McCONNELL, P. J.—
This appeal requires us to decide whether the provisions in the Meyers-Milias-Brown Act (Act) (Gov. Code, § 3500 et seq.)
The San Diego Housing Commission (Commission) is a local public agency subject to the Act. (§ 3501, subd. (c).) Service Employees International Union, Local 221 (Union), is an employee organization and the exclusive representative of certain Commission employees. The Public Employment Relations Board (Board) is a quasi-judicial administrative agency modeled after the National Labor Relations Board and administers the Act. (County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 916 [157 Cal.Rptr.3d 481, 301 P.3d 1102] (County of Los Angeles); §§ 3501, subd. (f), 3509, subd. (a), 3541, subd. (g).)
After the Commission and the Union reached an impasse in their negotiations over the effects of the Commission's decision to lay off two employees represented by the Union, the Union made a written request to the Board for the parties' dispute to be submitted to a factfinding panel under section 3505.4,
The Commission subsequently filed a motion for summary judgment, arguing the Commission was entitled to a declaratory judgment and writ of mandate as a matter of law because the Act's factfinding provisions applied only to an impasse arising during the negotiation of a comprehensive MOU, not to an impasse arising during the negotiation of a discrete, bargainable issue. The court agreed with the Commission's interpretation of the Act and granted the Commission's motion. The court then issued a judgment declaring the Act's factfinding provisions only apply to an impasse arising from the negotiation of a new or successor MOU and do not apply to an impasse arising from any other negotiations. The court also issued a writ of mandate
The resolution of this appeal turns on the proper interpretation of the Act's factfinding provisions. The interpretation of a statute presents a question of law, which we review independently. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189 [195 Cal.Rptr.3d 220, 361 P.3d 319]; Santa Clara County Correctional Peace Officers' Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1026 [169 Cal.Rptr.3d 228] (Santa Clara).)
Before the passage of Assembly Bill 646, if a public agency and a union reached an impasse in their negotiations, the Act permitted the parties to mutually agree to engage in mediation (§ 3505.2), but did not require the parties to engage in factfinding or any other impasse procedure. (Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22, 25-26 [132 Cal.Rptr. 668, 553 P.2d 1140]; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 614, fn. 4 [116 Cal.Rptr. 507, 526 P.2d 971].) If there was no impasse procedure applicable by local law or by the parties' agreement, the public agency could unilaterally impose its last, best and final offer. (Santa Clara, supra, 224 Cal.App.4th at p. 1034.)
Around the time the court entered its judgment, the Board issued a decision addressing the statutory interpretation question at issue in this appeal. (County of Contra Costa (2014) PERB Order No. Ad-410-M [2014 Cal.PERB LEXIS 14].) The Board held the Legislature intended the Act's factfinding procedures to apply "to any bargaining impasse over negotiable terms and conditions of employment, and not only to impasses over new or successor [MOUs]." (Id. at pp. 2-3.) The Board reaffirmed this holding in a subsequent decision. (City and County of San Francisco (2014) PERB Order No. Ad-419-M [2014 Cal.PERB LEXIS 48].)
The Board based its holding on several factors. First, the Act does not contain any language expressly limiting its factfinding provisions to impasses occurring during the negotiation of a comprehensive MOU. (County of Contra Costa, supra, PERB Order No. Ad-410-M at p. 32.) Second, the Board had consistently applied the analogous factfinding provisions in the Educational Employment Relations Act (EERA) (§§ 3548.1-3548.3) and Higher Education Employer-Employee Relations Act (HEERA) (§§ 3591-3593) to all types of bargaining disputes, not just disputes arising in the context of a negotiation for a comprehensive MOU. (County of Contra Costa, at pp. 10, 24-28, 42-43.) Third, interpreting the Act's factfinding provisions to apply to any bargaining disputes is consistent with the legislative history of Assembly Bill 646. (County of Contra Costa, at pp. 34-37.) Finally, interpreting the Act's factfinding provisions to apply to any bargaining dispute is consistent with the parties' continuous duty to bargain on any bargainable issue and prepare an MOU after reaching an agreement. (County of Contra Costa, at pp. 40-42.)
