Labor Relations: The Meet and Confer Process

decision does state that employers can apply uniform and consistently enforced controls over their email systems to maintain production and discipline. Therefore, while an agency may not discriminate against employee organizations in the use of email or computer resources, those organizations are not entitled to unfettered use of those resources. Ultimately, even if an employer permits non-business use of its email system, it retains the ability to place reasonable time, place and manner restrictions over how its system will be used. For example, an employer may limit access to non-work time or incidental use. It may also prohibit the transmittal of voluminous email or burdensome attachments. In the Dills Act case noted above, although PERB found that the State’s refusal to allow the union access to its email system (when it allowed access for other minimal personal communication) was unwarranted, the State’s action prohibiting voluminous email from the labor organization was found lawful, because there was no evidence that the State had ever permitted others to conduct, for personal reasons, the frequent and heavy levels of communication that the union sought to disseminate. 118 Also, note that PERB has held that employee organizations are entitled to use the employer agency’s email system to contact employees, although the employer does not have to send emails on the employee organization’s behalf. 119 a. Mediation Once the parties reach an impasse in negotiations, they may be required to participate in mediation. An agency will only be required to participate in mediation if its employer-employee relations rule mandates mediation. If it does not, then the agency is under no obligation to participate in mediation unless it agrees to do so. As set forth in Government Code section 3505.2, the parties may agree to the appointment of a mediator, but mediation is not required. Unless otherwise stated in the employer-employee relations rule, parties may agree on a particular mediator on their own, or may request that the California State Mediation and Conciliation Service designate one of its staff mediators to assist the parties. The mediator then meets with the parties and attempts to persuade both parties to compromise their positions in order to reach an agreement. And unless expressly authorized by the employer-employee relations rules, the mediator does no more than seek to persuade in private. A mediator does not conduct a hearing nor make public recommendations or issue reports. b. Fact-Finding Contrary to mediation, fact-finding is a procedure that provides for a hearing on the issues in dispute and public recommendations. Only an employee organization can request fact- finding. 121 Government Code section 3505.4 sets forth the fact-finding procedures that 3. I MPASSE P ROCEDURES The MMBA sets forth impasse resolution procedures that apply not only to impasses reached in bargaining successor contracts, but also to “single-item” disputes. 120

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 20