Labor Relations: The Meet and Confer Process

The statutory scope of representation is defined under Government Code section 3504, as:

[A]ll 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 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. (Emphasis added).

To determine whether a specific topic comes within the scope of representation, PERB will apply a three part test. First, it will ask if the management action significantly and adversely affects bargaining unit wages, hours or working conditions. If not, there is no duty to meet and confer. Second, it will ask if the significant and adverse effect arises from the implementation of a fundamental managerial or policy decision. If not, the requirement to meet and confer applies. Third, if both of the above factors apply, PERB will use a balancing test to determine whether the parties must meet and confer. 14 Specifically, it will ask whether the employer’s need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question. 15 b. Notice The MMBA requires local public agencies to provide reasonable written notice to each affected, recognized employee organization of “any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted.” 16 Once a public agency has given reasonable written notice to the affected, recognized employee organization, the burden shifts to the organization to request to meet and confer. 17  The recognized employee organization (union) wishes to negotiate either an initial or successor Memorandum of Understanding (MOU) (an MOU is a collectively- bargained agreement that sets forth the various terms and conditions of employment for employees in the bargaining unit represented by the union for a specified term);  The agency notifies the union that it wishes to change an existing term or condition of employment (i.e., the subject of the proposed change is within the scope of representation). The union thereafter requests to meet and confer with the agency; or  The union becomes aware of a change or proposed change in unit members’ employment terms, and demands that the agency negotiate either the change or the impacts of the change. The request to negotiate commonly occurs as one of the following scenarios:

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 8