Workforce Investment Board of Solano County (PERB A418M)

STATE OF CALIFORNIA
DECISION OFTHE
PUBLIC EMPLOYMENT RELATIONS BOARD
WORKFORCE INVESTMENT BOARD OF
SOLANO COUNTY,
Employer,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Exclusive Representative.
Case No. SF-IM-134-M
Administrative Appeal
PERB Order No. Ad-418-M
November 17, 2014
Appearances: Law Offices of Randal M. Barnum by Randal M. Barnum, Attorney, for
Workforce Investment Board of Solano County; Weinberg, Roger and Rosenfeld by
Matthew J. Gauger, Attorney, for Service Employees International Union, Local 1021.
Before Huguenin, Winslow and Banks, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the Workforce Investment Board of Solano County (WIB)
from an administrative determination (attached) by PERB's Office of the General Counsel to
approve a request by Service Employees International Union, Local 1021 (SEIU) pursuant to
the Meyers-Milias-Brown Act (MMBA)1 that the parties' bargaining differences be submitted
to a factfinding panel.
PERB' s Office of the General Counsel determined that WIB is a public agency within
the MMBA and that factfinding is appropriate under MMBA section 3504.5 and PERB
Regulation 32802.2
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

We have reviewed the record, including SEIU's factfinding request, WIB's opposition,
documents submitted by the parties,3 the administrative determination and WIB's appeal. The
findings
of
the Office
of
the General Counsel are supported by the record, and we therefore
adopt them as the findings
of
the Board itself, as supplemented below. The conclusions drawn
by the Office
of
the General Counsel are in accordance with relevant law, and we therefore
adopt them as the conclusions
of
the Board itself, as supplemented below. For the reasons set
forth below and in the administrative determination, we affirm the result reached by the Office
of
the General Counsel.
PROCEDURAL HISTORY
On November 26, 2013, SEIU filed a request for factfinding \\rith PERB's San Francisco
Regional Office, pursuant to MMBA section 3505.4 and PERB Regulation 32802. In its request
SEIU asserted that SEIU and WIB had been unable to effect a settlement in their negotiations
over midterm layoffs, and that.the parties had reached impasse on November 6, 2013. On
December 3, 2013, SEIU provided copies
of
correspondence supporting its declaration
of
impasse, its request for mediation and, absent mediation, for factfinding, and
WIB'
s refusal to
participate in mediation or factfinding.
On December 4, 2013, WIB filed a position statement opposing both SEIU's request for
factfinding and PERB' s jurisdiction to consider that request.
On December 5, 2013, PERB's Office
of
the General Counsel determined that PERB
had jurisdiction and that SEIU' s factfinding request met all statutory and regulatory
requirements. By e-mail, the Office of the General Counsel so informed the parties and also
indicated that a formal determination would issue shortly.
Our review includes documents in PERB' s case file in unfair practice Case
No. SF-CE-1067-M, of which the Office of the General Counsel took administrative notice.
(Admin. Deter., pp. 1-2.) We likewise take notice of those documents.
2

On December 10, 2013, PERB's Office
of
the General Counsel served the parties with
the attached administrative determination.
On December 20, 2013, WIB appealed from the administrative determination. WIB
challenges the conclusion that PERB has jurisdiction and as well the conclusion that SEIU's
factfinding request satisfies the requirements
ofMMBA
section 3505.4 and PERB
Regulation 32802.
On February 19, 2014, SEIU filed with PERB a copy
of
a letter dated February 7, 2014,
from the National Labor Relations Board (NLRB) Office
of
Appeals to WIB and SEIU. In its
February 7, 2014, letter, the NLRB Office
of
Appeals explained that it had denied WIB's
appeal from a determination by the NLRB regional director not to issue a complaint against
SEIU for unfair labor practices arising under the National Labor Relations Act (NLRA), as
amended (29 U.S.C. §
151
et seq.). The basis for this determination by the NLRB regional
director, which was affirmed by the Office
of
Appeals, was that the NLRB lacked jurisdiction
over WIB, because WIB was a political subdivision
of
the State
of
California (State) and thus
not an "employer" within Section 2(2)4
of
the NLRA. On February 24, 2014, WIB responded
to SEIU' s letter
of
February 19, 2014, urging that the NLRB' s jurisdictional determination is
4 Section 2(2) provides:
The term "employer" includes any person acting as an agent
of
an
employer, directly or indirectly, but shall not include the United
States or any wholly owned Government corporation, or any .
Federal Reserve Bank, or any State or political subdivision
thereof, or any person subject to the Railway Labor Act
[45 U.S.C. § 151 et seq.], as amended from time to time, or any
labor organization (other than when acting as an employer), or
anyone acting in the capacity of officer or agent of such labor
organization.
(U.S. Code (U.S.C.), Tit. 29, Ch. 7, § 152(2).)
3

not binding on PERB, nor does it control PERB' s interpretation
of
PERB' s own jurisdiction
under the MMBA. 5
FACTS
We present our discussion
of
the facts in three parts: first, the parties' recent history and
factfinding dispute; second, the statutory and regulatory context
of
WIB; and, third, the
operations and characteristics
of
WIB.
The Parties' Recent History and Factfinding Dispute
On May 15, 2013, SEID filed an unfair practice charge with PERB, alleging violation
by WIB
of
MMBA sections 3502, 3504, 3505 and 3506.6 That charge was assigned Case
5 The letter
of
February 7, 2014, to the parties from the NLRB' s Office
of
Appeals is
relevant to our considerations and concerns a recent event such that it could not have been
offered earlier. Thus, we find that good cause exists to consider this letter together with the
parties' contentions regarding its significance. (See Regents
of
the University
of
California
(1997) PERB Decision No. 1239-H,
p.
2, and cases therein cited.)
6 These portions
of
the MMBA provide:
3 502. Right to join or abstain; individual representation
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities
of
employee organizations
of
their own choosing for the
purpose
of
representation on all matters
of
employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities
of
employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
3504. Scope
of
representation
The scope
of
representation shall include all matters relating to
employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions of employment, except, however, that the scope of
representation shall not include consideration
of
the merits,
necessity, or organization of any service or activity provided by
law or executive order.
4

No. SF-CE-1067-M. In a letter accompanying its charge, SEIU alerted PERB to a possible
issue
of
PERB
's
jurisdiction.
3505. Conferences; meet and confer
in
good faith
The governing body
of
a public agency, or such boards,
commissions, administrative officers or other representatives as
may
be
properly designated by law or
by
such governing body,
shall meet and confer in good faith regarding wages, hours, and
other terms and conditions
of
employment with representatives
of
such recognized employee organizations, as defined in
subdivision (b)
of
Section 3501, and shall 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.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives
of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party 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. 	The process 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.
3506. Discrimination prohibited
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502.
On
May 30, 2013, the NLRB regional director dismissed several pending unfair labor
practice charges previously filed by SEIU against WIB. The regional director concluded that
the NLRB lacked jurisdiction over WIB, based on a determination that WIB was a political
subdivision
of
the State and thus not an "employer" within Section 2(2)
of
the NLRA.
On June 12, 2013, SEIU appealed to the NLRB Office
of
Appeals the NLRB regional
director's May 30, 2013, dismissal
of
SEIU's unfair labor practice charges. The basis for
5

SEID's appeal was its contention that WIB was not a political subdivision
of
the State under
applicable NLRB precedent, and instead was an "employer" under the NLRA, subject to
NLRB jurisdiction.
On June 13, 2013, WIB itself filed with the NLRB an unfair labor practice charge
against SEID, alleging bad faith bargaining.
On June 20, 2013, WIB responded to SEID's PERB unfair practice charge, submitting
to PERB's Office
of
the General Counsel WIB's position statement, appending various
documents. WIB asserted both that PERB lacked jurisdiction over WIB, and that SEID's
charge lacked merit. According to WIB, SEID' s PERB charge was "the same unfair labor
practice charge which has been filed by SEID against [WIB] with [NLRB]." Moreover,
according WIB, "SEID and WIB
...
both maintained [to the NLRB] the position that it is the
NLRB which has jurisdiction
...
[but] on May 30, 2013, the NLRB [acting regional director]
dismissed the unfair labor practice charge filed by SEID against WIB based on a lack
of
jurisdiction." Finally, according to WIB, SEID "filed an appeal with the Office
of
Appeals
of
the NLRB contesting the dismissal"
of
SEID' s charge, in which SEID: (1) informed the
NLRB' s Office
of
Appeals that it had filed a charge with PERB and (2) opined that "PERB is
highly unlikely to assert jurisdiction and is likely to take the position that [WIB] is not a public
agency under Section 350l(c)." (WIB Position Statement, Case No. SF-CE-1067-M, June 20,
2013, pp. 1-2.)
On October 21,2013, PERB's Office of the General Counsel issued a complaint against
WIB in Case No. SF-CE-1067-M. The complaint was set for a hearing before a PERB
administrative law judge (ALJ). Prior to a hearing, however, the matter settled. Thus, neither
a PERB ALJ nor the Board itself has considered the issues raised, including PERB' s
jurisdiction.
6

