Loading...
20111219 Late CorrespondenceTO: FROM: DATE: SUBJECT: HONORABLE MAYOR &CITY COUNCIL MEMBERS CITY CLERK DECEMBER 19,2011 ADDITIONS/REVISIONS AND AMENDMENTS TO AGENDA Attached are revisions/additions and/or amendments to the agenda material presented for tonight's meeting: Item No. 1 Respectfully submitted, Description of Material Powerpoint Presentation ~~~ Carla Morreale W:\AGENDA\2011 Additions Revisions to agendaS20111219 additions revisions to agenda for meeting.doc • City of Rancho Palos Verdes Labor Relations Workshop December 19,2011 Roy A.Clarke,Labor &Employment Counsel Richards IWatson IGershon Overview 1.California Public Sector Labor Law. 2.Representation and Recognition. 3.The Collective Bargaining Process. 4.The Good Faith Requirement for Collective Bargai ni ng. 5.Impasse and Unilateral Implementation. 6.Unfair Labor Practices. 7.Conclusions. California Public Sector Labor Law ~Meyers-Milias-Brown Act (MMBA)California Government Code §§3500 -3511. o Passed in 1968,effective January 1,1969. o Covers local government agencies:primarily cities, counties and special districts. o No State administrative structure for administration provided in original Act.Local agencies provided for administration,subject to litigation in the Superior Court.Enforcement was also by court action. o Public Employment Relations Board (PERB) jurisdiction expanded in 2001 to cover the MMBA. California Public Sector Labor Law ~Relationship between Private and Public Sector Labor Law. o National Labor Relations Act (NLRA)passed in 1935. o Administered by the National Labor Relations Board (NLRB). o The NLRA does not cover State and local government workers. o California's public sector labor relations evolved out of and were built on private sector experience,but does not copy the NLRA exactly. o Private sector precedent is not binding,but may be referenced where its provisions parallel the MMBA. California Public Sector Labor Law ~California's Other Public Sector Statutes. o Firefighters Act (1959) o Transit Districts (Various,by District) o Educational Employment Relations Act (1975) o State Employer-Employee Relations Act/Dills Act (1978) o Higher Education Employment Relations Act (1979) o Excluded Employees Bill of Rights (1990) o Trial Court Employment Protection and Governance Act (2000) o Trial Court Interpreter Employment and Labor Relations Act (2003) California Public Sector Labor Law ~Public Employment Relations Board (PERB) o Independent State agency with jurisdiction to administer and enforce the MMBA and several other acts (EERA,Dills Act,HEERA,TEERA,TCEPGA,and TCIELRA). o Created in 1975 as part of EERA and originally called the Educational Employment Relations Board. o Five members appointed by the Governor,subject to advice and consent of the State Senate. o Regional offices and staff in Los Angeles,Oakland and Sacramento. California Public Sector Labor Law ~Employees under the MMBA. o An Employee under the MMBA is "any person employed by any public agency,including employees of the fire departments and fire services of counties,cities,cities and counties,districts,and other political subdivisions of the state,excepting those persons elected by popular vote or appointed to office by the Governor of this state."§3501 (d). o Includes supervisory,professional,confidential,and management employees. o All employees have the same basic right to representation. California Public Sector Labor Law ~Union:employee organization,employee association, association,bargaining representative,guild,professional association. ~Negotiations:meet and confer,bargain, negotiate,confer,collective bargaining. ~Memorandum of Understanding (MOU): collective bargaining agreement,labor contract. Representation and Recognition ~Public employees have the right to form,join, participate in and be represented by employee organizations of their choosing. ~They also have the right to refuse to join or participate in employee organizations. ~Limited right to self-representation. ~Employees may exercise these rights without interference,intimidation,restraint,coercion or discrimination by either the public agency or employee organization. Representation and Recognition ~An employee may not be subjected to punitive action,denied a promotion or threatened with such treatment for the exercise of lawful conduct as an elected, appointed or recognized representative of a bargaining unit. Representation and Recognition ~Organizational Security:Employees also have the right to an agency shop,either through a negotiated agreement or by vote. o Agency Shop:As a condition of employment, bargaining unit employees may be required to join an exclusively recognized employee organization or pay a service fee. o Union Shop:Requires all unit employees to join the union.Not legal in the California public sector. o Closed Shop:Employer may only hire union members.Not legal in the California Public Sector. Representation and Recognition ~How is a union formed? o Generally,a group of employees form an organization or align with an existing organization and file a petition showing an interest in union representation. o An employer must recognize a union if it represents employees of the public agency. o An employer must recognize the union as the exclusive representative if "cards"are signed by over 50%of the employees in the unit. o An election for exclusive representation is held if the support-is at least 30%,but not over 50%. epresentation and Recognition ~What is a bargaining unit? o A group of employees with a clear and identifiable community of interest that the employer determines is appropriate for