City & County of San Francisco (2015) PERB Decision No. A429-M (Issued on 10/15/15)
In this case, the City and County of San Francisco (City) filed an appeal over an order by the Office of the General Counsel to proceed to factfinding on a single-issue dispute. The City urged PERB to reconsider its decision in County of Contra Costa (2014) PERB Order No. Ad-410-M (Contra Costa), in which it held that MMBA factfinding applies to any dispute, even a single-issue dispute that arises outside of contract negotiations. The Board held that, “None of [the City’s] arguments persuade us to abandon our previous determination that both the plain language of the statute and its legislative history indicate that the Legislature intended to make MMBA factfinding available for any “differences” over any matter within the scope of representation, so long as the employee organization’s request is timely and the dispute is not subject to one of the statutory exceptions set forth in MMBA …”
Interestingly, although this case was authored by Board Member Banks, it was joined by Chair Martinez and Board Member Gregersen. The Contra Costa decision was joined by all four Board members at that time, but that was before Member Gregersen joined PERB. With this case, all five Board members have now joined in PERB’s position on factfinding.
While this case doesn’t break any new legal ground, it does provide an opportunity to talk about the status of factfinding at PERB. The fact that PERB is sticking with its decision in Contra Costa is not surprise. The real battle is going to be in the courts of appeal. There are currently two appellate cases pending with this issue: 1) County of Riverside v. PERB (Court Case No. E060047); and 2) San Diego Housing Commission v. PERB (Court Case No. D066237). In the San Diego Housing Commission case, the court recently asked the parties if they wanted oral argument, which usually is a sign that the court is ready to issue a decision. The Commission requested oral argument, but no date has been set.
The County of Riverside case is also fully briefed. Recently, the Supreme Court ordered the Riverside case transferred from Division 2 of the 4th District Court of Appeal, to Division 1 in San Diego. Division 1 is the same division that is hearing the San Diego Housing Commission case. So it looks like there may be movement in one or both of these cases. If so, we may get an appellate decision on this issue soon.