On November 8, 2013, the NLRB Office
of
Appeals denied SEIU's appeal from the
NLRB regional director's determination
of
May 30, 2013, discussed above, to dismiss SEIU's
unfair labor practice charge for lack
of
jurisdiction. The NLRB Office
of
Appeals concluded
that WIB is a political subdivision
of
the State and thus beyond NLRB jurisdiction.7
On November 22, 2013, the NLRB regional director dismissed the WIB's unfair labor
practice charge against SEIU for lack
of
jurisdiction, after determining that WIB is a political
subdivision
of
the State and thus beyond NLRB jurisdiction. Thereafter, WIB also appealed
the dismissal
of
its unfair labor practice charge to the NLRB Office
of
Appeals.
On November 26, 2013, SEID filed the instant request for factfinding, which was
assigned Case No. SF-IM-134-M. PERB's Office
of
the General Counsel undertook an
investigation
of
the request.
On December 10, 2013, PERB's Office
of
the General Counsel served WIB and SEIU
with the attached administrative determination, which concludes that PERB has jurisdiction
and that SEIU' s factfinding request satisfies the requirements
of
the MMBA and PERB
Regulation 32802. WIB has taken the instant appeal from this administrative determination.
On February 7, 2014, the NLRB Office
of
Appeals denied WIB's appeal from the
NLRB regional director's determination
of
November 22, 2013, to dismiss WIB's unfair labor
practice charge against SEIU for lack
of
jurisdiction. The NLRB Office
of
Appeals concluded,
as it had with SEIU's charge, that WIB is a political subdivision
of
the State and thus beyond
NLRB jurisdiction. Under NLRB procedure, no further appeal is possible from the dismissal
of
an unfair labor practice charge.
7 The NLRB's Office of Appeals relied for its conclusion on Pilsen Wellness Center
and Chicago Alliance
of
Charter Teachers and Staff(20l3) 359 NLRB No. 72. This decision
and Chicago Mathematics and Science Academy Charter School, Inc. (2012) 359 NLRB
No. 41 discussed therein, were impacted by the recent decision of the United State Supreme
Court in National Labor Relations Board
v.
Noel Canning (2014) 573 U.S.
__
(Noel Canning). However, because we here construe the MMBA, and in so doing rely on our
own precedent as well as NLRA decisions not subject to Noel Canning, Noel Canning is of no
consequence to our decision.
7

We next review the statutory and regulatory context
of
WIB.
The Statutory and Regulatory Context
of
WIB
Congress enacted the Workforce Investment Act
of
1998 (WIA) as successor legislation
to the Job Training Partnership Act
of
1982 (JTP A),8 which itself succeeded the
Comprehensive Employment and Training Act
of
1973 (CETA). In these federal enactments,
Congress promoted training and employment opportunities through funding grants
administered by participating states and/or their local government entities. Under WIA, the
State and/or its local government entities act through, and with, governmentally-appointed
councils or boards composed
of
individuals with backgrounds in business, labor and education,
referred to as a "private industry council" or a "workforce investment board." (CETA,
PL 95-524, § 704; JTPA, 29 U.S.C. § 15212 et seq.; WIA, 29 U.S.C. § 2832.)
Codified in U.S. Code, Title 29, Chapter 30, WIA provides, in pertinent part:
The purpose
of
this subchapter is to provide workforce
investment activities, through statewide and local workforce
investment systems, that increase the employment, retention, and
earnings
of
participants, and increase occupational skill
attainment by participants, and, as a result, improve the quality
of
the workforce, reduce welfare dependency, and enhance the
productivity and competitiveness
of
the Nation.
(29
u.s.c.
§ 2811.)
Workforce investment "systems" include the following:
1.
	A state workforce investment board established by the governor, having a
prescribed membership and functions including conflict
of
interest protections and sunshine
requirements (29 U.S.C. § 2821);
8 Hosek and Levine, The New Fiscal Federalism and The Social Safety Net, A View
from California (RAND, 1996); Reville and Klennan, Job Training: The Impact on California
of Further Consolidation and Devolution (1996), pp. 127-156.
8

2. 	A state workforce investment plan, created and submitted by the governor
of
each state for approval by the U.S. Secretary
of
Labor, having prescribed contents and
provisions for modification (29 U.S.C. § 2822);
3. 	Units
of
general local government designated within each state by the governor
as "local areas" for workforce investment program administration and service delivery, with
special provisions for small states and regional cooperation (29 U.S.C. § 2831);
4. 	A local workforce investment board or "local board" for each local area, created
by the chief elected official
of
the corresponding unit
of
general local government, and
certified by the governor, having statutorily prescribed tasks (adoption
of
a local plan, provider
selection, budget, oversight, performance measures, linkage with and coaching
of
employers),
and meeting statutory standards for membership, appointment and certification, sunshine
requirements, conflict
of
interest protections, and a youth council (29 U.S.C. § 2832);
5.
	A "local plan" for each local area, consistent with the state plan, created by the
chief elected official
of
the local area's unit
of
general local government, in partnership with
the local board, submitted for approval to the governor, and containing statutorily prescribed
plan contents, plus processes for public involvement in plan formulation (29 U.S.C. § 2833);
6.
	A "one-stop" service delivery mechanism, agreed to by the chief elected official
for the local area's unit
of
general local government and the local board, to designate and
certify "one-stop partners" to deliver mandatory and optional workforce investment services to
qualifying individuals, together with a memorandum
of
understanding agreed to by the one-
stop partner, the chief elected official and the local board (29 U.S.C. §§ 2841-2843);
7. 	Public funding via federal subvention to states, and through states to local areas,
to support youth activities as specified (29 U.S.C. §§ 2852, 2854) and adult and dislocated
worker employment and training activities as specified (29 U.S.C. §§ 2862, 2864); and
9

8. 	A performance accountability system to assess the effectiveness
of
states and
their units
of
general local government, in achieving improvement
of
workforce investment
activities, with statutorily prescribed indicators and levels
of
performance for state and local
performance, a reporting mechanism, evaluation studies, fiscal management and accountability
systems, sanctions for state and or local area failure to achieve performance goals, corrective
actions, and appeals therefrom (29 U.S.C. § 2871).
9
Supplementing federal statute are regulations issued by the U.S. Department
of
Labor
and California's own workforce investment statute, prescribing workforce investment activities
and specifying, inter alia, the role and function
of
the local boards. (Unemployment Insurance
Code (UIC), § 14000 et seq.) California statute prescribes the makeup and authority
of
the
California Workforce Investment Board (CWIB) and CWIB's particular responsibilities, viz.,
planning and coordinating the California WIB program, including establishment jointly with
the Governor
of
guidelines under which the chief local elected official in each local area forms
a "local board", and assisting the Governor to allocate the federal funds supporting the
programs
of
the CWIB and the local boards. (Id.)
California's workforce investment statute provides:
9 The
U.S.
Department
of
Labor has promulgated WIA regulations codified at Code
of
Federal Regulations (C.F.R.), Title 20, Chapter V, Parts 660-671, as follows: Part
660-
Introduction; Part 661 - Statewide and Local Governance; Part 662
-The
One-stop System;
Part 663 	Adult and Dislocated Worker Activities; Part 664 	Youth Activities; Part 665 -
Statewide Workforce Investment Activities; Part
666-
Performance Accountability; Part 667 -
Administrative Provisions; Part 668 - Indian and Native American Programs; Part 669 -
National Farmworker Jobs Program; Part 670
-The
Job Corps; and Part 671 - National
Emergency Grants for Dislocated Workers. Subparts 661.300, 305, and 350 address the
following: What is the Local Workforce Investment Board? (§ 661.300.) What is the role
of
the Local Workforce Investment Board? (§ 661.305.) What are the contents
of
the local
workforce investment plan? (§ 661.350.) Subparts 667.100, 105, 107, 130 and 140 address
the following: 	When do Workforce Investment Act grant funds become available?
(§ 667.100.) What award document authorizes the expenditure
of
Workforce Investment Act
funds under title I of the Act? (§ 667 .105 .) What is the period of availability for expenditure
ofWIA funds? (§ 667.107.) How are WIA title I formula funds allocated to local workforce
investment areas? (§ 667.130.) Does a Local Board have the authority to transfer funds
between programs? (§ 667.140.)

