§ 3.70.110. Impasse resolutions.

A.

Service classes. For purposes of this section, employees perform services in one of the following three classes:

1.

Services which may not be given up for even the shortest period of time;

2.

Services which may be interrupted for a limited period but not for an indefinite period of time; and

3.

Services in which absent extraordinary circumstances, work stoppages may be sustained for extended periods without serious effects on the public.

B.

Limitations on engaging in strike. The class described in subsection A.1 of this section is composed of police, fire protection and emergency medical services. The class described in subsection A.2 of this section is composed of sewer and water treatment, electrical generation and transmission and port operation. Employees in this class for a limited time may engage in a strike pursuant to subsection C.9 of this section. The limit is determined by the interests of the health, safety and welfare of the public. The board may apply to the superior court for an order enjoining the strike. A strike may not be enjoined unless it can be shown that it has begun to threaten the health, safety or welfare of the public. A court in deciding whether or not to enjoin the strike shall consider the total equities in the particular class. For purposes of this section, the term "total equities" includes not only the impact of the strike on the public but also the extent to which employee organizations and public employers have met their obligations under this chapter. All other employees fall within the category described in subsection A.3 of this section. If there are extraordinary circumstances under which the health, safety or welfare of the public is threatened, the board may also apply to the superior court for an order enjoining a strike by this class.

C.

Submission of issues to arbitration.

1.

Prior to expiration of contract. For bargaining units or portions of bargaining units within the category described in subsection A.1 of this section, if the parties have not reached agreement seven days prior to expiration of the contract, the issue in dispute shall be submitted to arbitration before the party selected as factfinder in accordance with section 3.70.100.B.

2.

Completion of mediation and factfinding. For bargaining units or portions of bargaining units within the categories described in subsection A.2 or A.3 of this section who have completed mediation and factfinding under section 3.70.100, the issues in dispute shall immediately be submitted to arbitration.

3.

Agreement prior to arbitrator's award. The parties may continue collective bargaining and reach an agreement at any time prior to the issuance of the arbitrator's award.

4.

Time limit for arbitration decision. Hearings shall be concluded and the arbitrator shall forward his decision to both parties not later than 60 days after the expiration date of the collective bargaining agreement.

5.

Selection of factfinder/arbitrator. The factfinder/arbitrator shall be selected in accordance with section 3.70.100.B by each party exercising its preemptory challenge in turn until only one factfinder/arbitrator remains.

6.

Arbitration procedure. The arbitrator shall conduct the arbitration according to the rules of Voluntary Rules of Labor Arbitration published by the American Arbitration Association, as may be modified by agreement between the parties at the first day of hearing.

7.

Scope of arbitrator's authority. The arbitrator shall be limited in his authority to selection on a subject-by-subject basis from each of the parties' last best offer. On each subject, the arbitrator shall select one party's proposal in its entirety. The arbitrator shall not have the authority to select or prepare his own offer nor select or combine portions of either parties' last best offers on a given subject. In exercising his or her discretion to select between competing proposals by subject, the arbitrator shall base his or her decisions solely on the facts determined in accordance with sections 3.70.100.B. and applicable law.

8.

Subject definition. For bargaining units or portions of bargaining units within the category described in subsection A.1. of this section, the following additional provisions regarding selection of subjects applies as follows:

a.

Unless otherwise agreed by the parties to the collective bargaining process, the following shall constitute separate subjects for purpose of interest arbitration:

(1)

Scope of the bargaining unit and the definition of bargaining unit work;

(2)

The amount and effective date of across-the-board wage changes which become effective during the contract period either expressed as a lump sum, fixed percentage, cost of living adjustment or an adjustable percentage change, including any retroactive pay;

(3)

The amount and effective date of wage changes not applicable across-the-board;

(4)

Hours of work, work day, work week and shift schedules;

(5)

Overtime;

(6)

Medical and dental insurance coverage;

(7)

Disability, life and other insurance coverages;

(8)

Holidays, including any premium pay for holidays worked;

(9)

Promotions, transfers and demotions;

(10)

Leave, including annual, sick and other paid and unpaid leave;

(11)

Grievance and arbitration procedures;

(12)

Premium, specialty, shift differential and incentive pay;

(13)

Layoff and recall procedures;

(14)

Union recognition, security, dues and other union business;

(15)

Seniority;

(16)

Clothing, tools, and equipment;

(17)

Safety.

b.

All subjects not listed in subsection C.8.a. of this section shall be grouped on a subject-by-subject basis as mutually agreed by the parties.

c.

Any dispute between the parties regarding the inclusion or exclusion of any given issue or issues in any subject category provided for in subsections C.8.a. and C.8.b. of this section shall first be referred to and decided by the arbitrator no later than 30 days in advance of the first fact finding hearing before the arbitrator under section 3.70.100.B. and shall be decided by the arbitrator within seven days. In making his/her decision, the arbitrator shall avoid minute dissection of issues that would thwart or prolong arbitral resolution.

d.

Any party may appeal an adverse arbitrator's decision under subsection C.8.c. of this section to the employees relations board within five days of the arbitrator's decision. The employee relations board shall render a decision on such an appeal at least seven days before the fact finding hearing.

9.

Payment of costs of arbitration. Cost of the arbitrator shall be borne equally by both parties.

10.

Decision by arbitrator.

a.

The decision of the arbitrator for bargaining units or portions of bargaining units within the category described in subsection A.1 of this section shall be reduced to writing and shall be final and binding upon the parties. The collective bargaining agreement, in compliance with the arbitrator's decision, shall be prepared and executed by the parties. Collective bargaining agreements awarded through binding interest arbitration may not exceed two years in duration from the date of the arbitrator's award. Decisions of the arbitrator may be appealed to the superior court for the state only for abuse of discretion, fraud or misconduct on the part of the arbitrator. On appeal to the Superior Court, legal determinations of the employee relations board shall be reviewed de novo by the superior court.

b.

The decision of the arbitrator for bargaining units or portions of bargaining units within the categories described in subsection A.2 or A.3 of this section shall be final and binding upon the parties after approval by eight votes of the assembly. The internal auditor or its contractor shall review and express an opinion on the financial analysis prepared by the affected parties of the projected costs and savings from the contract to be replaced resulting from the arbitrator's recommendation and the municipality's last best offer. If the arbitrator's decision is not approved by the assembly within 21 days after delivery to the municipal clerk, or seven days following receipt of the municipality's financial analysis, whichever is later, the parties shall be considered at impasse. The municipality may then implement its last best offer and the affected bargaining unit may exercise its right to strike.

11.

Appeal. The parties to arbitration may appeal to the employee relations board an arbitrator's decision if the arbitrator has exceeded his jurisdiction and/or authority under the applicable labor agreement or the provisions of chapter 3.70 or the arbitrator's failure to render a decision. Said appeal must be filed within 14 days of the arbitrator's decision or failure to render a decision. If the employee relations board does not render a decision within 30 days after receipt of an appeal then the arbitrator's decision shall remain undisturbed. The employee relations board's decision on such an appeal shall be limited to remand of the matter back to the arbitrator for remedy consistent with the employee relations board's previous opinions.

(AO No. 69-75; AO No. 81-70; AO No. 88-131(S); AO No. 88-148; AO No. 89-46(S-1); AO No. 90-159; AO No. 91-29; AO No. 91-43(S-2); AO No. 91-173(S); AO No. 97-143(S-1), § 1, 12-9-97; AO No. 2015-23(S) , § 14, 3-24-15)