BARGAINING TO IMPASSE: MANDATED FACT-FINDING & THE NEW PERB REGULATIONS  Presented by  Christopher W. Miller, SCOPO General Counsel  Mastagni, Holstedt, Amick, Miller & Johnsen

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

AB 646 & Fact-Finding A.B. 646 took effect January 1, 2012 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 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 § ) to allow for fact-finding panel Legislation amended the Meyers-Milias- Brown Act (Gov. Code § ) to allow for fact-finding panel

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

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

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

Procedures: Gov. Code § New Impasse Procedures: Gov. Code § “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” “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 Purpose: prevent agencies from unilaterally imposing a last, best and final offer upon reaching impasse with relevant employee organizations

What is Fact-Finding? “Fact-finding” “Fact-finding”

Can employers dodge fact-finding by refusing to go to mediation? Arguably, Section ’s requirement that “[a]fter any applicable mediation and factfinding procedures have been exhausted…a 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. Arguably, Section ’s requirement that “[a]fter any applicable mediation and factfinding procedures have been exhausted…a 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. Thus, even if fact-finding is not mandatory, it must be completed before implementation of terms.

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

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

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.

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

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)

Additional Provisions Under AB 646 fact-finding provisions not applicable to charter cities or counties with impasse procedures in charter that provide for binding arbitration. 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. Costs of panel chairperson equally divided between parties. Peace Officer Unions not exempt from the fact-finding requirement. Peace Officer Unions not exempt from the fact-finding requirement. Jurisdiction to Enforce Peace Officer? Sup. Ct. Jurisdiction to Enforce Peace Officer? Sup. Ct.

PERB EMERGENCY REGS FILL SOME GAPS IN THE LEGISLATION

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

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.

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

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

Section Appointment of Chair If request sufficient, with in 5 days PERB will submit the names of 7 neutral fact- finders. 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. 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. PERB not responsible for any costs.

Impact of AB 646 Longer negotiation period if fact-finding used and greater costs (approx. 100 days) 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 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. Negotiations will be more data/evidence driven.

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

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

Tips During Negotiations Request financial information early in the process so expert witnesses can prepare reports and presentation. 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. 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.) 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. 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. Longer process delays concessions in this economy.

Selection of Agency Panel Member Strong oral advocacy skills Strong oral advocacy skills Knows MMBA Knows MMBA Understands economic issues and public finances Understands economic issues and public finances Understands comparables and surveys Understands comparables and surveys Usually member of negotiating team Usually member of negotiating team

What To Expect at Fact-Finding Hearing Panel Chair conducts proceedings Panel Chair conducts proceedings Generally informal & Relaxed rules of evidence Generally informal & Relaxed rules of evidence Each side presents evidence on issues in dispute. Each side presents evidence on issues in dispute. Party proposing a change in policy or terms has burden of proof and must go first Party proposing a change in policy or terms has burden of proof and must go first

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

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

POTENTIAL LEGAL CHALLENGES Unlawful changes to Impasse Procedures Unlawful changes to Impasse Procedures Mandated Early Negations Mandated Early Negations Artificial Deadlines for Initiating Mediation and Fact-Finding Artificial Deadlines for Initiating Mediation and Fact-Finding Attempts to Define Financial Documents or Summaries to be Produced 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 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 Imposing terms differing form recommendations not sufficient to prove ULP

QUESTIONS?