This guest post was authored by Connie C. Almond


On October 9, the Governor signed AB 646 amending the Meyers-Milias-Brown Act to require factfinding as a means of resolving an impasse in labor negotiations under certain circumstances.  Under the new law, charter cities and counties that have impasse procedures which include, at a minimum, a process for binding arbitration are not subject to the factfinding procedures.

AB 646 repeals existing Government Code section 3505.4, which permitted unilateral implementation of an agency’s last, best and final offer following exhaustion of “applicable” impasse procedures, and enacts new Section 3505.4, requiring factfinding if a mediator is unable to effect a settlement within 30 days of his or her appointment and the union requests factfinding.

AB 646 also adds Government Code section 3505.7 which provides in pertinent part that after “any applicable mediation and factfinding procedures have been exhausted . . . 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 . . .” 

The catch is that existing Government Code section 3505.2 remains unchanged and does not require an agency to agree to mediation.  That raises the very important question whether an agency can avoid factfinding altogether if it chooses not to agree to mediation.  If factfinding only kicks in after an unsuccessful mediation, and an agency does not have to agree to mediation, it is arguable whether factfinding is really required. 

Starting January 1, 2012, if factfinding is indeed required, a union may request that the parties submit their differences to a factfinding panel following unsuccessful mediation.  In an apparent oversight, the legislation fails to place a time limit on the union’s ability to request factfinding.  The union and the agency each select a panel member and the chairperson of the panel is either mutually agreed upon by the parties or appointed by the PERB.  Within 10 days of its appointment, the factfinding panel will meet with the parties and may make inquiries and investigations, and hold hearings.  The parties equally bear the costs of the chairperson, and each party bears the costs of their appointed panel member.

The panel must reach its findings and recommendations based on eight 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 to employees performing similar services in comparable public agencies
  6. The cost of living
  7. The overall compensation presently received by the employees
  8. Any other facts which are normally or traditionally taken into consideration in making the findings and recommendations

There will likely be litigation over the ambiguities in the new law and/or the Legislature will enact clarifying legislation.  In the meantime, agencies should consult with their legal counsel to plan for the impact, if any, of AB 646 upon negotiations starting on January 1.