collective bargaining. o A bargaining unit is represented by a single union where an exclusive representative is recognized. o A bargaining unit is a sub-division of the employer designated for purposes of labor relations.The union is a separate organization of employees. o An exclusive representative has a duty to fairly represent all unit employees,even if they are not. members.Agency shop is a trade off for the duty. The Collective Bargaining Process ~What triggers a duty to bargain? o A request to negotiate an initial MOU. o A request to negotiate renewal of an MOU when approaching the end of a contract term. o Implementation of a new policy or rule. o Revision of an existing policy or r·ule. o Change in a past practice. The Collective Bargaining Process ~The public agency and the recognized employee organization have a mutual obligation to bargain in good faith upon the request of the other and to endeavor to reach agreement on matters within the scope of representation. ~The duty to bargain also requires that both the employer and labor refrain from taking any action that will change a mandatory subject of bargaining without first giving the other side n'otice and opportunity to bargain. The Collective Bargaining Process ~If bargaining is requested,the parties must either reach agreement or reach impasse and exhaust all required impasse resolution procedures. ~The duty to bargain is triggered when a demand to bargain is made.If the employer gives proper notice of a change and an adequate opportunity to bargain,it is up to the recognized employee organization to request bargaining. The Collective Bargaining Process ~What must be bargained? o Usually referred to as the "scope of representation." o "The scope of representation shall include all matters relating to employment conditions and employer-employee relations,including,but not limited to,wages,hours,and other terms and conditions of employment,[...] o "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."§3504. The Collective Bargaining Process ~Examples of mandatory bargaining subjects: o Wages,including retroactivity,wages for voluntary assignments after hours,overtime,merit pay and parking fees that significantly affect employees. o Hours,including work schedules,reassignment of overtime,personal leave,maximum hours and shifts. o Benefits,including group insurance benefits and retirement benefits.The level of benefits and division of contributions between employer and employee are included. The Collective Bargalnina Process ~More examples: o Discipline procedures or changes in established discipline policies. o Vacancies and promotions involving non- supervisory positions and the promotional process. o Staffing to the extent of workload and safety. o Contracting-out bargaining unit work where motivated by economics. o Transfer of bargaining unit work out of the bargaining unit. o Safety. o Drug testing. The Collective Bargaining Process ~Courts have found that the following are outside the scope or representation: o The decision to layoff employees. o Staffing levels,except to the extent they impact workload and safety. o Certain employee rights secured by statutory or constitutional law,such as "Skelly"rights or duplicate pay for military leave. o Subjects that have only a trivial effect on wages, hours and other terms and conditions of employment. The Collective Bargaining Process ~Decision bargaining vs."impact bargaining." o Even where the decision involving an employer's action falls within management rights,there may be a duty to meet and confer over the impacts of the decision on matters within the scope of representation. o Layoffs are the best example of this distinction. The Collective Bargaining Process ~Decision to layoff:The determination that there is insufficient work to justify the existing number of employees or that there are insufficient funds to support the workforce is a fundamental managerial concern that requires such decisions to be left to the employer's prerogative.The decision involves policy matters concerning the level of service to be provided or the manner in which services are best provided. ~Effects of layoff:Although the decision is not negotiable,the effects of the decision on matters within the scope of representation,and the procedure to be used,are negotiable. For example,order of layoff,notice,bumping rights,recall rights,safety of existing employees,work load of existing employees,severance,use of seniority,references,etc. The Collective Bargaining Process ~How does bargaining typically proceed? o The employer or union notifies the other of a desire to negotiate an initial or a successor MOU. o Timing is often based on either expiration of an old MOU or anticipation of a new fiscal year. o Some communities provide options for public comment on desired terms and information on the progress of negotiations. o The management bargaining team meets with the City Council in closed session to receive direction and parameters for negotiation.