County of Contra Costa (PERB A410M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COUNTY OF CONTRA COSTA,
Employer, Case No. SF-IM-126-M
and Administrative Appeal
AFSCME LOCAL 2700, PERB Order No. Ad-410-M
Exclusive Representative. April 16, 2014

Appearances: Meyers, Nave, Riback, Silver & Wilson by Edward L. Kreisberg and
Jesse J. Lad, Attorneys, for County of Contra Costa; Beeson, Tayer & Bodine by
Adrian J. Barnes, Attorney, for AFSCME Local 2700.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION

WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the County of Contra Costa (County) from an administrative
determination (attached) by the Office of the General Counsel pursuant to PERB
Regulation 32802.' In that determination, the Office of the General Counsel approved
AFSCME Local 2700’s (AFSCME) request that the parties’ bargaining differences be
submitted to a factfinding panel. The parties” bargaining dispute involved a single unresolved
issue that remained after they had reached agreement on all other issues related to the creation

of a new classification, legal clerk. The remaining dispute concerned the level of salary to be

paid to the new classification.

' PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

The Office
of
the General Counsel determined that the factfinding procedures
prescribed in the Meyers-Milias-Brown Act (MMBA) section 3505.42 and its implementing
regulation, PERB Regulation 32802(a)(2),3 were applicable to this dispute and directed the
parties to select their respective panel member. From this determination the County appeals,
pursuant
to
PERB Regulation 32360.
For reasons discussed herein, we affirm the Office
of
the General Counsel's
determination and hold that the factfinding procedures added to the MMBA by Assembly Bill
No. 646 (Statutes 2011, ch. 680) (AB 646), passed in 2011, and codified at MMBA
2 The MMBA is codified at Government Code section 3500 et seq. All further
statutory references are to the Government Code unless otherwise noted. MMBA
section 3505.4 establishes a non-binding factfinding procedure for resolving post-
impasse bargaining disputes that may be invoked by the representative employee
organization after mediation efforts,
if
available, have failed to produce a settlement.
3 PERB Regulation 32802 provides, in pertinent part:
(a) 	An exclusive representative may request that the parties'
differences be submitted to a factfinding panel. The request shall
be accompanied by a statement that the parties have been unable
to effect a settlement. Such a request may be filed:
(1) 	Not sooner than 30 days, but not more than 45 days,
following the appointment or selection
of
a mediator
...
(2)	
If
the dispute was not submitted to mediation, not later
than 30 days following the date that either party provided the
other with written notice
of
a declaration
of
impasse.
(b) 	A request for factfinding must be filed with the
appropriate regional office;
...
(c) 	Within five working days from the date the request is
filed, the Board shall notify the parties whether the request
satisfies the requirement of this Section.
If
the request does not
satisfy the requirements of subsection (a)(l) or (2), above, no
further action shall be taken by the Board.	
If
the request is
detennined to be sufficient, the Board shall request that each
party provide notification of the name and contact infonnation of
its panel member within five working days.
2

sections 3505.4 through 3505.7, apply to any bargaining impasse over negotiable terms and
conditions of employment, and not only to impasses over new or successor memoranda of
understanding (MOU).
PROCEDURAL HISTORY
After having negotiated over the creation of a legal clerk classification and reached
agreement on all issues except for the rate of pay for employees in the classification, the
parties declared impasse in early September 2013. On September 25, 2013, AFSCME filed a
request for factfinding with the Office of the General Counsel pursuant to MMBA
section 3505.4.
The County opposed AFSCME's request and urged the Office of the General Counsel
to deny it, asserting that the request was insufficient to meet the statutory requirements for
factfinding. 	The County provided extensive written argument that factfinding was applicable
only to bargaining disputes arising after negotiation for an MOU, and not to single issue
bargaining disputes. AFSCME filed a timely response, disputing the County's arguments and
asserting that if the Legislature intended to limit factfinding under the MMBA, it would have
clearly said so, rather than using more comprehensive words, such as "dispute" and
"differences" in referring to what is subject to factfinding.
On October 2, 2013, the Office of the General Counsel informed the parties by e-mail
that AFSCME's request was approved. This determination was memorialized on October 4,
2013, in the form of an administrative determination.
After being granted extensions of time, the County filed a timely appeal of the
administrative determination on October 28, 2013, and AFSCME filed a timely response on
November 21, 2013.
3

ADMINISTRATIVE DETERMINATION
In explaining its reasons for approving AFSCME's request, the Office
of
the General
Counsel first noted that the bargaining obligation under the MMBA extends to all matters
relating to wages, hours, and other terms and conditions
of
employment, and that this
duty
requires the employer to refrain from making unilateral changes until the parties have
bargained to an agreement or impasse and complied with any applicable post-impasse
resolution procedures. (Coachella Valley Mosquito & Vector Control Dist.
v.
California
Public Employment Relations Bd. (2005) 35 Cal.4 th 1072, 1083-1084.) AB 646 imposed
new
obligations on employers, but also provided a "more orderly and expeditious process for
resolving impasse disputes, with enhanced certainty as to
when-i.e.,
upon completion
of
the
statutorily mandated factfinding
procedures-they
could impose" their last, best and final offer
(LBFO). 	(Admin. Determination, p. 6.)
The administrative determination noted that although the MMBA does not define the
term "impasse," PERB has held that the definition
of
impasse under the Educational
Employment Relations Act (EERA)4 is the appropriate standard under the MMBA as well.
The definition
of
"impasse" does not limit the types
of
"disputes" or "differences" to
just
those
arising during negotiations for a new or successor collective bargaining agreement (CBA) or
MOU.
Additionally, the administrative determination noted that decisions
of
the courts, PERB
and National Labor Relations Board have made clear that collective bargaining is a continuing
process that is not restricted to one comprehensive agreement or one single period
of
bargaining. (Conley
v.
Gibson (1957) 355 U.S. 41, 46). The parties' bargaining obligation
encompasses meeting and conferring with respect to wages, hours, and other terms and
4 EERA is codified at Government Code section 3540 et seq.
4

conditions
of
employment, as well as proposed changes in negotiable terms and conditions
of
employment that may arise during the term
of
an MOU.
Turning next to the language in the MMBA, the Office
of
the General Counsel
concluded that when construed as a whole, the MMBA does not limit the applicability
of
its
factfinding provisions solely to disputes arising during negotiations for an MOU.
MMBA
section 3505.4 uses the term "differences" and "dispute," without limitation to disputes arising
during negotiations over the MOU. Likewise,
in MMBA section 3505.5, which authorizes the
factfinding panel to make findings
of
fact and recommend terms
of
settlement, there is
no
language limiting the parties' "dispute" to one arising during negotiations for an MOU
or
to
any other type
of
negotiations. 	The Office
of
the General Counsel noted that
if
the Legislature
intended to limit the types
of
disputes that could be submitted to factfinding, it could
have
explicitly done so.
The Office
of
the General Counsel concluded that from a policy perspective, the
County's position would undermine the intent
of
AB 646, which was to "prevent public
agencies from rushing through the motions
of
the meet-and-confer process to unilaterally
impose the agency's goals and agenda." (Admin. Determination, p. 9.) If factfinding applies
only to disputes arising during negotiations over an MOU, employers could essentiallyavoid
factfinding by splintering negotiations over terms and conditions
of
employment into single,
mid-term bargaining sessions.
Finally, the Office
of
the General Counsel noted that PERB has applied the statutory
impasse procedures under EERA and the Higher Education Employer-Employee Relations Act
(HEERA)5 to single-subject and effects bargaining disputes, citing Moreno Valley Unified
School District (1982) PERB Decision No. 206, Redwoods Community College District (1996)
5 HEERA is codified at Government Code section 3560 et seq.
5

PERB Decision No.
1141
(Redwoods CCD), and California State University (1990) PERB
Decision No. 799-H. As PERB has properly interpreted and applied the impasse procedures
under BERA and HEERA to disputes arising during negotiations other than just those for an
MOU, PERB's similar interpretation regarding impasse procedures under the MMBA is also
proper.
The Office
of
the General Counsel summarily rejected the County's assertion that
AB 646 violates the California Constitution. Factfinding, unlike binding arbitration for
resolution
of
impasses, is an advisory procedure and therefore does not interfere with the
County's constitutional authority to set wages. Nor does AB 646 delegate to a private party
any
of
the County's powers. It therefore does not violate the state constitution.
COUNTY'S APPEAL
The County interposes both procedural and substantive objections to the administrative
determination. As an initial matter, it claims that PERB lacks jurisdiction to consider the issue
in this case-whether AB 646 applies to a single issue bargaining dispute-because the matter
should be determined only through an unfair practice proceeding, rather than by appeal
of
an
"advisory" opinion
of
the Office
of
the General Counsel. According to the County, MMBA
section 3509, which grants PERB jurisdiction over enforcement
of
the MMBA, "explicitly
provides that alleged violations
of
the MMBA shall be processed as unfair labor practice
charges." (County's Appeal; p. 6.) Therefore, reasons the County, PERB may not bypass the
unfair practice process and issue an advisory opinion "regarding whether or not a local public
agency has failed to comply with what a union might choose to allege is a required impasse
resolution procedure." (Ibid.) Depriving the County of an unfair practice hearing deprives it
of due process, the argument continues.
6

The County asserts, "the only factfinding action that PERB is empowered to take
pursuant to Section 3505.4(a) is to appoint a panel chair for a factfinding panel." PERB does
not have the authority to make a legal determination on the merits
of
an employer's failure to
comply with the factfinding requirements
of
AB
646 outside
of
the unfair practice process.
(County's Appeal, p. 8.) In response to a factfinding request, PERB is limited to determining
whether the request was timely, or whether the request included a statement that the parties
were unable to reach a settlement, according to the County. The Board would be free to
adjudicate the larger issue-whether factfinding applies to all bargaining disputes-were
AFSCME to file an unfair practice charge, which would be subject to a full administrative
hearing and ultimate appeal to the Board itself. 	(County's Appeal, p. 14.)
Next, the County asserts that PERB is bound by a recent decision in County
of
Riverside
v.
Public Employment Relations Board, (2013) Case No. RIC 1305661 (County
of
Riverside), issued by the superior court in Riverside County. In that case, the court agreed
with the employer and found that in passing AB 646, the Legislature intended factfinding
under the MMBA
to
be available only to address bargaining disputes over a new or successor
MOU. The superior court enjoined PERB from appointing a factfinding panel in any
bargaining dispute arising under the MMBA other than in MOU negotiations, and further
required PERB to dismiss any pending factfinding requests involving disputes over single
issue bargaining or the negotiations over the effects
of
a management decision.
In the County's view, the administrative determination, issued a few weeks after the
superior court's decision in the County
of
Riverside case, violated the court's order, and PERB
should now vacate the determination. The County also asserts that the doctrines of collateral
estoppel and res judicata bar PERB from re-litigating the issues that were detennined by the
7

superior court. Thus, PERB is precluded from "holding that the County must go to factfinding
on the instant dispute." (County's Appeal, p. 12.)
In its third procedural argument, the County contends that PERB' s neutrality has been
compromised because the Office
of
the General Counsel issued the administrative
determination while concurrently representing PERB as a defendant in the County
of
Riverside
superior court litigation involving the same issue that is the subject
of
this appeal. 	According
to the County, "basic notions
of
due process and appearances
of
neutrality preclude the same
person or office from both advocating a position with a neutral decision-making Board and at
the same time turning around and serving as the Board's legal advisor on the identical issue."
(County's Appeal, p. 13.)
Regarding the merits
of
this controversy, the County asserts that the legislative history
and statutory interpretation
of
AB 646 "lead to the conclusion that AB 646 factfinding
procedures apply only to negotiations for a new MOU." (County's Appeal, p. 14.) Because
the factfinding provisions
of
MMBA sections 3505.4 through 3505.7 immediately follow the
MMBA sections that relate to MOU negotiations, factfinding therefore can only apply to MOU
negotiations, according to the County.
In the County's view, MMBA section 3505.7 provides further proof that factfinding
applies only to MOU negotiations. That section allows the public agency to implement its
LBFO after completing impasse resolution procedures, but it may not implement an MOU.
MMBA section 3505.7 also provides that after the imposition
of
the LBFO, the employee
organization retains its right to meet and confer on all matters within the scope
of
representation annually before adoption of the agency's budget. According to the County, this
annual right to negotiate applies only in the context of successor MO Us.
8

Further argued by the County, a factfinding panel must take into consideration the eight
factors enumerated in MMBA section 3505.4(d), which refer to components
of
an MOU and
only make sense "in the context
of
collective bargaining." (County's Appeal,
p.
18.)
For
example, the factfinding panel is directed to consider and weigh the financial ability
of
the
public agency; comparability
of
wage, hour and other conditions
of
employment between the
relevant bargaining unit employees and other similarly situated employees
of
comparable
public agencies; cost-of-living information; and overall employee compensation. According to
the County, these factors "are only relevant when evaluating the interplay
of
economic and
other proposals made in negotiations for a comprehensive successor collective bargaining
agreement." (County's Appeal, p. 18.)
Next, the County argues that AB 646's exemption from factfinding for those
jurisdictions that already use binding arbitration to resolve bargaining impasses (MMBA,
§ 3505.S(e)), provides further support for its position. According to the County, this
exemption exists because binding arbitration provides a procedure for resolving MOU
disputes. AB 646's goal
of
providing a "mandatory and uniform impasse procedure" would
not be served
if
factfinding procedures were to apply to issues other than MOU negotiations,
according to the County.
The County also objects to the administrative determination's reliance on PERB
decisions under EERA, noting that there are significant differences between EERA and the
MMBA. In particular, the County seeks to distinguish Redwoods CCD, supra, PERB Decision
No. 1141, a case arising under EERA, because, according to the County, the legislative intent
of
AB 646 was to enhance the effectiveness of the collective bargaining process, whereas the
purpose of EERA's factfinding provisions was to avoid strikes.
9

