BILL NUMBER: AB 646 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 5, 2011
AMENDED IN ASSEMBLY MARCH 23, 2011
INTRODUCED BY Assembly Member Atkins
FEBRUARY 16, 2011
An act to amend Sections 3505 and 3505.2 of, to
add Sections 3505.5 , 3505.6, and 3505.7 to, and
to repeal and add Section 3505.4 of, the Government Code, relating to
local public employee organizations.
LEGISLATIVE COUNSEL'S DIGEST
AB 646, as amended, Atkins. Local public employee organizations:
impasse procedures.
The Meyers-Milias-Brown Act contains various provisions that
govern collective bargaining of local represented employees, and
delegates jurisdiction to the Public Employment Relations Board to
resolve disputes and enforce the statutory duties and rights of local
public agency employers and employees. The act requires the
governing body of a public agency to meet and confer in good faith
regarding wages, hours, and other terms and conditions of employment
with representatives of recognized employee organizations. Under the
act, if the representatives of the public agency and the employee
organization fail to reach an agreement, they may mutually agree on
the appointment of a mediator and equally share the cost. If the
parties reach an impasse, the act provides that a public agency may
unilaterally implement its last, best, and final offer.
This bill would instead provide that if the parties fail
to reach an agreement, either party may request that the board
appoint a mediator, and would require the board, if it determines
that an impasse exists, to appoint a mediator at the board's expense.
The bill would authorize either party to request that the matter be
submitted to a factfinding panel if the mediator is unable to effect
settlement of the controversy within 15 days and declares that
factfinding is appropriate. authorize the employee
organization, if the mediator is unable to effect settlement of the
controversy within 15 days of his or her appointment, to request that
the matter be submitted to a factfindin g panel.
The bill would require that the factfinding panel consist of one
member selected by each party as well as a chairperson selected by
the board or by agreement of the parties. The factfinding panel would
be authorized to make investigations and hold hearings, and to issue
subpoenas requiring the attendance and testimony of witnesses and
the production of evidence. The bill would require all political
subdivisions of the state to comply with the panel's requests for
information.
This bill would require, if the dispute is not settled within 30
days, the factfinding panel to make findings of fact and recommend
terms of settlement, for advisory purposes only. The bill would
require that these findings and recommendations be first issued to
the parties, but would require the public agency to make them
publicly available within 10 days after their receipt. The bill would
provide for the distribution of costs associated with the
factfinding panel, as specified. The bill would specify that
these provisions shall not prevent the parties from utilizing their
own negotiated and mutually agreed-upon mediation and factfinding
procedures at their own expense.
This bill would prohibit a public agency from implementing its
last, best, and final offer until at least 10 days after the
factfinders' written findings of fact and recommended terms of
settlement have been submitted to the parties and the agency has held
a public hearing regarding the impasse.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3505 of the Government Code
is amended to read:
3505. The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as may
be properly designated by law or by such governing body, shall meet
and confer in good faith regarding wages, hours, and other terms and
conditions of employment with representatives of such recognized
employee organizations, as defined in subdivision (b) of Section
3501, and shall consider fully such presentations as are made by the
employee organization on behalf of its members prior to arriving at a
determination of policy or course of action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual obligation
personally to meet and confer promptly upon request by either party
and continue for a reasonable period of time in order to exchange
freely information, opinions, and proposals, and to endeavor to reach
agreement on matters within the scope of representation prior to the
adoption by the public agency of its final budget for the ensuing
year.
SEC. 2. Section 3505.2 of the Government Code
is amended to read:
3505.2. (a) If after a reasonable period of time, representatives
of the public agency and the recognized employee organization fail
to reach agreement, the public agency and the recognized employee
organization or recognized employee organizations may do one of the
following:
(1) The parties may agree upon the appointment of a mediator
mutually agreeable to the parties, in which case, the costs of
mediation shall be divided one-half to the public agency and one-half
to the recognized employee organization or recognized employee
organizations.
(2) Either party may request that the Public Employment Relations
Board appoint a mediator for the purpose of assisting them in
reconciling their differences and resolving the controversy on terms
that are mutually acceptable. If the board determines that an impasse
exists, it shall appoint a mediator within five working days after
its receipt of the request. The mediator shall meet with the parties
or their representatives, either jointly or separately, as soon as
practicable, and shall take any other steps he or she deems
appropriate in order to persuade the parties to resolve their
differences and reach a mutually acceptable agreement. The services
of the mediator, including any per diem fees, and actual and
necessary travel and subsistence expenses, shall be provided by the
board without cost to the parties.
