AB 616 And AB 537: Effort Continues To Turn MMBA Into EERA/HEERA

AB 616 was introduced by Assemblymember Bocanegra on February 20, 2013. It was initially a spot bill making technical changes to the MMBA but was drastically amended on March 19, 2013. As amended, AB 616 would make the following significant changes to the MMBA:

Extend the union’s time to request factfinding if there is no mediation to 60 days, instead of 30 days;
Allow a party to dispute the declaration of impasse by submitting a challenge to PERB, which would have 5 working days from receipt of the challenge to issue a decision;
Adopt EERA’s definition of impasse: “that the parties to a dispute over a matter within the scope of representation have reached a point in meeting and negotiating at which their difference in position is so substantial or prolonged that future meetings would be futile”;
Eliminate the right of local entities to process unit determinations and conduct representation elections and give that duty to PERB;
Eliminate right of local entities to designate management and confidential employees and give that duty to PERB.

AB 537 was introduced by Assemblymember Bonta on February 20, 2013. It was also initially a spot bill making technical changes to the MMBA but was drastically amended on March 19, 2013. As amended, AB 537 would make the following change to the MMBA:

Make mediation after impasse mandatory if either party requests it.

Comments:

The MMBA came under PERB’s jurisdiction in 2001 with the passage of SB 739 the year before. When SB 739 was enacted, there was an understanding by local entities that local control over unit determination issues would remain. Indeed, the primary justification for SB 739 was to provide a mechanism to resolve disputes over unfair practice charges. SB 739 solved that issue by giving PERB jurisdiction to hear unfair practice charges. But critically, SB 739 did not touch local control over unit determination issues.
Since SB 739, there has been a steady movement by labor to gradually incorporate portions of EERA/HEERA into the MMBA. In 2011, it was the passage of AB 646 which provided for mandatory factfinding after impasse. Now we have AB 616 and AB 537.
AB 616 is by far the most drastic. The extension of the time for a union to request factfinding and the ability to challenge impasse declarations are both elements contained in EERA/HEERA. Considered independently, there might be an argument in favor of both of these changes. However, my cynical view of this legislation is that it is a further attempt by labor to make it more difficult for an employer to implement its last, best, final offer (LBFO). From labor’s viewpoint, employers often have their minds made up and bargain in bad faith with the only goal of getting to impasse in order to impose the LBFO. So labor’s response is to make that path more difficult.
However, the most drastic change contained in AB 616 is the removal from local control over unit determination and election issues. This is huge. As a practical matter, I do not believe that PERB has the resources to handle all the representational issues that arise in the local context. There are 58 counties, 482 incorporated cities, and many more special districts in California. For PERB to assume jurisdiction over the representational issues of all these entities would be a huge task. But most important, why is this change necessary? This bill is new so we don’t have a legislative analysis; but I’m anxious to see the justification for these changes. Unit determination and election issues have been under local control since the advent of the MMBA. In my mind, there is no reason for this dramatic change in the structure of the MMBA.
Finally, there is AB 537 which would make mediation mandatory. I generally support mediation. I believe mediation is almost always worth a shot before going further towards imposing a LBFO. However, I also feel this should be an issue left to local rules. I felt the same way with factfinding. So while I always encourage my clients to attempt mediation after impasse, I don’t like the idea of mediation being mandated by the legislature.