Finally, the County reiterates its claim that
AB
646 unconstitutionally interferes with
the County's right to manage its finances and determine compensation for its employees.
DISCUSSION
We first address the County's claim that the Board itself is without jurisdiction to
consider the merits
of
this case, and then address other procedural objections raised by the
County. We then turn to the merits
of
the case, first considering the purpose
of
factfinding in
other statutes administered by PERB that include factfinding, and then explaining the
differences between those statutes and the MMBA. Ultimately, this case requires us to discern
the Legislature's intent in passing AB 646, thereby introducing factfinding into the MMBA
as
a procedure for resolving bargaining impasses. Did the Legislature intend to simply import
and replicate the factfinding process and procedures from EERA and HEERA into the MMBA,
or did it intend, as the County urges, to provide a much more limited procedure that applies
only when the parties are at impasse in their negotiations over a new or successor
comprehensive agreement? As we explain further, we conclude that in passing AB 646, the
Legislature intended to import to the MMBA the factfinding processes
of
EERA and HEERA.
Factfinding is a final step in the bargaining process. It is intended to facilitate agreement
between the parties on any and all negotiable terms and conditions
of
employment, and is
therefore not to be artificially restricted only to disputes arising during negotiations over a
comprehensive MOU for a set duration.
I. 	PROCEDURAL ISSUES
A. 	Jurisdiction
After having urged the Office of the General Counsel to consider its arguments on the
merits, i.e., that the factfinding procedures of the MMBA do not apply to single-issue
bargaining disputes or any other disputes outside negotiations for a new or successor MOU, the

County now claims that the Board itself does not have authority to consider these arguments.
We disagree. Both statutory and regulatory authority describe PERB
's
role in administering
the provisions
of
AB 646.
Factfinding under the MMBA is triggered when a recognized employee organization
files a request that the parties' "differences" be submitted to a factfinding panel. 	(MMBA,
§ 3505.4(a).) The request must be filed with the appropriate regional office
of
PERB,
accompanied by proof
of
service and a statement that the parties have been unable to effect a
settlement, and the request must be filed within certain time frames described in PERB
Regulation 32802.6
Within five working days from when the request is filed, a PERB Board agent must
notify the parties whether the request satisfies the requirements described above.
If
the request
is not timely, no further action shall be taken by PERB. However,
"if
the request is determined
to be sufficient, the Board shall request that each party provide notification
of
the name and
contact information
of
its panel member within five working days." (PERB Reg. 32802(c).)
Implicitly contained within the authority to determine whether the request is sufficient is the
jurisdiction to assess whether the request is properly before the Board, i.e., whether the
conditions precedent to a valid request for factfinding exist. Just as courts have jurisdiction to
determine the scope
of
their jurisdiction, PERB necessarily has jurisdiction to determine
whether the provisions
of
MMBA section 3505.4 apply to a particular factfinding request.
(SN Sands Corp.
v.
City and County
of
San Francisco (2008) 167 Cal.App.4 th 185, 192; United
States
v.
Superior Court (1941) 19 Cal.2d 189, 195.)
6 PERB is authorized to adopt regulations and to issue decisions implementing
and interpreting the MMBA. (MMBA, § 3509(a); EERA, § 3541.3.)
11

After consideration
of
the County's and AFSCME's arguments on the merits, the Office
of
the General Counsel concluded that the factfinding procedures set forth in MMBA
section 3505.4 et seq., are applicable to this dispute, and that the other requirements
of
PERB
Regulation 32802 have been met.
An appeal may be taken (and therefore considered by the Board itself) from an
administrative decision made by a Board agent (PERB Regs. 32350 and 32360.) The
administrative determination issued by the Office
of
the General Counsel in this case is an
administrative decision within the meaning
of
PERB Regulation 32350(b ), which requires that
it contain a statement
of
the issues, fact, law and rationale used in reaching the determination.
This administrative determination is not a refusal to issue a complaint, a dismissal
of
an unfair
practice charge, or a proposed decision following a formal hearing, all
of
which are excluded
from the definition
of
"administrative decision" under PERB Regulation 32350(a). The
County's appeal
of
the administrative determination is therefore properly before the Board
itself pursuant to PERB Regulation 32360.7
The County is incorrect in its claim that PERB may only consider the issue in this case
in the context
of
an unfair practice determination. It states: "The question
of
whether the
County has violated any MMBA factfinding requirements should be determined through the
unfair practice process, and PERB's Board only has jurisdiction to consider this issue via an
appeal
of
an Administrative Law Judge's (ALJ) decision on an unfair labor practice concerning
this issue." (County's Appeal, p. 5.) The flaw in this argument is that the County has not been
accused
of
violating any MMBA factfinding requirements. The Office of the General Counsel
7 PERB Regulation 32380 lists administrative decisions that are not appealable.
Prior to October 1, 2013, the list included determinations regarding factfinding requests
made pursuant to PERB Regulation 32802.
12

did not determine that the County had violated any part
of
the MMBA. It simply ordered the
parties to select its panel member, and from that order, the County appeals. 8
The County also argues that the administrative determination is an "advisory legal
decision" because it "bypasses" the unfair practice process. As explained above, the
administrative determination is not an "advisory" opinion.
It
resolved a controversy that was
squarely placed before the Office
of
the General Counsel when the County claimed that
factfinding did not apply to the bargaining dispute over which AFSCME requested factfinding.
B.
	Effect
of
Superior Court Decision in the County o(Riverside Case
PERB appealed the court's decision in County
of
Riverside, which has the effect
of
staying the effectiveness
of
the superior court's decision until the case is finally determined by
the appellate courts. 9 (Code Civil Proc., § 916; Varian Medical Systems, Inc.
v.
Delfino (2005)
35 Cal.4 th 180, 189-190; Private Investors
v.
Homestake Mining
Co.
(1936)
11
Cal.App.2d 488
[writ
of
mandate stayed on appeal].) Thus, PERB is presently not bound by the superior
court's order.
The County also asserts that the doctrines
of
res judicata and collateral estoppel bar
PERB "through its General Counsel's Office now or in subsequent litigation from re-litigating
issues that were already determined in prior court actions." (County Appeal, pp. 11-12.) How
this applies to the Board's administrative determination
of
the County's appeal (as opposed to
a re-litigation
of
a previously determined claim) we need not unravel, for it is well-settled in
It
is entirely possible that the same legal question we are presented with in this
case could come before the Board as an unfair practice case
if
an employer were to
unilaterally implements its LBFO without having participated in factfinding when it
was allegedly obligated to do so. However, unfair practice litigation is not the only
manner in which PERB is authorized to administer the MMBA. (MMBA, § 3509;
EERA, § 3541.3.)
9 The County's petition to the court of appeal for the fourth district for a writ of
supersede as seeking to lift the automatic stay of the superior court's order was
summarily denied on January 14, 2014.
13

California that neither res judicata nor collateral estoppel apply until and unless the judgment
is final. 	(Boblitt
v.
Boblitt (2010) 190 Cal.App.4 th 603, 606; 7 Witkin Calif. Procedure, 5 th ed.
(2008) Judgment,§ 364.) Because an appeal
of
the superior court's decision is pending, there
is no final decision in the County
of
Riverside litigation yet.
C.
	Conflict
of
Interest Between the Board Itself and the Office
of
the General
Counsel
The County claims that the Board itself cannot be neutral in this controversy because
the Office
of
the General Counsel took a position in the County
of
Riverside litigation that is
adverse to the County's position in this case and issued the administrative determination at
issue here, which coincides with the Office
of
the General Counsel's defense in the County
of
Riverside litigation. This argument ignores the statutory role
of
the Office
of
the General
Counsel and misapprehends how the Office
of
the General Counsel and the Board itself
function.
MMBA section 3509(a), which moved enforcement
of
the MMBA from the courts to
PERB, provides that "[t]he powers and duties
of
the board described in Section 3541.3 shall
also apply, as appropriate, to this chapter." Included in the powers and duties enumerated in
EERA section 3541.3 is the power to adopt rules and regulations to carry out the provisions
and effectuate the purposes and policies
of
the MMBA and other statutes PERB administers,
and to take "any other action as the board deems necessary to discharge its powers and duties
and otherwise to effectuate the purposes
of'
the statutes it administers. (BERA,§ 3541.3(g)
and (n).) Like most public agencies, PERB operates through its employees who are delegated
the authority to carry out the statutory functions of the agency.
10
(BERA,§ 3543. l(k).)
10
PERB regulations make the distinction between "the Board itself," meaning
the appointed members and "the Board," which means either the appointed Board or
any Board agent. (PERB Regs. 32020 and 32030.)
·
14

The General Counsel, appointed pursuant to EERA section 3541(£), has broad
responsibility to "assist the board in the performance
of
its functions." In addition, the General
Counsel is specifically authorized to represent PERB in
"any
litigation or other matter
pending
in a court
oflaw
to which the board is a party or
in
which it is otherwise interested."
(EERA,
§ 3541(g).) When PERB is sued over an administrative decision made in the course
of
administering MMBA section 3505.4,
it
is completely within
PERB's
authority and
duty
to
defend itself in that litigation, through its General Counsel.
The Office
of
the General Counsel has other duties in addition to representing
the
agency in litigation. The General Counsel supervises
PERB's
regional attorneys who
investigate and process unfair practice charges to determine whether they should
be
dismissed
or whether PERB should issue a complaint based on the charge. Regional attorneys also
investigate and process petitions for representation, decertification, and unit modifications, and
a variety
of
other issues concerning the identity
of
the exclusive representative. PERB
Regulation 32793 authorizes PERB to determine
if
parties who request the appointment
of
a
mediator pursuant to EERA or HEERA are truly at impasse. These determinations are made
by
the Board's agents, the regional attorneys in the Office
of
the General Counsel.
	And
PERB
Regulation 32802, which sets forth the procedure for initiating the factfinding process
under
the MMBA, requires the factfinding request to be filed with the appropriate regional office,
where a member
of
the Office
of
the General Counsel staff will detennine
if
the request
satisfies the requirements
of
the regulation.
The Board itself serves mainly as an appellate body, deciding appeals taken from
proposed decisions after a formal hearing before an administrative law judge (ALJ), dismissals
of
unfair practice charges, administrative determinations, as in this case, and rulings on
motions and interlocutory orders. The County is incorrect in its assertion that the General
15

Counsel advises PERB in this endeavor. It is the legal advisor, appointed by the Governor for
each Member
of
the Board, that provides legal guidance to Board Members regarding cases
under the Board's consideration, not the General Counsel. (EERA, § 3541(h).) Thus, the web
of
conflict between the Office
of
the General Counsel and the Board itself presumed
by
the
d	County
s1mp
y 	oes not exist.
11
Because the Office
of
the General Counsel has no role in advising the Board
itself in
its
appellate function regarding cases pending before the Board, there is nothing improper about
the Office
of
the General Counsel representing PERB in the Riverside County litigation
seeking to halt PERB's administration
ofMMBA
section 3505.4. (Morongo Band
of
Mission
th
Indians
v.
State Water Resources Control Bd. (2009) 45 Cal.4 	731.) See also, San Diego
Teachers Assn.
v.
Superior Court (1979) 24 Cal.3d
1,
10 (San Diego), where the state Supreme
Court rejected a similar argument, i.e., that PERB could not direct its general counsel to seek
injunctive relief against an unfair practice without compromising the Board's neutrality
in
the
subsequent consideration
of
the merits
of
the unfair practice case. The Court noted in
11
The fallacy
of
the County's argument is further underscored by the role
of
the
Office
of
the General Counsel in unfair practice charge processing. Pursuant to PERB
Regulation 32620, a regional attorney in the Office
of
the General Counsel investigates
unfair practice charges and either issues a complaint or dismisses the charge
if
it fails to
state a prima facie case. Dismissals are appealable to the Board itself. (PERB
Reg. 32635.)
If
the County's claim regarding a conflict
of
interest were coITect, the
Board would not be able to exercise its appellate function to review dismissals
of
unfair
practice charges. Yet, EERA section 3541. 5 explicitly vests in the Board the duty to
devise and promulgate procedures for deciding unfair practice cases. 	Since the
inception
of
the agency, PERB has delegated to the Office
of
the General Counsel the
authority to investigate unfair practice charges initially, subject to the Board's appellate
review.
We also note that the County's conflict
of
interest argument is belied by its
invitation and assertion that this matter only be adjudicated as an unfair practice case.
The Board itself would be in the exact position it is now in deciding the unfair practice
appeal, which originates when the Office of the General Counsel dismisses a charge, or
when, after a complaint issues, an ALJ hears the case and issues a proposed decision.
. 	1 	.
16

