County of Ventura (PERB A461M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF VENTURA,
Employer,
and
VENTURA COUNTY PROFESSIONAL PEACE
OFFICERS ASSOCIATION,
Exclusive Representative.
Case No. LA-IM-234-M
PERB Order No. Ad-461-M
March 6, 2018
Appearances: Leroy Smith, County Counsel, and Matthew A. Smith, Assistant County
Counsel, for County of Ventura; Rains Lucia Stern St. Phalle & Silver by Richard A. Levine,
Attorney, for Ventura County Professional Peace Officers Association.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
GREGERSEN, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the County of Ventura (County) from an administrative
determination (attached) by the Office of the General Counsel granting a request for
factfinding by the Ventura County Professional Peace Officers Association (Association)
pursuant to section 3505.4 of the Meyers-Milias-Brown Act (MMBA)1 and PERB
Regulation 32802.2 Concurrent with its appeal, the County has also requested that PERB stay
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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the administrative determination pending the Board’s review of the appeal pursuant to PERB
Regulation 32370.3
We have reviewed the case file in its entirety in light of the issues raised by the
County’s appeal and request for stay, and the Association’s response thereto. We find the
administrative determination to be generally well reasoned and in accordance with applicable
law. We deny the County’s appeal and request for stay, and adopt the administrative
determination as the decision of the Board itself, except as supplemented by the discussion
below.
FACTUAL AND PROCEDURAL HISTORY
On February 8, 2017, the Association filed a request for factfinding with the Board
pursuant to MMBA section 3505.4 and PERB Regulation 32802. In its request, the
Association asserted that it and the County have been unable to effect a settlement in the
parties’negotiations regarding the Probation Agency’s Firearm Manual (Firearm Manual),
Chapter 6, governing the conduct of Armed Probation Officers, and that impasse had been
declared on January 19, 2017.
By letter dated February 13, 2017, the County objected to the factfinding request.
The County argued that the policy at issue in the Firearm Manual addressed the use of
force by sworn staff. Citing San Jose Peace Officer’s Assn. v. City of San Jose (1978)
78 Cal.App.3d 935 (City of San Jose), the County argued that matters concerning use of force
are not within the scope of representation and therefore not subject to factfinding under the
MMBA.
3 PERB Regulation 32370 states that an appeal from an administrative decision will not
automatically prevent the Board from proceeding in a case, but parties may seek a stay of any
activity and “[t]he Board may stay the matter, except as otherwise provided in these
regulations.”
2

On February 15, 2017, the Office of the General Counsel issued an administrative
determination approving the Association’s request for factfinding. Relying on Workforce
Investment Board (2014) PERB Order No. Ad-418-M (WIB), the Office of the General
Counsel stated that it was not required to determine whether a matter is within the scope of
representation before approving a factfinding request. Since the Office of the General
Counsel’s role is limited to determining whether the conditions of MMBA section 3505.4 and
PERB Regulation 32802 have been met, the Office of the General Counsel stated that it was
not empowered to determine whether the dispute or difference subject to factfinding is a matter
within the scope of representation. As a result, the Office of the General Counsel approved the
Association’s request that the parties’bargaining dispute be submitted to a factfinding panel.
The County filed a timely appeal from this administrative determination, and the
Association timely filed a response to the County’s appeal.
DISCUSSION
MMBA section 3505.4, subdivision (a), provides as follows:
The employee organization may request that the parties’differences
be submitted to a factfinding panel not sooner than 30 days, but not
more than 45 days, following the appointment or selection of a
mediator pursuant to the parties’agreement to mediate or a
mediation process required by a public agency’s local rules. 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. . . .
PERB Regulation 32802 provides as follows:
(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:
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(1) Not sooner than 30 days, but not more than 45 days, following
the appointment or selection of a mediator pursuant either to the
parties’agreement to mediate or a mediation process required by a
public agency’s local rules; or
(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.
