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Merit System Rules and Regulations -Chapter 12
1208. Impasse procedures.
(a) Applicability. The provisions of this section shall apply to disputes that are required
by law to be submitted to mandatory non-binding factfinding under Cal. Govt Code
section 3505.4.
(b) Mutual agreement required to waive timelines. The City and recognized employee
organizations may mutually agree in writing to waive the timelines set forth in this
section or in State law. .
(c) Scheduling of bargaining and impasse resolution proceedings. Timely resolution
of negotiations for memoranda of agreement is in the mutual interest of the City and
employee organizations because prompt resolution will help ensure that the City is able
to adopt a balanced, complete and accurate annual municipal budget of which labor costs
are a large proportion, and provide members of employee organizations with
predictability and greater certainty regarding the substance and timing of benefits and
other matters involving wages, hours and terms·· and conditions of employment.
Accordingly, the parties shall endeavor to schedule and conduct negotiations and impasse
resolution proceedings at times sufficient to resolve negotiations prior to the City's
adoption of its final budget for the ensuing year.
(d) Factfinding procedure. Factfinding shall be conducted in accordance with
requirements set forth in this section and in State law.
(e) Pr&-designation of factfinding panel chair. Not later than 120 calendar days prior
to expiration of an MOA, the City and the recognized employee organization shall ~elect
a factfinding panel chair to hear the dispute who will certify that he or she will start the
factfinding proceedings within ten days of notification by either party. In the event that
the City and the employee organization cannot agree upon the selection of the panel
chair, then the parties shall request the State of California Mediation and Conciliation
service provide -a list of seven (7) qualified factfinders, and the parties will select _ a
factfmder from this list who will certify that he or she will start the factfinding hearing
within ten (10) days of notification. The parties shall make all reasonable efforts to
confirm the pre-designated chairperson no la~r than 90 days prior to expiration of the
contract. However, failure to confirm the pre-designated chair within the timelines set
forth in this section shall not be construed as a waiver of the right to request factfinding.
(f) Final designation of the factfinding panel chair. After a valid factfinding request
has been made and within five (5) working days of receiving a list of neutral factfinders
from the Public Employment Relations Board ("PERB"), the parties shall determine
whether to use the pre-designated chairperson. If one or both parties do not agree to use
the pre-designated chairperson or other neutral on the list provided by PERB for the
factfinding panel, the parties shall use the chairperson: designated by PERB.
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(g) Factfinding bearings open to. public. Unless otherwise mandated by state law, all
hearings before the factfinding panel shall be open to the public for observation and all
docwnents submitted in a factfinding proceeding shall be public records. Deliberations of
the factfinding panel shall be confidential and closed to the public.
(h) Factt1nding report. The factfinding panel shall limit its findings and
recommendations to issues that fall within mandatory subjects of bargaining, unless the
parties mutually agree in writing to submit issues to the panel that are non-mandatory
subjects.
(i) Waiver of factfinding. Notwithstanding any other provision of this section, the
employee organization may choose not to engage in factfinding or to discontinue
factfinding at any time after a declaration of impasse by 'either party by notifying the City
in writing that it ww.ves its right to engage in and/or complete the factfinding process.
Written waivers shall be irrevocable. Upon receiving a waiver from the employee
organization, the City may implement its last, best and fmal offer after holding a public
hearing regarding the impasse.
(j) Mediation by mutual agreement. At any time, the parties may mutually agree to
submit the dispute to mediation or to have the neutral factfinding panel member mediate
the dispute. If the parties agree to mediation but are unable to agree on a mediator, the
parties shall request the services of the State Mediation and Conciliation Service, or
suitable alternate, to provide a mediator. Costs of mediation shall be divided one-half to
the City and one-half to the recognized employee organization. The mediator or
mediating agency shall make no public recommendations nor take any public position
concerning the issues, but shall work directly with the parties involved. Mediation
proceedings shall be confidential and closed to the public.
Unless mutually agreed by the parties, agreement to mediate shall not alter or extend the
timelines set forth in this section 1208.
(k) Severability. If any subsection, sentence, clause, or phrase of this section 1208 is for
any reason held to be invalid or unconstitutional by a decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of the
section. The city council declares that it would have approved this section and each and
every subsection, sentence, clause, or phrase not declared invalid or unconstitutional
without regard to whether any portion of the section would be subsequently declared
invalid or unconstitutional. .
(I) Operative Date; Expiration. This section shall be operative on January 1, 2012. It
shall remain operative only so long as the City is subject to mandatory non-binding
factfinding under Government Code section 3504.5 et seq. If at any time and for any
reason the City is no longer subject to mandatory factfinding, this section shall expire
immediately and automatically and shall have no further force and effect.
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Assembly Bill No. 646
CHAPTER 680
An act to add Sections 3505.5 and 3505.7 to, and to repeal and add Section
3505.4 of, the Government Code, relating to local public employee
organizations.
[Approved by Governor October 9, 2011. Filed with
Secretary of State October 9, 2011.]
LllGISLAl'IVE COUNSEL'S DIGEST
AB 646, Atkins. Local public employee organizations: impasse
procedures.
The Meyers-Milias-Brown Act contains various provisions that govern
coll~ve bargaining of local represented employees, and delegates
jurisdiction to the Public Employment Relations Board to resolve disputes
and enforce the statutory duties and rights ofloca1 public agency employers
and employees. The act requires the governing body of a public agency to
meet and confer in good faith regarding wages, hours, and other tenns and
conditions of employment with representatives of recognized· employee
organizations. Under the act, if the representatives of the public agency and
the employee organization fail to reach an agreement, they may mutually
agree on the appointment of a mediator and equally share the cost If the
parties reach an impasse, the act provides that a public agency may
unilaterally implement its last, best, and final·offer.
