County of Fresno (PERB A414M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF FRESNO,
Employer,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Exclusive Representative.
Case No. SA-IM-136-M
Administrative Appeal
PERB Order No. Ad-414-M
June 17, 2014
Appearances: Catherine E. Basham and Amanda Ruiz, Attorneys, County Counsel, for County
of Fresno; Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union, Local 521.
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 County of Fresno (County) from an administrative
determination (attached) made by the Office of the General Counsel that concluded factfinding
procedures defined in the Meyers-Milias-Brown Act (MMBA) section 3505.41 and PERB
Regulation 328022 applied to the bargaining impasse between the County and Service
Employees International Union, Local 521 (SEIU).3 The bargaining dispute concerned two
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.

County proposals regarding the number of employees working 12-hour shifts at the county jail
and the addition of specialized assignments at the jail.
Based on our recent decision 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.4
PROCEDURAL HISTORY
SEIU filed its request for factfinding on October 30, 2013, pursuant to MMBA
section 3505.4 claiming that the parties declared impasse on October 28, 2013. The parties
had met and conferred on three occasions prior to this date, and the County began to
implement its proposals regarding jail staffing.
The County objected to SEIU's request for factfinding on three separate grounds. 	First,
it asserted that the request was premature because no written notice of impasse had been issued
by either party.
Second, the County argued that PERB was bound by a ruling by the superior court in
County of Riverside v. Public Employment Relations Board (2013) Case No. RIC 1305661
(Riverside), which enjoined PERB from approving any request for factfinding in any
bargaining dispute other than for a new or successor comprehensive memorandum of
understanding (MOU). Thus, argued the County, PERB is prohibited from processing SEIU's
request for factfinding in this case.
4 PERB Regulation 32315 does not provide for oral argument on review of an
administrative determination. Oral argument may only be requested upon exceptions being
filed to a proposed decision. Therefore, SEIU's request for oral argument is denied.
2

Lastly, the County asserted that the legislative history
of
Assembly Bill (AB) 646
definitively shows the Legislature intended to limit factfinding procedures only to "collective
bargaining agreements or MOUs." (County's November
1,
2013 Letter to PERB,
p.
2.)
In response, SEIU asserted that Riverside does not bar PERB from processing its
factfinding request in this case because the superior court ruling is not final and therefore the
doctrine
of
res judicata does not apply in this case.5 Addressing the merits, SEIU argued that
AB 646 was intended to apply to bargaining disputes such as the one presented by this case.
ADMfNISTRATIVE DETERMINATION
The Office
of
the General Counsel rejected the County's objections to factfinding,
concluding that AB 646 applies to all bargaining disputes concerning matters within the scope
of
representation, and that such a reading comports with PERB' s decisions interpreting similar
language under the Educational Employment Relations Act (EERA).6
The Office
of
the General Counsel further concluded that the County's implementation
of
its proposals "is deemed to be or to include a 'written notice
of
declaration
of
impasse'
within the meaning
of
section 3505.4." (Admin. Determination, p. 12.)7
5 The doctrines
of
res judicata, or "claim preclusion" hold that a final judgment on the
merits is a complete bar to further litigation on the same cause
of
action or defense by the same
parties or those in privity with them. (7 Witkin California Procedure, Judgment,
§§
334 to 482
(5 th ed. 2008).) The related doctrine of collateral estoppel or "issue preclusion," bars the
parties from relitigating issues actually determined against them in an action in a subsequent
cause
of
action. (7 Witkin, id.§§ 413-451.)
6 EERA is codified at Government Code section 3540 et seq.
7 The County did not object to this conclusion in its appeal. The issue is therefore not
before us and we do not consider it.
3

Finally, the Office of the General Counsel rejected the County's assertion that
res judicata or collateral estoppel precluded the Board from acting on SEIU' s request for
appointment of a factfinding panel because no final decision had issued in Riverside.
Having concluded that the factfinding procedures set forth in MMBA section 3505.4
were applicable to this dispute, the Office of General Counsel ordered each party to select its
factfinding panel member and notify the Office of the General Counsel of the selection by
November 19, 2013.
The County filed a timely appeal from this administrative determination.
THE COUNTY'S APPEAL
The County asserts three reasons for overturning the administrative determination. 	It
claims that PERB does not have jurisdiction to review the Office of the General Counsel's
determination that factfinding should occur because in this case, SEIU filed an unfair practice
charge alleging that the County "improperly failed to engage in fact finding prior to creating a
specialized assignment and increasing the number of 12-hour shifts for correctional officers."
(County's Appeal, p. 5.) Therefore, the appropriateness of factfinding should be determined
only after the full evidentiary process of an unfair practice proceeding, according to the
County. 	It claims that the administrative determination is an advisory opinion, and by
implication, a decision affirming the administrative determination would also be advisory in
nature.
Second, the County renews its argument that PERB is enjoined and estopped from
ordering factfinding by the superior court's decision in Riverside.
4

Finally, the County argues that AB 646 was not intended to apply to all impasses in
bargaining disputes, but only to those reached in the course
of
negotiating new or successor
comprehensive MOUs.
SEIU'S RESPONSE
SEIU contends in response to the County's appeal that the County conflates statutory
impasse procedures with unfair practice proceedings, and that nothing precludes it from
simultaneously pursuing its claim made in its unfair practice
charge-that
the County violated
the MMBA by unilateraliy implementing a unilateral change in negotiable terms and
conditions
of
employment before exhausting impasse
procedures-and
requesting factfinding
under MMBA section 3505.4.
SEIU also argues that the order by the superior court in Riverside does not enjoin
or
estop PERB from processing factfinding requests on "single issue" bargaining disputes
because the superior court order is on appeal and therefore not final.
As to the intent
of
AB 646, SEIU asserts that it was intended to apply to all bargaining
disputes, and not just those arising from the negotiation
of
new or successor MO Us.
DISCUSSION
1.
	The Board's Jurisdiction to Administer Factfinding Under the MMBA
The County 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 addressed this claim in our recent decision in Contra Costa, supra, PERB Order
No. Ad-410-M, pp. 12-13, fn. 8, where we noted the difference between an administrative
5

