LABOR RELATIONS AND THE LABOR RELATIONS AND THE MEYERS-MILIAS-BROWN ACT: MEYERS-MILIAS-BROWN ACT: “MEET AND CONFER”, UNFAIR PRACTICES AND “MEET AND CONFER”, UNFAIR PRACTICES AND THE PUBLIC EMPLOYMENT RELATIONS BOARD THE PUBLIC EMPLOYMENT RELATIONS BOARD Presented by Presented by Christopher W. Miller, SCOPO General Christopher W. Miller, SCOPO General Counsel Counsel Mastagni, Holstedt, Amick, Miller & Johnsen Mastagni, Holstedt, Amick, Miller & Johnsen
Transcript
LABOR RELATIONS AND THELABOR RELATIONS AND THEMEYERS-MILIAS-BROWN ACT:MEYERS-MILIAS-BROWN ACT:
“MEET AND CONFER”, UNFAIR PRACTICES AND“MEET AND CONFER”, UNFAIR PRACTICES AND THE PUBLIC EMPLOYMENT RELATIONS BOARD THE PUBLIC EMPLOYMENT RELATIONS BOARD
Presented by Presented by Christopher W. Miller, SCOPO General CounselChristopher W. Miller, SCOPO General Counsel
Mastagni, Holstedt, Amick, Miller & JohnsenMastagni, Holstedt, Amick, Miller & Johnsen
IntroductionIntroduction
Overview of the Meyers-Milias-Brown ActOverview of the Meyers-Milias-Brown Act
““Meet and Confer” ProcessMeet and Confer” Process
Unfair Labor PracticesUnfair Labor Practices
Public Employment Relations BoardPublic Employment Relations Board
Adopted in 1968 as Gov. Code §§ 3500 et seq.Adopted in 1968 as Gov. Code §§ 3500 et seq.
Regulates public employer-employee Regulates public employer-employee communications over wages, hours and other communications over wages, hours and other terms and conditions of employmentterms and conditions of employment
Established recognition rights for public Established recognition rights for public employee unionsemployee unions
Allows for local rules to govern employment Allows for local rules to govern employment relationship so long as conform to MMBA relationship so long as conform to MMBA
A Look at the MMBAA Look at the MMBA
Statute is one of four Statute is one of four major public major public employment relations employment relations statutes in Californiastatutes in California
Purpose: Purpose: Promote Promote communication, communication, provide dispute provide dispute resolution process, resolution process, improve relationship improve relationship between management between management and unionand union
A Look at the MMBAA Look at the MMBA
Establishes right of public employees to form, join and Establishes right of public employees to form, join and participate in the activities of employee organizationsparticipate in the activities of employee organizations
Gives employee organizations the right to represent Gives employee organizations the right to represent their members in the employment relationshiptheir members in the employment relationship
Scope of RepresentationScope of Representation: All matters relating to : All matters relating to employment conditions and the employer-employee employment conditions and the employer-employee relationshiprelationship
Scope of RepresentationScope of Representation
All matters relating to employment conditions and the All matters relating to employment conditions and the employer-employee relationship employer-employee relationship
Wages, hours, “terms and conditions”Wages, hours, “terms and conditions”
Wages = salary and benefitsWages = salary and benefits
Hours = work hours, overtime, leaveHours = work hours, overtime, leave
““Terms and conditions” = everything elseTerms and conditions” = everything else
Protected ActivitiesProtected Activities
Public employees have the right to join and Public employees have the right to join and form unionsform unions
Unfair to threaten reprisals, discriminate, or Unfair to threaten reprisals, discriminate, or interfere with the union or “protected interfere with the union or “protected activities”activities”
Courts have ruled that discriminatory grants of Courts have ruled that discriminatory grants of benefits and retaliatory firings are ULPsbenefits and retaliatory firings are ULPs
A Look at the MMBAA Look at the MMBA
Requires public agencies to “meet and confer in Requires public agencies to “meet and confer in good faith” regarding wages, hours, and other good faith” regarding wages, hours, and other terms and conditions of employmentterms and conditions of employment
Provides for agency and REO to prepare an MOUProvides for agency and REO to prepare an MOU
Provides minimum rules on forming REOsProvides minimum rules on forming REOs
