Labor Relations: The Meet and Confer Process

scope of representation have reached a point in meeting and negotiating at which their differences in positions are so substantial or prolonged that future meetings would be futile.” 296 Declaration of impasse precedes implementation of impasse resolution procedures or unilateral action by the employer. Because of the fact-finding regulations, discussed below, an employer should provide its unequivocal declaration of impasse in writing. 297 As discussed in the first part of this workbook, mediation and fact-finding are impasse resolution procedures used by public agencies to the extent provided for in their employer-employee relations procedures and/or as required under the MMBA. Agencies must attempt to closely follow the impasse resolution procedures in their local rules to satisfy the obligation to meet and confer in good faith. 298 a. Mediation The mediator acts as an impartial “go-between” for the parties. The mediator should act strictly behind the scenes, attempting to convince one and/or both of the parties to compromise and agree. A mediator may be helpful if emotions and tensions make fruitful direct negotiations futile, or if one party is convinced that it cannot achieve closure without the pressures of mediation. However, one should not come to rely on mediation to bring closure to every negotiation because of the danger that the union will assume that it can only get everything that is to be had by going to mediation every time. b. Fact-finding Government Code sections 3505.4 and 3505.5 of the MMBA require that an employee association be given the opportunity to request impasse fact-finding prior to an agency being allowed to unilaterally implement where mediation did not resolve the underlying impasse. 299 An employee organization can submit a dispute for fact-finding without first going through mediation. Charter cities and counties with binding interest arbitration in their charters are exempt from these fact-finding impasse procedures. 300 Under the MMBA’s fact-finding procedures, only the employee association can request fact- finding. 301 PERB’s regulations clarify that this can happen in one of two ways where the parties are at impasse: 1. Where the parties go to impasse mediation, the employee association’s fact- finding request must be filed with PERB no sooner than 30 days, but no more than 45 days following the appointment or selection of the mediator; or 2. If the parties do not go to impasse mediation, the employee association’s fact- finding request must be filed with PERB no later than 30 days following the date that either party provided the other party with a written notice of a declaration of impasse. 302

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 68