determination that orders the parties
to
participate in factfinding and a complaint that alleges a
violation
of
the MMBA. We further explained in City
of
Redondo Beach (2014) PERB Order
No. Ad-409-M,
p.
5 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, supra, PERB Order
No. Ad-410-M, the County's appeal
of
the administrative determination will not result in any
determination that the County violated the MMBA.
Secondly, the County argues that a determination in this administrative appeal could
result in a determination
of
the County's liability in the unfair practice charge filed by SEIU
alleging that the County unilaterally changed negotiable terms and conditions
of
employment
before exhausting required impasse procedures. 8 The County urges the Board to declare the
administrative determination void as an invalid advisory opinion. According to the County,
the only situation in which this Board may determine whether factfinding applies to the
parties' bargaining dispute is in the context
of
unfair practice proceedings. The County asserts
that the administrative determination directing the parties to participate in factfinding
"bypasses" the unfair practice adjudication process and would constitute an advisory opinion.
We disagree.
We take administrative notice of the agency's file in Unfair Practice Case
No. SA-CE-846-M. PERB issued a complaint based on this charge on November 26, 2013 and
a formal hearing is scheduled for July 2014. The complaint alleges that the County increased
the number of 12-hours shifts available to corrections officers and created two new specialty
assignments that are exempt from seniority-based bidding procedures without providing SEIU
an opportunity to meet and confer over the decision and/or the effects of these changes in
policy. The complaint further alleges that between October 30, 2013 (when SEIU requested
factfinding) and November 14, 2013 (when the administrative determination issued), the
County engaged in the unilateral conduct described above, which constitutes a failure and
refusal to participate in factfinding procedures in good faith.
6

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) empowers 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. Such a determination is necessarily made on a case-by-case basis
after a review of the request itself and an assessment of the timelines, and, as in this case, after
determining whether factfinding applies to the dispute between the parties. 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 County's appeal of the administrative
determination an advisory opinion.9 The County has appealed the administrative
determination, presumably seeking an order from the Board itself overturning the
administrative determination and absolving it of the duty to participate in factfinding. 	Such an
order would not be theoretical or advisory, since it would resolve an actual, concrete dispute
between the parties. Depending on the outcome of the appeal, an order would require either an
affirmative act on the part of the County to participate in factfinding, or would direct the
Office of the General Counsel to rescind its order to the parties to take the next steps in the
factfinding process. We conclude, therefore that our decision resolving the County's appeal is
not an advisory opinion.
9 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 of law. (Santa Clarita Community College District
(College of the Canyons) (2003) PERB Decision No. 1506, pp. 27-28, and cases cited therein.)
7

Our resolution
of
the issue presented by the County's
appeal-whether
the MMBA
factfinding procedure applies
to
the two County proposals in dispute between the
parties-
conceivably overlaps with an issue in the unfair practice case, but does not prejudice nor
determine the ultimate outcome in the unfair practice case. Our determination that factfinding
applies to the bargaining dispute that is also the subject
of
the unfair practice complaint does
not assess or decide any potential defenses the County may interpose to the unfair practice
complaint. That task lies initially with the administrative law judge.
The issue before us in the instant case is simply whether the Office
of
the Generai
Counsel correctly determined that the factfinding process applied to this bargaining dispute.
The outcome
of
this case will be an order directing the parties to select their respective
members
of
the factfinding panel and proceed to factfinding, a process that assists 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, both unfair practice litigation and this appeal may deal with the issue
of
whether the County was obligated to participate in factfinding. But our determination in this
case that it was obligated to do so does not necessarily determine the outcome of the unfair
practice proceeding. PERB' s determination of the issues presented in this case is therefore not
an advisory opinion that the County implies would interfere with the unfair practice case.
8

2. 	Effect
of
Superior Court's Decision in Riverside
The County's claims on this point have been addressed by Contra Costa, supra, PERB
Order No. Ad-410-M, pp. 13-14. 	It is well-settled that doctrines ofresjudicata and collateral
estoppel
do
not apply until and unless a court decision is final. 	(7 Witkin Calif. Procedure, 5 th
ed. (2008) Judgment,§ 364.) PERB has appealed the superior court's ruling in Riverside, so
these doctrines, even
if
they were applicable to this case, do not preclude this Board from
ordering the parties to participate in factfinding.
Likewise, the County's assertion that PERB is bound by the superior court's injunction
and issuance
of
a writ
of
mandate is rejected, because an appeal
of
the issuance
of
a writ
of
mandate and
of
an injunction automatically stays those orders. (Code
of
Civil Proc., § 916;
Varian Medical Systems, Inc.
v.
Delfino (2005)
35
Cal.4
th
180, 189-190; Private Investors
v.
Homestake Mining
Co.
(1936)
11
Cal.App.2d 488.)
10
3.
	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 County
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 layoffs, or
other single-issue disputes. The County also points to the placement
of
factfinding
requirements in the sections of the MMBA dealing with negotiations of MO Us as evidence of
the Legislature's intent to limit the scope of factfinding under the MMBA. It further argues
In Riverside, the county filed a petition in the Court of Appeal for a writ of
supersedeas seeking to lift the automatic stay of the superior court's order. The writ was
summarily denied by the Court of Appeal on January 14, 2014.
9

that the eight criteria set forth in MMBA sec. 3505.4 that the factfinding panel is directed to
consider in arriving at their findings and recommendations primarily concern factors relating to
wages. 	Since none of the criteria would allegedly be relevant to the negotiations regarding the
issues that divide the parties in this case, factfinding cannot apply to this dispute, according to
the County.
All of these contentions 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
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 that the placement of the language of AB 646 following the portion of the MMBA
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, supra, PERB Order No. Ad-410-M also addressed the County's
argument 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
EERA, and it is well-established that under EERA, factfinding has been applied to single-issue
disputes, mid-term negotiations and effects bargaining. Common sense does not require that
each of these criteria be applied in every bargaining dispute. Depending on the dispute, some
criteria may be more relevant than others.
Finally, the County contends that PERB's reliance on EERA for any conclusion that
factfinding applies to all bargaining disputes is misplaced because there are three main
differences between EERA and the MMBA factfinding procedures that require the narrow
construction of AB 646 that the County urges. The County points out that under the MMBA,
only the employee organization may invoke factfinding, whereas under EERA, either party
may invoke it and the procedure commences only after PERB determines that the parties are at
an impasse. 11 According to the County, the fact that only employee organizations may invoke
11 EERA section 3548 provides that either party may declare impasse and request the
appointment of a mediator. If the board determines that an impasse exists, it appoints a
mediator. EERA section 3548.1 provides: "If a mediator is unable to effect settlement of the
11

