This blog post was authored by Connie C. Almond and Shardé C. Thomas
On September 30, 2014, Governor Brown vetoed AB 2126 – a bill which included significant changes to the Meyers-Milias-Brown Act (“MMBA”). As discussed in our prior blog post, this closely watched bill included four amendments to the MMBA’s factfinding and mediation provisions. Together, they would have allowed for more robust and potentially longer impasse procedures. We will discuss each in turn.
The Scope of Issues Subject to Factfinding – Complete MOU or Any Mandatory Subject of Bargaining?
If after meeting and conferring in good faith, a public employer subject to the MMBA cannot reach agreement with the union or association and impasse is declared, the MMBA currently requires the parties to participate in factfinding if the union or association requests it. The law does not currently specify whether a union or association could request factfinding over any negotiable subject or only when the parties have reached impasse over a full memorandum of understanding (“MOU”). The Public Employment Relations Board (“PERB”) has held that factfinding applies to any mandatory subject of bargaining. But two separate trial courts – County of Riverside v. PERB and San Diego Housing Commission v. PERB – have recently held that MMBA factfinding applies only to contract negotiations and not other discrete mandatory subjects of bargaining, such as effects bargaining related to a layoff decision. Both of these cases are currently awaiting appellate review.
AB 2126’s most significant provision would have “clarified” that a union or association can request factfinding in the event of impasse over any mandatory subject of bargaining. In his veto message, Governor Brown explained that the “measure is premature because a key issue it raises is currently pending before two separate courts of appeal.” The Governor further explained that he intends to “get the benefit of the courts’ reasoning before” taking any action on such a bill. As a final note, the Governor expressed that he feels the negotiations process under the MMBA is “extraordinarily robust and extensive.” What that may mean for future legislation remains to be seen.
Currently, when parties reach impasse in negotiations, mediation is only required if mandated by local rules or if the parties mutually agree to mediation.
AB 2126 would have required mediation as a mandatory impasse procedure if either party requested it. This change would have resulted in potentially more time-consuming impasse procedures.
Union’s Ability To Waive Factfinding
AB 2126 also would have provided employee organizations with the ability to voluntarily waive factfinding. Currently, employee organizations are prohibited from agreeing to waive their right to factfinding. Consequently, public agencies must wait at least 30 days after the declaration of impasse before taking action on the last, best, and final offer even if an employee organization previously indicated it would not seek factfinding.
Factors Considered By A Factfinding Panel
The MMBA provides eight statutory criteria for a factfinding panel to “consider, weigh, and be guided by.” AB 2126 proposed to clarify the existing law to provide that a factfinding panel only has to consider the factors which it finds to be relevant, and not necessarily all eight factors. While this bill may have provided some clarification, in practice, factfinding panels generally give the more relevant factors more weight than the other factors anyway. Consequently, this portion of the bill would have had minimal impact.
WHAT DOES THIS MEAN FOR YOUR AGENCY?
Q: In light of this veto, can an MMBA public employer reject a union or association’s request for factfinding over a negotiable subject other than an MOU, such as a drug and alcohol policy?
A: Not necessarily, there is still some risk. The Governor’s veto does not provide any clarity regarding the scope of the MMBA’s factfinding provision. And the statute remains vulnerable to different interpretations. Your agency should evaluate the potential risks of refusing a request to participate in factfinding over a discrete mandatory subject of bargaining. And we will of course keep you updated on the outcome of the appellate court cases analyzing this issue.
Q: Can a union or association request mediation over a mandatory subject of bargaining other than a full MOU?
A: Yes, but generally the agency will have to agree to participate. Like the factfinding provisions in the MOU, the scope of the MMBA mediation provision is also somewhat unclear. Agencies should review their local employer-employee relations resolutions (“EERR”) to determine what impasse procedures are required locally and whether they apply to all bargaining or just contract negotiations. Under the MMBA, however, mediation must be mutually agreed upon, so California law does not allow for a union or association to unilaterally insist on mediation over any mandatory subject of bargaining, including a full MOU.
If you have questions about this issue, please contact our Los Angeles, San Francisco, Fresno, or San Diego office.
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