City of Redondo Beach (PERB A409M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CITY OF REDONDO BEACH,
Employer, Case No. LA-IM-145-M
and Administrative Appeal
REDONDO BEACH POLICE OFFICERS PERB Order No. Ad-409-M
ASSOCIATION (POLICE MANAGEMENT
UNIT), April 9, 2014
Exclusive Representative.

Appearances: CJT Law by William G. Benz, Attorney, for City of Redondo Beach; Silver,
Hadden, Silver, Wexler & Levine by Richard A. Levine, Attorney, for Redondo Beach Police
Officers Association (Police Management Unit).
Before Martinez, Chair; Winslow and Banks, Members.
DECISION

BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Redondo Beach Police Officers Association (Police Management
Unit) (Association) of the Office of the General Counsel’s (OGC) administrative determination
(attached) that the Association’s request for factfinding was untimely pursuant to
section 3505.4 of the Meyers-Milias Brown Act (MMBA) and PERB Regulation 32802.”

We have reviewed the record and the relevant law and find the administrative
determination to be well reasoned. We hereby dismiss the Association’s appeal and adopt the

administrative determination as the decision of the Board itself, in light of the following

discussion.

' The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

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

FACTS
The Association represents a bargaining unit
of
employees in the City
of
Redondo
Beach (City). The most recent memorandum
of
understanding (MOU) between the
Association and the City expired on June 30, 2012. For a period
of
sixteen months, the parties
were in negotiations over a successor MOU for the 2013-2014 fiscal year (FY).
On July 11, 2013, the Association provided the City with a memorandum whose subject
line read, "Meet and Confer/Declaration
of
Impasse/Request for Mediation MOU for period
July
1,
2012 to June 30, 2013."3 The memorandum stated: "This letter shall serve as your
official notification that our group has officially declared impasse and we are requesting all
official procedures and processes that are associated with such declaration."
On a date that is not specified, the Association requested mediation, which is voluntary,
pursuant to the EER. On October 23, 2013, the City declined the Association's request for
mediation.
On November 13, 2013, the City presented the Association with a "Last Best and Final
Offer" (LBFO) that encompassed the 2012-2013 and the 2013-2014 FYs. The City gave the
Association until 4:00 pm on November 20, 2013, to accept the LBFO or "the City shall
consider the failure to timely agree to result in a concurrent declaration
of
impasse by the City
and [the Association] shall be concurrently on notice that an impasse has been declared
without provision to it
of
further notice in that regard."
3 Pursuant to the MMBA, the City has local rules codified as Resolution 6046, Rules
and Regulations for the Administration of the Employer-Employee Relations (EER) that
address both the mediation process and the definition of impasse. Under the EER, mediation is
voluntary and if the parties cannot agree to mediation the City Council will take final action in
regards to the impasse. Impasse is defined as the point where the parties' "differences on
matters to be included in the Memorandum of Understanding, and concerning which they are
required to meet and confer, remain so substantial and prolonged that further meeting and
conferring would be futile."
2

In a letter to PERB dated November 20, 2013, the Association requested factfinding.
On December 5, 2013, the OGC issued an administrative determination finding that the
Association's factfinding request did not meet the statutory or regulatory timeliness
requirements.
On December 10, 2013, the Association filed a timely appeal. 	In its appeal, the
Association argues that MMBA section 3504.4, subdivision (2) contemplates factfinding only
after mediation, and that because the City did not definitively respond to its request for
mediation until October 23, 2013, its request to PERB for factfinding was timely. It also
asserts that factfinding should be limited to negotiations that occurred in FY 2012-2013.
On December 13, 2013, the City responded to the Association's appeal. The City
contends that the Association's deadline to request factfinding for FY 2012-2013 was
triggered by the Association's own July 11, 2013, declaration
of
impasse and that the
Association's November 20, 2013, factfinding request was not timely under the MMBA and
PERB regulations. The City further requests that
if
on appeal, the Board determines that
factfinding is appropriate, that the process should encompass the entire period
of
negotiations
in FYs 2012-2013 and 2013-2014.
DISCUSSION
Initially, we consider the Board's jurisdiction to consider this appeal. Although not
raised by the parties or discussed in the OGC's administrative determination, because the
Association may represent employees who are either "designated as management employees" or
"peace officers" or both, within the meaning
of
MMBA sections 3509, subdivision (f), and/or
3511, the Board has an obligation to determine whether it has jurisdiction to consider this appeal.
The Board has reviewed the language of the MMBA and determined that neither of the above
provisions of the MMBA affect PERB' s jurisdiction to appoint a factfinder in this case, as
provided for by MMBA section 3505.4.
3

