Governor Brown Veto of AB 1550 Preserves Employer Option to Unilaterally Implement its Last, Best, and Final Offer After Impasse

Recently Governor Brown vetoed Assembly Bill 1550, which would have added 30 days to the already rigorous impasse procedures under the Educational Employee Relations Act (Government Code §§ 3540, et. seq.; “EERA”) impairing the ability of public employers to unilaterally implement a last, best, and final offer after completion of the statutory impasse process.

EERA provides the framework by which public employers and exclusive bargaining representatives meet and negotiate over the terms and conditions of employment.  It establishes an adequate mechanism designed to move employers and exclusive representatives toward the resolution of collective bargaining disputes by preserving a delicate balance between the two worst-case options: unilateral implementation for the employer, and strikes for the unions.  The proponents of AB 1550 claimed the bill would close a “loophole” in the collective bargaining process that allows public employers to unilaterally implement offers made in negotiations affecting the terms and conditions of employment.

Under existing law, an employer cannot unilaterally implement any proposal made at the bargaining table until after the completion of the rigorous, time-intensive impasse procedure outlined in EERA.  PERB has five days to determine if impasse exists and appoint a mediator after receipt of a request.  (Government Code § 3548.)  The impasse procedure provides for mediation, a fact-finding hearing before a three-person panel including a neutral appointee, the generation of a report from the fact-finding panel for consideration by the parties, consideration of the fact-finding report, and further negotiations following the generation of the report.  (Government Code §§ 3548 – 3548.8.)  PERB held that until completion of this process, employers are expressly prohibited from implementing a last, best and final offer.  (See, e.g., Moreno Valley Unified School District (1982) PERB Decision No. 206.)

AB 1550 would have required an employer to give an exclusive representative written notice at least 30 days prior to implementing the terms of a last, best, and final offer.  Additionally, AB 1550 would have extended the time allowed for PERB to appoint a mediator to ten working days.  Governor Brown’s decision to veto AB 1550 maintains the status quo, allowing school employers and employee organizations to continue resolving collective bargaining disputes under the existing structure.  In his veto message, Governor Brown properly recognized the adequacy of the existing impasse procedures:

Under current law employers are required to bargain in good faith and nothing has been shown to suggest that existing remedies are inadequate.  The record shows that the Public Employment Relations Board has been extremely vigilant in taking action to curb bad faith bargaining.

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