MMBA-Impasse Procedures After AB 646.pdf

AB 646’s Impact on Impasse Procedures Under the MMBA


Roger CrawfordRoger Crawford3500 Porsche Way, Suite 2003500 Porsche Way, Suite 200Ontario, CA 91764Ontario, CA 91764909.989.8584909.989.8584Roger.Crawford@[email protected]

AB 646’s Impact On ImpasseProcedures Under the

MMBA(Mandated Factfinding)

December 2011December 2011

Best Best & Krieger LLPBest Best & Krieger LLP

Joseph SanchezJoseph Sanchez655 West Broadway, 15th Floor655 West Broadway, 15th FloorSan Diego, CA 92101San Diego, CA 92101619.525.1372619.525.1372Joseph.Sanchez@[email protected]


Public Employer Labor Relations

• Meyers Milias Brown Act (MMBA)– Gov’t. Code 3500, et seq.

• Educational Employment Relations Act(EERA) Gov’t. Code 3540, et seq.

• Public Employment Relations Board (PERB)


Duty to Bargain

• MMBA requires public employers andrecognized labor associations to meet andconfer in good faith on matters within the“scope of representation.”

• Mandatory subjects of bargaining:

– Wages, hours, and other terms and conditions ofemployment.


MMBA-Impasse Procedures Prior toAB 646

• Impasse: when the parties, after meeting and conferring ingood faith, reach the point at which further discussions wouldbe fruitless.

• MMBA permits an agency to implement its “last, best, andfinal offer” after impasse procedures are concluded.

• Impasse procedures based on local rules/CBA

• Mediation (optional) (Govt . Code 3505.2)


MMBA-Impasse Procedures AfterAB 646

• “If the mediator is unable to effect settlement of thecontroversy within 30 days after his or her appointment, theemployee organization may request that the parties’differences be submitted to a factfinding panel.”

– Is mediation still optional?

– Can factfinding be avoided by not agreeing to mediation?

– What happens to local impasse rules previously established?



• Within 5 days of factfinding request each party mustselect a person to serve as its member of thefactfinding panel.

• PERB will select chairperson (neutral) of panelwithin 5 days of selection of parties’ panel members.

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



• The Panel shall, within 10 days, after appointment,meet with the parties, either jointly or separately, andmay make inquires and investigations, hold hearings,and take any other steps it deems appropriate.

– Panel shall have power to issue subpoenas.

– The agency shall furnish panel with all relevant documentsupon request.


FACTFINDING CRITERIA

• State and federal laws that are applicable tothe employer.

• Local rules, regulations, or ordinances.

• Stipulations of parties.

• The interests and welfare of the public andthe financial ability of the public agency.


FACTFINDING CRITERIA

• Comparison of the wages, hours, and conditions ofemployment with other employees performing similarservices in comparable public agencies.

• CPI.

• The overall compensation presently received by theemployees. (Total Compensation)

• Any other facts which are normally or traditionally takeninto consideration in making the findings orrecommendations.


FF Panel Recommendations OnlyAdvisory-Not Binding

• If dispute is not settled within 30 days afterappointment of factfinding panel, the panel shallmake findings of fact and recommended terms ofsettlement, which shall be advisory only.

• Panel shall submit findings to parties before they aremade available to public.

• Agency shall make findings publically availablewithin 10 days of receipt.


Unilateral Implementation FollowingFactfinding

• After applicable mediation and factfindingprocedures have been exhausted the agencymay implement its last, best, and final offer.

• Must wait 10 days after factfinding report submitted toparties.

• Must hold public impasse hearing.

• Cannot implement an “MOU.”


Additional Provisions UnderAB 646

• Factfinding provisions not applicable tocharter cities or counties with impasseprocedures in charter that provide for bindingarbitration.

• Costs of panel chairperson equally dividedbetween parties.

• Peace Officer Unions not exempt from thefactfinding requirement.


Impact of AB 646

• Longer negotiation period if labor requestsfactfinding (approx. 100 days)

• Preparation for negotiations must start muchearlier than before.

• Preparation for negotiations will be more datadriven. Financial management staff may needto be more involved.


Avoiding Delay in NegotiationsProcess

• Revise local rules if possible regarding factfindingtimelines.

• Set ground rules prior to negotiations regardingtimelines.

• Possible PERB Regulations regarding timeline torequest factfinding.

• Notice impasse hearing if delay in factfindingrequest.


Selection of Panel Chair

• Possible PERB Regulations.

• Research the proposed Panel Chair.

• Attempt to reach agreement with Union onPanel Chair

– Strikeout method


Selection of Agency Panel Member

• Strong oral advocacy skills

• Solid understanding of labor relations andscope of bargaining issues

• Solid understanding of economic issues

• Usually member of negotiating team


What To Expect at FactfindingHearing

• Panel Chair conducts proceedings

• Generally informal

• Relaxed rules of evidence

• Each side will have opportunity to present evidenceon issues in dispute. Usually party who proposedissue will go first


Preparation for FF Hearing

• Select appropriate spokesperson (usuallyattorney)

• Prepare Factfinding Binder/Notebook(Exhibits)

• Determine who would be appropriatewitnesses for agency


What to do now.

• Review employer-employee relations policy.Consider revisions to impasse resolutionprocedure.

• Review existing memoranda of understanding.Identify window periods for the meet andconfer process.

• Keep a record of changes you want for nextMOU.

• Gather evidence.


What to do prior to negotiations.

• Keep governing body informed of procedure,including realistic timelines.

• Strategize. Ask how likely that these negotiationswill go to impasse.

• Develop proposals and gather supporting evidence.

• Involve Finance Director on economic issues andother managers on non-economic issues. (These arepotential witnesses in the event of fact-finding.)


What to do during negotiations

• Steer clear of conduct that could be construed as an unfairpractice. Respond properly to information requests.

• Gather supporting evidence for proposals as they changethroughout the meet and confer process. Organize and preparethis evidence as if fact-finding were inevitable.

• Consult with proper management personnel about unionobjections and counter proposals.

• Make sure you are truly at impasse. This may take time.

• Begin preparation for potential public information campaign.


Preparation for fact-finding --revisited.

• Identify issues to be presented to panel.

• Select qualified panel member.

• Organize and gather evidence.

• Prepare witnesses.

• Consider preparing a pre-hearing written brief.

• Continue preparation of public informationcampaign.


What to do after fact-finding.

• During 10-day period following fact-finding,finalize public information campaign andprepare for public impasse hearing.

• Meet and confer with union; submit (re-submit) last, best, and final offer.


Questions

Documents

MMBA-Impasse Procedures After AB 646.pdf