City and County of San Francisco (PERB A419M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY & COUNTY OF SAN FRANCISCO,
Employer,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Exclusive Representative.
Case No. SF-IM-145-M
Administrative Appeal
PERB Order No. Ad-419-M
November 24, 2014
Appearances: Amy D. Super, Deputy City Attorney, for City & County
of
San Francisco;
Weinberg, Roger & Rosenfeld by Robert E. Szykowny, Attorney, for Service Employees
International Union, Local 1021.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the City & County
of
San Francisco (City) from an
administrative determination (attached) made by the PERB's Office
of
the General Counsel
1
that factfinding procedures defined in the Meyers-Milias-Brown Act (MMBA) section 3505.4
and PERB Regulation 328022 applied to the bargaining impasse between the City and Service
Employees International Union, Local 1021 (SEIU).3 The bargaining dispute concerned the
effects on employees' terms and conditions
of
employment
of
the City's decision to institute
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3 Statutory references are to the Government Code unless otherwise noted. 	MMBA
section 3505.4 establishes a non-binding factfinding procedure for resolving post-impasse
bargaining disputes that may be invoked by the representative employee organization after
mediation efforts, if available, have failed to produce a settlement.

biometric time clocks at the City's Fine Arts Museums (FAMs). The City has also requested
that PERB stay the administrative determination pursuant to PERB Regulation 32370.4
Based on our recent decision in County of Contra Costa (2014) PERB Decision
No. Ad-410-M (Contra Costa) in which we held that the factfinding procedures set forth in
MMBA sections 3505.4 through 3505.7 apply to bargaining disputes over all matters within
the scope of representation, we affirm the administrative determination.
FACTUAL SUMMARY
PERB' s Office of the General Counsel made a finding of the following facts, which
were undisputed by either party. 	Sometime in May 2012, the City notified SEID of its intent to
implement a biometric time-keeping system (i.e., time clocks using employee fingerprints) at
its FAMs. The City again provided notice to SEID in March 2013.
The City and SEID met and conferred over the effects of the City's decision between
March and June 2.013. The focus of these sessions was on the effects on employee privacy
raised by SEID. The parties met three times, but no agreement was reached. 	On July 1, 2014,
the City notified SEID that it intended to implement its decision to install the biometric time-
keeping system on August 1, 2014, as it believed the meet-and-confer process had concluded.
By letter dated July 11, 2014, SEID representative, David Canham (Canham), notified
FAMs Human Resources Director Charlie Castillo (Castillo) that SEID did not believe the
meet-and-confer process had ended, and asserted that other negotiable effects of the decision to
implement the time-keeping system had yet to be addressed, including discipline issues, a
grace period within which employees would be allowed to clockin, and how employees would
4 PERB Regulation 323 70 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. 	"The Board may stay the matter, except as is otherwise provided in these
regulations."
2

l;ie
notified
if
they were determined to be tardy. The letter concluded by requesting further
bargaining sessions and offering three dates in July when SEIU would be available to meet.
On July 16, 2014, Castillo sent an e-mail message to Canham and others, stating as
follows:
As outlined
in
my July 1, 2014 letter, the department has meet
[sic] its obligation under the MMBA. The department and the-
City have met in good faith regarding all the issues outlined in
Mr. Canham's letter going all the way back to 2012. We are at an
impasse. Should you want to meet regarding any other issue that
the Union may feel is unresolved, I would be amenable to a
meeting.
(Exh. C to City's Appeal, emphasis added.)
On July 25, 2014, City Employee Relations Director Martin Gran (Gran) sent an
e-mail message to multiple recipients, including SEID representative Larry Bradshaw. Gran
stated that meet-and-confer sessions over impacts
of
the biometric time clocks concluded in
June 2013, that SEID raised additional impact issues in July 2014, and that the City was
available to meet to discuss these new issues, but that the City intended to implement the time
clocks on August 1, 2014.
PROCEDURAL HISTORY
SEID filed its request for factfinding on July 24, 2014, pursuant to MMBA
section 3505.4, claiming that the City declared impasse on July 16, 2014.5 On July 30, 2014,
the City filed a letter objecting to SEIU's request on the grounds that: (1) the request was
moot in light
of
the City's subsequent offer to meet with SEID to discuss newly-raised effects
of
the City's decision to implement'biometric time clocks in the FAMs; (2) the request was
improper to the extent SEIU was objecting to the decision itself, which PERB has found tobe a
5 MMBA section 3505.4(a) provides that an employee organization may request
factfinding, but must do so within 30 days of the declaration of impasse if the parties have not
submitted their dispute to mediation. (See also PERB Reg. 32802(a)(2).)
3

