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Despite League Opposition Labor-Sponsored Bills Continue to Move in Legislature

AB 1373, AB 537, AB 616

May 2, 2013
City labor-relations rules and practices were under attack in the past two weeks as labor-sponsored bills were heard in both the Assembly and Senate.
The League continues to oppose these measures as they all impose unreasonable restrictions and requirements on cities. Cities are strongly encouraged to continue to send opposition letters. For updated sample letters, please visit the League’s website at www.cacities.org/billsearch and plug in the bill numbers into the search function. 
AB 1373 (Pérez)
The Assembly Insurance Committee on Wednesday, April 24, passed the Speaker’s AB 1373 on a party-line vote. Sponsored by the California Professional Firefighters (CPF), this bill extends the statute of limitations for a presumptive death benefit claim for cancer, tuberculosis or blood-borne infectious diseases filed on behalf of a firefighter or peace officer. However, by failing to specify the length of the new statute of limitations, AB 1373 presumes that an extension is necessary.
The sponsors of the bill argue the timeline has been left open until the Commission on Health and Safety and Workers’ Compensation (CHSWC) can study the issue and help determine the optimal length for the statute of limitations. CHSWC is a state commission with both labor and management representatives including the firefighters’ representative. It is not clear when this study will begin or conclude, but presumably it will be completed by the close of the Legislative Session and the bill will be amended in accordance with its findings.
The League last year opposed a substantially similar bill, AB 2451 (Pérez). Gov. Jerry Brown vetoed AB 2451 arguing the need for more research to make an informed policy decision. In his thoughtful veto message, the Governor noted that “what is needed is rational, thoughtful consideration of balancing the serious fiscal constraints faced at all levels of government against our shared priority to adequately and fairly compensate the families of those public safety heroes who succumb to work-related injuries and disease.”
The League welcomes a conversation with the author and sponsors about narrowing AB 1373 to address the sponsor’s concerns and also give employers the ability to plan for future liabilities without creating significant new ones. However, the League will continue to oppose an extension of the statute of limitations until it is based on objective data.   
While greatly affecting both state and local agencies’ costs, the bill was not identified as a fiscal bill. Unfortunately, it will bypass the Assembly Appropriations Committee and move straight to a vote on the Assembly Floor.
AB 537 (Bonta)
The Assembly Public Employees, Retirement and Social Security Committee (PERSS Committee) also passed two union-sponsored bills on Wednesday, April 24, that further restrict city labor-relations authority.
Co-sponsored by the American Federation of State, County and Municipal Employees (AFSME), CPF, and Service Employees International Union (SEIU), AB 537 was significantly amended in the PERSS Committee. These amendments did not help cities. Previously, the bill mandated mediation by allowing either party to request it upon impasse. In addition to mandatory mediation, the new amendments add provisions regulating arbitration agreements, ground rules, contract ratification and employer-employee relations ordinances. The League is currently seeking feedback from employment law attorneys about the impact of these provisions on public agency labor relations and negotiations practices.
Testifying in opposition, the League noted that while it may be advisable to attempt mediation after impasse, it is unwise to mandate it. Requiring parties to participate in involuntary mediation is not only unlikely to be successful, but it also will delay the labor negotiations process and make it more difficult for cities to prepare their budgets. Further, regardless of whether labor and management can agree on changes to the Meyers-Milias Brown Act (MMBA) they should maintain a balance in the collective bargaining process.
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 agreements binding without council contract ratification: Current law provides that an agreement, often referred to as a tentative agreement, between a public agency’s bargaining representative and a recognized employee organization is not binding and must be presented to the governing body for determination. AB 537 makes a tentative agreement between a local agency’s designated bargaining representative and a union representative binding when agreement is reached and before the council takes action on it. The League believes this provision is unconstitutional as it applies to charter cities. 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. A city may oftentimes designate staff to negotiate labor agreements, but under current law the city council must still approve it in order for it to be effective. 
  • Requires public agencies to meet and confer over local rules: AB 537 requires the 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 is arbitrary.  Further, 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 also passed the Assembly PERSS Committee on a party-line vote, but was significantly amended. The amendments deleted provisions that would have essentially gutted the heart of the MMBA. The measure would have removed local public agency authority over representation petition and elections, and determinations on the appropriateness of units and impasse procedures and give that authority to PERB.
However, the bill retains provisions that would extend from 30 days to 60 days after declaration of impasse the time in which an employee organization, if a dispute was not submitted to mediation, could request that the public agency submit differences to a factfinding panel. If either party disputes that a genuine impasse has been reached, that question may be submitted to PERB for resolution before the dispute is submitted to the panel. 
There is no policy rationale for extending the timeframe to request factfinding, especially given that employee unions cannot waive their right to factfinding. Even if an employee union indicates that they are not going to request factfinding, there is an automatic 30-day clock that must run out before the process can proceed, which unnecessarily delays the contract negotiations process. This needless extension to 60 days discourages a timely resolution overall and is particularly problematic for agencies whose finances require resolution.
Both AB 537 and AB 616 now head to the Assembly Appropriations Committee for hearings on their fiscal implications.

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