Berry Wilkinson Law Group

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1 THE MEET AND CONFER OBLIGATIONS OF LOCAL PUBLIC AGENCIES By: Alison Berry Wilkinson The statutory scheme that covers labor relations between the police associations of local agencies and their employers is known as the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq. That is the source and framework for all collective bargaining rights for local public agencies, and imposes obligations on both the City and Police Department when modifications to working conditions are proposed. Foremost among the rights conferred by the MMBA is the power to compel the agency to meet-and-confer in good faith over proposed changes in wages, hours, and other terms and conditions of employment. This requirement, which is found at Government Code section 3505, does not compel either party to agree to a particular proposal or to make concessions. Rather, it mandates that a dialogue occur in which both sides make a serious effort to resolve differences and come to an agreement. The Duty to Meet and Confer in Good Faith The duty to meet and confer in good faith creates a mutual obligation to meet and confer on request by either party and to endeavor to reach agreement on matters within the scope of representation before any changes are implemented. Government Code section 3505 states: The governing body of a public agency or other representatives as may be properly designated shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations and shall consider fully such presentations as are made on behalf of its members prior to arriving at a determination of policy or course of action. Thus, both labor and management are required to maintain the status quo on mandatory subjects of bargaining until the parties reach agreement or impasse. San Joaquin County Employees Ass., Inc. v. City of Stockton (1984) 161 Cal. App. 3d 813, A critical component of this duty is the requirement that the City provide notice and an opportunity to meet and confer about any proposed changes before implementation. I will discuss both concepts separately below.

2 Page 2 of 5 1. Written Notice of the Proposed Change is Required Notice of a proposed change must be given in writing to an official of the employee organization who has the authority on behalf of the organization to enter into agreements. Government Code section (a) states: Except in cases of emergency the governing board of a public agency shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule resolution, or regulation directly related to matters within the scope of representation proposed to be adopted... and shall give the recognized employee organization the opportunity to meet with the governing board Thus, in the City of Hayward, that means that the prior to making a change in working conditions, the Police Department must given written notice to you, the POA President, with respect to what it proposes prior to making a firm decision to make a change or taking action to implement the change. This written notice must be given sufficiently in advance of the proposed action to allow the exclusive representative a reasonable amount of time to decide whether to make a demand to negotiate. 2. The Association s Right to Bargain Over Proposed Changes When written notice is received that wages, hours or working conditions are proposed to be changed, the Association s right to bargain about those proposed changes varies depending upon the nature of the proposal. For example, if the Department proposes to change a working condition that is already covered in the Memorandum of Understanding, than the change can only be implemented if there is mutual agreement to modify the collective bargaining agreement. The reason: the collective bargaining agreement is binding for its entire term on both parties. Glendale City Employees Association, Inc. v. City of Glendale, 15 Cal. 3d 328 (1975). In Glendale, the court noted: The procedure established by the act would be meaningless if the end-product, a labor-management agreement ratified by the governing board of the agency were a document that was itself meaningless...any concession by a party from a previously held position would be disastrous to that party if the mutual agreement thereby achieved could be repudiated by the opposing party. Successful bargaining rests upon the sanctity and legal viability of the given word. 15 Cal.3d at 336. Thus, absent mutual agreement, the City and the Police Department have no ability to implement changes to the MOU during its applicable term.

