City and County of San Francisco (PERB A429M)

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY & COUNTY OF SAN FRANCISCO,
Employer,
and
OPERATING ENGINEERS LOCAL 3,
Exclusive Representative.
Case No. SF-IM-156-M
Administrative Appeal
PERB Order No. Ad-429-M
October 15, 2015
Appearance: Rafal Ofierski, Deputy City Attorney, for City & County
of
San Francisco.
Before Martinez, Chair; Banks and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or
Board)
on
appeal by the City & County
of
San Francisco (CCSF) from an administrative
determination (attached) by the Office
of
the General Counsel granting a request for
factfinding by Operating Engineers, Local 3 (Local 3) pursuant to the Meyers-Milias-Brown
Act (MMBA)1 and PERB regulations.2
We have reviewed the case file in its entirety in light
of
the issues raised by CCSF's
appeal and request for a stay. We find the administrative determination to be well-reasoned
and in accordance with applicable law. We deny CCSF's appeal and adopt the administrative
determination as the decision
of
the Board itself, as supplemented below.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2 PERB regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.

The dispute over which Local 3 has requested factifinding involves implementation
of
a
30-minute unpaid meal period and a corresponding lengthening
of
the current eight-hour shift
to eight and one-half hours, affecting employees on the graveyard shift at the San Francisco
Municipal Transport~tion Agency, a division
of
CCSF. CCSF does not dispute that the hours
of
work, including the timing and duration
of
non-duty periods and the length
of
the workday,
are negotiable matters. Nor does CCSF dispute that Local 3
's
request for factfinding was filed
within 30 days
of
a declaration
of
impasse in the parties' negotiations over the decision and/or
effects
of
CCSF's decision to establish a 30-minute unpaid meal period. Instead, CCSF's
appeal urges PERB to reexamine its position on the scope
of
MMBA factfinding, as set forth in
County
of
Contra Costa (2014) PERB Order No. Ad-410-M (Contra Costa) and subsequent
decisions, because, according to CCSF, the Board's "boundless application
of
fact finding is
legally incorrect" and "leads to untenable practical consequences." Although CCSF's appeal
presents various arguments, the essence
of
its position is that the statutory language and
legislative history indicate that MMBA factfinding "is calibrated for disputes
of
significant
dimensions, such as may arise in contract negotiation[s]," and that the "extensive, time-
consuming and expensive process is a disproportionate remedy for the myriad
of
minor
bargaining disputes that regularly arise outside
of
contract negotiation[ s]."
None
of
CCSF's arguments persuade us to abandon our previous determination that
both the plain language
of
the statute and its legislative history indicate that the Legislature
intended to make MMBA factfinding available for any "differences" over any matter within
the scope
of
representation, so long as the employee organization's request is timely and the
dispute is not subject to one
of
the statutory exceptions set forth in MMBA section 3505.4,
subdivision (a) or section 3505.5, subdivision (e). (Contra Costa, supra, PERB Order
2

No. Ad-410-M, p. 10; City
of
Redondo Beach (2014) PERB Order No. Ad-409-M, pp. 5-7.)
As we recently observed in City
of
Folsom (2015) PERB Order No. Ad-423-M,
p, 3,
the Board
does not conduct or in any manner oversee the factfinding process nor determine the issues to
be presented and, by statute, our role is limited to determining whether a request for
factfinding meets the statutory criteria. (Id. at p. 5.) CCSF's complaint that "[a]pplyii:J.g the
formal, time-consuming and costly [factfinding] procedure to the myriad
of
minor bargaining
disputes that arise outside
of
contract negotiation[s] is not a practical and workable result" is
therefore one that it must present either to the exclusive representative, which determines
whether and which disputes it will submit to factfinding, or to the Legislature.
ORDER
The City & County
of
San Francisco's appeal from the administrative determination in
Case No. SF-IM-156-M is hereby DENIED.
Chair Martinez and Member Gregersen joined in this Decision.
3

