This post was authored by Erik Cuadros and Adrianna E. Guzman

When it comes to negotiations, sometimes, as we all know, the parties cannot reach agreement, despite everyone’s best efforts.  At that point, either party may declare impasse.  That written declaration of impasse, however, triggers certain statutory impasse procedures, and could lead to factfinding.

But unlike some of the other statutes under PERB’s jurisdiction, the Meyers-Milias-Brown Act (MMBA) only allows an exclusive representative to request factfinding.  To obtain factfinding under the MMBA, all the recognized employee organization has to do is file a request form with PERB within the following time periods:

  1. Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant to either the parties’ agreement to mediate or a mediation process required by the public agency’s rules; or
  2. If the dispute is not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse.

Yet despite the ease in filing a request for factfinding, and despite the clear language of the statute, employee organizations occasionally miss the deadline.  In City of Redondo Beach and Lassen County In-Home Supportive Services Public Authority, PERB rejected requests that it take a more lenient approach to these deadlines.

On April 26, 2016, PERB reiterated that if an employee organization wants mandatory factfinding under the MMBA, it must strictly comply with those deadlines.   In Santa Cruz Central Fire Protection District (2016) PERB Order No. Ad-436-M (a case handled by LCW attorneys, Jack Hughes and Adrianna E. Guzman), PERB cited to its prior decisions, and made clear the following points:

  1. A willingness to discuss the possibility of mediation is not the same thing as an agreement to mediate;
  2. If you want to “undeclare” impasse, then say so in clear and unambiguous terms, like “we undeclare impasse”;
  3. In MMBA cases, PERB will not investigate facts to determine whether an actual impasse exists, but will only look at the clear and unambiguous statutory and regulatory window periods to determine whether a factfinding request is timely.

In Santa Cruz Central Fire Protection District, the District and the Professional Firefighters, IAFF Local 3605 (“Union”) engaged in several months of negotiations for a successor MOU, but could not reach an agreement.  On May 29, 2015, the Union gave the District its written declaration of impasse, thus, triggering the deadline to request factfinding.  On June 1, 2015, the Union sent a follow-up letter informing the District that it was willing to return to the table to “break the impasse” or select a mediator.  It also advised that if the District did not agree to either option, it would request factfinding.

The District responded on June 18, 2015. Although it did not agree to return to the table, it did acknowledge that the parties were at an impasse.  The District also confirmed the impasse meeting (required under the District’s local rules) scheduled for June 30, 2015—two days after the 30-day deadline to request factfinding.  On the issue of mediation, the District advised that it was “willing to discuss the possibility [of mediation] but hope[d] that the Parties [would] break their impasse or reach agreement [during] the June 30 meeting.”

On June 25, 2015, the Union confirmed the scheduled meeting and informed the District that it had decided that “it would be premature to submit a Request for Factfinding at this time.”  The Union did not, however, withdraw or “undeclare” its prior declaration of impasse.  Instead, it wrote that it understood the District’s June 18 letter to mean that the Union’s “Declaration of Impasse does not become operative until after the impasse meeting.”   The District did not respond to the Union’s statement.

During the June 30, 2015 impasse meeting, the District presented its last, best, and final offer, and the Union presented a modified “supposal” from what it had presented two months earlier.  The parties did not reach an agreement at that meeting.  Instead, the parties held a second impasse meeting on August 1, 2015, but were still unable to reach an agreement.    When that meeting concluded, the District informed the Union that it was not interested in mediation.

On August 18, 2015, the Union sent the District a new written declaration of impasse.  The Union claimed that this new declaration was necessary because the parties meeting on June 30, 2015 broke the impasse.  On September 3, 2015, the Union filed its factfinding request with PERB.

After considering the Union’s request and the District’s opposition, PERB’s Office of General Counsel (“OGC”) determined that since the parties had not submitted their dispute to mediation, the Union should have filed its factfinding request within 30 days of its declaration of impasse.  The OGC denied the Union’s request because it was untimely.  According to the OGC, the Union’s May 29, 2015 written declaration of impasse triggered the 30-day window period for the Union to file its factfinding request.

In appealing the OGC’s determination, the Union sought to blame the District for the Union’s failure to timely file its request.  The Union claimed that the District’s “agreement” to mediate the impasse forced the Union to hold off on requesting factfinding until a mediator was selected or appointed.  Thus, the Union claimed, the deadline to request factfinding had not yet been triggered. The Board, however, did not buy that argument, and pointed out that the Union provided no evidence of an agreement to submit the impasse to mediation.  As the Board explained, the District’s June 18 letter expressing its “willingness” to discuss the “possibility” of mediation did not demonstrate a clear agreement to mediate.  Absent such an agreement, “it was incumbent on the [Union] to file its request for factfinding during the initial 30-day window period.”  The Board noted that that Union chose not to do so.

The Union next claimed that its request was timely because it had twice “undeclared” impasse.  It argued that it first “undeclared” impasse on June 1 when it informed the District that it would proceed to factfinding only if the District declined its invitation to return to the table or its request to select a mediator.  It claimed that it “undeclared” impasse a second time on June 25, when it wrote the District that its declaration of impasse did not become operative until after the impasse meeting.  The Board rejected both arguments, and found that neither letter embodied a “clear withdrawal” of the Union’s prior impasse declaration.

For its final argument, the Union claimed that its modified “supposal” broke impasse on June 30, thereby nullifying its May 29 declaration of impasse.  Again, the Board rejected the Union’s claim.  The Board explained that under the MMBA, PERB must accept a declaration of impasse at face value and is not permitted to investigate the underlying facts to determine whether an impasse actually exists for purposes of factfinding.

So what does this recent ruling regarding MMBA factfinding tell us?  Well, at least a few things.  This ruling sends a clear signal to both unions and local agencies, that once a written declaration of impasse has been issued, the statutory window period for filing factfinding requests begins. A union’s mistaken belief that it thought the deadline was put on hold, or that it thought there was an unspoken understanding that impasse was broken, will not garner that union any relief from the statutory deadlines. PERB’s ruling also tells us that withdrawing an impasse declaration requires nothing more than a simple statement to the other party that the impasse declaration is withdrawn.  Finally, PERB’s ruling tells us that to ensure there is no confusion as to whether impasse has been declared or undeclared, or whether there has been or has not been an agreement to mediate, an employer should make sure its communications are clear and concise as to its position on impasse and mediation.