management right; and (3) the dispute is not a proper subject for factfinding, since factfinding
under MMBA exclusively applies to impasses in disputes arising from negotiations over a new
or successor memorandum of understanding (MOU). On July 31, 2014, SEIU filed a reply in
opposition to the City's objections. On July 31, 2014, PERB's Office of the General Counsel
approved SEIU's request and so informed the parties by e-mail. The administrative
determination followed on August 5, 2014.
ADMINISTRATIVE DETERMINATION
The Office of the General Counsel, citing to our decisions in Contra Costa, supra,
PERB Order No. Ad-410-M and County ofFresno (2014) PERB Order No. Ad-414-M6
(Fresno) rejected the City's objections to factfinding, concluding that Assembly Bill 646
(AB 646)7 applies to all bargaining disputes concerning matters within the scope of
representation, and is not limited only to bargaining disputes over a comprehensive MOU. The
Office of the General Counsel noted that the duty to bargain includes the duty to negotiate over
the implementation and foreseeable effects and impacts of managerial decisions not otherwise
subject to the process of collective bargaining, such as layoffs, staffing levels, employee
background checks, and additional educational programs.
The Office of the General Counsel concluded that in its July 16, 2014 letter to SEIU,
the City declared impasse in negotiations over the effects of the biometric time-keeping
system. It was also determined that SEIU's factfinding request was timely.
Fresno is currently pending before a California superior court on a writ of mandate
filed by the County of Fresno challenging PERB Order No. Ad-414-M.
7 AB 646, passed in 2011, amended the MMBA by adding sections 3505.4 through
3505. 7 to provide for a factfinding procedure if requested by the exclusive representative after
declaration of impasse.
4

The Office
of
the General Counsel also concluded that the City's July 25, 2014, offer to
meet to discuss additional impacts did not change the fact that the City had already provided a
written declaration
of
impasse.
The Office
of
the General Counsel noted that SEIU's request for factfinding identifies
the type
of
dispute as "employer implementing bio metric time clocks and new basis
of
discipline." After reviewing related correspondence submitted by both parties, the Office
of
the General Counsel concluded that it appeared that the parties had engaged in meeting and
conferring regarding the effects
of
the employer's decision to use the new biometric time-
keeping system, and that SEIU did not appear to contend that the decision itself is subject to
the duty to bargain.
Having concluded that the factfinding procedures set forth in MMBA section 3505.4
were applicable to this dispute, the Office
of
the General Counsel ordered each party to select
its factfinding panel member and notify the Office
of
the General Counsel
of
the selection by
August 12, 2014.
The City filed a timely appeal from this administrative determination.
THE CITY'S APPEAL
The City urges the Board to reverse the administrative determination on several
grounds, nearly all
of
which were addressed by this Board in Contra Costa, supra, PERB
Order No. Ad-410-M.8 The City asserts that PERB is bound by the court orders in County
of
Riverside
v.
PERB (Riverside County Superior Court Case No. RIC 1305661) (Riverside),
which enjoined PERB from approving any factfinding request in any bargaining dispute other
than for a new or successor comprehensive MOU; and in San Diego Housing Commission
v.
8 The one argument that is unique to this case is the City's claim that SEIU's
factfinding request is moot because the parties have apparently met and conferred concerning
additional effects of the biometric time-keeping system after August 1, 2014. We address that
claim later in this decision.
5

PERE (San Diego County Superior Court Case No. 37-2012-00087278) (San Diego), which
ordered PERB to dismiss the factfinding request in that case, as well as any other factfinding
requests involving San Diego and SEIU, Local 221, other than in a dispute arising from the
negotiation of a new or successor MOU. According to the City, PERB is enjoined from
ordering factfinding in this matter, because it is subject to an order in Riverside that is not
stayed pending PERB's appeal of the superior court's order in Riverside.
The City asserts that PERB is prohibited from ordering factfinding on this matter,
because it does not arise out of collecting bargaining for a new or successor MOU. According
. to the City, the plain meaning of the MMBA and legislative intent of AB 646 demonstrate that
factfinding only applies to new or successor MOU negotiations. The City also argues that the
Board lacks jurisdiction to consider this matter, because any Board decision other than one
rendered as a result of unfair practice proceedings would constitute an advisory opinion.
According to the City, consideration of the administrative determination would violate
basic notions of fairness and d{ie process, because the Office of the General Counsel, which
has defended PERB in the Riverside and San Diego litigation, has also made this
administrative determination.
The City also argues that the factfinding process unconstitutionally interferes with the
City's right to manage its finances and determine the compensation of its employees.
Lastly, the City urges that the administrative determination be vacated because it and
SEIU' s request are moot by virtue of the fact that the parties resumed negotiations subsequent
to the City's declaration of impasse.
SEIU' S RESPONSE
SEIU urges that the administrative determination be upheld based on our previous
holdings in Contra Costa, supra, PERB Order No. Ad-410-M and Fresno, supra, PERB Order
6

