Although it seems as if we’ve been doing contract negotiations forever, the law establishing city employees’ right to organize is not even 40 years old. In 1968, with the passage of the Meyers-Milias-Brown Act, employees at “local agencies” (cities, counties and special districts) in California gained the right to form unions and “collectively bargain” a contract over “changes in wages, hours, and terms of employment.” City employees were the last group of public employees to unionize in California. The League of California Cities had lobbied for years that cities were their own “sovereign governments” and therefore, could not be “controlled” by the state labor laws in the handling of their own employees. The League also argued that because cities had their own Civil Service Systems (although many don’t…) employee rights were already so thoroughly protected that they had no need for unions.
In retrospect, we have all seen how easily Civil Service Systems can be manipulated, if not entirely eclipsed, by those who want to get around the rules. But when it came to state “interference,” the League was pretty successful: the Meyers-Milias-Brown Act was a huge compromise. It appeared so weak that city employees hardly seemed unionized at all! Unlike the laws governing state, school district and university employees, the MMBA was “bare bones.” Unlike the other laws, it provided no mechanism for enforcing unfair bargaining practices because the MMBA-covered agencies were deliberately excluded from coverage by the Public Employment Relations Board. And, because none of the PERB precedents were applied, it left huge unanswered questions for members of city employees’ associations…
For example: Did a Labor Agreement between a local government and the employees association have binding authority? Could it be overturned by a change in the City Council or a vote of the residents? What subjects could bargaining cover vs. which were considered “management rights?” What happened if the parties couldn’t come to agreement on a contract? If PERB wasn’t available, how could fair bargaining be enforced? Once a contract was in place, how could it be enforced? What happened if the city went into financial crisis and couldn’t afford to honor the contract? Could City employees associations sue their employers? Could they lobby their Councils? Could they strike?
Over the years, court cases and legislation have hashed out all of these issues – and hundreds more. The general trajectory has been almost entirely pro-employee: giving more and more authority to the bargaining process and less and less to “management rights.” In general the Courts have said that all personnel-related topics are subject to negotiations, except those where Management has a compelling need to manage which is so great that it would be compromised by having to consult with the unions.
Today there are enforceable standards for fair treatment for City employees, due process, and respect for their negotiated agreements. This doesn’t mean that employers never violate the contract or that employees are never mistreated, but it does mean that there are, now, strong legal procedures in place for setting bad situations straight. The road from weakness and chaos to relative stability is marked by dozens of decisions which “fleshed out” the Meyers-Milias-Brown Act. These still control the process today, so you might be interested in a few:
The “Adoption of Reasonable Rules.”
Before 1968, there really were no rules for labor relations. Employees associations in California were mostly social organizations, not unions. They may have discussed issues with management and helped members with problems, but they had no power to compel cooperation. The MMBA required cities to “adopt reasonable rules for the administration of employer-employee relations.” This basically meant setting up rules by which employees could group themselves into labor organizations, petition for recognition, and negotiate contracts to improve their lives on the job.
Not all employers adopted truly reasonable rules. Some made it difficult for example, for employees to hold meetings, collect dues, and form decently-sized unions. Some employers broke the workforce into many little bargaining units, trying to get them competing with one another, rather than forming city-wide bargaining organizations, which might be able to exercise real power. But the groups figured out how to form coalitions and bargain as a group.
Some tried to make union recognition difficult or refused to treat the bargaining seriously. Some “rules,” authorized Management to disband an association when it did not believe it was “acting in the interest of its members” or when membership fell below a certain percentage of the workforce. Also, in the early years, retaliation against union activists was not uncommon, and groups were forced to agree to “no strike” language as a condition of union recognition.
Clearly many managers had an anxiety about the power of local employees’ associations that was out of touch with their reality. Most groups wanted nothing to do with work actions, and had no goal beyond sitting down with their managements to work out some basic expectations about job security, pay raises, and retirement.
In 2001 “local agencies” came under the jurisdiction of PERB (the Public Employment Relations Board) which gave them the ability to challenge “unreasonable rules.” But by then, mostly through positive experience, most cities had gotten used to working with their associations, and “challenges” were largely unnecessary.
In fact, the only large conflict between the parties, at least until the 1990’s was over which topics were negotiable, and which were “management rights.” The MMBA says that employers must bargain over “wages, hours and other terms and conditions of employment;” but it also says that Management may control “the merits, necessity or organization of any service.” In other words, everything that affects your job is negotiable except those matters affecting the Management’s need to provide City services. PRETTY STICKY!
So, who decides which topic falls in which category? The Courts have, every time unions and their Management got in a fight over this subject. And the Courts mostly decided mostly in favor of “negotiability.”
Now that cities and water districts are under PERB, its precedents tell the parties what’s negotiable. It is rare that a new subject comes up, and we have basic agreement: the City can’t change your MOU at all without bargaining. Not your pay, your job description, your medical plan, or your retirement contribution. Not your discipline procedure, your vacation practices, your promotional ladders, not even your dress code. The City can’t drug test you, can’t give your job to someone outside the union, can’t even make you get a different driver’s license – unless it has negotiated these rights with your union.
