(a)
Agreement to Resolve Negotiation Impasse. As the first step in the performance of their duty to bargain, management and the exclusive bargaining representative shall endeavor to agree upon impasse procedures. Such procedures shall define the conditions under which an impasse exists. Any such agreement with respect to the resolution of impasse issues shall not conflict with the provisions of this section.
(b)
Subjects Not Within Procedures for Resolving Bargaining Impasse. Non-mandatory subjects of bargaining shall not be subject to the impasse procedures of this section. Unless mutually agreed to by the parties, the impasse procedures of this section shall not be invoked during the pendency of any charge regarding the required scope of good faith bargaining under section 27.03.01.
(c)
Mediation. Following the commencement of negotiations if management and the exclusive bargaining representative reach an impasse, and they do not otherwise agree to proceed directly to arbitration, they shall jointly retain a mediator to assist them in resolving the impasse issues. In the absence of an agreement on the mediator, either party may request the Election Official to appoint a mediator, and the Election Official’s appointment of such mediator shall be binding on the parties. It shall be the function of the mediator to bring the parties together to effectuate a settlement of the dispute, but the mediator may not compel the parties to agree. Any mediator so appointed by the Election Official shall be experienced in labor mediation, and shall be drawn from lists of such mediators maintained by the American Arbitration Association. Any information disclosed by either party to the mediator in the performance of his/her duties is privileged and shall be maintained in confidence by the mediator.
(d)
Arbitration. If the parties fail to resolve their disputes within 30 days after the completion of mediation, they may mutually agree in writing to proceed to binding arbitration. Absent agreement, either party may request that the impasse issues proceed to resolution by binding arbitration, and such request shall be served upon the other party, in writing, return receipt requested.
(i)
Within 10 days of the parties’ written agreement or the receipt by one party of a request for binding arbitration, the parties shall jointly select an arbitrator, who shall not be the same individual who served as the mediator. If the parties fail to agree on an arbitrator within the 10 day period, the selection shall be made using the procedures under the voluntary labor arbitration rules of the American Arbitration Association. Any arbitrator shall be drawn from lists of such arbitrators maintained by the American Arbitration Association, and shall be a member of the National Academy of Arbitrators.
(ii)
The submission of the impasse items to the arbitrator shall be limited to those issues upon which the parties have not reached agreement. Within 10 days of the appointment of the arbitrator, management and the exclusive bargaining representative shall each submit to the arbitrator their respective recommendations for settling the dispute on each unresolved issue, and the draft collective bargaining agreement to the extent that agreement has been reached.
(iii)
The arbitrator shall conduct a hearing at a location agreed to by the parties or, failing agreement, at a location chosen by the arbitrator that is convenient to the parties. The arbitrator may administer oaths, may issue subpoenas (under the same terms that subpoenas may issue from the Community Court), and may petition the Community Court to enforce any subpoena compelling the attendance of witnesses and the production of records, subject to such protection order any party may obtain from the Community Court to protect against the disclosure of confidential or privileged information. The arbitrator shall issue a decision on each issue remaining at impasse not later than 30 days from the day of appointment.
(iv)
In issuing said findings and recommendations, the arbitrator shall redact any factual material deemed confidential pursuant to an agreement of the parties or pursuant to a protective order issued on behalf of a party.
(v)
The parties may continue to negotiate all offers until an agreement is reached or a decision is rendered by the arbitrator.
(vi)
The Arbitrator shall consider, in addition to any other relevant factors, the following factors insofar as they are readily discernible and not subject to privilege from disclosure:
(A)
Any past collective bargaining contracts between the parties including the bargaining that led up to such contracts.
(B)
Comparison of wages, hours and conditions of employment of the involved public employees with those of other employees doing comparable work in public sector facilities of comparable size geographic location, and economic volume , giving consideration to factors peculiar to the area and the classifications involved.
(vii)
The Arbitrator shall select the most reasonable offer of the parties’ respective final offers on the remaining impasse items and provide a written summary of the selected provisions and agreed-upon provisions to each party, return receipt requested.
(viii)
Said selections of the Arbitrator shall be binding upon the parties, provided, however, that provisions related to the public employer’s obligation to pay wages, salaries, bonuses, insurance premiums, pension or retirement contributions shall not be binding upon the parties.
(e)
Privileged Information. In submitting to the procedures for impasse resolution under this section, no public employer shall be required to disclose information that it deems confidential without a protective order issued by the Community Court or a confidentiality agreement entered into by the parties.
(f)
Costs of Impasse Resolution Proceedings. Unless otherwise agreed to in writing, the public employer and the exclusive bargaining representative shall share equally all fees and costs of mediation and arbitration provided for by this section.
(g)
Status of Terms and Conditions of Employment Pending Impasse Resolution. At all times when an impasse remains unresolved, the status quo regarding wages and working conditions shall remain in effect even if a prior collective bargaining agreement governing the bargaining unit has expired. In such event, the status quo or the terms of any prior collective bargaining agreement shall continue in force and effect, until a new agreement shall be executed; provided, however, that for the purposes of this paragraph, the status quo, or continuing terms, shall not include increases to wages, increases in employer contributions to insurance, or increases in employer contributions to pensions.
(h)
Community Court Review.
(i)
A party who claims that a binding decision of the Arbitrator is in violation of, or conflicts with, the laws of the Tribe or is procured by corruption, fraud or other undue or illegal means, may, within 10 days of receipt of the panel’s decision, bring a petition for review to the Community Court.
(ii)
In any such review, the Community Court shall be to limited to review for errors of law and the issuance of an order affirming the panel’s decision or correcting it for legal error as is necessary to render it in compliance with the laws of the Tribe.
(iii)
Should the Court find that a party’s petition for review is frivolous or imposed solely for delay, it may impose sanctions upon such party, which may include paying for the attorney fees and costs incurred by the other party as a result of the petition.
(i)
Limited Review by Tribal Council of Economic Terms Recommended by the Arbitrator Upon Rejection by Public Employer. If a public employer rejects an arbitrator’s decision issued under section 27.04.01(d) regarding the public employer’s obligation to pay wages, salaries, bonuses, insurance, pension or retirement contributions, it shall so inform (i) the exclusive bargaining representative and (ii) the Tribal Council in writing, within five (5) days of receipt of the arbitrator’s decision. Thereafter, the Tribal Council shall schedule a closed session meeting of the Tribal Council at which the public employer shall appear and show cause for why it has rejected the arbitrator’s decision regarding its obligation to pay wages, salaries, bonuses, insurance, pension or retirement contributions.
In advance of the Tribal Council meeting, the public employer shall submit to the Tribal Council the decision of the arbitrator, together with a written statement setting forth the reasons for its rejection of the decision, and it shall, at the same time, mail a copy of said written statement to the exclusive bargaining representative. In advance of the Tribal Council meeting, the exclusive bargaining representative shall be given the opportunity to submit a written statement setting forth the reasons why the Arbitrator’s decision is appropriate and, upon submission of such a written statement to the Tribal Council, the exclusive bargaining representative shall mail a copy to the public employer.
At the scheduled meeting of the Tribal Council, both the public employer and the exclusive bargaining representative shall have the opportunity to be heard.
The Tribal Council shall decide only whether (a) the public employer’s final offer regarding any impasse over wages, salaries, bonuses, insurance, pension or retirement shall become part of the parties’ collective bargaining agreement or (b) the arbitrator’s decision on any such impasse issue shall become part of the parties’ collective bargaining agreement.
(Res. 11-A-015, 3/8/2011)