No. Ad-414-M. SEIU asserts that PERB has jurisdiction in this matter, because PERB
Regulations 32350 and 32360 allow the Board to consider appeals from administrative
determinations of a Board agent. SEIU also asserts that the administrative determination is not
an advisory opinion.
SEIU also asserts that PERB is not bound by the court orders in Riverside or
San Diego, because both decisions are currently on appeal, staying the effectiveness of the
decisions in those cases until they are finally determined by appellate courts, and because the
doctrines of res judicata and collateral estoppel do not apply until and unless a court decision is
final.
Addressing the merits, SEIU argues that AB 646 was intended to apply to bargaining
disputes such as the one presented by this case.
SEIU asserts that PERB's consideration of the administrative determination does not
violate basic notions of fairness and due process, because the Office of the General Counsel
may defend PERB in litigation even if the same issues are subsequently presented to the Board
itself by appeals of administrative determinations.
According to SEIU, AB 646 is not unconstitutional because it does not interfere with
the ultimate decision-making authority of public agencies to determine wages or manage their
finances.
Responding to the City's claim that the factfinding request is moot, SEIU denies that
the dispute is moot merely because the City resumed negotiations with SEIU after the City
unilaterally implemented use of the biometric time clocks on August 1, 2014. 	SEIU asserts
that after the City declared impasse and unilaterally implemented the biometric time clocks,
the City cannot "undeclare" impasse, since its actions have already harmed the collective
bargaining process.
7

DISCUSSION
The Board's Jurisdiction to Administer Factfinding Under the MMBA
The City makes two claims in its objection to PERB's jurisdiction. It first asserts that
MMBA section 3509(b) provides that alleged violations
of
the MMBA shall be processed as
unfair practices charges, implying that PERB may not "enforce" the MMBA by any means
other than an unfair practice charge.
We have addressed this claim in two recent decisions, neither
of
which the City has
cited or distinguished in its appeal.9
In
Contra Costa, supra, PERB Order No. Ad-410-M,
pp. 12-13, fu.
8,
we noted the difference between an administrative determination that orders
the parties to participate in factfinding and an unfair practice proceeding that determines
liability for violations
of
the MMBA. In responding to the employer's argument in
Contra Costa, we also noted that unfair practice proceedings are not the only manner in which
PERB is authorized to administer the MMBA. (MMBA, § 3509; EERA, § 3541.3.
10
) We also
explained in City
of
Redondo Beach (2014) PERB Order No. Ad-409-M, p. 5 (Redondo Beach)
that MMBA section 3509 is not the source
of
PERB's authority to appoint a factfinding panel.
That authority derives from MMBA section 3505.4, and is not predicated on an alleged
violation
of
the MMBA. As in Contra Costa, PERB's determination
of
SEIU's factfinding
request does not result in any determination that the City violated the MMBA.
The City also claims that this matter is not properly before the Board, because the
administrative determination is an invalid advisory decision. According to the City, the only
situation in which this Board may determine whether factfinding applies to the parties'
Contra Costa, supra, PERB Order No. Ad-410-M, issued on April 16, 2014 and
Redondo Beach, supra, PERB Order No. Ad-409-M, issued on April 9, 2014, each before the
City's appeal was filed on August 18, 2014.
10 Educational Employment Relations Act (EERA) is codified at Government Code
section 3540 et seq.
8

bargaining dispute is in the context
of
unfair practice proceedings. The City asserts that to
. give the administrative determination the force
of
law or the basis for PERB Board precedent
would deny the City an opportunity to have a fair hearing and present evidence in front
of
a
neutral administrative law judge on the issue. We disagree.
As we explained in Contra Costa, supra, PERB Order No. Ad-410-M, pp. 11-12, PERB
has jurisdiction to determine whether the provisions
of
MMBA section 3505.4 apply to a
particular factfinding request, and PERB Regulation 32802(c) directs the Board to notify the
parties whether a request for factfinding has met the requirements
of
subsection (a)(l) or (2)
of
PERB Regulation 32802. Whether a factfinding request is sufficient is determined on a case-
by-case basis. Contrary to the City's claim, a determination by the Office
of
the General
Counsel or by the Board itself that a factfinding request has met the statutory requirements is
not a determination that the employer has violated the MMBA. (City & County
of
San Francisco (2014) PERB Order No. Ad-415-M, pp. 12-13; Contra Costa, p. 12.) The
administrative determination in this case was based on a review
of
the facts and an analysis
of
the law, and it resulted in a direction to the parties to implement the next steps in the
factfinding process. In sum, there was nothing "advisory" about the administrative
determination.
Nor is a ruling by the Board itself on the City's appeal
of
the administrative
determination an advisory opinion.
11	
The City has appealed the administrative determination,
presumably seeking an order from the Board itself overturning the administrative
determination and absolving the City of the duty to participate in factfinding. 	Such an order
t1
PERB does not render advisory opinions, but instead exercises its adjudicatory
function through decisions resolving actual controversies between the parties concerning
findings of facts and/or conclusions oflaw. (Santa Clarita Community College District
(College
of
the Canyons) (2003) PERB Decision No. 1506, pp. 27-28, and cases cited therein.)
9

