1. LABOR RELATIONS AND THE MEYERS-MILIAS-BROWN ACT: “MEET AND CONFER”, UNFAIR PRACTICES AND the Public Employment Relations Board
Presented by
Christopher W. Miller, SCOPO General Counsel
Mastagni, Holstedt, Amick, Miller & Johnsen

2. Introduction Overview of the Meyers-Milias-Brown Act
“Meet and Confer” Process
Unfair Labor Practices
Public Employment Relations Board
Remedies

3. Meyers-Milias-Brown Act (MMBA)

4. A Look at the MMBA Adopted in 1968 as Gov. Code §§ 3500 et seq.
Regulates public employer-employee communications over wages, hours and other terms and conditions of employment
Established recognition rights for public employee unions
Allows for local rules to govern employment relationship so long as conform to MMBA

5. A Look at the MMBA
Statute is one of four major public employment relations statutes in California
Purpose: Promote communication, provide dispute resolution process, improve relationship between management and union

6. A Look at the MMBA
Establishes right of public employees to form, join and participate in the activities of employee organizations
Gives employee organizations the right to represent their members in the employment relationship
Scope of Representation: All matters relating to employment conditions and the employer-employee relationship

7. Scope of Representation
All matters relating to employment conditions and the employer-employee relationship
Wages, hours, “terms and conditions”
Wages = salary and benefits
Hours = work hours, overtime, leave
“Terms and conditions” = everything else

8. Protected Activities
Public employees have the right to join and form unions
Unfair to threaten reprisals, discriminate, or interfere with the union or “protected activities”
Courts have ruled that discriminatory grants of benefits and retaliatory firings are ULPs

9. A Look at the MMBA
Requires public agencies to “meet and confer in good faith” regarding wages, hours, and other terms and conditions of employment
Provides for agency and REO to prepare an MOU
Provides impasse resolution procedures
Provides minimum rules on forming REOs

10. Key Decisions
County Sanitation v. Los Angeles County Employee Assn. (1985) 38 Cal.3d 564: ruled strikes are not illegal unless they pose imminent threat to public health or safety
Firefighters Union vs. City of Vallejo held state courts may refer to National Labor Relations Act cases when interpreting MMBA

11. Strikes and Other Concerted Activities
Strikes by public safety are prohibited because they threaten public health and safety
Strike before impasse procedures, threats to strike, or using strikes or work slowdowns as a pressure tactic may be deemed an unfair labor practice

12. “MEET AND CONFER”

13. “Meet and Confer” “Meet and confer in good faith” means:
mutual obligation to “meet and confer” promptly upon request with representative of other party over matters within scope of representation
exchange information, opinions and proposals
must allow time to resolve impasses and reach agreement within the budget cycle

14. “Meet and Confer” Meet and confer is different from grievance
Employer is required to provide notice and opportunity to meet
REO has right to demand meet and confer, request documents, make proposals, render opinions and ideas
Not “meet and agree”
Impasse procedures apply

15. “Good Faith”
“Good faith” under MMBA “requires a genuine desire to reach agreement” (Placentia Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9) (Gov. Code § 3505)
“The parties must make a serious attempt to resolve differences and reach a common ground.” (Placentia at p. 25.)

16. “Meet and Confer”
must “meet and confer” over any change that has a “significant and adverse effect” on wages, hours or working conditions
no requirement to meet and confer over policy decisions that do not affect matters within scope of representation

17. Three-Part Test
Courts employ a three-part test to determine whether “meet and confer” is required:
(1) does the management action have a significant and adverse effect on wages, hours, or terms and conditions of employment?
if not, no meet and confer is required
if yes, proceed to Step (2)

18. Three-Part Test
Courts employ a three-part test to determine whether “meet and confer” is required:
(2) is the management action a management right or a fundamental policy decision?
if not, “meet and confer” is required
“Management rights” are policy decisions that are not within the scope of bargaining because they are intrinsic to the management of the agency; e.g., equipment, duty assignments, specialized units

19. Three-Part Test
Courts employ a three-part test to determine whether “meet and confer” is required:
(3) if the management action has a significant and adverse effect on wages, hours, or terms and conditions BUT is a management right,
Courts employ a balancing test to determine whether “meet and confer” is required
Employer’s need to make policy decisions v.
Benefit to employment relationship of meet and confer

20. “Meet and Confer” Required
“Contracting out” bargaining unit work
Changes to work schedule and shifts
Change in procedures for filling vacancies
Compensation of probationary employees
Representation rights in officer-involved shootings

21. “Meet and Confer” NOT Required
Implementing racial profiling policy
Change in parking fees
Use of force policies
Decision to implement layoffs; however, agency must “meet and confer” over effects of layoffs and other economic decisions

22. “Meet and Confer” Process
Notice by employer of change in matter within scope of representation
REO requests to “meet and confer”
REO should request information in support of the employer proposal
Parties meet, attempt to agree
Employer may impose final policy

23. UNFAIR PRACTICES

24. Unfair Practices
“Unfair practice” is any violation of MMBA or PERB regulations which interferes with the rights of either party
“Unfair practice” includes interference with protected activity as well as failure to bargain in good faith

25. Duty to Bargain
Duty to bargain requires agency to refrain from making unilateral changes in wages and working conditions until employer and employee association have bargained to impasse, and this duty continues in effect after expiration of any employer-employee agreement. (City of El Cajon v. El Cajon Police Officers’ Association (1996) 49 Cal.App.4th 64)

26. Unfair Practices Failure to Provide Information
Direct Bargaining with Employee
Harassment and Threats
Interrogation of Employees about Union Activities
Discrimination

27. Failure to Provide Information
Employer has duty to furnish all necessary and relevant information to a union that requests said information
Necessary and relevant information includes documents pertaining to contract negotiations
Union can make information requests

28. Bargaining Directly with Employee
Employer is prohibited from bargaining directly with employees over wages, hours and other terms and conditions of employment
Must discuss matters with union representative only
Since employer must negotiate with authorized representative, employees do not have right to file unfair labor practice charge of their own (City of Folsom (2003) PERB Dec No M)

29. Bypassing the Exclusive Representative
Cornerstone of EERA, HEERA, and Dills, is that the union is the exclusive rep of the employees.
Once the exclusive bargaining rep has been established, the employer must deal only with that person regarding issues within the scope of bargaining.
Example: company contacts individual to determine working conditions.
Calif. State Employees v. California State Univ. – Univ. newsletter re pay increase during negotiations, bypassed union.