Key DecisionsKey Decisions
County Sanitation v. Los Angeles County County Sanitation v. Los Angeles County Employee Assn. Employee Assn. (1985) 38 Cal.3d 564:(1985) 38 Cal.3d 564: ruled ruled strikes are not illegal unless they pose strikes are not illegal unless they pose imminent threat to public health or safetyimminent threat to public health or safety
Firefighters Union vs. City of Vallejo Firefighters Union vs. City of Vallejo held held state courts may refer to National Labor state courts may refer to National Labor Relations Act cases when interpreting MMBARelations Act cases when interpreting MMBA
Strikes and Other Concerted ActivitiesStrikes and Other Concerted Activities
Strikes by public safety are Strikes by public safety are prohibited because they prohibited because they threaten public health and threaten public health and safetysafety
Strike before impasse Strike before impasse procedures, threats to strike, procedures, threats to strike, or using strikes or work or using strikes or work slowdowns as a pressure slowdowns as a pressure tactic may be deemed an tactic may be deemed an unfair labor practiceunfair labor practice
““MEET AND CONFER”MEET AND CONFER”
““Meet and Confer”Meet and Confer”
““Meet and confer in good faith” means:Meet and confer in good faith” means:
mutual mutual obligationobligation to “meet and confer” promptly to “meet and confer” promptly upon request with representative of other party upon request with representative of other party over matters within scope of representationover matters within scope of representation
exchange information, opinions and proposalsexchange information, opinions and proposals
must allow time to resolve impasses and reach must allow time to resolve impasses and reach agreement within the budget cycleagreement within the budget cycle
““Meet and Confer”Meet and Confer”
Meet and confer is different from grievanceMeet and confer is different from grievance
Employer is required to provide notice and Employer is required to provide notice and opportunity to meetopportunity to meet
REO has right to demand meet and confer, REO has right to demand meet and confer, request documents, make proposals, render request documents, make proposals, render opinions and ideasopinions and ideas
Not “meet and agree”Not “meet and agree”
Impasse procedures applyImpasse procedures apply
““Good Faith”Good Faith”
““Good faith” under MMBA “requires a Good faith” under MMBA “requires a genuine desire to reach agreement” (genuine desire to reach agreement” (Placentia Placentia Fire Fighters v. City of Placentia Fire Fighters v. City of Placentia (1976) 57 (1976) 57 Cal.App.3d 9) (Gov. Code § 3505)Cal.App.3d 9) (Gov. Code § 3505)
““The parties must make a serious attempt to The parties must make a serious attempt to resolve differences and reach a common resolve differences and reach a common ground.” (ground.” (PlacentiaPlacentia at p. 25.) at p. 25.)
““Meet and Confer”Meet and Confer”
must “meet and confer” must “meet and confer” over any change that over any change that has a “significant and has a “significant and adverse effect” on adverse effect” on wages, hours or wages, hours or working conditionsworking conditions
no requirement to meet no requirement to meet and confer over policy and confer over policy decisions that do not decisions that do not affect matters within affect matters within scope of representationscope of representation
Three-Part TestThree-Part Test
Courts employ a three-part test to determine Courts employ a three-part test to determine whether “meet and confer” is required:whether “meet and confer” is required:
(1) does the management action have a significant (1) does the management action have a significant and adverse effect on wages, hours, or terms and and adverse effect on wages, hours, or terms and conditions of employment?conditions of employment?
if not, no meet and confer is requiredif not, no meet and confer is required if yes, proceed to Step (2)if yes, proceed to Step (2)
Three-Part TestThree-Part Test
Courts employ a three-part test to determine Courts employ a three-part test to determine whether “meet and confer” is required:whether “meet and confer” is required:
(2) is the management action a management right (2) is the management action a management right or a fundamental policy decision?or a fundamental policy decision?