would not be theoretical or advisory, since it would resolve an actual, concrete dispute between
the parties. We conclude, therefore that our decision resolving the City's appeal is not an
advisory opinion.
The issue before us in the instant case is simply whether the Office
of
the General
Counsel correctly determined that the factfinding process applied to this bargaining dispute.
The outcome
of
this case is an order directing the parties to select their respective members
of
the factfinding panel and proceed to factfinding, a process that may assist the parties in
reaching agreement pursuant to the factfinding panel's recommended terms
of
settlement. The
recommended terms
of
settlement are not binding on the parties. Unlike a remedy in an unfair
practice proceeding, which could result in an order to rescind unilateral changes
if
the
employer is determined to have violated the MMBA, an order resolving the issues raised by
this appeal does not dictate a particular outcome to the underlying bargaining dispute.
In sum, PERB' s determination
of
the issues presented in this case is not an advisory
opm1on.
Effect
of
Superior Court Decisions In Riverside and San Diego
The City asserts that PERB is bound by two superior court decisions by application
of
the doctrine
of
collateral estoppel and res judicata and because, according to the City, the order
from the Riverside court is not stayed on appeal.12
We first address the City's collateral
estoppel/res judicata argument.
The City asserts that PERB is bound by the orders from each
of
these courts, and by the
doctrine of collateral estoppel, which "bars PERB through its General Counsel's Office now or
in subsequent litigation from re-litigating issues that were already determined in prior court
actions." (Appeal of Admin. Deter., p. 9.) This claim is patently frivolous. As the City itself
12
The other superior court decision the City references is San Diego.

acknowledges, a necessary element
of
the doctrine
of
collateral estoppel or res judicata is that
the proceeding has ended with a final judgment
on
the merits.
13
The City knows, at least in the
Riverside case, that the matter is on appeal, because it included in its submission to PERB
copies
of
PERB
's
notices
of
appeal. PERB filed its notice
of
appeal in the San Diego litigation
on July 7, 2014. Therefore, there is no final judgment on the merits in either
of
these cases.
14
The City also asserts that PERB is bound by the superior court's injunction and
issuance
of
a writ
of
mandate in Riverside. Code
of
Civil Procedure section 916, which stays
injunctions on appeal, does not apply, according to the City, because the Riverside injunction
is, in part, prohibitory. We reject this argument. First, for reasons discussed in Contra Costa,
supra, PERB Order No. Ad-410-M, p. 13, the order~ in the Riverside case are stayed. (Code
of
Civil Proc.,§ 916; Varian Medical Systems, Inc.
v.
Delfino (2005) 35 Cal.4th 180, 189-190;
Private Investors
v.
Homestake Mining
Co.
(1936)
11
Cal.App.2d 488.)1 5
Second, the Court
of
Appeal, Fourth Appellate District, Division Two, which currently
has jurisdiction
of
the Riverside case, summarily denied the County
of
Riverside's petition for
a writ
of
supersedeas which sought to compel PERB to comply with the superior court's orders
pending the appeal. (See Fourth App. Dist., Div. 2 Dock., E060047, January 7, and 14, 2014.)
13
7 Witkin, California Procedure (5th ed. 2008) Judgment, section 364. (See also
Appeal
of
Admin. Deter., p. 9.)
14
There is one decision on the merits that is final, and that is Contra Costa, supra,
PERB Order No. Ad-410-M.
15
The City claims, erroneously, that PERB did not appeal the order of the Riverside
Superior Court granting the County of Riverside's petition for a writ
of
mandate. On
November 20, 2013, PERB filed an amended notice of appeal, superseding the notice of appeal
filed on November 15, 2013. The amended notice clearly gives notice of appeal of both the
"Order Granting Mandatory and Prohibitory Injunction" and an "Order Granting Peremptory
Writ of Mandate and/or Writ of Prohibition." (Clerk's Transcript, vol. 9, pp. 2225-2246 in
Case No. E060047, Ct. of Appeal of the State of California, Fourth App. Dist., Division Two.)
11

