The State of Factfinding under the MMBA

County of Riverside v. PERB (2016) 246 Cal.App.4th 20, review denied (July 13, 2016) and San Diego Housing Commission v. PERB (2016) 246 Cal.App.4th 1, review denied (July 13, 2016)

For those of you who haven’t heard, the fight over whether the MMBA requires factfinding over single issues is over (at least for now). In a prior post, I discussed the two court of appeal decisions that issued on March 30, 2016 and ruled in PERB’s favor. Both employers filed petitions for review with the California Supreme Court. Unfortunately, the Supreme Court denied review in both cases on July 13, 2016.  Accordingly, these two cases—both published—have become final.

So what’s next for MMBA employers now that we’re stuck with factfinding? In my opinion, since we have to go to factfinding, the next battle is to make sure that the factfinding process is fair. To have a fair process there has to be a fair panel of neutral factfinders. So one of my goals in the coming months is to take a close look at PERB’s factfinding panel. To get on PERB’s list, a factfinder must submit an application to PERB and demonstrate that he or she is “neutral.” When I last checked, there were about 45 individuals on PERB’s list.  So these 45 individuals are the ones from which PERB will generate the random list of seven factfinders when there is a request.

In addition to tracking PERB decisions, I try to review all the factfinding decisions that issue. Since AB 646 was enacted to the present, there have been 82 factfinding decisions issued under the MMBA. Those 82 decisions have been heard by a group of 33 factfinders. (See chart below) 12 factfinders accounted for about 65% of those 82 decisions. The top 7 factfinders accounted for 46% of all cases. So a large percentage of cases are being heard by a relatively small group of factfinders.

Don’t get me wrong, I think these factfinders are selected often for a reason. I know most of them personally and their reputations are well-deserved. But to have a fair panel you want to make sure you have people of various backgrounds, including both former union and management advocates. So this is an issue that those of us in management need to pay attention to in the coming years.

For those of you involved in MMBA factfinding, you might find the chart below interesting.  It shows the number of MMBA decisions issued by each factfinder from January 1, 2012 to the present.

First Name Last Name Number of Decs
Paul Roose 9
Tony Butka 7
David Hart 6
Robert Bergeson 4
Walter F. Daugherty 4
Robert Hirsch 4
John Kagel 4
Bonnie Prouty Castrey 3
Andrea Dooley 3
John G. Moseley 3
David Weinberg 3
Barry Winograd 3
Christopher Burdick 2
Douglas Collins 2
Jerilou H. Cossack 2
Catherine Harris 2
David G. Miller 2
Daniel Saling 2
Philip Tamoush 2
Carol Vendrillo 2
Charles Askin 1
Don Becker 1
Norman Brand 1
Paul Crost 1
Ruth Glick 1
Ronald Hoh 1
Walter Kawecki 1
John B. LaRocco 1
Elinor S. Nelson 1
C. Allen Pool 1
Wilma Rader 1
Katherine Thomson 1
John F. Wormuth 1
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