Section 20407 - The Mediation and Conciliation Process(a) Mediation shall proceed in accordance with Labor Code section 1164(b), (c), and (d). The 30-day periods referred to in Labor Code section 1164(c) shall commence on the date of the first scheduled mediation session, shall proceed for consecutive calendar days, and shall not include any pre-mediation conference. The 30-day timelines may be waived by mutual agreement of the parties and with the approval of the mediator. Premediation conferences may be scheduled at the discretion of the mediator. (1) No later than seven days after receipt of a Board order directing the parties to mandatory mediation and conciliation, and prior to their first discovery requests pursuant to section 20406, each party shall identify for the mediator those issues that are in dispute and those that are not in dispute, identify the standards which they propose to resolve the disputed issues, and provide agreed upon contract language for those issues not in dispute. This information shall be served on the other party immediately and on the mediator upon the mediator's selection. During the mediation, the parties shall provide the mediator with a detailed rationale for each of its contract proposals on issues that are in dispute, and shall provide on the record supporting evidence to justify those proposals. The failure of any party to participate or cooperate in the mediation and conciliation process shall not prevent the mediator from filing a report with the Board that resolves all issues and establishes the final terms of a collective bargaining agreement, based on the presentation of the other party.(2) The mediator shall preside at the mediation, shall rule on the admission and exclusion of evidence and on questions of procedure and shall exercise all powers relating to the conduct of the mediation. All evidence upon which the mediator relies in writing the report required by Labor Code section 1164(d) shall be preserved in an official record through the use of a court reporting service or, with the consent of both parties and the approval of the mediator, by a stipulated record. The mediator shall cite evidence in the record that supports the mediator's findings and conclusions. The mediator shall retain the discretion to go off the record at any time to clarify or resolve issues informally. All communications taking place off the record shall be subject to the limitations on admissibility and disclosure provided by Evidence Code section 1119(a) and (c), and shall not be the basis for any findings and conclusions in the mediator's report.(3) The parties shall have the right to be represented by counsel or other representative.(4) The parties to the mediation are entitled to be heard, to present evidence and to cross-examine witnesses appearing at the hearing, but rules of evidence and rules of judicial procedure need not be observed. The testimony of witnesses shall be given under oath.(b) In determining the issues in dispute, the mediator may consider those factors commonly applied in similar proceedings, such as, but not limited to:(1) The stipulations of the parties.(2) The financial condition of the employer and its ability to meet the costs of the contract in those instances where the employer makes a plea of inability to meet the union's wage and benefit demands.(3) Comparison of corresponding wages, benefits, and terms and conditions of employment in collective bargaining agreements covering similar agricultural operations with similar labor requirements.(4) Comparison of corresponding wages, benefits, and terms and conditions of employment in comparable firms or industries in geographical areas with similar economic conditions, considering the size of the employer, the skills, experience, and training required of the employees, as well as the difficulty and nature of the work.(5) The average consumer prices for goods and services, commonly known as the Consumer Price Index, and the overall cost of living in the area where the work is performed.(c) The mediator shall issue the mediator's report within 21 days of the last mediation session. Upon completion of the mediator's report, the report shall be served on the parties and filed with the Board in accordance with sections 20164 and 20169. Upon the filing of the report, the mediator also shall transfer the official record of the proceeding to the Board.(d) The issuance of any document signed by the mediator which reflects the determination of the issues in dispute and fixes the terms of a collective bargaining agreement shall be deemed a "report" pursuant to Labor Code sections 1164 through 1164.13, and these regulations.(e) Where the parties agree to a collective bargaining agreement without the issuance of a mediator's report, as defined in subdivision (d), the parties shall notify the Board and submit a copy of the signed agreement pursuant to section 20450.Cal. Code Regs. Tit. 8, § 20407
1. New section filed 5-7-2003; operative 5-7-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 19).
2. New subsections (d) and (e) filed 4-18-2007; operative 5-18-2007 (Register 2007, No. 16).
3. Amendment of subsection (c) filed 5-23-2017; operative 5-23-2017 pursuant to Government Code section 11343.4(b)(3) (Register 2017, No. 21).
4. Amendment of subsections (a)-(a)(2), (c) and (e) filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35). Note: Authority cited: Section 1144, Labor Code. Reference: Section 1164, Labor Code.
1. New section filed 5-7-2003; operative 5-7-2003 pursuant to Government Code section 11343.4 (Register 2003, No. 19).
2. New subsections (d) and (e) filed 4-18-2007; operative 5-18-2007 (Register 2007, No. 16).
3. Amendment of subsection (c) filed 5-23-2017; operative 5/23/2017 pursuant to Government Code section 11343.4(b)(3) (Register 2017, No. 21).
4. Amendment of subsections (a)-(a)(2), (c) and (e) filed 8-29-2023; operative 10/1/2023 (Register 2023, No. 35).