BARGAINING TO IMPASSE: BARGAINING TO IMPASSE: MANDATED FACT-FINDING &MANDATED FACT-FINDING &

THE NEW PERB REGULATIONSTHE NEW PERB REGULATIONS

Presented by Presented by Christopher W. Miller, SCOPO General CounselChristopher W. Miller, SCOPO General Counsel

Mastagni, Holstedt, Amick, Miller & JohnsenMastagni, Holstedt, Amick, Miller & Johnsen

Impasse & Fact-FindingImpasse & Fact-Finding

AB 646AB 646

Duty to BargainDuty to Bargain

Definition of ImpasseDefinition of Impasse

MediationMediation

Fact-Finding ProceduresFact-Finding Procedures

AB 646 & Fact-FindingAB 646 & Fact-Finding

A.B. 646 took effect January 1, 2012A.B. 646 took effect January 1, 2012

Legislation allows a public employee Legislation allows a public employee organization to request fact-finding if a organization to request fact-finding if a mediator is unable to reach a settlement during mediator is unable to reach a settlement during impasseimpasse

Legislation amended the Meyers-Milias-Legislation amended the Meyers-Milias-Brown Act (Gov. Code § 3505.4) to allow for Brown Act (Gov. Code § 3505.4) to allow for fact-finding panelfact-finding panel

Duty to BargainDuty to Bargain

MMBA requires public employers and MMBA requires public employers and recognized labor associations to meet and recognized labor associations to meet and confer in good faith on matters within the confer in good faith on matters within the “scope of representation”“scope of representation”

““Good faith” means willingness to reach Good faith” means willingness to reach agreement through a serious attempt to resolve agreement through a serious attempt to resolve differences and reach common grounddifferences and reach common ground

During negotiations, but prior to impasse, the During negotiations, but prior to impasse, the

employer cannot unilaterally change benefits employer cannot unilaterally change benefits specified in the expired MOU specified in the expired MOU

What is Impasse?What is Impasse?

Impasse is a deadlock or stalemate in bargaining Impasse is a deadlock or stalemate in bargaining declared by one or both partiesdeclared by one or both parties

Impasse occurs when differences on matters to Impasse occurs when differences on matters to be included in a MOU remain so substantial and be included in a MOU remain so substantial and prolonged that further negotiation would be prolonged that further negotiation would be futilefutile

Either party may declare impasse when other Either party may declare impasse when other side is not providing any alternative proposals to side is not providing any alternative proposals to promote the bargaining processpromote the bargaining process

Old MMBA Impasse ProceduresOld MMBA Impasse Procedures

Impasse usually precedes implementation of Impasse usually precedes implementation of impasse resolution procedures or imposition, if impasse resolution procedures or imposition, if no procedures existno procedures exist

ER can implement “last, best, and final offer” ER can implement “last, best, and final offer” after exhausting impasse proceduresafter exhausting impasse procedures

Impasse procedures based on local rules/MOUImpasse procedures based on local rules/MOU

Mediation usually optional (Gov. Code § Mediation usually optional (Gov. Code § 3505.2)3505.2)

New Impasse Procedures:Procedures:Gov. Code § 3505.4 Gov. Code § 3505.4

““If the mediator is unable to effect settlement If the mediator is unable to effect settlement of the controversy within 30 days after his or of the controversy within 30 days after his or her appointment, the her appointment, the employee organization employee organization may request that the parties’ differences be may request that the parties’ differences be submitted to a fact-finding panel” submitted to a fact-finding panel”

Purpose: prevent agencies from unilaterally Purpose: prevent agencies from unilaterally imposing a last, best and final offer upon imposing a last, best and final offer upon reaching impasse with relevant employee reaching impasse with relevant employee organizationsorganizations

What is Fact-Finding?What is Fact-Finding?

““Fact-finding” Fact-finding”

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

Arguably, Section 3505.7’s requirement that Arguably, Section 3505.7’s requirement that “[a]fter any applicable mediation and “[a]fter any applicable mediation and factfinding procedures have been exhausted…factfinding procedures have been exhausted…a public agency . . . may, after holding a public a public agency . . . may, after holding a public hearing regarding impasse, implement its last, hearing regarding impasse, implement its last, best, and final offer” mandates fact-finding best, and final offer” mandates fact-finding prior to implementation of the LBF Offer.prior to implementation of the LBF Offer.