§54957.6. The Collective Bargaining Process ~Management team and union meet to discuss ground rules. o Meeting schedules and locations. o Size of the bargaining teams and release time for bargaining unit representatives. o The order in which issues will be discussed. o Whether the parties will sign-off on individual tentative agreements or proceed with bargaining as a package. o If tentative agreements are recognized,the procedure that will be used. o Procedures for information requests. The Collective Bargaining Process ~Ground rules (continued). o Limitations on general communications outside of bargaining. o Information on the ratification or approval process either side will follow. o Agreed deadlines for proposals or for negotiations. o Confirmation that either side has sufficient authority to proceed with negotiations. The Collective Bargaining Process ~Opening stage. o Discussion of interests. o Provide information requested. o Exchange of opening proposals. o Clarifications,questions,refinement and explanations. o Closed sessions with City Council for direction on proposals and review of negotiating positions. The Collective Bargaining Process ~Middle stage. o Continued discussion of interests and options. o Counter-proposals. o Tentative agreement on proposals. o Discussion of package proposals. o Closed sessions with City Council for direction on proposals and review of negotiating positions The Collective Bargaining Process ~Closing stage. o Refine interests and options. o Reach tentative agreement. o Finalize tentative agreement terms. o Jointly prepare a written memorandum of understanding to be presented to the City Council for its determination. The Good Faith Requirement ~A subjective attitude that requires a genuine desire to reach agreement. o "'Meet and confer in good faith'means that a public agency,or such representatives as it may designate,and representatives of recognized employee organizations,shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information,opinions,and proposals, and to endeavor to reach agreement on matters within the scope of representation prior to adoption by the public agency of its final budget for the ensuing year.The process should include adequate time for the resolution of impasses where specific procedures for such resolutions are contained in local rule, regulation,or ordinance or when such procedures are utilized by mutual consent."§3505. The Good Faith Requirement ~Violations of the duty to negotiate in good faith are usually based on the totality of the conduct. ~Factors considered may Include: o Surface bargaining where one side goes through the motions of negotiating but lacks the resolve to reconcile differences or reach agreement. o Failure to exchange reasonable proposals or to make counter proposals. o Take it or leave it proposals. o Refusing to explain reasons for bargaining positions. o Delay tactics in scheduling sessions. he Good Faith equirement ~More factors: o Bypassing the designated representatives -employee organization attempting to negotiate directly with members of the governing board or agency attempts to negotiate directly with employees. o A rude,patronizing attitude toward the other side. o Not giving representatives at the table sufficient authority to reach agreement. o Withholding relevant information needed in the employee relations process. o Withdrawing prior agreements. o Refusing to reduce an agreement to writing. The od Faith Requirement ~Normally,it is not unlawful for the employer to communicate directly with members of the bargaining unit regarding matters being negotiated. o Provided no ground rule prohibits it. o The employer is not bypassing the union bargaining team or direct dealing.Bypassing occurs where offers are made to employees before or instead of being made at the bargaining table. o The Employer is not undermining the union By mischaracterizing the union's position or disparaging"their team. The Good Faith Requirement ~A few actions have such potential to frustrate the collective bargaining process that they are an automatic violation.(Per se violations.) o The most notable is a unilateral action or change. o A unilateral change occurs when the employer takes action to change the status quo on a matter within the mandatory scope of representation and without discharging its duty to bargain and,where applicable,completing impasse procedures.The employer's lack of subjective bad faith in making the change is immaterial. The Good Faith Requirement ~Unilateral action and past practice. o Unequivocal. o Clearly enunciated and acted upon. o Readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties. o Relates to a mandatory subject of bargaining (wages,hours and other terms and conditions of employment). o Lax enforcement of policies and MOU terms with clear and specific language can generally be corrected with advance notice (but consider "impacts bargaining"). Impasse and Unilateral Implementation ~Although the MMBA requires the parties to enter negotiations with a genuine desire to reach agreement,it does not require the parties to agree. ~If,despite their good faith efforts,the parties are unable to reach agreement on mandatory bargaining subjects and further negotiations would be futile,the parties are at impasse. Impasse and Unilateral Implementation ~Where a local agency has established impasse procedures,the parties must follow those procedures. ~Under the MMBA the parties may mutually agree to mediation. ~The parties may mutually agree to other impasse procedures. ~Effective January 1,2012,MMBA covered agencies may be required to participate in fact finding,if requested by the union. Impasse and Unilateral Implementation ~Upon the exhaustion of impasse procedures, a public agency may unilaterally implement its last,best and final offer. o The agency must have fulfilled its obligation to meet and confer in good faith. o The parties must genuinely be at impasse. o The agency must have participated in all applicable impasse procedures in good faith and exhausted them. Impasse and Unilateral Implementation ~Unilateral implementation. o What is implemented is a change in the terms and conditions of employment.It is not an MOU and does not create a contract. o Generally,the entire last,best