Labor Relations: The Meet and Confer Process

5. Maintain a Balance of Issues on the Table Strive for agreement but maintain an appropriate number of important issues on the table pending arbitration, consistent with what the Union is maintaining. While it is important to develop management economic proposals during the planning phase, it is equally important not to prematurely withdraw them during negotiations. 4. U NILATERAL I MPLEMENTATION If negotiations in a non-interest arbitration environment are unsuccessful in arriving at an agreement, and if any applicable impasse resolution procedures do not resolve the impasse, then the governing body may choose to hold a public hearing to exercise its legal option to unilaterally implement changes in compensation or other employment terms. Where the impasse dispute was submitted to fact-finding under Government Code sections 3505.4 and 3505.5, the governing body cannot take action to unilaterally implement the agency’s last, best, and final offer until 10 days after the fact-finders’ written report has been submitted to the parties and made publicly available. 305 Unilateral implementation action may be taken only after good faith negotiations have reached a bona fide impasse and any applicable impasse resolution procedures have been fully utilized in good faith. 306 An agency may be found to have prematurely imposed its last, best, and final offer if it rushes to impasse, through impasse resolution procedures, or sets artificial deadlines during negotiations. 307 Impasse is deemed broken if the union or the agency makes a significant shift in its negotiating posture that indicates agreement may be possible. 308 Once impasse is broken, an agency may not proceed to unilateral implementation unless impasse is reached again. After impasse is reached and all applicable impasse resolution procedures have been utilized in good faith, the agency may take unilateral action. Following the exhaustion of impasse procedures, the decision to impose the agencies last, best and final offer is voluntary. The employer has no affirmative obligation to impose. 309 What changes in employment terms can the Governing Body then unilaterally implement? Only those offered to the union negotiating representatives and rejected by them. If the agency chooses to take unilateral action, it must only implement its last, best and final offer or changes that were “reasonably contemplated within its last, best and final offer.” 310 Agencies may not, for example, implement recommendations of a fact-finding panel even though these may be more favorable to the union. 311 In imposing a last, best and final offer, an agency’s legislative body cannot hold a “public hearing” to simply “go through the motions” to hasten imposition. It must, at a minimum, provide adequate notice to the public that it intends to consider imposing terms and conditions on employees, and to allow public comment concerning the proposed imposition. 312 It is particularly important that any unilateral implementation action (including any plan to unilaterally implement terms that differ in any way from the agency’s last, best and final offer) be carefully structured to comply with these legal restrictions because the chances of legal challenges by unions to such action are normally very high.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 72