HomeMy WebLinkAboutMINUTES - 04222014 - C.47RECOMMENDATION(S):
ADOPT an "Oppose" position on AB 2126, as amended (Bonta): Meyers-Milias-Brown Act: mediation, a bill that
would authorize either bargaining party in the collective bargaining process to request mediation if they fail to reach
agreement, as recommended by the Legislation Committee.
FISCAL IMPACT:
As written, AB 2126 poses an enormous cost and timeliness issue for local agencies. However, the impact on Contra
Costa County is unknowable at this time.
BACKGROUND:
Assembly Bill 2126, by Assembly Member Rob Bonta, has been amended to include language from Senate Bill 979,
by Senator Jim Beall.
In summary, AB 2126 does the following:
MANDATORY MEDIATION. The bill would allow either the public agency or employee organization to request
mediation if, after a reasonable period of time, the parties fail to reach agreement. The parties must agree upon the
appointment of a mediator within five days of the request and if they are unable to agree, either party can request that
PERB appoint a mediator (perb must then appoint a mediator within five days of that request).
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 04/22/2014 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: L. DeLaney,
925-335-1097
I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board
of Supervisors on the date shown.
ATTESTED: April 22, 2014
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 47
To:Board of Supervisors
From:LEGISLATION COMMITTEE
Date:April 22, 2014
Contra
Costa
County
Subject:Oppose Position on AB 2126, as amended, Bonta. Meyers-Milias-Brown Act: mediation.
BACKGROUND: (CONT'D)
SCOPE OF FACTFINDING. AB 2126 would allow differences arising from ANY dispute over ANY matter
within the scope of representation, when the obligation to meet and confer exists, to be submitted to a factfinding
panel. Currently, the ability for either party to request factfinding only applies to those disputes arising during
collective bargaining for a new or successor memorandum of understanding.
As written, AB 2126 poses an enormous cost and timeliness issue for local agencies. CSAC has taken a position
of "oppose" on AB 2126 and recommends that counties adopt a similar position. The Legislation Committee
requested at their April 3, 2014 meeting that this bill be sent to the Board of Supervisors for action.
Specifically, this bill:
1) Allows either the public agency or the recognized employee organization to request mediation if they fail to
reach agreement instead of requiring that both parties agree to proceed to mediations.
2) Requires that the parties agree upon the appointment of a mediator within five days of the request.
3) Specifies that if the parties fail to agree on the appointment of a mediator, either party may request the Public
Employment Relations Board (PERB) appoint a mediator and requires PERB to appoint the mediator within five
days of receiving the request.
4) Clarifies that included in the differences that may be submitted to a factfinding panel are differences that arise
from any dispute over any matter within the scope of representation as to which an obligation to meet and confer
exists and are not limited to negotiations after impasse after collective bargaining for a new or successor
memorandum of understanding.
5) Clarifies that the factfinding panel, when arriving at their findings and recommendations, is to be guided by
those specified criteria that the factfinders deem relevant to the dispute.
6) Clarifies that the procedural right of an employee organization to request a factfinding panel may be
voluntarily waived in writing by the organization.
Current Status: 04/02/2014: From ASSEMBLY Committee on PUBLIC EMPLOYEES, RETIREMENT AND
SOCIAL SECURITY: Do pass to Committee on APPROPRIATIONS
According to the sponsor, the California Professional Firefighters, "This bill conforms the mediation provisions of
the MMBA to those provisions of the Educational Employment Relations Act (EERA), the Dills Act and the
Higher Education Employer-Employee Relations Act (HEERA), thereby requiring mediation when requested by
either party.
Without conforming the mediation provisions of MMBA to the mediations provisions of EERA, the Dills Act and
HEERA, obstructionist parties governed by the MMBA will continue to employ tactics to reject compromise or
rush to impasse, thereby blocking the other party's attempt to request mediation in an effort to resolve differences.
Further, conforming the law in the manner proposed by AB 2126 will ensure that all parties remain at the
bargaining table while receiving valuable mediation assistance up to the point where either an agreement is
reached or one of the parties declares an impasse."
Regarding the factfinding provisions of the bill, in 2011, the legislature passed AB 646 which instituted a
factfinding process that could be invoked by employee organizations under the MMBA after a "written notice of a
declaration of impasse" or after a mediation process agreed upon by the parties or by local rule. PERB
subsequently promulgated regulations to implement the law, and in 2012 the Legislature passed AB 1606, in part
to codify those regulations.
According to supporters, "Some doubt has arisen as to whether the statutory factfinding process can be invoked
over impasse on any issue within the scope of representation, or whether the process is limited to disputes over the
negotiation of a memorandum of understanding. In two pending state court cases, public agencies have asserted
the latter position. See San Diego Housing Commission v. PERB (San Diego County Superior Court Case No.
37-2012-00087278) (filed as a writ of mandate on December 10, 2012); County of Riverside v. PERB (Riverside
County Superior Court Case No. RIC 1305661) (filed as writ of mandate on May 10, 2013). In the Riverside case,
the superior court has granted an injunction in favor of the County adopting its interpretation and ordering PERB
to dismiss pending factfinding cases that arise from negotiations of 'single meet and confer issues and not from
negotiations after impasse after collective bargaining for a new or successor MOU.'
