PERB: Mediation Not Required Before Factfinding Under MMBA

County of Santa Clara (2020) PERB Dec. No. A483-M (Issued on 12/17/20)

In this case a union declared impasse in its negotiations with a county and requested factfinding under MMBA section 3505.4. The county’s local rules, however, require that the parties engage in mediation when there is an impasse in negotiations. Since the union did not request mediation, the county challenged the union’s request to PERB for factfinding. The Office of the General Counsel approved the union’s factfinding request and the Board affirmed.

In its decision, the Board emphasized that its review of a factfinding request is limited to determining whether the request satisfies the procedural requirements of MMBA section 3505.4 and PERB Regulation 32802. According to the Board, its inquiry is limited to whether (1) there was a written declaration of impasse from either party, or the appointment or selection of a mediator, and (2) the factfinding request was timely filed after one of these triggering events. The Board also rejected the county’s reliance on the statutory language of MMBA section 3505.4 and instead relied upon the language of PERB Regulation 32802. That regulation, according to the Board, does not require a dispute to be submitted to mediation before factfinding.

Comments:

When factfinding was introduced to the MMBA with the passage of AB 646 there was an immediate dispute over whether mediation was required before a union could request factfinding. Specifically, the language of AB 646 created an ambiguity that suggested that mediation had to occur before factfinding, even if mediation was not required by the local rules. PERB then passed PERB Reg. 32802 as an emergency regulation to clarify that mediation was not required before factfinding. Then in 2012, the Legislature passed AB 314 which largely codified PERB Reg. 32802. A bill analysis of AB 314 stated: “However, the author argues that whether AB 646 requires that mediation is a necessary precondition to request fact-finding remains unresolved. The author states that AB 1606 clarifies that fact-finding is available to employee organizations in all situations, regardless of whether the employer and employee have engaged in mediation.”
My recollection of this issue is that everyone was focused on situations where the local rules did not require mediation. It didn’t occur to me that AB 314 would allow a union to skip mediation when it is expressly required by the local rules. I don’t recall anyone suggesting such a result.
While the Board ordered the parties to factfinding that doesn’t mean the union’s actions are without risk. The Board expressly stated that the county can file an unfair practice charge over the union’s violation of the local rules. If the county prevails on the unfair practice charge any factfinding decision may have to be vacated and the parties may have to redo the proceedings. So even though the union’s request for factfinding was granted, its actions are risky.