During the 1999-2000 legislative session, the Legislature made several amendments to
the MMBA whose effect was to grant PERB jurisdiction over much
of
its administration. In
particular, MMBA section 3509, subdivision (a), was amended to read: 	"The powers and duties
of
the board described in Section 3541.3 shall also apply, as appropriate, to this chapter and shall
include the authority as set forth in subdivisions (b) and (c)." The language
of
this subdivision
then lists, by way
of
example, some powers and duties
of
the Board, including "the power to
order elections, to conduct any election the board orders, and to adopt rules to apply in areas
where a public agency has no rule." Stated succinctly, this amendment to the MMBA
incorporated by reference the full scope
of
the Board's powers to administer the Educational
Employment Relations Act (EERA or Act),4 which are set forth in section 3541.3
of
that Act.
At the same time, however, the Legislature also created certain exceptions to the broad
powers granted to the Board. Section 3509, subdivision (f) states that the powers and duties
granted to the Board by way
of
section 3509, subdivision (a), "shall not apply to employees
designated as management employees under Section 3507.5."5 Additionally, MMBA
section 3511 states that, "The changes made to Sections 3501, 3507.1, and 3509
of
the
Government Code by legislation enacted during the 1999-2000 Regular Session
of
the
4 EERA is codified at section 3540 et seq.
5 Section 3507.5 reads:
In addition to those rules and regulations a public agency may
adopt pursuant to and in the same manner as in Section 3507, any
such agency may adopt reasonable rules and regulations
providing for designation
of
the management and confidential
employees of the public agency and restricting such employees
from representing any employee organization, which represents
other employees of the public agency, on matters within the
scope of representation. Except as specifically provided
otherwise in this chapter, this section does not otherwise limit the
right of employees to be members of and to hold office in an
employee organization.
4

Legislature shall not apply to persons who are peace officers as defined in Section 830.1
of
the
Penal Code."
The record for the present appeal does not indicate whether the Association represents
employees
of
the City who are "management employees," "peace officers" or both, though the
full name
of
the Association suggests this possibility. To address any concerns regarding the
Board's jurisdiction, we assume for the purpose
of
this discussion, that the Association
represents either "management employees," "peace officers" or both, as those terms are used in
MMBA sections 3509, subdivision (f) and 3511.
By their own terms, the "management employees" and "peace officer" exceptions found
in sections 3509, subdivision (f), and 3511 are exceptions only to those powers and duties
granted to the Board by section 3509, subdivision (a).
	If
MMBA section 3509 were the only
source
of
the Board's power to appoint a factfinder for MMBA disputes, then the "management
employees" and "peace officer" exceptions to PERB'sjurisdiction could apply. However,
section 3509, subdivision (a), is not the source or the only source
of
the Board's power to
recommend or appoint a factfinder under MMBA pursuant to a request from an exclusive
representative. Rather, that authority comes from MMBA section 3505.4, which includes no
language indicating that the powers
of
the Board pursuant to that section are subject to either the
"management employees" or the "peace officer" exceptions. In short, whatever the scope
of
the
"management employees" and "peace officer" exceptions to PERB' s jurisdiction over the
MMBA, we conclude that the Legislature did not intend for these exceptions to apply to PERB's
authority to appoint a factfinder, because the Legislature did not include similar language in
MMBA section 3505.4.
We next address the central issue raised by this appeal, whether the Association's
request to PERB for factfinding was timely.
5

MMBA section 3505.4, subdivision
(a)6
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.
The Association declared impasse on July 11, 2013, and requested "all official
procedures and processes that are associated with such declaration," which, under the EER
included mediation
if
both parties agreed. It also made a separate request for mediation at
some unspecified date after July 11, 2013. However, the parties did not agree to submit their
dispute to mediation and thus, the deadline for the Association to request factfinding occurred
"not later than 30 days following the date that either party provided the other with a written
notice of a declaration of impasse." (MMBA, § 3505.4; PERB Reg. 32802, subd. (a)(2).)
MMBA section 3505.4 clearly gives the sole right to request factfinding to the
employee organization in the dispute, not the employer. By including a definite time limit on
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.)
6

the ability
of
employee organizations to request factfinding, presumably the Legislature
intended to ensure that the factfinding process occurr in a timely manner. The responsibility to
request factfinding in a timely manner is therefore the sole responsibility
of
the employee
organization. The fact that the City waited until well beyond the 30-day period to deny
mediation does not alleviate the Association's responsibility to meet the statutory and
regulatory deadline to request factfinding, particularly when it was the Association's own
declaration
of
impasse that triggered that deadline. The Association failed to make a timely
request under MMBA 3505.4, subdivision (a), and PERB Regulation 32802 and as a result its
appeal is denied.
Since the Association's factfinding request is denied, we do not address any other
issues raised by the parties on appeal.
ORDER
The Redondo Beach Police Officers Association's (Police Management Unit) appeal
of
the administrative determination in Case No. LA-IM-145-M is hereby DENIED.
Chair Martinez and Member Winslow joined in this decision.
7

