Labor Relations: The Meet and Confer Process

PERB decisions have found an agency’s failure to provide an affected employee association proper notice and an opportunity to bargain over foreseeable effects on managerial decisions to be unfair labor practices in violation of the MMBA. Accordingly, we recommend that an agency provide advance notice to employee associations of any managerial decisions that may have an impact/effect on matters within the scope of representation. Providing such notice will ensure that the employee association has an opportunity to request impact/effects bargaining in order to avoid any potential unfair practice charges.

LCW Practice Advisor

a. Contracting Out and Transferring Work Out of the Bargaining Unit The decision to contract out bargaining unit work is typically a mandatory subject of bargaining. 170 But where the decision to contract out is based on considerations other than labor costs, it is outside the scope of negotiation. 171 In Professional Engineers of California Government v. California Department of Personnel Administration , PERB found that to force mandatory bargaining where the decision to contract out is based on considerations other than labor costs would allow unions to be involved in decision-making beyond their own interests in wages and hours. 172 In this case, PERB provided an example whereby the state may want to hire a particular private firm for disposal of hazardous waste on the grounds that it has better equipment, is better equipped to take on the risk of liability, and has more expertise than state employees, even though the outside firm would not be more economical. 173 Since this decision would not turn on labor costs, it was not subject to meet and confer requirements. An employer, however, is required to meet and confer over the decision to contract out where the decision is motivated by the desire to reduce labor costs, or by other issues suitable for resolution through collective bargaining, such as employee morale, level of service and conflicts with management. 174 For example, in Rialto Police Benefit Assn. v. City of Rialto , the Court of Appeal ruled that a City’s decision to contract out its Police Department and law enforcement services to the County Sheriff’s Department was a mandatory subject of bargaining. The Court made this determination after noting that such action would have a significant impact on wages, hours, and working conditions of affected employees at the Police Department and that this outweighed any management rights the City may have in this regard. The Court noted that where labor costs and other economic matters are significant factors in the decision to contract out, the collective bargaining process with the affected bargaining unit may provide a forum to address such concerns to seek a resolution through concessions or other action in lieu of the ultimate decision to contract out the bargaining unit work. 175 Also, in County of Kern and Kern County Hospital Authority , 176 PERB found that the Kern County Hospital Authority (“Authority”) unilaterally contracted with an outside company to provide services that represented medical assistants traditionally performed, even though the services were being performed at newly opened clinics where represented employees had never

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 28