Thus, even if fact-finding is not mandatory, it Thus, even if fact-finding is not mandatory, it must be completed before implementation of must be completed before implementation of terms. terms.

Timelines for Impasse ProceduresTimelines for Impasse Procedures

Within 5 days of fact-finding request each Within 5 days of fact-finding request each party must select a person to serve as its party must select a person to serve as its member of the fact-finding panelmember of the fact-finding panel

PERB will select chairperson (neutral) of PERB will select chairperson (neutral) of panel within 5 days of selection of parties’ panel within 5 days of selection of parties’ panel memberspanel members

Parties may agree on different chairperson Parties may agree on different chairperson within 5days after PERB makes selection.within 5days after PERB makes selection.

Timelines Cont.Timelines Cont.

The panel shall, within 10 days after its The panel shall, within 10 days after its appointment, meet with the parties or their appointment, meet with the parties or their representatives, either jointly or separately, and representatives, either jointly or separately, and may make inquiries and investigations, hold may make inquiries and investigations, hold hearings, and take any other steps it deems hearings, and take any other steps it deems appropriate. appropriate.

If matter not settled within 30 days after panel’s If matter not settled within 30 days after panel’s appointment or, upon agreement for a longer appointment or, upon agreement for a longer period, the panel shall make advisory findings of period, the panel shall make advisory findings of fact and recommend terms of settlement.fact and recommend terms of settlement.

The findings of fact and recommended terms must The findings of fact and recommended terms must be submitted to the parties before they are made be submitted to the parties before they are made available to the public and made publically available to the public and made publically available 10 days later. available 10 days later.

Criteria for Findings and Criteria for Findings and RecomendationsRecomendations

1.1. State and federal laws that are applicable to the employer.State and federal laws that are applicable to the employer.2.2. Local rules, regulations, or ordinances.Local rules, regulations, or ordinances.3.3. Stipulations of the parties.Stipulations of the parties.4.4. The interests and welfare of the public and the financial ability of The interests and welfare of the public and the financial ability of

the public agency.the public agency.5.5. Comparison of the wages, hours, and conditions of employment Comparison of the wages, hours, and conditions of employment

of the employees involved in the fact-finding proceeding with the of the employees involved in the fact-finding proceeding with the wages, hours, and conditions of employment of other employees wages, hours, and conditions of employment of other employees performing similar services in comparable public agencies.performing similar services in comparable public agencies.

6.6. The consumer price index for goods and services, commonly The consumer price index for goods and services, commonly known as the cost of living.known as the cost of living.

7.7. The overall compensation presently received by the employees, The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of hospitalization benefits, the continuity and stability of employment, and all other benefits received.employment, and all other benefits received.

8.8. Any other facts, not confined to those specified in paragraphs (1) Any other facts, not confined to those specified in paragraphs (1) to (7), inclusive, which are normally or traditionally taken into to (7), inclusive, which are normally or traditionally taken into consideration in making the findings and recommendations. consideration in making the findings and recommendations.

PANEL POWERSPANEL POWERS

The panel shall have the power to issue The panel shall have the power to issue subpoenas requiring the attendance and subpoenas requiring the attendance and testimony of witnesses and the production testimony of witnesses and the production of evidence.of evidence.

The agency shall furnish the panel, upon its The agency shall furnish the panel, upon its request, with all records, papers, and request, with all records, papers, and information in their possession relating to information in their possession relating to any matter under investigation by or in issue any matter under investigation by or in issue before the panel.before the panel.

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

After applicable mediation and fact-finding After applicable mediation and fact-finding procedures have been exhausted the agency procedures have been exhausted the agency may implement its last, best, and final offer. may implement its last, best, and final offer.

Must wait at least 10 days after fact-finding Must wait at least 10 days after fact-finding recommendations submitted to parties.recommendations submitted to parties.

