AB 537 Would Undermine Local Rulemaking in Collective Bargaining Procedures

A bill authored by Assembly Member Rob Bonta would make changes that are contrary to the central premise of the Meyers-Milias-Brown Act (MMBA), the collective bargaining law that has governed local public agencies since 1968 and permits each local agency to enact its own reasonable rules and regulations for governing employee relations. AB 537 would disregard local rulemaking in collective bargaining procedures and undermine counties’ constitutional right to provide for the compensation of their employees. Each of the provisions and associated opposition arguments of AB 537 is discussed in detail below.

Mandatory Mediation. AB 537 would authorize either party to request mediation if they fail to reach agreement, and specifies that if the parties do not reach agreement upon the appointment of a mediator within five days of that request, either party can request that the Public Employment Relations Board (PERB) appoint one.The decision whether to enter into mediation should remain a joint decision by both the employer and the employee representative. If both parties agree to mediation it is usually because they believe the process can productively resolve a dispute. If one party does not want mediation, it is likely because that party knows it has already moved as close as possible towards an agreement. The real effect of making mediation mandatory is to further delay the conclusion of labor negotiations, delays that are generally sought when employers are seeking concessions and employees want to preserve the status quo. The proposal for mandatory mediation follows AB 646 (Chapter 680, Statutes of 2012) which established the right of employees to request factfinding. Factfinding and mandatory mediation will add 90 days or more each to the bargaining timeline, a process that can already take 6 months or more.    

It is unlikely that there are enough mediators in the state to be appointed within 5 days of request as required by the bill. We expect a backlog of agencies waiting for a mediator would soon develop and do not believe lengthy drawn-out negotiation periods and employees working with expired contracts will promote full communication between public employers and their employees as intended by the MMBA.
The cost implications of mandatory mediation are significant. Currently, mediators are provided at no cost by the State Mediation and Conciliation Service (SMCS). However, it would be impossible for SMCS to absorb the workload proposed under AB 537. SMCS would need additional staff and parties would be forced to hire private mediators because the alternative would be further delaying the conclusion of negotiations. Private mediators routinely charge $1200 per day. Principles of economics suggest those rates will go higher with the increased demand for

Employee Relations Ordinances. AB 537 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 specifies that disputes related to that process would have to be resolved with factfinding

Subjecting local rules to a formal “meet and confer” process will require a separate negotiation with each bargaining unit and would likely result in employee representatives seeking different rules for each unit. A lack of uniform rules would cause chaos locally. In fact, we believe this is why the MMBA uses the language “in consultation” because drafters understood that it was not feasible to expect every bargaining until to separately agree to the same set of local rules. Local rules have evolved with local circumstances over decades and in consultation with employees.

Contract Ratification. AB 537 would require 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.

Ground Rules. AB 537 would prohibit a public agency from proposing, as a condition for meeting and conferring, ground rules that limit the right of an employee or employee organization to communicate with officials of the public agency.

Generally, local conditions dictate ground rules and CSAC does not believe is necessary to legislate in this area. Some counties may bargain without ground rules because of trusted relationships with employee representatives, others may never reach agreement on ground rules, so simply move forward with bargaining.
We do not feel that negotiations will be well-served by direct communication rather than through designated representatives. The authority of both parties to the negotiations in undermined when direct negotiation with a governing body is encouraged. Further, if an employee representative does not want to agree to such a rule they are not required to; they simply say no to that ground rule and move forward in bargaining.

Arbitration. AB 537 makes three changes to arbitration:

• Applies the provisions of the California Arbitration Act to the enforcement of arbitration agreements under the MMBA;
• Prohibits a rejection of a request for arbitration due to procedural challenges (timelines, failure to exhaust pre-arbitration remedies); and,
• 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 believes these changes are contrary to the central premise of MMBA. In addition, we believe these changes will result in significantly increased workload for the SMCS and the Public Employment Retirement Board (PERB), work that cannot be absorbed without detrimental effect on both agencies’ other obligations to public agencies.

AB 537 is awaiting a hearing date in the Senate Appropriations Committee. CSAC encourages counties to voice their opposition. A sample letter can be found here.

CSAC and other local agency associations have been monitoring progress on a number of measures that would reduce the vote threshold for approval of certain local taxes from 2/3 to 55 percent. Given the significant amount of focus this issue has received from Capitol watchers and from counties specifically, we thought it appropriate to provide an update on the latest legislative activity regarding this important topic.

For the most part, activity associated with these bills has been slow going. (Recall that legislative constitutional amendments are not subject to the same legislative deadlines that regular bills are; further, these measures require a 2/3 vote and do not require the Governor’s signature.) With the exception of ACA 8, a measure by former Assembly Member now Los Angeles City Councilmember Bob Blumenfield that would reduce the vote threshold for approval of certain infrastructure expenditures for public safety purposes, most bills remain at the policy committee level in their respective houses. 

ACA 8 was approved by the Assembly as part of the budget package in June on a party-line vote. The Senate, however, declined to take up the bill and instead decided to hold all bills that authorize lower voter approval thresholds to consider them as a whole sometime next year. The Legislature has until next summer to place items on the November 2014 ballot.

Here’s a rundown of the bills that affect local vote thresholds: