EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DUTY TO CONSULT – In General

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607.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DUTY TO CONSULT
607.01000 – In General

A preeminent element of the Legislature’s MMBA policy design for employer employee relations in public agencies is a public agency’s discretion, as provided in MMBA section 3507, to adopt its own rules and regulations for the administration of employer employee relations. In section 3507 the Legislature accorded to employees, through their organizations, a voice in designing their agency’s rules and regulations, mandating that prior to adopting its rules and regulations a public agency “consult in good faith” with employee organization representatives. The Legislature did not prescribe with particularity the consultation process mandated by MMBA section 3507. However, several courts of appeal have provided guidance, concluding that consultation under section 3507 is “indistinguishable” from meeting and conferring under section 3505. Relying on these decisions, we conclude that the consultation process mandated by section 3507 is very much like the meet and confer process described in section 3505) A public agency’s consultation obligations under MMBA section 3507 arise sufficiently in advance of the agency’s adoption of rules and regulations for the administration of employer employee relations, to permit completion of consultation discussions prior to such adoption. Pursuant to MMBA section 3507, a public agency must: (1) provide reasonable written notice to each employee organization affected by the rule or regulation proposed for adoption or modification by the agency; and (2) afford each such organization a reasonable opportunity to meet and discuss the rule or regulation prior to the agency’s adoption. MMBA section 3507 imposes on a public agency and on recognized employee organizations, several mutual obligations in the conduct of consultation, which are to: (1) meet and confer regarding consultation subjects promptly upon the request by either party; (2) continue meeting and conferring for a reasonable period of time in order to exchange freely information, opinions and proposals; and (3) endeavor to reach an agreement. The adoption of rules and regulations concerning either interest arbitration or mediation or both, falls squarely within the public agency’s duty, established by MMBA section 3507, to consult in good faith. In MMBA section 3507, the Legislature stated with particularity those matters a public agency may include in its rules and regulations for administration of employer employee relations, and over which it must consult. We deem these matters to be “mandatory subjects” for consultation pursuant to section 3507(a). A public agency’s decision to modify or repeal interest arbitration procedures contained in its rules and regulations for administration of employer employee relations, is subject to the public agency’s consultation duty pursuant to MMBA section 3507, even though a public agency may decline lawfully to meet and confer under section 3505 over a proposal to include an interest arbitration provision in an MOU governing wages, hours and other terms and conditions of employment of agency employees. The City was aware that the union sought to meet with City representatives to discuss the City’s proposed changes to the interest arbitration procedures in the City’s rules and regulations for the administration of employer-employee relations. That being so, we conclude further that the City was obliged to meet with representatives of the union, either to discuss and exchange proposals regarding the City’s proposed changes to the interest arbitration procedures or to clarify the City’s position that the proposed changes to its interest arbitration procedures were a permissive subject of meeting and conferring. By failing to offer to meet with the union’s representatives, the City violated its consultation duty under MMBA section 3507. Like the City’s duty to meet and confer in good faith under MMBA section 3505, its duty to consult in good faith under section 3507 is not satisfied merely by permitting organizational representatives to exercise rights accorded to members of the public to address the Council, or its Policy and Services Standing Committee, in a public session. Absent a valid defense, a party subject to the good faith duty to consult pursuant to MMBA section 3507 must defer action on matters subject to its consultation duty pending exhaustion thereof. An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507. An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507.