Today the Court of Appeal issued its long-awaited decision on the scope of AB 646 factfinding under the MMBA. Since the enactment of AB 646, PERB has taken the position that factfinding is available for any dispute over a negotiable matter, even if the dispute arises outside of negotiations for a memorandum of understanding (MOU). Employers, on the other hand, asserted that AB 646 factfinding only applies to disputes arising out of MOU negotiations. According to employers, factinding would not be available, for example, in a dispute over negotiable effects arising out of a management decision.
Two superior courts issued rulings against PERB and in favor of employers. Those cases involved the County of Riverside and the San Diego Housing Commission. Both those superior court rulings were appealed and eventually consolidated in division one of the fourth district court of appeal.
In its decision today, the court overturned the underlying superior court rulings and held that factfinding under AB 646 applies to “impasses arising during the negotiation of any bargainable matter.” In reaching its decision, the court relied upon, and indeed gave great deference to, PERB’s decision in County of Contra Costa (2014) PERB Decision No. Ad-410-M (Contra Costa). In its Contra Costa decision, PERB set forth its rationale for interpreting AB 646 to apply to all bargaining disputes. Notably, the Contra Costa decision was issued by PERB after the disputes arose with the County of Riverside and San Diego Housing Commission. One of the arguments made to the court was that the Contra Costa decision should not be given deference since it was written to justify PERB’s position in these cases. Unfortunately, the court believed that it had to defer to PERB’s interpretation in Contra Costa despite the fact that the decision was issued after these disputes arose.
In terms of its rationale, the court appeared to give great weight to the fact that the language of AB 646 does not contain any language expressly limiting its factfinding provisions to impasses occurring during MOU negotiations. The court also noted that the criteria under AB 646 are nearly identical to the criteria under EERA and HEERA. The court accepted PERB’s contention that under EERA and HEERA, factfinding has always been required for all disputes. On this latter point, it was noted to the court that although there are some PERB decisions under EERA and HEERA involving single issues outside of MOU negotiations, there has never been a PERB decision expressly finding that factfinding applies outside of MOU negotiations. Arguably, the fact that the parties in those cases never objected does not establish precedent. Unfortunately, the court felt that PERB had demonstrated a consistent past practice in its interpretation of factfinding and deferred to that fact.
- PERB has won round 2 of this fight. We’ll have to wait to see if either the County of Riverside or the San Diego Housing Commission petition for review in the Supreme Court.
- What should employers do? Given PERB’s position that factfinding is required, the safest course of action for an employer confronted with a factfinding request on an issue arising outside of MOU negotiations is to comply with the request. That’s always been the case given PERB’s position and nothing has changed.
- For me, the disappointing aspect of these cases is the fact that the court felt it had to give deference to PERB’s interpretation of AB 646. Ironically, the court recognized that statutory interpretation is ultimately a judicial function. But it nevertheless felt compelled to defer to PERB. Perhaps the Supreme Court will not feel as compelled to offer such deference….