Court OK’s Single-Issue MMBA Factfinding

April 4, 2016 by Susan Garea

A California Court of Appeal has rejected employer challenges to Meyers-Milias-Brown Act factfinding.  AB 646 enables a union to require an employer to participate in advisory factfinding before an employer can unilaterally impose its last, best and final offer.  Since the enactment of the MMBA factfinding procedure (AB 646), the Public Employment Relations Board has adopted the position forwarded by unions, that the factfinding process is available not only at impasse in negotiation over a memorandum of understanding (MOU), but also when impasse is reached over any negotiable matter, be it effects bargaining or a single issue.  Public sector employers covered by the MMBA have urged that factfinding is only available for an impasse arising from MOU negotiations.  And some employers have even attacked the legitimacy of the law itself.

The San Diego Housing Commission and the County of Riverside each appealed to court PERB mandates to proceed to factfinding after reaching impasse during effects bargaining.  The San Diego case involved the layoff of two employees, and the Riverside case involved a new background check policy.  Both superior courts sided with the employers against PERB and held that factfinding was unavailable in so-called “single issue” impasses.  PERB appealed those rulings, and the appeals were consolidated.

In its March 30, 2016 decision, the court of appeal overturned the lower court rulings.  The court ruled that AB 646 factfinding applies to “impasse arising during the negotiation of any bargainable matter”; including, so-called “single issue” impasses.  The court also rejected the County of Riverside’s challenge to AB 646 factfinding as a violation of the home rule doctrine, as it involves advisory, not binding, factfinding.

In deciding the single-issue question, the court deferred to PERB’s interpretation of AB 646 and found that it was justified by the fact that the MMBA does not expressly limit factfinding to impasse arising out of MOU negotiations.  The court also noted that this application is consistent with PERB’s application of factfinding under EERA and HEERA.

We will be watching to see if Riverside County or the San Diego Housing Commission petitions for review in the California Supreme Court.  Factfinding remains an important tool for unions in resolving bargaining disputes, and an employer that refuses to comply with single-issue factfinding proceeds at its own peril and risks being ordered to pay PERB’s attorneys’ fees.

 

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