30. Bad Faith Bargaining Bad Faith Bargaining/Failure to Meet and Confer
Unilateral changes to terms and conditions of employment when MOU in effect
Unilateral changes where contract expired and still bargaining
Bad Faith Bargaining/Surface Bargaining
Illusion of Bargaining in Good Faith

31. Bad Faith Bargaining Bad Faith Bargaining/Surface Bargaining:
Unlawful bargaining table conduct designed to create illusion of good faith bargaining but without the requisite intent to agree
Evidenced by:
Refusal to act on proposals or introduce counterproposals
Making proposals contingent on withdrawal of grievances or unfair practice charges
Reopening previously settled issues
Dilatory conduct in scheduling and attending negotiations
*Compare to Hard Bargaining

32. Harassment and Threats
Employer cannot interfere with, intimidate, restrain, coerce or discriminate against employee for exercise of union rights
Union representatives cannot be punished or denied promotion based on lawful activity
Employer can regulate union access to employee work areas

33. Interrogation
Employer cannot interrogate union members about union activities
Employer cannot ask who posted messages on the Union bulletin board
Cannot ask members about the status of negotiations
Cannot ask members about what the union is planning to do with respect to union activities
Cannot ask if employee is for or against union

34. Discrimination
Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416: Employer may not discriminate by denying pay benefits to employees represented by union that used impasse procedures.
San LeandroPolice Officers Assn. v. City of San Leandro ((1976) 55 Cal. App.3d 553: Employer may not grant benefit only to employees not represented by union.

35. Union ULPs Breach of duty of fair representation
Work stoppages or slowdowns
Bad faith bargaining
Violation of fair share rules
Employers rarely file unfair practice charges

36. Duty of Fair Representation
Primary union ULP issue
REO must fairly represent all employees, even non-union employees (fair share)
Union conduct cannot be arbitrary, discriminatory, or in bad faith

37. PUBLIC EMPLOYMENT RELATIONS BOARD (PERB)

38. PERB
Public Employment Relations Board administers the MMBA and similar statutes governing the public sector employment relationship
PERB did not administer MMBA until 2001
PERB jurisdiction is expanding
MMBA has been interpreted primarily by courts

39. PERB Jurisdiction
Limited to resolving claims of unfair practices which violate the MMBA
No jurisdiction over peace officers defined in Section of the Penal Code
PERB does not enforce collective bargaining agreements per se
PERB will not issue a complaint unless the violation constitutes an unfair labor practice, not solely an MOU violation

40. Statute of Limitations
An unfair practice charge must be filed no later than SIX MONTHS from the date the Charging Party knows, or should have known, of the conduct underlying the charge
Late-filed charges are subject to rejection or dismissal

41. The PERB Process

42. The PERB Process Filing a Charge (What is Needed):
Name of affiliate Association
Dates when alleged violation occurred
Detailed description of the violation
Names of the Union members involved in the violation
Names and titles of the supervisors/managers involved in the violation
Names of all witnesses

43. The PERB Process Unfair Practice Charges
PERB Regulations
MMBA Provisions
Charges can be Filed Online, In Person or by Mail
PERB Charge is Filed by Counsel

44. The PERB Process PERB does preliminary investigation
Employer may respond to the allegations
Board Agent will determine if charge meets minimum legal standard for violation
If charge fails, PERB issues a “Warning Letter” and allows time to correct
If deficiencies are not corrected the charge will be dismissed
Union may appeal dismissal to the full Public Employment Relations Board

45. The PERB Process Abeyance:
Where the MOU prohibits the conduct and the parties have binding arbitration as the final step of their grievance procedure, PERB can place the charge in abeyance
After arbitration PERB can dismiss the charge unless the Charging Party shows that the arbitration award is repugnant to the MMBA

46. The PERB Process
PERB issues a complaint if there is prima facie (“at first view”) evidence of a violation
Informal Settlement Conference
A PERB agent acts as a mediator and attempts to facilitate a resolution
If no resolution of charge, PERB sets a date for an administrative hearing

47. PERB Process Administrative Hearing
Charging Party has the burden of proving its case by a preponderance of the evidence
Parties may call witnesses and introduce documentary evidence
Witnesses testify under oath and may be examined and cross-examined
Parties may present oral closing arguments or submit post-hearing briefs

48. PERB Process
Following submission of all evidence and argument, the administrative law judge (ALJ) issues a proposed decision
Proposed Decision is Endorsed, Modified or Rejected by the Board
Remedies Must Promote the Purpose of the MMBA

49. Remedies Issue Notice Posting Return to Status Quo
Return to Bargaining Table
Provide Requested Information
Any other Remedy that would effectuate the purpose of the Act
PERB cannot force employer to accept Union’s contract proposals

50. Conclusion Legislation may remove mixed units from PERB’s jurisdiction
PERB charges are most useful when the employer respects the process
Injunctive Relief is a “Non-Starter”
PERB is a tool with a dull edge

51. QUESTIONS?