BARGAINING TO IMPASSE: MANDATED FACT-FINDING

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BARGAINING TO IMPASSE MANDATED FACT-FINDING
THE NEW PERB REGULATIONS

• Presented by
• Christopher W. Miller, SCOPO General Counsel
• Mastagni, Holstedt, Amick, Miller Johnsen

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Impasse Fact-Finding

• AB 646
• Duty to Bargain
• Definition of Impasse
• Mediation
• Fact-Finding Procedures

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AB 646 Fact-Finding

• A.B. 646 took effect January 1, 2012
• Legislation allows a public employee organization
  to request fact-finding if a mediator is unable
  to reach a settlement during impasse
• Legislation amended the Meyers-Milias-Brown Act
  (Gov. Code 3505.4) to allow for fact-finding
  panel

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Duty to Bargain

• MMBA requires public employers and recognized
  labor associations to meet and confer in good
  faith on matters within the scope of
  representation
• Good faith means willingness to reach agreement
  through a serious attempt to resolve differences
  and reach common ground
• During negotiations, but prior to impasse, the
  employer cannot unilaterally change benefits
  specified in the expired MOU

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What is Impasse?

• Impasse is a deadlock or stalemate in bargaining
  declared by one or both parties
• Impasse occurs when differences on matters to be
  included in a MOU remain so substantial and
  prolonged that further negotiation would be
  futile
• Either party may declare impasse when other side
  is not providing any alternative proposals to
  promote the bargaining process

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Old MMBA Impasse Procedures

• Impasse usually precedes implementation of
  impasse resolution procedures or imposition, if
  no procedures exist
• ER can implement last, best, and final offer
  after exhausting impasse procedures
• Impasse procedures based on local rules/MOU
• Mediation usually optional (Gov. Code 3505.2)

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New Impasse ProceduresGov. Code 3505.4

• If the mediator is unable to effect settlement
  of the controversy within 30 days after his or
  her appointment, the employee organization may
  request that the parties differences be
  submitted to a fact-finding panel
• Purpose prevent agencies from unilaterally
  imposing a last, best and final offer upon
  reaching impasse with relevant employee
  organizations

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What is Fact-Finding?

• Fact-finding

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Can employers dodge fact-finding by refusing to
go to mediation?

• Arguably, Section 3505.7s requirement that
  after any applicable mediation and factfinding
  procedures have been exhausteda public agency .
  . . may, after holding a public hearing regarding
  impasse, implement its last, best, and final
  offer mandates fact-finding prior to
  implementation of the LBF Offer.
• Thus, even if fact-finding is not mandatory, it
  must be completed before implementation of terms.
  

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Timelines for Impasse Procedures

• Within 5 days of fact-finding request each party
  must select a person to serve as its member of
  the fact-finding panel
• PERB will select chairperson (neutral) of panel
  within 5 days of selection of parties panel
  members
• Parties may agree on different chairperson within
  5days after PERB makes selection.

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Timelines Cont.

• The panel shall, within 10 days after its
  appointment, meet with the parties or their
  representatives, either jointly or separately,
  and may make inquiries and investigations, hold
  hearings, and take any other steps it deems
  appropriate.
• If matter not settled within 30 days after
  panels appointment or, upon agreement for a
  longer period, the panel shall make advisory
  findings of fact and recommend terms of
  settlement.
• The findings of fact and recommended terms must
  be submitted to the parties before they are made
  available to the public and made publically
  available 10 days later.

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Criteria for Findings and Recomendations

1. State and federal laws that are applicable to the
   employer.
2. Local rules, regulations, or ordinances.
3. Stipulations of the parties.
4. The interests and welfare of the public and the
   financial ability of the public agency.
5. Comparison of the wages, hours, and conditions of
   employment of the employees involved in the
   fact-finding proceeding with the wages, hours,
   and conditions of employment of other employees
   performing similar services in comparable public
   agencies.
6. The consumer price index for goods and services,
   commonly known as the cost of living.
7. The overall compensation presently received by
   the employees, including direct wage
   compensation, vacations, holidays, and other
   excused time, insurance and pensions, medical and
   hospitalization benefits, the continuity and
   stability of employment, and all other benefits
   received.
8. Any other facts, not confined to those specified
   in paragraphs (1) to (7), inclusive, which are
   normally or traditionally taken into
   consideration in making the findings and
   recommendations.

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PANEL POWERS

• The panel shall have the power to issue subpoenas
  requiring the attendance and testimony of
  witnesses and the production of evidence.
• The agency shall furnish the panel, upon its
  request, with all records, papers, and
  information in their possession relating to any
  matter under investigation by or in issue before
  the panel.