San Diego, that EERA section 3541.3(i) gives PERB prosecutorial power, e.g., to investigate
unfair practice charges and alleged violations
of
EERA and
to
take any action as the Board
deems necessary
to
effectuate the policies
of
EERA. The fact that EERA section
354l(f)
provides for a General Counsel who is
to
"assist the board in the performance
of
its functions
under this chapter" indicated to the Court that the Board could delegate its prosecutorial
functions to its General Counsel. While we are not here concerned with an unfair practice, the
principle remains the same. There is nothing improper about the General Counsel defending
PERB in litigation, even
if
the same issues are subsequently presented to the Board itself by
appeals
of
administrative determinations. Indeed, the statute prescribes this. EERA
section 3543
.1
(g) specifically authorizes PERB' s General Counsel to represent the Board in
"any litigation or other matter pending in a court
of
law to which the board is a party
....
"
II. 	AB 646: MMBA AND THE ROLE OF FACTFINDING IN CALIFORNIA LABOR
RELATIONS
A.
	Background
The MMBA, passed in 1968, was the first true collective bargaining law passed in
California for public employees.
12
Its purpose, articulated in MMBA section 3500, is to
"promote full communication between public employers and their employees by providing a
reasonable method
of
resolving disputes regarding wages, hours, and other terms and
conditions
of
employment." An additional purpose is to improve employer-employee relations
within various public agencies by "providing a uniform basis for recognizing the right
of
employees to join organizations of their own choice and be represented by those organizations
Earlier statutes such as the George M. Brown Act (Stats. 1961, ch. 1964, § 1)
and the Winton Act (Stats. 1965, ch. 2041, § 2) did not provide for collective
bargaining as commonly conceived because they did not require the employer to
recognize a single exclusive representative of employees, and did not place on either
the employer or employees a duty to negotiate in good faith. (See Pacific Legal
Foundation v. Brown (1981) 29 Cal.3d 168, 176.) Nor did either of these statues
provide for written, binding agreements after the conclusion of meeting and conferring.
17

in their employment relationships with public agencies." Prior to the passage
of
AB 646 in
2011, the MMBA had no provision for factfinding, and mediation was either voluntary or
dictated by local rule or regulation.
Although the statutes enacted after the MMBA (notably EERA and HEERA) prescribed
more elaborate procedures for resolving bargaining impasses, including factfinding, the
MMBA recognized the utility
of
impasse resolution procedures even before the passage
of
AB 646. MMBA section 3505, defining "meet and confer in good faith" states, in relevant
part:
The process [
of
meeting and conferring in good faith]
should include adequate time for the resolution
of
impasses where specific procedures for such resolution
are contained in local rule, regulation, or ordinance, or
when such procedures are utilized by mutual consent.
1.	
Factfinding Under EERA and HEERA
In 1975, the Legislature passed Senate Bill No. 160, (Stats. 1975, ch. 961) (SB 160),
creating the Educational Employment Relations Board (later re-named the Public Employment
Relations Board) and enacting EERA. The purposes
of
EERA are very similar to those
of
the
MMBA: "to promote the improvement
of
personnel management and employer-employee
relations within the public school systems
...
by providing a uniform basis for recognizing the
right
of
...
employees to join organizations
of
their own choice, to be represented by the
organizations in their
...
employment relationships with public school employers." (EERA,
§ 3540.)13
13
HEERA, the other statute under PERB's jurisdiction that contains a
factfinding process, states its purpose slightly differently, exhibiting deference to
academic freedom, the constitutional status of the Regents of the University of
California, etc. HEERA section 3560(a) declares the state's fundamental interest in the
development of hannonious and cooperative labor relations between higher education
employers and their employees. 	Subsection ( e) of 3560 further states that it is the intent
of HEERA to accomplish its purpose by providing a unifonn basis for recognizing the
18

right
of
employees to designate representatives
of
their own choosing for the purpose
of
representation in their employment relationships with their employers and to select an
exclusive representative for the purpose
of
meeting and conferring.
From its initial draft and throughout amendments made to the bill, SB 160 contained
the impasse procedures provisions that now appear in EERA section 3548.
14
Under those
provisions, either a public school employer or the exclusive bargaining representative
may
declare that
"an
impasse has been reached
...
in negotiations over matters within the scope
of
representation and may request the board to appoint a mediator for the purpose
of
assisting
them in reconciling their differences and resolving the controversy on terms which are
mutually acceptable." The Board appoints a mediator
if
it determines that an impasse exists.
(EERA, § 3548.)
If
the mediator is unable to effect a settlement
of
the dispute, and declares that
factfinding is "appropriate to the resolution
of
the impasse," either party may request that their
differences
be
submitted to a factfinding panel. (EERA, § 3548.1.) Each party designates its
appointee to the panel and PERB selects a chairperson.
The factfinding panel then conducts an investigation and may hold a hearing,
or
"take
any other steps as it may deem appropriate." EERA section 3 548 .2(b) directs the factfinders to
"consider, weigh, and be guided by all the following criteria:"
(1) 	State and federal laws that are applicable to the
employer.
(2) 	Stipulations
of
the parties.
(3) 	The interests and welfare
of
the public and the
financial ability
of
the public school employer.
(4) 	Comparison
of
the wages, hours, and conditions
of
employment
of
the employees involved in the factfinding
14 In fact, earlier unsuccessful bills to enact collective bargaining for all public
sector employees contained similar provisions for factfinding after mediation. See
SB 400 (Moscone), which was vetoed in 1974.
19

proceeding with the wages, hours and conditions
of
employment
of
other employees performing similar
services and with other employees generally in public
school employment in comparable communities.
(5) 	The consumer price index for goods and services,
commonly known as the cost
of
living.
(6) 	The overall compensation presently received
by
the employees, including direct wage compensation,
vacations, holidays, and other excused time, insurance and
pensions, medical and hospitalization benefits; the
continuity and stability
of
employment; and all other
benefits received.
(7) 	Any other facts, not confined to those specified in
paragraphs (1) through (6), inclusive, which are normally
or traditionally taken into consideration in making the
findings and recommendations.
The purpose
of
these impasse resolution procedures was to provide an orderly
method
for assisting the parties in reaching agreement over bargaining disputes. 	Factfinding
was
seen
as an alternative to binding arbitration for impasse resolution, which is not providedfor
in
EERA. In addition, "The impasse procedures almost certainly were included in EERA for the
purpose
of
heading
off
strikes. 	[Citation omitted.] 	Since they assume deferment
of
a strike at
least until their completion, strikes before then can properly
be found to
be
a refusal to
participate in the impasse procedures in good faith and thus an unfair practice under
section 3543.6, subdivision (d)." (San Diego, supra, 24 Cal.3d 1, 8-9.)
15
In short, impasse
resolution procedures under EERA were conceived as an instrument for bringing labor peace
by assisting parties in reaching agreement in negotiations.
15
PERB cases decided after San Diego, supra, 24 Cal.3d 1 established that a
strike occurring before the completion
of
impasse procedures, including factfinding,
creates a rebuttable presumption that the striking employee organization violates its
duty to bargain in good faith or to participate in the impasse resolution procedures in
good faith. 	(Fresno Unified School District (1982) PERB Decision No. 208;
Sacramento City Unified School District (1987) PERB Order No. IR-49.)
20

HEERA
contains impasse procedures very similar to those in EERA. (HEERA, § 3590
et seq.) Either party
may
declare "that an impasse has been reached between the parties
in
negotiations over matters within the scope ofrepresentation." (HEERA, § 3590.)
If
the Board
determines that an impasse exists,
it
appoints a mediator who shall attempt "to persuade
the
parties to resolve their differences and effect a mutually acceptable memorandum
of
understanding." (HEERA, § 3590.)
If
the mediator is unable to effect settlement
"of
the
controversy" and declares that factfinding is appropriate, either party
may
request that
their
differences
be
submitted to a three-person factfinding panel, consisting
of
one member
appointed
by
each party and the chairperson appointed
by
the Board.
The factfinding panel meets with the parties and considers their respective positions
and makes additional inquiries and investigations as it deems appropriate.
If
the dispute is not
settled within 30 days, the factfinding panel makes findings
of
fact and recommends
"terms
of
settlement," which are advisory. Unlike under EERA and the MMBA, the HEERA factfinding
panel is not instructed to consider any particular factors in making its recommendations for
settlement.
2. 	The Scope
of
Impasse Resolution Procedures Under EERA
andHEERA
EERA section 3548 provides that either party may invoke impasse resolution
procedures
by
declaring that "an impasse has been reached
...
in negotiations over the matters
within the scope
of
representation." HEERA contains the same language at HEERA
section 3590. Under both statutes, after PERB determines that an impasse exists, a mediator is
appointed to assist the parties in "resolving the controversy," and to attempt to "effect a
21

mutually acceptable agreement."
16
If
the mediator is unsuccessful
in
settling
"the
controversy," the parties' "differences" are submitted to a factfinding panel. (EERA, § 3548.1;
HEE RA, § 3 591.)
If
the "dispute" is not settled through the factfinding investigation,
the
panel
shall recommend "terms
of
settlement." (EERA, § 3548.3; HEERA, § 3593(a).)
Thus, the plain language
of
EERA
and HEERA extends factfinding to negotiations over
all matters within the scope
of
representation.
	By
using such terms as "differences,"
"controversy" and "dispute," the Legislature avoided limiting
EERA's
and
HEERA's impasse
resolution procedures
only
to negotiations over new
or
successor collective bargaining
agreements.
	On
the contrary, the language used in other parts
of
EERA
and
HEERA points in
the opposite direction. "Impasse" "means that the parties to a dispute over matters
within
the
scope
of
representation have reached a point in meeting and negotiating" where future
meetings would
be
futile. 	(EERA, §
3540.l(f),
emphasis added.) 17
"Impasse" is not confined
to intractable disputes over only a particular type
of
agreement, such as a single CBA
or
successor MOU.
EERA also defines "Meeting and negotiating" expansively. It means "meeting,
conferring, negotiating and discussing
...
in a good faith effort to reach agreement
on
matters
within the scope
of
representation and the execution,
if
requested
by
either party,
of
a written
document incorporating any agreements reached
....
" (EERA, § 3540.l(h).)
18
Agreement on
16
HEERA is phrased slightly differently. The mediator is to "persuade the
parties to resolve their differences and effect a mutually acceptable memorandum
of
understanding." (HEERA, § 3590.)
17
HEERA defines "Impasse" as
"a point in meeting and conferring at which
[the parties'] differences in position are such that further meetings would be futile."
(HEERA, § 3562(j).)
18
HEERA's definition of"Meet and confer" more closely replicates that
of the
MMBA. Under HEERA the parties have a mutual obligation "to meet at reasonable
times and to confer in good faith with respect to matters within the scope of
22

matters within the scope
of
representation include not only complete CBAs, but settlements
of
disputes over a myriad
of
terms and conditions
of
employment, because the duty to bargain is
not limited only to negotiations that result in written CBAs.
representation and to endeavor to reach agreement on matters within the scope of
representation. This process shall include adequate time for the resolution of impasses.
If agreement is reached
...
[the parties] shall jointly prepare a written memorandum of
understanding
....
" (HEERA, § 3562(m).)
It is beyond dispute that the duty to bargain is an ongoing obligation on the part
of
both
parties that does not necessarily end once a CBA is finalized. 	(National Labor Relations Bd.
v.
Jacobs Mfg.
Co.
(2d. Cir. 1952) 196
F.
2d 680 [duty to bargain continues during the term
of
a
CBA, unless the duty is discharged or waived].) PERE.has followed this rule. (Placentia
Unified School District (1986) PERB Decision No. 595; State
of
California (Department
of
Forestry and Fire Protection) (1993) PERB Decision No. 999-S.)
The duty to bargain in good faith applies to any matter within the scope
of
representation and is not confined to negotiations that result in a comprehensive MOU for a
certain duration. Thus, an employer must refrain from making unilateral changes in negotiable
terms and conditions
of
employment unless and until it has bargained in good faith with the
exclusive representative. (Pajaro Valley Unified School District (1978) PERB Decision
No. 51; San Mateo County Community College District (1979) PERB Decision No. 94.) 	This
prohibition against unilateral changes extends through the completion
of
any impasse
procedures. (Modesto City Schools (1983) PERB Decision No. 291, pp. 32-33 (Modesto);
Public Employment Relations Bd.
v.
Modesto City Schools Dist. (1982) 136 Cal.App.3d 881,
900; Moreno Valley Unified School District (1982) PERB Decision No. 206 (Moreno Valley).)
The duty to bargain also includes the duty to negotiate over the implementation and
foreseeable effects of managerial decisions not otherwise subject to the process of collective
bargaining, such as layoffs, staffing levels, employee background checks, additional
23

educational programs, etc. (International Assn.
of
Fire Fighters, Local 188
v.
Public
Employment Relations Bd. (City
of
Richmond) (2011)
51
Cal.4 th
259,277
(International Assn.
of
Fire Fighters); Newman-Crows Landing Unified School District (1982) PERB Decision
No. 223; County
of
Santa Clara (2013) PERB Decision No. 2321-M; Sutter County In-Home
Supportive Services Public Authority (2007) PERB Decision No. 1900-M; Trustees
of
the
California State University (2012) PERB Decision No. 2287-H; Claremont Police Officers
Assn.
v.
City
of
Claremont (2006) 39 Cal.4 th 623 (Claremont).) 	Likewise, parties have an
obligation to bargain over particular subjects contained in a written agreement when they have
mutually agreed to re-open negotiations on those subjects during the term
of
that agreement,
commonly concerning wages and benefits, and over any mandatory subject not covered
in
the
CBA or not waived by a zipper clause or management rights clause.
Under BERA, the end product
of
such negotiations is a "written document
incorporating any agreements reached,"
if
either party requests a written document. 	(EERA,
§ 3540. l(h).) HEERA requires the parties to "jointly prepare a written memorandum
of
understanding" after reaching agreement on matters within the scope ofrepresentation.
(HEERA, § 3562(m).) Under the MMBA, an MOU is the end product
of
meeting and
conferring on matters within the scope
of
representation
if
a tentative agreement is adopted by'
the governing body
of
the public agency. 	(MMBA, § 3505.1.) In other words, an "MOU"
signifies a written agreement on any matter within the scope
of
representation. It can address a
single subject, the effects
of
a decision within the managerial prerogative, mid-term
negotiations, or side letters
of
agreement, etc. MO Us are the manifestation
of
the parties'
agreement on any negotiable subject. 	Contrary to the County's implication, the term "MOU"
is not limited to a document that results from negotiations for a comprehensive agreement of a
set duration. All negotiations are negotiations "for an MOU."
24

