BILL ANALYSIS �
AB 2126
Page 1
ASSEMBLY THIRD READING
AB 2126 (Bonta)
As Amended May 23, 2014
Majority vote
PUBLIC EMPLOYEES 5-1 APPROPRIATIONS 12-5
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|Ayes:|Bonta, Jones-Sawyer, |Ayes:|Gatto, Bocanegra, |
| |Rendon, Ridley-Thomas, | |Bradford, |
| |Wieckowski | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Holden, |
| | | |Pan, Quirk, |
| | | |Ridley-Thomas, Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Allen |Nays:|Bigelow, Donnelly, Jones, |
| | | |Linder, Wagner |
| | | | |
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SUMMARY : Authorizes, under the Meyers-Milias-Brown Act (MMBA),
either party to be able to request mediation if they fail to
reach agreement during the collective bargaining process, as
specified, and clarifies that the fact-finding process can be
invoked over impasse on any issue within the scope of
representation. Specifically, this bill :
1)Allows either the public agency or the recognized employee
organization to request mediation if they fail to reach
agreement and have provided the other party with a declaration
of impasse, instead of requiring that both parties agree to
proceed to mediation.
2)Requires that the parties agree upon the appointment of a
mediator within five days of the request.
3)Specifies that if the parties fail to agree on the appointment
of a mediator, either party may request the Public Employment
Relations Board (PERB) appoint a mediator and requires PERB to
appoint the mediator within five days of receiving the
request.
4)Specifies that a public agency is not required to proceed to
mediation if the impasse procedures it has established with
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the bargaining unit includes, at a minimum, a process for
binding arbitration.
5)Clarifies that included in the differences that may be
submitted to a fact-finding panel are differences that arise
from any dispute over any matter within the scope of
representation as to which an obligation to meet and confer
exists and are not limited to negotiations after impasse after
collective bargaining for a new or successor memorandum of
understanding.
6)Clarifies that the fact-finding panel, when arriving at their
findings and recommendations, is to be guided by those
specified criteria that the fact finders deem relevant to the
dispute.
7)Clarifies that the procedural right of an employee
organization to request a fact-finding panel may be
voluntarily waived in writing by the organization.
EXISTING LAW :
1)Establishes the MMBA, which provides a statutory framework for
local government employer-employee relations by providing a
reasonable method of resolving disputes regarding wages,
hours, and other terms and conditions of employment between
local public employers and public employee organizations.
2)Under MMBA, authorizes local public agencies to adopt
reasonable rules and regulations after consultation in good
faith with representatives of an employee organization or
organizations.
3)Requires a public agency to meet and confer in good faith with
the representatives of a recognized employee organization
regarding wages, hours, and other terms and conditions of
employment.
4)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
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employers and employee organizations.
5)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
agree together on the appointment of a mutually agreeable
mediator and share equally in the cost of the mediator.
6)Authorizes an employee organization to request that the
parties' differences be submitted to a fact-finding panel not
sooner than 30 days, but not more than 45 days, following the
appointment of a mediator or entering into a mediation
process. If the dispute was not submitted to mediation, an
employee organization may request that the parties'
differences be submitted to a fact-finding panel not later
than 30 days following the date either party provided the
other with written notice of a declaration of impasse.
7)Authorizes the fact-finding panel to make inquiries and
investigations, hold hearings, and take any other steps it
deems appropriate, and to issue subpoenas requiring the
attendance and testimony of witnesses and the production of
witnesses.
8)Requires state and local public agencies, if requested by the
panel, to furnish the panel with all records, papers and
information in their possession relating to any matter under
investigation by the panel.
9)Specifies the criteria the fact-finding panel should be guided
by in arriving at their findings and recommendations.
10)Specifies that the procedural right of an employee
organization to request a fact-finding panel cannot be
expressly or voluntarily waived.
11)Requires the fact-finding panel to make findings of fact and
recommend terms of a settlement if the dispute is not settled
within 30 days. This information must first be provided to
the parties before being made available to the public.
12)Requires the costs of the chairperson of the fact-finding
panel to be paid for by both parties whether or not PERB
selected the chairperson. Any other costs incurred will be
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borne equally by the parties, as specified.
13)Allows an employer to implement their last, best and final
offer once any applicable mediation and fact-finding
procedures have been exhausted and despite the implementation
of the best and final offer, allows a recognized employee
organization the right each year to meet and confer.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Based on PERB estimates of staffing necessary to administer
the provisions of this bill, the fiscal impact of
administration is approximately $800,000 (General Fund).