1.
	The chief elected official(s) in each local area forms a local workforce
investment board or "local board" pursuant to guidelines established by the Governor and the
CWIB. (UIC, § 14200(a).) The Governor, through the CWIB, establishes standards for high-
performance local boards, and certifies bi-annually a local board for each local area. (UIC,
§ 14200(b), (c).) Standards for certification include extensive statutorily-specified criteria.
(UIC, § 14200(c).)
2. 	Local boards assist the local chief elected official in planning, oversight, and
evaluation
of
local workforce investment programs and services and "shall" promote effective
outcomes consistent with statewide goals and objectives, and negotiated local performance
standards. (UIC, § 14201.)
3. 	Members
of
local boards are appointed
by
the chief elected official in each local
area, using criteria established by the Governor and the CWIB. (UIC, § 14202.) Each local
board's chairperson is selected by the local board members from among the local board's duly
appointed members. (UIC, § 14205.)
4. 	Each local board performs eleven statutorily-specified tasks and functions to
facilitate its workforce investment program. (UIC, § 14206.) In addition, each local board
performs certain ancillary tasks and functions, also statutorily-specified (UIC, § 14207 (a), (b))
and is forbidden to perform other tasks except under prescribed conditions.
(UIC, § 14207 (e), (f).)
5. 	In partnership with the chief elected official for the local area, each local board
develops and submits to the governor for review and approval, a comprehensive five-year local
plan consistent with the state plan. (UIC, § 14220.) Each local plan must contain ten
statutorily-itemized dements. (UIC, § 14221.) Each local plan must include a system
of
one-
stop career centers. (UIC, § 14230.) A full service one-stop career center includes statutorily-
specified elements. (UIC, § 14231.) Each local board must meet statutorily specified
11

conditions regarding the one-stop career centers (UIC, § 14230 (b)-(e)) and with the agreement
of
the chief elected official for the local area must designate or certify each one-stop operator,
develop and enter a contract with each one-stop operator, and conduct oversight
of
the one-
stop delivery system. (UIC, § 14232.)
In sum, federal statute and regulations promulgated thereunder, as well as California
statute and decisions thereunder
of
CWIB, establish and implement a comprehensive system
of
workforce development, within which local workforce investment boards are created by state
and local government, publicly funded by federal grants, and operate under agreements with
local government, and the performance
of
local workforce investment boards is monitored and
assessed for compliance by state and local government.
We next examine the operations and characteristics
of
WIB.
The Operations and Characteristics
of
WIB
WIB is the WIA workforce investment board or "local board" for Solano County,
California (County). The parties provided several documents describing the characteristics and
operations
of
the WIB, including the SEIU-WIB collective bargaining agreement (CBA), the
WIB Bylaws (Bylaws) and the WIB's Agreement with County
of
Solano (Agreement) entered
pursuant to the WIA. We review relevant provisions
of
each.
1.	
The CBA
The CBA identifies the "Employer" as "the Private Industry Council
of
Solano County,
Inc., doing ijusiness as the Workforce Investment Board
...
of
Solano County, Inc."
10
(CBA,
p. 1.) and describes the bargaining unit represented by SEIU as follows: all full-time and
10
We take administrative notice
of
state and county records which indicate: 	Private
Industry Council
of
Solano County, Inc.'s current corporate status is active (California
Secretary
of
State File No. Cl101464); and Private Industry Council
of
Solano County, Inc.,
has registered a fictitious business name (FBN) ("Workforce Investment Board
of
Solano
County, Inc.") in Solano County (FBN File No. 2013000812). Neither party submitted for
PERB review the Articles of Incorporation for the Private Industry Council of Solano County,
Inc., nor was this document readily available elsewhere.
12

regular part-time employees in the classifications
of
administrative/program specialists I, and .
II, and administrative/programs technicians I, II and III, excluding supervisory, confidential,
and temporary employees. (CBA, p. 1.)
2. 	The Bylaws
The Bylaws describe a nonprofit public benefit corporation, designated the "Workforce
Investment Board
of
Solano County, Inc." formed under California law for the purpose
of
implementing WIA in Solano County, California. The Bylaws state, inter alia, that:
(I)
· 	WIB is "the planning, administrative, implementation and oversight agency for
WIA employment and training programs in Solano County, as defined in Section 11? 1
1
	of
the
Act" (art. III);
(2) 	WIB' s purpose is "to administer and operate workforce development programs
as a public/private partnership between community and business interests" (art. I, § B);
(3)
	WIB's
goals are to carry out the "foregoing purposes" and
"in
connection
therewith" to exercise any
of
the powers granted to nonprofit corporations by the laws
of
the
State (art. II);
(4) 	WIB derives its authority
"in
part from: 	The federal Workforce Investment
Act
...
of
1998, and its amendments" or WIA (art. I, § A);
( 5) 	WIB' s membership consists
of
its duly appointed directors (art. V), who are
appointed by the County board
of
supervisors and certified by the Governor
of
California in
accordance provisions
of
State and federal law, and serve terms
of
five (5) years consistent
with such law (art.
VI,§
C);
(6) 	WIB's board
of
directors exercises all corporate authority, and control
of
the
business and affairs
of
WIB, subject to limitations specified in WIB' s articles
of
incorporation,
federal and State laws, duties of directors under the Bylaws; the conditions of any grant under
11
PL 105-220, § 117; 29 U.S.C. § 2832.
13

which WIB is operating, and to limitations
of
authority set forth
in
the WIA Agreement
12
(Agreement) entered into pursuant to the WIA between WIB and the County (art.
VI,§
A);
(7) 	WIB's officers are elected by and from among the WIB board
of
directors
(art. IX, § B);
(8) 	WIB's members/directors appoint a president or chief executive officer (CEO)
who is a WIB employee, who directs and supervises the business and affairs
of
WIB, subject to
the WIA Agreement with the County and State and federal law, and who servesat the pleasure
of
the WIB board
of
directors (art. XII, § A);
(9) 	WIB general membership meetings are public and meeting notices must comply
in all respects with the California's "open meeting" law for local public agencies
13
(art. VII, § A);
12
U.S. Department
of
Labor regulations authorize an agreement describing the
respective statutory duties and responsibilities
of
the local board and the chief elected official
for the local area providing, in pertinent part:
The Local Workforce Investment Board (Local Board) is
appointed by the chief elected official in each local area in
accordance with State criteria established under WIA
section 117(b) [29 U.S.C. § 2832(b)]
....
(b) In partnership with the chief elected official(s), the local
board sets policy for the portion
of
the statewide workforce
investment system within the local area.
( c) The local board and the chief elected officials may enter into
an agreement that describes the respective roles and
responsibilities
of
the parties.
(d) The local board, in partnership with the chief elected official,
develops the local workforce investment plan and performs the
functions described in WIA section 117(d) [29 U.S.C. § 2832(d)].
(20 C.F.R., subpart 661.300.)
13
29 U.S.C. section 2832 (e); 20 C.F.R. subpart 661.307.
14

(10) 	WIB directors adopt and adhere to a conflict
of
interest code as required under
the State plan
14
(art. VIII);
(11) 	WIB's fiscal year is established pursuant to the WIA as July 1 through June 30;
(art. XV);
(12) 	WIB's offices are located in Solano County, California (art. IV).
3.
	The Agreement
The Agreement between WIB and the County describes the respective roles and
responsibilities ofWIB and the County in implementing the WIA. The Agreement recites:
WHEREAS, the Workforce Investment Act ("WIA'') [20 CFR
Part 652 et al; Public Law 105-220; 20 U.S.C. 9726(c)]
authorizes the expenditure
of
Federal funds for job
training programs in local Service Areas (hereinafter
"SA"); and
WHEREAS, the Governor's Executive Order D-9-99, signed
October 10, 1999, established the California Workforce
Investment Board and provides for State implementation
of
the Act in California; and
WHEREAS, the California Workforce Investment Board
designated Solano County as a Service Area; and
WHEREAS, the Act requires the establishment
of
a local WIB to
provide policy guidance and oversight with respect to a
Five-Year Local Strategic Plan for the local SA; and
WHEREAS, the Act requires a partnership between WIB and
County and requires approval
of
the WIA Five-Year Local
Strategic Agreement by County; and
WHEREAS, the Act requires WIB and the County to define the
scope
of
their partnership by means
of
an Agreement; and
WHEREAS, WIA section 118(b), 20 CFR 661.345 and CUIC
[Cal. Unemp. Ins. Code] 15032(1) [repealed and replaced
by UIC, §§ 14000, et seq.] require that an agreement
enumerate procedures for the development of a WIA Five-
y ear Local Strategic Plan by WIB as well as additional
responsibilities of the Administrative Entity; and
14
29 U.S.C. section 2832 (g); California Government Code sections 87300, et seq.
15

WHEREAS, the North Bay Employment Connection (hereinafter
"NBEC") was created in March 1998 as an informal
collaboration
of
the four Northern San Francisco Bay
Area workforce development agencies, located in Marin,
Napa/Lake, Solano and Sonoma, to work in partnership to
enhance service delivery for
job
seekers and employers in
the North Bay economic region; and
WHEREAS, it is the joint intention
of
the County and the WIB to
host the administration
of
the North Bay Employment
Connection grarits and contracts for employment, training
and education projects and programs for the NBEC
partners in addition to the current Service Area.
(Agreement, p.
l)
The Agreement identifies particular duties to be performed by WIB as the WIA
administrative/planning entity, and other duties to be performed by the County as the
designated WIA grant recipient.
Duties
of
WIB under the Agreement include:
(1) 	Prepare a five-year local strategic WIA plan sununary containing
recommendation for operation
of
all WIA training programs and activities during the five-year
local strategic planning period, and prepare all WIA plan documents, to include the following:
(a) publish in local news media at least 30 days in advance, notice
of
the availability
of
the
plan, and the date, time and location
of
a public hearing for review and discussion
of
the plan;
(b) conduct the hearing and include when submitted to the governor any comments on the plan
received at the hearing; (c) present the plan for approval to the WIB board
of
directors;
( d) present the WIB-approved plan to the County board
of
supervisors for approval and
signature
of
the chieflocal elected official (Id. at p. 4);
(2) 	Make available the documents needed by the County to perform its duties,
including copies
of
all State and federal reports and audits regarding programs, operations or
complaints (Id.);
16