"Similarly, on January 31, 2014 the San Diego court held that, 'PERB's construction that the factfinding
provisions of the MMBA apply to an impasse arising out of negotiations other than for a MOU, including an
impasse in a dispute over the effects and impacts of an employee layoff, is clearly erroneous.' Both, PERB and the
union involved have filed notices of appeal of the court's decision."
Supporters conclude, "The preferred and most efficient manner is to add a new subsection making clear that
factfinding applies to all bargainable disputes."
The California Association of Sanitation Agencies (CASA) states in their opposition letter to the bill, "CASA
believe that the provision in AB 2126 would unfairly benefit employee organizations by altering the current
standard of mutual consent for requesting mediation, which our agencies believe is fair and adequate. In
particular, CASA is concerned that this bill will give the employee organizations the ability to claim impasse
without input form the local agency thus diminishing the negotiating power of local agencies. CASA believes that
current impasse law is fair and adequate and that local agencies should maintain control of their management
rights."
The provisions of this bill are similar to one of the provisions included in AB 537 (Bonta), Chapter 785, Statutes
of 2013. These provisions, however, were deleted from the bill prior to passage.
AB 1606 (Perea), Chapter 314, Statutes of 2012, authorized an employee organization to request that the parties'
differences be submitted to a fact-finding panel not sooner than 30 days, but not more than 45 days, following the
appointment of a mediator or entering into a mediation process. If the dispute was not submitted to mediation, an
employee organization may request that the parties' differences be submitted to a fact-finding panel not later than
30 days following the date either party provided the other with written notice of a declaration of impasse.
AB 646 (Atkins), Chapter 680, Statutes of 2011, allowed local public employee organizations to request
fact-finding if a mediator is unable to reach a settlement within 30 days of appointment, defines certain
responsibilities of the fact-finding panel and interested parties, and made specified exemptions from these
provisions.
REGISTERED SUPPORT / OPPOSITION:
Support
California Professional Firefighters (Sponsor)
American Federation of State, County and Municipal Employees (Co-Sponsor)
Glendale City Employees Association
Organization of SMUD Employees
San Bernardino Public Employees Association
San Luis Obispo County Employees Association
Santa Rosa City Employees Association
Opposition
California Association of Sanitation Agencies
California Special Districts Association
ATTACHMENTS
AB 2126 Bill Text
AMENDED IN ASSEMBLY MARCH 26, 2014
california legislature—2013–14 regular session
ASSEMBLY BILL No. 2126
Introduced by Assembly Member Bonta
(Principal coauthor: Senator Beall)
February 20, 2014
An act to amend Section 3505.2 Sections 3505.2 and 3505.4 of the
Government Code, relating to public employment.
legislative counsel’s digest
AB 2126, as amended, Bonta. Meyers-Milias-Brown Act: mediation.
The Meyers-Milias-Brown Act requires the governing body of a local
public agency to meet and confer in good faith regarding wages, hours,
and other terms and conditions of employment with representatives of
a recognized employee organization. The act requires, if a tentative
agreement is reached and the governing body adopts the tentative
agreement, that the parties prepare jointly a non binding written
memorandum of understanding of the agreement. Under existing law,
if representatives of the public employee agency and the recognized
employee organization fail to reach agreement, the parties may agree
together upon the appointment of a mutually agreeable mediator.
This bill instead would permit either party to request mediation and
would require the parties to agree upon a mediator. If the parties cannot
agree upon a mediator, the bill would authorize either party to request
the board to mappoint a mediation appoint a mediator. The bill would
require the board to appoint a mediator within 5 days after receipt of
the party’s request, as prescribed.
The Meyers-Milias-Brown Act requires the Public Employment
Relations Board to determine in disputed cases whether a particular
98
item is within or without the scope of representation. Existing law
requires the governing body of a local public agency, or those boards,
commissions, administrative officers, or other representatives as may
be properly designated by law or by a governing body, to meet and
confer in good faith regarding wages, hours, and other terms and
conditions of employment with representatives of recognized employee
organizations. Existing law authorizes an employee organization to
request that the parties’ differences be submitted to a factfinding panel
not sooner than 30 days or more than 45 days following the appointment
or selection of a mediator pursuant to the parties’ agreement to mediate
or a mediation process required by a public agency’s local rules.
Existing law authorizes an employee organization, if the dispute was
not submitted to a mediation, to request that the parties’ differences be
submitted to a factfinding panel not later than 30 days following the
date that either party provided the other with a written notice of a
declaration of impasse. Existing law prohibits an employee
organization’s procedural right to request a factfinding panel from
being waived expressly or voluntarily.
This bill would authorize differences under these provisions to include
those differences that arise from any dispute over any matter within the
scope of representation as to which an obligation to meet and confer
exists, and are not limited to negotiations after impasse after collective
bargaining for a new or successor memorandum of understanding. The
bill would limit the criteria that the factfinders would be required to
consider to those criteria that the factfinders deem relevant to the
dispute. The bill would authorize an employee organization to
voluntarily waive the right to request a factfinding panel, in writing.
