On March 14, 2016, the Court of Appeal for the Fourth Appellate District, Division 1 (San Diego) heard oral arguments in two cases challenging the Public Employment Relations Board’s (PERB) interpretation of factfinding procedures, which were put into place by Assembly Bill 646 (AB 646).  The specific issue in County of Riverside v. Public Employment Relations Board and San Diego Housing Commission v. Public Employment Relations Board was whether factfinding under the Meyers-Milias-Brown Act (MMBA) is limited to comprehensive negotiations related to a new or successor memorandum of understanding (MOU) or whether it broadly applies to all bargaining impasses regarding any matter within the scope of representation.  For more background on AB 646, please see Factfinding Under AB 646: Impacts and Lessons Learned.

PERB argued that AB 646 did not limit factfinding procedures to impasses in negotiations for comprehensive MOUs.  PERB argued the impasse resolution procedures provided in the Educational Employment Relations Act (EERA) and the Higher Education Employer-Employee Relations Act (HEERA), statutory schemes, both of which are similar to the MMBA, apply to all bargaining disputes.  PERB presumed that the Legislature knew this when it passed AB 646, and reasoned that it could have drafted specific language if it intended for MMBA factfinding to apply only to new or successor comprehensive MOUs.

The San Diego Housing Commission argued that the factfinding language in the MMBA was different enough from the factfinding language in the EERA and HEERA to show the Legislature had a different intent in enacting each statute.  It also argued that the author’s comments to AB 646 stated that the genesis of the bill was to provide factfinding “where efforts to negotiate a collective bargaining agreement have failed.”

The County of Riverside (County) argued that the text, placement, and structure of AB 646’s additions to the MMBA show it was only meant to incorporate comprehensive MOU negotiations.  It supported that argument by pointing out that the Legislature deliberately inserted the provisions of AB 646 (Government Code sections 3505.4, 3505.5, and 3505.7) after Government Code section 3505.1, which discusses the definition of an MOU, rather than after Government Code section 3504, which in turn discusses the scope of representation.  The County also argued the practical effects of allowing factfinding for all bargaining impasses would be a 90-day to six-month delay for completion of factfinding.  The County also made a Constitutional challenge to AB 646.  It argued that AB 646’s delegation to PERB factfinding is delegation to a private body to “make, control, appropriate, supervise, or interfere with” county money or municipal functions in violation of Article 11, Section 11 of the California Constitution.

Oral arguments were made before Presiding Justice Judith McConnell, Associate Justice James McIntyre, and Associate Justice Cynthia Aaron.  The Justices focused their questions on: (1) the statutory interpretation of the plain language of AB 646; (2) the practical effects of applying PERB factfinding for every bargaining impasse within the scope of representation; and (3) the Constitutional challenge to AB 646.

This issue is of significant importance for all public agencies subject to the MMBA.  Until the Court of Appeal issues a decision, PERB will continue to interpret MMBA factfinding procedures as applying to any bargaining impasse.  LCW will update you when the Court of Appeal renders it written decision.

If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.