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Bills Propose Significant Changes to MMBA

League Remains Opposed to AB 537 and AB 616

June 28, 2013
City labor-relations rules and practices were under attack this week as labor-sponsored bills flew out of the Senate Public Employment and Retirement Committee.
 
Both AB 537 (Bonta) and AB 616 (Bocanegra) now move to the Senate Appropriations Committee where their fiscal impact can be assessed. The League remains strongly opposed to both measures.

AB 537 (Bonta)
 
Co-sponsored by the American Federation of State, County and Municipal Employees (AFSME), California Professional Firefighters (CPF), and Service Employees International Union (SEIU), the bill imposes mandatory mediation, changes rules governing arbitration agreements, ground rules, contract ratification and employer-employee relations ordinances.
 
The League testified in opposition that although it may be advisable to attempt mediation after impasse, it is unwise to mandate it. Requiring parties to participate in involuntary mediation is unlikely to succeed and will also delay the labor negotiations process and make it more difficult for cities to prepare their budgets. Regardless of whether labor and management can agree on changes to the Meyers-Milias Brown Act (MMBA), a balance in the collective bargaining process should be maintained.
 
AB 537 makes significant changes to the MMBA that appear to tip that balance in favor of labor interests in several ways:
  • Requires mandatory mediation: If parties fail to reach an agreement, AB 537 makes mediation mandatory if either party requests it. If impasse is reached, the parties must agree upon a mediator within five days of the request to mediate. If the parties fail to agree on a mediator, either party may request the Public Employment Relations Board (PERB) to appoint a mediator, and PERB is required to appoint one within in five days. The sheer number of requests for a mediator will be so great that the process will be inevitably delayed.
  • Changes rules for arbitration agreements: AB 537 subjects arbitration agreements reached under the MMBA to the provisions of the California Arbitration Act. Some employment law attorneys are of the opinion that this is not a huge change in current practice as it is arguably already required. The measure also requires that all procedural defenses be submitted to an arbitrator for resolution. For example, a local public entity cannot refuse to submit a dispute to an arbitrator if the agency believes it to be an untimely request or that the employee union did not satisfy the procedural prerequisites to arbitration. The arbitrator will be responsible for resolving the public entity’s procedural defense. Finally, this measure prohibits a court from refusing to order arbitration because the issue could also constitute an unfair labor practice under the jurisdiction of PERB. This means that a judge could force a dispute to be arbitrated, while at the same time the public agency is defending itself before PERB for the same issue. The League is concerned that cities will be defending themselves in arbitration and before PERB simultaneously for the same dispute, which is a waste of resources. 
  • Complicates ground rules regulating communications: This bill authorizes an employee organization or employee to communicate directly with officials of the public agency, including the city council, by prohibiting a local public agency from adopting a ground rule to prohibit such communication. However, the bill does not give this same privilege to management. Although employees and union representatives are free to communicate with the council, management does not have the same authority to discuss the terms of their negotiations directly with employees. Communications that bypass appointed negotiators and representatives may cause more harm than good for both parties and may complicate the already sensitive negotiations. If the Legislature is going to authorize this kind of communication for public employees and their union representatives, the same authority should be given to management.
  • Makes tentative agreement compulsory without council contract ratification: The bill was amended on June 17 and attempted to deal with the constitutionality of the previous language that made a tentative agreement binding on a local agency. Unfortunately, constitutional questions still remain with the amended version. The language now stipulates that if a legislative body does not take action the agreement shall be adopted. By imposing the agreement on a council in absence of legislative action this provision is still unconstitutional because the council did not ratify the agreement. In County of Riverside v. Superior Court (2003) 30 Cal.4th 278, the court ruled that the Legislature cannot make a charter city or county governing body delegate its constitutional authority to set compensation to anyone other than the governing body itself. Under current law the city council must still approve the tentative agreement in order for it to be effective.
  • Requires public agencies to meet and confer over local rules: AB 537 requires a public agency to engage in the meet and confer process before adopting reasonable rules and regulations governing the administration of employer-employee relations. It subjects disputes of these negotiations to factfinding procedures under the MMBA. The MMBA currently provides that a public agency may adopt reasonable rules and regulations after “consultation” in good faith with representatives of an employee organization. In the labor negotiations setting there is a significant difference between “consultation” and “meet and confer.” This provision raises several practical implementation questions as to whether each bargaining unit would have an opportunity to meet and confer over local rules, thereby creating several different versions of these rules. Currently, cities meet and consult with their employee organizations together and collectively discuss local rules. Employees who believe local rules to be unreasonable or unfair currently have a sufficient remedy to file an unfair practice charge with PERB.
AB 616 (Bocanegra)
 
AB 616 was amended on June 17 to remove the provision that extended from 30 to 60 days after the declaration of impasse the time in which an employee organization could request factfinding leaving in the provision that gives the Public Employment Relation Board (PERB) the authority to determine if a “genuine impasse” has been reached before a matter can go to factfinding.
 
The MMBA, the collective bargaining law that has governed local public agencies since 1968, permits each local agency to enact its own reasonable rules and regulations for governing employee relations after consultation in good faith with employee organizations. The purpose of a City Employer-Employee Relations Resolution is to provide procedures for meeting and conferring in good faith with employee organizations regarding matters that directly and significantly affect and primarily involve the wages, hours and other terms and conditions of employment of employees. These resolutions are intended to strengthen civil service and other methods of administering employer-employee relations through the establishment of uniform and orderly methods of communications between employees, employee organizations and a city.
 
Oftentimes Employer-Employee Relations Resolutions outlines impasse procedures. Local rules have longed served as the guidance for local agencies and employee organizations and we see no reason to give PERB jurisdiction over determining whether a genuine impasse is reached. It seems that this would create more administrative burden than is necessary.


 
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