In a prior post, I discussed how AB 537 would make mediation mandatory under the MMBA. On April 17, AB 537 was significantly amended to make the following additional changes to the MMBA:
- Prohibits employers from proposing a negotiating ground rule that limits the ability of union negotiators to communicate directly with the employer’s governing body (i.e. city council, board of supervisors);
- Eliminates requirement that a tentative agreement (TA) on a MOU be approved by the governing body. Instead, the employer would be bound to a TA upon ratification by the union;
- Makes contractual arbitration subject to the California Arbitration Act; requires procedural defenses to arbitration to be submitted to the arbitrator; and mandates arbitration even where the conduct arguably constitutes an unfair practice;
- Requires changes to local rules to be subject to “meeting and conferring” with affected unions instead of “consultation.” Requires any impasse to be resolved through factfinding.
- Ground Rules: Assemblymember Bonta provided a fact sheet to support the amendments to AB 537. With respect to ground rules, Assemblymember Bonta correctly notes that ground rules often include a prohibition on negotiators going directly to the other parties’ principals. This means that union negotiators can’t go directly to the City Council (or other governing body) and that management negotiators can’t bargain directly with union members. Assemblymember Bonta calls the restrictions on union negotiators a “gag order” that “frustrates” the bargaining process. Tellingly, AB 537 does not allow management negotiators to communicate directly to union members. Because this provision is so one-sided, I hope that this particular provision is rejected.
- Ratification of MOU: I think this amendment is likely unconstitutional as applied to charter cities and counties. The Legislature can’t force a charter city of county to delegate authority over employee compensation (and other matters) to anyone other than the governing body. (See County of Riverside v. Superior Court (2003) 30 Cal.4th 278 (holding that Legislature cannot force charter cities and counties to submit to binding interest arbitration).) A larger objection to this amendment is that it is completely unnecessary. Assemblymember Bonta asserts that it’s a problem when a union ratifies a TA and then the governing body rejects it. I agree. But how often does that really occur? I’m sure it has occasionally but I can name many more instances where the union membership rejected a TA rather than the other way around. The reality is that a management negotiator is in communication with the governing body throughout negotiations. So the vast majority of the time when a management negotiator TA’s a MOU, it is virtually certain to be approved by the governing body. That’s why it’s almost a universal practice to require the union membership to ratify the agreement first. The reality is that someone – either the union or governing body – has to vote first. It just makes more sense to have the union ratify first since it is the bigger unknown. So I think this amendment is really a solution looking for a problem.
- Arbitration: Making arbitration explicitly subject to the California Arbitration Act isn’t really a big deal. That’s really already the case. Forcing parties to subject procedural defenses to an arbitration largely codifies existing law and practice. That said, I don’t like this latter provision because sometimes it’s crystal clear that an arbitration is untimely; and in those cases it’s a waste of time to have to go to arbitration. However, the bigger issue is the requirement to force a dispute to arbitration even where the conduct constitutes an unfair practice subject to PERB’s jurisdiction. The explicit goal of this bill is to overrule the holding in IAFF Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179 where the court declined to require arbitration where the conduct arguably constituted an unfair practice subject to PERB’s exclusive jurisdiction. The irony here is that in City of San Jose v. Operating Engineers (2010) 49 Cal.4th 597, the unions were the ones who asserted that PERB should have exclusive jurisdiction over conduct that arguably constitutes an unfair practice. Indeed, SEIU—who is a co-sponsor of AB 537—was one of the unions that submitted an amicus brief in the City of San Jose case urging the Court to give PERB exclusive initial jurisdiction! So part of me is happy that the unions have come around to see management’s position. But the troubling part is that the language of this bill is so unclear that it may allow a party to go to arbitration while simultaneously litigating the same issue before PERB. That would be even worse. I don’t have an objection to arbitration. Indeed, I generally prefer arbitration to going to PERB. But I really object to a union getting two bites at the apple by being allowed to do both for the same dispute.
- Local Rules. Currently, the MMBA says that changes to local rules are subject to “consultation.” Those of us in the labor community know that “consulting” is different than “meeting and conferring.” However, there have been two appellate cases interpreting this particular use of “consultation” to be the same as “meeting and conferring.” (See IAFF Local 1974 v. City of Pleasanton (1976) 56 Cal.App.3d 959; Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802.) So this amendment would codify the holding of those cases. I oppose this because I believe those cases got it wrong. But because of those cases, this amendment really doesn’t change existing law. The more significant change is the requirement that any impasse over local rules be submitted to factfinding. Based on recent litigation involving PERB, I believe that this provision is consistent with PERB’s current interpretation of the factfinding statute. But this would make it clear by putting it into the statute.