Thus, according to the Court of Appeal for the Fourth Appellate District, Division Two, the
orders of the Riverside Superior Court are stayed pending appeal.
To the extent the City claims that PERB is bound by the order from the San Diego
Superior Court, a matter also on appeal, we reject such claim. In addition to the lack of finality
of judgment in San Diego, the plain terms of the superior court's judgment and writ of mandate
limit its order against PERB to matters solely concerning the parties to that action, and impose
no limitations on PERB's actions regarding other parties. Even if the judgment in San Diego
were not stayed, it would not apply to the benefit of the City, which was not a party to that
litigation.
Factfinding Procedures Apply to All Bargaining Disputes Over Negotiable Matters
As did the employer in Contra Costa, supra, PERB Order No. Ad-410-M, the City here
argues that the legislative history of AB 646 indicates that it was intended to apply only to
impasses in negotiations for new or successor MOUs, and not to impasses in bargaining over
mid-term reopeners, or the effects of non-mandatory subjects of bargaining, such as the
implementation of biometric time clocks, or other single-issue disputes.
These arguments were addressed and resolved in Contra Costa, supra, PERB Order
No. Ad-410-M. 	In that case, we determined that the plain meaning of AB 646 did not limit
factfinding procedures only to impasses in negotiations for comprehensive MOUs.
(Contra Costa, p. 32.) Nevertheless, we reviewed the legislative history of AB 646, and
rejected the employer's claim, repeated in this case, that comments by the author of AB 646
were dispositive that the bill was intended only for disputes over comprehensive MOUs. It is
well-settled that a single legislator's comments, even the author's, cannot be relied on for
legislative history, because they do not necessarily represent the intent of the Legislature as a
whole. 	(Contra Costa, p. 34.) We also reviewed various summaries of AB 646 as it moved
12

through the Legislature, noting changes in those summaries from describing factfinding as a
procedure parties may engage in
"if
they are unable to reach a collective bargaining
agreement," to permitting factfinding
"if
a mediator is unable to reach a settlement" or a
"settlement
of
a labor dispute." (Contra Costa, pp. 34-35, emphasis in original.)
We also considered in Contra Costa, supra, PERB Order No. Ad-410-M, the
contention, repeated here, that the placement
of
the language
of
AB 646 following the portion
ofMMBA section 3505 concerning the duty to meet and confer in good faith meant that
AB 646 applies only to comprehensive MOUs. (Contra Costa, pp. 37-42.) We rejected that
argument, concluding:
It is logical for the Legislature to have codified AB 646 within
this part
of
the MMBA because the leading provision, MMBA
section 3505, establishes the duty to meet and confer in good
faith, and subsequent provisions prescribe certain procedures
concerning bargaining. We do not find that the codification
of
AB 646 within that part
of
the MMBA that describes bargaining
generally indicates the Legislature's intent to confine factfinding
only to comprehensive MOU negotiations, especially where other
subsections
of
MMBA section 3505 do not limit negotiations
only to such comprehensive agreements.
(Contra Costa, pp. 39-40.)
Contra Costa, supra, PERB Order No. Ad-410-M also addressed the argument,.
repeated here, that the enumeration in MMBA section 3505.4(c)
of
eight criteria that the
factfinding panel must consider supports its view that factfinding applies only to
comprehensive MOUs. (Contra Costa, pp. 42-44.) We noted that these are virtually the same
criteria enumerated in Educational Employment Relations Act (BERA),16
and it is well-
established that under BERA, factfinding has been applied to single-issue disputes, mid-term
negotiations and effects bargaining. Common sense does not require that each of these criteria
16
BERA is codified at Government Code secion 3540 et seq.
13

be applied in every bargaining dispute. Depending on the dispute, some criteria may be more
relevant than others.
Even in a factfinding proceeding concerning a new or successor MOU, not every one
of
the eight criteria is necessarily applicable to the issues that divide the parties. When parties
reach an impasse in negotiations over a comprehensive MOU, they have usually agreed to at
least some terms prior to reaching impasse on more intractable proposals. Issues that impede
final agreement can be economic, or non-economic, such as binding arbitration
of
grievances,
transfer policies, or evaluation procedures. Where the issues are non-economic, it is unlikely
the factfinding panel would spend time comparing wages and hours
of
comparable public
agencies or assessing the consumer price index in arriving at its recommendations. Thus, the
listing
of
eight criteria that factfinders are to consider does not demonstrate that factfinding
applies only to comprehensive MOUs. As we pointed out in Contra Costa, supra, PERB
Order
No.
Ad-410-M, pp. 48-49, mid-term bargaining disputes, or disputes over the effects
of
layoffs or some other proposed economic reduction, can involve issues that are just as complex
as disputes over comprehensive MOUs. The eight listed criteria can be equally applicable or
equally not applicable to any bargaining dispute, whether it be a mid-term re-opener, a single
issue, effects bargaining, or a comprehensive MOU.
As we noted in County
of
Contra Costa, supra, AB 646 recognized that some charter
cities and counties provide for binding arbitration as a means for resolving bargaining
impasses, and in those instances, the factfinding process will not apply. (MMBA,
§ 3505.S(e).17) The City asserts that this accommodation to local rules further shows
17
MMBA section 3505.S(e) provides, in pertinent part:
A charter city, [or aJ charter county
...
with a charter that has a
procedure that applies if an impasse has been reached
...
and the
procedure includes
...
a process for binding arbitration, is
14

