AB 537 Amended; CSAC Remains Opposed

Assembly Bill 537, by Assembly Member Rob Bonta, was amended last week to address major concerns raised by public agencies in opposition to the legislation. You can read a full summary of the bill here.

The September 3 amendments remove the section of the bill that would haveauthorized either party to request mediation if they fail to reach agreement, and if the parties do not reach agreement upon the appointment of a mediator within five days of that request, either party could request that the Public Employment Relations Board (PERB) appoint one. The amendments additionally removed the section in AB 537 that would require a public agency to engage in the meet and confer process before adopting reasonable rules and regulations governing the administration of employer-employee relations and that disputes related to that process would have to be resolved with factfinding.

While CSAC is pleased with the deletions of these sections of the bill, we remain gravely concerned with the following language remaining in the bill:

requiring that if a tentative agreement is reached by the public agency representatives and the employee organization that agreement would be presented to the governing body for determination and the governing body then has thirty days to reject the tentative agreement or it will be deemed adopted. CSAC believes this provision of AB 537 is unconstitutional. In 2003, the California Supreme Court ruled in Riverside, supra, 30 Cal.4th that “the Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county…money,…or perform municipal functions.” Boards of Supervisors delegate to staff the authority to negotiate labor agreements and the MMBA currently recognizes the constitutional authority of the Board to provide for the compensation of its employees, by allowing the tentative agreement to be non-binding until the Board of Supervisors acts to approve the contract with the employees. The Legislature cannot, by statute, remove the authority of the Board of Supervisors by saying that a tentative agreement is “deemed adopted” if not rejected.
Making the following changes to arbitration:

1. Applies the provisions of the California Arbitration Act to the enforcement of arbitration agreements under the MMBA;
2. Prohibits a rejection of a request for arbitration due to procedural challenges (timelines, failure to exhaust pre-arbitration remedies); and,
3. Makes an agreement to arbitrate a dispute enforceable, even if the conduct in question may also constitute an unfair labor practice. 

What is most concerning is the provision that requires disputes about timeliness or other procedural prerequisites be submitted to an arbitrator. Timeliness issues usually arise when an employee or his or her representative seeks arbitration of a grievance that might involve staff who is no longer with the employer or an issue that has since been changed by a subsequent agreement. Resolution of such procedural disputes is generally addressed in local rules or in Memoranda of Understanding. It does not make sense to require an employer to expend resources to mount a defense and pay an arbitrator who might determine that an arbitration request is untimely and therefore not going forward.

CSAC is working with the Administration to determine if our remaining concerns can be addressed; AB 537 is currently awaiting a vote on the Senate Floor.