As shown, the duty to bargain in good faith extends well beyond the duty to bargain for
a comprehensive MOU for a set duration, and that duty includes good faith participation
in
the
impasse resolution procedures. Given that there is no language in EERA or HEERA that limits
impasse resolution procedures only to negotiations for a comprehensive contract, it follows
that factfinding, at least under EERA and HEERA, applies to all bargaining disputes
concerning matters within the scope
of
representation.
PERB has held as much throughout its administration
of
EERA section 3548 et seq.,
and under HEERA section 3590. In Moreno Valley, supra, PERB Decision No. 206, pp. 4-5,
the Board explained:
The assumption
of
unilateral control over the employment
relationship prior to exhaustion
of
the impasse procedures
frustrates the EERA's purpose
of
achieving mutual
agreement in exactly the same ways that such conduct
frustrates that purpose when it occurs at an earlier point.
[Citation omitted.] The impasse procedures
of
EERA
contemplate a continuation
of
the bilateral negotiations
process
....
For the reasons set forth in San Mateo
Community College District [(1979) PERB Decision
No. 94], we find that following a declaration
of
impasse, a
unilateral change regarding a subject within the scope
of
negotiations prior to exhaustion
of
the impasse procedure
is, absent a valid affinnative defense, per se an unfair
practice.
The Board's decision in Moreno Valley, supra, PERB Decision No. 206 was affinned
by the court
of
appeal in Moreno Valley Unified School Dist.
v.
Public Employment Relations
Bd. (1983) 142 Cal.App.3d 191 (Moreno
v.
PERE). The court explained: "Since 'impasse'
under EERA's statutory scheme denotes a continuation
of
the labor management dispute
resolution process,
...
we think the Board reasonably determined that the considerations
warranting per se treatment of unilateral changes at the negotiation stage also warranted per se
treatment of such changes prior to the exhaustion of the statutory impasse procedure."
(Moreno v. PERE, p. 200.) The court also affinned PERB's holding that the District was
25

obligated to exhaust impasse resolution procedures prior to eliminating certain positions, a
decision over which the employer had to negotiate only the effects thereof. Thus, factfinding
under EERA applies
to
a wide variety
of
bargaining disputes, including issues presented
by
effects bargaining.
Redwoods CCD, supra, PERB Decision No. 1141, also evidences PERB's consistent
interpretation that EERA's factfinding procedures apply without limitation to bargaining
disputes, whether arising in the context
of
negotiations over a comprehensive agreement or
otherwise. In that case, the parties' CBA regarding work hours permitted the employer to seek
voluntary adjustments
of
work schedules.
If
there was no voluntary agreement on such
adjustments, the CBA provided for negotiations between the employer and employee
organization.	
If
negotiations proved futile, the CBA provided for private mediation, and
if
that
was not successful, "the dispute shall not be submitted to a fact-finding panel under the
provisions
of
the Educational Employment Relations Act." (Redwoods CCD, ALJ Proposed
Dec., p. 6). The parties negotiated over the employer's proposal to rotate security officers'
shifts but did not reach agreement. Private mediation was also unsuccessful, and the employer
implemented its proposed change. The employee organization filed an unfair practice charge
alleging that the employer had failed to participate in the impasse procedure in good faith in
violation
of
EERA section 3543.S(e). The issue before PERB was whether the parties could
legally waive the impasse resolution procedure established by EERA. The Board held that
factfinding may not be waived because it was intended as a public benefit. Implicit in this
holding is that factfinding was found to apply to a single-subject dispute-shift rotation.
The County objects to the Office of the General Counsel's reliance on Redwoods CCD,
supra, PERB Decision No. 1141, to support its administrative detennination, but we find the
case relevant to demonstrate how PERB interprets the factfinding process under EERA.
26

A review
of
factfinding reports issued by panels appointed to resolve EERA and
HEERA bargaining disputes reveals that PERB has consistently appointed mediators and
factfinding panels pursuant to EERA section 3548 and HEERA section 3590 to assist the
parties in resolving a variety
of
disputes, not merely those involving the negotiations
of
new or
successor collective bargaining agreements. 	These include the effects oflayoffs (Natomas
Unified School District (2012) FF-663; Stockton Unified School District (2012) FF-661), and
single issue disputes such
as
health and welfare benefits (Santa Monica Community College
District (2011) FF-653; Wasco Union High School District (2011) FF-644), work-year
calendar (San Miguel Joint Union School District (2011) FF-650), application
of
a salary
formula ( California State University (2010) FF-634-H), binding arbitration ( Chico Unified
School District (2008) FF-623), and fee waiver (California State University (2007) FF-613).
Factfinding panels have also been appointed to resolve bargaining disputes arising in re-opener
negotiations (Palmdale School District (2013) FF-691; Ramona Unified School District (2013)
FF-688; Alameda Unified School District (2012) FF-665; Red
Bluff
Union Elementary School
District (2011) FF-658; California State University (2011) FF-654; Lodi Unified School
District (2010) FF-645; San Carlos School District (2010) FF-638; Hayward Unified School
District (2007) FF-612; University
of
California (2008) FF-624).
19
The repo1is of factfinding panels appointed pursuant to EERA and HEERA
are available at PERB's website, www.perb.ca.gov. The reports are part of PERB's
official files, of which we take administrative notice. (Antelope Valley Community
College District (1979) PERB Decision No. 97, p. 23; Palo Verde Unified School
District (1988) PERB Decision No. 689, p. 4.) The vast majority of factfinding reports
concern impasses reached by parties who were negotiating for successor agreements.
27

B.
	MMBA Factfinding
1.	
The Plain Language
of
AB 646
We turn now to the language
of
MMBA section 3505.4 et seq., to consider the
differences between that statute and EERA and HEERA to determine whether those
differences mandate a different interpretation
of
the scope
of
MMBA factfinding, bearing in
mind that our ultimate task is to discern the Legislature's intent in passing AB 646.
AB 646 added to the MMBA sections 3505.4 through 3505.7, which permit an
employee organization to request that the parties' "differences" over bargaining be submitted
to a factfinding panel after mediation,
if
utilized, was unsuccessful. The factfinding panel is
empowered to hold hearings and investigations and ultimately make findings and
recommendations to resolve the bargaining dispute. The panel's recommendations are not
binding on either party, and the public agency is free to implement its LBFO after holding a
public hearing on the impasse.
There are salient differences between the impasse resolution procedures prescribed by
EERA and HEERA on the one hand, and those contained in the MMBA. Under the latter
statute, mediation is either subject to local rule or regulation, or completely voluntary with the
parties. (MMBA, § 3505.2.) PERB has no role in appointing a mediator under the MMBA
and no role in determining at this stage whether an impasse exists. Likewise, a mediator,
if
utilized by the parties under the MMBA, has no role in determining that factfinding is
appropriate to resolving the dispute. Instead, factfinding may be invoked under the MMBA
only by the employee organization within certain timeframes after the completion
of
mediation,
if
it was utilized, or after a written declaration of impasse by either party. 	(MMBA,
§ 3505.4.) As under the EERA and HEERA, the Board selects the chairperson of the MMBA
28

factfinding panel, or the parties
may
mutually agree
upon
a chair
in
lieu
of
the person
selected
by
the Board. (MMBA, § 3505.4.)
The MMBA
borrows from
EERA
section 3548.2(b) in directing the factfinding
panel
to
"consider, weigh and
be
guided
by
all the following criteria." (MMBA, § 3505.4(d).)
These
criteria, set forth infra at pages 42-43, are identical, except that an
MMBA
factfinding
panel
must consider local rules, regulations, and ordinances
in
addition to state and federal
laws
that
are applicable to the employer.
The
factfinding panel recommendation for terms
of
settlement under all three
statutes
is
advisory only, and is to
be
submitted to the parties privately before the public employer is
required to
make it
public. (MMBA, § 3505.5(a); EERA, § 3548.3(a); HEERA, §
3593(a).)
The
cost
of
the panel chairperson is equally divided between the parties under
the
MMBA. (MMBA, § 3505.5(b) and (c).) EERA and HEERA require the Board to
pay for the
chairperson selected
by
the Board. (EERA, § 3548.3(b); HEERA, § 3593(b).)
The MMBA
recognizes that some charter cities, charter counties,
or
a charter
city
and
county
may
provide in their charter a provision for binding arbitration
if
an impasse
has been
reached between the parties.
	The
provisions
of
MMBA section 3505.4 do not apply to
such
charter entities "with regard to its negotiations with a bargaining unit to which the
impasse
procedure applies." (MMBA, § 3505.5(e).) There is no similar provision for binding
arbitration in either EERA or HEERA to resolve bargaining impasses.
MMBA section 3505.7 pennits the public agency subject to the factfinding procedures
to implement its LBFO no earlier than ten days after the factfinding panel's written findings
of
fact and recommended terms
of
settlement have been submitted to the parties and after the
public agency has held a public hearing regarding the impasse. 	This codifies PERB decisions
under EERA and HEERA holding that an employer may not implement its LBFO until after
29

impasse resolution procedures have been exhausted. (Rowland Unified School District (1994)
PERB Decision No. 1053; State
of
California (Department
of
Personnel Administration)
(2010) PERB Decision No. 2130-S.)
MMBA section 3505. 7 additionally clarifies the status
of
an imposed LBFO.
	The
public agency may implement its LBFO after the exhaustion
of
impasse resolution procedures,
but it may not implement an MOU. Further, "[t]he unilateral implementation
of
a public
agency's last, best and final offer shall not deprive a recognized employee organization
of
the
right each year to meet and confer on matters within the scope ofrepresentation, whether or
not those matters are included in the unilateral implementation, prior to the adoption
by
the
public agency
of
its annual budget, or as otherwise required by law." This language is not
replicated in EERA or HEERA.
The County points to three differences between EERA and the MMBA that it claims
justify a narrow interpretation
of
AB 646. First, EERA applies to schools and colleges, and the
MMBA applies to municipalities and local governmental subdivisions
of
the state. Second, the
MMBA permits local employers to adopt their own local rules governing employment
relations, including resolution
of
impasses. And third, EERA has a "complicated" scope
of
bargaining, which specifically enumerates certain terms and conditions
of
employment and
identifies circumstances in which the Education Code applies
if
the parties fail to reach
agreement. The scope
of
bargaining under the MMBA, in contrast, requires bargaining on
wages, hours and terms and conditions
of
employment. (County Appeal, p. 20-21.) While the
County identifies these differences between the statutory schemes, it fails to explain why they
require a radically different interpretation
of
the factfinding provisions contained in the
MMBA. Nor do we believe the differences we identified above require, or even suggest, that
MMBA factfinding applies only to comprehensive MOU negotiations.
30

At the time AB 646 was passed, the law regarding impasse resolution was well-
established. 	The Legislature is presumed to have known that PERB applied existing
impasse
resolution procedures to single-issue bargaining disputes, mid-term contract negotiations
disputes, and effects bargaining disputes. (Moore
v.
California State Board
of
Accountancy
(1992) 2 Cal.4 th 999, 1018; Cooper
v.
Unemployment Ins. Appeals
Bd.
(1981)
118 Cal.App.3d 166, 170.) Likewise, the Legislature is presumed to have knowledge
of
judicial decisions describing the scope
of
the duty to meet and confer in good faith,
namely
that the duty covers more than simply the duty to meet and confer over the terms
of
an
MOU.
Claremont, supra, 39 Cal.4 th 623 [the duty to bargain attaches to proposed changes
in
	(See
wages, hours and other terms and conditions
of
employment]; International Assn.
of
Fire
Fighters, supra,
51
Cal.4 th 259 [ duty to meet and confer on the effect
of
management decisions
which are themselves within the prerogative
of
management to make].) (Peters
v.
Superior
Court (2000) 79 Cal.App.4 th 845, 850 (Peters).)
It is onto this statutory and regulatory landscape that the Legislature added the
requirements
of
AB 646. The question before us then is whether, in passing AB 646,
the
Legislature intended to eschew PERB 's earlier construction and application
of
impasse
resolution procedures under EERA and HEERA and to create a much-constrained factfinding
procedure applicable only to MOU negotiations.
In interpreting statutes, we are guided by the rules
of
statutory construction which seek
to ascertain the intent
of
the Legislature so as to effectuate the purpose
of
the law by giving a
reasonable and common sense interpretation consistent with the apparent purpose
of the
statute. Significance should be given,
if
possible, to every word, phrase and sentence
of
the
statute, and effort must be made to harmonize the various parts
of
the enactment in the context
of the statutory framework as a whole. We must take into account the harms to be remedied
31

and the history
of
legislation on the same subject, public policy and consistent administrative
construction. (DeYoung
v.
City
of
San Diego (1983) 147 Cal.App.3d 11, 18; Moyer
v.
Workmen's Comp. Appeals Bd. (1973)
10
Cal.3d 222, 230.) As noted in Medical Board
v.
SuperiorCourt(2001) 88 Cal.App.4
th
1001, 1016: "One 'elementary rule'
of
statutory
construction is that statutes in pari
materia-that
is, statutes relating to the same subject
matter-should
be construed together." With these principles in mind, we turn to the
task
of
ascertaining the Legislature's intent in passing AB 646.
Under all three statutes discussed here, the purpose
of
impasse resolution, whether
mandatory or voluntary, is to bring resolution to bargaining disputes with the assistance
of
a
neutral third party to mediate, persuade, or suggest terms
of
settlement. Impasse resolution
procedures represent a legislative policy choice that favors negotiations above unilateral action
by either party and seeks to provide a structured "cooling
off'
period. During this period, all
avenues to a peaceful settlement
of
bargaining disputes can be explored as each party presents
the factfinding panel with information, and the panel in turn makes findings
of
fact and
suggests terms to settle the dispute.
The MMBA replicates EERA and HEERA in its description
of
the matters to which
factfinding applies as "differences" and "disputes." (MMBA, §§ 3505.4(a) and 3505.6(a).)2°
No statute by its plain tenns limits impasse resolution procedures to negotiations for collective
bargaining agreements or comprehensive MOUs for a set duration. Yet the Legislature could
have easily inserted such a limitation
if
that is what it intended. We find that the plain
meaning
of
AB 646 is unambiguous. Therefore there is no need to resort to the legislative
20
The MMBA defines "Mediation," the precursor to factfinding, as an effort by
a third party "to assist in reconciling a dispute regarding wages, hours and other tern1s
and conditions of employment." (MMBA, § 3501(e).)
32

history
of
AB 646 to discern the Legislature's intent. (Peters, supra,
79
Cal.App.4 th 845;
Diamond Mutlimedia Systems, Inc.
v.
Superior Court (1999)
19
Cal.4 th 1036, 1047.)
2.
	Legislative History
of
AB 646
Even
if
we were to consider the legislative history
of
AB 646, it supports our
construction
of
the statutory scheme. The County correctly notes that prior to the passage
AB 646, local agencies had discretion to determine whether to adopt any impasse procedures
or none at all. 	It is undeniable that one
of
the purposes
of
AB 646 was to provide for a uniform
procedure for impasse resolution. A review
of
legislative committee reports that accompanied
AB 646 through both houses
of
the Legislature shows that lawmakers believed that creating
impasse procedures was likely to increase the effectiveness
of
the collective bargaining process
by assuring that all avenues to agreement are fully explored before bargaining is declared
unsuccessful.
Throughout AB 646's journey through the Assembly, committee reports replicate a
quotation from its author, Assemblywoman Toni Atkins (Assemblywoman Atkins), on which
the County relies heavily: "Currently, there is no requirement that public agency employers
and employee organizations engage in impasse procedures where efforts to negotiate a
collective bargaining agreement have failed." (Assern. Corn. on Public Employees, Retirement
and Social Security, Rep. on AB 646 [2010-2011 Reg. Sess.] March 23, 2011 [proposed
amendment].) Far from being conclusive, this statement indicates that impasse resolution
would assist the parties in reaching agreement on MOUs. That does not imply an intent to
limit impasse resolution procedures only to negotiations for a comprehensive MOU. That
Assemblywoman Atkins did not provide a complete listing of all possible bargaining disputes
in this sentence does not evince a legislative intent that factfinding would apply only to
bargaining disputes over comprehensive MOUs. As we explained earlier, the term "MOU"
33

