EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – In General
Single Topic for Decision 2388M
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602.01000 – In General
MMBA section 3507 prescribes a different scope of consultation from that under section 3505, because in section 3507, the Legislature stated with particularity those subjects for consultation. A policy change subject to the duty to meet and confer and implemented without meeting and conferring, is a fait accompli, which, if left in place, would compel the union to “bargain back” to the status quo and make impossible the give and take that are the essence of good faith consultation. A party seeking to meet and confer initiates the process by making a request therefor. The request need not be stated in particular terms, but must place the responding party on notice of the subject over which discussions are sought. The requirement of a request to bargain was a low threshold, designed not for gamesmanship, but merely to assure that an employer would not be found in violation of its statutory duty to negotiate in the absence of notice that its employees through their representatives desired to bargain. It is ultimately the employer’s awareness of an employee organization’s desire to bargain which is crucial. While typically we infer such awareness, or lack thereof, from the words used in the employee organization’s negotiating demand, such awareness may exist apart from the employee organization’s demand. In such a case, it is appropriate to enforce the employer’s duty to negotiate notwithstanding the words chosen by the organization. Whether an employer is aware of an employee organization’s desire to bargain is to be determined from the facts on a case-by-case basis. Where an employer believes that the subject over which an employee organization desires to meet and confer exceeds the employer’s duty to meet and confer, or an employer is otherwise in doubt as to its meet and confer obligation, the employer must seek clarification. Such clarification should occur within the meet and confer process, not merely by the exchange of legal positions through correspondence or in comments between party representatives at public meetings of the governing authority of the agency. Upon receiving the union’s request or becoming aware of the union’s wish to meet, the City’s obligation was to offer to meet and discuss the City’s position that the issue on which the union sought to meet was beyond the scope of representation. A party subject to the duty to meet and confer in good faith must fulfill its duty to meet and confer in good faith before changing a matter within the scope of representation. A party subject to the duty to meet and confer in good faith may not resort to “self-help” until after exhausting its meet and confer duty. In The People ex rel. Seal Beach Police Officers Association et al., v. City of Seal Beach et al. (1984) 36 Cal.3d 591, the Supreme Court held that the MMBA duty to meet and confer in good faith is a matter of statewide concern and as such prevails over local enactments of a charter city concerning matters that might otherwise be deemed a strictly municipal affair. In The People ex rel. Seal Beach Police Officers Association et al., v. City of Seal Beach et al. (1984) 36 Cal.3d 591, the court reasoned that a charter city employer could not avoid its MMBA meet and confer obligations by exercise of its right to propose charter amendments. Rather, a charter city, like the City here, must comply with its MMBA obligation before referring to voters for approval of a ballot measure on a subject over which the charter city was obliged by MMBA to meet and confer.