California's Higher Education Employer-Employee Relations Act (HEERA) establishes a mechanism or process for collective bargaining that is required of the CSU, the UC, and the unions representing employees in both of these systems. In its simplest form, this process involves four phases: public notice, bargaining, impasse, and what might be called "final" impasse.


Public Notice

The first step in the bargaining process envisioned by HEERA is public notice, sometimes called the "sunshine" process. In theory, public notice puts the citizens of California on notice about the terms and conditions of employment which both the public employer and public employees believe appropriate, so that the public can comment and, in so doing, influence the ultimate establishment of public policy as codified in the collective bargaining agreement. In practice, however, there has never been a recognizable "public" in California which cares about the process, and other than attracting the occasional notice of a government "gadfly," the entire process has degenerated into nothing more than a mechanical obligation at the beginning of the proposal exchange process.


Bargaining

Following the initial announcement of their bargaining goals (public notice), the union and the employer engage in the face-to-face negotiations, which constitute the heart of collective bargaining. Many contract negotiations (and perhaps most negotiations outside of the CSU) are successfully concluded at this stage. If agreement is not possible, however, the law next provides for two specific steps, which constitute the statute's "impasse" procedures.


Mediation

If, after a reasonable period of bargaining, the parties are unable to conclude an agreement, HEERA allows either (or both) to request that California's Public Employment Relations Board (PERB), which administers HEERA, issue a finding of impasse. In this request, a variety of information is provided the Board, including the length of time spent bargaining, a listing of resolved issues, and a listing of unresolved issues. Recently, the Board has approved such impasse requests on a largely pro forma basis, and can be expected to approve virtually any such request within a period of about two weeks. Upon declaration of impasse, PERB informs the State Mediation and Conciliation Service, which assigns a mediator (a State employee) to assist the parties in a voluntary resolution of their disagreements.

Due to the heavy workload of these mediators, as well as the nature of the mediation process itself, the mediation phase of the process frequently involves several months of sporadic meetings. During this time, the mediator meets individually and collectively with the parties in search of a settlement. When (and if) the mediator reaches the conclusion that mediation cannot produce a settlement, he/she is authorized by law to certify the dispute for the next step of the bargaining process: fact-finding.


Fact-Finding

Upon receipt of a fact-finding certification from a mediator, PERB provides the parties with a list of proposed neutral individuals to assist in the fact-finding process. The person ultimately selected by the parties as the fact-finder is charged with chairing a three-member fact-finding panel, which includes one representative from the employer and one from the union. Although this panel is responsible for an examination of the facts supporting the positions of both parties by means of hearing and briefs, the process most frequently deals with the arguments and political postures of the parties that underlie the dispute. Following these deliberations (which sometimes take on the semblance of a mini negotiation or mediation), the panel issues a written report, which contains its non-binding recommendations for settlement of the dispute. If the panel's recommendation is unanimous, it is generally presumed that a contract settlement (in the form of the report) has been reached. A 2-to-1 vote, on the other hand, signifies that the neutral fact-finder has sided with one party or the other in a manner unacceptable to the dissenting voter. Although under statute fact-finding is intended to run on a fairly tight schedule of approximately one month, a variety of factors such as the complexity of the dispute and scheduling problems often can result in a much longer time period.

Following the issuance of the fact-finding report, HEERA requires a "black out" period of 10 days before the fact-finding report may be made public. This is to allow time for the parties, if possible, to reach a settlement based on the report without being subject to external pressures. The publication of the report represents the final, required step in the HEERA bargaining process.


"Final" Impasse

With the required steps of the bargaining law completed—and no agreement reached—neither party is under any obligation to continue discussion of the disputed contract issues. In that scenario, however, the status of those disputed issues must be addressed. Under traditional American labor law and theory, with the bargaining obligation exhausted, the employer is considered free to exercise its traditional "management right" to run its operation as it sees fit. As a practical matter, this means that an employer may impose on the employees its view of the conditions of employment in dispute (such as occurred in the CSEA-CSU dispute in 1995-1996 and the CFA-CSU dispute in 1999), a practice commonly referred to as "imposition" or "unilateral implementation."

Here it is important to understand that the employer is not imposing a contract but rather only certain employment conditions which exist outside of the contractual setting. Moreover, three important restrictions are traditionally applied to management's rights:

1) Terms and conditions of employment may be imposed only if the employer has bargained in good faith during the preceding process (which explains why most unions tend to have unfair labor practice charges pending as a hedge against unilateral implementation).
2) An employer may not impose working conditions at odds with the law. (For instance, CSU could not violate the large body of California Government Code and Education Code provisions that are applicable to State and CSU employment.)
3) An employer may not impose conditions that are not consonant with positions previously taken at the bargaining table. (For instance, CSU could not impose a 3% salary increase after having proposed 3.4% at the table, a fact which helps explain why CSU prefers to make informal, "off the record" proposals for which it cannot be held responsible in final impasse.)

In another interesting wrinkle, any substantive change in circumstances (such as passage of a new State budget or a substantive change in position by either party on disputed issues) triggers a resumption of the HEERA bargaining obligation with all of the bargaining requirements again in full effect.


Current State of HEERA

Unfortunately, many elements of HEERA, particularly its impasse mechanisms, have not worked effectively since the inception of the Act. No matter the theories of "good faith" bargaining which underlie all collective bargaining statutes, it is simply unrealistic to anticipate that the party with superior power in the process (most frequently the employer) will do anything other than rely on that power to accomplish a completion of bargaining (a "settlement") without relinquishing any of the power at hand.

Under HEERA, this tendency has been exacerbated by the fact that the final phase of the process, fact-finding, is non-binding on the parties. Rather than be concerned with the results of the fact-finding, the party in the superior power position simply can wait out the process and then do what it intended from the beginning. This lack of finality also has corrupted the fact-finding process itself, as neutral fact-finders routinely "shade" the facts of the dispute to appease the party with power. Given that the goal of the fact-finder is to achieve a settlement—at whatever cost—any fact-finding report favoring the weaker party will be rejected out-of-hand by the stronger party, thus prolonging the dispute. Fact-finders therefore virtually always favor the stronger party, which then most frequently uses the report to beat the other party into submission . . . submission usually being preferable to working without a contract.

For these and other reasons, virtually all higher education unions operating in California, including APC, have devoted substantial effort to attempts to reform various aspects of HEERA. While some progress has been made in the face of major opposition from the CSU and UC, differences among the unions on impasse resolution mechanisms (for example, right to strike vs. the resolution of bargaining disputes through binding arbitration) has slowed the effort. Additionally, it appears that a number of the Legislature's traditional power brokers (those who, ironically, complain the most loudly when called upon to assist their nominal labor allies in obtaining fair contracts) actually prefer the current statute. If the collective bargaining process actually worked by leveling the proverbial "playing field," the standing of these very same power brokers would be diminished, something they do not relish (protestations notwithstanding).