Effective January 1, 2012, Fact Finding Now Required After Mediation and Before Imposing Last, Best and Final Offer

Governor Brown signed AB 646 – which amends the Meyers-Milias-Brown Act (“MMBA”) to require fact finding after mediation and before a local public agency may unilaterally implement its last, best and final offer. 

Effective January 1, 2012, when a local public agency has reached an impasse during collective bargaining with representatives of a recognized employee organization, the employee organization will be able to require the bargaining impasse to be submitted to a fact finding panel.  Specifically, if a mediator is unable to effect settlement between the parties within thirty (30) days of being appointed, the employee organization may request that the parties’ differences be submitted to a tri-partite fact finding panel consisting of one representative from each of the sides and a chairperson selected by the Public Employment Relations Board (“PERB”).  The parties may mutually agree on a different chairperson in lieu of the person selected by PERB within five (5) days after PERB selects the initial chairperson.  The costs for the services of the panel chairperson shall be split equally between the parties.

The fact finding panel is charged with making written findings of fact and advisory recommendations covering unresolved issues during negotiations.  The panel is empowered to conduct investigations, hold hearings and take any steps it deems appropriate to resolve the bargaining impasse, including the issuance of subpoenas requiring witness testimony and the production of evidence.  In arriving at their findings and recommendations, the panel is required to consider and apply numerous factors detailed in AB 646, including without limitation: (a) the interests and welfare of the public; (b) the financial ability of the public agency; (c) wages, hours and conditions of employment of employees performing similar services for comparable public agencies; (d) the consumer price index for goods and services; and (e) the overall compensation presently received by employees. 

If the impasse is not settled by the panel within thirty (30) days after their appointment, they must submit any findings of fact and recommended terms of settlement to the parties.  The public agency is required to make these findings and recommendations publicly available within ten (10) days of receiving them.  After applicable mediation and fact finding procedures have been exhausted, but no earlier than ten (10) days after the issuance of the panel’s written findings and recommendations, a public agency may implement its last, best and final offer.  Prior to doing so the agency must hold a public hearing regarding the impasse.  Charter cities and counties covered by binding arbitration are excluded from the fact finding requirements included in AB 646. 

Some ambiguities exist with respect to the scope and application of the fact finding process detailed in AB 646.  For instance, there is not a specific time limit for an employee organization to request fact finding, and it is unclear what happens if an employee organization fails to make a request within a reasonable period of time.  In addition, AB 646 did not amend the permissive language in the MMBA regarding submitting impasses to mediation, and states that the new fact finding process begins when “the mediator is unable to effect settlement of the controversy . . . .”  Accordingly, the statute is not clear how (and even whether) the fact finding process applies to local public agencies that do not have impasse resolution procedures that require mediation.

While the ultimate authority to impose terms and conditions of employment remains in the hands of local public agencies not covered by binding interest arbitration, AB 646 has major potential ramifications for the impasse resolution process for local public agencies.  We recommend that local agencies consult with competent legal counsel regarding the impact AB 646 will have on their agency, and to consider whether any revisions or amendments are necessary for their local impasse resolution procedures.