Labor Relations: The Meet and Confer Process

1. PEMHCA Requirements Under PEMHCA, contracting employers are required to provide benefits by means of the “equal contribution” method. This method requires an employer to contribute an equal amount towards the medical insurance premiums of both employees and retirees. In providing this equal contribution, employers must satisfy a minimum contribution requirement. For calendar year 2019, an agency is required to provide a minimum contribution of at least $136.00 per month for each employee and retiree. This minimum contribution requirement is adjusted each year. 2. County Employees Retirement Law of 1937 (CERL) Government Code section 31692 specifically states that the adoption of an ordinance or resolution providing for retiree health care benefits by the County from its funds pursuant to section 31691 gives no vested right to any member or retired member. But in spite of this statutory provision, agencies covered by CERL should seek legal counsel before attempting to reduce or eliminate benefits, as documents such as MOUs or retiree handbooks may establish a reasonable expectation that benefits will continue indefinitely, thus creating a vested right in retiree health benefits. d. “Zipper” or “Waiver” Clause A zipper clause is a provision in an MOU which states that the Agreement reflects the parties entire understanding of the issues set forth in the MOU. In some cases, a zipper clause may permit a party to reject a request to negotiate a change in an existing policy or MOU provision during the MOU’s term. 193 In rare instances, a zipper clause may also act as a waiver of the right to bargain. For example, where a collective bargaining agreement contained a zipper clause, as well as an extensive provision addressing the effects of layoffs, the employer had no duty to further negotiate the impacts and effects of the layoff. 194 PERB has also found that during the life of the contract, a zipper clause may insulate either party from a demand to reopen negotiations in order to change the status quo in regard to negotiable matters, including those matters not previously considered. 195 Prior to beginning the negotiation process, agencies should consider whether a zipper clause would be beneficial to the agency. It will likely be more beneficial to the employee groups. Such a provision may act as a defense by the employee association from agreeing to enter into concession bargaining needed by the agency during fiscal downturns. It may also prevent negotiations over matters within the scope of bargaining that are set forth outside the MOU, e.g., agency policies. If an agency anticipates a need to make a change to matters within the scope of bargaining during the term of the contract, and the agreement contains a zipper clause, the agency should negotiate to remove the provision, or propose a mid-term re-opener pertaining to the specific provision. An employer should consult with legal counsel before asserting that a zipper clause acts as a waiver of the right to bargain over a negotiable matter.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 36