§ 1018. Mediation; fact-finding; last best offer

(a) If, after a reasonable period of negotiation, the representative of a collective bargaining unit and the employer reach an impasse, the Board, upon petition of either party, may authorize the parties to submit their differences to mediation. Within five days after receipt of the petition, the Board shall appoint a mediator who shall communicate with the parties and attempt to mediate an amicable settlement. A mediator shall be of high standing and in no way actively connected with labor or management.

(b) If, after a minimum of 15 days after the appointment of a mediator, the impasse is not resolved, the mediator shall certify to the Board that the impasse continues.

(c) Upon the request of either party, the Board shall appoint a fact finder who has been mutually agreed upon by the parties. If the parties fail to agree on a fact finder within five days, the Board shall appoint a fact finder who shall be a person of high standing and not actively connected with labor or management. A member of the Board or any individual who has actively participated in mediation proceedings for which fact-finding has been called shall not be eligible to serve as a fact finder under this section unless agreed upon by the parties.

(d) The fact finder shall conduct hearings pursuant to rules of the Board. Upon request of either party or of the fact finder, the Board may issue subpoenas of persons and documents for the hearings, and the fact finder may require that testimony be given under oath and may administer oaths.

(e) Nothing in this section shall prohibit the fact finder from mediating the dispute at any time prior to issuing recommendations.

(f) The fact finder shall consider, if applicable to the issues, the following factors in making a recommendation:

(1) wage and salary schedules and employee benefits to the extent they are inconsistent with prevailing rates, both within State government as a whole and for comparable work in commerce or industry within the State;

(2) work schedules relating to assigned hours and days of the week as they relate to the employee’s needs and the general public’s requirement for continual service; and

(3) general working conditions as those conditions compare with generally accepted safety standards and conditions prevailing in commerce and industry within the State and within State government.

(g) Upon completion of the hearings, the fact finder shall file written findings and recommendations with both parties.

(h) The costs of witnesses and other expenses incurred by either party in fact-finding proceedings shall be paid directly by the parties incurring them, and the costs and expenses of the fact finder shall be paid equally by the parties. The fact finder shall be paid a rate mutually agreed upon by the parties for each day or any part of a day while performing fact-finding duties and shall be reimbursed for all reasonable and necessary expenses incurred in the performance of his or her duties. A statement of fact-finding per diem and expenses shall be certified by the fact finder and submitted to the Board for approval. The Board shall provide a copy of approved fact-finding costs to each party with its order apportioning half of the total to each party for payment. Each party shall pay its half of the total within 15 days after receipt of the order. Approval by the Board of fact-finding and the fact finder’s costs and expenses and its order for payment shall be final as to the parties.

(i)(1) If the dispute remains unresolved 20 days after transmittal of findings and recommendations or within a period of time mutually agreed upon by the parties that may be not more than an additional 30 days, each party shall submit to the Board or, upon the request of either party, to an arbitrator mutually agreed upon by the parties its last best offer on all disputed issues as a single package. If the parties cannot agree on an arbitrator, the American Arbitration Association shall appoint a neutral third party to act as arbitrator.

(2) Each party’s last best offer shall be:

(A) filed with the Board or the arbitrator under seal;

(B) certified to the Board or the arbitrator by the fact finder; and

(C) unsealed and placed in the public record only when both parties’ last best offers are filed with the Board or the arbitrator.

(3)(A) A party’s last best offer shall not include a proposal to:

(i) provide alternative health coverage to retired State employees that has not been agreed to pursuant to the provisions of subdivision 479(a)(2) of this title; or

(ii) provide health coverage that includes a Medicare Advantage plan or similar plan established pursuant to Title XVIII of the Social Security Act unless the inclusion of the plan has been agreed to by both parties.

(4) The Board or the arbitrator shall hold one or more hearings and consider the recommendations of the fact finder.

(5)(A) Within 30 days of the certifications, the Board or the arbitrator shall select between the last best offers of the parties, considered in their entirety without amendment, and shall determine its cost.

(B) If the Board or the arbitrator finds that the last best offers of both parties are unreasonable and likely to produce undesirable results or likely to result in a long-lasting negative impact upon the parties’ collective bargaining relationship, then the Board or the arbitrator may select the recommendation of the fact finder under subsection (g) of this section as to those disputed issues submitted to the Board or the arbitrator in the last best offers.

(6) The Board or the arbitrator shall not issue an order under this subsection that is in conflict with any law or rule or that relates to an issue that is not bargainable.

(7) The decision of the Board or the arbitrator shall be final and binding on the parties. (Added 1997, No. 92 (Adj. Sess.), § 9; amended 2021, No. 81 (Adj. Sess.), § 1, eff. July 1, 2022; 2023, No. 6, § 3, eff. July 1, 2023; 2023, No. 78, § E.108.3, eff. July 1, 2023.)