PERB: Factfinding Powers Apply to Peace Officers and Management

City of Redondo Beach (2014) PERB Decision No. A409-M (Issued on 4/09/14)

Since 2001, PERB has had jurisdiction to enforce the MMBA with some limited exceptions.  Two of those exceptions involve peace officers under Penal Code section 830.1 and management employees.  These two groups are not subject to PERB’s traditional powers even though they are subject to the MMBA.  (Gov. Code, §§3509(f); 3511.)  But how does this system work now that there is factfinding?  Especially with the change that allows PERB’s decision to grant or deny a factfinding request to be appealed to the Board?

In this decision, PERB held that its authority to appoint a factfinder does not derive from MMBA section 3509.  “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. Because there are no exceptions to the Board’s powers in MMBA section 3505.4, the Board concluded that:

[T]he 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.

Comments:

  1. As weird as it may seem, this decision confirms that peace officers and management employees still go to PERB to get a factfinder appointed, even though they do not go to PERB for anything else under the MMBA.
  2. This system also presents a potential trap for employers.  If an employer believes that PERB has improperly granted a factfinding request by a union for peace officers or management, it can appeal the decision to PERB under PERB Regulation 32360.  However, suppose the employer simply refuses to comply with what it believes is an erroneous order.  Arguably, the union has to go to court to enforce factfinding and/or assert an unfair practice.  But once in court, can the employer argue that the factfinding order was improper as its defense?  It’s an interesting question…
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