refers to any written agreement on negotiable terms and conditions
of
employment adopted by
the parties. It is not only a contract covering a comprehensive set
of
employment terms and
conditions for a set term.
Moreover, Assemblywoman Atkins' statement cannot be relied on for legislative
history because it does not necessarily represent the intent
of
other members
of
the Legislature
who voted to support the bill. 	(In Re Marriage
of
Bouquet (1976)
16
Cal.3d 583, 589-590;
California Teachers Assn.
v.
San Diego Community College Dist. (1981)
28
Cal.3d 692, 701;
Ross
v.
Ragingwire Telecommunications, Inc. (2008) 42 Cal.4 th 920, 931.)
The summary prepared by the Assembly Committee on Public Employees, Retirement
and Social Security for the May 4, 2011 hearing on AB 646 echoes Assemblywoman Atkins'
comment: "SUMMARY: Establishes additional processes, including mediation and
facfinding, that local public employers and employee organizations may engage in
if
they are
unable to reach a collective bargaining agreement." (Assem. Com. on Public Employees,
Retirement and Social Security, Rep. on AB 646 [2010-2011 Reg. Sess.] May 4, 2011 [Note:
Date is the date
of
committee hearing.].) Significantly, the Assembly Public Employment,
Retirement and Social Security Committee's summary changed by the third reading in the
Assembly on the May 27, 2011 amended bill. Summarizing the amended bill, the committee
report reads: 	"SUMMARY: Allows local public employee organizations to request fact-
finding
if
a mediator is unable to reach a settlement within 30 days
of
appointment." (AB 646,
3d reading, as amended May 27, 2011.) (Emphasis added.) While the committee report also
includes Assemblywoman Atkins' quote regarding the lack
of
a requirement for impasse
resolution procedures where efforts to negotiate a collective bargaining agreement fail, it also
includes the following observation from Assemblywoman Atkins: 	"The creation of mandatory
impasse procedures is likely to increase the effectiveness of the collective bargaining process,
34

by enabling the parties
to
employ mediation and fact-finding in order to assist them in
resolving differences that remain after negotiations have been unsuccessful." (Ibid., emphasis
added.) As discussed earlier, the "collective bargaining process" encompasses all labor
negotiations, not simply negotiations for a comprehensive MOU.
By the time AB 646 reached the Senate, committee reports describing its purpose and
effect described it as a bill that would allow local public employee organizations to request
factfinding
"if
a mediator is unable to effect a settlement
of
a labor dispute. " (Emphasis
added.) (Sen. Corn. on Public Employment & Retirement, Rep. on AB 646 [2010-2011 Reg.
Sess.] as amended June 22, 2011.) The analysis by the Senate Rules Committee prepared for
the third reading summarizes the bill using the same term, "labor dispute." (Sen. Rules Corn.
Off.
of
Sen. Floor Analyses, 3d reading analysis
of
AB 646 [2010-2011 Reg. Sess.] as
amended June 22, 2011.)
A review
of
the several versions
of
the bill itself is instructive. The Legislative
Counsel's Digest
of
the first version
of
AB 646, introduced on February 16, 2011 reads, in
pertinent part:
The Meyers-Milias-Brown Act contains various
provisions that govern collective bargaining
of
local
represented employees
....
The act requires the
governing body
of
a public agency to meet and confer in
good faith regarding wages, hours, and other tenns and
conditions
of
employment with representatives
of
recognized organizations. .
..
if
the representatives
of
the
public agency and the employee organization fail to reach
an agreement, they may mutually agree on the
appointment
of
a mediator . . . .
If
the parties reach an
impasse
...
the public agency may unilaterally implement
its last, best and final offer.
This bill would
....
provide that
if
the parties fail to reach
an agreement either party may request that the board
appoint a mediator, and would require the board, if it
determines that an impasse exists, to appoint a
mediator
....
35

This bill would authorize either party to request that the
matter be submitted to a factfinding panel
if
the mediator
is unable to effect settlement
of
the controversy . . . . [,0 .
. .
if
the dispute is not settled within 30 days, the
factfinding panel [is required] to make findings
of
fact and
recommend terms
of
settlement."
(Emphasis added.)21
Nothing in this summary confines impasse procedures to a single type
of
MOU. 	It
begins with a description
of
existing law, referring to the duty to meet and confer in good faith
generally on wages, hours and terms and conditions
of
employment. 	If the parties fail to reach
"an agreement," they may request mediation. Since "an agreement" (as opposed to the term,
"memorandum
of
understanding") refers to the conclusion
of
negotiations on any matter to
which the duty to meet and confer attaches, this phrase in the Legislative Counsel's Digest
signifies that mediation applies not only to comprehensive MOU negotiations, but to
negotiations in general.
The use
of
the terms "matter," "controversy" and "dispute," as opposed to the more
limited "MOU" or "collective bargaining agreement" (a term used in EERA and HEERA),
lends fmiher weight
to
the notion that the Legislature did not intend for the factfinding
procedures
of
AB 646 to be limited to only negotiations for a comprehensive MOU.22 Instead,
AB 646 intended to import the EERA/HEERA model, slightly modified to accommodate some
Digests
of
bills prepared by the Legislative Counsel, like statements in
legislative committee reports, may be relied on to determine legislative intent when
those statements are in accord with a reasonable interpretation
of
the statute. (Maben v.
Superior Court (1967) 255 Cal.App.2d 708, 713.)
22 See Retail Clerks International Association, Locals Unions Nos. 12 8 and
633
v.
Lion Dry Goods (1962) 369 U.S. 17, 25, relying on the assumption that Congress
was well-aware of the meaning of the tenn "collective bargaining agreements" as
opposed to "contracts" when it passed section 301(a) of the Labor Management
Relations Act (29 USC, § 185) giving federal courts jurisdiction over suits for
violations of contracts between an employer and labor organization.
36

of
the unique aspects
of
the MMBA (such as binding arbitration to resolve impasses
in some
jurisdictions). Use
of
these terms, i.e., "matter," "controversy," and "dispute," did not change
when AB 646 was amended on May
5,
2011, to authorize only an employee organization to
request factfinding. 	The Legislative Counsel continued to use the all-inclusive terms
"controversy," "matter," and "dispute," rather than "MOU," in referring to what may
be
submitted to a factfinding panel. (AB 646,
as
amended in Assembly, May
5,
2011, County
Ex. Q.) These terms remain unchanged by the time the bill was signed into law onOctober 9,
2011.
The legislative history
of
AB 646, when considered as a whole, supports our
construction
of
the statute.
3. 	Harmonizing the Statutory Scheme
As additional support for its appeal, the County asserts that because AB 646 was
inserted into the section
of
the MMBA specifically dealing with MOU negotiations, and
immediately follows those sections concerning MOU negotiations, the scope
of
AB 646 must
therefore be limited to negotiations for new or successor comprehensive MOUs. 	The County
reads too much into the statute's architecture.
MMBA section 3505 establishes in its first paragraph the duty
of
a public agency to
meet and confer in good faith with employee representatives regarding wages, hours and other
tenns and conditions
of
employment. It must also "consider fully such presentations as are
made by the employee organization on behalf
of
its members prior to arriving at a
determination
of
policy or course
of
action." (MMBA, § 3 505.) Nothing in this paragraph
limits the meet and confer duty to new or successor comprehensive MOUs. The duty applies
prior to the public agency determining policy or course of action, and is limited only by the
37

appropriate subject matter
of
negotiations, i.e., wages, hours, and terms and conditions
of
employment.
The second paragraph
of
section 3505 defines "meet and confer." We do not read this
definition to limit the duty only to negotiations that produce a comprehensive MOU.
It
reads,
in pertinent part:
"Meet and confer" means that a public agency
...
and
representatives
of
recognized employee organizations,
shall
...
meet and confer promptly upon request
...
and
continue for a reasonable period
of
time in order to
exchange freely information, opinions, and proposals, and
to endeavor to reach agreement on matters within the
scope
of
representation prior to the adoption by the public
agency
of
its final budget for the ensuing year.
As discussed previously, the duty to meet and confer in good faith applies not only to
negotiations for a new or successor comprehensive MOUs, but to mid-term negotiations,
proposed changes the public agency seeks to make in negotiable subjects, and bargaining over
the effects
of
decisions within managerial prerogative.
The term "memorandum
of
understanding" is not used in MMBA section 3505.
It
does
appear in the text
of
MMBA section 3505.1, which requires a public agency to submit a
tentative agreement to its governing body for approval.
If
the tentative agreement is adopted,
"the parties shall jointly prepare a written memorandum
of
understanding." In light
of
well-
settled case law regarding the continuous nature
of
the duty to meet and confer on all
negotiable terms and conditions
of
employment, we do not read this section to limit the type of
MOU to comprehensive agreements. Instead, MMBA section 3505.1 establishes the procedure
for approving an MOU after the parties reach a tentative agreement on whatever subject they
bargained about. 	The proximity of MMBA sections 3505 through 3505.1 does not imply any
limitation on section 3505 's definition of "meet and confer."
38

MMBA section 3505.2 authorizes voluntary mediation
if
the parties fail to reach
agreement. This section does not mention an MOU or otherwise limit mediation to efforts only
to disputes in certain types
of
negotiations. Nor does this section refer to a "tentative
agreement" unlike MMBA section 3505.1. The more inclusive term "reach agreement," as
used in MMBA section 3505.2 implies that mediation applies in a variety
of
bargaining
contexts, not merely negotiations for new or successor comprehensive MOUs.
23
MMBA section 3505.3 provides employer-paid released time for a reasonable
number
of
employee organization representatives when they are "formally meeting and conferring
with" the employer on matters within the scope
of
representation.
The factfinding provisions
of
AB 646 appear in MMBA sections 3505.4 through
3505.7, immediately following the provision for released time, and after the provision for
voluntary mediation. The County is simply not correct when it claims the factfinding
provisions "immediately follow the MMBA sections that relate to MOU negotiations."
(County's Appeal, p. 17.)24 The factfinding provisions are in the same general section
of
the
MMBA that prescribe the duty to meet and confer in good faith on all matters within the scope
of
bargaining. Indeed, there are only two sections in this portion
of
the MMBA sections 3505
through 3505.7, that specifically mention MOUs, and those are sections 3505.1 and 3505.7. It
is logical for the Legislature to have codified AB 646 within this part
of
the MMBA because
23
The definition
of
"Mediation" in MMBA section 3501 ( e) supports this
conclusion, as it refers to "dispute regarding wages, hours and other tem1s and
conditions
of
employment." "Mediation" is not confined to negotiations for a
comprehensive MOU.
24 The County also mistakenly quotes MMBA section 3505.4(a) thusly:	
"If
the
mediator is unable to effect settlement of the controversy
....
" This language
appeared in an earlier version of section 3505.4. That section was amended by Statutes
2012, ch. 314. The version applicable to this case arising in 2013 begins: "The
employee organization may request that the parties' differences be submitted to a
factfinding panel
...
following the appointment
...
of a mediator
....
"
39

the leading provision, MMBA section 3505, establishes the duty to meet and confer in good
faith, and subsequent provisions prescribe certain procedures concerning bargaining.
	We
do
not find that the codification
of
AB 646 within that part
of
the MMBA that describes
bargaining generally indicates the Legislature's intent to confine factfinding only to
comprehensive MOU negotiations, especially where other subsections ofMMBA section 3505
do not limit negotiations only to such comprehensive agreements.
The County contends that because factfinding follows from failed attempts at
mediation, and mediation applies only to comprehensive MOU negotiations, factfinding also
must apply only to MOU negotiations. We reject this argument because, as discussed above,
nothing in MMBA section 3505.2 limits mediation only to comprehensive MOU negotiations.
Next, the County claims that the language
of
MMBA section 3505.7, prohibiting a
public agency from implementing an MOU after exhausting impasse resolution procedures,
shows that factfinding can only apply to MOUs. As noted above, the term "MOU" refers to
any written agreement on negotiable terms and conditions
of
employment adopted by the
parties, not solely to a contract covering a comprehensive set
of
terms and conditions for a set
duration. Even
if
the County were correct that the tenn "MOU" implied a comprehensive
MOU, the County's argument ignores the history
of
this section, which in fact preceded
AB 646. These provisions were added to the MMBA in 2000, eleven years before the passage
of
AB 646. (Statutes 2000, ch. 316, AB 852 (AB 1852).) In its original form, the main
provisions
of
what is now section 3505.7 appeared in MMBA section 3505.4 and were deemed
necessary to overturn the court
of
appeals decision in Cathedral City Public Safety
Management Assn.
v.
City
of
Cathedral City (Cathedral City) (1999, Docket No. E022719.
Review den. and opn. ordered non-published 9/15/99 S080447.) That decision held that a
public employer could impose an MOU after impasse (as opposed to terms and conditions of
40

employment), thereby depriving the representative emplo
bargain during the term imposed by the MOU. The Legislature passed
AB
1852 in 2000 to
correct this decision which had permitted a public employer to effectively deny employees'
statutory right to bargain by imposing long-term agreements upon impasse. 25 See City
of
Santa Rosa (2013) PERB Decision No. 2308-M for a discussion
of
the legislative history
of
AB 1852.
When AB 646 was added to the MMBA, the language discussed above was moved
from former MMBA section 3505.4 into the newly created section 3505.7. The concept
embodied in current MMBA section 3505.7, i.e., that an employer may not impose an MOU,
and that imposition does not deprive the employee organization
of
the right to meet and confer
each year oh matters within the scope
of
representation prior
to
the adoption
of
a budget or
as
otherwise required by law, was not new with the passage
of
AB 646, contrary to the County's
contention. We therefore reject the County's argument that the language ofMMBA
section 3505.7 suggests that factfinding applies only to comprehensive MOU negotiations
under the MMBA.
The change AB 646 made in MMBA section 3505.7 merely prohibits imposition
of
the
employer's LBFO until "any applicable mediation and factfinding procedures have been
exhausted" and until the public agency has held a public hearing regarding the impasse.
Previously, the employer was permitted to impose its LBFO after exhaustion
of
any mediation,
if
mediation was agreed to or required by local rules. With the addition
of
factfinding, the
Several years before Cathedral City, PERB recognized that an employer may
not impose a collective bargaining agreement at the conclusion of impasse resolution
procedures, but may impose only terms and conditions of employment, since
unilaterally imposing a duration clause would illegally limit the right to bargain.
(Rowland Unified School District (1994) PERB Decision No. 1053; see also, State
of
California (Department of Personnel Administration) (2010) PERB Decision
No. 2130-S.)
yee organization
of
the right to
41

change in MMBA section 3505. 7 simply clarifies that the employer must now wait until this
new impasse resolution procedure is exhausted before it may implement its LBFO. The fact
that MMBA section 3505.7 forbids the employer from imposing an MOU when and
if
it
implements its LBFO does not mean that factfinding is limited to negotiations for a
comprehensive MOU. Facfinding surely applies to this type
of
negotiation, but MMBA
section 3505.7 does not mean that factfinding applies only to comprehensive MOU
negotiations.
By the same token, the fact that MMBA section 3505.7 reserves to the employee
organization the right to meet and confer on matters within the scope
of
representation each
year prior to the adoption
of
a budget, even
if
the employer has imposed its LBFO, does not
mean that factfinding is limited to comprehensive MOU negotiations, contrary to the County's
claim. This provision was part
of
the 2000 legislation and was necessary to correct the
Cathedral City decision. Thus, the language
of
a prior bill that had nothing to do with
factfinding cannot be relied on to inform the interpretation
of
AB 646 or limit its application.
The County also points to the eight criteria the factfinding panel is to consider in
arriving at its findings and recommendations, urging that these factors only make sense in the
context
of
negotiations for a complete MOU. MMBA section 3505.4(d) provides:
In arriving at their findings and recommendations, the factfinders
shall consider, weigh, and be guided by all the following criteria:
(1) 	State and federal laws that are applicable to the
employer.
(2) 	Local rules, regulations, or ordinances.
(3) 	Stipulations
of
the parties.
(4) 	The interests and welfare of the public and the
financial ability of the public agency.
42

