Thursday, February 17, 2011

AB 646 Would Impose Mandatory Mediation and Factfinding under the MMBA

AB 646 was introduced by Assemblymember Toni Atkins (D-San Diego) on February 16, 2011.  AB 646 would repeal the right of local agencies to impose a last, best, final offer (LBFO) upon reaching impasse.  AB 646 would instead introduce mandatory mediation and factfinding into the MMBA.  Under this bill, a local agency could not impose its LBFO until after the completion of these post-impasse procedures. The language of the bill can be found here.  The language in the bill establishing mediation and factfinding essentially mirrors the language under the Educational Employment Relations Act (EERA).


  1. When PERB took over jurisdiction for administering the MMBA in 2001, cities and counties were extremely concerned that PERB would try to override existing local rules governing labor relations with PERB's own rules.  As enacted, Senate Bill 739—which brought the MMBA under PERB’s jurisdiction—expressly provided that a local agency could adopt its own local rules and regulations. (Gov. Code, §3507.) This bill would eat away at that right by taking away the ability of a local agency to adopt impasse procedures.
  2. Virtually every local agency that has adopted local rules has adopted impasse procedures.  Many of the procedures simply allow the local agency to take appropriate action, including imposition of the LBFO, upon impasse. Many, if not most, provide for mediation.  Some local agencies even provide for factfinding.
  3. Under AB 646, mediation would become mandatory. I don’t have an objection to mediation as a post-impasse tool and almost always advise my clients to attempt mediation after a declaration of impasse, whether it is required or not. However, I think a local entity should have the right to decide for itself whether to require mediation in its local rules.
  4. Factfinding is more problematic.  AB 646 does leave open the possibility that factfinding will not be required if the mediator does not recommend it.  However, if EERA and HEERA are a guide, factfinding will almost always be recommended, and therefore required by AB 646.  I believe there are many situations where factfinding is not helpful to the process and only serves as a tool for delay.  If asked, I almost always advise local entities not to require factfinding in local rules.
  5. Perhaps a bigger problem with AB 646 is that PERB simply does not have the money to pay all the mediators and factfinders that would be required. For the last few years, the MMBA has either generated the most, or second most, number of unfair practice charges before PERB.  There are over 2 million employees covered by the MMBA.  Unless PERB is given a serious injection of funding, I don’t see how PERB could possibly fund this bill’s mandate.