BILL ANALYSIS Ó
AB 537
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 537 (Bonta)
As Amended September 6, 2013
Majority vote
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|ASSEMBLY: |54-24|(May 30, 2013) |SENATE: |26-11|(September 11, |
| | | | | |2013) |
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Original Committee Reference: P.E., R. & S.S.
SUMMARY : Makes various changes to the Meyers-Milias-Brown Act
(MMBA) governing local public employer and employee relations
related to contract ratification and arbitration agreements.
Specifically, this bill :
1)Requires that if a tentative agreement is reached by the
authorized representatives of the public agency and a
recognized employee organization or recognized employee
organizations, the governing body must vote to accept or
reject that agreement within 30 days of the date it is first
considered at a noticed public meeting.
2)Clarifies that a decision by the governing body not to adopt
the tentative agreement does not bar the filing of an unfair
practice charge for failure to have met and bargained in good
faith through authorized representatives.
3)Requires, if the governing body adopts the tentative
agreement, that the parties shall jointly prepare a written
memorandum of such understanding.
4)Specifies that an arbitration agreement contained in a
memorandum of understanding (MOU) is enforceable, as
specified, prohibits assertions of failing to satisfy
procedural requirements from being a basis for refusing to
submit the dispute to arbitration, and prohibits a court from
refusing to order arbitration because the issue could also
constitute an unfair labor practice under the jurisdiction of
Public Employment Relations Board (PERB).
5)Specifies that if a party to a MOU files an unfair practice
charge based on failure to satisfy procedural requirements,
PERB will place the charge in abeyance if the dispute is
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subject to final and binding arbitration and will dismiss the
charge at the conclusion of the arbitration process unless the
charging party can demonstrate that the award is contrary to
the purposes of the MMBA.
The Senate amendments :
1)Delete provisions that would have prohibited a public agency
from establishing ground rules for the meet and confer process
that limit the right of an employee or employee organization
to communicate with officials of the public agency.
2)Delete provisions that would have required that if an
agreement is reached between the public agency and the
recognized employee organization, a MOU will jointly be
prepared and will become binding upon execution or
ratification, as specified, and instead requires that if a
tentative agreement is reached, the governing body must vote
to accept or reject that agreement within 30 days of the date
it is first considered at a noticed public meeting.
3)Delete provisions that would have authorized either party to
be able to request mediation if they fail to reach agreement,
required that the parties agree upon the appointment of a
mediator within five days of the request, and specified that
if the parties fail to agree on the appointment of a mediator,
either party may request PERB appoint a mediator.
4)Delete provisions that would have required a public agency to
engage in the meet and confer process before adopting
reasonable rules and regulations governing the administration
of employer-employee relations and specified that disputes
arising under this provision will be resolved pursuant to the
factfinding procedures of the MMBA.
EXISTING LAW as established by the MMBA:
1)Contains various provisions intended to promote full
communication between public employers and their employees by
providing a reasonable method of resolving disputes regarding
wages, hours, and other terms and conditions of employment
between public employers and public employee organizations.
2)Requires a public agency to meet and confer in good faith with
the representatives of a recognized employee organization
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regarding wages, hours, and other terms and conditions of
employment.
3)Provides that if, after a reasonable amount of time,
representatives of the public agency and the employee
organization fail to reach agreement, the two parties may
mutually agree on the appointment of a mediator and equally
share the cost.
4)Provides that an agreement which the negotiators for a public
agency and a recognized employee organization reach shall not
be final and binding upon the parties to the negotiations
until it is presented to the public agency's governing body or
statutory representative for determination.
5)Delegates jurisdiction over the employer-employee relationship
to PERB and charges PERB with resolving disputes and enforcing
the statutory duties and rights of local public agency
employers and employee organizations.
FISCAL EFFECT : According to the Senate Appropriations
Committee, approximately $200,000 in annual costs to the PERB
(General Fund).
COMMENTS : The following information was provided to the
Assembly Public Employees, Retirement and Social Security
Committee by the author and the sponsors of the bill:
1)The statute currently provides that an agreement which the
negotiators for a public agency and a recognized employee
organization reach shall not be final and binding upon the
parties to the negotiations until it is presented to the
public agency's governing body or statutory representative for
determination.
Unfortunately, too many governing bodies of public agencies
reject a tentative agreement out-of-hand after the parties'
negotiators have expended considerable time and resources to
arrive at that agreement, and the employee organization has
often already conducted a ratification vote among its members.
Employee organizations report that this delays or thwarts the
bargaining process; if the employee organization's members
ratify the tentative agreement, the employee organization is
bound to it, yet the public agency's governing body is free to
reject it. This provision is consistent with the requirement
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that negotiators possess sufficient authority to bind their
principals to an agreement.
This bill would require that if a tentative agreement is reached
by the authorized representatives of the public agency and a
recognized employee organization or recognized employee
organizations, the governing body must vote to accept or
reject that agreement within 30 days of the date it is first
considered at a noticed public meeting.
2)Arbitration agreements are a common feature of memoranda of
understanding negotiated and entered into under MMBA. The
Supreme Court has held that arbitration decisions issued under
such agreements are binding and entitled to judicial
enforcement. See Taylor v. Crane, 24 Cal.3d 442, 450-51
(1979). As currently drafted, however, the MMBA is silent as
to the standards and procedures for enforcing arbitration
agreements. This bill will clarify the law regarding
arbitration agreements in three respects.
First, the bill will make it clear that the provisions of the
California Arbitration Act, apply to the enforcement of
arbitration agreements under the MMBA. While this generally
has been assumed to be the true, some courts have viewed a
writ of mandate as the appropriate vehicle for enforcing an
arbitration agreement. By adding a specific reference to the
California Arbitration Act, the bill will eliminate any
confusion as to the appropriate procedure for compelling
arbitration.
Second, the bill will make it clear that procedural defenses to
an arbitration claim - such as the contention that the claim
was untimely or that the party seeking arbitration failed to
exhaust pre-arbitration remedies - will not be a basis for
refusing to arbitrate and will be submitted to the arbitrator
for resolution. This is a codification of the longstanding
rule under federal law--the Labor Management Relations Act--as
interpreted by the U.S. Supreme Court in John Wiley & Sons v.
Livingston, 376 U.S. 543, 557 (1964). The intent of the rule
is to strengthen arbitration and to prevent needless
litigation over garden variety procedural defenses.
Third, the bill will make it clear that an agreement to
arbitrate a dispute is enforceable, even where the conduct in
question may also constitute an unfair labor practice that
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could be brought in an administrative proceeding before PERB.
Again, this is consistent with federal labor law, which has
long recognized that the arbitrator and the labor board may
exercise concurrent jurisdictions in such situations.
Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916)
319-3957
FN:
0002662