factfinding, combined with the lack of PERB oversight in the determination of whether there is
actually an impasse "greatly increases the likelihood that the process will be abused by
employee representatives who seek only to delay." (County's Appeal, p. 14.)
It is not for PERB to speculate about the policy choices made by the Legislature. 	We
do note however, that the Legislature is presumed to have known when AB 646 was passed
that PERB applied the impasse resolution procedures under EERA to single-issue bargaining
disputes, mid-term contract negotiations and effects bargaining disputes. (Moore v. California
State Bd. of Accountancy (1992) 2 Cal.4 th 999, 1018; Cooper v. Unemployment Ins. Appeals
Bd. (1981) 118 Cal.App.3d 166, 170.) Had the Legislature intended that AB 646 apply to a
narrower range of bargaining disputes than PERB had previously sanctioned, it could have
easily drafted language saying so. As for the County's speculation that the legislative choice
made by the Legislature will cause employee organizations to abuse the process and cause
delay, this is a policy argument best addressed to the Legislature.
The second distinction between EERA and the MMBA factfinding procedure cited by
the County is the fact that under EERA, the factfinding panel chair is appointed by PERB at no
cost to the parties, whereas the costs of factfinding are split between the public agency and
employee organization under the MMBA. According to the County, "It is inconceivable that
the Legislature intended public agencies to expend their limited resources-taxpayer
funding-engaging in factfinding over the effects of a management right or single issue
negotiations at the whim of an employee organization." (County's Appeal, p. 14.) Again, this
is an argument best addressed to the Legislature, rather than PERB. We note that because the
costs are split between the parties under the MMBA, the employee organizations may be
controversy ... and declares that facfinding is appropriate to the resolution of the impasse,
either party may ... request that their differences be submitted to a factfinding panel."
12

constrained by similar economic forces as employers. Unions undoubtedly will be forced to
pick and choose the disputes they take to factfinding, as they do not have limitless funds to
spend on factfinding panels without regard to the importance of the dispute to their members.
Finally, the County argues that the differences between EERA and the MMBA on
public disclosure of bargaining proposals requires that we find that MMBA factfinding is
limited only to bargaining disputes over comprehensive MOUs. Under EERA, bargaining
proposals of both parties must be presented at a public meeting of the public employer before
negotiations may commence. (EERA, § 3547.) The requirement in EERA section 3548.3 that
the factfinding report is to be made public by the employer before it makes any decision
regarding the report is therefore "consistent with the rest of the EERA impasse procedures,"
according to the County. In contrast, there is no requirement under the MMBA for public
employers to "sunshine" either their proposals or agreements, according to the County.
"Public employers ... are only required under the Brown Act ... to place on the agenda and
take a public vote on contracts, including memoranda of understanding or collective bargaining
agreements. There is no requirement for a public meeting on proposals or negotiations over
single issues that do not result in contracts or negotiations on the impact of decisions outside
the scope of bargaining." (County Appeal, p. 14.) If factfinding is applicable to disputes other
than initial or successor MOUs, then public employers would be required by MMBA
section 3505. 7 to hold public hearings on a factfinding report before they implement their last,
best and final offer (LBFO) over, for example, the effects of layoff, before it can "move
forward with action that it has an unmistakable right to take." (County Appeal, p. 15.)
We reject this argument for several reasons. As an initial matter, we determined in
Contra Costa, supra, PERB Order No. Ad-410-M that the term "MOU" does not refer only to
13

a comprehensive collective bargaining agreement that typically addresses all subjects the
parties bargained over and is in effect for a set duration of time. As we explained in
Contra Costa, pp. 23-24:
The duty to bargain in good faith applies to any matter within the
scope of representation and is not confined to negotiations that
result in a comprehensive MOU for a certain duration ....
Under the MMBA, an MOU is the end product of meeting
and conferring on matters within the scope of representation if a
tentative agreement is adopted by the governing body of the
public agency. (MMBA, § 3505.1.) In other words, an 'MOU'
signifies a written agreement on any matter within the scope of
representation. It can address a single subject, the effect of a
decision within the managerial prerogative, mid-term
negotiations, or side letters of agreement, etc.
Thus, whenever a tentative agreement on any negotiable subject is reached by the parties,
MMBA section 3505.1 obligates the public agency to vote to accept or reject such agreement
at a duly noticed public meeting. The purpose of any public meeting is to inform the public of
official actions taken by the governing board of the public entity and presumably to receive
input from the public before official action is taken (Brown Act at Gov. Code, § 54954.3;
Chaffee v. San Francisco Library Commission (2004) 115 Cal.App.4 th 461 [Brown Act is
intended to facilitate public participation in all phases of local government decision-making]).
Therefore, when the County places a tentative agreement with an employee representative
organization on its agenda for a "duly noticed public meeting," it presumably makes the
tentative agreement available to the public so that the public may meaningfully comment on
the tentative agreement.
The obligation under MMBA section 3505.7 is no more onerous or time-
consuming than what is already required when the parties reach a tentative agreement
14

without resort to impasse resolution procedures. The County need only wait 10 days
after the factfinding panel's recommendations have been submitted to the parties before
holding a public meeting regarding the impasse before it may implement its LBFO.
Given the Legislature's choice favoring public disclosure of tentative agreements and
matters regarding the impasse, delaying implementation of an LBFO for ten days in
order to keep the public informed is not an onerous requirement.
Factfinding imposes a new process on the parties in MMBA jurisdictions, a
process that is intended to assist the parties in reaching agreement, a goal which is
firmly established as one of the purposes of the MMBA-to provide a "reasonable
method of resolving disputes regarding wages, hours and other terms and conditions of
employment." (MMBA, § 3500.) That this process may delay a public agency from
imposing its LBFO the day after it determines the parties are at impasse is something
the Legislature no doubt considered in passing AB 646. Any claim that this legislative
policy choice will waste public funds or impede the functioning of local governments is
thus best addressed to the Legislature.
For all of these reasons, we affirm the administrative determination.
ORDER
The administrative determination of the Office of the General Counsel that the
factfinding procedures set forth in the Meyers-Milias-Brown Act (MMBA)
section 3505.4 et seq., are applicable to the dispute in this case is hereby AFFIRMED.
Service Employees International Union, Local 521 's request for factfinding satisfies the
15

requirements
of
MMBA section 3505.4 and PERB Regulation 32805(a)(2) 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.
16

