HomeMy WebLinkAbout06-26-2014 Council Agenda Item 10:45 AM Supplement RECEIVED
Agenda Item: 10:45 A.M. HEARING
C'019 JJN 25 PM 3 11 Date: 6/26/14
CITY C11R1, TR NO CITY COUNCIL
City of
Supplemental Information Packet
Agenda Related Items— 10:45 A.M. - A
Supplemental Packet Date: June 25, 2014
Items
HEARING regarding a bargaining impasse and unilateral implementation of wages,
hours and other terms and conditions of employment for employees in Unit 5,
represented by the International Association of Fire Fighters, Local 753 (Fire Basic) —
Personnel Department
RESOLUTION - To implement changes in wages, hours and other terms and
conditions of employment for City employees in Unit 5, represented by the International
Association of Fire Fighters (IAFF), Local 753 (Fire Basic)
RESOLUTION — 7th amendment to Salary Resolution No. 2013-101, modifying salaries
in Exhibit 5, Fire Non-Management (IAFF)
Supplemental Information:
Any agenda related public documents received and distributed to a majority of the City Council after the
Agenda Packet is printed are included in Supplemental Packets. Supplemental Packets are produced as
needed. The Supplemental Packet is available for public inspection in the City Clerk's Office, 2600
Fresno Street, during normal business hours(main location pursuant to the Brown Act, G.C. 54957.5(2).
In addition, Supplemental Packets are available for public review at the City Council meeting in the City
Council Chambers, 2600 Fresno Street. Supplemental Packets are also available on-line on the City
Clerk's website.
Americans with Disabilities Act (ADA):
The meeting room is accessible to the physically disabled, and the services of a translator can be
made available. Requests for additional accommodations for the disabled, sign language interpreters,
assistive listening devices, or translators should be made one week prior to the meeting. Please call
City Clerk's Office at 621-7650. Please keep the doorways, aisles and wheelchair seating areas open
and accessible. If you need assistance with seating because of a disability, please see Security.
RECEIVED
City of
ff C914 JL!N 25 PM 3 11
DOUGLAS T. SLOAN
City Attorney CITY CLERK, FRESNO CA
June 25, 2014
MEMORANDUM
RE: Informational Statement Regarding Imposition of Pre-Impasse Proposed Upon
Fresno City Firefighter Association — Non-Management Fire (Fire Basic)
INTRODUCTION
This memorandum addresses the facts and legal issues of City of Fresno's ("City")
consideration of the imposition of terms and conditions of employment with its Non-
Management Fire Unit ("Unit 5") represented by the Fresno City Firefighters
Association ("Association").
FACTS
The City and Association are parties to a Memorandum of Understanding ("MOU")
which expired on August 4, 2013. After negotiating in good faith, the parties reached
overall tentative agreement ("1st TA") for a successor MOU on November 5, 2013.
Following a change in Association leadership, the Association declined to take the
terms of the 1st TA to its membership for a vote. After subsequent negotiation, the
parties reached a second TA ("2nd TX) on January 6, 2014. On January 28, 2014, the
Association informed the City that Unit 5 membership failed to ratify that 2nd TA.
After returning to the table after the failed ratification vote on the 2nd TA, the parties
were unable to make further progress. The City declared impasse on March 17, 2014,
confirming its declaration in writing on March 20, 2014. The City's final offer was
identical to the terms of the 2nd TA, which the Association's membership failed to ratify.
On April 22, 2014, the parties conducted an impasse meeting pursuant to Fresno
Municipal Code ("FMC") section 3-617. The parties discussed their positions on the
disputed issues. During those April 22nd discussions, the Association made a new
verbal proposal. The City team informed the Association that it did not have authority
to agree to the proposal being made. The City agreed, however, that it would submit
the proposed package to the City Council if, and only if, the Unit 5 membership first
ratified it. Thus, the impasse meeting concluded with the parties' agreement on a
process going forward to potentially resolve the dispute. Subsequently, the parties
agreed on proposed MOU language to be submitted to the Association's membership
for a vote on the Association-sponsored proposal. That vote occurred on June 3 and
June 5, 2014. The proposal was rejected by a vote of 73 to 50.
Not Attorney-Client Privileged
June 25, 2014
Page 2
More recently, the City gave the Association a final opportunity to break the impasse by
having its membership vote again on the failed Association-sponsored proposal. The
Association indicated intent to do so, but on June 23, 2014, informed the City that it had
decided not to seek ratification.
