AB 2126 was introduced by Assemblymember Bonta on February 20, 2014. AB 2126 would make the following changes to the MMBA:
- Impose mandatory mediation at the request of either party;
- Provide that any impasse over a mandatory subject of bargaining is subject to factfinding;
- Provide that factfinders only need to consider the statutory criteria relevant to a dispute.
Over the last few years there have been several attempts by legislators to impose mediation under the MMBA. AB 646 initially proposed mandatory mediation. So did AB 537. This is yet another attempt. As I’ve said before, I’m a supporter of mediation. However, I don’t think it’s effective when forced upon a party so I would rather the Legislature not make mediation mandatory.
In terms of the bill’s language regarding mediation, it’s a bit fuzzy on when mediation has to occur. The bill utilizes language modeled after the Dills Act which just says either party can request mediation if the parties “fail to reach agreement” “after a reasonable period of time.” So technically, it doesn’t require that you wait until impasse is declared. In contrast, EERA and HEERA only require mediation after an impasse has been declared.
Scope of Factfinding
Under current law, the union may request factfinding when there is an impasse in negotiations. There is a raging dispute right now as to what types of impasses are subject to factfinding. Many employers have taken the position that only impasses for a memorandum of understanding (MOU) are subject to factfinding. PERB has taken the position that any impasse over a negotiable subject is subject to factfinding. For example, under PERB’s view an impasse on effects bargaining would be subject to factfinding. To date, PERB’s view has been rejected in two superior court decisions: one involving the County of Riverside and the other involving San Diego Housing Commission. According to the legislative analysis, AB 2126 is a direct response to those superior court decisions. This bill would amend the MMBA to provide that factfinding is available in any impasse over a negotiable subject of bargaining.
Statutory Criteria for Factfinding
One of the justifications for only applying factfinding to MOU negotiations is that the statutory criteria set forth in the MMBA only makes sense in that context. And under current law, the factfinder must take into account all those statutory sections. This bill would change the statutory language to require consideration of the statutory criteria only if relevant to the dispute. Thus, if the impasse is over whether layoffs should be done in reverse order of seniority you wouldn’t need to consider the CPI index.
- I’m not a big fan of factfinding so I don’t want to see any expansion of it.
- As for mediation, I’m generally a supporter of it. I believe mediation should be utilized in almost every case prior to imposition of a LBFO. That said, mediation isn’t always effective if forced so I would rather not have it be mandatory. Also, many public employers already provide for mediation upon impasse in their local rules. But query, could a party demand mediation under AB 2126 before impasse and then demand it again after impasse under the local rules?
- One other interesting point. AB 2126 provides that its changes are declaratory of existing law. SB 979 doesn’t have that language. The courts have said that just because the Legislature says a change is declaratory of existing law doesn’t always make it so. This issue is important because the Riverside County and San Diego Housing Commission cases are both on appeal and involve the interpretation of the scope of the factfinding statute. AB 2126 clearly aims to stop those cases from going further.