STATE
OF
CALIFORNIA 	EDMUND
G.
BROWN
JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8385
Fax: (916) 327-6377
November 14, 2013
Catherine
E.
Basham, Senior Deputy County Counsel
County
of
Fresno
2220 Tulare Street, Suite 500
Fresno, CA 93721-2128
Kerianne R. Steele, Attorney
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501
Re: 	County
of
Fresno and Service Employees International Union Local 521
Case No. SA-IM-136-M
Administrative Determination
Dear Interested Parties:
On October 30, 2013, Service Employees International Union Local 521 (SEIU or Union) 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 In that request, SEIU asserted that the County
of
Fresno (County) and the
Union have been unable to effect a settlement in their current negotiations.2 SEIU's Request
3
provides that impasse was declared on "October 28, 2013."
1 The MMBA is codified at Government Code section 3500 et seq. and all future
references are to the Government Code unless otherwise noted. PERB Regulations are
codified at California Code
of
Regulations, title
8,
section 31000 et seq. and will be referred to
as PERB Regulations hereafter. The text
of
the MMBA and PERB Regulations may be found
at www.perb.ca.gov.
2 In its initial Request, SEIU merely described the "type
of
dispute" with the County as
"meet and confer." Subsequent correspondence from the parties clarified that the "dispute" in
question, involves the parties' negotiations over the County's two proposals to alter certain
terms set forth in an addendum to the parties' .expired Memorandum
of
Understanding (MOU)
for Bargaining Unit 2, which includes all Correctional Officers employed by the County in the
Jail, Probation Department, and Juvenile detention facilities (Unit 2). Specifically, the
County's two proposals were to: (1) increase the number of employees working_ 12-hour shifts
at the County Jail; and (2) add two specialized assignments in the County Jail that are exempt
from the seniority-based bidding procedure.
3 As will be discussed in greater detail below, the parties do not dispute that the County
has not provided SEIU with a written notice of a declaration of impasse. SEIU contends

SA-IM-136-M
November 14, 2013
Page 2
After SEIU filed its Request, the County was given an opportunity to state its position.
On
November
1,
2013, the County notified the undersigned Board agent that it would be opposing
the Request, and would be filing a written statement to that effect. By letter dated November
1, 2013, the County opposed SEIU's Request and asserted that the Request was insufficient
to
meet the statutory requirements for factfinding. The County requested that PERB deny the
Request. On November 5, 2013, SEIU filed a responsive letter in support
of
its Request
and
a
Request for Judicial Notice disputing the County's position statement.
On November
6,
2013, PERB approved SEIU's Request and informed the parties in an e-mail
message that the determination would be subsequently memorialized in writing.
Brief Factual Background
The parties' MOU expired on October 30, 2011 and on December 6, 2011, the County imposed
its last, best and final offer (LBFO).
During the parties' negotiations in 2012, the parties did ultimately submit their dispute to a
factfinding panel. On or about June 4, 2013, the County imposed its LBFO from those
negotiations.
The current round
of
negotiations commenced on or about September 6, 2013, when the
County proposed to create two new specialized assignments for Correctional Officers in the
County Jail that would be exempt from the seniority-based bidding procedure described in an
addendum to the parties' expired MOU. In or around September 2013, the County also
proposed to increase the number
of
twelve-hour (12-hour) shifts in the County Jail.4
28, 5
The parties met and conferred on three occasions: October 16, 25, and 	2013. 	The Union
submitted documentary evidence attached to the sworn declaration
of
Tom Abshere that
indicates that the County has
begun-or
is in the process
of-implementing
both proposals.
The Union has submitted information that on or about October 28, 2013, the County posted a
new announcement on its Job Line for a "Booking/Records Unit" assignment- one
of
the
newly created specialized assignments that was the subject
of
the parties' 2013 negotiations.
Also, on October 28, 2013, the County sent an e-mail message to all employees in the County
however, that the County's unilateral implementation
of
both proposals on or about
October 28, 2013, equates to an "impasse" in the parties' negotiations ["It must be inferred
from the County's unilateral conduct that the County is declaring 'impasse' in the meet and
confer process"].
.
4 The Union also asserts that the County unilaterally increased the number of twelve-
hour shifts prior to September 2013 from 210 to 244.
5 There is no dispute that during these negotiations, the County only agreed to negotiate
the impacts of the creation of the two specialized assignments, but not the decision itself.

SA-IM-136-M
November 14, 2013
Page 3
Jail regarding the Correctional Officers' December 9, 2013 bid for assignments. The
attachment to the e-mail message contains a number
of
twelve-hour shifts (270), that far
exceeds the number set forth in the parties' addendum to the expired contract (210).6
The Parties' Respective Positions
A. 	The County's Position
The County objects to the Petition based on several different grounds. It asserts that the
Request is premature since no written notice
of
impasse has been issued by either party.
The
County notes in pertinent part as follows, "The Request states that impasse was declared
on
October 28, 2013, but no copy
of
a written notice
of
impasse is provided. The County has
neither issued a notice
of
a declaration
of
impasse nor received such a notice from
SEITJ,	
As
this prerequisite has not been met, SEIU's Request must be denied as premature."
The County also argues that approval
of
SEIU's request is "barred" based on a tentative ruling
from the pending litigation in Riverside County Superior Court entitled County
of
Riverside
v.
PERE; SEIU, Local 721, Case No. RJC 1305661. The County states in pertinent part, that
"[t]he Court ruled on September 13, 2013, that the clear intent
of
the legislature in adopting
AB 646 was to address the negotiations for new or successor MOUs. The Court further found
that
PERB's
interpretation
of
AB 646 to apply to negotiations over matters other than new or
successor MO Us to be 'clearly erroneous.'
...
Thus SEID is precluded from requesting fact-
finding in this matter and PERB is precluded from granting such a request."
Finally, the County asserts that the legislative history
of
Assembly Bill 646 (AB 646)7
conclusively demonstrates that SEIU's Request is "outside the purview
of
the fact-finding
process." In particular, the County relies upon comments made by Assembly MemberToni
Akins, the author
of
AB 646. The County references an undated comment by Assembly
Member Akins:
Although the MMBA requires employers and employees to bargain in good faith,
some municipalities and agencies choose not to adhere to this principle and
instead attempt to expedite an impasse in order to unilaterally impose their last,
best, and final offer when negotiations for collective bargaining agreements fail.
(Emphasis added.)
6 The Union has filed two unfair practice charges (UPC Nos. SA-CE-841-M, SA-CE-
846-M) with respect to the County's alleged unlawful unilateral action regarding the
specialized assignments and shift schedules. Although this determination does not make any
findings with respect to those charges, it does appear from the undisputed information
provided by SEIU, that the County has begun the process
of
implementing both proposals and
that, therefore, the parties are at impasse in their negotiations.
7 AB 646 (Statutes 2011, Chapter 680), is codified at Government Code sections
3505.4, 3505.5, and 3505.7.