On June 24, 2014, counsel to the Association delivered a letter to the City asserting the
April 22, 2014, meeting represented "continued . . . exchanges of position by both
parties." The Association demanded the City complete "those steps contemplated as
part of the impasse meeting pursuant to FMC section 3-617" before implementation.
Neither party asked to mediate the dispute. The Association did not request fact-
finding by April 19, 2014, the last day before expiration of the statutorily defined time
period for requesting factfinding. (Gov. Code §3505.4(a).)
LEGAL DISCUSSION
The Meyers-Milias-Brown Act ("MMBA," Gov. Code §§ 3500 et seq.) requires local
agencies and recognized employee organizations to meet and confer in good faith with
over issues within the scope of representation. (Gov. Code § 3505.) Once impasse
occurs and after exhaustion of any applicable impasse procedures, the City may
unilaterally implement "policies reasonably comprehended within previous offers made
and negotiated between the parties." (PERB v. Modesto City Schools District (1982)
136 Cal. App. 3d 881.)
Impasse Procedures
An impasse procedure is set forth in Section 3-617 of the FMC, consisting of a
mandatory impasse meeting, mediation upon mutual agreement, and potential post-
mediation fact-finding. In accordance with that section, the parties held an impasse
meeting on April 22, 2014. During that meeting, the Association made a proposal that
it agreed to take back to its membership; the City agreed to recommend the proposal to
the City Council if it was ratified by the Association membership. After the membership
vote failed, neither party sought voluntary mediation. This concluded the parties'
obligations under the FMC impasse procedure.
Government Code section 3505.4(a) authorizes an employee organization that has not
elected to mediate an impasse to request fact-finding. Such a request must be filed
"not later than 30 days following the date that either party provided the other with a
written notice of a declaration of impasse." This same timeline is also codified as
PERB Regulation 32802.
The 30 day time limit for seeking fact-finding under the Government Code applies to all
local agencies except for agencies that have adopted binding arbitration as a means for
resolving bargaining disputes. (Gov. Code, § 3505.5(e).) The FMC does not provide for
binding arbitration. For this reason, the Government Code's 30 day time limit for
demanding fact-finding applies to FMC section 3-617.
Not Attorney-Client Privileged
June 25, 2014
Page 3
The City issued its written notice of impasse to the Association on March 20, 2014. As
noted above, the Association did not make any request for fact-finding by the deadline
of April 19, 2014. PERB has strictly construed the statutory timelines for requesting
fact-finding under Government Code section 3505.4, recently stating that employee
organizations have "the sole responsibility" for requesting fact-finding in a timely
manner. (City of Redondo Beach (2014) PERB Order No. Ad-409-M; see also City of
Redondo Beach (2014) PERB Order No. Ad-413-M.) As such, the Association did not
comply with the statutory deadlines for a fact-finding request and cannot do so now.
Unilateral Implementation
Government Code section 3507 provides after any applicable impasse procedures are
exhausted, "a public agency ... may, after holding a public hearing regarding the
impasse, implement it last, best, and final offer but shall not implement a memorandum
of understanding." If an impasse is broken and bargaining is subsequently resumed
but again deadlocks, unilateral implementation is appropriate, because impasse
procedures may not be re-invoked for second or subsequent impasses. (See, e.g.,
Modesto City Schools (1983), above.)
After the impasse process was exhausted, the City gave the Association notice, both in
writing and during a meeting between City and Association representatives, the last
best and final offer would be implemented unilaterally on June 26, 2014. The City also
gave the Association the opportunity to seek ratification of the Association-sponsored
proposal anew, in order to avoid unilateral implementation. While the Association
initially indicated a desire to pursue this course, the Association's representative
informed the City Manager on June 23, 2014, that the Association was "pulling" the
ratification vote. This signaled the end of any post-impasse, pre-implementation
process.
The Association has asked the City to continue negotiations and claims that the
impasse process was not completed. The City has determined, however, that further
negotiations would be futile, and the law does not require re-invocation of the impasse
process under these circumstances. Accordingly, at its June 26, 2016 meeting, the City
Council may consider implementing the terms of the City's last pre-impasse proposal
as set forth in the March 20, 2014, impasse letter, after conducting a public meeting
and a Council vote to impose its last best offer. The impasse letter represents the last,
be t formal proposal made by the City in negotiations.
JR c u mitted,
TINA R. G IN
Supervising Deputy City Attorney
TRG:trg:pn[65120pn/TRG]
Not Attorney-Client Privileged