The bill would include legislative findings and declarations that certain
of these amendments are clarifying and declaratory of existing law.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 3505.2 of the Government Code is
line 2 amended to read:
line 3 3505.2. If after a reasonable period of time, representatives of
line 4 the public agency and the recognized employee organization fail
line 5 to reach agreement, either the public agency or the recognized
line 6 employee organization or recognized employee organizations may
98
— 2 —AB 2126
line 1 request mediation. Within five days of a request by one of the
line 2 parties, both of the parties shall agree upon the appointment of a
line 3 mediator mutually agreeable to the parties. If the parties fail to
line 4 agree upon the selection of a mediator within five days, either
line 5 party may request that the board appoint a mediator. No later than
line 6 five days after the receipt of either party’s request, the board shall
line 7 appoint a mediator in accordance with the rules prescribed by the
line 8 board. Costs of mediation shall be divided one-half to the public
line 9 agency and one-half to the recognized employee organization or
line 10 recognized employee organizations.
line 11 SEC. 2. Section 3505.4 of the Government Code is amended
line 12 to read:
line 13 3505.4. (a) (1) The employee organization may request that
line 14 the parties’ differences be submitted to a factfinding panel not
line 15 sooner than 30 days, but not more than 45 days, following the
line 16 appointment or selection of a mediator pursuant to the parties’
line 17 agreement to mediate or a mediation process required by a public
line 18 agency’s local rules. If the dispute was not submitted to mediation,
line 19 an employee organization may request that the parties’ differences
line 20 be submitted to a factfinding panel not later than 30 days following
line 21 the date that either party provided the other with a written notice
line 22 of a declaration of impasse. Within five days after receipt of the
line 23 written request, each party shall select a person to serve as its
line 24 member of the factfinding panel. The Public Employment Relations
line 25 Board shall, within five days after the selection of panel members
line 26 by the parties, select a chairperson of the factfinding panel.
line 27 (2) For purposes of paragraph (1), differences between the
line 28 parties that are subject to a request by the employee organization
line 29 for submission to a factfinding panel may include differences that
line 30 arise from any dispute over any matter within the scope of
line 31 representation as to which an obligation to meet and confer exists
line 32 under Section 3505 and are not limited to negotiations after
line 33 impasse after collective bargaining for a new or successor
line 34 memorandum of understanding.
line 35 (b) Within five days after the board selects a chairperson of the
line 36 factfinding panel, the parties may mutually agree upon a person
line 37 to serve as chairperson in lieu of the person selected by the board.
line 38 (c) The panel shall, within 10 days after its appointment, meet
line 39 with the parties or their representatives, either jointly or separately,
line 40 and may make inquiries and investigations, hold hearings, and
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AB 2126— 3 —
line 1 take any other steps it deems appropriate. For the purpose of the
line 2 hearings, investigations, and inquiries, the panel shall have the
line 3 power to issue subpoenas requiring the attendance and testimony
line 4 of witnesses and the production of evidence. Any state agency, as
line 5 defined in Section 11000, the California State University, or any
line 6 political subdivision of the state, including any board of education,
line 7 shall furnish the panel, upon its request, with all records, papers,
line 8 and information in their possession relating to any matter under
line 9 investigation by or in issue before the panel.
line 10 (d) In arriving at their findings and recommendations, the
line 11 factfinders shall consider, weigh, and be guided by all the following
line 12 criteria that the factfinders deem to be relevant to the dispute:
line 13 (1) State and federal laws that are applicable to the employer.
line 14 (2) Local rules, regulations, or ordinances.
line 15 (3) Stipulations of the parties.
line 16 (4) The interests and welfare of the public and the financial
line 17 ability of the public agency.
line 18 (5) Comparison of the wages, hours, and conditions of
line 19 employment of the employees involved in the factfinding
line 20 proceeding with the wages, hours, and conditions of employment
line 21 of other employees performing similar services in comparable
line 22 public agencies.
line 23 (6) The consumer price index for goods and services, commonly
line 24 known as the cost of living.
line 25 (7) The overall compensation presently received by the
line 26 employees, including direct wage compensation, vacations,
line 27 holidays, and other excused time, insurance and pensions, medical
line 28 and hospitalization benefits, the continuity and stability of
line 29 employment, and all other benefits received.
line 30 (8) Any other facts factors, not confined to those specified in
line 31 paragraphs (1) to (7), inclusive, which are normally or traditionally
line 32 taken into consideration in making the findings and
line 33 recommendations.
line 34 (e) The procedural right of an employee organization to request
line 35 a factfinding panel cannot be expressly or voluntarily waived may
line 36 be voluntarily waived, in writing, by the organization.
line 37 SEC. 3. The Legislature finds and declares that the amendments
line 38 made by this act to subdivisions (a) and (d) of Section 3505.4 of
98
— 4 —AB 2126
line 1 the Government Code are clarifying and declaratory of existing
line 2 law.
O
98
AB 2126— 5 —