The timeliness of the Association’s request is not in dispute. Instead, the dispute
concerns whether, in addition to timeliness, the Office of the General Counsel must also
determine whether the subject of a factfinding request is within the scope of representation
before approving the factfinding request. At the center of this dispute is the Board’s decision in
WIB, supra, PERB Order No. Ad-418-M.
In WIB, supra, PERB Order No. Ad-418-M, the union filed a request for factfinding,
asserting that it was unable to reach a settlement in negotiations over midterm layoffs. The
Office of the General Counsel approved the union’s request for factfinding. In its appeal, the
employer challenged the sufficiency of the union’s factfinding request, contending that the
layoffs were economically motivated and thus beyond the scope of representation and that the
union had “failed to demand bargaining over negotiable impacts or effects thereof.” In
rejecting the employer’s challenge to the sufficiency of the request, the Board held:
In reviewing a factfinding request PERB relies on the parties’
representations concerning the status of their bargaining and or
mediation discussions and does not assess an employer’s defenses
to its duty to bargain. Nor does PERB determine whether the
party seeking factfinding has articulated with sufficient clarity its
position on the issue. There are matters properly left to clarifying
discussions between the parties and for resolution in an unfair
practice proceeding if either party files a charge.
(Id. at p. 33, fn. omitted.)
On appeal, the County requests that the WIB decision itself be overruled. The County
argues that WIB focused too narrowly on the language of MMBA section 3505.4 while
4

disregarding the surrounding provisions and purpose of the MMBA. Citing San Diego
Housing Commission v. Public Employment Relations Board (2016) 246 Cal.App.4th 1, review
denied (July 13, 2016), the County argues that MMBA section 3505.4 must be read in
conjunction with the other provisions of the MMBA to promote the Act’s general purpose,
which is to resolve disputes over matters within the scope of representation. As such,
according to the County, the Office of the General Counsel must first assess whether the matter
submitted to factfinding is a matter within the scope of representation.
Although we agree that factfinding is ultimately required only for disputes over matters
within the scope of representation, we disagree that PERB is required in every case to make a
definite determination to that effect before approving a factfinding request. Such a process is
unwieldy and generally inconsistent with the time-sensitive nature of the factfinding process.
(See City & County of San Francisco (2014) PERB Order No. Ad-415-M, p. 13.) While some
matters such as wages and hours are expressly included within the scope of representation
under the MMBA (§ 3504), the determination of whether a particular managerial decision is
subject to negotiations can be legally and factually complex. The California Supreme Court
has explained that there are three distinct categories of managerial decisions, each with its own
implications for the scope of representation: (1) “decisions that ‘have only an indirect and
attenuated impact on the employment relationship’and thus are not mandatory subjects of
bargaining,”such as advertising, product design, and financing; (2) “decisions directly
defining the employment relationship, such as wages, workplace rules, and the order of
succession of layoffs and recalls,”which are “always mandatory subjects of bargaining”
(emphasis added); and (3) “decisions that directly affect employment, such as eliminating jobs,
but nonetheless may not be mandatory subjects of bargaining because they involve ‘a change
in the scope and direction of the enterprise’or, in other words, the employer’s ‘retained
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freedom to manage its affairs unrelated to employment.” (International Assn. of Fire Fighters,
Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273.)
“To determine whether a particular decision in this third category is within the scope of
representation, the high court prescribed a balancing test, under which ‘in view of an
employer’s need for unencumbered decision-making, bargaining over management decisions
that have a substantial impact on the continued availability of employment should be required
only if the benefit, for labor-management relations and the collective-bargaining process,
outweighs the burden placed on the conduct of the business.’” (Id. at p. 273.)
