Impasse Resolution Procedures Mandated for Collective Bargaining

With interest arbitration for California public employees already severely threatened, if not already on “endangered species” lists, it was heartening, from the employee perspective, for the governor to sign into law Assembly Bill 646. Effective January 1, 2012, AB 646 amends the Meyers-Milias-Brown Act to give employee associations (but not the employer) the power to invoke fact-finding once an impasse occurs in collective bargaining.

What is Fact-Finding?

Fact-finding presently exists in a similar form for employees covered by the Educational Employment Relations Act and the Higher Education Employer-Employee Relations Act and for some local jurisdictions. (See, e.g., City of Sunnyvale Municipal Code section 2.24.260.) Fact-finding is like interest arbitration: A three-person panel (one neutral, two-party representatives) may “make inquiries and investigations, hold hearings, and take any other steps it deems appropriate,” and if settlement does not occur, “shall make findings of fact and recommend terms of settlement, which shall be advisory only.” Unlike interest arbitration, however, the panel’s findings are not binding.

Significant Questions Remain

The statutory revisions and additions have prompted much debate among practitioners, and the Public Employment Relations Board (PERB) has been holding hearings and taking comments in anticipation of issuing emergency regulations governing the implementation of AB 646. Two of the most significant questions are:

1. Does it apply to employers who are neither required by local rule to mediate upon reaching impasse nor voluntarily agree to mediate?
2. Does fact-finding apply only to “main table” negotiations, or does it also apply to meet-and-confer negotiations within the terms of an MOU?

Representatives from both sides of the labor-management divide are staking out conflicting positions on these issues. (See PERB Proposed Emergency Regulations deliberations at www.perb.ca.gov, publishing position statements from multiple practitioners.) On a positive note, PERB is taking the position, at least in its draft regulations, that AB 646 is a mandatory new impasse resolution procedure, if elected by the employee association, notwithstanding whether mediation occurs. (See PERB Staff Discussion Draft re AB 646 November 14, 2011, at www.perb.ca.gov.) The Board will make its final decision regarding its emergency regulations at a special meeting on December 8.

Ab 646 May Fundamentally Change the Bargaining Landscape

No matter how the key questions about its intent are resolved — either through PERB’s regulations, clarifying legislative amendments or litigation — AB 646 significantly changes the landscape. Previously, absent binding interest arbitration, a labor association would often be faced with either accepting an unfavorable employer final offer or risk having no MOU and unfavorable terms and conditions imposed upon its members. AB 646 changes that significantly. Now, if an impasse occurs and the employee association invokes fact-finding, the following steps must occur before the employer can impose its last, best and final offer:

• A fact-finding panel will be appointed within 10 days.
• The panel will meet with the parties within 10 further days.
• The panel may then “make inquiries and investigations, hold hearings, and take any other steps it deems appropriate.”
• If the dispute is not settled within 30 days, “the panel shall make findings of fact and recommend terms of the settlement, which shall be advisory only.”
• “The public agency shall make these findings and recommendations publicly available within 10 days after their receipt.”
• The public agency is required to hold a “public hearing” on the impasse before it can unilaterally implement terms and conditions of employment.

The fact-finding panel includes a neutral whose cost is shared by the parties. Invoking fact-finding may be costly to both the employer and the employee association and may add up to three months after a declaration of impasse before an employer can unilaterally implement its last, best and final offer.

Application to Porac Members

For correctional employees, firefighters and employees in mixed peace officer/non-peace officer bargaining units, all of whom fall under PERB jurisdiction, the forthcoming emergency regulations will fill in some of the gaps in the legislation. It appears likely that PERB will address procedures for selecting the neutral panel member and the application of AB 646 notwithstanding whether mediation occurs (this seems most primed for a legal challenge by employers).

Peace officers do not fall under PERB’s jurisdiction, and therefore the emergency regulations likely would not apply directly to them. Local rules governing the implementation are going to have to be negotiated. For “peace officer only” bargaining units, we suggest that employee organizations demand to meet and confer about local rules applying AB 646. (See “Comments Concerning Proposed PERB Regulations to Implement AB 646,” Nov. 18, 2011, by CBM at www.perb.ca.gov.)

What Employee Associations Should Be Doing to Best Position Themselves

AB 646 may generate a greater incentive for employers to try to reach an agreement without resorting to mandatory fact-finding. Fact-finding will create extra cost and delay before an employer can impose terms. It seems likely that many employee organizations will elect to “test the water” on fact-finding, given the presumption that there is nothing to lose — i.e., even after a fact-finding panel has issued its findings, there is nothing to stop the employee association from accepting an employer’s last, best and final offer and thereby creating an agreement.