(5) 	Comparison
of
the wages, hours, and conditions
of
employment
of
the employees involved in the factfinding
proceeding with the wages, hours, and conditions
of
employment
of
other employees performing similar
services in comparable public agencies.
( 6) 	The consumer price index for goods and services,
commonly known as the cost
of
living.
(7) 	The overall compensation presently received
by
the employees, including direct wage compensation,
vacations, holidays, and other excused time, insurance and
pensions, medical and hospitalization benefits; the
continuity and stability
of
employment; and all other
benefits received.
(8) 	Any other facts, not confined to those specified in
paragraphs (1) to (7), inclusive, which are normally or
traditionally taken into consideration in making the
findings and recommendations.
These are virtually the same criteria that EERA directs factfinders to "consider, weigh
and be guided by."26 Despite EERA's inclusion
of
these criteria, it is well-established that
EERA factfinding applies to single-issue disputes, mid-term negotiations, and effects
bargaining. 	That these criteria also appear in the MMBA supports our conclusion that the
Legislature did not intend AB 646 to be applied differently than factfinding applies under
EERA. 	These criteria have been instructive to resolving bargaining disputes involving single
issues, since common sense and the way that factfinding panels actually work does not require
that each
of
the criteria be considered in every bargaining dispute.
There are some disputes, such as whether binding arbitration should be the last step in a
grievance process, that are not sensibly resolved by considering the consumer price index, or
comparable compensation
of
other employees. On the other hand, arriving at
recommendations regarding binding arbitration might require evidence described in MMBA
26
Both EERA and the MMBA direct factfinding panels to be guided by all of
these criteria.
43

section 3505.4(d)(5), the comparable "conditions
of
employment," or the all-inclusive criteria
in subsection (7), which factfinding panels have read to include basic notions
of
fairness. 	The
same could be said about negotiations over the effects
of
layoffs, which may raise both
economic and non-economic issues. 	Bargaining disputes over health and welfare benefits
would likely require the factfinding panel to assess the "financial ability"
of
the public agency
and wage/benefit comparisons with similarly situated employees. 	Less obvious in such a
dispute is the relevance
of
state and federal laws.
As discussed above, at page 27, such topics
as
binding arbitration and the effects
of
layoff are stand-alone, single subject bargaining disputes to which the factfinding process has
been applied under EERA and HEERA. The fact that factfinding panels are directed to
consider several different criteria does not imply that all criteria are relevant in all disputes,
thereby negating the County's argument that the listing
of
criteria evidences a legislative intent
to limit factfinding to comprehensive MOU negotiations.
As previously stated, AB 646 recognized that some charter cities and counties provide
for binding arbitration as a means for resolving bargaining impasses, and in those instances,
the factfinding process will not apply. (MMBA, § 3505.5(e).)2 7 The County asserts that this
accommodation to local rules further shows the legislative intent to limit factfinding only to
negotiations for a comprehensive MOU. The County's argument assumes that the scope
of
binding arbitration under local rules is coterminous with the scope
of
factfinding under
27
MMBA section 3505.5(e) provides, in pertinent part:
A charter city, [or
a]
charter county
...
with a charter that has a
procedure that applies
if
impasse has been reached
...
and the
procedure includes
...
a process for binding arbitration, is
exempt from the requirements of this section and Section 3505.4
with regard to its negotiations with a bargaining unit to which the
impasse procedure applies.
44

AB
646.	
It
is noted that the text
of
subsection ( e) does not limit the types
of
disputes subject
to
binding arbitration.
It
refers only to "impasse," which, as seen in the definition in EERA
section 3540.1 (f), uses the terms "dispute" and "differences," placing no limitation on the type
of
negotiation that may reach impasse. 28 It is true that this exemption contained in MMBA
section 3505.S(e) exists because where an impasse is subject to a binding arbitration process, it
need not also be subject to a factfinding process. Binding arbitration, after all, resolves a
bargaining dispute with finality, negating the need for any additional advisory factfinding and
recommendation process. It does not follow, however, that factfinding is therefore limited
only to impasses over negotiations for a comprehensive MOU. The applicability
of
factfinding
and the scope
of
factfinding are two, wholly distinct issues.
The County takes issue with what it characterizes as the Office
of
the General
Counsel's reliance on an EERA decision, Redwoods CCD, supra, PERB Decision No. 1141
in
support
of
the determination that MMBA factfinding applies to single issue bargaining
disputes. This decision should not be relied on, according to the County, because it arose
under EERA and it was premised on the notion that EERA impasse procedures were intended
to head off strikes, whereas AB 646 was intended to improve the effectiveness
of
the collective
bargaining process. According to the County, the "MMBA factfinding process thus was
clearly for the benefit
of
the exclusive representatives
...
to provide them with an additional
procedural step for impasses in MOU negotiations-not for the public." (County's Appeal,
p. 22.) We explained earlier that Redwoods CCD is appropriate precedent for the Board to rely
on in interpreting AB 646, even though it arose under EERA. We address here the County's
contention that factfinding in EERA serves a different purpose than that intended by AB 646.
28
PERB has applied EERA' s definition of "impasse" to cases arising under the
MMBA. (City & County
of
San Francisco (2009) PERB Decision No. 2041-M.)
45

Factfinding is considered to
be
an effective tool to improve labor relations because it
can facilitate mutual agreement
by
assisting reasoned decision-making after relevant facts are
presented. Under EERA, the process may avert strikes
by
convincing the parties to reach
agreement.
	It
may postpone both strikes and unilateral impositions under EERA because
neither party may legally use its weapon
of
last resort until the factfinding procedure is
complete.29 The overall purpose served by EERA's impasse resolution procedure is to assure
labor peace by institutionalizing the assistance
of
a neutral and credible process when
the
parties have reached an impasse in whatever negotiations they are engaged in. As the Board
stated in Modesto, supra, PERB Decision No. 291, p. 36:
The impasse procedure
of
EERA contemplates a continuation
of
the bargaining process with the aid
of
neutral third parties.
[Citation omitted.] Mediation is an instrument designed to
advance the parties' efforts to reach agreement; factfinding is a
second such tool required by the law when mediation fails to
bring about agreement. . . . [T]he factfinder' s recommendations
are a crucial element in the legislative process structured to bring
about peacefully negotiated agreements.
The same
purpose-assuring
labor
peace-is
served by AB 646, whether it averts or
postpones strikes, or postpones imposition
of
LBFOs, or promotes "full communication
between public employers and their employees by providing a reasonable method
of
resolving
disputes." (MMBA, § 3500(a).) The purpose
of
factfinding under all three statutes that
provide for the procedure is the same, and that purpose is not served by reading AB 646 so
narrowly as the County urges us to do.
The County cites certain differences between the EERA and MMBA factfinding
provisions, such as the fact that MMBA pennits local employers to adopt their own rules and
regulations governing employment relations, while EERA does not. The scope of bargaining
29
We agree with the County that the purpose of AB 646 was probably not to
head off strikes, because unlike under EERA, only the employee organization may
invoke factfinding.
46

under EERA is more "complicated" than that under the MMBA, the County argues, because it
enumerates subjects
of
bargaining and identifies circumstances in which the Education Code
applies
if
the parties do not reach agreement. Under the MMBA the parties are to split
the
costs
of
factfinding, but under EERA, PERB pays for the neutral panel member, according to
the County. We note these differences, but the County fails to explain, and we are unable to
discern, why or how these differences support the view that MMBA factfinding is a radically
constricted procedure, compared to that prescribed by EERA.
30
C.
	The Constitutionality
of
AB 646
The County claims that AB 646 violates Article XI, sections 1 and
11
of
the California
Constitution because factfinding is an "almost identical" process to the binding arbitration
th
process that was rejected in County
of
Riverside
v.
Superior Court (2003) 30 Cal.4 	278
(Riverside
v.
Superior Ct.). PERB is constitutionally prohibited from declaring any
of
the
statutes it administers unconstitutional. (Regents
of
Univ.
of
California
v.
Public Employment
Relations Bd. (1983) 139 Cal.App.3d 1037, 1042; Calif. Constitution, Art. III,§ 3.5.)
	We
have
nevertheless recently explained our view on the scope and limitation
of
the Supreme Court's
The County also cites to public testimony
of
former PERB Division
Chief Chisholm (Chisholm) at a public meeting
of
PERB on June 13, 2013, explaining
the rationale for proposed changes in MMBA regulations pertaining to the appealability
of
a board agent's determination regarding factfinding requests. The County quotes
Chisholm as stating that "'the distinction' between MMBA and EERA, 'warrants
treating these requests differently than the Board treats other impasse determinations."'
(County's Appeal, p, 21, fn. 9.) To the extent the County relies on this quote for its
view that factfinding is limited to MOU negotiations, it misconstrues the context
of
Chisholm's comments. He was explaining why the Board should adopt a regulation
that would pennit the parties to appeal a Board agent's detennination regarding the
appropriateness, timeliness, and procedural sufficiency of a factfinding request. Under
EERA and HEERA, Board agent decisions as to whether the parties are actually at
impasse are not reviewable by the Board itself. Because the MMBA factfinding
procedures were new, Chisholm recommended a rule change to allow the Board itself
-"to
apply its expe1iise and develop case law and precedence [sic] that can then guide
future determinations by Board agents and serves to infonn the parties as what to
expect." (County's Appeal, Ex. J., p. 9.) Nothing in Chisholm's comments suggest an
interpretation of AB 646 that would limit it to MOU negotiations.
47

ruling in Riverside v. Superior Ct. in our own County of Riverside (2014) PERB Decision
No. 2360, pp. 25-28. Nothing in AB 646 interferes with the ultimate decision-making
authority of public agencies to determine wages or manage its finances. As the County well
knows, it is not compelled to adopt the recommendations of the factfinding panel. Like
negotiations, the factfinding process requires the parties to engage in a procedure with no
particular outcome mandated. This is quite unlike the binding interest arbitration that was
rejected by the Supreme Court in Riverside v. Superior Ct..
CONCLUSION
The Legislature enacted AB 646 to bring to the MMBA a further procedure for
resolving bargaining impasses, factfinding after mediation. This procedure has been part of the
public sector bargaining landscape under EERA and HEERA since the mid-1970s and has been
applied by PERB to a variety of bargaining disputes, not simply impasses over successor or
new comprehensive agreements. It is completely within the purpose of the MMBA to import
the range of bargaining disputes recognized under EERA and HEERA as appropriate to
factfinding, given that one of the purposes of the MMBA is to provide a "reasonable method of
resolving disputes regarding wages, hours, and other terms and conditions of employment."
(MMBA, § 3500.) These disputes may take many forms-single-issue disputes over the wages
to be paid a new classification, re-opener negotiations, effects of layoff or effects of other
management decisions, in addition to disputes over the terms of a comprehensive MOU.
Based on application of the rules of statutory construction, we conclude that the Legislature did
not intend that MMBA factfinding be cabined to a narrow classification of bargaining disputes,
especially given that single-issue disputes, e.g., proposed reductions in health or pension
benefits, may engender as much labor-management conflict as negotiations for new or
48

successor comprehensive MOUs. 	For these reasons, we affirm the administrative
determination.
ORDER
The administrative determination
of
the Office
of
the General Counsel that the
factfinding procedures set forth in the Meyers-Milias-Brown Act (MMBA) section 3505.4
et seq., are applicable to the dispute in this case is hereby AFFIRMED. 	AFSCME
Local 2700's request for factfinding satisfies the requirements
of
MMBA section 3505.4 and
PERB Regulation 32802(a)(2) and the matter is REMANDED to the Office
of
the General
Counsel for further processing pursuant to PERB Regulation 32804.
Chair Martinez and Members Huguenin and Banks joined in this Decision.
49