3 Page 3 of 5 When notice is provided about a change within the scope of representation that is not covered by the MOU, then the City must provide a reasonable opportunity for the Association to meet and confer prior to the proposed change being adopted or implemented. The following examples of subjects that have been held to be included within the scope of representation should aide you in identifying when a proposed change requires notice and the opportunity to meet and confer: Elimination of part-time bargaining unit positions and reassignment of duties outside the bargaining unit (Building Material and Construction Teamsters Union Local 216 v. Farrell). Implementation of voluntary overtime program excluding peace officers and firefighters (AFSCME v. City and County of Santa Clara, 160 Cal.App. 3d 1006 (1984)). Denial of firefighters ability to wash their personal vehicles on duty (Vernon Firefighters v. City of Vernon, 107 Cal.App. 3d 802 (1980)). City Council resolution mandating non-negotiability of work schedules of public employees (Huntington Beach POA v. City of Huntington Beach, 58 Cal.App. 3d 492 (1976)). Prohibiting county employees from driving motorcycles on county business (Solano County Employees Association v. Solano County, 136 Cal.App. 3d 256 (1982)). Reassignment of overtime work from regular temporary employees. (Dublin Professional Firefighters Local 1885 v. Valley Community Services District, 45 Cal.App. 3d 116, 119 (1975)). Employee parking fees. (Los Angeles PPL v. City of Los Angeles, 166 Cal.App. 3d 55 (1985)). Work Schedules. (Huntington Beach POA v. City of Huntington Beach 147 Cal.App. 3d 492 (1976)). Drug testing. (Holliday v. City of Modesto,229 Cal.App.3d 528 (1991)) Modification in disciplinary procedures. (Cerini v. City of Cloverdale, 191 Cal.App. 3d 1471, 1481 (1987)). An employer is not obligated to meet and confer in advance of making fundamental policy decisions, but is obligated to meet-and-confer on the effect of such decisions prior to implementation. Indeed, the term scope of representation is defined by Government Code section 3504 as including all matters relating to employment conditions including, but not limited to, wages, hors and other terms and conditions of employment except consideration

4 Page 4 of 5 of the merits, necessity, or organization of any service or activity provided by law or executive order. This merits, necessity, or organization of any service exception to the obligation to meet and confer has been interpreted to include: The institution of a civilian review process for investigating citizen complaints (Berkeley Police Association v. City of Berkeley, 76 CalApp 3d 931, 937 (1977)). Use of deadly force by police officers (San Jose POA v. City of San Jose, 78 CalApp 3d 935, (1978)). Specific staffing assignments regarding implementation of consent decree concerning employment discrimination. (San Francisco Firefighters Local 798 v. Board of Supervisors, 3 CalApp 4th 1482, 1494 (1992)). Reductions in force and layoffs 3. The Obligation to Bargain in Good Faith Once the right to bargain has attached and notice of a proposed change has been provided, then the parties are obligated to meet and confer in good faith". Under Government Code section 3505, this means that the parties shall have the mutual obligation personally to: Meet and confer promptly upon request by either party Continue for a reasonable period of time Free exchange of information, opinions, and proposals, and endeavor to reach agreement on matters within the scope of representation As defined in the San Francisco Fire Fighters Local 798 v. Board of Supervisors (1992) 3 Cal.App.4th 1482, 1490, to "meet and confer in good faith" means to exchange information, opinions and proposals, and to endeavor to reach an agreement. The process should also include adequate time for the resolution of impasses where specific procedures for such resolution are contained in local rule, regulation, or ordinance, or when such procedures are utilized by mutual consent. The duty to meet and confer in good faith terminates when the parties reach agreement, or when a bona fide impasse is declared. In the event that the parties do not reach agreement, there are two alternative routes the discussions can take: (1) there may be local rules that require mediation, arbitration or some other means to resolve the dispute, or (2) the parties may reach impasse. Impasse may still result after mediation or some other dispute resolution procedure. In the event of impasse, the City is free to implement terms and conditions of employment reasonably comprehended from its last, best and final offer on the subject. Department of Personnel Administration v. Superior Court, 5 Cal.App.4th 155, (1992) (and cases cited therein).

5 Page 5 of 5 4. Waiver of the Right to Bargain Once notice of a proposed change is given by the City, then the burden shifts to the Association to decide whether it wants to meet-and-confer on the proposed change. If the Association fails to respond to a proposed change and fails to request a meet-and-confer, then it waives the right to bargain and cannot later challenge the adoption of changed working conditions. The Berry Wilkinson Law Group publishes this informational bulletin as a service to its clients. It is not intended to be used as a substitute for specific legal advice or opinions, and the transmission of this information is not intended to create an attorney-client relationship between sender and receiver. Subscribers and online readers should not act upon this information without seeking professional counsel.