AB 1606 Amended To Prohibit Waiver Of Factfinding Right

AB 1606 was introduced by Assemblymember Perea on February 7, 2012. (See my prior post here.) As introduced, AB 1606 would clarify that mediation is not a prerequisite to fact-finding under the MMBA.

On May 17th, the bill was amended. The main amendment utilizes the language in PERB’s emergency regulations with respect to the deadlines for requesting fact-finding. However, a secondary amendment adds the following sentence to Government Code section 3505.4: “(e) The procedural right of an employee organization to request a factfinding panel cannot be expressly or voluntarily waived.”

[Note: The comments below have been edited since this post was published. I initially forgot to include some important clarifying comments. But even after the clarifications it still seemed confusing so I decided to edit the original comments]

Comments:

As I’ve mentioned before, I don’t have an objection to the clarifying language. This is especially true now that the bill utilizes the language from PERB’s regulation.
However, I am troubled by the additional amendment stating that the union’s right to fact-finding cannot be waived. It’s not clear why this language is necessary. I presume the language is in response to employers who have offered to do mediation if the union will agree to forego fact-finding. While the unions may not like that, I think this statutory change is a bit short-sighted.
Here’s why. When AB 646 was first enacted, there was disagreement among practitioners as to whether fact-finding was required if there was no mediation. Many employers have local rules that do not require either mediation or fact-finding upon impasse. For these public agencies, there would be a real disincentive to agree to voluntary mediation. This is because once you agree to mediation, even if voluntary, there is the argument that AB 646 requires that you go to fact-finding if the union requests it after mediation. While many employers will agree to voluntary mediation, few will agree to fact-finding if it can be avoided. So to deal with these situations, employers offered to go to mediation with the understanding that fact-finding will not be required if mediation failed. This amendment would presumably prohibit such agreements. I think it is short-sighted because the result will be that employers will not longer agree to mediation if not required. However, as noted below, it’s also unnecessary as the rest of this bill makes it clear that fact-finding is required whether or not there is mediation.
Because the PERB regulations, and this bill if it passes, make fact-finding available to unions whether or not there is mediation, there is no longer a disincentive for employers to agree to voluntary mediation. That said, the prohibition on waivers still seems unnecessary. The union can always say no to a request to waive fact-finding. However, what if the union can extract some concession from the employer in exchange for a waiver? If the union thinks it can make a good exchange why shouldn’t it be allowed to waive fact-finding? It seems to me that organized labor is unnecessarily tying its hands by prohibiting waivers of fact-finding.