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
Introduction

Overview of the Meyers-Milias-Brown Act

“Meet and Confer” Process

Unfair Labor Practices

Public Employment Relations Board

Remedies
MEYERS-MILIAS-BROWN ACT
(MMBA)
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
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
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 employeremployee relationship
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
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
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
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
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
“MEET AND CONFER”
“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
“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
“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.)
“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
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)

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
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

“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
“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
“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
UNFAIR PRACTICES
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
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)
Unfair Practices

Failure to Provide Information

Direct Bargaining with Employee

Harassment and Threats

Interrogation of Employees about Union
Activities

Discrimination
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
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. 1531M)
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.
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
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
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
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
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.
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
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
PUBLIC EMPLOYMENT
RELATIONS BOARD (PERB)
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
PERB Jurisdiction

Limited to resolving claims of unfair practices
which violate the MMBA

No jurisdiction over peace officers defined in
Section 830.1 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
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
The PERB Process
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
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
The PERB Process

PERB does preliminary investigation



If charge fails, PERB issues a “Warning
Letter” and allows time to correct


Employer may respond to the allegations
Board Agent will determine if charge meets
minimum legal standard for violation
If deficiencies are not corrected the charge will be
dismissed
Union may appeal dismissal to the full Public
Employment Relations Board
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
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
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
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
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
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
QUESTIONS?