Labor Relations: The Meet and Confer Process

employers and unions must follow. 122 An employee organization can request fact-finding even without having first participated in impasse mediation. 123

If impasse mediation is used, the employee organization may request fact-finding not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator. If impasse mediation is not used, the employee organization may request fact-finding not later than 30 days following the date either party provided the other with a written notice of a declaration of impasse. 124 The employee organization’s 30-day period to request fact-finding will not be extended based on the date an agency rejects the organization’s request to mediate, even if the agency does not respond to the request until after the 30-day period passes. 125 Nor will the 30- day period be tolled based on delays or other problems related to mediation scheduling, or an employee organization’s mistaken belief that the deadline was put on hold or that it shared an unspoken understanding with the employer that impasse was broken. 126 Nor is an employee organization entitled to more than one fact-finding per round of negotiations. The window period begins to run once one of the parties provides written declaration of impasse, even if the parties continue to meet and exchange proposals but are unable to break the impasse. 127 PERB has made clear that the deadline to request fact-finding is statutory and cannot be tolled once a written declaration of impasse has been issued. Employee organizations that fail to request fact- finding within the appropriate window period may waive their right to such procedures. 128 If fact-finding is requested by the employee organization within the established time frame, both the agency and the employee organization then select an individual to serve on a fact-finding panel, with PERB selecting a chairperson to complete the three-member panel unless the parties mutually agree to use someone else. A fact-finding hearing is then set to allow the fact-finding panel to review the parties’ respective positions in dispute through document production and witness testimony. If the fact-finding process does not result in the parties reaching an agreement, then the panel issues an advisory report setting forth its findings of fact and recommended terms of settlement. The agency must make such findings and recommendations public within ten days after receipt.. 129 c. Interest Arbitration “Interest arbitration” is a quasi-judicial mechanism for resolving negotiation stalemates that has been used in various American state and municipal governments, including several California charter agencies, for many years. It is triggered when the parties reach an impasse in negotiations over the terms of a collective bargaining agreement. It is a process in which a third party arbitrator defines the contract between the parties by theoretically evaluating the merits of the parties’ respective “interests.” Binding arbitration of negotiation impasses with respect to compensation issues has been rejected by California courts as unconstitutional, unless it is expressly provided for in a local charter. 130 , , When negotiating access to a new employee orientation, if any dispute has not been resolved within the specified time period, either party may make a demand for compulsory

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 21