SA-IM-136-M
November 14, 2013
Page 4
(County's November
1,
2013 Letter, p. 2.) Similarly, the County relies on an Assembly Floor
analysis dated September
1,
2011, at Page
3,
which states:
According
to
the author, "Currently, there is no requirement that public agency
employers and employee organizations engage in impasse procedures where
efforts
to
negotiate a collective bargaining agreement have failed. [
...
] The
creation
of
mandatory impasse procedures is likely
to
increase the effectiveness
of
the collective bargaining process, by enabling the parties to employ mediation and
fact-finding in order to assist them in resolving differences that remain after
negotiations have been unsuccessful. [
...
] (Emphasis added.)
(Ibid.) The County notes in part, "it is inconceivable that the Legislature intended the public
employer to use taxpayer dollars participating
[sic]
in this fact-finding process for anything
other than negotiations over collective bargaining agreements or MOUs."
B. 	SEIU's Position
SEIU asserts that the parties met on three occasions, but the County "failed and refused to
present a written notice
of
a declaration
of
impasse to SEIU Local 521
....
Instead, shortly
after the conclusion
of
the parties' October 28, 2013 meet and confer session, the County
proceeded to unilaterally implement its two proposed changes to Correctional Officers'
working conditions
....
It must be inferred from the County's unilateral conduct that the
County is declaring "impasse" in the meet and confer process."
The Union also provides five reasons why the County
of
Riverside case is not relevant to its
factfinding demand: (1) the trial court in the County
of
Riverside case has made only an oral
ruling on the record and has not issued a final written order with "res judicata" effect; (2)
PERB's timeline to request reconsideration or file an appeal in the County
of
Riverside case
has not expired yet; (3) an order from a County
of
Riverside Superior Court judge "does not
dictate law or policy for the rest
of
the state"; (4) SEIU Local 721, the Real Party in Interest in
the County
of
Riverside case, is not the same entity as SEIU Local 521; and (5) the trial court
judge's ruling is clearly erroneous and will likely be vacated on appeal.
Finally, the Union asserts that AB 646 was meant to encompass the types
of
issues that the
parties were negotiating over in this case: the County's proposal to add two specialized
assignments that are exempt from the seniority-based bidding process and multiple new
twelve-hour shift proposals.8
8 The Union's Request for Judicial Notice is granted solely for purposes of this
Administrative Determination. (Compton Community College District (1988) PERB Decision
No. 704; Antelope Valley Community College District (1979) PERB Decision No. 97.)

SA-IM-136-M
November 14, 2013
Page 5
Discussion
A. AB 646 Factfinding is the Final Step in an Orderly Process Designed to Resolve Any
Impasse That Arises From Negotiations Over Matters Within the Scope
of
Representation
Under the MMBA.
1.
	The Duty to Bargain to Impasse Over Matters Within the Scope
of
Representation
Under the MMBA
Essentially, the County contends that the factfinding requirements under the MMBA apply
only to impasses stemming from negotiations for a new or successor MOU, and do not apply to
impasses resulting from isolated or separate issues arising from any other tyfes
of
negotiations.
However, when read together, MMBA sections 3505.7, 3505.4, and 3505.5, demonstrate that
the Legislature had each and every impasse dispute in mind when drafting this legislation.
a.
	The Courts, PERB and NLRB's Interpretation
of
the Terms "Collective Bargaining"
and ''Collective Bargaining Agreement"
PERB and NLRB decisions have made clear that collective bargaining is a continuing process
that is not restricted to one comprehensive agreement or one single period
of
bargaining.
9 Section 3505. 7 states, in relevant part:
After any applicable mediation and factfinding procedures have been exhausted, but no
earlier than 10 days after the factfinders' written findings
of
fact and recommended terms
of
settlement have been submitted
to
the parties pursuant to Section 3505.5, a public agency that
is not required to proceed to interest arbitration may, after holding-a public hearing regarding
the impasse, implement its last, best, and final offer, but shall not implement a memorandum
of
understanding, (Emphasis added.)
Section 3505.4 provides:
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 ....
(Emphasis added.)
Section 3505.5, subdivision (a) provides, in relevant part:
If
the dispute is not settled within 30 days after the appointment of the factfinding
panel, or, upon agreement by both parties within a longer period, the panel shall make findings
of fact and recommend terms of settlement, which shall be advisory only. The factfinders shall
submit, in writing, any findings of fact and recommended terms of settlement to the parties
before they are made available to the public. The public agency shall make these findings and
recommendations publicly available within 10 days after their receipt. (Emphasis added.)

SA-IM-136-M
November 14, 2013
Page 6
California's public sector collective bargaining statutes are largely modeled after the federal
National Labor Relations Act (NLRA) (29 U.S.C. § 151, et seq.). (Long Beach Community
College District (2003) PERB Decision No. 1564; City
of
San Jose (2010) PERB Decision
No. 2141-M.) Accordingly, when interpreting the MMBA, courts and PERB have
appropriately taken guidance from the express language
of
the NLRA, as well as from cases
interpreting the NLRA. (Fire Fighters Union v. City
of
Vallejo (1974) 12 Cal.3d 608, 615-617
[Fire Fighters Union].) For instance, the Supreme Court has noted that the phrase in the
MMBA's meet and confer requirement regarding "wages, hours, and other terms and
conditions
of
employment" was taken directly from section 8(d)
of
the NLRA concerning the
"the obligation to bargain collectively," which states in relevant part:
For the purposes
of
this section, to bargain collectively is the performance
of
the mutual obligation
of
the employer and the representative
of
the employees to
meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions
of
employment, or the negotiation
of
an
agreement, or any question arising thereunder, and the execution
of
a written
contract incorporating any agreement reached
if
requested by either party, but
such obligation does not compel either party to agree to a proposal or require the
making
of
a concession
...
(29 U.S.C. § 158(d), emphasis added, Fire Fighters Union, supra, at
p.
617.)
As the express language
of
the NLRA makes clear, the obligation to bargain collectively is not
just limited to the "negotiation
of
an agreement." Rather, such an obligation also encompasses
meeting with respect to any wages, hours, and other terms and conditions
of
employment, as
well as concerning questions or disputes that may arise within the agreement. In the words
of
the United States Supreme Court:
Collective bargaining is a continuing process. Among other things, it involves
day-to-day adjustments in the contract and other working rules, resolution
of
new problems not covered by existing agreements, and the protection
of
employee rights already secured by contract.
(Conley
v.
Gibson (1957) 355 U.S. 41, 46, overruled in part on other grounds; see also,
National Labor Relations Board
v.
Acme Indus. Co. (1967) 385 U.S. 432, 435-436.)
More importantly, courts have described a "collective bargaining agreement" as "the
framework within which the process of collective bargaining may be carried on." (J.l Case
Co.
v.
National Labor Relations Board (7th Cir. 1958) 253 F.2d 149, 153.) In Posner
v.
Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, the California Supreme Court observed that a
collective bargaining agreement '"is more than a contract; it is a generalized code to govern a
myriad of cases which the draftsman cannot wholly anticipate .... It calls into being a new
common law - the common law of the particular industry."' (Id. at p. 177, quoting United
Steelworkers
v.
Warrior & Gulf Navigation Co. (1960) 363 U.S. 574,578 [Warrior & Gulf
Co.].)

