IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH – Mediation

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There is no precedent for the Board to enforce a non-binding mediator’s recommendation. Local 790 failed to show how the County’s failure to provide a rationale for not adopting the mediator’s recommendations violated the MMBA. The County’s Employer-Employee Relations Policy gives the County discretion to adopt a hearing officer’s proposed decision. Local 790’s citation to the standard in Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515 [113 Cal. Rptr. 836] that “the agency must make findings that bridge the analytic gap between the raw evidence and the ultimate decision or order” is inapplicable to this case. This is because it involves a local agency review of a variance permit under standards set by statute, the variance hearing occurred and was under review by the court. Here, Local 790 alleged violation of a local rule which the County adopted after good faith negotiations with Local 790 or its predecessor and there is no evidence that the mediator’s decision was ever brought before the County’s board for adoption. Local 790’s argument that state policy favors mediation and by ignoring the mediator’s recommendation, the County violated this policy fails. The cases cited by Local 790 pertain to the State’s policy favoring binding arbitration, not non-binding mediation. Local 790’s allegation on appeal that the charge incorporated by reference the mediator’s findings regarding failure to provide information is ambiguous. If it refers to “changed conditions” or “retaliation” allegations in the charge, then this allegation is dismissed under PERB Regulation 32615(a)(5), which requires a charge to contain a clear and concise statement of the facts. Otherwise, Local 790 appears to raise a new issue on appeal and under PERB Regulation 32635(b) has not provided good cause to present new allegations on appeal.