This bill would authorize the employee organization, if the mediator is
unable to effect settlement of the controversy within 30 days of his or h~
appointment, to request that the matter be submitted to a factfinding panel.
The bill would require that the factfinding panel consist of one member
selected by each party as well as a chairperson selected by the board or by
agreement of the parties. The factfinding panel would be authorized to make
investigations and hold hearings, and to issue subpoenas requiring the
attendance and testimony of witnesses and the production of evidence. The
bill would require all political subdivisions of the state to comply with the
panel's requests for information.
This bill would require, if the dispute is not settled within 30 days, the
factfinding panel to make findings of fact and recommend tenus of
settlement, for advisory purposes only. The bill would require that these
findings and recommendations be first issued to the parties, but would
require the public agency to make them publicly available within 10 days
after their receipt The bill would provide for the distribution of costs
associated with the factfinding panel, as specified.
This bill would prohibit a public agency from implementing its last, best,
and final offer until at least 10 days after the factfinders' written findings
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of fact and recommended terms of settlement have been submitted to the
parties and the agency has held a public hearing regarding the impasse.
The people o/the State o/California do enact as/ollows:
SECTION I. Section 3505.4 of the Government Code is repealed.
SEC. 2. Section 3505.4 is added to the Government Code, to read:
3505.4. (a) If the mediator is unable to effect settlement of the
controversy withln 30 days after his or her appointment, the employee
organization may request that the parties' differences be submitted to a
factfinding panel. Within five days after receipt of the written request, each
party shall select a person to serve, as its member of the factfinding panel.
The Public Employment Relations Board shall, within five days after the
selection of panel members by the parties, select a chairperson of the
factfinding panel.
(b) Within five days after the board selects a chairperson of the factfinding
panel, the parties may mutually agree upon a person to serve as chairperson
in lieu of the person selected by the board.
(c) 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. For the purpose of the hearings, investigations, and inquiries,
the panel shall have the power to issue subpoenas requiring the attendance
and testimony of witnesses and the production of evidence. Any state agency,
as defined in Section 11000, the California State University, or any political
subdivision of the state, including any board of education, 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. .
(d) In arriving at their findings and recommendations, the factfinders
shall consider, weigh, and be guided by all the following criteria:
(I) State and federal laws that are applicable to the employer.
(2) Local rules, regulations, or ordinances:
(3) Stipulations of the parties.
(4) The interests and welfare of the public and the financial ability of the
public agency.
(5) Comparison of the wages, hours, and conditions of employment of
the employees involved in the factfinding proceeding with the wages, hours,
and conditions of employment of other employees performing similar
services in comparable public agencies.
(6) The consumer price index for goods and services, commonly known
as the cost of living.
(7) 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.
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(8) 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.
SEC. 3. Section 3505.5 is added to the Government Code, to read:
3505.5. (a) If the dispute is not settled within 30 days after the
appoin1ment of the factfinding panel, or, upon agreement by both parties
within a longer period, the panelshall make findings offset and recommend
terms . of settlement, which shall be advisory only. The factfinders shall
submit, in writing, any findings offact and recommended terms of settlement
to the parties before they are made available to the public. The public agency
shall make theSe findings and recommendations publicly available within
10 days after their receipt.
(b) The costs for the services of the panel chairperson selected by the
board, including per diem fees, if any, and actual and necessary travel and
subsistence expenses, shal1 be equally divided between the parties.
(c) The costs for the services of the panel chairperson agreed upon by
the parties shall be equally divided between the parties, and shall include
per diem fees, if any, and actual and necessary travel and subsistence
expenses. The per diem fees shall not exceed the per diem fees stated on
the chairperson's resume on file with the board. The chairperson's bill
showing the amount payable by the parties shall accompany his or her final
report to the parties and the board. The chairperson may submit interim bills
to the parties in the course of the proceedings, and copies of the interim
bills shall also be sent to the board. The parties shall make payment directly
to the chairperson.
(d) AIIy other mutually incurred costs shall be borne equally by the public
agency and the employee organization. AIIy separately incurred costs for
the ,panel member selected by each party shall be borne by that party.
(e) A charter city, charter county, or charter city and county with a charter
that has a procedure that applies if an impasse has been reached between
the public agency and a bargaining unit, and the procedure includes, at a
minimum, a process for binding arbitration, is exempt from the requirements
of this section and Section 3505.4 with regard to its negotiations with a
bargaining unit to which the impasse procedure applies.
SEC; 4. Section 3505.7 is added to the Government Code, to read:
3505.7. After any applicable mediation and factfinding procedures have
been exhausted; but no earlier than 10 days after the factfinders' written
findings of fact and recommended terms of settlement have been submitted
to the parties pursuant to Section 3505.5, a public agency that is not required
to proceed· to interest arbitration may, after holding a public hearing
regarding the impasse, implement its last, best, and final offer, but shall not
implement a memorandum of understanding. The unilateral implementation
of a public agency's last, best, and final offer shall not deprive a recognized
employee organization of the right each year to meet and confer on matters
within the scope of representation, whether or not those matters are included
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in the unilateral implementation, prior to the adoption by the public agency
of its annual budget, or as otherwise required by law.
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