Amici curiae League of California Cities and California State Association of Counties (Amici Curiae) contend the Board's decisions interpreting the Act are entitled to no deference because they were created for the purpose of assisting the Board in this litigation. However, the timing of the Board's decision does not affect the deference we must accord to the decision. (South Bay Union School Dist. v. Public Employment Relations Bd. (1991) 228 Cal.App.3d 502, 506-507 [279 Cal.Rptr. 135] ["[O]ur construction of legal principles can be influenced by other, even later, pronouncements of the administrative agency."].) Further, judicial comity and restraint preclude us from speculating about any ulterior motives the Board may have had in reaching its decision. (See In re Shaputis (2011) 53 Cal.4th 192, 217-218 [134 Cal.Rptr.3d 86, 265 P.3d 253].)
The Commission does not directly contest any of the Board's reasons for broadly interpreting the Act's factfinding provisions, including the most compelling reason — there is no language in the Act expressly limiting the factfinding provisions to particular types of impasses. Instead, the Commission asserts four reasons why, notwithstanding the lack of limiting language in the Act, we should interpret the factfinding provisions to apply only to impasses occurring in the context of negotiations for comprehensive MOUs. First, the Commission points to the list of criteria in section 3505.4, subdivision (d), that a factfinding panel "shall" consider and weigh before reaching its findings and recommendations. (See fn. 6, ante.) In the Commission's view, these criteria — particularly the criteria requiring the consideration of the comparable wages, hours, and working conditions of other public
However, as the Board points out, the criteria listed in section 3505.4, subdivision (d), are virtually identical to the criteria contained in analogous provisions of the EERA. (See § 3548.2, subd. (b).) The only difference between the statutes is that the Act includes a requirement for the factfinding panel to consider local rules, regulations, or ordinances (§ 3505.4, subd. (d)(2)), a criterion not expected to be included in the EERA because the criterion is not generally relevant to public school employment relations. Since at least 2008, the Board has applied the factfinding provisions of the EERA to all types of impasses, not just impasses arising during negotiations of comprehensive MOUs.
Next, the Commission points to the language in section 3505.7 allowing a public agency to implement its last, best, and final offer after exhausting any applicable mediation and factfinding procedures, but precluding the public agency from implementing an MOU. (See fn. 5, ante.) The Commission asserts the Legislature would not have used the "any applicable" language in the statute if it had intended the factfinding procedures to apply to any bargainable dispute. The Commission further asserts the language precluding the implementation of an MOU logically reflects the intent only to apply the factfinding procedures to resolve an impasse arising from the negotiation of an MOU.
One key difficulty with the Commission's position is that the language upon which it relies was part of the Act before the Legislature added the factfinding provisions. The language was derived from the original section 3505.4 with minimal revisions to accommodate the addition of the factfinding provisions.
Likewise, the language precluding the implementation of an MOU is more logically and reasonably construed as a recognition that, at the point a public agency implements its last, best, and final offer, there has not been an understanding or an agreement between the parties to implement. This construction is consistent with section 3505.1, which indicates a binding MOU is the result of a tentative agreement between the public agency's and the union's negotiators that has been adopted by the public agency's governing body.
The Commission also relies on references in Assembly Bill 646's legislative history the Commission believes indicate the Act's factfinding provisions
Finally, the Commission contends the Board's reliance on decisions interpreting the EERA and the HEERA is misplaced because these statutory schemes differ fundamentally from the Act in their treatment of impasse and factfinding. Specifically, the Commission points out that under the Act, the parties must mutually agree to mediation, and under the other statutory schemes, either party may compel mediation. (§§ 3505.2, 3548, 3590.) In addition, under the Act, only a union may initiate factfinding, and under the other two statutory schemes, either party may initiate factfinding after a mediator declares factfinding to be appropriate. (§§ 3505.4, 3548.1, subd. (a), 3591.) Further, under the Act, the parties must pay the cost of mediation and factfinding, and under the other statutory schemes, the Board may be required to absorb some of the costs. (§§ 3505.5, subds. (b) & (c), 3548.3, subds. (b) & (c), 3593, subd. (b).)