STATE
011
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
July 15, 2015
Regina Jenkins, Business Agent
Operating Engineers, Local 3
1620 South Loop Road
Alameda, CA 94502
Sallie P. Gibson, Deputy City Attorney
San Francisco City Attorney's Office
1390 Market Street? 5th Floor
San Francisco, CA 94102
Re: 	City & County
of
San Francisco and Operating Engineers Local 3
Case No. SF-IM-156-M
Administrative Determination
Dear Interested Parties:
On July&, 2015, Operating Engineers Local 3 (OE3) filed a request for factfinding with the
Public Employment Relations Board (PERB or Board) pursuant to section 3505.4
of
the
Meyers-Milias-Brown Act (MMBA) and PERB Regulation 32802. 1 OE3 asserts that it and the
employer, the City and County
of
San Francisco (CCSF), have been unable to effect a
settlement in their current negotiations. Impasse was declared by a party on June 22, 2015.
The bargaining impasse concerns a meet and confer between CCSF and OE3 that relates to the
inclusion
of
a 30-minute paid meal period for certain employees on the graveyard shift.
On July 13, 2015, the CCSF filed a position statement objecting to factfinding over this
dispute. On July 14, 2015, OE3 filed a position statement in reply.
Discussion
The CCSF argues "any potential impasse here is in regard to negotiable terms and conditions
of
employment, whereas factfinding [under applicable sections
of
the MMBA] exclusively
applies to impasse in a dispute arising from a new or successor Memorandum
of
Understanding (MOU)." The CCSF cites to two Superior Court cases wherein Superior Court
judges held that MMBA factfinding applies only to bargaining for new or successor MOUs.
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title
&,
section 31001 et seq. The text .of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
EDMUND
G.
BROWN JR,,
Governor

SF-IM-156-M
July 15, 2015
Page 2
In County
of
Contra Costa (2014) PERB Order No. Ad-410-M, the Board held that the MMBA
factfinding procedures, codified at sections 3505.4 through 3505.7, "apply to any bargaining
impasse over negotiable terms and conditions
of
employment and not only to impasses over
new or successor memoranda
of
understanding (MOU)." The two Superior Court cases cited
by the CCSF are presently on appeal and, even
if
they were not, do not constitute binding
precedent. (County
of
Riverside
v.
Public Employment Relations Board (E060047, app.
pending), and San Diego Housing Commission
v.
Public Employment Relations Board
(D066237, app. pending).) PERB does not conduct or in any way oversee the factfinding
process nor determine the issues to be presented at factfinding. (City
of
Folsom (2015) PERB
Order No. Ad-423-M.)
MMBA section 3505.4, subdivision (a), 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
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.
Here, the parties did not submit the dispute to mediation. Impasse was reached on June 22,
2015. The instant factfinding request was filed less than 30 days later, on July 8, 2015,
therefore, it is timely. Accordingly, the instant factfinding request satisfies the requirements of
MMBA section 3505.4 and PERB Regulation 32802.

SF-IM-156-M
July 15, 2015
Page 3
Next Steps
Each party must select its factfinding panel member and notify this office in writing
of
his/her
name, title, address and telephone number no later than July 23, 2015.2 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.3 The parties may mutually agree upon one
of
the seven, or
may select any person they choose, whether or not included on the PERB Panel
of
Neutrals. 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 July 23, 2015, that they have mutually agreed
upon a person to chair their factfinding panel, PERB will appoint one
of
these seven
individuals to serve as chairperson.
Right
of
Appeal
An
appeal
of
this decision to the Board itself may be made within ten (10) calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
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
2 This deadline, and any other referenced, may be extended by mutual agreement
of
the
parties.
3 The seven neutrals whose resumes are being provided are Claude Dawson Ames,
Norman Brand, Andrea Dooley, Ruth Glick, Robert Hirsch, Nancy Hutt, and Walter Kawecki.

SF-IM-156-M
July 15, 2015
Page4
the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit.
8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8,
§§
32090 and 32130.)
The appeal must state the specific issues
of
procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (c)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay
of
any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If
a timely appeal is filed, any other party may file with the Board an original and five (5)
copies
of
a response to the appeal within ten (10) calendar days following the date
of
service
of
the appeal (Cal. Code Regs., tit. 8, § 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the San Francisco Regional Office regional office. A "proof
of
service"
must accompany each copy
of
a document served upon a party or filed with the Board itself
(see Cal. Code Regs., tit. 8, § 32140 for the required contents). The document will be
considered properly "served" when personally delivered or deposited in the mail or deposited
with a delivery service and properly addressed. A document may also be concurrently served
via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, § 32135,
subd. (c).)
Extension
of
Time
A request for an extension
of
time in which to file an appeal or opposition to an appeal with the
Board itself must be in writing and filed with the Board at the previously noted address. A
request for an extension must be filed at least three (3) calendar days before the expiration
of
the time required for filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by
proof
of
service
of
the request upon each party (Cal. Code Regs., tit. 8, § 32132)
Sincerely,
Laura Z. Davis
Senior Regional Attorney
LD