This post was authored by Shardé C. Thomas
AB 2126, introduced on February 20, 2014, by Assembly Member Bonta (D-Oakland), would make four amendments to the Meyers-Milias-Brown Act (“MMBA”). Some of these revisions are pro-union, while others favor management’s interests. Reaction to AB 2126 has been mixed, but unions and management alike will be watching the progress of this bill.
The first change sought by AB 2126 would impose mandatory mediation in meet and confer negotiations. Critics of mandatory mediation take issue with the fact that mediation is far less likely to be successful when forced upon a party. Also, mandatory mediation would delay impasse procedures and likely provide little if any benefit to the parties. Many public agencies would rather use voluntarily impasse mediation in attempts to reach resolution. Another issue with this bill is that it does not provide a time period during which a party must request mediation. It does clarify that the issuance of a written declaration of impasse is a trigger allowing either party to request mediation, but it does not set forth any deadline for making the request.
Currently, the issue of what scope of issues is subject to fact finding is disputed, whether it is impasse over a full memorandum of understanding (“MOU”) or over any and every single negotiable subject. The second revision by AB 2126 would seek to clarify this issue. One Superior Court judge recently held that fact finding is limited to full MOU negotiations. An appeal was recently filed in that case. (County of Riverside v. PERB, Case No. E061020). Notwithstanding this court decision, the Public Employment Relations Board (“PERB”) recently issued two decisions holding that fact finding is not limited to MOU negotiations, but applies to all bargaining disputes over any matter within the scope of representation. (The cases can be found here and here.) In line with these recent PERB decisions, AB 2126 would provide that fact finding is available in any impasse over any negotiable subject of bargaining. That would greatly expand the potential scope of fact finding.
Also, AB 2126 would revise the MMBA to provide that not all fact finding factors listed in the statute must be considered by the fact finding panel and only those deemed relevant to the actual fact finding by the panel would apply. AB 2126 would require consideration of the statutory criteria set forth in the MMBA only if relevant to the dispute. This could narrow the scope of and time involved in fact finding by allowing a more targeted approach to fact finding.
Finally, AB 2126 would impact an employee organization’s right to waive fact finding. Currently, employee organizations are prohibited from agreeing to waive their right to fact finding. Public agencies must wait at least 30 days following the issuance of a written declaration of impasse before unilaterally implementing the last best final offer even if an employee organization previously indicated it would not seek fact finding. AB 2126 would permit an employee organization to voluntarily waive fact finding. This revision to the MMBA would help foster continued negotiations to strive and reach agreement where the parties otherwise would be at impasse sooner in light of the above-mentioned deadlines.
AB 2126 was recently read for the first time in the Senate and referred to the Public Employment and Retirement committee. It had passed the Assembly on May 29 by a vote of 54-22. Public agencies should stay aware of the progression of AB 2126 as it would have significant impacts on future negotiations if enacted. If the bill does pass, neither union nor management representatives will approve of the entirety of the various amendments AB 2126 would make to the MMBA.