Anchored in Bargaining
Basics: Impasse,
Factfinding & Concerted
Activities
ACSA Negotiators’ Retreat
June 24, 2015
Janae Novotny and
Janet Cory Sommer
Burke, Williams & Sorensen, LLP
Overview
• Under the EERA, impasse,
mediation and factfinding
are part of the good faith
bargaining continuum.
• The goal of each part of
the process is to reach
agreement.
Impasse
“Impasse” means that the
parties to a dispute over
matters within the scope of
representation have reached
a point in meeting and
negotiating at which their
differences in positions are
so substantial or prolonged
that future meetings would
be futile.
Gov. Code § 3540.1(f)
The Impasse Process
The purpose for requesting
that PERB appoint a
mediator is to assist the
parties “in reconciling their
differences and resolving the
controversy on terms that
are mutually acceptable.”
Gov. Code § 3548
The Impasse Process
• Union, district or both file
with PERB Impasse
Determination form.
• Board agent considers
information required on the
form and may talk to the
parties by telephone.
The Impasse Process
Factors considered:
• When did bargaining start?
• How may hours spent in
bargaining to date?
• How many bargaining
meetings?
• How may issues on which the
parties have reached tentative
agreement?
The Impasse Process
Factors considered:
• How many unresolved
issues?
• Extent to which the parties
have made
counterproposals and
discussed the issues in
dispute.
The Impasse Process
• If PERB determines that an
impasse exists, it appoints a
mediator within 5 working
days of receiving the request.
• Mediator confers with parties
and confirms mediation dates.
• Mediation is confidential.
Gov. Code § 3548
The Impasse Process
• If the mediator is unable to effect
settlement . . . within 15 days of
his/her appointment and
declares that factfinding is
appropriate to resolve the
dispute, either party may request
factfinding.
• Each party appoints a factfinding
panel member and PERB
appoints (or parties mutually
select) panel chair.
Gov. Code § 3548.1
The Impasse Process Reality
• Mediator may not be able to
meet with the parties within 15
days of appointment.
• Mediator holds parties in
mediation as long as mediator
believes progress is possible.
• Depending on the dispute,
parties may bring in outside
consultants to help them reach
agreement.
The Impasse Process → Factfinding
Remember when you select
your panel member factfinding is a continuation
of the bargaining process
and a mutually acceptable
agreement is still the goal.
The Impasse Process → Factfinding
“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 as it may deem
appropriate.” Gov. Code § 3548.2
The Factfinding Process Reality
• Statutory timelines may
be waived.
• Negotiations typically
may continue by the
panel members before
and during the hearing.
The Factfinding Process Reality
Be clear on your goals
when:
• Selecting panel members,
• Selecting panel chair,
• Deciding on timeline
waivers.
Factfinding Hearing
If you began bargaining
preparation with the end in
mind – factfinding – you will
be prepared to present data
to support your position on
each of the disputed issues.
Factfinding Criteria
• Relevant laws (LCAP & LCFF)
• Interests & welfare of the
public & District’s ability to
pay.
• Comparability with other
public school employees.
• CPI
• Overall compensation,
continuity & stability of
employment.
Gov. Code § 3548.2
Factfinding
“If the dispute is not settled
within 30 days after the
appointment of the panel, or
upon agreement by both
parties, within a longer period,
the panel shall make findings
of fact and recommend terms
of settlement, which . . . shall
be advisory only.”
Gov. Code § 3548.3(a)
Factfinding
• Prepare for report release.
• Panel’s written
recommendation submitted
to the parties privately.
• Within 10 days, district
must make them public.
Gov. Code § 3548.3(a)
Post-Factfinding
• District may unilaterally
impose its LBFO.
• Union may strike.
• Good faith bargaining
obligation may be revived
by “changed
circumstances,” e.g. an
offer by either side to make
concessions sufficient to
break the impasse.
Post-Factfinding
• District’s unilateral
implementation of terms &
conditions of employment
does not end the
bargaining obligation; it
does reset the status quo.
Concerted Activities
• Understand whether a
concerted activity is “legal” or
“illegal” and whether it is
“protected” or “unprotected.”
• Educate administrators to avoid
committing unfair labor
practices and “provoking”
concerted activities to protest
the district’s unfair practices.
Concerted Activities
•
•
•
•
•
•
Wearing union buttons.
Leafletting.
Informational picketing.
Board meeting demonstrations.
“Working to rule.”
Pre-impasse strike
preparations.
Concerted Activities
• Communicating
with/through students.
• “Backpack” messages.
• Using district’s email &
other communications
systems.
Concerted Activities
• Pre-impasse strike
authorization vote.
• Pre-impasse strikes.
• Post-impasse strikes.
• Surprise strikes.
• Intermittent strikes.
Concerted Activities
Prepare your Board:
• Picketing homes &
businesses;
• Public relations;
• Impact on employeremployee relationships;
• Costs;
• Be realistic.
Concerted Activities
Prepare the public:
• Strike plan.
• Communications plan.
• Information is key.
Concerted Activities
Prepare your strategy:
• Consider filing unfair
practice charge.
• Injunctive relief.
• Public relations.
Thank You
Anchored in Bargaining
Basics: Impasse,
Factfinding & Concerted
Activities
ACSA Negotiators’ Retreat
June 24, 2015
Janae Novotny and
Janet Cory Sommer
Burke, Williams & Sorensen, LLP