County of Contra Costa (2014) PERB Decision No. A410-M (Issued on 4/16/14)
I wrote an alert on this case for CalPELRA last month. CalPELRA alerts are usually available to the general public after a few weeks, so if you’re interested it should soon be available to read here.
In this decision, PERB held that factfinding under the MMBA is available for any bargaining dispute, not just disputes over a Memorandum of Understanding (MOU). This is not a new position for PERB, but is consistent with the position PERB has taken since the passage of AB 646. For example, PERB is in litigation with the County of Riverside and the San Diego Housing Commission over this exact issue. Significantly, PERB lost at the trial court level in both cases. In both cases, the trial court held that MMBA factfinding only applies for MOU negotiations and that factfinding does not apply to single-issue disputes.
So this decision is not unexpected. It’s probably overdue since PERB has never formally set forth its position in a precedential decision. PERB probably also felt the need to issue a precedential decision in order to support its position in the appellate litigation with the County of Riverside and the San Diego Housing Commission.
The PERB decision sets forth, and extensively discusses, the various arguments over the scope of factfinding. I just want to focus on one of them. In my opinion, PERB’s main argument that factfinding should cover all bargaining disputes is that this has been the rule under EERA and HEERA for over 30 years. However, let’s take a closer look at that. In the decision, PERB cites to three cases in support of the proposition that factfinding under EERA and HEERA applies to all disputes: Moreno Valley Unified School District (1982) PERB Decision No. 206 (Moreno Valley), Redwoods Community College District (1996) PERB Decision No. 1141 (Redwoods CCD), and California State University (1990) PERB Decision No. 799-H. The decision goes on to discuss the facts in each of these cases. However, I believe a careful review of these cases reveals that they do not provide as strong as support as PERB believes. For example, the main issue in Moreno Valley was whether a unilateral change during bargaining constituted a per se violation of the duty to bargain. The employer in that case also asserted that its duty to bargain “effects” was only to give notice and the opportunity to bargain, but did not include a requirement to bargain to impasse. Thus, the decision did not directly address the scope of factfinding.
Similarly, the scope of factfinding was not an issue in Redwoods CCD and California State University. Certainly, the language in those cases assumes that factfinding would apply to the limited issues in dispute, but the scope of factfinding was not at issue. One of the tenets of interpreting decisional authority is that a judicial decision is only authority for what is actually decided. (See, e.g., Powers v. City of Richmond (1995) 10 Cal.4th 85, 147 [“Judicial decisions are of course authority for what they actually decide; we do not readjust their holdings to incorporate claims not asserted or considered therein.”].) Thus, if there is a decision in which neither party objects to factfinding on a single issue, but the legal issue involves something different, that decision doesn’t necessarily bar subsequent parties from raising the factfinding issue. I believe that is the situation here.
PERB also notes in the decision that there have been many factfinding decisions that do not involve MOU negotiations. I don’t doubt that. I also don’t doubt that many practitioners under EERA and HEERA may have agreed to go to factfinding on a single issue outside of MOU negotiations. Perhaps they just assumed that factfinding covers any dispute or just never thought to challenge it. But again, if both parties consented to that and neither party raised an objection, that decision doesn’t necessarily stand as “authority” that prevents me from raising an objection later.
So I understand why PERB is relying heavily on Moreno Valley, Redwoods CCD, and California State University. But because those cases do not directly address the issue of the scope of factfinding, I think that PERB may be relying on them too much.
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