(b) Nothing in this section shall be construed to prevent the
parties from utilizing their own negotiated and mutually agreed-upon
mediation procedure. If the parties agree to utilize their own
mediation procedure, the board shall not appoint its own mediator
unless failure to do so would be inconsistent with the policies of
this chapter. If the parties have negotiated and agreed upon their
own mediation procedure, the cost of the services of any appointed
mediator, including per diem fees, and actual and necessary travel
and subsistence expenses, shall be borne equally by the parties.
SEC. 3. SECTION 1. Section 3505.4 of
the Government Code is repealed.
SEC. 4. SEC. 2. Section 3505.4 is
added to the Government Code, to read:
3505.4. (a) If the mediator is unable to effect settlement of the
controversy within 15 days after his or her appointment
pursuant to Section 3505.2, and the mediator declares that
factfinding is appropriate to the resolution of the impasse, either
party may, by written notification to the other party, request that
their differences appointment, the employee
organization may request that the parties' differences be
submitted to a factfinding panel. 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 Public Employment
Relations Board shall, within five days after the selection of panel
members by the parties, select a chairperson of the factfinding
panel. The chairperson designated by the board shall not, without the
consent of both parties, be the same person who served as mediator
pursuant to Section 3505.2. panel.
(b) Within five days after the board selects a chairperson of the
factfinding panel, the parties may mutually agree upon a person to
serve as chairperson in lieu of the person selected by the board.
(c) The panel shall, within 10 days after its appointment, meet
with the parties or their representatives, either jointly or
separately, and may make inquiries and investigations, hold hearings,
and take any other steps it deems appropriate. For the purpose of
the hearings, investigations, and inquiries, the panel shall have the
power to issue subpoenas requiring the attendance and testimony of
witnesses and the production of evidence. Any state agency, as
defined in Section 11000, the California State University, or any
political subdivision of the state, including any board of education,
shall furnish the panel, upon its request, with all records, papers,
and information in their possession relating to any matter under
investigation by or in issue before the panel.
(d) In arriving at their findings and recommendations, the fact
finders shall consider, weigh, and be guided by all the following
criteria:
(1) State and federal laws that are applicable to the employer.
(2) Local rules, regulations, or ordinances.
(3) Stipulations of the parties.
(4) The interests and welfare of the public and the financial
ability of the public agency.
(5) Comparison of the wages, hours, and conditions of employment
of the employees involved in the factfinding proceeding with the
wages, hours, and conditions of employment of other employees
performing similar services in comparable public agencies.
(6) The consumer price index for goods and services, commonly
known as the cost of living.
(7) The overall compensation presently received by the employees,
including direct wage compensation, vacations, holidays, and other
excused time, insurance and pensions, medical and hospitalization
benefits, the continuity and stability of employment, and all other
benefits received.
(8) Any other facts, not confined to those specified in paragraphs
(1) to (7), inclusive, which are normally or traditionally taken
into consideration in making the findings and recommendations.
SEC. 5. SEC. 3. Section 3505.5 is
added to the Government Code, to read:
3505.5. (a) 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.
(b) The costs for the services of the panel chairperson selected
by the board, including per diem fees, if any, and actual and
necessary travel and subsistence expenses, shall be borne by the
board.
(c) The costs for the services of the panel chairperson agreed
upon by the parties shall be equally divided between the parties, and
shall include per diem fees, if any, and actual and necessary travel
and subsistence expenses. The per diem fees shall not exceed the per
diem fees stated on the chairperson's r�sum� on file with the board.
The chairperson's bill showing the amount payable by the parties
shall accompany his or her final report to the parties and the board.
The chairperson may submit interim bills to the parties in the
course of the proceedings, and copies of the interim bills shall also
be sent to the board. The parties shall make payment directly to the
chairperson.
(d) Any other mutually incurred costs shall be borne equally by
the public agency and the employee organization. Any separately
incurred costs for the panel member selected by each party shall be
borne by that party.
SEC. 6. Section 3505.6 is added to the
Government Code, to read:
3505.6. Nothing in Sections 3505.4 and 3505.5 shall be construed
to prevent the parties from utilizing their own negotiated and
mutually agreed-upon factfinding procedure in lieu of the factfinding
procedure set forth in those sections. If the parties have
negotiated and agreed upon their own factfinding procedure, any
associated costs shall be borne equally by the parties.
SEC. 7. SEC. 4. Section 3505.7 is
added to the Government Code, to read:
3505.7. 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.