Rights of Recognized Employee Organizations

Introduction:

Most public employees have a right to be represented by an employee organization. Exclusive recognition must be accomplished in accordance with the rules and regulations adopted by the employer, providing they are lawful. 

Government Code Section 3508 allows an employer to determine whether peace officers should be confined to membership in an employee organization consisting solely of peace officers. Conversely, peace officers are also entitled to compel their employer to include them in a unit comprised exclusively of sworn peace officers. The majority of the discussion in this area is derived from the Meyers-Milias-Brown Act (MMBA). The MMBA gives many rights to associations that have been formally recognized by the public employer. Foremost among those rights is the power to compel the agency to meet-and-confer in good faith over requested changes in wages, hours, and other terms and conditions of employment. This requirement found at Government Code Section 3505, does not compel either party to agree to a particular proposal or to make concessions. A serious attempt must be made by both sides to resolve differences or to come to an agreement. While the MMBA applies to only city and county unions, the Educational Employee Relations Act (EERA) applicable to school district employees and the Dills Act, applicable to state employees, have similar provisions.

Rights of Employee Organizations

1. To compel the employer to negotiate over requested improvements.

2. The right to compel the employer to negotiate before it makes changes affecting the represented employees.

3. The right to invoke impasse procedures.

4. The right to convert a negotiated agreement into a binding contract.

5. Right to compel the public agency to allow a reasonable number of its representatives reasonable time off without loss of compensation when formally meeting and conferring.

6. The right to force the public agency to consult in good faith prior to adopting or altering reasonable rules and regulations for the administration of employer-employee relations.

When is the Employer obligated to Meet and Confer in Good Faith?

Public employees are generally aware of their employers' duty to meet and confer in good faith. This section discusses what that phrase means and under what circumstance public employers are required to meet and confer with associations over conditions of employment.

This material focuses on city and county employers and the requirements under the Meyers-Milias-Brown Act. (Gov. Code '3500-3510). Other public employees are covered under similar statutory schemes, such as the Educational Employment Relations Act which covers California's public school employees, and the Dills Act which covers most other state employees. In addition to their rights under the MMBA, EERA or the Dills Act, depending on their employer (state or local), firefighters also may have additional bargaining rights under Labor Code '1960-1963. 

The enactment of the MMBA created a mandatory collective bargaining system for California local government employers. Once a unit of employees has been recognized as a bargaining unit, the public employer has a duty to meet and confer in good faith and to endeavor to reach agreement on matters within the scope of bargaining or scope of representation.

Meet and confer in good faith is defined in Section 3505 of the Government Code which states that meet and confer in good faith means that a public agency, or such representatives as it may designate, and representatives of recognized employee organizations, shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions and proposals and to endeavor to reach agreement on matters within scope of representation. . . After the employer and association have bargained to impasse, local impasse rules come into play as to settling the dispute. With the passage of SB 402, as of January 1, 2001, economic issues may now go to binding arbitration. A full discussion on binding arbitration is ahead in Section D.

A major question often litigated is, determining what falls within the scope of representation, thereby requiring the public employer to meet and confer over it. Government Code '3504 reads: The scope of representation shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours and other terms and conditions of employment, except, however, that scope of representation shall not include consideration of the merits, necessity or organization of any service or activity provided by law or executive order.

Subjects Which Have Been Held to be Included Within the Scope of Representation

The following are examples of subjects which are subject to negotiations prior to implementation, modification or rescission:‚

• Group insurance benefits

• Impact of staffing levels

• Adoption of safety requirements

• Size of case load of social workers

• Work hours and work days

• Job security

• Contracting out work performed by bargaining unit

• Promotional opportunities

• Elimination of work or reassignment of work of the unit of representation

• Removal of the ability to work overtime

• Any change in the rate of pay

• Lay off procedures

• Modification of benefits, even those not ordinarily associated with public employment

• Grievances procedures

• Restrictions on the right of representation during officer-involved shootings

• Actions which significantly increase the cost of the employee to perform his work.‚ Disciplinary appeal procedures

• Procedures for verification of claims for sick leave use

• Adoption of fitness-for-duty examinations, including mandatory drug testing programs. 

As you can see, the courts broadly interpret the MMBA when determining if a new policy or practice falls within the scope of representation. While the MMBA is broad, it does have its limitations. The following is a list of items which have been excluded by the courts as not falling within the scope of representation:

• Promotional opportunities regarding positions outside the bargaining unit

• The right to lay off employees, except for the effects of such lay off upon the bargaining unit

• Adoption of a shooting policy

• Implementation of a shooting review board or police commission

• Non-safety issues of an unsubstantial nature which do not directly impact the employment relationship.‚ Mandatory increased employee retirement contributions where the MOU does not require the employer to pick up those increases

• Changes in promotional policies to comply with court decree to remedy past racial discrimination.‚ Change in or initiating employee parking fees

• Adopting charter provision established minimum salary.

