Labor Relations: The Meet and Confer Process

Recognized employee organizations may also negotiate for equity increases based on the “market rate.” Because public sector compensation is public information and therefore accessible, an agency may compare its compensation to that of other comparable public agencies, in order to determine the market average or market median. This type of survey may provide a foundation for negotiation of wage increases.

Examples of wage provisions subject to the meet and confer requirement include:

 A change in wages paid to employees for after-hours work for the public agency unrelated to their jobs. 183  A change in practice on timing of a merit increase in relation to probationary period. 184 i. Retroactivity When bargaining extends past the date of the expiration of the contract, an employee organization will likely advocate for agreed-upon wage increases to apply retroactive to the day after the expiration of the prior contract. Retroactivity of wage increases is generally allowed to the effective date of successor MOU, and is a required subject of bargaining. 185 One court, however, has found reduction of a wage offer in response to continued impasse was consistent with the employer’s stated position on retroactivity, where reduction for failure to reach agreement within a certain time frame was part of the offer, and thus did not interfere with the organization’s right to bargain or declare impasse. 186 ii. Parity/“Me Too”/Most-Favored Nation Agreements A “me too” agreement is an agreement in an MOU designed to ensure that the union that reaches agreement with the agency first does not get a worse deal than the union that holds out longer. For example, an agency is at the table with Union “A” and “Union “B” and both unions want increases. After a few negotiation sessions, Union “A” agrees to settle with the agency for a certain increase, but Union “B” holds out for a higher increase. Under such agreements, if the agency later negotiates a higher salary or benefit increase with Union “B,” Union “A” will automatically receive the same increase as Union “B” as long as Union “A” has a “me too” provision in its MOU. This type of agreement is not, in and of itself, a per se violation of the agency’s good faith obligation to Union “B.” 187 Although “me too” provisions are not unlawful, they are not recommended. Such agreements may lead to animosity among unions and lead to a challenge that it has an unreasonable burden in its negotiations on behalf of its members. Also, with such agreements, agencies must remember to take into account the cost of these provisions each time a new agreement is negotiated that pertains to one of the affected employee organizations. Finally, a “me too” provision may create confusion when an employer is in negotiations with both organizations simultaneously, but reaches agreement with one before the other, thus raising questions as to the effective date of the increase for the organization without a contract. With their initial proposal, employers should propose that wage increases are effective upon ratification and approval of the agreement, or the expiration of the MOU, whichever occurs later.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 30