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