While these procedural distinctions indeed exist, the Commission has not explained nor is it apparent how they are relevant to the intended application of the Act's factfinding provisions, much less how they compel a conclusion
Given our resolution of the Board's appeal, we need not decide the Commission's cross-appeal of the court's orders on the Commission's motion for attorney fees and the Board's motion to tax costs. Therefore, we dismiss the Commission's cross-appeal as moot.
The judgment is reversed. The Commission's cross-appeal is dismissed as moot. The matter is remanded to the trial court for further proceedings consistent with this decision. The Board is awarded its costs on appeal.
McIntyre, J., and Aaron, J., concurred.
In 2012, after this action was filed, the Legislature amended subdivision (a) of section 3505.4 to authorize an employee organization to request the parties' differences be submitted to a factfinding panel for advisory findings and recommendations even if the parties had not first attempted to resolve the impasse through mutually agreed upon mediation. The Legislature also added subdivision (e) to section 3505.4, which precludes an employee organization from waiving its right to request a factfinding panel. (Stats. 2012, ch. 314, § 1.) Because the 2012 amendments do not affect the resolution of this appeal, our references to section 3505.4 are to the amended, or current, version of the code section.
Current section 3505.4, subdivision (a), provides in part: "[A]n employee organization may request that the parties' differences be submitted to a factfinding panel not later than 30 days following the date that either party provided the other with a written notice of a declaration of impasse. Within five days after receipt of the written request, each party shall select a person to serve as its member of the factfinding panel. The [Board] shall, within five days after the selection of panel members by the parties, select a chairperson of the factfinding panel."
Section 3505.5, subdivision (a), provides: "If the dispute is not settled within 30 days after the appointment of the factfinding panel, or, upon agreement by both parties within a longer period, the panel shall make findings of fact and recommend terms of settlement, which shall be advisory only. The factfinders shall submit, in writing, any findings of fact and recommended terms of settlement to the parties before they are made available to the public. The public agency shall make these findings and recommendations publicly available within 10 days after their receipt."
Section 3505.7 provides: "After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders' written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5, a public agency that is not required to proceed to interest arbitration may, after holding a public hearing regarding the impasse, implement its last, best, and final offer, but shall not implement a memorandum of understanding. The unilateral implementation of a public agency's last, best, and final offer shall not deprive a recognized employee organization of the right each year to meet and confer on matters within the scope of representation, whether or not those matters are included in the unilateral implementation, prior to the adoption by the public agency of its annual budget, or as otherwise required by law."
At the time the Legislature passed Assembly Bill 646, section 3505.1 similarly provided: "If agreement is reached by the representatives of the public agency and a recognized employee organization or recognized employee organizations, they shall jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination." (Added by Stats. 1968, ch. 1390, § 7, p. 2728.)
Section 3548.1, subdivision (a) provides in part: "If the mediator is unable to effect settlement of the controversy within 15 days after his appointment and the mediator declares that factfinding is appropriate to the resolution of the impasse, either party may, by written notification to the other, request that their differences be submitted to a factfinding panel."
Section 3591 provides in part: "If the mediator is unable to effect settlement of the controversy within 15 days after his appointment and the mediator declares that factfinding is appropriate to the resolution of the impasse, either party may, by written notification to the other, request that their differences be submitted to a factfinding panel."
Section 3590 similarly provides in part: "Either an employer or the exclusive representative may declare that an impasse has been reached between the parties in negotiations over matters within the scope of representation and may request the board to appoint a mediator for the purpose of assisting them in reconciling their differences and resolving the controversy on terms which are mutually acceptable." (Italics added.)