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8385
Fax: (916) 327-6377
October 4, 2013
Adrian J. Barnes, Attorney
Beeson, Tayer & Bodine
483 Ninth Street, Second Floor
Oakland, CA 94607-4051
Ted Cwiek, Director of Human Resources
County of Contra Costa
651 Pine Street, Third Floor
Martinez, CA 94553-1292
Re: 	County of Contra Costa and AFSCME Local 2700
Case No. SF-IM-126-M
Administrative Determination
Dear Interested Parties:
On September 25, 2013, AFSCME Local 2700 (AFSCME or Union) filed a request for
factfinding (Request) with the Public Employment Relations Board (PERB or Board) pursuant
to section 3505.4 of the Meyers-Milias-Brown Act (MMBA) and PERB Regulation 32802.1
AFSCME asserts that the County of Contra Costa (County) and Union have been unable to
effect a settlement in their current negotiations. AFSCME's Request describes the "type of
dispute" as follows:
The parties have spent considerable time negotiating over the
creation of a Legal Clerk Classification. They have reached
agreement on all issues except for the issue of whether employees
in the Legal Clerk Classification should receive additional
compensation.
The County sent the Union a written notice of impasse with respect to these negotiations on
September 3, 2013.
1 The MMBA is codified at Government Code section 3500 et seq. All further statutory
references are to the Government Code unless otherwise noted. PERB Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
EDMUND G. BROWN JR., Governor

SF-IM-126-M
October 4, 2013
Page 2
Procedural Background
After AFSCME filed its Request, the County was given an opportunity to state its position. 	On
October 1, 2013, the County verbally informed the undersigned Board agent that it would be
opposing the Request, and would be filing a written statement to that effect. By letter dated
October
2,
2013, the County opposed AFSCME's Request and asserted that the Request was
insufficient to meet the statutory requirements for factfinding. The County requested that
PERB deny the Request. Subsequently, AFSCME filed a letter disputing the County's position
statement.
Later on October 2, 2013, PERB approved AFSCME's Request and informed the parties in an
e-mail message that the determination would be memorialized in writing.
Discussion
A. The County's Position
The County explains that the parties have resolved all issues related to the creation
of
this new
classification, with the exception
of
wages. The Memorandum
of
Understanding (MOU)
between the parties expired on June 30, 2013 and the parties are currently in negotiations for a
successor MOU. The County implicitly acknowledges that the negotiations regarding the
Legal Clerk Classification were separate and distinct from successor MOU negotiations.
The County asserts that a "single"
issue-such
as the one asserted by
AFSCME-is
not subject
to the MMBA factfinding provisions, since it is not negotiations for a new or successor
collective bargaining agreement (CBA) or MOU. In support
of
its position, the County relies
on several comments made by the author
of
Assembly Bill (AB) 6462 and recites the
following:
The author
of
AB 646, Assembly Member Toni Atkins (D-San
Diego) indicated the following purpose for AB 646:
Although the MMBA requires employers and employees
to bargain in good faith, some municipalities and
agencies choose not to adhere to this principle and instead
attempt to expedite an impasse in order to unilaterally
impose their last, best, and final offer when negotiations
for collective bargaining agreements fail. (Emphasis
added.)
Similarly, the State Assembly Floor analysis dated September 1,
2011 at Page 3 states:
2 AB 646 (Statutes 2011, Chapter 680), is codified at Government Code sections
3505.4, 3505.5 and 3505.7.

SF-IM-126-M
October 4, 2013
Page 3
According to the author, "Currently, there is no
requirement that public agency employers and employee
organizations engage in impasse procedures where
efforts to negotiate a collective bargaining agreement
have failed. [... ] the creation
of
mandatory impasse
procedures is likely
to
increase the effectiveness
of
the
collective bargaining process, by enabling the parties to
employ mediation and fact-finding in order
to
assist them
in resolving differences that remain after negotiations
have been unsuccessful. [
...
] (Emphases added.)
Further, the County also relies upon the last sentence set forth in MMBA section 3505. 73 and
asserts
as
follows:
It is apparent from the language
of
the statute and the legislative
history that AB 646 is intended to slow the process
of
the
implementation
of
last, best, and final offers by public employers.
In fact, the statute institutes what is basically advisory interest
arbitration to bring the parties to a negotiated resolution as
opposed
to
an implemented one. The pause in bargaining created
by AB 646 is intended to allow the parties additional time when
negotiation for a collective bargaining agreement fails. 	The
purpose is not served by applying AB 646 to each and every
dispute that arises between the parties.
The level
of
disruption in the ordinary course
of
labor relations
that would follow a decision by PERB to apply AB 646 to all
issues for which a meet and confer obligation attaches, is
staggering. Neither PERB, the parties, nor the fact-finding
community have the resources to apply AB 646 to all disputes.
The purpose for this legislation is clearly stated, it was not
intended to create a logjam
of
fact-finding activity to distract
from ongoing negotiation for successor MOUs. PERB has the
opportunity and responsibility to administratively prevent this
paralysis
of
ongoing labor relations activity.
3 Section 3505.7 states in part:
After any applicable mediation and factfinding procedures have
been exhausted, but no earlier than 10 days after the factfinders'
written findings of fact and recommended terms of settlement
have been submitted to the parties pursuant to Section 3505.5, a
public agency that is not required to proceed to interest
arbitration may, after holding a public hearing regarding the
impasse, implement its last, best, and final offer, but shall not
implement a memorandum of understanding. 	(Emphasis added.)

SF-IM-126-M
October 4, 2013
Page 4
B. 	AFSCME's Position
AFSCME disputes the County's position that the factfinding provisions under the
MMBA
are
intended solely to be used when impasse is reached for a new or successor CBA/MOU.
AFSCME asserts that the Legislature clearly intended for the MMBA factfinding provisions to
apply to "single" issues, as well as to negotiations for an entire agreement. AFSCME argues
that the definition
of
the terms "dispute" and "differences" as referenced in sections 3505.4 and
3505.5,4 demonstrate that the Legislature had each and every impasse dispute in mind
when
drafting this legislation.
AFSCME asserts, in its response to the County's opposition, as follows:
The County argues that because section 3505. 7 provides that an
employer may not, after exhausting fact-finding procedures,
implement an MOU, this means that the fact-finding
procedures
of
the MMBA must be limited to negotiations for an
MOU. This simply doesn't follow. Some disputes that proceed to
fact-finding under the MMBA will,
of
course, involve
negotiations over an MOU, and section 3505.7 merely makes
clear that after fact-finding in such cases the employer may not
implement an MOU. Had the legislature intended to limit
factfinding to cases involving negotiations over an MOU surely it
would have said so in sections 3505.4 or 3505.5, or elsewhere in
Section 3505.4 provides:
If
the dispute was not submitted to mediation, an employee
organization may request that the parties' differences be
submitted to a factfinding panel not later than 30 days following
the date that either party provided the other with a written notice
of
a declaration
of
impasse .... (Emphasis added.)
Section 3505.5, subdivision (a) provides in part:
If
the dispute is not settled within 30 days after the appointment
of
the factfinding panel, or, upon agreement by both parties
within a longer period, the panel shall make findings
of
fact and
recommend terms of settlement, which shall be advisory only.
The factfinders shall submit, in writing, any findings
of
fact and
recommended terms
of
settlement to the parties before they are
made available to the public. The public agency shall make these
findings and recommendations publicly available within 10 days
after their receipt. (Emphasis added.)

SF-IM-126-M
October 4, 2013
Page 5
the statute, rather than, as the County claims,
by
leaving a cryptic
mark
of
its intent in section 3 505. 7. Because the statutory
provisions clearly do not limit the utilization
of
the
MMBA's
factfinding procedures to instances in which parties have reached
impasse in their negotiations for an MOU, PERB need not
consider the legislative history
of
AB 646 or the County's public
policy arguments.
C. 	MMBA Factfinding ls the Final Step in an Orderly Process Designed to Resolve
Any Impasse That Arises From Negotiations Over Matters Within the Scope
of
Representation
Essentially, the County contends that the factfinding requirements under the MMBA
apply
only to impasses stemming from negotiations for a new or successor CBA/MOU, and do not
apply to impasses resulting from isolated or single issue bargaining or from any other types
of
negotiations. In support
of
its position, the County quotes portions
of
the legislative history
of
AB 646 that reference the fact that under AB 646, the parties may engage in factfinding
if
they
are unable to reach a "collective bargaining agreement."
1.
The MMBA' s Meet and Confer Obligations in General
The duty to meet and confer in good faith "means that the parties must genuinely seekto reach
agreement, but the MMBA does not require that an agreement result in every instance, and it
recognizes that a public employer has the ultimate power to reject employee proposals
on
any
paiiicular issue." (International Assoc.
of
Fire Fighters, Local 188, AFL-CIO
v.
City
of
Richmond (2011)
51
Cal.4th 259,271 [City
of
Richmond].) The duty to meet and confer in
good faith extends to all matters within the scope
of
representation, which is defined as "all
matters relating to employment conditions and employer-employee relations, including, but not
limited to, wages, hours, and other terms and conditions
of
employment," but does not include
"consideration
of
the merits, necessity, or organization
of
any service or activity provided by
law or executive order."
(§
3504.)
"'The
duty to bargain requires the public agency to refrain
from making unilateral changes in employees' wages and working conditions until the
employer and employee association have bargained to impasse ....
"'
( Coachella Valley
Mosquito & Vector Control Dist.
v.
PERE (2005) 35 Cal.4th 1072, 1083-1084, quoting Santa
Clara County Counsel Attys. Assn.
v.
Woodside (1994) 7 Cal.4th 525, 537.)
2. The MMBA Factfinding Provisions Adopted by the Legislature Under AB 646
In 2011, the Legislature for the first time established a structured impasse procedure,
applicable statewide, for the MMBA, by enacting factfinding provisions pursuant to AB 646.5
5 The legislative history does not evidence the Legislature's intent to providethat
negotiations for a new or successor CBA/MOU are the only types
of
disputes that can be
submitted to factfinding. If the Legislature had wanted to exclude factfinding for all disputes
other than for a CBA/MOU, it could have expressly included a provision to that effect, but
failed to do so. Moreover, generally, the statements of the author oflegislation are not
determinative of legislative intent as there is no guarantee that others in the Legislature shared

SF-IM-126-M
October 4, 2013
Page 6
the same view. (San Mateo City School District v. Public Employment Relations Board (1983)
33 Cal.3d 850, 863.)
The statute provided that only unions could invoke the MMBA's factfinding provisions. While
AB 646 imposed new obligations on MMBA employers, it also provided them with a more
orderly and expeditious process for resolving impasse disputes, with enhanced certainty as to
when-i.e., upon completion of the statutorily mandated factfinding procedures-they could
impose their "last, best, and final offer" on the subject of the parties' negotiations. (§ 3505.7.)
Also in 2011, PERB promulgated regulations for administering the MMBA factfinding
process. (Cal. Code Regs., tit. 8, §§ 32802, 32804.)
In 2012, the Legislature amended Government Code section 3504.5, pursuant to Assembly Bill
1606 (Statutes 2012, Chapter 314, effective January 1, 2013 ), in part to expressly codify the
procedures PERB had adopted by regulation to implement AB 646. The Legislature deemed
the 2012 amendments as technical and clarifying of existing law. (Ibid.)
Previously PERB Regulation 32802, subdivision (e), prohibited an appeal of a determination of
the sufficiency of a factfinding request. Effective October 1, 2013, PERB's regulations have
been modified to delete subdivision (e), and now permit an appeal by either party to the Board
itself of a factfinding determination.
It is also noted that although the use of PERB's form, titled "MMBA Factfinding Request" is
not required, the form, under Type of Dispute, lists as examples all of the following: 	"initial
contract, successor contract, reopeners, effects of layoff, other."
3. PERB's Interpretation of the Term "Impasse"
Where the parties are not required to and have not engaged the services of a mediator, the
MMBA factfinding provisions may be invoked by an exclusive representative only after one
party provides the other with a written declaration of impasse. (§ 3505 .4 ["an employee
organization may request that the parties' differences be submitted to a factfinding panel not
later than 30 days following the date that either party~rovided the other with a written notice
of a declaration of impasse"].)
Although the MMBA uses the term "impasse," it does not define that term, unlike other
statutes within PERB 's jurisdiction. For instance, the Educational Employment Relations Act
(§ 3540 et seq. [EERA]) defines "impasse" to mean "the parties to a dispute over matters
within the scope of representation have reached a point in meeting and negotiating at which
their differences in positions are so substantial or prolonged that future meetings would be
futile." (§ 3540.1, subd. (f), emphasis added.)6 Thus, PERB has held that an impasse in
bargaining exists where the "parties have considered each other's proposals and
6 Similarly, under the Higher Education Employer-Employee Relations Act(§ 3560 et
seq. [HEERA]), impasse is defined to mean that "the parties have reached a point in meeting
and conferring at which their differences in positions are such that further meetings would be
futile." (§ 3562, subd. (i).)