legislative intent to limit factfinding only to negotiations for a comprehensive MOU. The
City's argument assumes that the scope of binding arbitration under local rules is coterminous
with the scope of factfinding under AB 646. It is noted that the text of subsection (e) does not
limit the types of disputes subject to binding arbitration. It refers only to "impasse," which, as
seen in the definition in EERA section 3540.l(f), uses the terms "dispute" and "differences,"
placing no limitation on the type of negotiations that may reach impasse.18 It is true that this
exemption contained in MMBA section 3505.5(e) exists because where an impasse is subject
to a binding arbitration process, it need not also be subject to a factfinding process. Binding
arbitration, after all, resolves a bargaining dispute with finality, negating the need for any
additional advisory factfinding and recommendation process. It does not follow, however, that
factfinding is therefore limited only to impasses over negotiations for a comprehensive MOU.
The applicability of factfinding and the scope of factfinding are two, wholly distinct issues.
exempt from the requirements of this section and Section 3505.4
with regard to its negotiations with a bargaining unit to which the
impasse procedure applies.
Fairness and Due Process
The City argues that consideration of the administrative determination would violate
basic notions of fairness and due process because the Office of the General Counsel issued the
administrative determination while concurrently representing PERB as a legal advocate in two
superior court matters involving the same issue that is the subject of this appeal.
As we held in Contra Costa, supra, PERB Order No. Ad-410-M, p. 14, this argument
ignores the statutory role of the Office of the General Counsel and misapprehends how the
Office of the General Counsel and the Board itself function. 	Because the Office of the General
Counsel has no role in advising the Board itself in its appellate function regarding cases
18 PERB has applied EERA's definition of "impasse" to cases arising under the
MMBA. (City & County of San Francisco (2009) PERB Decision No. 2041-M.)
15

pending before the Board, there is nothing improper abo:ut the Office
of
the General Counsel
representing PERB
in
the Riverside or San Diego cases, or any other litigation seeking to halt
PERB's administration
of
MMBA section 3505.4, eyen
if
the same issues are subsequently
presented to the Board itself by appeals
of
administrative determinations.
Mootness
of
the Factfinding Reguest
The City argues that the parties' resumption
of
negotiations subsequent to the City's
declaration
of
impasse and SEIU' s factfinding request renders SEIU' s factfinding request
moot. However, the MMBA and PERB's regulations only condition factfinding on a
declaration
of
impasse by one
of
the parties. Neither the MMBA nor PERB
's
regulations
provide for a factfinding request being mooted by subsequent negotiations. Since the City
declared impasse and SEIU requested factfinding, PERB has no authority to terminate that
process. 19
If
the City believed the factfinding request was moot because
of
the parties' return to
the table to negotiate over additional effects belatedly identified by SEIU, the City could have
withdrawn its declaration
of
impasse. Having not done so, PERB must accept the declaration
at face value, as the statutory and regulatory factfinding process under MMBA does not
authorize PERB to independently determine whether an impasse exists.20 This conclusion is
bolstered by the language
of
MMBA section 3505.4(e), which states: "The procedural right
of
an employee organization to request a factfinding panel cannot be expressly or voluntarily
waived." Thus, once impasse is declared, the exclusive representative has not only a right,but
19
SEIU argues that the City's unilateral implementation
of
the biometric time clocks is
further cause to prohibit the City from "undeclaring" impasse. However, whether or not the
City has taken unilateral action is immaterial to whether or not it is obligated to engagein
factfinding.
2 Compare EERA, which explicitly permits the Board to determine whether a
collective bargaining impasse exists. (EERA, § 3548.)
°
16

a strict window period within which to request factfinding. (Redondo Beach, supra, PERB
Order No. Ad-409-M, pp. 6-7.)
SEIU objects to the City's claim
of
mootness on the grounds that impasse cannot be
"undeclared." We disagree. 	Changed circumstances, such as significant concessions in
negotiations by either party, may break an impasse. (Public Employment Relations
Bd
v.
Modesto City Schools Dist. (1982) 136 Cal.App.3d 881,899; City
of
Santa Rosa (2013) PERB
Decision No. 2308-M, p. 6, fn. 2; Airflow Research & Mfg. Corp. (1996) 320 NLRB 861.)
Two events trigger the appointment
of
a factfinding panel under MMBA: a written
declaration
of
impasse from either party, and the exclusive representative's timely request for
factfinding. 	Because
of
PERB' s limited role under MMBA in determining the bona fides
of
an
impasse declaration in the context
of
a factfinding request, in this case, it is incumbent on the
employer to withdraw its declaration
of
impasse
if
it believes that circumstances have broken
the impasse. Such a withdrawal would remove the necessary precondition for the appointment
of
a factfinding panel.
21
Here, the City did not withdraw its declaration
of
impasse. Therefore, SEIU had the
right to request factfinding and an obligation to do so within 30 days
of
the declaration. With
the statutory and regulatory requirements satisfied, SEIU's request is not moot.
Constitutionality
of
AB 646
The City argues that the AB 646 factfinding process is unconstitutional, given the
California Constitution's requirement that a County's governing body make such
compensation and fiscal decisions without interference from either the Legislature or PERB.
The City cites to County
of
Riverside
v.
Superior Court (2003) 30 Cal.4th 278 in support
of
its
Any concerns that an employer is withdrawing a declaration
of
impasse in order to
thwart factfinding or that an exclusive representative is engaging in piecemeal bargaining in an
attempt to delay post-impasse implementation by the employer may be considered in the
context of unfair practice proceedings.
17