(3) 	Maintain a contracts management system in conformity with contract policies
determined by County and its counsel (Id.);
(4) 	Submit to the County board of supervisors for approval all contract actions of
$50,000 or more, and to the County administrator for concurrence all contracts actions less
than $50,000 (Id.);
(5) 	Pursuant to County purchasing requirements, contract directly for purchases of
property, equipment, software, etc. (Id. at p. 5);
(6) 	Provide County contract administrator all finalized contract documents (Id.);
(7) 	Use County purchasing department services, except when WIB procedures
produce greater efficiency or as required by grant rules (Id.);
(8) 	Submit to the County board of supervisors for approval all grants over $50,000
(Id.);
(9) 	Use and expend grant funds only for administration and implementation of the
specific grant program (Id.);
(10) 	Use and expend funds pursuant to, and in accordance with, all applicable federal
and State laws and regulations (Id.);
(11) 	Reimburse County for all actual costs incurred by County as the grant recipient
(Id.);
(12) 	Pay solely from funds received by WIB all costs to plan, administer and manage
the WIA program (Id.);
(13) 	Obtain County approval for revenue contracts exceeding $500,000 (Id. at p. 3).
Duties of Solano County under the Agreement include:
(1) 	Receive all grant funds from the State or federal government, and establish
special revenue fund with County treasurer in which to deposit all grant funds and from which
to disburse such finds in accordance with this Agreement (Id. at p. 2.);
17

(2) 	Execute local plan modification documents, WIA master subgrants and other
subgrants or funding agreements, as necessary to conduct business (Id.);
(3) 	Disburse grant funds as prescribed by State and federal government (Id.);
(4) 	Allocate and account for all funds received and obligated under WIA (Id.);
(5) 	Pay all claims for authorized payrolls, subcontractors and vendors (Id.);
(6) 	Establish and provide fiscal policies and reporting procedures (Id.);
(7) 	Procure and participate in all audits (Id.);
(8) 	Monitor reporting
of
all fiscal data to State and federal government (Id.);
(9) 	Approve all leases enteredinto by WIB where grant funds are used (Id.);
(10) 	Approve all changes in the plan or in the manner
of
providing service
if
not in
the plan (Id.);
(11) 	Review/approve WIB annual operating budget (Id.);
(12) 	Ratify WIB's selection
of
the WIB president/executive director (Id.);
(13) 	Appoint WIB board members (Id. at p. 3);
(14) 	Monitor all grant funded activities (Id.).
In sum, WIB's CBA, Bylaws and Agreement with Solano County indicate that WIB:
(1) is part
of
the federal and California workforce investment system; (2) is controlled by
public entities, viz., the State and the County; (3) was created for and operates to achieve a
public purpose; and (4) is publicly funded via federal grants.
ADMINISTRATIVE DETERMINATION
The administrative determination states the Office
of
the General Counsel's findings
and conclusions on PERB jurisdiction and the sufficiency of SEIU's factfinding request.
(Adrnin. Deter., pp. 1-6.) As to jurisdiction, the Office of the General Counsel relied on
18

existing PERB precedent construing MMBA
15
to conclude that WIB is a public agency within
the MMBA, subject both to PERB
's
jurisdiction and the factfinding provisions
of
MMBA and
PERB regulations. As to the sufficiency
of
SEIU' s factfinding request, the PERB' s Office
of
the General Counsel construed the MMBA and PERB's regulations as implicated by SEIU's
declaration
of
an impasse over "mid-term layoffs" and request that this dispute be submitted to
factfinding.
CONTENTIONS OF THE PARTIES
WIB renews on appeal its claims that PERB lacks jurisdiction and that in any event, the
dispute submitted by SEIU, viz., "mid-term layoffs," is legally insufficient for factfrnding.
As to jurisdiction, WIB urges that it is a private corporation and its board
of
directors
retains the authority to remove for cause any individual director. Thus, reasons WIB,
notwithstanding the determination
of
the NLRB that WIB is a political subdivision
of
the state,
WIB is not a political subdivision
of
the state within National Labor Relations Bd.
v.
Natural
Gas Utility Dist.
of
Hawkins Co. (1971) 402 U.S. 600 (Hawkins County) and its progeny.
Moreover, urges WIB, PERB's holdings in El Camino, supra, PERB Decision No. 2033-M and
Transit Authority, supra, PERB Decision No. 2263-M, are distinguishable. Thus, reasons
WIB, it is not a "public agency" under MMBA section 3501(c), and not subject either to the
MMBAfactfinding provisions or to PERB jurisdiction. Finally, urges WIB, PERB is neither
bound by the NLRB's determination regarding NLRB jurisdiction, nor does the NLRB's
determination regarding its own jurisdiction dispose
of
the separate question
of PERB's
jurisdiction under MMBA.
As to the parties' dispute proposed for submission to factfinding, WIB urges that:
(1) the issue proposed by SEIU, "midterm layoffs," is vague; (2) WIB's decision to lay off
15
MMBA section 3501(c); El Camino Hospital District (2009) PERB Decision
No. 2033-M (El Camino); Central Contra Costa Transit Authority (2012) PERB Decision
No. 2263-M (Transit Authority).
19

employees was due to "economic adversity" and thus was beyond WIB's duty to bargain
thereon under MMBA, and in any event SEIU failed to make a negotiable proposal regarding
layoffs so as implicate WIB's duty to bargain; and (3) PERB may not impose on WIB an
obligation to participate in factfinding absent a request from SEIU which implicates a subject
within WIB' s duty to bargain.
SEIU relies on its submissions below, and upon the NLRB Office
of
Appeals' decision
of
February 7, 2014, holding that WIB is a political subdivision
of
the State and beyond the
NLRB's jurisdiction.
DISCUSSION
PERB Regulation 32360 prescribes the contents for an appeal from an administrative
determination, stating in subdivision (c) thereof, "the appeal must be in writing and must state
the specific issue(s)
of
procedures, fact, law or rationale that is appealed and state the grounds
for the appeal." (PERB Reg. 32360(c).)16
WIB proffers on appeal the contentions it asserted below. We turn first to our
jurisdiction, 17
and then to the sufficiency
of
SEIU' s factfinding request.
16
The Board may reject an appeal from an administrative determination where the
appeal fails to identify the grounds or issues for the appeal. (Los Angeles Unified School
District (1992) PERB Order No. Ad-232.)
17
Recently, the Board elected not to resolve in an appeal from an administrative
determination regarding a request for factfinding under the MMBA, and instead to address in
parallel unfair practice proceedings among the same parties arising out of the same
circumstances, a complex factual issue involving joint employer status and construction of the
charter of the City and County of San Francisco. (City & County
of
San Francisco (2014)
PERB Order No. Ad-415-M (San Francisco), pp. 11-14.) As noted above at pp. 6-7, the
parties here similarly maintained, but dissimilarly settled prior to hearing, an unfair practice
charge dispute which implicated some of the issues raised in this case. Consequently, we
undertake here on the record before us resolution of the jurisdictional and other issues
presented by this appeal.
20

PERB' s MMBA Jurisdiction
In the MMBA, the Legislature enacted a broadly-inclusive scheme for labor relations
between California's public agencies, as defined, and their employees. Section 3500 declares,
in pertinent part, that:
(a) It is the purpose
of
this chapter 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
between public employers and public employee organizations. It
is also the purpose
of
this chapter to promote the improvement
of
personnel management and employer-employee relations within
the various public agencies in the State
of
California by providing
a uniform basis for recognizing the right
of
public employees to
join organizations
of
their own choice and be represented
by
those organizations in their employment relationships with public
agencies. Nothing contained herein shall be deemed to supersede
the provisions
of
existing state law and the charters, ordinances,
and rules
of
local public agencies that establish and regulate a
merit or civil service system or which provide for other methods
of
administering employer-employee relations nor is it intended
that this chapter be binding upon those public agencies that
provide procedures for the administration
of
employer-employee
relations in accordance with the provisions
of
this chapter. This
chapter is intended, instead, to strengthen merit, civil service and
other methods
of
administering employer-employee relations
through the establishment
of
uniform and orderly methods
of
communication between employees and the public agencies by
which they are employed.
(MMBA, § 3500(a).) The Legislature selected an expansive term, "public agency," to describe
those employers subject to the obligations
ofMMBA
and whose employees enjoy rights
thereunder. In section 3501(c) the Legislature defined "public agency" as follows:
(c) Except as otherwise provided in this subdivision, "public
agency" means every governmental subdivision, every district,
every public and quasi-public corporation, every public agency
and public service corporation and every town, city, county, city
and county and municipal corporation, whether incorporated or
not and whether chartered or not. As used in this chapter, "public
agency" does not mean a school district or a county board of
education or a county superintendent of schools or a personnel
commission in a school district having a merit system as provided
in Chapter 5 (commencing with Section 45100) of Part 25 and
21

