CALPELRA Alert:  AB 2126, Factfinding, Mediation
Factfinding, Covering All Disputes Over Mandatory Subjects

Since 2012 amendments to the MMBA that mandate factfinding if requested by the union after impasse is reached in bargaining, PERB has consistently maintained that the MMBA factfinding procedures apply to all impasses over mandatory subjects of bargaining and are not limited to bargaining impasses over the terms of a new or successor comprehensive MOU.

Lawsuits have been filed against PERB by the County of Riverside contesting PERB’s administrative order that the County submit to factfinding in “effects” bargaining while an MOU was in place,[1] and by the San Diego Housing Commission, challenging PERB’s order to go to factfinding over an effects of layoff dispute.[2]  Both actions resulted in superior court decisions against PERB, holding that the MMBA factfinding procedures apply only after impasse in bargaining for a new or successor MOU and do not apply to negotiations of single meet and confer issues. PERB has appealed both of these unfavorable decisions to the court of appeal.

Acting more quickly than the courts, the Legislature and the Governor will resolve the dispute.  AB 2126 (Bonta), which is waiting for Governor Brown’s signature, amends the MMBA factfinding provisions to provide, in Government Code Section 2505.4(a)(2):  â€œ. . . differences between the parties that are subject to a request by the employee organization for submission to a factfinding panel may include differences that arise from any dispute over any matter within the scope of representation as to which an obligation to meet and confer exists under Section 3505 and are not limited to negotiations after impasse after collective bargaining for a new or successor memorandum of understanding.”

Significantly, the enrolled legislation includes a legislative finding that the amendments to Sections 3505.4(a) and (d) regarding factfinding “are clarifying and declaratory of existing law.”
 
Mediation, Mandatory Upon Request

Existing law provides that if a public agency and a union fail to reach an agreement after a reasonable period of time, either party may request mediation.  AB 2126 requires a written notice of a declaration of impasse by either party before mediation can be requested.  AB 2126 adds to Government Code Section 3505.2(a) language mirroring the EERA, as follows, and mandates mediation if requested:  “Within five days of a request by one of the parties, both of the parties shall agree upon the appointment of a mediator mutually agreeable to the parties.  If the parties fail to agree upon the selection of a mediator within five days, either party may request that the board appoint a mediator.  No later than five days after the receipt of either party’s request, the board shall appoint a mediator in accordance with the rules prescribed by the board.”

The mediation requirements do not apply if the public agency has an impasse procedure that includes binding interest arbitration, and the procedure applies to the dispute.

Other Changes In AB 2126
  1. Addressing arguments that all of the statutory factfinding criteria do not clearly apply to many single issue disputes, an additional amendment to Section 3505.4(d) requires factfinders to consider all of the statutory factfinding criteria “that the factfinders deem to be relevant to the dispute.”[3]
  2. Currently the MMBA provides that an employee organization may not waive the procedural right to request factfinding.  An amendment to Government Code Section 3505.4(e) permits an employee organization to voluntarily waive, in writing, its procedural right to request factfinding.
Impacts And Practice Tips

If the Governor signs AB 2126...
  1. The dispute is over for MMBA agencies.  Under the MMBA, factfinding applies to all impasses over mandatory subjects of bargaining, not just impasses over new or successor MOU bargaining. By this legislative change, MMBA agencies will be under the same factfinding rule that has previously applied to EERA and HEERA agencies.   Because the changes to Section 3504.4 regarding factfinding “are clarifying and declaratory of existing law,” they are effective immediately.  MMBA agencies’ bargaining preparation and planning should now include the submission to factfinding of all bargaining disputes over mandatory subjects, whether or not connected with successor MOU negotiations.  In addition to data collection regarding the relevant factfinding criteria, bargaining planning should include the additional time that will be required to complete the factfinding process.
     
  2. Mediation of an MMBA bargaining dispute is now mandatory if either party requests the appointment of a mediator. The cost of the mediator is equally shared by the parties.

    The changes to Government Code Section 3505.2 regarding mediation are effective January 1, 2015.
 
[1] County of Riverside v. PERB (SEIU Local 721) (Riverside County Superior Court Case No. RIC 1305661).
[2] San Diego Housing Commission v. PERB (San Diego County Superior Court Case No. 37-2012-00087278).
[3 Assembly Bill 2126 (Bonta), California Legislature, 2013-14 Regular Session.
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
CALPELRA President:  G. Scott Miller, Ventura Port District
Alert No. 14-23,  Author:  Timothy L. Davis and Janae Novotny, Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
Facebook
Twitter
LinkedIn
Copyright © 2014 CALPELRA (California Public Employers Labor Relations Association), All rights reserved.