Superior Court: AB 646 Only Applies To Contract Negotiations

County of Riverside v. PERB (SEIU Local 721) (Riverside County Superior Court Case No. RIC 1305661)

The scope of factfinding under the MMBA has been hotly contested since AB 646 took effect on January 1, 2012. Employers have asserted that factfinding should only apply to disputes arising from contract negotiations, and not, for example, to disputes over effects bargaining. PERB, on the other hand, has consistently taken the position that factfinding is not limited to contract negotiations but applies to all disputes arising from mandatory bargaining. One of the first challenges to PERB’s position was by the San Diego Housing Commission. There, PERB ordered the employer to go to factfinding over effects bargaining resulting from layoffs. That case is pending. (See my blog post on that case here.)

Recently, the County of Riverside also challenged PERB’s assertion that factfinding applies outside of contract negotiations. In the Riverside case, there was an MOU in place. An issue arose over new DOJ regulations and their effect on background investigations of certain IT employees. The union declared impasse and requested that PERB order the parties to factfinding. PERB processed the request and assigned the dispute to factfinding. The County then challenged PERB’s factfinding order in Superior Court.

One fascinating aspect of this case is that PERB brought an anti-SLAPP motion against the County for challenging PERB’s factfinding order in Superior Court. That motion will be the subject of a future blog post. In this post I want to highlight the Court’s order in favor of the County. That order states:

The Motion is granted because PERB’s interpretation that the post-impasse factfinding procedures of AB 646 (California Government Code Sections 3505.4, 3505.5 and 3505.7) apply to disputes that arise from negotiations of single meet and confer issues arising during the tenure of a valid MOU is clearly erroneous. The legislative history shows clear intent that the factfinding procedures of AB 646 apply after impasse after collective bargaining for a new or successor MOU.

The Court also granted the County’s request for an injunction, which includes the following orders:

PERB shall dismiss other pending (MMBA) factfinding cases that arise from disputes after negotiations of single meet and confer issues and not from negotiations after impasse after collective bargaining for a new or successor MOU; and,

PERB shall be prohibited from granting any requests for (MMBA) factfinding relating to a dispute that arises after negotiations of a single meet and confer issue and which does not arise from negotiations after impasse after collective bargaining for a new or successor MOU …

Comments:

There is no doubt in my mind that PERB will appeal this ruling. So until we get a published appellate decision there will continue to be some uncertainty. However, this is a fantastic win by the County of Riverside.
The great thing about this win is that it arose before PERB’s new factfinding regulations took effect on October 1, 2013. Under the new regulations, PERB’s action on a request for factfinding is now appealable to the Board. Thus, if an employer took PERB to court over a factfinding order today, PERB would likely argue failure to exhaust administrative remedies since an appeal is now possible.