argument. This argument was discussed in Contra
Costa,
supra,
PERB Order No. Ad-410-M,
and we need not repeat that discussion here, as we abide by our treatment
of
the matter in
Contra
Costa.
For all
of
these reasons, we affirm the administrative determination.
Request For Stay
Because we uphold the administrative determination, we deny the City's request to stay
that administrative determination as moot.
ORDER
The administrative determination
of
the Public Employment Relations Board (PERB)
Office
ofthe
General Counsel in Case No. SF-IM-145-M is hereby AFFIRMED. 	Service
Employees International Union, Local 1021 's request for factfmding satisfies the requirements
of
the Meyers-Milias-Brown Act section 3505.4 and PERB Regulation 32802(a) and the matter
is REMANDED to the Office
of
the General Counsel for further processing pursuant to PERB
Regulation 32804.
Chair Martinez and Member Banks joined in this Decision.
18

PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
August 5, 2014
Robert Szykowny, Attorney
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501
Amy Super, Deputy City Attorney
San Francisco City Attorney's Office
1390 Market Street, 4th Floor
San Francisco, CA 94102
Re: 	City & County
of
San Francisco (Fine Arts Museums) and Service Employees
International Union Local 1021
Case No. SF-IM-145-M
Administrative Determination
Dear Interested Parties:
On July 24, 2014, Service Employees International Union Local 1021 (SEIU or Union) filed a
request for factfinding (Request) with the Public Employment Relations Board (PERB or
Board) pursliant to section 3505.4
of
the Meyers-Milias-Brown Act (MMBA) and PERB
Regulation 32802. 1 SEIU asserts that it and the employer City and County
of
San Francisco,
Fine Arts Museums (CCSF) have been unable to effect a settlement in their current
negotiations over the impacts and effects
of
the CCSF's decision to implement a biometric
time-keeping system.
On July 30, 2014, the CCSF filed a letter objecting to SEIU's request on the basis that: (1) it is
"mooted" by CCSF's intervening offer to bargain; (2) the request concerns a non-negotiable
issue; and (3) the request is improper because it concerns a single issue, as opposed to
bargaining over an entire Memorandum
of
Understanding (MOU).
On July 31, 2014, SEID filed a reply in opposition to CCSF's objections.
On July 31, 2014, PERB approved SEIU's request and informed the parties in an e-mail
message that the determination would be subsequently memorialized in writing.
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.
Governor

SF-IM-145-M
August 5, 2014
Page 2
Summary
of
Facts
In or about May 2012, the CCSF notified SEID
of
its intent to a implement a biometric time-
keeping system (i.e., timeclocks using employee fingerprints). 	CCSF again provided notice to
SEIU in March 2013.
CCSF and SEIU met and conferred over the effects
of
this implementation. SEIU initially
identified privacy concerns as a negotiable effect. By letter dated July 11, 2014, SEIU
representative David Canham sent Fine Arts Museums Human Resources Director Charlie
Castillo a letter identifying the negotiable effect
of
employee discipline.
On July 16, 2014, Mr. Castillo sent an e-mail message to multiple recipients, including
Mr.
Canham, stating as follows:
As outlined in my July
1,
2014 letter, the depruiment has meet
[sic] its obligation under the MMBA. The department and the
City have met in good faith regarding all the issues outlined in
Mr. Canham's letter going all the way back to 2012. We are at an
impasse. 	Should you want to meet regarding any other issue that
the Union may feel is unresolved, I would be amenable to a
meeting.
On July 25, 2014, CCSF Employee Relations Director Martin Gran sent an e-mail message to
multiple recipients, including SEIU representative Larry Bradshaw. Mr. Gran stated that meet
and confer sessions over impacts
of
the biometric time clocks concluded in June 2013, that the
Union raised additional impact issues in July 2014, and that the CCSF is available to meet to
discuss these new issues. Further, the CCSF intends to implement the time clocks as to the
Fine Arts Museums as
of
August 1, 2014.
Discussion
A. 	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
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, among other things, 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-145-M
August 5, 2014
Page 3
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
nnpasse
...
;
PERB Regulation 32802 provides as follows:
(a) An exclusive representative may request that the parties'
differences be submitted to a fact:finding panel.
The
request shall
be accompanied by a statement that the parties have been unable
to effect a settlement. Such a request may be filed:
(1) Not sooner than 30 days, but not more than
45
days,
following the appointment or selection
of
a mediator 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 parties did not submit the bargaining dispute to mediation or select a mediator. Therefore,
SEIU' s factfinding request is based upon a written notice
of
a declaration
of
impasse.
On July 16, 2014, Mr. Castillo provided SEIU representatives with a written notice
of
declaration
of
impasse. By Mr. Castillo's reference to his July
1,
2014, letter, it appears
impasse was declared as to the ongoing effects bargaining sessions regarding CCSF's
anticipated implementation
of
a biometric timekeeping system. The fact that, on July 25,
2014, the CCSF offered to meet further to discuss additional impacts, does not change the fact
that CCSF provided a written declaration
of
impasse on July 16, 2014.
The instant request was filed on July 24, 2014, less than thirty days after the written notice
of
declaration of impasse. Therefore, it is timely.
B. 	Factfinding is Available for This Dispute
The Board has held in two recent decisions that the fact:finding procedures set forth in MMBA
sections 3505.4 through 3505.7 apply to bargaining disputes over all matters within the scope
of
representation, and that factfinding under the MMBA is not limited only to bargaining
disputes over a comprehensive MOU. 3 (County
of
Contra Costa (2014) PERB Order No. Ad-
These decisions also discuss the effect
of
the recent decisions in two Superior Court
matters, County
of
Riverside
v.
Public Employment Relations Board, Super. Ct. Riverside
County, 2013, Case No. 1305661, and San Diego Housing Commission
v.
Public Employment
Relations Board, Super. Ct. San Diego, 2014, Case No. 37-2012-00087278. These matters are

