Monday, October 10, 2011

Neutral Fact-finding Now Required Before Public Agencies Can Impose on Employees

Governor Brown strengthened collective bargaining rights for local public employees by signing A.B. 646 which establishes new minimum impasse procedures for contract negotiation. Prior to this enactment, public employers could declare impasse and impose terms and conditions on employees with few safeguards. In the current economic climate, management negotiators and representatives often hurry to reach impasse and impose cuts on employees, despite their statutory obligation to meet and confer in good faith. Meeting and conferring in good faith does not require agreement, but does require that the parties endeavor to reach agreement and share information.

A.B. 646 will facilitate good faith negotiations by providing for fact-finding, essentially a form of non-binding interest arbitration. The new process will reduce the incentive for agencies to go through the motions of negotiations with a pre-determined intent to declare impasse and impose terms by requiring both parties to justify their positions, share information, and providing for findings and recommendations. Fact-finding is intended to move the parties toward agreement, but also provides a valuable tool to illuminate bad faith bargaining.

The bill provides that if a mediator is unable to resolve the negotiations impasse after 30 days, the employee representative may initiate fact-finding. Within 5 days of the request for fact-finding, each party must select a panel member and PERB selects a panel chairperson. Within 10 days after its appointment, the panel is to meet with the parties, make inquiries and investigations, hold hearings, and take any other necessary steps. It has the power to issue subpoenas to compel testimony and production of evidence. Public employers are required to provide the panel all records, papers, and information relevant to the investigation.

The fact-finding panel then issues findings and recommendations which consider:
1) the application of laws to the employer;
2) local rules and regulations;
3) stipulations of the parties;
4) the public and employers finances;
5) comparables (compensation and working conditions in comparable agencies);
6) the consumer price index;
7) current overall compensation; and
8) any other facts traditionally taken into consideration in fact findings.

The fact-finding panel must make written findings of fact and recommendations of settlement that are advisory only. The cost of the process is bourne equally between the parties. If the agency’s Charter does not require proceeding to interest arbitration, the employer may then impose its last, best, final offer. The employer may not impose a Memorandum of Understanding, and remains obligated to meet and confer with the employee representative each year on matters within the scope of representation, regardless of whether the imposed terms cover those matters.