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.”