STATE
OF 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
December 5, 2013
Philip Toomey, Attorney
Carico Johnson Toomey LLP
841 Apollo Street, Suite 450
El Segundo, CA 90245
Richard A. Levine, Attorney
Silver, Hadden, Silver, Wexler & Levine
1428 Second Street
Santa Monica, CA 90401
EDMUND
G.
BROWN
	Governor
Re: 	City
of
Redondo Beach and Redondo Beach Police Officers Association (Police
Management Unit)
Case No. LA-IM-145-M
Administrative Determination
Dear Interested Parties:
On November 20, 2013, the Redondo Beach Police Officers
Association-Police
Management
Unit (Association) filed a request for factfinding with the Public Employment Relations Board
(PERB or Board) pursuant to section 3505.4
of
the Meyers-Milias-Brown Act (MMBA) and
PERB Regulation 32802.1
On November 27, 2013, PERB notifed the parties that the request did not satisfy the statutory
and regulatory requirements and that this Administrative Determination would subsequently be
provided.
Factual Background and the Positions
of
the Parties
The Association represents a bargaining unit
of
employees
of
the City
of
Redondo Beach
(City). 	The Association asserts that it and the City have been negotiating over a successor
Memorandum
of
Understanding (MOU) to cover the period July 2012 through June 2013. 	The
last MOU between the parties expired on June 30, 2012.
On July 11, 2013, the Association's President, Scot Martin, and its ChiefNegotiator, Paul
Wrightsman, provided City Manager Bill Workman with a memorandum containing a written
notice
of
declaration
of
impasse. 	The subject line of the memorandum is "Meet and
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.

Confer/Declaration ofimpasse/Request for Mediation MOU for period July
1,
2012 to June 30,
2013." The memorandum states: "This letter shall serve as your official notification that our
group has officially declared impasse and we are requesting all official procedures and
processes that are associated with such declaration."
LA-IM-145-M
December
5,
2013
Page 2
The City has adopted local rules pursuant to the MMBA, which it has codified as Resolution
6046, Rules and Regulations for the Administration
of
Employer-Employee Relations (EER).
Article IV, section 15,
of
the EER provides for impasse procedures. It provides that,
if
the
meet and confer process has reached impasse, both parties together may agree to submit the
dispute to mediation and agree on the selection
of
a mediator. EER Article IV, section 15,
further states:
If the parties
do
not agree on mediation or the selection
of
a
mediator, or having so agreed, the impasse has not been resolved
through such mediation, the Council shall take such action
regarding the impasse as in its discretion deems appropriate
as
in
the public interest. Any legislative action by the City Council on
the impasse shall be final and binding.
EER Article I, section 2(i) defines impasse as when:
the representatives
of
the City and a Recognized Employee
Organization have reached a point in their meeting and conferring
in good faith where their differences on matters to be included in
a Memorandum
of
Understanding, and concerning which they are
required to meet and confer, remain so substantial and prolonged
that further meeting and conferring would be futile.
On an unspecified date, the Association had requested mediation under the local rules. The
Association alleges that, on October 23, 2013, the City declined the Association's request for
mediation.
On November 13, 2013, the City gave the Association a document entitled "Last, Best and
Final Offer" (LBFO). The LBFO states:
The City
of
Redondo Beach and the representatives from [the
Association] have met and conferred in good faith for over 16
months without resolution or agreement over terms and
conditions of their contract. The City is prepared to offer this
Last Best and Final Offer to [the Association].
The LBFO states that it will remain in effect through June 30, 2014. Therefore, the LBFO
appears intended to encompass the 2012-2013 fiscal year as well as the 2013-2014 fiscal year.
The LBFO further states:

LA-IM-145-M
December 5, 2013
Page 3
If the Assistant City Manager does not receive written notice
from [the Association] on or before November 20, 2013 at 4:00
p.m. that this Last, Best and Final City Proposal has been
tentatively agreed to in full as written ... the City shall consider
the failure to timely agree to result in a concurrent declaration
of
impasse by the City and [the Association] shall be concurrently
on notice that an impasse has been declared without provision to
it
of
further notice in that regard.
By letter dated November 20, 2013, the City, through its attorney Philip Toomey, took
the
following position:
Tl,,,
[AC'C'At';at1'on'cl
rPn11,=.ct
I'nr
~a0t
Finrling att"'mpts to
l1'1n1't
the
fact finding process to the period
of
July 2012 through June
2013. By law, any fact finding procedure must encompass all the
parties' differences, and may not be limited to previously
concluded fiscal years. 	We agree that the City and [the
Association] are at impasse for all periods.
.l.
J.J.\.,	
:t...U..JVV.J.
J,..	
.l.J. u J .l.
v~
uvuL
lL,.L
J..
vi..
.1.1. .J.\,,..l..l..L.L	
1.~.L
By letter dated November 21, 2013, the Association, through its attorney Richard Levine,
provided the following response:
The Association contends that its Factfinding request dated
November 20, 2013 should not include the period
of
July 2013-
June 2014 since the parties have not had even one negotiation
meeting respecting a Memorandum
of
Understanding for the
2013/2014 fiscal year. 	Consequently, the Association's Request
for Factfinding dated November 20, 2013 was properly limited to
the impasse on negotiations for a successor Memorandum
of
Understanding covering the period
of
July 2012 - June 2013.
,
By letter dated November 22, 2013, the City, through its attorney Bill Benz, took the following
position:
...
if
any fact finding is to take place between the parties, it must
be for all periods
of
impasse, and cannot be limited to a specific
time period selected by the employee organization. .
..
The
parties are at impasse for all time periods, not just FY 12-13.
[emphasis in original]
The City states that it gave its LBFO to the Association on November 13, 2013. Instead
of
accepting the LBFO by November 20, 2013, the Association requested factfinding. The City
contends that the Association's deadline to request factfinding as to the bargaining for fiscal
year 2012-2013 was triggered by the July 11, 2013, written declaration of impasse. The City

LA-IM-145-M
December 5, 2013
Page 4
further contends that it extended a "verbal and written offer"-presumably the November 13,
2013, LBFO-encompassing fiscal years 2012-2013 and 2013-2014.
By letter dated November 26, 2013, the Association reiterated its position that impasse was
"effectively reached on October 23, 2013 when the City declined the Association's request for
Mediation."
Discussion
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
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. 	The EER
provides for voluntary mediation upon agreement of both parties. 	While the Association states
that it requested mediation, the City declined this request. 	There is no showing that the parties
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.)

LA-IM-145-M
December
5,
2013
Page 5
agreed to mediation or selected a mediator. Therefore, the 30-day period for the Association to
request factfinding was triggered by "the date that either party provided the other with a
written notice
of
a declaration
of
impasse."
The Association requests factfinding with respect to the negotiations for a successor MOU
covering the period
of
July 2012 through June 2013. In its November 21, 2013, letter, the
Association reiterates that its factfinding request is limited to the period
of
July 2012 through
June 2013, and does not include any subsequent period. The Association provided the City
with its written notice
of
declaration
of
impasse relevant to the 2012-2013 bargaining on July
11, 2013. The instant request for factfinding was filed more than 30 days later, on November
20,2013.
The Association contends that impasse "was effectively reached" on a later date, October 23,
2013, when the City declined the Association's request for mediation. 	However, neither
MMBA section 3505.4 nor PERB Regulation 32802 allow PERB to determine when impasse
was "effectively reached," nor do these provisions allow PERB to calculate timeliness
of
a
factfinding request based upon a party's decision not to utilize mediation. 	Rather, these
provisions require PERB to calculate timeliness relative to: (1) the appointment or selection
of
a mediator, or (2) a written declaration
of
impasse. Here, the parties did not appoint or select a
mediator, therefore the timeliness
of
the factfinding request must be based upon the July 11,
2013 written notice
of
declaration
of
impasse.
Determination
The request for factfinding is untimely filed with respect to the Association's request for
factfinding for a successor MOU covering the period
of
July 2012 through June 2013.
Accordingly, the factfinding provisions
of
MMBA section 3505.4 do not apply to this situation
and this request is denied. 	This determination is without prejudice to the Association filing a
timely factfinding request with respect to bargaining for the 2013-2014 fiscal year.
Right to Appeal
Pursuant to PERB Regulations, the County may file an appeal directly with the Board itself
and can request an expedited review
of
this administrative determination. (Cal. Code Regs.,
tit. 8, §§ 32147, subd. (a), 32350, 32360, 32802, 61060.) 	An appeal must be filed with the
Board itself within 10 days following the date
of
service
of
this determination. (Cal. Code
Regs., tit. 8, § 32360, subd. (6).) 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,

LA-IM-145-M
December
5,
2013
Page 6
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 concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs., tit.
8,
§ 32132.)
(	
Isaura
' . Davis
'enior Regional Attorney	V LD