California’s local public agency employers are grappling with new Legislation that became effective January 1, 2012 which has broad implications in dealing with employee organizations. Governor Brown signed into law AB 646 (Stats. 2011, Ch. 680) authorizing public sector unions the right to demand that a dispute with a local governmental entity be submitted to a fact finding panel before the employer can implement its last best and final offer. The new law requires all political subdivisions of the state to comply with the panel’s requests for information and effectively repeals the right of California governmental bodies to unilaterally impose a last, best and final offer upon reaching impasse with relevant employee organizations.
AB 646, which amends the Meyers-Milias-Brown Act (MMBA), requires that the fact finding panel consist of one member selected by each party as well as a chairperson selected by the Public Employer Relations Board (PERB) or by agreement of the parties. The fact finding panel is authorized to make investigations and hold hearings, and to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence.
Previously, the MMBA required local public agencies to meet and confer in good faith with a recognized employee organization before implementing changes regarding items within the “scope of representation.” If bargaining did not result in agreement between the public employer and the employee organization, the parties are said to have reached “impasse” and relevant impasse resolution procedures could come into play. The MMBA allowed governmental agencies to adopt their own local impasse procedures. (Cal. Gov. Code § 3507.)
But now a public agency is prohibited from implementing its last, best, and final offer until at least 10 days after the fact finders’ written findings of fact and recommended terms of settlement have been submitted to the parties and the agency has held a public hearing regarding the impasse.
Following passage of AB 646, there has been much speculation and uncertainty regarding implementation of the bill’s provisions. For example, the measure calls for fact finding procedures after mediation but not all local impasse procedures provide for mediation. As such, PERB recommended emergency regulations while it proposed more extensive regulations through the normal rulemaking procedure process.
Effective January 1, 2012, the Office of Administrative Law (OAL) approved PERB’s emergency regulations, which will expire on June 30, 2012. Under the emergency regulations, if the parties participate in mediation, the employee organization must request fact-finding no sooner than 30 days, but no later than 45 days, after the appointment of the mediator. If the parties do not participate in mediation, the employee organization must request fact-finding no later than 30 days after either party declared impasse.
Other ambiguities may be addressed through PERB’s rulemaking process in the coming months. However, most experts believe that many of the measure’s provisions will be subject to litigation as questions remain regarding AB 646’s scope and implementation.