Chapter 4 (commencing with Section 88000)
of
Part
51
of
the
Education Code or the State
of
California.
(MMBA, § 350l(c); emphasis added.)
Effective July
1,
2001, the Legislature vested PERB with jurisdiction to administer and
enforce the MMBA. (MMBA, § 3509; Coachella Valley Mosquito & Vector Control Dist.
v.
California Public Employment Relations
Bd
(2005) 35 Cal.4th 1072.)
18
Since then, PERB has
considered the extent
of
its MMBA jurisdiction in several cases.
Most recently in Transit Authority, supra, PERB Decision No. 2263-M, we concluded
that a joint powers agency (JP A) created by several Bay Area municipalities pursuant to the
Joint Exercise
of
Powers Act (JEPA)
19
qualified as a "public agency" within MMBA
section 3501(c), and therefore was an MMBA employer subject to the Board's jurisdiction.
We noted "the sweeping nature"
of
the statutory definition
of
"public agency" set forth in
section 3501(c), and observed that "on its face, the MMBA's definition
of
'public agency' is a
broad one." (Transit Authority, p. 15, citing Public Transportation Services Corporation
(2004) PERB Decision No. 1637-M, p. 2.) We construed section 3501(c) to include those
entities that have achieved the status
of
a "public agency" by statute, constitutional provision,
case law or administrative precedent, and in addition those entities whose operations and
characteristics bearing on their relationship to the state indicate attributes commonly associated
with public bodies. (Transit Authority, pp. 16-25.)
Earlier, in El Camino, supra, PERB Decision No. 2033-M, the Board concluded that
El Camino Hospital (Hospital) was a "public agency" within MMBA section 3501(c).
18
PERB has only such jurisdiction and powers as have been conferred on it by statute.
(Transit Authority, supra, PERB Decision No. 2263-M, p. 6, citing North Orange County
Regional Occupational Program (1990) PERB Decision No. 857.) Where PERB is without
jurisdiction, it cannot acquire jurisdiction by the parties' consent, agreement, stipulation or
acquiescence, or by waiver or estoppel. (Ibid)
19
JEPA is codified at section 6500 et seq.
22

Operating as a non-profit public benefit corporation under California law, Hospital was
"controlled" by the El Camino Hospital District (District) which was itself a "public agency"
formed pursuant to the California's Local Health Care District Law (Health & Saf. Code,
§ 32000 et seq.).
20
The Board reasoned that as it was controlled by the District, Hospital was a
"public agency" within section 3501(c).
In
addition, the Board reasoned that Hospital and
District together constituted a single employer which was a "public agency" within
section 3501(c) and that Hospital would be excluded from NLRB jurisdiction as a "political
subdivision. "
21
Since our task is construing and applying the MMBA,
22
it is to that responsibility that
we now turn.
We have assessed WIB's "operations and characteristics" bearing on its relationship to
local, state and federal governments. (Transit Authority, supra, PERB Decision No. 2263-M,
pp. 16-25.) We conclude that while organized as a California nonprofit public benefit
20
In Service Employees' International Union, Local
No.
22
v.
Roseville Community
Hospital (1972) 24 Cal.App.3d 400 (Roseville) the court confined "public agency" within
section 3501(c) to entities designated as such by statute, reasoning that this narrow
construction was compelled because the public employees
of
such employers had traditionally
been denied the right to strike. Long after Roseville was decided, the California Supreme
Court decided County Sanitation Dist. No. 2
v.
Los Angeles County Employees' Assn. (1985)
3 8 Cal.3d 564 (County Sanitation), holding that strikes by public employees are not unlawful
unless it is clearly demonstrated that the strike creates substantial and imminent threat to the
health or safety
of
the public. Thus, the Board observed in El Camino, supra, PERB Decision
No. 2033-M, that "the fundamental premise on which court in Roseville based its decision
[ viz., that public employee strikes are unlawful] was altered by the Supreme Court in County
Sanitation. Accordingly, it is unclear whether the [Roseville] court's [narrow] interpretation
of
MMBA section 3501 survived the issuance
of
County Sanitation." (El Camino, p. 14.)
21
Hawkins County, supra, 402 U.S. 600 (NLRB jurisdiction upheld where gas utility
neither a political subdivision of a state nor controlled by one); see also Options For Youth-
Victor Valley, Inc. (2004) PERB Decision No. 1701 (charter school organized as non-profit
public benefit corporation is a public school employer under Educational Employment
Relations Act is codified at Gov. Code,§ 3540 et seq.).
22
We take guidance, as appropriate, from NLRB and judicial construction ofNLRA
provisions analogous to those in the statutes which we administer. (Fire Fighters Union v.
City of Vallejo (1974) 12 Cal.3d 608, 616-617 (Fire Fighters v. City of Vallejo).)
23

corporation, WIB was created and now operates to implement the workforce investment
program. We find that WIB's operations and characteristics indicate, in their totality,
attributes commonly associated with public bodies. Ample support for this finding exists in
the record, including the WIB Bylaws, the WIB Agreement with Solano County and the
statutory and regulatory framework within which WIB was created and now operates. We
explain.
1. 	Public Purpose
We find that WIB was created for and now operates to achieve a public purpose.
WIB Bylaws (art. I,§ A) provide that WIB's purpose is "to administer and operate
workforce development programs" (art. I, § B.) and that WIB derives authority from "the
federal Workforce Investment Act of 1998, as amended."
WIB's Agreement with the County recites, inter alia, that: (1) WIA authorizes the
expenditure of federal funds for job training programs in local service areas; (2) California has
established the CWIB and provided for state implementation of the WIA; (3) CWIB has
designated the County as a WIA local service area; and (4) WIA requires the establishment of
a local board, which is WIB. (Agreement, p. 1.)
Federal statute creating the workforce investment system contains a declaration of
public purpose:
to provide work force investment activities, through state and
local workforce investment systems, that increase the
employment, retention, and earnings of participants, and increase
occupational skill attainment by participants, and as a result,
improve the quality of the workforce, reduce welfare dependency,
and enhance the productivity and competitiveness of the Nation.
(29 U.S.C. § 2811.) This purpose is accomplished through the workforce investment system
created by Congress in the WIA, a key component of which is the local board. (29 U.S.C.
§ 2832.) U. S. Department of Labor regulations explain and interpret this and other key
components of the workforce investment system. (20 C.F.R., Parts 660-671.)
24

California statute declares the Legislature's intent to develop and maintain a "well-
educated and highly skilled workforce" and in pursuit thereof establishes principles to "guide
the state's workforce investment system" (UIC, § .14000 (a), (b)) which includes local boards
such as WIB.
2. 	Public Funding
We find that the workforce investment system and WIB are publicly funded.
WIB's
Agreement with the County acknowledges public funding
ofWIB
and its
activities, along with County's ultimate receipt and disbursement
of
these public funds.
(Agreement, pp. 1-3.)
Federal funds flow to states under agreements between states and the U.S. Department
of
Labor, for subsequent disbursement to, and ultimate expenditure by, local governments to
support activities jointly planned and agreed upon by the local government and its local area
board. (See 29 U.S.C. §§ 2852, 2854, 2862 2864 and 20 C.F.R., subparts 667.100-140.)
3. 	Public Control
We find that through the federal/state workforce investment system, government/public·
entities establish and maintain control over WIB.
WIB Bylaws reflect government control
of
WIB by the State and/or its political
subdivision, the County: (1) WIB's corporate directors are appointed by the County and
certified by the Governor
of
California (Bylaws, art. VI, § C); (2) WIB' s president/CEO is
appointed by and serves at the pleasure
of
these directors, and the appointment must be ratified
by the County (Bylaws, art. VII, § A); (3) WIB director meetings are subject to requirements
of
the California "open meeting" statute applicable to local agencies (Bylaws, art. VII, § A; 29;
U.S.C. § 2832(e); 20 C.F.R., subpart 661.307); (4) WIB directors are subject to the California
"conflict
of
interest" regime applicable to local agency officials. (Bylaws, art. VIII; 29 U.S.C.
§ 2832 (g); Cal. Gov. Code, §§ 87100 et seq.)
25

