Daily Archives: September 12, 2017

Fact Checked: Only One Factfinding Hearing Per Negotiation

Author:  Michael Tucker, Attorney at Law
Facts

On June 27, 2017, the Public Employment Relations Board ruled that after impasse is declared a party can only proceed to factfinding once.  In the City of Watsonville, the City and its employee unions met in 2015 to negotiate successor agreements.  The following timeline illustrates the events that unfolded during the negotiations:

  • June 1, 2015 – Employees declare impasse but City and Employees continue to negotiate;
  • June 9, 2015 – Mediator appointed;
  • August 5, 2015 – Employees request factfinding regarding the successor agreement with the City;
  • August 12, 2015 – Employees withdraw factfinding request.

The parties continued to negotiate until June 29, 2016 when the Employees again declared impasse.  The City did not impose its last best and final offer.  On July 7, 2016, almost a year after their initial request, Employees again requested factfinding regarding the successor agreement with the City.  The City objected to the request since the Employees had already requested factfinding regarding the same issue and withdrew their request.

Ruling

PERB ruled that the second factfinding request was untimely under the MMBA’s specific timelines.  However, PERB pointed out that by creating “definite time limits for the availability and initiation of the factfinding process, the Legislature clearly intended that factfinding would begin relatively soon after a dispute had reached impasse.”  (City of Redondo Beach (2014) PERB No. Ad-409 M.)

Under the EERA, (the collective bargaining statutes applying to most local educational agencies) if the mediator is unable to effect settlement within 15 days after appointment, and the mediator declares that factfinding is appropriate, either party may request factfinding.  (Cal. Govt. Code § 3548.1(a).)

While it is unclear if PERB would reach a similar result under the EERA, City of Watsonville provides some valuable insight.  Specifically, PERB noted that bargaining is only completed when agreement is reached or impasse procedures are concluded.  In City of Watsonville, neither had taken place.  Therefore, the parties were still engaged in the same bargaining process from the first bargaining session in 2015 to the Employee’s second factfinding request in July 2016.  As such, factfinding could only be requested once.

Practice Pointer

During any bargaining, it is important to keep in mind that bargaining is not concluded until an agreement is reached or impasse is concluded.  It is also worth noting that City did not impose their last best and final offer and instead continued to negotiate in good faith.  Continuing to bargain obviously increases the opportunities for an agreement, despite the impasse request.

Those wanting to learn more about bargaining best practices, mediation and factifinding may attend our bargaining workshop, From Principles to Practice: Effective Collective Bargaining to Useable Agreements on October 17, 2017.  For more information, please click HERE.