Now that AB 646 has been in effect for two full years, how has the process worked? For starters, there is still a lot of uncertainty over the scope of factfinding and even its constitutionality. It will probably take at least two more years before those issues are resolved. In terms of how long it is taking to go through the process, I have some preliminary data. So far, there have been 30 reported MMBA factfinding decisions from January 1, 2012 through the end 2013. I focused on the number of days between the appointment of the factfinding chair and the issuance of the factfinding panel’s decision. Under Gov. Code section 3505(a), the factfinding panel shall issue its report within 30 days of the factfinder’s appointment. Here’s how often that has occurred:
MMBA Factfinding Decisions from 1/1/12 to 12/31/13
- Number of decisions reported by PERB: 30
- Average # Days: Appt of Chair to Decision: 85.3
- Longest # Days: 208
- Shortest # Days: 19
- # Less Than 30 Days: 1
When AB 646 was signed in 2011, I suggested that employers add 60-90 days to their bargaining timelines. I made this suggestion even though AB 646 provides that the factfinding panel’s decision shall be issued 30 days after the appointment of the factfinding chair. At that time, I suspected that savvy unions would find ways to delay the process. Two years after AB 646 took effect, this prediction appears to be true. It’s taking an average of 85 days from the appointment of the chair to issuance of a decision. Notably, in only one case has the decision taken less than 30 days, as envisioned in the statute.
Why is it taking so long? I stand by my comment that savvy unions are delaying the process, especially when concessions are on the table. Unions do this by “formalizing” the process by calling numerous witnesses (including experts); asking for multiple days of hearing; demanding court reporters; insisting on closing briefs, etc. Indeed, the format of a factfinding hearing can vary dramatically depending on the parties involved. However, I have to admit that it’s not all the union’s fault. I have found that many, if not most, of the available factfinders are unable to provide hearing dates and issue a written decision within 30 days of appointment for a variety of reasons.
For example, most factfinders are also arbitrators. In the arbitration realm, if a party wants a court reporter, and is willing to pay for it, almost every arbitrator will allow it. Similarly, almost all arbitrators will allow for closing briefs, as opposed to oral argument, if one party requests it. I have found that factfinders generally use these same practices in factfinding. So, for example, if a union demands the presence of a court reporter and the ability to submit a closing brief after receipt of the transcripts, most factfinders will allow it. However, that essentially guarantees the 30-day timeline won’t be met since it’s almost impossible to have a hearing, get transcripts, submit a closing brief, and draft a decision all within 30 days.
In my opinion, a factfinding hearing is not supposed to be like a formal arbitration. This is especially true if the ultimate goal is to help the parties reach an agreement. In most instances, I think factfinding should just involve a few people sitting around a conference table making presentations to the factfinder and responding to questions. If it’s done like that, the 30-day timeline is feasible. However, as it is, the 30-day timeline is largely illusory.