WIB's Agreement with the County likewise reflects control of WIB by the State and/or
the County. WIB's duties under the Agreement include, inter alia: preparing a local five-year
strategic plan and all associated documents, with a public hearing thereon, for submission to
and approval of the County; providing to the County all State and federal reports and audits
regarding programs, operations or complaints; maintaining a contracts management system in
conformity with contract policies determined by County; obtaining approval/concurrence of
the County for all contracts; providing the County all finalized contract documents; using
County purchasing services; obtaining County approval for program grants over $50,000;
reimbursing the County for its costs as grant recipient. The County's rights/duties under the
Agreement include, inter alia: appointing all WIB board members; ratifying WIB's selection
the WIB president/executive director; reviewing/approving WIB's annual operating budget;
receiving, holding and disbursing for WIB all WIA grant funds from the State or federal
government; allocating and accounting for all WIA funds; paying authorized WIB payrolls,
subcontractors and vendors; establishing fiscal policies and reporting procedures to be used by
WIB; procuring and participating in all audits of WIB; monitoring WIB reporting of all fiscal
data to State and federal government; approving all changes ~n the local plan or in the manner
of providing service; and monitoring all WIB grant funded activities.
Finally, federal and California statutes also reflect control of WIB by the State and/or
the County: (1) WIB's local plan is developed jointly with, and is subject to approval by the
County, and thereafter reviewed and approved by the Governor (29 U.S.C. § 2833; UIC,
§ 14220); (2) the local plan must be consistent with the CWIB state plan (29 U.S.C. § 2833;
UIC, § 14221); (3) activities funded under the local plan must meet the mandatory
specifications therefor in federal and state statute (29 U.S.C. §§ 2833, 2841-2843; UIC,
§ 142211
); (4) local plan implementation is subject to mandatory performance review
(29 U.S.C. § 2871).
26

Based on these findings, plus those stated in the administrative determination, we
conclude that WIB is a public agency within MMBA section 350l(c).
4. 	WIB's Jurisdictional Contentions
WIB contends that it is a private corporation because pursuant to WIB Bylaws only
WIB directors may remove for cause one of their own, thus vesting "control" over sitting WIB
directors in WIB and not a government entity. For this reason, urges WIB, it is not a "public
agency" within section 3501(c). We are not persuaded. We explain.
Unlike most private corporations, WIB is a public benefit corporation under California
statute, having as its sole purpose and function to serve, pursuant to federal and State statutes
and regulations and an Agreement with the County, as the Workforce Investment Board for
Solano County, California.
Unlike officials of a private corporation, WIB's directors are publicly, not privately,
appointed by a government entity, County, and approved by another government entity,
California's Governor. By statute as well as WIB Bylaws, WIB directors serve five-year
terms. Although WIB Bylaws do authorize the publicly-appointed directors to remove for
cause one of their own, WIB has proffered no proof, nor even claimed, that this removal power
has been exercised. In any event, this removal authority is of little moment, since any vacancy
arising from such a removal is filled by governmental appointment.
Unlike officials of a private corporation, WIB directors are obliged, as are officials of
local government, to: (1) adopt a conflict of interest code pursuant to the conflicts of interest
provisions of California's political reform act, (Gov. Code,§§ 87100 et seq.) including
individual director disclosure of economic interests as defined in the WIB conflict of interest
code and State statute; and (2) give public notice of, and conduct, WIB directors meetings in
accordance with the public meeting statute applicable to local governmental agencies. 	(Gov.
Code, §§ 54950 et seq.)
27

Unlike officials
of
a private corporation, WIB directors are not free of, but rather
subject to, review and ratification
of
their actions by local and state government officials. As
outlined above, mandatory provisions
of
federal and state statutes and regulations, as well as
provisions
of
the Agreement between WIB and the County subject WIB directors' actions to
such governmental control: (1) WIB' s corporate directors are appointed by County and
certified by the Governor
of
California; (2) WIB' s president/CEO is appointed by and serves at
the pleasure
of
these governmentally-designated directors, and the appointment must be
ratified by the County; (3) WIB director meetings are subject to requirements
of
the California
"open meeting" statute applicable to local agencies; (4) WIB directors are subject to the
California "conflict
of
interest" regime applicable to local agency officials; (5) WIB prepares
five-year strategic plan and all associated documents, with a public hearing thereon, for
submission to and approval
of
the County, and the Governor, and the plan must be consistent
with California's plan adopted by the CWIB; (6) activities funded under the local plan must
meet the mandatory specifications therefor in federal and state statute; (7) the local plan
implementation is subject to mandatory performance review by the County and the State;
(8) WIB provides the County all State and federal reports and audits regarding programs,
operations or complaints; (9) WIB maintains a contracts management system in conformity
with contract policies determined by the County; (10) WIB obtains approval or concurrence
of
the County for all contracts; (11) WIB provides the County all :finalized contract documents;
(12) WIB uses County purchasing services; (13) WIB obtains County approval for program
grants over $50,000; (14) WIB reimburses the County for its costs as grant recipient;
(15) County reviews and approves WIB' s annual operating budget; (16) County receives, holds
and disburses for WIB all WIA grant funds from the State or federal government; (17) County
allocates and accounts for all WIA funds; (18) County pays authorized WIB payrolls,
subcontractors and vendors; (19) County establishes fiscal policies and reporting procedures to
·
28

be used by WIB; (20) County procures and participates in all audits of WIB; (21) County
monitors WIB reporting of all fiscal data to State and federal government; (22) County
approves all proposed changes in the local plan or in the manner of providing service; and
(23) County monitors all WIB grant funded activities.
Notwithstanding the NLRB's determinations of November 8, 2013 and February 7,
2014, that WIB is a political subdivision under NLRA section 2(2), WIB urges that it is not a
political subdivision and thus not exempt from NLRB jurisdiction section 2(2). WIB urges
that it cannot be a political subdivision pursuant to alternative (2) of the NLRB's test for
exemption, viz: "political subdivisions [are] entities that are either (1) created directly by the
state, so as to constitute departments or administrative arms of the government, or
(2) administered by individuals who are responsible to public officials or to the general
electorate." (Hawkins County, supra, 402 U.S. 600, 604-605, citing "About the Rights of the
Public Employee," 1 Lab. L. J. 604, 612-615 (1950).) In support of this claim, WIB cites to its
Bylaws which provide that removal of a WIB director shall be upon a vote of the other
directors, not by action of a governmental appointing power or the general electorate. Thus,
reasons WIB, it is different in a crucial manner from Hawkins County, where the district's
commissioners were subject to removal by a governmental authority or by the general
electorate.
We conclude that WIB makes too much of this distinction. We explain.
In Hawkins County, supra, 402 U.S. 600, the court applied the NLRB's own test to the
record facts in the case, reaching a different result than had the NLRB. The court found
sufficient basis to exempt the respondent district from NLRB jurisdiction under alternative
(2) of the NLRB's test, viz: "administered by individuals who are responsible to public
officials or to the general electorate." (Id.) The court concluded that district commissioners
were "responsible to public officials" because they were subject to the State's "General Ouster
29

Law, which provides procedures for removing public officials from office for misfeasance or
nonfeasance. 	[Citation omitted.] Proceedings under the law may be initiated by the Governor,
the state attorney general, the County prosecutor, or ten citizens." (Hawkins County, supra,
402 U.S. 600, 607.)
Here, the NLRB regional director and NLRB Office
of
Appeals concluded, and we
have found based on the record before us, that in the overall circumstances, WIB directors are
responsible to public officials, including but not limited to, the County board
of
supervisors,
which retains numerous powers and rights vis-a-vis WIB. We examine the NLRB Office
of
Appeals' determinations.
In its determination
of
November 8, 2013, the NLRB Office
of
Appeals stated:
The evidence indicates that the Workforce Investment Act
authorizes the expenditure
of
Federal funds for job training·
programs and, pursuant to this legislation, Governor's Executive
Order D-9-99 established the California Workforce Investment
Board to implement the Act in California. The California
Workforce Investment Board designated Solano County as a
Service Area. The bylaws
of
the Workforce Investment Board
of
Solano County set forth the procedure for the selection
of
Directors in Article VI Section C which reads as follows, "The
Solano County Board
of
Supervisors shall appoint and the
Governor
of
the State
of
California shall certify the initial WIA
Directors
of
the Corporation in accordance with the provisions
of
State and Federal law. Future vacancies will be appointed by the
Solano County Board
of
Supervisors and certified by the
Governor
of
the State
of
California." As noted in the appeal,
Directors are removed by their colleagues on the WIA Board
of
Directors. But these vacancies are then filled by the process set
forth in the above-quoted language.
With regard to the question
of
whether an entity is exempt
from NLRB jurisdiction as a political subdivision, the relevant
inquiry is whether it was either created directly by the State or
whether it is administered by individuals who are responsible to
public officials or the general electorate. 	[Citation omitted.] In
the case on appeal, both standards for exclusion are met in that it
was created pursuant to an executive order of the Governor of
California and its Directors are appointed by public officials.
While as an administrative matter these Directors are subject to
removal by their colleagues rather than outside public officials,
the overall circumstances clearly indicate that the Directors of
30