But because of the relatively short statutory timelines, associations should be prepared ahead of time for the possibility of impasse. Subject matter experts should be ready to offer competent testimony supporting association proposals on the matters the statute directs the panel to consider, as referred to above, including comparability studies with “other employees performing similar services in comparable public agencies,” the consumer price index and other facts “normally or traditionally taken into consideration in making the findings and recommendations.” Some management-side commentators have opined that the short statutory timeframes imply that an informal fact-finding process is anticipated. We take the view that mandatory fact-finding is a formal process to be treated like interest arbitration — albeit that the results are not binding.

Employee associations should also develop strategies to best take advantage of the requirement that the findings of the panel must be published and must be subject to a new mandatory public hearing that occurs prior to an employer imposing terms and conditions of employment.

Fact-finding is a new tool that can be very useful in combating the misinformation disseminated by employers and the resulting hysteria in the public over public safety pay and benefits. It is imperative that employee organizations develop “war chests” to be available to use when necessary. The cost of fact-finding may be difficult to bear, given cutbacks in salary and benefits that many groups have endured, but it will also be a cost to employers that may lead them to come to agreements and avoid the fact-finding process. Although new to local jurisdictions, fact-finding is familiar to us and our colleagues in other labor law firms, and it offers significant potential strategic advantages to our clients — if they are prepared to take advantage of them.

About the Author

Gary M. Messing is a partner at the Sacramento office of Carroll, Burdick & McDonough LLP, and co-chair of the firm’s Public Sector Labor Law Group. Gary has been with CB&M representing peace officers for 35 years. Gregg Adam is a partner at the San Francisco office of Carroll, Burdick & McDonough LLP, and is co-chair of the firm’s Public Sector Labor Law Group. Gregg has been with CB&M representing peace officers for 12 years. They have extensive experience negotiating MOUs and with fact-finding and interest arbitration.

Peter Hoffmann
Attorney
Rains Lucia Stern, PC

Factual and Legal Summary

On the evening of October 1, 2007, Simon Glik was walking past the Boston Common when he witnessed three police officers arresting a suspect. Glik heard another bystander exclaim, “You are hurting him, stop.” Concerned that the officers were employing excessive force, Glik stopped roughly 10 feet away and began a video recording of the incident on his cell phone.

After placing the original suspect in handcuffs, one of the officers suggested that Glik had “taken enough pictures.” Undeterred, Glik responded, “I am recording this. I saw you punch him.” At that time, another officer approached Glik and asked if his phone also captured audio recording. When Glik responded to the officer in the affirmative, the officer placed him under arrest for unlawful audio recording in violation of Massachusetts’ wiretap statute.

In addition to the alleged violation of the state wiretap statute, Glik was ultimately charged with disturbing the peace and aiding in the escape of a prisoner. The Commonwealth voluntarily dismissed the count of aiding in the escape of a prisoner due to a clear lack of probable cause. Thereafter, the trial court disposed of the remaining two charges in granting Glik’s motion to dismiss.

In February 2010, Glik brought suit under 42 U.S.C. § 1983, claiming that his arrest for recording the officers constituted a violation of his rights under the First and Fourth Amendments. The defendant officers moved to dismiss Glik’s complaint, arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the individual officers were entitled to qualified immunity. After hearing arguments from the parties, the court orally denied the defendants’ motion. Following a timely appeal, on August 26, 2011, the First Circuit Court of Appeal affirmed the district court’s decision.

Analysis

While the Court of Appeal acknowledged that an individual’s right to record law enforcement personnel is not without limitations — i.e., reasonable time, place and manner restrictions — in denying the officers’ defense of qualified immunity, it appears such restrictions are limited to those situations where the recording of the incident interferes with the police officer’s performance of his or her duties.

In reaching this conclusion, the court completed a two-part analysis, establishing that not only were the facts alleged by the plaintiff sufficient to make out a violation of his First Amendment rights but that the plaintiff’s right to record the officers’ conduct had been “clearly established” prior to the incident.

Despite the existence of two similar cases from different circuits in support of the officers’ argument that the First Amendment right to film was not “clearly established” at the time of the arrest, the court found those cases to be easily distinguishable and unpersuasive. Instead, the court considered a number of cases addressing public figures being recorded in public places, and reasoned: “Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts.”

The court’s opinion emphasized that the First Amendment is of particular significance as it relates to government action. Moreover, given the nature of the law enforcement profession — and the potential misuse of authority to deprive individuals of their liberties — the court found that the circumstances set forth in Glik necessitated the recognition of the right to film police officers engaged in the course of their duties.

Conclusion

While the Circuits may not necessarily agree, and the ruling in Glik does not control here in the Ninth Circuit, it is in the best interest of peace officers everywhere to presume the existence of a First Amendment right to record officers engaged in the course of their duties, so long as the citizen’s conduct does not interfere with the officer’s performance or jeopardize his or her safety.

Should situations arise where an officer believes a citizen’s conduct no longer falls within Constitutional protections, the officer would be best served to communicate with his or her supervisor before taking action.

About the Author

Peter Hoffmann is an associate in the firm’s Collective Bargaining Practice Group and has significant experience with the Litigation Practice Group, as well as representing peace officers in administrative matters.