SA-IM-136-M
November 14, 2013
Page 7
These cases are clear, collective bargaining means more than negotiations for a new or
successor MOU-as the County asserts-it means negotiations for all disputes within the
scope of representation.
b. 	The MMBA's Meet-and Confer Obligations
Under the MMBA, the duty to meet and confer in good faith "means that the parties must
genuinely seek to reach agreement, but the MMBA does not require that an agreement result in
every instance, and it recognizes that a public employer has the ultimate power to reject
employee proposals on any particular issue." (International Assoc. of Fire Fighters, Local
188, AFL-CIO v. City of Richmond (2011) 51 Cal.4th 259,271 [City of RichmondJ.) The duty
to meet and confer in good faith extends to all matters within the scope of representation,
which is defined as "all matters relating to employment conditions and employer-employee
relations, including, but not limited to, wages, hours, and other terms and conditions of
employment," but does not include "consideration of the merits, necessity, or organization of
any service or activity provided by law or executive order." (§ 3504.) "'The duty to bargain
requires the public agency to refrain from making unilateral changes in employees' wages and
working conditions until the employer and employee association have bargained to impasse
.... "' (Coachella Valley Mosquito & Vector Control Dist. v. PERB (2005) 35 Cal.4th 1072,
1083-1084, quoting Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th
525, 537.)
Although the MMBA uses the term "impasse," it does not define that term, unlike other
statutes within PERB's jurisdiction. For instance, the Educational Employment Relations Act
(§ 3540 et seq. [EERA]) defines "impasse" to mean "the parties to a dispute over matters
within the scope of representation have reached a point in meeting and negotiating at which
their differences in positions are so substantial or prolonged that future meetings would be
futile." (§ 3540.1, subd. (f), emphasis added.)1° Thus, PERB has held that an impasse in
bargaining exists where the "parties have considered each other's proposals and
counterproposals, attempted to narrow the gap of disagreement and have, nonetheless, reached
a point in their negotiations where continued discussion would be futile." (Mt. San Antonio
Community Coilege District (1981) PERB Order No. Ad-124.)
Given the longstanding acceptance of the concept of impasse as a term of art central to labor
relations, the Board has held that the definition of impasse under EERA, as interpreted by
PERB, is the appropriate standard under the MMBA as well. (Fire Fighters Union, supra, 12
Cal.3d 608; City & County of San Francisco (2009) PERB Decision No. 2041-M.) The
definition of impasse does not limit the types of "disputes" or "differences" that the parties
10 Similarly, under the Higher Education Employer-Employee Relations Act(§ 3560 et
seq. [HEERA]), impasse is defined to mean that "the parties have reached a point in meeting
and conferring at which their qifferences in positions are such that further meetings would be
futile." (§ 3562, subd. (j).)

SA-IM-136-M
November 14, 2013
Page 8
may 	successor 	orhave to
just
those for a new or 	MOU. In fact, nowhere in the statutory
or "collective bargaining"	decisional law definitions
of
impasse do the terms "agreement"
appear.
c. 	Expressly Limit Factfinding Solely to Impasses Over	The MMBA Does Not
Negotiations for an MOU
The MMBA, when construed as a whole, simply does not limit the applicability
of
its
provisions solely to disputes arising from negotiations for an MOU. Sectionfactfinding
differences3505.4, provides that an "employee organization may request that the parties' 	be
is not submitted tosubmitted to a factfinding panel" following mediation, or
if
the "dispute"
employee organization may request that the parties "differences be	mediation, then the
submitted to a factfinding panel.. .. " (§ 3505.4, subd. (a).) There is no language in the statute
to a factfinding panel.that limits the types
of
"differences" or "disputes" that may be submitted
that 	settledadded by AB 646, moreover, section 3505.5 provides
	if
the "dispute" is not	As
of
fact and recommended terms
of
within a set time, the factfinding panel "shall make findings
there is no languagesettlement, which shall be advisory only."
(§
3505.5, subd. (a).) Again,
limiting the parties' "dispute," which can be submitted to a factfinding panel, to	in that statute
Section 3505. 7 further provides	negotiations for an MOU, or any other "type"
of
negotiations.
written findings
of
factthat after any applicable impasse procedures have been exhausted, and
and made public, aand recommended terms
of
settlement have been submitted to the parties
public agency may implement its last, best, and final offer, but is not permitted to implement
an MOU. (§ 3505.7.)
Thus, once an employee organization requests the parties' "differences" be submitted to
are met, then participation
in
factfinding, and the procedural aspects
of
the factfinding sections
or
factfinding is mandatory. The plain language
of
the factfinding sections do not distinguish
limit the types
of
disputes that arise in collective bargaining negotiations that may be submitted
If 	Legislature intended to limit the types
of
disputes or differences that	to factfinding. 	the
forcould be submitted to a factfinding panel only to those arising during negotiations 	an
when the MMBA's statutoryMOU, it could have done so explicitly. It did not. Accordingly,
viewed as a whole, the County's interpretation
of
the factfinding provisions asscheme is
applying only to negotiations for an MOU is simply not a correct interpretation
of
the statute.
it 	who 	subject	above, 	are 	to the MMBAFinally, as noted 	is well-settled that public employers
not make a unilateral	and other collective bargaining statutes administered by PERB may
aschange in a negotiable subject until all applicable impasse procedures have been exhausted,
collective bargaining process. (Moreno Valley Unified	impasse procedures are part
of
the
(1983) 142 Cal.App.3d 191, 199-200 [Moreno Valley]; Temple CitySchool District
v.
PERE
11; see also§ 3506.5, subd. (e).)Unified School District (1990) PERB Decision No. 841, p.
to the County's interpretation that MMBA factfinding applies only to impasse overAccording
negotiations for a complete MOU, this would necessarily mean that single employment issues
thus allow the public	would be excluded from the statutory impasse procedures, and would
"mainagency to impose its will on employees if the parties cannot reach agreement. Unlike