this entity are responsible to public officials. Accordingly, the
NLRB lacks jurisdiction over this entity and further proceedings
are unwarranted.
(Denial Ltr., November 8, 2013, Workforce Investment Board Cases 20-CA-099516, 102391,
103982, pp. 1-2, emphasis added.23) 	Likewise, in its determination of February 7, 2014, the
NLRB Office of Appeals stated:
Contrary to the assertions on appeal, the Acting Regional
Director properly found that the Employer was a Section 2(2)
political subdivision under the National Labor Relations Act.
Consequently, this Agency does not have jurisdiction to review
the charge. In this regard, the appeal raises the same
jurisdictional issues which were earlier addressed in our
November 8,.2013, letter denying the appeal of the Union in
20-CA-099516, 102391, and 103982. As noted in those cases, the
Employer was established by federal law and the executive order
of the Governor of California. It receives federal funds and its
directors are appointed by the Solano County Board of
Supervisors. As noted in the November 8, 2013, denial letter,
Directors are subject to removal by their colleagues on the WIA
Board of Directors. However, these Directors are themselves
public officials in the sense that they were appointed by public
officials. Moreover, any vacancies created by a removal of a
Director are filled by appointment from the Solano County Board
of Supervisors. Further, as the evidence in the prior cases
disclosed, the Solano County Board of supervisors retains
numerous powers and rights pertaining to the Employer's
operations.
Accordingly further proceedings are unwarranted.
(Denial Ltr., February 7, 2014, SEIU [WIB] Case 20-CB-107268, pp. 1-2, emphasis added.)
WIB opposes the NLRB Office of Appeals' determinations regarding NLRB
jurisdiction, and urges that we reach a different conclusion. We decline. Although these
23 We take official notice of this determination by the NLRB Office of Appeals in a
matter involving, and relied upon herein by, the parties before us. (The Regents of the University
of California, University of California at Los Angeles Medical Center (1983) PERB Decision
No. 329-H; Santa Clara County Superior Court (2014) PERB Decision No. 2394-C; Fire
Fighters v. City of Vallejo, supra, 12 Cal.3d 608; PERB Regulation 32320(a)(2).)
31

determinations lack res judicata effect,24 we conclude that the NLRB Office of Appeals'
determinations are well-reasoned. Accordingly, we conclude as did the NLRB Office of
Appeals, that WIB's claims under Hawkins County, supra, 402 U.S. 600, 607, are unavailing.
In sum, we have determined that WIB is a public agency within the MMBA and subject
to PERB's jurisdiction and that we will not disturb the NLRB Office of Appeals' well-
reasoned determinations that the WIB is a political subdivision of the State of California within
NLRA section 2(2).
We next address SEIU's factfinding request.
Sufficiency of SEIU's Factfinding Request
WIB objects to the determination that the dispute over "mid-term layoffs" is subject to
factfinding under MMBA. WIB raises three distinct claims, which are: (1) the dispute as
alleged is vague; (2) the layoffs in question were for economic uncertainty and thus are beyond
the scope of representation, and SEID failed to demand bargaining over negotiable impacts or
effects thereof; and (3) a determination that an issue is within the scope of representation is a
necessary precedent to a determination that factfinding thereon is appropriate. We address
WIB's claims.
As noted by the Office of the General Counsel, PERB' s role in reviewing a factfinding
request is limited. (Admin. Deter., pp. 4-6.) MMBA section 3505.4 and PERB
Regulation 32802, read together, posit as sufficient conditions for factfinding under MMBA,
the following: 	either participation in mediation, or absent mediation a declaration of impasse
by one of the parties, plus a request by the exclusive representative for factfinding,
accompanied by a statement that the parties have been unable to effect a settlement. 	Such a
24 Warehousemen's Union Local No. 206 v. Continental Can Co., Inc. (9th Cir. 1987)
821 F.2d 1348, 1351.
32

limited showing is sufficient under MMBA section 3505.4 and PERB Regulation 32802 to
implicate a public agency's obligation to participate in factfinding.25
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. These are
matters properly left to clarifying discussions between the parties26 and for resolution in an
unfair practice proceeding
if
either party files a charge. To inject such issues into a factfinding
investigation 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
27
resolution
of
their differences and thereby 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 between public employers and public employee organizations." (MMBA,
§ 3500.)
For these reasons, and those set forth in the administrative determination, we find
unpersuasive WIB's claims concerning SEIU's factfinding request.
CONCLUSION
For the reasons set out above, as well as those set forth in the administrative
determination, we dismiss WIB's appeal.
25
County
of
Contra Costa (2014) PERB Order No. Ad-410-M; San Francisco,'supra,
PERB Order No. Ad-415-M.
26 County
of
Santa Clara (2013) PERB Decision No. 2321-M and Rio Hondo
Community College District (2013) PERB Decision No. 2313; both citing Healdsburg Union
High School District and Healdsburg Union School District/San Mateo City School District
(1984) PERB Decision No. 375, pp. 8-10.
27
San Francisco, supra, PERB Order No. Ad-415-M, p.13 (factfinding is a time-
sensitive process).
33

ORDER
The administrative determination in Case No. SF-IM-134-M is hereby AFFIRMED.
Members Winslow and Banks joined in this Decision.
34

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
January 2, 2014
Matthew Gauger, Attorney
Weinberg, Roger & Rosenfeld
428 J Street, Suite 520
Sacramento, CA 95814-2341
Randal Barnum, Attorney
279 East H Street
Benicia, CA 94510
Re: 	Workforce Investment Board of Solano County and Service Employees International
Union Local 1021
Case No. SF-IM-134-M
Errata to Administrative Determination Dated December 10, 2013
Dear Interested Parties:
It has been brought to my attention that my Administrative Determination, dated December 10,
2013, in this matter contains an inadvertent clerical error. At page seven, the first full
paragraph under the heading "Right to Appeal," erroneously stats that the "County" may file
an appeal. The corrected paragraph is as follows.
,
Pursuant to PERB Regulations, an aggrieved party 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.)

SF-IM-134-M
January 2, 2014
Page 2
I apologize for any confusion this may have caused.
Laura
Z.
Davis
Senior Regional Attorney
LD
cc: 	Lee Axelrad

PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
December 10, 2013
Matthew Gauger, Attorney
Weinberg, Roger & Rosenfeld
428 J Street, Suite 520
Sacramento, CA 95814-2341
Randal M. Barnum
Law Offices
of
Randal M. Barnum
279 East H Street
Benicia, CA 94510
Re: 	Worliforce Investment Board
of
Solano County and Service Employees International
Union Local 1021
Case No. SF-IM-134-M
Administrative Determination
Dear Interested Parties:
On November 26, 2013, the Service Employees International Union, Local 1021 (SEIU 1021)
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 SEIU 1021 asserts that it and the Workforce Investment Board
of
Solano
County (WIB) have been unable to effect a settlement in their current negotiations over
midterm layoffs. SEIU 1021 alleges that the parties reached impasse on November 6, 2013.
On December 3, 2013, SEill 1021 provided further information in support
of
its request. On
December 4, 2013, the WIB filed a position statement, opposing the request for factfinding.
On December 5, 2013, PERB approved SEIU 1021
's
request and informed the parties
inane-
mail message that the determination would subsequently be memorialized in writing.
Factual Background Relating to PERB's Jurisdiction and Prior Proceedings
On October 21, 2013, PERB's Office
of
the General Counsel issued a complaint in PERB
Unfair Practice Case number SF-CE-1067-M, SEIU Local 1021
v.
Worliforce Investment
Board
of
Solano County. This case is presently scheduled for hearing before an Administrative
t 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.
Governor

SF-IM-134-M
December 10, 2013
Page2
Law Judge. Documents filed in connection with that case provide the following pertinent
facts.
The WIB is covered by its own written bylaws. It is governed
by
a 39-member Board
of
Directors who are appointed
by
the Solano County Board
of
Supervisors, and approved by the
Governor. Members
of
the Board
of
Directors are not elected, and may be removed only
by
a
vote
of
the others on the Board
of
Directors. The Solano County Board
of
Supervisors does
not have authority to remove them. Members serve a fixed term, normally five years, or as
provided
by
legislation.
The purpose
of
the WIB, according to the bylaws, is: " ... to administer and operate workforce
development programs
as
a public/private partnership between community and business
interests." In other words, WIB helps individuals find jobs by coordinating with numerous
employers and employment-related services in the County.
	It
derives its authority from the
federal Workforce Investment Act. It also appears that the WIB for Solano County is one
of
many local WIBs overseen
by
the State Workforce Investment Board, a State executive branch
agency.
For approximately 13 years, SEIU and the WIB have been signatories to a series
of
collective
bargaining agreements (CBAs). The current CBA is in effect through September 30, 2013.
The
CB As express the assumption
of
the parties that they are subject to the National Labor
Relations Act (NLRA) and therefore under the authority
of
the National Labor Relations Board
(NLRB). For example, CBA Section 1, Recognition, defines the bargaining unit by reference
to the NLRB.
On April 26, 2013, SEID 1021 filed an unfair labor practice charge (against the WIB) with the
NLRB which was dismissed on May 30, 2013. In a letter dated November 8, 2013, the NLRB
denied SEID 1021
's
appeal
of
the Regional Director's refusal to issue a complaint, asserting
that the WIB appeared to be a political subdivision
of
a state and therefore excepted from
NLRB jurisdiction, as discussed in Pilsen Wellness Center (2013) 359 N.L.R.B. No. 72.
Factual Background and Positions
of
the Parties Regarding Factfinding Request
On November 6, 2013, Stephen Cutty, Field Representative for SEID 1021, sent a letter to
Robert Bloom, President
of
the WIB, stating as follows:
I am requesting Mediation from State Mediation and Conciliation
Services immediately to resolve our differences in this proposed
imposition
of
layoffs
of
Bargaining Unit Personnel. If you do not
wish to engage in the mandated Mediation Process under the
Meyers-Milias-Brown Act then I am demanding a "Fact Finding"
panel be enabled immediately.
On November 13, 2013, Bloom sent a letter in reply to Cutty. The WIB took the position that:
(1) the MMBA does not apply to the WIB; and (2) that the WIB's decision to carry out layoffs