2)Though the bill is not keyed a local mandate, there could be
substantial state mandated reimbursement of local costs. The
amount would depend on the number of requests for mediation.
Reimbursable costs could be in the millions of dollars. PERB
staff raised the possibility of exceeding 100 additional
mediation cases annually. The Commission on State Mandates
has approved a test claim for any local government subject to
the jurisdiction of PERB that incurs increased costs as a
result of a mandate, meaning their costs are eligible for
reimbursement.
COMMENTS : According to the sponsor, the California Professional
Firefighters, "This bill conforms the mediation provisions of
the MMBA to those provisions of the Educational Employment
Relations Act (EERA), the Dills Act and the Higher Education
Employer-Employee Relations Act (HEERA), thereby requiring
mediation when requested by either party.
Without conforming the mediation provisions of MMBA to the
mediations provisions of EERA, the Dills Act and HEERA,
obstructionist parties governed by the MMBA will continue to
employ tactics to reject compromise or rush to impasse, thereby
blocking the other party's attempt to request mediation in an
effort to resolve differences. Further, conforming the law in
the manner proposed by this bill will ensure that all parties
remain at the bargaining table while receiving valuable
mediation assistance up to the point where either an agreement
is reached or one of the parties declares an impasse."
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Regarding the fact-finding provisions of the bill, in 2011, the
legislature passed AB 646 (Atkins), Chapter 680, Statues of
2011, which instituted a fact-finding process that could be
invoked by employee organizations under the MMBA after a
"written notice of a declaration of impasse" or after a
mediation process agreed upon by the parties or by local rule.
PERB subsequently promulgated regulations to implement the law,
and in 2012 the Legislature passed AB 1606 (Perea), Chapter 314,
Statutes of 2012, in part to codify those regulations.
According to supporters, "Some doubt has arisen as to whether
the statutory fact-finding process can be invoked over impasse
on any issue within the scope of representation, or whether the
process is limited to disputes over the negotiation of a
memorandum of understanding. In two pending state court cases,
public agencies have asserted the latter position. See San Diego
Housing Commission v. PERB (San Diego County Superior Court Case
No. 37-2012-00087278) (filed as a writ of mandate on December
10, 2012); County of Riverside v. PERB (Riverside County
Superior Court Case No. RIC 1305661) (filed as writ of mandate
on May 10, 2013). In the Riverside case, the superior court has
granted an injunction in favor of the County adopting its
interpretation and ordering PERB to dismiss pending fact-finding
cases that arise from negotiations of 'single meet and confer
issues and not from negotiations after impasse after collective
bargaining for a new or successor MOU.'
"Similarly, on January 31, 2014 the San Diego court held that,
'PERB's construction that the fact-finding provisions of the
MMBA apply to an impasse arising out of negotiations other than
for a MOU, including an impasse in a dispute over the effects
and impacts of an employee layoff, is clearly erroneous.' Both,
PERB and the union involved have filed notices of appeal of the
court's decision."
Supporters conclude, "The preferred and most efficient manner is
to add a new subsection making clear that fact-finding applies
to all bargainable disputes."
The California Association of Sanitation Agencies (CASA) states
in their opposition letter to the bill, "CASA believe that the
provision in AB 2126 would unfairly benefit employee
organizations by altering the current standard of mutual consent
for requesting mediation, which our agencies believe is fair and
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adequate. In particular, CASA is concerned that this bill will
give the employee organizations the ability to claim impasse
without input form the local agency thus diminishing the
negotiating power of local agencies. CASA believes that current
impasse law is fair and adequate and that local agencies should
maintain control of their management rights."
The provisions of this bill are similar to one of the provisions
included in AB 537 (Bonta), Chapter 785, Statutes of 213. These
provisions, however, were deleted from the bill prior to
passage.
AB 1606 authorized an employee organization to request that the
parties' differences be submitted to a fact-finding panel not
sooner than 30 days, but not more than 45 days, following the
appointment of a mediator or entering into a mediation process.
If the dispute was not submitted to mediation, an employee
organization may request that the parties' differences be
submitted to a fact-finding panel not later than 30 days
following the date either party provided the other with written
notice of a declaration of impasse.
AB 646 allowed local public employee organizations to request
fact-finding if a mediator is unable to reach a settlement
within 30 days of appointment, defines certain responsibilities
of the fact-finding panel and interested parties, and made
specified exemptions from these provisions.
Analysis Prepared by : Karon Green / P.E., R. & S.S. / (916)
319-3957
FN: 0003691