The present matter involves the content of the County’s Firearm Manual, a matter that is
not specifically enumerated in the MMBA. The County argues that the matter is not within the
scope of representation since it addresses the use of force by sworn staff citing City of San Jose,
supra, 78 Cal.App.3d 935. The Association responds that because the Firearm Manual involves
the use of deadly force standard applicable in the discharge of a firearm, it is a matter of
employee safety and therefore within the scope of representation citing Solano County
Employees’Assn. v. Solano County (1982) 136 Cal.App.3d 256, 260. Determining whether the
Firearm Manual is within the scope of representation is therefore not a straightforward legal
issue and would require not only a review of the manual itself, but could require the
consideration of additional evidence to explain the meaning of its terms and the circumstances in
which it will be applied. The County appears to acknowledge this hurdle and suggests that the
factfinding request should be denied until such time as a determination is made as to whether the
matter is within the scope of representation. This is precisely the type of delay the Board in WIB
cautioned against. The principal purpose of factfinding is to assist the parties in reaching a
voluntary and prompt resolution to their dispute through intervention of a neutral. To require a
preliminary determination as to whether a matter is within the scope of representation before
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approving a factfinding request “would encourage both delay and gamesmanship, thus defeating
the principal purpose of factfinding, namely, through intervention of a neutral to assist the parties
in reaching a voluntary and prompt resolution.” (WIB, supra, PERB Order No. Ad-418-M, p. 33,
fn. omitted.)
The County argues that a determination of whether the dispute concerns negotiable
matters is required because the Board must determine “the existence of an actual impasse.”
(Appeal, p. 4.) We disagree. The County relies on PERB Regulation 32802, subdivision (a)(2),
which requires that one party has provided a written declaration of impasse. Determining
whether there has been a written declaration of impasse is not the same as determining the
existence of an impasse. Although we must determine the former, we do not determine the latter
during a factfinding proceeding since the legislatively preferred method of resolving a party’s
disagreement that an actual impasse exists is through an unfair practice charge, not a factfinding
request. (City of Salinas (2018) PERB Order No. Ad-457-M, p. 6; City & County of
San Francisco, supra, PERB Order Ad-415-M, pp. 13-14.)4
None of this is to say that the Board may never make a scope of representation
determination in the context of a request for factfinding. We have held that “in the course of
responding to a factfinding request, the Board has jurisdiction to decide all relevant and
necessary factual and legal issues pertinent to that request.” (City & County of San Francisco,
supra, PERB Order No. Ad-415-M, p. 12.) In the same case, however, we exercised our
discretion not to decide disputed factual and legal issues that were also implicated in a pending
unfair practice case between the same parties, determining that resolution of those issues was
4 The procedure is in contrast to that applicable to impasse procedures under the
Educational Employment Relations Act (codified at § 3540 et seq.). Compare PERB
Regulation 32792 with Regulation 32802.
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“better suited to the unfair practice proceedings, with no resulting prejudice to the parties.”
(Id. at p. 14; see also City of Folsom (2015) PERB Order No. Ad-423-M, pp. 5-6.)
Here, too, we believe that unfair practice proceedings are better suited to resolving the
legally and factually complex issue of whether the present dispute concerns a matter within the
scope of representation. If after seeking clarification in negotiations, the County believes the
dispute is entirely beyond the scope of representation, its remedy is to refuse to participate in
factfinding, drawing a charge of violating MMBA section 3506.5, subdivision (e), and PERB
Regulation 32603, subdivision (e).5 (City of Salinas, supra, PERB Order No. Ad-457-M, p. 5;
City of Folsom, supra, PERB Order No. Ad-423-M, p. 6.) On the other hand, it is possible that
by participating in the factfinding process (and with the assistance of the neutral factfinding
panel chair), the County may be able to obtain sufficient clarification of the Association’s
position to determine that the Association’s proposals do concern matters within scope.
Request for Stay
We deny the County’s request for a stay since the request is moot in light of this
decision.
ORDER
The County of Ventura’s appeal from the administrative determination and request for
stay in Case No. LA-IM-234-M are hereby DENIED.
Members Banks and Winslow joined in this Decision.
