PERB: Only One Factfinding Per Round Of Negotiations

City of Watsonville (2017) PERB Decision No. A445-M (Issued on 6/27/17)

The City of Watsonville (City) and its unions were in joint negotiations for successor memoranda of understanding (MOUs). The unions declared impasse on June 1, 2015. On August 5, 2015, the unions filed a request for factfinding but withdrew the request on August 12, 2015. The Board noted that if the unions had not withdrawn their request, it likely would have been denied as untimely by PERB.

Following the declaration of impasse, the City did not impose its last, best, and final offer, but instead chose to maintain the status quo. At some point the parties restarted negotiations. On June 29, 2016, the unions again declared impasse. On July 7, 2016, the unions filed a request for factfinding. The City objected to the factfinding request on the grounds that the unions had the chance to request factfinding in 2015 but did not do so properly and that the unions could not make a second request during the same round of negotiations. A majority of the Board agreed with the City.

In considering this issue, the Board decided to maintain a “bright line” rule that in matters involving the same dispute, “the timeliness of an employee organization’s request for factfinding is properly based upon an initial written notice of a declaration of impasse. In situations where an employee organization has provided the employer with a written notice of a declaration of impasse, and it later believes that the parties are no longer at impasse, it is incumbent on the employee organization to withdraw its declaration of impasse.”

The majority’s holding drew a strong dissent from Member Banks. Member Banks would agree that a party is only entitled to factfinding once during any round of negotiations. However, Member Banks would have found that since the unions did not pursue factfinding initially, the unions were free to pursue factfinding after the second impasse. According to Member Banks, “I would hold that an employee organization may timely withdraw its request for factfinding before the process has been initiated, in order to preserve the right to proceed to factfinding in the event of a subsequent impasse in negotiations.”

Comments:

In the current political and fiscal environment, a public employer has very little incentive to impose its LBFO. This is because almost all public employers are offering some positive economic benefits during bargaining. The issue is almost always that the unions believe employers are not offering enough. When there is an impasse because the unions want more, there is very little incentive for an employer to impose its LBFO. In this type of situation, there often will be renewed negotiations at some point and a potential “second” impasse. The lesson here is that if a union wants to proceed to factfinding, it must do so after its initial declaration of impasse, and cannot wait until later.
According to my records, this—along with the Somona County Superior Court (2017) PERB Decision NO. 2532-C—are the first decisions in which Member Banks has filed a dissent.