SF-IM-134-M
December 10, 2013
Page 3
due to financial adversity does not require bargaining. Bloom further stated: "under the
MMBA it is within WIB 's rights to unilaterally decide to lay off some of its employees to
reduce its labor costs," and "the two layoffs we discussed will proceed consistent with the in-
place WIB/SEIU Collective Bargaining Agreement-and longstanding past practices."
According to the WIB, Cutty and Bloom had several discussions regarding the WIB's proposal
to lay off two positions: (1) a Program Assistant II; and (2) an Employability Specialist II (case
manager) position. The most recent meeting between Cutty and Bloom on this subject was on
November 6, 2013. The WIB contends that it is not obligated to bargain over this layoff
decision, and, it alleges, SEIU 1021 has not identified any negotiable effects over which it
wanted to bargain.
According to the WIB, the proposed layoffs were actually implemented. The two employees
were notified of their layoffs on November 8, 2013, and the layoffs took effect on November
15, 2013.
In a letter to PERB dated December 3, 2013, Matthew Gauger, attorney for SEIU 1021,
provided copies of the November 6 and November 13 letters. Mr. Gauger's letter states as
follows:
Together, these documents [the November 6 and November 13
letters] constitute a declaration of impasse. Further, Mr. Cutty
verbally declared impasse at the November 6 meeting with the
employer. To the extent that these documents and Mr. Cutty's
statement are inadequate to establish impasse, please consider
this letter a declaration of impasse on behalf of the Union.
In its position statement dated December 4, 2013, the WIB contends that: (1) its decision to lay
off employees is not subject to bargaining and SEIU 1021 has not identified any negotiable
effects which would be subject to bargaining; and (2) there has not been any adjudication of
the issue of the application of the MMBA and PERB' s jurisdiction, and so invocation of the
factfinding process is improper or, at least, premature.
Discussion
A. Jurisdiction Over the WIB
PERB has jurisdiction over employees of public agencies, as defined by the MMBA. (Gov.
Code,§ 350l(c).) The WIB contends that the question of jurisdiction is presently unresolved
because there has been no adjudication of the issue yet, and that this issue will be decided in
connection with the pending unfair practice charge. The WIB also alleges that it is continuing
to pursue an appeal with the NLRB on the jurisdiction issue.
In El Camino Hospital District (2009) PERB Decision No. 2033-M, the Board held that the El
Camino Hospital was a public employer within the meaning of the MMBA. The charge in that

SF-IM-134-M
December 10, 2013
Page4
case was originally filed with the NLRB, which declined jurisdiction based upon the Hawkins
political subdivision exception. (NLRB
v.
Natural Gas Utilities District
of
Hawkins County
(1971) 402 U.S. 600 [Hawkins].) PERB found that the El Camino Hospital was governed
largely by the
El
Camino Hospital District. The District appointed five
of
the Hospital's
governing board members, and had the authority to remove the sixth appointee. PERB found
that the board members were "responsible to public officials."
In Central Contra Costa Transit Authority (2012) PERB Decision No. 2263-M, PERB held
that a local transit authority was a public agency or, alternatively, a governmental subdivision,
within the meaning
of
the MMBA. PERB also noted in that case that an agreement between
the parties cannot confer jurisdiction upon PERB, and that the absence
of
jurisdiction cannot
be
overcome
by
established practices
of
the Board.
Here, the WIB is governed
by
board members appointed
by
the Solano County Board
of
Supervisors. The Board
of
Supervisors does not have authority to remove WIB Board
members,
but
otherwise it appears that these are public officials. In addition, because WIB
appears to have a relationship with the State Workforce Investment Board, WIB might
be
considered a governmental subdivision
of
that agency. Accordingly, SEID 1021 makes a
threshold showing that the WIB is a public agency within the meaning
of
the MMBA and
therefore within
PERB's
jurisdiction for, at least, the limited purposes
of
the instant factfinding
request.
B. Declaration
of
Impasse
MMBA section 3505.4, subdivision (a),2 provides as follows:
The employee organization may request that the parties'
differences be submitted to a factfinding panel . . .
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
2 The factfinding provisions were added to the MMBA by Assembly Bill 646 (Stats.
2011, Ch. 680, § 2) and amended by Assembly Bill 1606 (Stats. 2012, Ch. 314, § 1.) The
amendment, which added the language about either party providing written notice
of
declaration
of
impasse, was intended to be technical and clarifying
of
existing law. 	(Stats.
2012, Ch. 314, § 2.)

SF-IM-134-M
December 10, 2013
Page 5
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 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~ declaration of impasse.
The parties did not submit the bargaining dispute to mediation or select a mediator. Therefore,
SEIU 1021 's factfinding request is based upon its written notice of a declaration of impasse.
The WIB has not disputed the timeliness of the factfinding request. SEIU 1021 's
correspondence of November 6, 2013, demands mediation or factfinding and therefore
indicates that an impasse had been reached. The WIB's letter of November 13, 2013, states
that it does not believe the matter is subject to bargaining and that it will proceed to implement
the layoffs. On December 3, 2013, SEIU 1021 's attorney sent a letter to PERB and to the WIB
stating that its letter of November 6 was intended as a written declaration of impasse. To the
extent there was any doubt remaining, SEIU 1021 's December 3, 2013, letter unequivocally
stated that it was declaring impasse. 	In addition, the WIB implemented the proposed layoffs
on November 8, 2013, with an effective date of November 15, 2013. To the extent that SEIU
1021 's November 6 letter was unclear, SEIU 1021 's December 3 letter, and the fact of
implementation, clearly establish a written notice of declaration of impasse within the meaning
of section 3505.4.
C. The Parties' Dispute or Differences
The WIB argues that its decision to lay off two employees is not subject to bargaining, because
it is a matter of managerial prerogative that need not be negotiated with the union in advance.
(International Association of Firefighters, Local 188 v. Public Employment Relations Bd.
(2011) 51 Cal.4th 259.)
In its factfinding request, SEIU 1021 states that the "type of dispute" over which it is
requesting factfinding is "midterm layoffs." As the WIB points out, this description.is vague
and it is not entirely clear what subjects SEIU 1021 expects to bargain or present to a
factfinding panel. It may turn out that some aspects of the dispute are bargainable and others
are not. However, PERB's role in reviewing a factfinding request under PERB Regulation
32802 is a limited one: PERE may only determine "whether the request satisfies the
requirements of this Section."
As stated above, MMBA section 3505.4, subdivision (a), provides that "the employee
organization may request that the parties' differences be submitted to a factfinding panel . . . If
the dispute was not submitted to mediation, an employee organization may request that the

SF-IM-134-M
December 10, 2013
Page6
parties' differences be submitted to a factfinding panel." (Emphasis supplied.) There is no
language in this statute (or in the other statutes governing factfinding) that limits the types
of
"differences" or "disputes" that may be submitted to a factfinding panel. By this language, and
considering the legislative history and PERB' s interpretation
of
factfinding procedures under
comparable statutory schemes,3 the Legislature did not place explicit limits on the nature
of
the
dispute or differences to be submitted to factfinding.
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 do 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, it could have done so explicitly.
	It
did not.
Next Steps
The instant request satisfies the requirements
of
PERB Regulation 32802 in that it was timely
filed, based upon a written notice
of
declaration
of
impasse, and identifies the type
of
"dispute"
or
"differences" to be examined at factfinding. At this stage
of
the proceedings, PERB's
inquiry is complete. 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 December 17,
2013.4 Service and
proof
of
service are required.
The resumes
of
seven factfinders, drawn from the PERB Panel
of
Neutrals, are being provided
to the parties via electronic mail. 5 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.
For example, 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. (Compare§§ 3548-3548.8 [EERA], with§§ 3590-3594 [HEERA], and§§
3505.4-3505.7 [MMBA].)
4 This deadline, and any other referenced, may be extended by mutual agreement
of
the
parties.
5 The seven neutrals whose resumes are being provided are Claude Ames, Norn1an
Brand, Jerilou Cossack, Ruth Glick, William Gould, Joe Henderson, and Nancy Hutt ..

SF-IM-134-M
December 10, 2013
Page7
Unless the parties notify PERB, on or before December 17, 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
IO
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 determination, 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.)
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 concunently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, § 32135, subd. (c).)

SF-IM-134-M
December 10, 2013
Page 8
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.)
Laura Z. Davis
Senior Regional Attorney
LD
/#<fiir