Labor Relations: The Meet and Confer Process

the subject deputy’s investigative interview. The deputy sheriffs’ employee association filed a writ of mandate in superior court alleging that the Sheriff’s order was an impermissible unilateral change in working conditions that required the Sheriff to meet and confer with the association under the MMBA. The Court of Appeal disagreed and ruled in favor of the Sheriff. The appellate court noted that a long-standing past practice of pre-investigative interview access to the investigative file, alone, does not constitute a “working condition” within the meaning of the MMBA. 143

B. S COPE OF R EPRESENTATION

1. S COPE OF B ARGAINING Since its enactment in 1968, there have been a great number of court proceedings involving the issue of whether the obligation to negotiate under the MMBA was equally as broad as that applicable under the private sector law. In 1974, the California Supreme Court largely resolved that issue when it concluded that the obligation was indeed equally as broad. Thus, forty years of private sector decisional law defining the scope of the process was, to a large extent, incorporated into the MMBA in one fell swoop. 144

While the scope of bargaining generally encompasses wages, hours, and other terms and conditions of employment, the MMBA also recognizes two exceptions, as explained below.

a. Merits, Necessity or Organization The MMBA states that “the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” 145 This is often referred to as “management rights/actions.” 146 In Claremont Police Officers Association v. City of Claremont , the association sought a writ of mandate challenging the city's policy requiring officers to record race and ethnicity of persons subject to a vehicle stop, but not arrested or cited. The California Supreme Court found that the MMBA did not require the city to meet and confer with the association because requiring recordkeeping regarding race and ethnicity did not have a significant and adverse effect on the officers’ working conditions. Because the Court found no significant and adverse effect, it was not required to balance the city’s need for unencumbered decision-making against any perceived benefit to employer-employee relations from bargaining about the subject. 147 Public policy matters may also be excluded from the scope of bargaining, subject to the Claremont balancing test. For example, while a police department rule defining the circumstances under which an officer may use deadly force impacts the bargaining issue of employee safety, because it primarily involves a public policy issue, it is not a mandatory subject of bargaining. 148 Likewise, although a civilian review board’s involvement in departmental investigations of citizen complaints against police officers impacts the bargaining issue of discipline, the civilian review board’s involvement did not constitute a mandatory subject of bargaining because the use of a civilian review board primarily involves a public policy issue. 149

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 25