CALPELRA Alert/Effort Continues To Turn MMBA Into EERA/HEERA
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Assembly Bill 616 (Bocanegra)

AB 616 was introduced on February 20, 2013.  It was initially a spot bill making technical changes to the MMBA but was drastically amended on March 19, 2013.  As amended, AB 616 would make the following significant changes to the MMBA:
  • Extend the union’s time to request factfinding if there is no mediation to 60 days, instead of 30 days;
     
  • Allow a party to dispute the declaration of impasse by submitting a challenge to PERB, which would have five working days from receipt of the challenge to issue a decision;
     
  • Adopt the EERA’s definition of impasse:  “...that the parties to a dispute over a matter within the scope of representation have reached a point in meeting and negotiating at which their difference in position is so substantial or prolonged that future meetings would be futile”;
     
  • Eliminate the right of local entities to process unit determinations and conduct representation elections and give that duty to PERB; and
     
  • Eliminate the right of local entities to designate management and confidential employees and give that duty to PERB.
Assembly Bill 537 (Bonta)

AB 537 was introduced on February 20, 2013.  It was also initially a spot bill making technical changes to the MMBA, but was drastically amended on March 19, 2013.  As amended, AB 537 would make the following change to the MMBA:
  • Make mediation after impasse mandatory if either party requests it.

Tim's Comments

  • The MMBA came under PERB’s jurisdiction in 2001 with the passage of Senate Bill 739 the year before.  When SB 739 was enacted, there was an understanding by local entities that local control over unit determination issues would remain.  Indeed, the primary justification for SB 739 was to provide a mechanism to resolve disputes over unfair practice charges.  SB 739 solved that issue by giving PERB jurisdiction to hear unfair practice charges.  But critically, SB 739 did not touch local control over unit determination issues.
     
  • Since SB 739 there has been a steady movement by labor to gradually incorporate portions of EERA/HEERA into the MMBA.  In 2011, it was the passage of AB 646 thath provided for mandatory factfinding after impasse.  Now we have AB 616 and AB 537.
     
  • AB 616 is by far the most drastic of the two bills.  The extension of the time for a union to request factfinding and the ability to challenge impasse declarations are both elements contained in EERA/HEERA.  Considered independently, there might be an argument in favor of both of these changes.  However, my cynical view of this legislation is that it is a further attempt by labor to make it more difficult for an employer to implement its last, best, final offer (LBFO).  From labor’s viewpoint, employers often have their minds made up and bargain in bad faith with the only goal of getting to impasse in order to impose the LBFO.  So labor’s response is to make that path more difficult.
  • The most drastic change included in AB 616 is the removal from local control of unit determination and election issues.  This is huge.  As a practical matter, I do not believe that PERB has the resources to handle all the representational issues that arise in the local context.  There are 58 counties, 482 incorporated cities, and many more special districts in California.  For PERB to assume jurisdiction over the representational issues of all these entities would be a huge task.  But most important, why is this change necessary?  This bill is new so we don’t have a legislative analysis; I’m anxious to see the justification for these changes.  Unit determination and election issues have been under local control since the advent of the MMBA.  I don't believe there is any reason for this dramatic change in the MMBA's structure.
  • AB 537 would make mediation mandatory.  I generally support mediation.  I believe mediation is almost always worth a shot before going further toward imposing a LBFO.  But I also feel this should be an issue left to local rules.  I felt the same way with factfinding.  I don’t like the idea of mediation being mandated by the legislature.
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:  Ivette Peña, Superior Court of California, County of Los Angeles
Alert No. 13-07,  Author:  Tim Yeung, Renne Sloan Holtzman Sakai
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.
Copyright © 2013 CALPELRA (California Public Employers Labor Relations Association), All rights reserved.