if not, “meet and confer” is requiredif not, “meet and confer” is required
““Management rights” are policy decisions that are Management rights” are policy decisions that are not within the scope of bargaining because they not within the scope of bargaining because they are intrinsic to the management of the agency; e.g., are intrinsic to the management of the agency; e.g., equipment, duty assignments, specialized unitsequipment, duty assignments, specialized units
Three-Part TestThree-Part Test
Courts employ a three-part test to determine Courts employ a three-part test to determine whether “meet and confer” is required:whether “meet and confer” is required:
(3) if the management action has a significant and (3) if the management action has a significant and adverse effect on wages, hours, or terms and adverse effect on wages, hours, or terms and conditions BUT is a management right,conditions BUT is a management right,
Courts employ a balancing test to determine Courts employ a balancing test to determine whether “meet and confer” is requiredwhether “meet and confer” is required
Employer’s need to make policy decisions v.Employer’s need to make policy decisions v. Benefit to employment relationship of meet and conferBenefit to employment relationship of meet and confer
““Meet and Confer” RequiredMeet and Confer” Required
““Contracting out” bargaining unit workContracting out” bargaining unit work
Changes to work schedule and shiftsChanges to work schedule and shifts
Change in procedures for filling vacanciesChange in procedures for filling vacancies
Compensation of probationary employeesCompensation of probationary employees
Representation rights in officer-involved Representation rights in officer-involved shootingsshootings
““Meet and Confer” NOT RequiredMeet and Confer” NOT Required
Decision to implement layoffs; however, Decision to implement layoffs; however, agency must “meet and confer” over agency must “meet and confer” over effectseffects of of layoffs and other economic decisionslayoffs and other economic decisions
““Meet and Confer” ProcessMeet and Confer” Process
Notice by employer of change in matter within Notice by employer of change in matter within scope of representationscope of representation
REO requests to “meet and confer”REO requests to “meet and confer”
REO should request information in support of REO should request information in support of the employer proposalthe employer proposal
Parties meet, attempt to agreeParties meet, attempt to agree
Employer may impose final policyEmployer may impose final policy
UNFAIR PRACTICES
Unfair PracticesUnfair Practices
““Unfair practice” is any violation of MMBA Unfair practice” is any violation of MMBA or PERB regulations which interferes with the or PERB regulations which interferes with the rights of either partyrights of either party
““Unfair practice” includes interference with Unfair practice” includes interference with protected activity as well as failure to bargain protected activity as well as failure to bargain in good faithin good faith
Duty to BargainDuty to Bargain
Duty to bargain requires agency to refrain Duty to bargain requires agency to refrain from making unilateral changes in wages and from making unilateral changes in wages and working conditions until employer and working conditions until employer and employee association have bargained to employee association have bargained to impasse, and this duty continues in effect after impasse, and this duty continues in effect after expiration of any employer-employee expiration of any employer-employee agreement. (agreement. (City of El Cajon v. El Cajon City of El Cajon v. El Cajon Police Officers’ Association Police Officers’ Association (1996) 49 (1996) 49 Cal.App.4Cal.App.4thth 64) 64)
Unfair PracticesUnfair Practices
Failure to Provide InformationFailure to Provide Information
Direct Bargaining with EmployeeDirect Bargaining with Employee
Harassment and ThreatsHarassment and Threats
Interrogation of Employees about Union Interrogation of Employees about Union ActivitiesActivities
DiscriminationDiscrimination
Failure to Provide InformationFailure to Provide Information
Employer has duty to furnish all necessary and Employer has duty to furnish all necessary and relevant information to a union that requests said relevant information to a union that requests said informationinformation
Necessary and relevant information includes Necessary and relevant information includes documents pertaining to contract negotiationsdocuments pertaining to contract negotiations
Union can make information requestsUnion can make information requests
Bargaining Directly with EmployeeBargaining Directly with Employee
Employer is prohibited from bargaining Employer is prohibited from bargaining directly with employees over wages, hours and directly with employees over wages, hours and other terms and conditions of employmentother terms and conditions of employment Must discuss matters with union representative onlyMust discuss matters with union representative only
Since employer must negotiate with authorized Since employer must negotiate with authorized representative, employees do not have right to representative, employees do not have right to file unfair labor practice charge of their own file unfair labor practice charge of their own ((City of FolsomCity of Folsom (2003) PERB Dec No. 1531- (2003) PERB Dec No. 1531-M)M)
Bypassing the Exclusive Bypassing the Exclusive RepresentativeRepresentative
Cornerstone of EERA, HEERA, and Dills, is Cornerstone of EERA, HEERA, and Dills, is that the union is the exclusive rep of the that the union is the exclusive rep of the employees.employees.
Once the exclusive bargaining rep has been Once the exclusive bargaining rep has been established, the employer must deal only with established, the employer must deal only with that person regarding issues within the scope that person regarding issues within the scope of bargaining.of bargaining.
Example: company contacts individual to Example: company contacts individual to determine working conditions.determine working conditions.
