during the negotiation of a comprehensive memorandum of understanding (MOU).  Overturning the trial court, San Diego Housing Commission v. Public Employment Relations Board held the fact-finding provisions apply to impasses arising during the negotiation of any bargainable matter.  The court stated its holding is consistent with the parties’ obligation to bargain on any bargainable issue, and prepare an MOU to reflect that agreement.


The Court decisively ruled in favor of PERB, which had issued its own precedential decision effectuating this broad application of the fact-finding procedures.  The opinion sends an important message to local agencies seeking to avoid the fact-finding obligations by holding back proposals from negotiations only to submit them after an MOU has been ratified.  A common tactic of agencies seeking to impose controversial policies that may drive contract negotiations to impasse, such as subcontracting unit work, has been to present the proposal while the parties are in contract, attend a few perfunctory meet and confer sessions, and then immediately impose the policy without fact-finding.  


This opinion will provide strong incentive for agencies to bring all their proposals to the table to be resolved in the give and take of negotiations and discourage efforts at piecemeal imposition.  The employer's contention that fact-finding should be limited to just MOU negotiations and not discrete bargainable issues conflicts with the purpose of the MMBA, which is to promote full communication between the agencies and unions through a reasonable method of dispute resolution.

In a companion case, Co. of Riverside v. Public Employment Relations Bd., the Appellate Court adopted the same holding.  In Riverside, the court also dispatched the agency's contention that the entire fact-finding statute is unconstitutional.  Unfortunately, some public agencies reflexively challenge any modification in their bargaining obligation as a purported violation of their authority to set compensation under the home rule of California Constitution. For example, the Fire Fighters Procedural Bill of Rights was unsuccessfully challenged as violating the home rule. The court dismissed this argument stating "fact-finding provisions do not violate this section of the California Constitution because the provisions do not divest a county or a city of its final decisionmaking authority."  

PERB Holds Factfinding Applies to Single-Issue Disputes

On April 26, 2014, PERB held factfinding applies to single-issue disputes as well as negotiations for memorandums of understanding ("MOU") in County of Contra Costa.  This important point of contention will likely be resolved by appellate courts in other recent cases considering the same issue.

In County of Contra Costa, AFSCME Local 2700 ("Association") and the County of Contra Costa ("County") negotiated over creating a legal clerk classification.  The parties reached agreement on all issues except the pay rate for employees in the classification.  The parties declared impasse in early September 2013.  On September 25, 2013, the Association filed a request for factfinding under MMBA section 3505.4 with the Office of the General Counsel. 

The County opposed the Association's request for factfinding and argued requests for factfinding only apply to bargaining disputes arising after negotiations for an MOU, not single-issue bargaining disputes.  The Board heard the County's appeal and approved the Association's request for factfinding.  The Board held factfinding procedures apply to any bargaining impasse over negotiable terms and conditions of employment, not only impasse over new or successor MOUs. 

PERB recognizes the legislative intent behind AB 646 was to "prevent agencies from rushing through the motions of the meet-and-confer process to unilaterally impose the agency's goals and agenda."  If factfinding only applies to disputes over an MOU, agencies could avoid factfinding by splintering negotiations over terms and conditions of employment during the term of the MOU.  This practice would be detrimental to the bargaining process.

PERB Asserts Jurisdiction Over Police and Police Management for Factfinding and Denies Untimely Request

PERB's recent decision in City of Redondo Beach was significant for two reasons.  First, while PERB does not ordinarily assert jurisdiction over police and police management due to exceptions outlined in MMBA sections 3509 and 3511, it found these exceptions do not apply to its authority to appoint a factfinder under section 3505.4.  Second, PERB enforced the 30-day deadline to request factfinding against the association, even though the city did not respond to a request for mediation until after the timeline expired.

The Redondo Beach Police Officers' Association ("Association") and the City of Redondo Beach ("City") were negotiating for a successor MOU.  After sixteen months of negotiations, the Association declared impasse in a letter to the City on July 11, 2013.  The letter triggered the 30-day timeline for the Association to request factfinding.  The Association also requested mediation, which is voluntary, pursuant to the Employer-Employee-Relations policy.  Finally, on October 23, 2013, the City declined the Association's request for mediation.  A few weeks later, the City presented the Association with its "Last, Best, and Final Offer."

The Association then requested factfinding on November 20, 2013, but was denied for untimeliness.  The Association appealed arguing MMBA section 3505.4 contemplates factfinding only after mediation.  It claimed since the City did not respond to the Association's request for mediation for three months, the 30-day timeline did not begin until after the City denied the mediation request on October 23, 2013.  The City argued the Association's deadline to request factfinding was triggered by its letter declaring impasse on July 11, 2013, and the factfinding request was untimely.

Although the parties did not raise the issue, PERB held it had jurisdiction over the appeal.  PERB found that section 3509, exempting management employees from PERB's jurisdiction, and section 3511, exempting peace officers from its jurisdiction, did not apply to requests for factfinding under section 3505.4.  It held the Legislature did not intend for those exceptions to apply to PERB's authority to appoint a factfinder because the Legislature did not include similar language in section 3505.4.

In addition, PERB held the Association's request for factfinding was untimely.  Section 3505.4 gives the sole right to request factfinding to the employee organization.  PERB Regulation 32802 provides if a dispute is not submitted to mediation, a request for factfinding must be submitted within 30 days after either party declares impasse.  The fact that the City waited three months to deny mediation did not alleviate the Association's responsibility to request factfinding within the 30-day statutory deadline.

PERB Rejects Employer Claim Factfinding Is Limited to Impasse Over CBAs

In San Diego Housing Commission v. Public Employment Relations Board, San Diego Superior Court Case No. 37-2012-00087278, the Housing Commission claims mandatory fact-finding only applies to negotiations over a master collective bargaining agreement.  In a recent filing, however, PERB rejected the employer's claims and clarified that AB 646 applies to all collective bargaining disputes, not just impasse in collective bargaining agreement negotiations.  The case started after a union representing Housing Commission employees and the Commission reached impasse over the effects of a layoff.  The union requested factfinding and filed the appropriate paperwork with PERB.  The Commission then filed a lawsuit against PERB, trying to get a judge to order it not to process the request so it could impose without factfinding.

The Meyers-Milias-Brown Act gives unions the right to "request that the parties' differences be submitted to a factfinding panel."  (Gov. Code § 3505.4.)  In this case, the employer wants to add the words "about a master collective bargaining agreement" to qualify "differences" and limit the scope of mandatory fact-finding so that it can impose on the union without a neutral evaluation.  However, PERB explained to the Court that "an MOU is simply a written memorialization of the parties' agreement following negotiations on matters within the scope of representation."  The MMBA's requirement to meet and confer is not limited to collective bargaining agreements typically negotiated once a year or less frequently, indeed, as PERB noted, the term "collective bargaining agreement" does not even appear in the MMBA. Therefore, PERB argued, since factfinding applies to all disputes, "once an employee organization requests the parties' 'differences' be submitted to factfinding...participation in factfinding is mandatory."  The next hearing in the case is March 1, 2013.