BARGAINING TO IMPASSE:
MANDATED FACT-FINDING &
THE NEW PERB REGULATIONS
Presented by
Christopher W. Miller, SCOPO General Counsel
Mastagni, Holstedt, Amick, Miller & Johnsen
Impasse & Fact-Finding

AB 646

Duty to Bargain

Definition of Impasse

Mediation

Fact-Finding Procedures
AB 646 & Fact-Finding

A.B. 646 took effect January 1, 2012

Legislation allows a public employee
organization to request fact-finding if a
mediator is unable to reach a settlement during
impasse

Legislation amended the Meyers-MiliasBrown Act (Gov. Code § 3505.4) to allow for
fact-finding panel
Duty to Bargain

MMBA requires public employers and
recognized labor associations to meet and
confer in good faith on matters within the
“scope of representation”

“Good faith” means willingness to reach
agreement through a serious attempt to resolve
differences and reach common ground


During negotiations, but prior to impasse, the
employer cannot unilaterally change benefits
specified in the expired MOU
What is Impasse?

Impasse is a deadlock or stalemate in bargaining
declared by one or both parties

Impasse occurs when differences on matters to
be included in a MOU remain so substantial and
prolonged that further negotiation would be
futile

Either party may declare impasse when other
side is not providing any alternative proposals to
promote the bargaining process
Old MMBA Impasse Procedures

Impasse usually precedes implementation of
impasse resolution procedures or imposition, if
no procedures exist

ER can implement “last, best, and final offer”
after exhausting impasse procedures

Impasse procedures based on local rules/MOU

Mediation usually optional (Gov. Code §
3505.2)
New Impasse Procedures:
Gov. Code § 3505.4

“If the mediator is unable to effect settlement
of the controversy within 30 days after his or
her appointment, the employee organization
may request that the parties’ differences be
submitted to a fact-finding panel”

Purpose: prevent agencies from unilaterally
imposing a last, best and final offer upon
reaching impasse with relevant employee
organizations
What is Fact-Finding?

“Fact-finding”
Can employers dodge fact-finding by
refusing to go to mediation?


Arguably, Section 3505.7’s requirement that
“[a]fter any applicable mediation and
factfinding procedures have been
exhausted…a public agency . . . may, after
holding a public hearing regarding impasse,
implement its last, best, and final offer”
mandates fact-finding prior to implementation
of the LBF Offer.
Thus, even if fact-finding is not mandatory, it
must be completed before implementation of
terms.
Timelines for Impasse Procedures

Within 5 days of fact-finding request each
party must select a person to serve as its
member of the fact-finding panel

PERB will select chairperson (neutral) of panel
within 5 days of selection of parties’ panel
members

Parties may agree on different chairperson
within 5days after PERB makes selection.
Timelines Cont.



The panel shall, within 10 days after its
appointment, meet with the parties or their
representatives, either jointly or separately, and
may make inquiries and investigations, hold
hearings, and take any other steps it deems
appropriate.
If matter not settled within 30 days after panel’s
appointment or, upon agreement for a longer
period, the panel shall make advisory findings of
fact and recommend terms of settlement.
The findings of fact and recommended terms must
be submitted to the parties before they are made
available to the public and made publically
available 10 days later.
Criteria for Findings and
Recomendations
1.
2.
3.
4.
5.
6.
7.
8.
State and federal laws that are applicable to the employer.
Local rules, regulations, or ordinances.
Stipulations of the parties.
The interests and welfare of the public and the financial ability of
the public agency.
Comparison of the wages, hours, and conditions of employment
of the employees involved in the fact-finding proceeding with the
wages, hours, and conditions of employment of other employees
performing similar services in comparable public agencies.
The consumer price index for goods and services, commonly
known as the cost of living.
The overall compensation presently received by the employees,
including direct wage compensation, vacations, holidays, and
other excused time, insurance and pensions, medical and
hospitalization benefits, the continuity and stability of
employment, and all other benefits received.
Any other facts, not confined to those specified in paragraphs (1)
to (7), inclusive, which are normally or traditionally taken into
consideration in making the findings and recommendations.
PANEL POWERS


The panel shall have the power to issue
subpoenas requiring the attendance and
testimony of witnesses and the production
of evidence.
The agency shall furnish the panel, upon its
request, with all records, papers, and
information in their possession relating to
any matter under investigation by or in issue
before the panel.
Unilateral Implementation of
L,B,F Offer After fact-finding

After applicable mediation and fact-finding
procedures have been exhausted the agency
may implement its last, best, and final offer.
Must wait at least 10 days after fact-finding
recommendations submitted to parties.
 Must hold public impasse hearing.
 Can only implement terms and conditions, not
“MOU.”
 Union retains right to meet and confer each year prior
to the annual budget over matters within scope of
representation (whether covered by imposed terms or
not)