Bad Faith BargainingBad Faith Bargaining
Bad Faith Bargaining/Failure to Meet and Bad Faith Bargaining/Failure to Meet and ConferConfer
Unilateral changes to terms and conditions of Unilateral changes to terms and conditions of employment when MOU in effectemployment when MOU in effect
Unilateral changes where contract expired and still Unilateral changes where contract expired and still bargainingbargaining
Bad Faith Bargaining/Surface BargainingBad Faith Bargaining/Surface Bargaining Illusion of Bargaining in Good FaithIllusion of Bargaining in Good Faith
Bad Faith BargainingBad Faith Bargaining
Bad Faith Bargaining/Surface Bargaining:Bad Faith Bargaining/Surface Bargaining: Unlawful bargaining table conduct designed to create Unlawful bargaining table conduct designed to create
illusion of good faith bargaining but without the requisite illusion of good faith bargaining but without the requisite intent to agreeintent to agree
Evidenced by:Evidenced by: Refusal to act on proposals or introduce counterproposalsRefusal to act on proposals or introduce counterproposals Making proposals contingent on withdrawal of grievances Making proposals contingent on withdrawal of grievances
or unfair practice chargesor unfair practice charges Reopening previously settled issuesReopening previously settled issues Dilatory conduct in scheduling and attending negotiationsDilatory conduct in scheduling and attending negotiations
*Compare to Hard Bargaining*Compare to Hard Bargaining
Harassment and ThreatsHarassment and Threats
Employer cannot interfere with, intimidate, Employer cannot interfere with, intimidate, restrain, coerce or discriminate against restrain, coerce or discriminate against employee for exercise of union rightsemployee for exercise of union rights
Union representatives cannot be punished or Union representatives cannot be punished or denied promotion based on lawful activitydenied promotion based on lawful activity
Employer can regulate union access to Employer can regulate union access to employee work areasemployee work areas
InterrogationInterrogation Employer cannot interrogate union members about Employer cannot interrogate union members about
union activitiesunion activities
Employer cannot ask who posted messages on the Employer cannot ask who posted messages on the Union bulletin boardUnion bulletin board
Cannot ask members about the status of Cannot ask members about the status of negotiationsnegotiations
Cannot ask members about what the union is Cannot ask members about what the union is planning to do with respect to union activities planning to do with respect to union activities
Cannot ask if employee is for or against unionCannot ask if employee is for or against union
DiscriminationDiscrimination
Campbell Municipal Employees Assn. v. City Campbell Municipal Employees Assn. v. City of Campbellof Campbell (1982) 131 Cal.App.3d 416: (1982) 131 Cal.App.3d 416: Employer may not discriminate by denying Employer may not discriminate by denying pay benefits to employees represented by pay benefits to employees represented by union that used impasse procedures.union that used impasse procedures.
San LeandroPolice Officers Assn. v. City of San LeandroPolice Officers Assn. v. City of San LeandroSan Leandro ((1976) 55 Cal. App.3d 553: ((1976) 55 Cal. App.3d 553: Employer may not grant benefit only to Employer may not grant benefit only to employees not represented by union.employees not represented by union.
Union ULPsUnion ULPs
Breach of duty of fair representationBreach of duty of fair representation
Work stoppages or slowdownsWork stoppages or slowdowns
Bad faith bargainingBad faith bargaining
Violation of fair share rulesViolation of fair share rules
Employers rarely file unfair practice chargesEmployers rarely file unfair practice charges
Duty of Fair RepresentationDuty of Fair Representation
Primary union ULP issuePrimary union ULP issue
REO must fairly represent all employees, even REO must fairly represent all employees, even non-union employees (fair share)non-union employees (fair share)
Union conduct cannot be arbitrary, Union conduct cannot be arbitrary, discriminatory, or in bad faithdiscriminatory, or in bad faith
PUBLIC EMPLOYMENT PUBLIC EMPLOYMENT RELATIONS BOARD (PERB)RELATIONS BOARD (PERB)
PERBPERB
Public Employment Relations Board Public Employment Relations Board administers the MMBA and similar statutes administers the MMBA and similar statutes governing the public sector employment governing the public sector employment relationshiprelationship
PERB did not administer MMBA until 2001PERB did not administer MMBA until 2001
PERB jurisdiction is expandingPERB jurisdiction is expanding
MMBA has been interpreted primarily by MMBA has been interpreted primarily by courtscourts
PERB JurisdictionPERB Jurisdiction Limited to resolving claims of unfair practices Limited to resolving claims of unfair practices
which violate the MMBAwhich violate the MMBA
No jurisdiction over peace officers defined in No jurisdiction over peace officers defined in Section 830.1 of the Penal CodeSection 830.1 of the Penal Code
PERB does not enforce collective bargaining PERB does not enforce collective bargaining agreements per seagreements per se