5 Section 3506.5, subdivision (e), provides that a public agency shall not “[r]efuse to
participate in good faith in an applicable impasse procedure.” PERB Regulation 32603,
subdivision (e), makes it an unfair practice for a public agency to “[f]ail to exercise good faith
while participating in any impasse procedure mutually agreed to pursuant to Government Code
section 3505 or 3505.2, or required by the MMBA or any local rule adopted pursuant to
Government Code section 3507.”
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________________________
STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027	PERB
February 15, 2017
Richard A. Levine, Attorney
Silver, Hadden, Silver & Levine
1428 Second Street
Santa Monica, CA 90401
Mike Curnow, Labor Relations Manager
Patrick Neil, Deputy Chief
County of Ventura
800 S. Victoria Avenue
Ventura, CA 93009
Re: 	County of Ventura and Ventura County Professional Peace Officers Association
Case No. LA-IM-234-M
Administrative Determination
Dear Interested Parties:
On February 8, 2017, the Ventura County Professional Peace Officers Association
(Association) filed a request for factfinding 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 The Association asserts that it and the employer, County of Ventura
(County) have been unable to effect a settlement in their current negotiations regarding the
Probation Agency’s Firearm Manual. Impasse was declared by a party on January 19, 2017.
By letter dated February 13, 2017, the County objected to the factfinding request. The County
contends that the Firearm Manual is not a matter within the scope of representation. For the
reasons discussed herein, the request for factfinding is approved.
Discussion
The Association describes the dispute as “arising from meet and confer negotiations … for
Probation Officers regarding content of Probation Agency’s Firearm Manual, Chapter 6
governing conduct of Armed Probation Officers.”
The County contends that this policy is not within the scope of bargaining. The policy
addresses the use of force by sworn staff of the County’s Probation Agency. Under San Jose
1 The MMBA is codified at Government Code section 3500 et seq. 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.

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Peace Officer’s Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, matters concerning the
use of force are a matter of managerial prerogative. Although the County sought the
Association’s input regarding the policy, it disagrees that this is a matter within the scope of
representation under the MMBA.
LA-IM-234-M
February 15, 2017
Page 2
In Workforce Investment Board (2014) PERB Order No. Ad-418-M, the Board concluded that
the Office of General Counsel (OGC) is not required to determine whether a matter is within
the scope of representation before approving a pending factfinding request. Rather, the OGC’s
role is limited to determining whether the conditions of MMBA section 3505.4 and PERB
Regulation 32802 have been met. (Id. at pp. 32-33.) Therefore, the OGC is not empowered to
determine, at this stage of the proceedings, whether the dispute or differences subject to
factfinding is a matter within the scope of representation.
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 February 22, 2017.2 Service and proof
of service are required.
The résumés of seven factfinders, drawn from the PERB Panel of Neutrals, are being provided
to the parties via electronic mail.3 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 February 22, 2017, 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 of Appeal
An appeal of this decision to the Board itself may be made within ten (10) calendar days
following the date of service of this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
2 This deadline, and any other referenced, may be extended by mutual agreement of the
parties.
3 The seven neutrals whose résumés are being provided are Don Becker, Robert
Bergeson, Kenneth Cloke, Paul Crost, Fredric Horowitz, George Larney, and Philip Tamoush.

LA-IM-234-M
February 15, 2017
Page 3
iled, the original and five (5) copies of any appeal must be filed with the Board itself at the
following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered “filed” when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; 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 appeal must state the specific issues of procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay of any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If a timely appeal is filed, any other party may file with the Board an original and five (5)
copies of a response to the appeal within ten (10) calendar days following the date of service of
the appeal (Cal. Code Regs., tit. 8, § 32375).
Service
All documents authorized to be filed herein must also be “served” upon all parties to the
proceeding and on the LocName regional office. 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 an appeal or opposition to an appeal 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

LA-IM-234-M
February 15, 2017
Page 4
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,
Laura Z. Davis
Supervising Regional Attorney
LD