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Unilateral Implementation of L,B,F Offer After
fact-finding

• After applicable mediation and fact-finding
  procedures have been exhausted the agency may
  implement its last, best, and final offer.
• Must wait at least 10 days after fact-finding
  recommendations submitted to parties.
• Must hold public impasse hearing.
• Can only implement terms and conditions, not
  MOU.
• Union retains right to meet and confer each year
  prior to the annual budget over matters within
  scope of representation (whether covered by
  imposed terms or not)

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Additional Provisions UnderAB 646

• fact-finding provisions not applicable to charter
  cities or counties with impasse procedures in
  charter that provide for binding arbitration.
• Costs of panel chairperson equally divided
  between parties.
• Peace Officer Unions not exempt from the
  fact-finding requirement.
• Jurisdiction to Enforce Peace Officer? Sup. Ct.

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PERB EMERGENCY REGS FILL SOME GAPS IN THE
LEGISLATION
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Section 32802

• An exclusive representative may request that the
  parties' differences be submitted to a
  fact-finding panel.
• The request shall be accompanied by a statement
  that the parties have been unable to effect a
  settlement.

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Request to PERB must be filed

1. Not sooner than 30 days, but not more than 45
   days, following the appointment or selection of
   mediator pursuant either to the parties'
   agreement or mediation process required by local
   rules or
2. If impasse not submitted to mediation, not later
   than 30 days following the date either party
   provided the other with written notice of a
   declaration of impasse.

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Procedural Requirements

• A request for fact-finding must be filed with the
  appropriate regional office with PROOF OF
  SERVICE.
• In five days from filing, PERB will notify the
  parties of its acceptance and request designation
  of their panel members within 5 PERB working
  days. (Name and Contact Info)

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PROFESSIONAL RESPONSIBILITY

• No action will be taken on defective claims and
  PERBs determination of sufficiency is NOT
  APEALLABLE
• Have Staff calendar the come ups for requesting
  fact-finding and designating panel members.
• Make sure clients understand and retainers
  clarify that Fact Finding is generally not
  covered and must be hourly. Discuss with MWJ and
  DEM.

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Section 32804Appointment of Chair

• If request sufficient, with in 5 days PERB will
  submit the names of 7 neutral fact-finders.
• If the parties cannot agree upon a fact-finder
  within 5 working days, PERB will assign one from
  the list.
• PERB not responsible for any costs.

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Impact of AB 646

• Longer negotiation period if fact-finding used
  and greater costs (approx. 100 days)
• Must conduct negotiations with understanding that
  FF may follow Clear and concise note, records of
  proposals, gather evidence, information requests,
  financial analysis
• Negotiations will be more data/evidence driven.

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Tactics to Expect

• Revision of local rules regarding fact-finding
  timelines.
• Mandating a much earlier and mandatory start of
  negotiations.
• Arbitrary deadlines for impasse and completion of
  mediation
• Timing to complete FF and impose before June 30th

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Negotiation Preparation

• Review ER-EE relations policy and MOU.
• Poll members, identify proposals and keep
  detailed notes.
• Develop proposals and gather supporting evidence.
• Retain financial experts if inability to pay is
  anticipated as a defense.
• Prepare comparable surveys and be able to
  manipulate and adjust at hearing.
• Strategize. Is Impasse likely? Prioritize issues
  for impasse.

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Tips During Negotiations

• Request financial information early in the
  process so expert witnesses can prepare reports
  and presentation.
• Gather supporting evidence and witness for
  proposals in anticipation of fact-finding.
• Prepare responses to employer proposals and
  counter-offers. (Avoids ability of agency to
  claim deadlock.)
• Do not rush to Impasse. Almost NEVER declare
  impasse written consent of client if do so.
  Eliminates ability to argue artificial deadlines
  or refusal to bargain.
• Longer process delays concessions in this
  economy.

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Selection of Agency Panel Member

• Strong oral advocacy skills
• Knows MMBA
• Understands economic issues and public finances
• Understands comparables and surveys
• Usually member of negotiating team

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What To Expect at Fact-FindingHearing

• Panel Chair conducts proceedings
• Generally informal Relaxed rules of evidence
• Each side presents evidence on issues in dispute.
  
• Party proposing a change in policy or terms has
  burden of proof and must go first

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Preparation for FF Hearing

• Select appropriate spokesperson (usually
  attorney)
• Prepare fact-finding Binder/Notebook Exhibits
• Identify witnesses
• Confirm TAs and select issues to be submitted to
  panel.

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What to Do Post Fact-Finding

• During 10-day period following fact-finding,
  finalize public information campaign and prepare
  for public impasse hearing.
• Meet and confer with Employer to attempt to reach
  agreement before impasse hearing.

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POTENTIAL LEGAL CHALLENGES

• Unlawful changes to Impasse Procedures
• Mandated Early Negations
• Artificial Deadlines for Initiating Mediation and
  Fact-Finding
• Attempts to Define Financial Documents or
  Summaries to be Produced
• Normal challenges to imposed terms still
  available, but may be strengthened or weakened by
  Panel recommendations
• Imposing terms differing form recommendations not
  sufficient to prove ULP

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QUESTIONS?