Association leaders should keep a close eye on policy and/or practice changes the public employer unilaterally makes before meeting and conferring that may fall within the scope of representation. Many public employers are either ignorant of the law or simply refuse to deal with the association on matters they feel are within their complete control. When local government agencies implement policies or practices that association leaders feel are within the scope of representation and should be met and conferred over, they should either write a letter to the public employer or have their attorneys write, demanding that the policy change not be implemented until the agency and association have bargained over it. 

If the agency refuses to meet and confer in good faith, the association may obtain a writ of mandate or injunction compelling the agency to meet and confer in good faith prior to implementing the policy or rule. 

If an association fails to challenge changes in policies or rules, it may be waiving its right to make challenges in the future. Under Government Code ' 3304.5, a public employer is required to provide written notice of applicable changes or adoptions which are proposed to be adopted. An employer simply sending out the new rule, after it has been adopted, does not comply with 3304.5. If the employer does send out proper notice or as some courts have held, an association otherwise has knowledge of the proposed change, and the association fails to request a meet and confer session prior to adoption, they may not later challenge the adoption. 

Agency Shop - Forced Payment of Dues 

Effective January 1, 2001 associations now have two available mechanisms to compel all members of a bargaining unit to pay association dues. The first option, which remains unchanged, is to negotiate with the employer an MOU provision requiring, as a condition of employment, that bargaining unit employees have dues or a service fee deducted from their payroll. (Cal. Govt. Code '3502.5(a)) If an employer refuses to add an agency shop provision to the MOU, associations now have a second option. If the bargaining unit obtains a signed petition of 30% of the employees in the bargaining unit requesting an election to implement agency shop and the subsequent election results in a majority of ballots cast in favor of the agency shop agreement, the employer must thereafter deduct dues or service fee for the association. (Cal. Govt. Code '3502.5(b))

In any event, where an employee, for religious reasons, objects to supporting a public employee organization, he or she shall not be required to pay dues or the service fee as a condition of employment. However, that employee must donate the same amount to a non-labor charitable fund. 

Keep in mind that were there is an agency shop arrangement in place, the association's financial reports and balance sheets are required to be made available to any employee and most importantly to the public agency. (Cal. Govt. Code '3502.5(f)) In fact, prior to implementing an agency fee, the union must post for the employees the amount of the fee and what the fee pays for.

Unfair Labor Practices
Public employees possess the right not to be interfered with, intimidated, restrained, coerced or discriminated against by a public agency or employee organization because of having exercised any of the rights provided by the MMBA or EERA. An employer cannot reward employee groups who settle contracts by granting retroactivity and then deny it to non-settling groups at impasse. Similarly, the public agency cannot reward employees who choose not to be represented with special benefits denied to other similarly classified employees who exercise their right to be represented by a particular organization

Enforcement of Association Rights
For state and school district employee groups the Public Employee Relations Board (PERB) has jurisdiction to hear and resolve unfair practice charges. Effective January 1, 2001 PERB's jurisdiction was expanded to include city and county public unions. Unfortunately, a specific exclusion was made for police officer unions (830.1). (Cal. Govt. Code '3511). 

As such, police associations (830.1 only) must go directly to superior court to resolve a MMBA dispute. Of course if there is a grievance process in place, you must first exhaust that process.

School and College Police Departments
The MMBA does not apply to public school agencies, community college districts and state universities.

The Educational Employment Relations Act (EERA) governs employment relations in the public schools, including community college districts. (Government Code Sections 3540 - 3549.3). The State's two higher education systems C the University of California and the California State University C are subject to the Higher Education Employer-Employee Relations Act (HEERA), found in Government Code Sections 3560 - 3599. The Public Employment Relations Board (PERB) is a state agency that administers and enforces the statutes comprising EERA and HEERA. The Board has the authority to determine appropriate bargaining units, to conduct representation elections among competing organizations, to certify the winner as the exclusive representative of a unit, to decide unfair practice charges, to certify bargaining impasses, and to otherwise enforce statutes regarding employee-employer relations. 

Other State and Specialized Law Enforcement Groups:

Most state employees fall under the Dills Act, also known as the State Employer Employee Relations Act (SEERA) found at Government Code Sections 3512 - 3524.

Transit Districts have labor provisions in the statutes that created them, so they are not subject to the MMBA even though they are local government entities. 

Labor Code sections 1960 - 1963 govern some aspects of firefighters' bargaining rights, although such employees are otherwise covered by either the MMBA or the SEERA, depending on the employer.

State courts may refer to the National Labor Relations Act (NLRA) to help interpret California's various employer-employee relations acts. Federal cases have greatly influenced California courts, especially where Federal and California statutory language is comparable. For example, the most important right of representation cases and compelled statement cases were issued by federal courts. Decisions of the National Labor Relations Board (NLRB), which interprets the NLRA, is equally persuasive authority where statutory interruption is unavailable from California courts.

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