and final offer or terms and conditions reasonably comprehended within that offer must be implemented.The agency may not selectively implement items. Impasse and Unilateral Implementation ~Unilateral implementation. o The union does not lose its right each year to meet and confer,generally in anticipation of a new fiscal year.At most,unilateral implementation suspends the duty to meet and confer for the balance of the fiscal year. o The duty to bargain may also be revived by a material change in position or circumstances. Impasse and Unilateral Implementation ~What is a typical path to unilateral implementation after January 1,20127 o The City engages in good faith negotiations. o Negotiation over matters within the scope of representation for inclusion in an MOU have reached a point in meeting and negotiations where the differences in positions are so substantial or prolonged that future meetings would be futile. o Either party declares impasse. o Frequently,the parties will schedule an impasse meeting to review their positions on matters in dispute and consider possible impasse procedures. Impasse and Unilateral Implementation ~Path to unilateral implementation (continued). o The parties may mutually agree to mediation. o The parties may mutually agree to other impasse procedures. o The union may file a request for fact finding with PERB. (AB 646).Fact finding is similar to non-binding arbitration. •Each side designates one fact finding panel member. •PERB provides a list of seven neutrals available to serve as Chair. •The parties either select a chair or,if they fail to do so,PERB selects the chair of the panel from the list. •The panel will schedule and conduct a hearing that will include witnesses and evidence. Impasse and Unilateral Implementation ~Path to unilateral implementation (continued). •If the matter does not settle sooner,the panel will issue findings of fact and will recommend terms of settlement to the parties. •The City must make the report public within ten days. •The City Council holds a public hearing regarding the impasse. o The City Council may implement the City's last,best and final offer. Impasse and Unilateral Implementation ~Strikes and work stoppages. o Strikes by public employees are not illegal in California except where the strike will pose a substantial and imminent threat to the public health or safety. o Fire fighters (by statute)and police (by Court decision)may not strike. o Considered on a case-by-case basis,others might include,for example,nurses,water and sewer employees,animal control,etc. Unfair Labor Practices ~Discrimination,intimidation or reprisals because of the exercise of protected rights. ~Automatic or "per se"violations: o Unilateral change. o Refusal to provide information. o Insistence to impasse on permissive subjects. o Refusal to execute an agreement. ~Totality of the circumstances. o Factors discussed above. ~Refusal to allow reasonable release time. Unfair Labor Practices ~How does an unfair labor practice (ULP) charge typically proceed? o Complaint filed with PERB. o Initial review and investigation. o Board agent decides whether to issue a complaint. o Settlement conference. o Hearing by administrative law judge with exceptions considered by PERB. o Decision. o Appeal to the Court of Appeal. Unfair Labor Practices ~PERB has broad discretion to take action and issue orders as necessary to effectuate the purposes and policies of the statutes it administers. o Cease and desist order. o Restoration of the status quo. o Back pay where appropriate. o Reinstatement where appropriate. o This year (2011)the Legislature prohibited PERB from awarding damages for an illegal strike.(5B 857.) Unfair Labor Practices ~The statute of limitations period for filing unfair labor practice charges is generally six months. Unfair Labor Practices ~The most common unfair labor practices for Management: o Unlawful unilateral change in wages,hours and working conditions. o Discrimination against employees because of protected activity. o Interference with protected rights of employees,including the right to be represented by a union. o Direct dealing. o Denial of employee organization right to represent employees,access work locations,reasonable means of communications,receive information and release time. o Bad faith bargaining. Unfair Labor Practices ~Most common unfair labor practices for •unions: o Bad faith bargaining. o Direct dealing. o Violation of the duty of fair representation owed to unit employees. Conclusions ~The rights of employees to form unions, negotiate over the terms of employment and to be free of discrimination based on protected union activity is firmly established in California. ~It is unlawful under the MMBA to take unilateral action changing a mandatory subject of bargaining without giving notice to an affected employee organization and an opportunity to meet and confer over the change. Conclusions ~Prepare and allow sufficient time for negotiations o Staff needs to gather and analyze information on finances,current legal issues,past employment disputes and compensation in comparable juri sd ictions. o City Council and the bargaining team need to meet to set the expectations for negotiations,understand the process,determine the goals for negotiations and establish the limits of the bargaining team's authority. Conclusions ~Prepare and allow sufficient time for negotiations o Typically,negotiations need to start several months before the start of the new fiscal year and should be integrated with the budget process. o Strive to achieve an agreement but allow sufficient time for impasse procedures. --o ::s .11'