Recently enacted AB 646, which is scheduled to take effect on January 1, 2012, amends the Meyers-Milias-Brown Act and can result in drastic changes to labor negotiations for public agencies, including special districts. In light of this new law, special districts should review current impasse procedures and plan ahead for the potential of "factfinding" as a means for resolving impasse during negotiations. Among other things, special districts should consider allotting more time for negotiations in the future and ensuring that the district has supporting evidence for its bargaining position.
What is AB 646?
AB 646 repeals existing Government Code section 3505.4 which permitted a public agency to unilaterally implement its last, best, and final offer following exhaustion of any "applicable" impasse procedures. Now, AB 646 modifies Section 3505.4 to require "factfinding" after impasse is reached if (1) a mediator cannot effect a settlement within 30 days and (2) the union requests factfinding.
AB 646 also adds Government Code section 3505.7 which provides that a public agency can implement its last, best, and final offer only after any applicable mediation and factfinding procedures have been exhausted and a public hearing is held regarding the impasse.
If the union requests factfinding following a declaration of impasse, AB 646 requires that each side (management and union) select a panel member. A third member of the panel (the chairperson) is either mutually agreed upon by the parties or appointed by the Public Employment Relations Board (PERB). Within 10 days of its appointment, the panel must meet with the parties, may make inquiries and investigations, and can hold hearings. The parties equally bear the costs of the chairperson, and each party bears the costs of the party's appointed panel member. In an apparent oversight, AB 646 does not currently place a time limit on the union's ability to request factfinding.
How is factfinding conducted?
A factfinding is similar to an administrative hearing. The parties jointly submit the issues the factfinding panel is to decide and each party presents an opening argument or position statement. Each party must offer supporting evidence for its position (i.e. its final offer) through witness testimony and documents. After the hearing, the parties may submit post-hearing briefs or position statements to support their final offer.
AB 646 states that the panel must reach its findings and recommendations based on eight criteria:
Within 30 days after its appointment, the factfinding panel must make findings of fact and recommend terms of settlement. The factfinding panel's decision is advisory to the district. Within 10 days of receipt, the district must make the factfinding panel's findings and recommendations available to the public. The district cannot unilaterally impose its last, best, and final offer until it has held a public hearing and no earlier than 10 days after receipt of the findings and recommendations.
Most special districts likely do not currently use factfinding as part of its impasse procedures. Accordingly, districts should begin negotiations earlier than usual to allow for the potential selection of a factfinding panel, the factfinding, and implementation procedures, if necessary. These processes will add at least 50-80 days to the negotiation timeline. To allow for delays, districts should add approximately 90-100 days to their negotiations schedules.
Even before negotiations begin, districts should spend more time planning for negotiations. Because of the possibility of a factfinding, districts should be prepared to provide salary and benefits survey results and detailed information about the district's current and projected finances.
Uncertainties Surrounding AB 646
Existing Government Code section 3505.2 remains unchanged and does not require a district to agree to mediation. That raises the very important question of whether a district can avoid factfinding altogether if it chooses not to agree to mediation. If factfinding only kicks in after an unsuccessful mediation, and a district does not have to agree to mediation, it is arguable whether factfinding is really required. AB 646 does not currently address this basic question.
Moreover, as mentioned above, there is currently no explicit time limit within which the union must request a factfinding. Thus, a union could conceivably wait until the district schedules implementation at a public hearing and then request a factfinding. Or, under a technical reading of the statute, a union could argue that the district cannot implement a last, best, and final offer absent a factfinding, which only the union can request.
The Public Employment Relations Board will review staff recommendations for emergency regulations regarding AB 646 in December to help local agencies navigate the mandatory factfinding process and hopefully clear up some of AB 646's uncertainties.
Mark Meyerhoff (email@example.com) and Connie C. Almond (firstname.lastname@example.org) are attorneys with Liebert Cassidy Whitmore, an employment and labor relations law firm representing public agencies with offices in Los Angeles, San Francisco, Fresno, and San Diego. Mark represents clients in all types of civil litigation, administrative proceedings and arbitrations. Connie has a demonstrated record of obtaining success for the firm's clients before trial via law and motion, mediation, and settlement.
Reprinted and/or posted with permission of Publication of the California Special District Association, November - December 2011.