Additional Provisions Under
AB 646




fact-finding provisions not applicable to
charter cities or counties with impasse
procedures in charter that provide for binding
arbitration.
Costs of panel chairperson equally divided
between parties.
Peace Officer Unions not exempt from the
fact-finding requirement.
Jurisdiction to Enforce Peace Officer? Sup. Ct.
PERB EMERGENCY REGS FILL
SOME GAPS IN THE
LEGISLATION
Section 32802
An exclusive representative may request
that the parties' differences be submitted
to a fact-finding panel.
 The request shall be accompanied by a
statement that the parties have been
unable to effect a settlement.

Request to PERB must be filed:
1.
Not sooner than 30 days, but not more than 45
days, following the appointment or selection of
mediator pursuant either to the parties' agreement
or mediation process required by local rules; or
2.
If impasse not submitted to mediation, not later
than 30 days following the date either party
provided the other with written notice of a
declaration of impasse.
Procedural Requirements
A request for fact-finding must be filed
with the appropriate regional office with
PROOF OF SERVICE.
 In five days from filing, PERB will notify
the parties of its acceptance and request
designation of their panel members
within 5 PERB working days. (Name
and Contact Info)

PROFESSIONAL
RESPONSIBILITY



No action will be taken on defective claims
and PERB’s determination of sufficiency is
NOT APEALLABLE
Have Staff calendar the come ups for
requesting fact-finding and designating panel
members.
Make sure clients understand and retainers
clarify that Fact Finding is generally not
covered and must be hourly. Discuss with
MWJ and DEM.
Section 32804
Appointment of Chair
If request sufficient, with in 5 days PERB
will submit the names of 7 neutral factfinders.
 If the parties cannot agree upon a factfinder within 5 working days, PERB will
assign one from the list.
 PERB not responsible for any costs.

Impact of AB 646



Longer negotiation period if fact-finding used
and greater costs (approx. 100 days)
Must conduct negotiations with understanding
that FF may follow: Clear and concise note,
records of proposals, gather evidence,
information requests, financial analysis
Negotiations will be more data/evidence
driven.
Tactics to Expect




Revision of local rules regarding fact-finding
timelines.
Mandating a much earlier and mandatory start
of negotiations.
Arbitrary deadlines for impasse and
completion of mediation
Timing to complete FF and impose before
June 30th
Negotiation Preparation






Review ER-EE relations policy and MOU.
Poll members, identify proposals and keep
detailed notes.
Develop proposals and gather supporting
evidence.
Retain financial experts if inability to pay is
anticipated as a defense.
Prepare comparable surveys and be able to
manipulate and adjust at hearing.
Strategize. Is Impasse likely? Prioritize issues
for impasse.
Tips During Negotiations





Request financial information early in the process
so expert witnesses can prepare reports and
presentation.
Gather supporting evidence and witness for
proposals in anticipation of fact-finding.
Prepare responses to employer proposals and
counter-offers. (Avoids ability of agency to claim
deadlock.)
Do not rush to Impasse. Almost NEVER declare
impasse; written consent of client if do so.
Eliminates ability to argue artificial deadlines or
refusal to bargain.
Longer process delays concessions in this
economy.
Selection of Agency Panel Member





Strong oral advocacy skills
Knows MMBA
Understands economic issues and public
finances
Understands comparables and surveys
Usually member of negotiating team
What To Expect at Fact-Finding
Hearing




Panel Chair conducts proceedings
Generally informal & Relaxed rules of
evidence
Each side presents evidence on issues in
dispute.
Party proposing a change in policy or terms
has burden of proof and must go first
Preparation for FF Hearing

Select appropriate spokesperson (usually
attorney)

Prepare fact-finding Binder/Notebook &
Exhibits

Identify witnesses

Confirm TAs and select issues to be submitted
to panel.
What to Do Post Fact-Finding

During 10-day period following factfinding, finalize public information
campaign and prepare for public impasse
hearing.

Meet and confer with Employer to
attempt to reach agreement before
impasse hearing.
POTENTIAL LEGAL
CHALLENGES

Unlawful changes to Impasse Procedures





Mandated Early Negations
Artificial Deadlines for Initiating Mediation and
Fact-Finding
Attempts to Define Financial Documents or
Summaries to be Produced
Normal challenges to imposed terms still
available, but may be strengthened or
weakened by Panel recommendations
Imposing terms differing form
recommendations not sufficient to prove ULP
QUESTIONS?