AB 646 provides factfinding for all public employees covered by the Meyers-Milias Brown Act, unless the parties have binding interest arbitration. On November 8, 2011, the Public Employment Relations Board (PERB) held a meeting in Oakland on the implementation of AB 646. The meeting previewed two issues public safety unions will likely face as the law goes into effect:
1) Can employers dodge fact-finding by refusing to go to mediation?
AB 646 provides for factfinding after mediation. However, many local rules make mediation voluntary, raising a concern some employers may refuse to go to mediation to avoid fact-finding and then move unilaterally to impose terms and conditions as soon as impasse is reached in negotiations. Government Code section 3505.7 states, “After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5 a public agency . . . may, after holding a public hearing regarding impasse, implement its last, best, and final offer. . .” This language mandates factfinding, a review of a factfinders’ report and a public hearing prior to an employer imposing terms and conditions of employment. Thus, if an employer refuses to engage in factfinding, it cannot comply with the terms of the statute and should be barred from imposing terms.
2) Does AB 646 affect PERB jurisdiction over Penal Code section 830.1 peace officers?
Government Code section 3511 exempts Penal Code section 830.1 peace officers from PERB’s exclusive jurisdiction, allowing them to go to superior court instead. Since AB 646 was adopted, some have argued it gives PERB more authority over peace officers because it requires PERB to “select a chairperson of the factfinding panel.” However, the more sensible view is that AB 646 does no more than it says: PERB appoints the chair of factfinding panels, but if an unfair labor practice arises during the factfinding process, Penal Code section 830.1 peace officers’ labor associations can continue to seek remedies in superior court.
The next step in implementing AB 646 is for PERB to adopt regulations interpreting the statute. PERB is accepting comments and suggests until November 18, 2011 as it prepares to roll out regulations prior to the law's effective date of January 1, 2012.
1) Can employers dodge fact-finding by refusing to go to mediation?
AB 646 provides for factfinding after mediation. However, many local rules make mediation voluntary, raising a concern some employers may refuse to go to mediation to avoid fact-finding and then move unilaterally to impose terms and conditions as soon as impasse is reached in negotiations. Government Code section 3505.7 states, “After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5 a public agency . . . may, after holding a public hearing regarding impasse, implement its last, best, and final offer. . .” This language mandates factfinding, a review of a factfinders’ report and a public hearing prior to an employer imposing terms and conditions of employment. Thus, if an employer refuses to engage in factfinding, it cannot comply with the terms of the statute and should be barred from imposing terms.
2) Does AB 646 affect PERB jurisdiction over Penal Code section 830.1 peace officers?
Government Code section 3511 exempts Penal Code section 830.1 peace officers from PERB’s exclusive jurisdiction, allowing them to go to superior court instead. Since AB 646 was adopted, some have argued it gives PERB more authority over peace officers because it requires PERB to “select a chairperson of the factfinding panel.” However, the more sensible view is that AB 646 does no more than it says: PERB appoints the chair of factfinding panels, but if an unfair labor practice arises during the factfinding process, Penal Code section 830.1 peace officers’ labor associations can continue to seek remedies in superior court.
The next step in implementing AB 646 is for PERB to adopt regulations interpreting the statute. PERB is accepting comments and suggests until November 18, 2011 as it prepares to roll out regulations prior to the law's effective date of January 1, 2012.
