EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE – In General

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750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
750.01000 – 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. PERB’s jurisdiction arises under MMBA section 3509(b), which provides: A complaint alleging any violation of this chapter or of any rules and regulations adopted by a public agency pursuant to section 3507 or 3507.5, shall be processed as an unfair practice charge by the Board. 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). Where a charter city without prior good faith consultation acts unilaterally to adopt or amend its rules and regulations for the administration of employer employee relations, whether the unilateral action is direct by adoption of an ordinance or indirect by referring a charter amendment for voter approval, the unilateral action violates MMBA section 3507 and gives rise under section 3509 to the Board’s authority as described in EERA section 3541.5 “to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter.” The extent to which local regulation of employment matters as prescribed by the charter might be superseded by matters of statewide concern as set out in the MMBA is a matter properly decided in the first instance, by PERB. Exercising this authority, we decide that our precedents compel the result we reach, viz., that in addition to cease and desist orders, affirmative relief is also appropriate, including an order directed to the City itself to rescind the City’s action of July 18, 2011, referring to voters of a measure to repeal Article V of the Charter, coupled with an order directed to the City itself to consult in good faith upon request.