SA-IM-136-M
November 14, 2013
Page 9
timing	table" negotiations for a new or successor MOU, employers often have control over the
of
"single" subjects, such as layoffs or the creation
of
a new position.
If
PERB were to accept
the County's position that only new or successor MOUs are subject to factfinding, an employer
could splinter subjects within the scope
of
representation into multiple "single" issues, in order
to intentionally avoid factfinding.
This interpretation is contrary to the intent
of
AB 646, which was enacted to prevent public
agencies from rushing through the motions
of
the meet-and-confer process to unilaterally
impose the agency's goals and agenda before exhausting available impasse procedures.
Moreover, the County's claim that the MMBA does not authorize factfinding other than for
negotiations for an MOU cannot be squared with the MMBA's stated purposes "to promote
full communication between public employers and employees," and "to improve personnel
management
a...11d
employer-employee relations."
(§
3500.) Allowing the County to take
unilateral action concerning the parties' employment relationship without exhausting the
MMBA' s impasse procedures simply because the parties' dispute does not arise during
negotiations for an MOU, does not further, but would rather frustrate, the MMBA's purpose
of
promoting fqll communications between the parties and improving employer-employee
relations.
d. 	PERB Has Interpreted Statutory Impasse Procedures Under EERA and HEERA to
Apply to a Wide Variety
of
Collective Bargaining Negotiations, and Not Just Those
for an MOU
The County's assertion that MMBA factfinding provisions are limited only to those
negotiations for an MOU that reach impasse is contrary to the language and judicial
interpretation
bf
factfinding provisions found in the other collective bargaining statutes that
PERB administers. It is well-settled that statutes should be construed in harmony with other
statutes on the same general subject. (Building Material & Construction Teamsters' Union
v.
Farrell (1986)
41
Cal.3d 651, 665.) Moreover, when interpreting the MMBA, PERB
appropriately takes guidance from cases interpreting not only the NLRA, but also other
collective bargaining statutes that PERB administers with provisions similar to those
of
the
MMBA. (Fire Fighters Union, supra,
12
Cal.3d 608.)
EERA and HEERA contain provisions governing impasse resolution that are similar, though
not identical, to those in the MMBA. (Compare§§ 3548-3548.8 [EERA], with§§ 3590-3594
[HEERA], and§§ 3505.4-3505.7 [MMBA].) 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. Under this body ofrelated law, to which our
Supreme Court has directed the courts to look for reliable guidance when they are called upon
to interpret the latter statute (City
of
San Jose
v.
Operating Engineers Local Union No. 3
(2010) 49 Cal.4th 597, 605-607 & fn. 3), it is clear that public employers are prohibited from
making a unilateral change on a matter subject to impacts and effects bargaining until all
applicable impasse procedures have been exhausted.

SA-IM-136-M
November 14, 2013
Page 10
PERB	For example, in Moreno Valley Unified School Dist. (1982) 	Decision No. 206, the
Board upheld a hearing officer's determination that, among other things, the District violated
section 3543.5, subdivision (e), by failing
to
participate in impasse procedures in good faith,
and by making unilateral changes prior to the exhaustion
of
the statutory impasse procedures
under EERA,
as
to proposals to eliminate teaching and staff positions. (Id. at pp. 1-2, 11-12.)
The District subsequently filed a writ
of
mandate challenging the Board's decision. In Moreno
supra, 142 Cal.App.3d 191, the Court
of
Appeal upheld PERB's determination that the	Valley,
school district committed an unfair labor practice under EERA by unilaterally implementing
in employment conditions before exhausting statutory impasse procedures, including	changes
the "effects"
of
the school	failing to participate in good faith in impasse procedures regarding
district's decision to eliminate certain teaching and staff positions. (Id. at pp. 200, 202-205.)
The court stated that "[s]ince 'impasse' under EERA's statutory scheme denotes a continuation
of
the labor management dispute resolution process
...
the Board reasonably interpreted the
statute in finding a per se violation
of
the statutory duty
of
employers to participate in good
faith in the impasse procedures." (Id. at p. 200.)
District	
1141
(Redwoods),	Community College 	(1996) PERB Decision No. 	theIn Redwoods
that EERA's statutory impasse procedures applied to the parties'	Board determined
negotiations over hours
of
security officers, which were conducted separate and apart from the
parties' negotiations for a successor MOU. In that regard, the parties negotiated a contract
provision covering workweeks and work schedules, which provided for negotiations between
the employer and the employee representative regarding any change in hours. (Ibid.) That
provision further stated that
if
negotiations were unsuccessful, the parties would submit the
"shall not be submitted	dispute to mediation. (Ibid.) The provision also stated that the dispute
panel under the provisions
of
the [EERA]." (Ibid.) The Board held that the	to a fact-finding
parties could not waive EERA' s statutory impasse procedures, noting that until the impasse
negotiable	procedures are completed, the employer may not make a unilateral change in a
PERB Decision No. 799-H [a	subject. (Ibid.; see also, California State University (1990)
HEERA case, where the parties participated in mediation and factfinding concerning
negotiations over increased parking fees].)
as PERB has properly interpreted and applied the impasse procedures under EERA and	Thus,
HEERA to negotiations other than just those for an MOU, PERB's similar interpretation
regarding impasse procedures under the MMBA is also proper, and should be applied to
factfinding requests made under sections 3505.4, 3505.5 and 3505.7.
2. 	MMBA Factfinding Process and Procedure
a. 	The MMBA Factfinding Provisions Adopted by the Legislature Under AB 646, and
Implemented by Duly Adopted PERB Regulations
a	As noted above, in 2011, the Legislature for the first time established 	structured impasse
procedure, applicable statewide, for the MMBA, by enacting factfinding provisions pursuant to

