Readers will be aware that in 2011 the Legislature passed AB 646 which, after it was signed by the Governor, made post-impasse factfinding part of the Meyers-Milias-Brown Act (MMBA)—if the union requests it. Factfinding had previously only been part of the Educational Employment Relations Act (EERA) and Higher Education Employer-Employee Relations Act (HEERA).

Under AB 646, which became Government Code § 3505.4, if a public agency and a union reach an impasse in their negotiations, the union may require the public agency to submit the parties' differences to a factfinding panel for advisory findings and recommendations before the public agency may unilaterally impose its last, best, and final offer. The public agency is NOT bound by the findings and recommendations of the panel.

One of the unsettled issues since the passage of AB 646 was whether factfinding applies only to negotiations for a new master MOU or also to all other non-main table negotiations, such as any proposed interim changes regarding subjects within the scope of bargaining (in the absence of a zipper clause), as well as effects bargaining (issues where the change itself is not negotiable, but the impacts of those changes are).

PERB believes factfinding applies to any negotiations.  Yesterday, in opinions in two companion cases addressing the issue, the Fourth District Court of Appeal agreed with it.  County of Riverside v. Public Employment Relations Board involved effects bargaining about new background checks for new IT employees.  San Diego Housing Commission v. Public Employment Relations Board involved effects bargaining over the layoff of two employees.

The same three-judge panel favored PERB for 4 reasons.  First, and most importantly, it found no language in AB 646 limiting the application of factfinding to only main table negotiations. Second, analogous provisions of EERA and HEERA apply to non-main table negotiations.  Third, the legislative history supported the ruling.  And fourth, making factfinding apply broadly is consistent with the parties’ continuing obligation to bargain.

Impact of the decision: Potentially huge. The issues in these cases—layoffs for two employees and background checks—are relatively low level.  So going forward employers will have to afford non-main table negotiations equal dignity to main table. They will not be able to implement an LBFO without going through the added step of factfinding on routine meet and confer matters, should the union elect to utilize the factfinding process.

(Bear in mind that different rules apply to employees who are subject to binding interest arbitration.)

The two employers almost certainly will ask the State Supreme Court to review the case and there is a good chance review will be granted.

If you have any questions about this blog, please contact Gregg Adam at 415.266.1801 or gregg@majlabor.com.