SF-IM-145-M
August 5, 2014
Page 4
410-M; County
of
Fresno (2014) PERB Order Ad-414-M.)4 As discussed in County
of
Contra
Costa, supra, PERB Order No. Ad-410-M, the duty to bargain includes the duty to negotiate
over the implementation and foreseeable effects and impacts
of
managerial decisions not
otherwise subject to the process
of
collective bargaining, such as layoffs, staffing levels,
employee background checks, and additional educational programs. (Claremont Police
Officers Assn.
v.
City
of
Claremont (2006) 39 Cal.4th 623; International Assn.
of
Fire Fighters,
Local 188
v.
Public Employment Relations Bd. (2011)
51
Cal.4th 259,277; Newman-Crows
Landing Unified School District (1982) PERB Decision No. 223; Sutter County In-Home
Supportive Services Public Authority (2007) PERB Decision No. 1900-M; Trustees
of
the
California State University (2012) PERB Decision No. 2287-H;.)
SEIU's request for factfinding identifies the type
of
dispute as "employer implementing bio
metric time clocks and new basis
of
discipline." From related correspondence submitted by
both parties it appears that the parties have been engaged in meeting and conferring regarding
the effects
of
the employer's decision to use the new biometric timekeeping system. SEID
does not appear to contend that the decision itself is subject to the duty to bargain.5 Under the
Board's reasoning in County
of
Contra Costa, supra, PERB Order No. Ad-410-M and County
of
Fresno, supra, PERB Order Ad-414-M, the effects bargaining over this issue is subject to
the MMBA's factfinding procedure. Even though the dispute is a so-called "single issue"
dispute, as opposed to bargaining over a comprehensive MOU, the effects and impacts
of
the
employer's decision appear to be a matter within the scope
of
representation. Accordingly,
factfinding is appropriate.
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.
both presently on appeal, and therefore these decisions currently have no preclusive or
precedential effect.
4 On or about July 17, 2014, the County
of
Fresno filed a Petition for Writ
of
Mandate
under Code
of
Civil Procedure section 1085, with the Superior Court for the County
of
Fresno,
seeking to enjoin and declare invalid the Board's decision in County
of
Fresno, supra, PERB
Order Ad-414-M. (County
of
Fresno
v.
Public Employment Relations Bd. (Super. Ct. Fresno
County, 2014, Case No. 14CECG02042).)
5 In State
of
California (Department
of
Youth Authority) (1998) PERB Decision
No. 1293-S, the Board held that a decision to implement a check-in/check-out system is not
negotiable, but that impacts of that decision may be subject to the duty to bargain.

SF-IM-145-M
August 5, 2014
Page 5
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 August 12, 2014.6 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.7 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 August 12, 2014, 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
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
filed, 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.)
This deadline, and any other referenced, may be extended by mutual agreement of the
parties.
7 The seven neutrals whose resumes are being provided are Claude Ames, Norman
Brand, Andrea Dooley, Ruth Glick, Robert Hirsch, Nancy Hutt, and John Kagel.

SF-IM-145-M
August 5, 2014
Page 6
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,
§ 323 70).
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 San Francisco 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 011 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
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).
aura Z. Davis
Senior Regional Attorney
LD