Must hold public impasse hearing. Must hold public impasse hearing. Can only implement terms and conditions, not Can only implement terms and conditions, not

“MOU.”“MOU.” Union retains right to meet and confer each year prior Union retains right to meet and confer each year prior

to the annual budget over matters within scope of to the annual budget over matters within scope of representation (whether covered by imposed terms or representation (whether covered by imposed terms or not)not)

Additional Provisions UnderAdditional Provisions UnderAB 646AB 646

fact-finding provisions not applicable to fact-finding provisions not applicable to charter cities or counties with impasse charter cities or counties with impasse procedures in charter that provide for binding procedures in charter that provide for binding arbitration.arbitration.

Costs of panel chairperson equally divided Costs of panel chairperson equally divided between parties.between parties.

Peace Officer Unions not exempt from the Peace Officer Unions not exempt from the fact-finding requirement.fact-finding requirement.

Jurisdiction to Enforce Peace Officer? Sup. Ct. Jurisdiction to Enforce Peace Officer? Sup. Ct.

PERB EMERGENCY REGS FILL PERB EMERGENCY REGS FILL SOME GAPS IN THE SOME GAPS IN THE

LEGISLATION LEGISLATION

Section 32802Section 32802

An exclusive representative may request An exclusive representative may request that the parties' differences be submitted that the parties' differences be submitted to a fact-finding panel. to a fact-finding panel.

The request shall be accompanied by a The request shall be accompanied by a statement that the parties have been statement that the parties have been unable to effect a settlement.unable to effect a settlement.

Request to PERB must be filed: Request to PERB must be filed:

1.1. Not sooner than 30 days, but not more than 45 Not sooner than 30 days, but not more than 45 days, following the appointment or selection of days, following the appointment or selection of mediator pursuant either to the parties' agreement mediator pursuant either to the parties' agreement or mediation process required by local rules; oror mediation process required by local rules; or

2.2. If impasse not submitted to mediation, not later If impasse not submitted to mediation, not later than 30 days following the date either party than 30 days following the date either party provided the other with written notice of a provided the other with written notice of a declaration of impasse.declaration of impasse.

Procedural RequirementsProcedural Requirements

A request for fact-finding must be filed A request for fact-finding must be filed with the appropriate regional office with with the appropriate regional office with PROOF OF SERVICE.PROOF OF SERVICE.

In five days from filing, PERB will notify In five days from filing, PERB will notify the parties of its acceptance and request the parties of its acceptance and request designation of their panel members designation of their panel members within 5 PERB working days. (Name within 5 PERB working days. (Name and Contact Info)and Contact Info)

PROFESSIONAL PROFESSIONAL RESPONSIBILITYRESPONSIBILITY

No action will be taken on defective claims No action will be taken on defective claims and PERB’s determination of sufficiency is and PERB’s determination of sufficiency is NOT APEALLABLENOT APEALLABLE

Have Staff calendar the come ups for Have Staff calendar the come ups for requesting fact-finding and designating panel requesting fact-finding and designating panel members.members.

Make sure clients understand and retainers Make sure clients understand and retainers clarify that Fact Finding is generally not clarify that Fact Finding is generally not covered and must be hourly. Discuss with covered and must be hourly. Discuss with MWJ and DEM.MWJ and DEM.

Section 32804Section 32804Appointment of ChairAppointment of Chair

If request sufficient, with in 5 days PERB If request sufficient, with in 5 days PERB will submit the names of 7 neutral fact-will submit the names of 7 neutral fact-finders.finders.

If the parties cannot agree upon a fact-If the parties cannot agree upon a fact-finder within 5 working days, PERB will finder within 5 working days, PERB will assign one from the list.assign one from the list.

PERB not responsible for any costs.PERB not responsible for any costs.

Impact of AB 646Impact of AB 646

Longer negotiation period if fact-finding used Longer negotiation period if fact-finding used and greater costs (approx. 100 days) and greater costs (approx. 100 days)

Must conduct negotiations with understanding Must conduct negotiations with understanding that FF may follow: Clear and concise note, that FF may follow: Clear and concise note, records of proposals, gather evidence, records of proposals, gather evidence, information requests, financial analysisinformation requests, financial analysis

Negotiations will be more data/evidence Negotiations will be more data/evidence driven. driven.

Tactics to ExpectTactics to Expect

Revision of local rules regarding fact-finding Revision of local rules regarding fact-finding timelines.timelines.

Mandating a much earlier and mandatory start Mandating a much earlier and mandatory start of negotiations.of negotiations.

