Labor Relations: The Meet and Confer Process

worked. PERB issued a cease and desist order and directed the Authority to rescind the unilaterally adopted subcontracts. PERB also noted that it had the power to order the Authority to pay the contracted private sector employees the difference in the amount of wages they received, compared to the medical assistants working for the Authority. PERB, however, did not issue that order since the union had not sought that remedy, and the ALJ had not awarded that remedy. Nevertheless, to support its rulings, PERB found that most of the Authority’s concerns with respect to its subcontracting decision were amenable to bargaining. In considering contracting for services, general law cities and counties with civil service systems should be aware that Government Code sections 37103 and 53060 prohibit contracting with the private sector unless the contract is with a specially trained and experienced person, firm, or corporation for special services and advice in financial, economic, accounting, engineering, legal or administrative matters. 177 Whether services are “special” or not is determined by the nature of the services, the necessary qualifications required of a person furnishing the services, and the availability of the service from public sources. 178 Services may be “special” because of the outstanding expertise of the individual furnishing them. 179 In addition to “special services,” there are a number of statutorily authorized services which can be contracted out. Some examples include Public Resources Code § 49300 [collection/disposal of garbage]; Penal Code § 6031.6 [operation of a detention facility]; Public Utility Code § 99288 [operation of public transportation]; Gov. Code § 39731.1 [operation of a ferry system]; Gov. Code § 45008 [personnel selection and administrative services]; Gov. Code § 50474 [construction or maintenance of airports or employing pilots]; Gov. Code § 38794 [ambulance services]; Gov. Code § 25358 [county contracts for maintenance personnel] and Gov. Code § 53997 [financial services]. An employer is required to meet and confer over the decision to reassign or transfer bargaining unit work out of the unit to non-bargaining unit employees, where the employer is not completely eliminating services or changing the scope or direction of its operations, but simply changing the identity of the personnel assigned to perform the work. 180 However, where there is an established practice of overlapping duties between unit and non-unit employees, a change in that distribution does not necessarily result in a duty to bargain. 181 3. S UBJECTS OF B ARGAINING AND R ELATED L EGAL C ONSIDERATIONS To determine whether a subject falls within the scope of representation, the courts and PERB generally look to ascertain whether the subject has a significant or material relationship to wages, hours or other conditions of employment. 182 a. Wages As part of the bargaining process, recognized employee organizations will often advocate for cost-of-living increases for bargaining unit members. Some agencies agree to link a cost-of- living increase to the Consumer Price Index (CPI) published by the United States Department of Labor, Bureau of Labor Statistics. Other times, employers will agree to a specified percentage increase or no increase at all.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 29