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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 article describes what that phrase means and under what circumstance public employers are required to meet and confer with associations over conditions of employment.

This article will focus on city and county employers and the requirements under the Meyers-Milias-Brown Act. (Gov. Code §3500-3510). Other public employees are covered under different 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 or the Dills Act, depending on their employer (state or local), firefighters also 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.

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: "[T]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." The courts in interpreting the MMBA have held the following items to be within the scope of representation:

Group insurance benefits.
Impact of staffing levels.
Size of worker case loads.
Work hours and work days.
Job security
Contracting out work performed by the bargaining unit.
Lay off procedures.
Promotional opportunities.
Removal of the ability to work overtime.
Any change in the rate of pay.
Actions which significantly increased 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 in a different bargaining units.
Adoption of a shooting policy.
Implementation of a police commission.
Mandatory increase of employee retirement contributions where the MOU does not require the employer to pick up those increases.

Association leaders should keep a close eye on policy and rule 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 and rules 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 disciplinary action results from policy or rule changes which are within the scope of representation and the agency refused to meet and confer, the employee being disciplined has a very strong defense and it is likely that the discipline will be set aside.