PERB will not issue a complaint unless the PERB will not issue a complaint unless the violation constitutes an unfair labor practice, violation constitutes an unfair labor practice, not solely an MOU violationnot solely an MOU violation
Statute of LimitationsStatute of Limitations
An unfair practice charge must be filed no An unfair practice charge must be filed no later than later than SIX MONTHS SIX MONTHS from the date the from the date the Charging Party knows, or should have known, Charging Party knows, or should have known, of the conduct underlying the chargeof the conduct underlying the charge
Late-filed charges are subject to rejection or Late-filed charges are subject to rejection or dismissaldismissal
The PERB ProcessThe PERB Process
The PERB ProcessThe PERB Process
Filing a Charge (What is Needed):Filing a Charge (What is Needed):
Name of affiliate AssociationName of affiliate Association Dates when alleged violation occurredDates when alleged violation occurred Detailed description of the violationDetailed description of the violation Names of the Union members involved in the Names of the Union members involved in the
violationviolation Names and titles of the supervisors/managers Names and titles of the supervisors/managers
involved in the violationinvolved in the violation Names of all witnessesNames of all witnesses
The PERB ProcessThe PERB Process
Unfair Practice ChargesUnfair Practice Charges PERB RegulationsPERB Regulations MMBA ProvisionsMMBA Provisions
Charges can be Filed Online, In Person or by Charges can be Filed Online, In Person or by MailMail
PERB Charge is Filed by CounselPERB Charge is Filed by Counsel
The PERB ProcessThe PERB Process PERB does preliminary investigationPERB does preliminary investigation
Employer may respond to the allegations Employer may respond to the allegations Board Agent will determine if charge meets minimum legal Board Agent will determine if charge meets minimum legal
standard for violationstandard for violation
If charge fails, PERB issues a “Warning Letter” and If charge fails, PERB issues a “Warning Letter” and allows time to correctallows time to correct If deficiencies are not corrected the charge will be dismissedIf deficiencies are not corrected the charge will be dismissed
Union may appeal dismissal to the full Public Union may appeal dismissal to the full Public Employment Relations BoardEmployment Relations Board
The PERB ProcessThe PERB Process
Abeyance:Abeyance:
Where the MOU prohibits the conduct and the parties Where the MOU prohibits the conduct and the parties have binding arbitration as the final step of their have binding arbitration as the final step of their grievance procedure, PERB can place the charge in grievance procedure, PERB can place the charge in abeyanceabeyance
After arbitration PERB can dismiss the charge After arbitration PERB can dismiss the charge
unless the Charging Party shows that the arbitration unless the Charging Party shows that the arbitration award is repugnant to the MMBAaward is repugnant to the MMBA
The PERB ProcessThe PERB Process
PERB issues a complaint if there is prima facie PERB issues a complaint if there is prima facie (“at first view”) evidence of a violation(“at first view”) evidence of a violation
Informal Settlement ConferenceInformal Settlement Conference A PERB agent acts as a mediator and attempts to A PERB agent acts as a mediator and attempts to
facilitate a resolutionfacilitate a resolution
If no resolution of charge, PERB sets a date for an If no resolution of charge, PERB sets a date for an administrative hearingadministrative hearing
PERB ProcessPERB Process
Administrative HearingAdministrative Hearing
Charging Party has the burden of proving its case Charging Party has the burden of proving its case
by a preponderance of the evidenceby a preponderance of the evidence
Parties may call witnesses and introduce Parties may call witnesses and introduce documentary evidencedocumentary evidence
Witnesses testify under oath and may be examined Witnesses testify under oath and may be examined and cross-examinedand cross-examined
Parties may present oral closing arguments or Parties may present oral closing arguments or submit post-hearing briefssubmit post-hearing briefs
PERB ProcessPERB Process
Following submission of all evidence and Following submission of all evidence and argument, the administrative law judge (ALJ) argument, the administrative law judge (ALJ) issues a proposed decision issues a proposed decision
Proposed Decision is Endorsed, Modified or Proposed Decision is Endorsed, Modified or Rejected by the BoardRejected by the Board
Remedies Must Promote the Purpose of the Remedies Must Promote the Purpose of the MMBAMMBA
RemediesRemedies
Issue Notice PostingIssue Notice Posting Return to Status QuoReturn to Status Quo Return to Bargaining TableReturn to Bargaining Table Provide Requested InformationProvide Requested Information Any other Remedy that would effectuate the Any other Remedy that would effectuate the
purpose of the Actpurpose of the Act PERB cannot force employer to accept PERB cannot force employer to accept