SF-IM-126-M
October 4, 2013
Page 7
counterproposals, attempted to narrow the gap
of
disagreement and have, nonetheless, reached
a point in their negotiations where continued discussion would
be
futile." (Mt. San Antonio
Community College District (1981) PERB Order No. Ad-124.)
Given the longstanding acceptance
of
the concept
of
impasse
as
a term
of
art central to labor
relatipns, the Board has held that the definition
of
impasse under EERA, as interpreted
by
PERB, is the appropriate standard under the MMBA as well. (Fire Fighters Union
v.
City
of
Vallejo (1974)
12
Cal.3d 608 [Fire Fighters Union]; City & County
of
San Francisco (2009)
PERB Decision No. 2041-M.) The definition
of
impasse does not limit the types
of
"disputes"
or "differences" that the parties may have to just those for a new or successor CBA/MOU. In
fact, nowhere in the statutory or decisional law definitions
of
impasse do the terms
"agreement" or "collective bargaining" appear.
4.
The Courts, PERB and NLRB's Interpretation
of
the Terms "Collective
Bargaining" and "Collective Bargaining Agreement"
As noted previously, the County asserts that the Legislature's use
of
the term "collective
bargaining" means that the public agency and the exclusive representative are negotiating a
complete new or successor CBA/MOU that governs all
of
the employees' terms and conditions
of
employment. In other words, the County appears to assert that collective bargaining only
occurs during a certain period
of
time, culminating in some type
of
comprehensive master
agreement that ideally addresses all wages, hours, and other terms and conditions
of
employment, with the term
of
such agreement set for one or more years. As the County would
have it, only
if
the parties cannot reach agreement on this "master" CBA/MOU, may the Union
invoke the MMBA's factfinding procedures for assistance.
PERB and NLRB decisions have made clear, however, that collective bargaining is a
continuing process that is not restricted to one comprehensive agreement or one single period
of
bargaining. 	California's public sector collective bargaining statutes are largely modeled
after the federal National Labor Relations Act (NLRA) (29 U.S.C. § 151, et seq.).
(Long Beach Community College District (2003) PERB Decision No. 1564; City
of
San Jose
(2010) PERB Decision No. 2141-M.) Accordingly, when interpreting the MMBA, courts and
PERB have appropriately taken guidance from the express language
of
the NLRA, as well as
from cases interpreting the NLRA. (Fire Fighters Union, supra, 12 Cal.3d at pp. 615-617.)
For instance, the Supreme Court has noted that the phrase in the MMBA's meet and confer
requirement regarding "wages, hours, and other terms and conditions
of
employment" was
taken directly from section 8(d)
of
the NLRA concerning the "the obligation to bargain
collectively," which states in relevant part:
For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other
terms and conditions
of
employment, or the negotiation
of
an
agreement, or any question arising thereunder, and the
execution of a written contract incorporating any agreement
reached if requested by either party, but such obligation does not

SF-IM-126-M
October 4, 2013
Page 8
compel either party to agree to a proposal or require the making
of
a concession
...
(29 U.S.C. § 158(d), emphasis added, Fire Fighters Union, supra, at p. 617.)
As the express language
of
the NLRA makes clear, the obligation to bargain collectively is not
just
limited to the "negotiation
of
an agreement." Rather, such an obligation also encompasses
meeting with respect to any wages, hours, and other terms and conditions
of
employment, as
well as concerning questions
or
disputes that may arise within the agreement. In the
words
of
the United States Supreme Court:
Collective bargaining is a continuing process. Among other
things, it involves day-to-day adjustments in the contract and
other working rules, resolution
of
new problems not covered
by
existing agreements, and the protection
of
employee rights
already secured
by
contract.
(Conley
v.
Gibson (1957) 355 U.S. 41, 46, overruled in part on other grounds; see also,
National Labor Relations Board
v.
Acme Indus.
Co.
(1967) 385 U.S. 432, 435-436.)
More importantly, comis have described a "collective bargaining agreement" as "the
framework within which the process
of
collective bargaining may be carried on." (J.I. Case
Co.
v.
National Labor Relations Board (7th Cir. 1958) 253 F.2d 149, 153.) In Posner
v.
Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, the California Supreme Court observed that a
collective bargaining agreement
"'is
more than a contract; it is a generalized code to govern a
myriad
of
cases which the draftsman cannot wholly anticipate .... It calls into being a
new
common law - the common law
of
the particular industry."' (Id. at p. 177, quoting United
Steelworkers
v.
Warrior &
Gulf
Navigation
Co.
(1960) 363 U.S. 574, 578 [Warrior & Gu((
Co.].)
5. The MMBA Does Not Expressly Limit Factfinding Solely to Impasses Over
Negotiations for a CBA/MOU
The MMBA, when construed as a whole, simply does not limit the applicability
of
its
factfinding provisions solely to disputes arising from negotiations for a CBA/MOU. Section
3505.4, provides that an "employee organization may request that the parties' differences be
submitted to a factfinding panel" following mediation, or
if
the "dispute" is not submitted to
mediation, then the employee organization may request that the parties "differences be
submitted to a factfinding panel. ... " (§ 3505.4, subd. (a).) There is no language in the statute
that limits the types
of
"differences" or "disputes" that may be submitted to a factfinding panel.
As added by AB 646, moreover, section 3505.5 provides that
if
the "dispute" is not settled
within a set time, the factfinding panel "shall make findings
of
fact and recommended terms
of
settlement, which shall be advisory only." (§ 3505.5, subd. (a).) Again, there is no language
in that statute limiting the paiiies' "dispute," which can be submitted to a factfinding panel, to
negotiations for an MOU, or any other "type" of negotiations. Section 3505.7 further provides
that after any applicable impasse procedures have been exhausted, and written findings of fact

SF-IM-126-M
October 4, 2013
Page 9
and recommended terms of settlement have been submitted to the parties and made public, a
public agency may implement its last, best, and final offer, but is not permitted to implement a
MOU. (§ 3505.7.)
Thus, once an employee organization requests the parties' "differences" be submitted to
factfinding, and the procedural aspects of the factfinding sections are met, then participation in
factfinding is mandatory. The plain language of the factfinding sections does not distinguish
or limit the types of disputes that arise in collective bargaining negotiations that may be
submitted to factfinding. If the Legislature intended to limit the types of disputes or
differences that could be submitted to a factfinding panel only to those arising during
negotiations for a CBA or MOU, it could have done so explicitly. It did not. Accordingly,
when the MMBA's statutory scheme is viewed as a whole, the County's interpretation of the
factfinding provisions as applying only to negotiations for an CBA/MOU is simply not a
con-ect interpretation of the statute.
Finally, it is well settled that public employers who are subject to the MMBA and other
collective bargaining statutes administered by PERB may not make a unilateral change in a
negotiable subject until all applicable impasse procedures have been exhausted, as impasse
procedures are part of the collective bargaining process. (Moreno Valley Unified School
District v. PERE (1983) 142 Cal.App.3d 191, 199-200 [Moreno Valley]; Temple City Unified
School District (1990) PERB Decision No. 841, p. 11; see also§ 3506.5, subd. (e).) According
to the County's interpretation that MMBA factfinding applies only to impasse over
negotiations for a complete CBA or MOU, this would necessarily mean that single
employment issues would be excluded from the statutory impasse procedures, and would thus
allow the public agency to impose its will on employees if the parties cannot reach agreement.
Unlike "main table" negotiations for a new or successor CBA/MOU, employers often have
control over the timing of "single" subjects, such as layoffs or the creation of a new position.
If PERB were to accept the County's position that only new or successor CBAs/MOUs are
subject to factfinding, an employer could splinter subjects within the scope of representation
into multiple "single" issues, in order to intentionally avoid factfinding.
This interpretation is contrary to the intent of AB 646, which was enacted to prevent public
agencies from rushing through the motions of the meet-and-confer process to unilaterally
impose the agency's goals and agenda before exhausting available impasse procedures.
Moreover, the County's claim that the MMBA does not authorize factfinding other than for
negotiations for a CBA/MOU cannot be squared with the MMBA's stated purposes "to
promote full communication between public employers and employees," and "to improve
personnel management and employer-employee relations." (§ 3500.) Allowing the County to
take unilateral action concerning the parties' employment relationship without exhausting the
MMBA's impasse procedures simply because the parties' dispute does not arise during
negotiations for a CBA/MOU, does not further, but would rather frustrate, the MMBA's
purpose of promoting full communications between the parties and improving employer-
employee relations.

SF-IM-126-M
October 4, 2013
Page 10
6. PERB Has Interpreted Statutory Impasse Procedures Under EERA and HEERA
to Apply to a Wide Variety of Collective Bargaining Negotiations, and Not Just
Those for a CBA/MOU
The County's assertion that MMBA factfinding provisions are limited only to those
negotiations for a CBA/MOU that reach impasse is contrary to the language and judicial
interpretation of factfinding provisions found in the other collective bargaining statutes that
PERB administers. As discussed above, it is well settled that statutes should be construed in
hannony with other statutes on the same general subject. (Farrell, 41 Cal.3d at p. 665)
Moreover, when interpreting the MMBA, PERB appropriately takes guidance from cases
interpreting not only the NLRA, but also other collective bargaining statutes that PERB
administers with provisions similar to those of the MMBA. (Fire Fighters Union, supra, 12
Cal.3d 608.)
EERA and HEERA contain provisions governing impasse resolution that are similar, though
not identical, to the those in the MMBA. (Compare§§ 3548-3548.8 [EERA], with§§ 3590-
3594 [HEERA], and§§ 3505.4-3505.7 [MMBA].) Under long-standing case law, PERB and
the courts have interpreted the impasse provisions under EERA and HEERA as applying to
negotiations other than just those for an MOU or CBA. Under this body of related law, to
which our Supreme Court has directed the courts to look for reliable guidance when they are
called upon to interpret the latter statute (City of San Jose, supra, 49 Cal.4th at pp. 605-607 &
fn. 3), it is clear that public employers are prohibited from making a unilateral changeon a
matter subject to impacts and effects bargaining until all applicable impasse procedures have
been exhausted.
For example, in Moreno Valley Unified School District (1982) PERB Decision No. 206, the
Board upheld a hearing officer's determination that, among other things, the District violated
section 3543.5, subdivision (e), by failing to participate in impasse procedures in good faith,
and by making unilateral changes prior to the exhaustion of the statutory impasse procedures
under EERA, as to proposals to eliminate teaching and staff positions. (Id. at pp. 1-2, 11-12.)
The District subsequently filed a writ of mandate challenging the Board's decision. In Moreno
Valley, supra, 142 Cal.App.3d 191, the Co-μrt of Appeal upheld PERB's determination that the
school district committed an unfair labor practice under EERA by unilaterally implementing
changes in employment conditions before exhausting statutory impasse procedures, including
failing to participate in good faith in impasse procedures regarding the "effects" of the school
district's decision to eliminate certain teaching and staff positions. (Id. at pp. 200, 202-205.)
The comi stated that "[s]ince 'impasse' under EERA's statutory scheme denotes a continuation
of the labor management dispute resolution process ... the Board reasonably interpreted the
statute in finding a per se violation of the statutory duty of employers to participate in good
faith in the impasse procedures." (Id. at p. 200.)
In Redwoods Community College District (1996) PERB Decision No. 1141 (Redwoods), the
Board determined that EERA's statutory impasse procedures applied to the parties'
negotiations over hours of security officers, which were conducted separate and apart from the
parties' negotiations for a successor MOU. In that regard, the parties negotiated a contract
provision covering workweeks and work schedules, which provided for negotiations between
the employer and the employee representative regarding any change in hours. (Ibid.) That

SF-IM-126-M
October 4, 2013
Page
11
provision further stated that
if
negotiations were unsuccessful, the parties would submit the
dispute to mediation. (Ibid.) The provision also stated that the dispute "shall not
be
submitted
to a fact-finding panel under the provisions
of
the [EERA]." (Ibid.) The Board held that the
parties could not waive EERA's statutory impasse procedures, noting that until the impasse
procedures are completed, the employer may not make a unilateral change
in
a negotiable
subject. (Ibid.; see also, California State University (1990) PERB Decision No. 799-H [a
HEERA case, where the parties participated in mediation and factfinding concerning
negotiations over increased parking fees].)
Thus,
as
PERB has properly interpreted and applied the impasse procedures under EERA and
HEERA to negotiations other than just those for an MOU, PERB's similar interpretation
regarding impasse procedures under the MMBA is also proper, and should be applied to
factfinding requests made under sections 3505.4, 3505.5 and 3505.7.
7.
The MMBA Factfinding Provisions Do Not Raise a Constitutional Issue
To the extent the County may be suggesting that the MMBA factfinding is an unconstitutional
imposition on local agencies, there is no legal authority to support such a claim. MMBA
factfinding, as an advisory method
of
post-impasse dispute resolution, does not delegate or
deprive the County
of
its constitutional authority to set terms and conditions
of
employment
and, as such, MMBA factfinding clearly passes constitutional muster. Because MMBA
factfinding does not impair or delegate to a private party any
of
the County's powers, it does
not suffer any constitutional infirmity. (County
of
Sonoma
v.
Sonoma County Law
Enforcement Assn. (2009) 173 Cal.App.4th 322 [Sonoma]; County
of
Riverside
v.
Riverside
Sheriffs' Assn. (2003) 30 Cal.4th 278 [Riverside].) While the decisions in Riverside and
Sonoma eradicated the ability
of
unions to compel an MMBA employer to participate in
binding interest arbitration after negotiations have reached impasse, the decisions make clear
that an impasse resolution method that leaves intact a County's constitutional right to set terms
and conditions
of
employment is a lawful method
of
impasse resolution. (Ibid.)
Determination
Applying the precedent discussed above, PERB concludes that the factfinding procedures set
fmih in MMBA section 3505.4 et seq. are applicable under the particular facts
of
this case.
Given the specific facts
of
this case, PERB dete1mines that AFSCME's Request satisfies the
requirements
of
MMBA section 3505.4 and PERB Regulation 32802, subdivision (a)(2).
Therefore, AFSCME's Request will be processed by PERB.
Next Steps
Each party must select its factfinding panel member and notify this office in writing
of
his/her
name, title, address and telephone number no later than October 11, 2013. 7 Service and proof
of service are required.
7 This deadline, and any other referenced, may be extended by mutual agreement of the
paiiies.

SF-IM-126-M
October 4, 2013
Page 12
The resumes of seven factfinders, drawn from the PERB Panel of Neutrals, are being provided
to the parties via electronic mail.8 The parties may mutually agree upon one of the seven, or
may select any person they choose, whether included on the PERB Panel of Neutrals or not. In
no case, however, will the Board be responsible for the costs of the chairperson.
If the parties select a chair, the parties should confirm the availability of the neutral, prior to
informing PERB of the selection.
Unless the parties notify PERB, on or before October 11, 2013, that they have mutually agreed
upon a person to chair their factfinding panel, PERB will appoint one of these seven
individuals to serve as chairperson.
Right to Appeal
Pursuant to PERB Regulations, the County may file an appeal directly with the Board itself
and can request an expedited review of this administrative determination. (Cal. Code Regs.,
tit. 8, §§ 32147, subd. (a), 32350, 32360, 32802, 61060.) An appeal must be filed with the
Board itself within 10 days following the date of service of this determination. (Cal. Code
Regs., tit. 8, § 32360, subd. (b ).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board. (Ibid.)
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before
the close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is: 	Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If the County appeals this detem1ination, the Union may file with the Board an original and
five copies of a statement in opposition within 10 calendar days following the date of service
of the appeal. 	(Cal. Code Regs., tit. 8, § 32375.)
The seven neutrals whose resumes are being provided are Robert M. Hirsch, Carol
Vendrillo, Barry Winograd, Paul Roose, David Weinberg, Katherine Thomson, and
Christopher Burdick.

SF-IM-126-M
October 4, 2013
Page
13
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
§ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit.
8,
§ 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed
at
least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs., tit. 8, § 32132.)
Sincerely,
/4)~-d~
Wendi L. Ross
Deputy General Counsel