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.”

PERB: "Economic Exigency" Not Enough to Declare Impasse

In Selma Firefighters Association, IAFF, Local 3716 v. City of Selma, the Public Employment Relations Board ("PERB") took a hard line against employers’ citing economic exigency to declare impasse.

The City of Selma engaged in MOU negotiations with Selma Firefighters’ Association. During the bargaining process, the City abruptly ended negotiations and declared impasse. The City imposed it’s last, best, and final offer to the Selma Firefighters’ Association, claiming economic exigencies and a budget deadline warranted the impasse.

The City argued this budgeting deadline was relevant because the MOU must be agreed to prior to the next year’s budget being adopted. PERB found against the City. The Board held economic exigency did not warrant the City of Selma to declare impasse and impose its last, best, and final offer. In fact, the Board explained “it has long been noted that such economic exigency provides no justification for suspending the duty to bargain in good faith.” The Board also held an impending budget deadline did not justify the bargaining impasse. The Board ruled collective bargaining has no necessary linkage with the budgetary process.

This decision strengthens employee groups' bargaining position. The case creates a clear precedent that arguments like those utilized by the City of Selma are improper. Employers attempting to justify unilateral action based on claimed “fiscal emergencies” are not operating under an exception to their bargaining obligation. Additionally, an agreement does not need to be reached before a City’s final budget is adopted for the upcoming year.

PERB Rules County Rushed to Declare Impasse

In SEIU Local 721 v. County of Riverside, the Public Employment Relations Board ("PERB") took a hard line against employers that rush to declare impasse.

SEIU and Riverside County started negotiations over a new MOU in late March 2009.  The existing MOU was set to expire on June 30, 2009.  The County sought significant economic concessions.  On June 22, the County presented SEIU with a complete proposed MOU. 

SEIU responded with various counteroffers.  However, the County abruptly ended negotiations and declared impasse.  The County provided several reasons for declaring impasse, including that it could not come up with a counterproposal on an issue regarding stewards' pay.  SEIU responded that the steward's pay issue was not a deal-breaker, and that it was willing to stay all night to complete negotiations.

The County met with SEIU on July 27, but it refused to accept any offers from SEIU.  The County informed SEIU it believed mediation and factfinding would be fruitless and that it would be imposing its LBFO on July 30.  However, the County also said it would be open to negotiations after July 30.

SEIU and the County met on August 10 and 19 and agreed on a new MOU.  The MOU had an effective date of August 1 and eliminated step increases.  But when SEIU learned in September that the County had refused to pay step increases to those employees entitled to them in July, it filed an unfair practice charge.

PERB ruled negotiations were not at a genuine impasse on July 27.  It found the County declared impasse solely because it wanted to take unilateral action.  PERB ordered the County to provide back pay.  PERB also ruled it did not have to apply the "totality of the circumstances" test for bad faith.  Instead, the County's unilateral change of wages (by elimination of the July step increases) was a per se violation.

This decision strengthens employee groups' bargaining position.  When challenging an agency's declaration of impasse, employee organizations do not have to show bad faith by the agency.  Instead, employee organizations only need to show the declaration of impasse was premature.

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.