Your MOU is not only your written record of the “understandings” between the parties, it is a binding contract. So, here’s an interesting question: What if something new comes up? What if there is no written record on a subject? What if Management wants to create an email policy, for example, and there has never been one before?
The answer is that the City still has to meet and confer. (And, while the bargaining is going on, or if the parties can’t come to agreement, what policy is in effect? You’ve probably heard this before: past practice prevails. A past practice is a workplace habit that is “readily ascertainable over a reasonable period of time and recognized by both parties.” Past practices are everywhere…)
What if the City wants to negotiate on a subject, but you are happy with the status quo? If you have an MOU in place, and if it has a “zipper clause,” you do not need agree to negotiate. A “zipper clause” states something like “this MOU and the other city rules incorporated in it, represents the totality of agreements between the parties. The MOU can’t be changed, nor can the parties be required to bargain on any subject, except by mutual agreement.” Painfully legalistic and crucial, this clause zips up bargaining until your MOU expires.
Then, of course, there are the exceptions…The one legal circumstance when your employer can able to “force open” a contract is when a state or federal law is compelling change which will impact “conditions of employment.” For example, when the State Department of Health Services mandated new certification requirements, all water departments were required to make sure its employees got certified.
This did NOT mean that they could implement the new certification requirements without bargaining. However! It meant that it could insist on bargaining. If the union refused to “come to the table,” the City could, ultimately, mandate the changes anyway.
What happens if the City fails to “invite” the union to the table? This is a violation of the Meyer-Milias-Brown Act. Employers violate the bargaining law all the time! (Shocking…) If a public employer makes a change on a subject within the “scope” of the bargaining law, without bargaining, the union’s remedy is to use its grievance procedure, or go to PERB, to undo its action.
Please keep in mind, though, that the MMBA gives Management the right to make some decisions without bargaining; The right to layoff, for instance. In the early 1970’s, the Courts ruled that an employment topic may be outside the scope of negotiations “if the employer’s need for unencumbered decision-making outweighs the benefit of employer/employee relations of bargaining about the action in question.” The Courts firmly held that the employer’s need to reduce the size of the workforce in response to economic stress is more urgent than the need for cooperative decision-making. (They also held, however, that after the decision to layoff is made, the union has the right to bargain over “impact:” the criteria used to decide in who is laid-off, the laid-off workers’ severance pay, benefits, and re-employment rights, how the remaining work will be distributed, etc.)
But even during the worst of financial times, cities don’t have the right to compromise your contract.
This legal test came in the early ‘90’s, when the impact of Proposition 13 finally hit city coffers. Many local agencies went into genuine crises: services were cut back and full-time employees were laid-off for the first time since the Great Depression, “taxpayer uprisings” turned against those expensive civil servants who were “feeding at the public trough.” Two of these uprisings took the form of initiatives, where residents voted to lower their employees’ retirement contributions. The unions went to court, defending their contracts, and legal precedent was set: the wishes of the taxpayers cannot override an in-force labor agreement. A Contract really IS a contract.
But what happens if the employer literally doesn’t have the money to honor the contract? When the state went into paralysis in 1996 because the legislature couldn’t agree on a budget, thousands of employees were given “debit notes” instead of paycheck! The unions sued and the Courts ultimately found that this was illegal: the interests of the individuals covered by labor contracts held precedence over the interests of the state or its legislators. In other words, even when the State has no budget, the Labor Agreement cannot be violated. The State will not be able to issue debit cards again. (Nor will your City be able to threaten involuntary furloughs or substituting comp time for overtime or standby pay “for a year or two.”)
Employers with unstable incomes unavoidably threaten their employees with a declining standard of living and abusive work situations. There were many years with little or no pay increases, and many, many attempts to cut back wages and benefits. For the most part, these were staved off by effective bargaining.
Finally, you should know that the MMBA establishes that a current MOU remains in force, even if the expiration date has passed, “until a successor agreement is reached.” In other words, you are never without a contract in public employment in California. The employer cannot threaten to discontinue any wages or benefits as a strategy to “get the union to settle.” Nor can it legally refuse to meet, refuse to collect dues, modify the bargaining unit (break the group into different groups) or take retaliatory action in the event of a strike or work action. Thanks to the Sanitation Workers of the city of LA., strikes among public employees in California have been legal since 1985.
Strikes and work stoppages are extremely rare in the public sector. City employees are overwhelmingly a hard-working and “peaceable” bunch. But isn’t it nice to know how the law works, and the extent of your “tools” when you might need them? Nowadays, when bargaining breaks down – and it usually doesn’t – the parties rarely end in combat or court. But we should all appreciate that is because of the hard work already done to put “meat on the bones” of the Meyers-Milias-Brown Act.
Article written by www.cityemployeeassociates.com