SA-IM-136-M
November 14, 2013
Page
11
AB 646.
11
The statute provided that only unions could invoke the MMBA's factfinding
provisions. While AB 646 imposed new obligations on MMBA employers, it also provided
them with a more orderly and expeditious process for resolving impasse disputes, with
enhanced certainty as to
when-i.e.,
upon completion
of
the statutorily mandated factfinding
procedures-they
could impose their "LBFO" on the subject
of
the parties' negotiations. (§
3505.7.) Also in 2011, PERB promulgated emergency regulations for administering the
MMBA factfinding process. (Cal. Code Regs., tit.
8,
§§
32802, 32804.)
In 2012, the Legislature amended MMBA section 3504.5, pursuant to Assembly Bill 1606
(Statutes 2012, Chapter 314, effective January
1,
2013 [AB 1606]), in part to expressly codify
the procedures PERB had adopted by emergency and, later, final regulations implementing
AB 646. The Legislature deemed the 2012 amendments
as
technical and clarifying
of
existing
lanr
	l
	VY• ('b;d\
	.I.	
'	
•)
Previously PERB Regulation 32802, subdivision (e
),
prohibited an appeal
of
a determination
of
the sufficiency
of
a factfinding request. Effective October
1,
2013, PERB's regulations have
been modified to delete subdivision (e), and now permit an appeal by either party to the Board
itself by any party aggrieved by a factfinding determination.
It
is also noted that although the use
of
PERB
's
form, titled "MMBA Factfinding Request" is
not required, the form, under Type
of
Dispute, lists as examples all
of
the following: "initial
contract, successor contract, reopeners, effects oflayoff, other."
b. 	A Written Declaration
of
Impasse
Both MMBA section 3505.4, subdivision (a), as amended by AB 646, and PERB Regulation
32802, subdivision (a)(2), as adopted by PERB to administer the new factfinding procedure
required by AB 646, provide that
if
the dispute was not submitted to mediation,
12
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.
11
· The legislative history does not evidence the Legislature's intent to provide that
negotiations for a new or successor MOU are the only types of disputes that can be submitted
to factfinding. 	If the Legislature had wanted to exclude factfinding for all disputes other than
for an MOU, it could have expressly included a provision to that effect, but failed to do so.
Moreover, generally, the statements
of
the author
of
legislation are not determinative
of
legislative intent as there is no guarantee that others in the Legislature shared the same view.
(San Mateo City School District
v.
Public Employment Relations Board (1983) 33 Cal.3d 850,
863.) 
12
There is no evidence in this case indicating that the parties utilized, or intend to
utilize, mediation to resolve the current dispute.

SA-IM-136-M
November 14, 2013
Page 12
evidence	As noted previously, it appears from undisputed testimony and documentary 	in the
record
of
this case that the County has gone forward with the implementation
of
its two
proposals. For present purposes, this evidence is deemed to be or to include a "written notice
in any event, clear from
	of
declaration
of
impasse" within the meaning
of
section 3505.4. It is,
undisputed testimony and documentary evidence in the record that the parties are, in fact, at
impasse in their current negotiations.
B. Res Judicata/Collateral Estoppel Do Not Apply in This Matter
The County cites the decision
of
Boekin
v.
Philip Morris
USA, Inc.
(2010) 48 Cal.4th 788,
in
support
of
its assertion that SEIU is "barred" from filing the instant Request under the doctrine
of
"res judicata." In that case, the Supreme Court noted,
As generally understood, '[t]he doctrine
of
resjudicata gives certain conclusive
effect to aformer judgment in subsequent litigation involving the same
controversy.'
...
The doctrine 'has a double aspect.'
...
'In its primary aspect,'
commonly known as claim preclusion, it 'operates as a bar to the maintenance
of
a second suit between the same parties on the same cause
of
action.'
...
'In
its secondary aspect,' commonly known as collateral estoppel, '[t]he prior
action	judgment ... "operates"' in
'a
second suit
...
based on a different cause
of
... "as an estoppel or conclusive adjudication as to such issues in the second
'The	action as were actually litigated and determined in the first action."
...
prerequisite elements for applying the doctrine to either an entire cause
of
action
or one or more issues are the same: (1) A claim or issue raised in the present
prior	action is identical to a claim or issue litigated in a prior proceeding; (2) the
proceeding resulted in a final judgment on the merits; and (3) the party against
whom the doctrine is being asserted was a party or in privity with a party to the
prior proceeding."'
(Id. at pp. 797-798, emphasis in the original.) None
of
the required elements for "res judicata"
or "collateral estoppel" appear to have been met in this case because: as
of
today's date, no
"final judgment" has been issued in County
of
Riverside
v.
PERE; SEJ[l, Local
721
(Case No.
1305661); SEIU, Local 521 is a separate and distinct entity from SEIU, Local 721, and	RIC
therefore the parties are not the same; and since the County has imposed the terms
of
its LBFO
a row, it is unclear from the record whether SEIU and the County were	two years in
negotiating terms
of
a successor agreement or side/single issues.
13
13
PERB makes no determination as to whether the parties were in fact engaged in
"successor" negotiations. Rather, PERB does not make such determinations with respect to the
subject matter of a factfinding.

SA-IM-136-M
November 14, 2013
Page
13
Determination
Applying the precedent discussed above, PERB concludes that the factfinding procedures set
forth in MMBA section 3505.4 et seq. are applicable under the particular facts
of
this case.
Given the specific facts
of
this case, PERB determines that SEIU's Request satisfies the
requirements
of
MMBA section 3505.4 and PERB Regulation 32802, subdivision (a)(2).
Therefore, SEIU's Request will be processed
by
PERB.
Next Steps
Each party must select its factfinding panel member and notify this office in writing
of
his/her
name, title, address
a.11.d
telephone number no later than November 19, 2013. 14
Service and
proof
of
service are required.
The resumes
of
seven factfinders, drawn from the PERB Panel
of
Neutrals, are being provided
parties via electronic mail.
15
The parties may mutually agree upon one
of
the seven;
or
	to the
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 November 19, 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 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.)
14
This deadline, and any other referenced, may be extended by mutual agreement
of
the
parties. 
15
The seven neutrals whose resumes are being provided are: Ron Hoh, Jerilou Cossack,
John LaRocco, Catherine Harris, John Moseley, William Gould, and Katherine Thomson.

SA-IM-136-M
November 14, 2013
Page
14
business	A document is considered "filed" when actually received during a regular PERB 	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
business together with a Facsimile Transmission Cover Sheet which meets the	the close
of
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
an
	If
the County appeals this determination, the Union may file with the Board 	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
authorized to be filed herein must also be "served" upon all parties to the	All documents
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
A document	deposited in the mail or deposited with a delivery service and properly addressed.
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
writing and filed with the Board at the previously noted address. A request for an extension	in
must be filed at least three (3) calendar days before the expiration
of
the time required for
of
	filing the document. The request must indicate good cause for and, if known, the position
other party regarding the extension, and shall be accompanied by proof of service of the	each
request upon each party. (Cal. Code Regs., tit. 8, § 32132.)
sw~ar_o0Wendi L. Ross
Deputy General Counsel