Arbitrary deadlines for impasse and Arbitrary deadlines for impasse and completion of mediationcompletion of mediation

Timing to complete FF and impose before Timing to complete FF and impose before June 30thJune 30th

Negotiation PreparationNegotiation Preparation

Review ER-EE relations policy and MOU.Review ER-EE relations policy and MOU. Poll members, identify proposals and keep Poll members, identify proposals and keep

detailed notes. detailed notes. Develop proposals and gather supporting Develop proposals and gather supporting

evidence.evidence. Retain financial experts if inability to pay is Retain financial experts if inability to pay is

anticipated as a defense.anticipated as a defense. Prepare comparable surveys and be able to Prepare comparable surveys and be able to

manipulate and adjust at hearing. manipulate and adjust at hearing. Strategize. Is Impasse likely? Prioritize issues Strategize. Is Impasse likely? Prioritize issues

for impasse. for impasse.

Tips During NegotiationsTips During Negotiations

Request financial information early in the process Request financial information early in the process so expert witnesses can prepare reports and so expert witnesses can prepare reports and presentation. presentation.

Gather supporting evidence and witness for Gather supporting evidence and witness for proposals in anticipation of fact-finding. proposals in anticipation of fact-finding.

Prepare responses to employer proposals and Prepare responses to employer proposals and counter-offers. (Avoids ability of agency to claim counter-offers. (Avoids ability of agency to claim deadlock.)deadlock.)

Do not rush to Impasse. Almost Do not rush to Impasse. Almost NEVERNEVER declare declare impasse; written consent of client if do so. impasse; written consent of client if do so. Eliminates ability to argue artificial deadlines or Eliminates ability to argue artificial deadlines or refusal to bargain.refusal to bargain.

Longer process delays concessions in this Longer process delays concessions in this economy. economy.

Selection of Agency Panel MemberSelection of Agency Panel Member

Strong oral advocacy skillsStrong oral advocacy skills Knows MMBA Knows MMBA Understands economic issues and public Understands economic issues and public

finances finances Understands comparables and surveysUnderstands comparables and surveys Usually member of negotiating teamUsually member of negotiating team

What To Expect at Fact-FindingWhat To Expect at Fact-FindingHearingHearing

Panel Chair conducts proceedingsPanel Chair conducts proceedings Generally informal & Relaxed rules of Generally informal & Relaxed rules of

evidenceevidence Each side presents evidence on issues in Each side presents evidence on issues in

dispute. dispute. Party proposing a change in policy or terms Party proposing a change in policy or terms

has burden of proof and must go first has burden of proof and must go first

Preparation for FF HearingPreparation for FF Hearing

Select appropriate spokesperson (usually Select appropriate spokesperson (usually attorney)attorney)

Prepare fact-finding Binder/Notebook & Prepare fact-finding Binder/Notebook & ExhibitsExhibits

Identify witnesses Identify witnesses

Confirm TAs and select issues to be submitted Confirm TAs and select issues to be submitted to panel.to panel.

What to Do Post Fact-FindingWhat to Do Post Fact-Finding

During 10-day period following fact-During 10-day period following fact-finding, finalize public information finding, finalize public information campaign and prepare for public impasse campaign and prepare for public impasse hearing.hearing.

Meet and confer with Employer to Meet and confer with Employer to attempt to reach agreement before attempt to reach agreement before impasse hearing. impasse hearing.

POTENTIAL LEGAL POTENTIAL LEGAL CHALLENGES CHALLENGES

Unlawful changes to Impasse ProceduresUnlawful changes to Impasse Procedures Mandated Early NegationsMandated Early Negations Artificial Deadlines for Initiating Mediation and Artificial Deadlines for Initiating Mediation and

Fact-FindingFact-Finding Attempts to Define Financial Documents or Attempts to Define Financial Documents or

Summaries to be ProducedSummaries to be Produced Normal challenges to imposed terms still Normal challenges to imposed terms still

available, but may be strengthened or available, but may be strengthened or weakened by Panel recommendationsweakened by Panel recommendations

Imposing terms differing form Imposing terms differing form recommendations not sufficient to prove ULPrecommendations not sufficient to prove ULP

QUESTIONS?QUESTIONS?