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.