Meyers-Milias-Brown Act

Also known as MMBA

Gov. Code sections 3500-3511

Local provisions IBEWR

IBEW v City of Gridley (1983) 34 Cal.3d 191; Huntington Beach Police Officers Ass'n v City of Huntington Beach (1976) 58 Cal.App.3d 492; County of Amador (2013) PERB Dec. No. 2318M, 38 PERC 23.

8 Cal Code Regs §§61000–61630.

Scope of representation

Gov. Code 3504 Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608. Anaheim Union High School District (1981) PERB Dec. No. 0177E [5 PERC ¶ 12148] Claremont Police Officers Ass'n v. City of Claremont (2006) 39 Cal.4th 623

Duty to Bargain

Gov. Code 3505

An unfair practice to refuse or fail to negotiate in good faith. Gov. Code 3506.5(c) 8 Cal Code Regs §§32603(c), 32604(c), 32606(c), 32607(c), 32608(c), 32609(c), 32610(c), 32611(c).

Good faith bargaining requires a genuine effort to reach agreement. Placentia Fire Fighters v City of Placentia (1976) 57 CA3d 9. Negotiations must continue until agreement is reached, or negotiations have reached impasse. Public Employment Relations Bd. v Modesto City Schs. Dist. (1982) 136 CA3d 881. Examples of "bad faith bargaining" include "surface bargaining" with no effort at compromise; unreasonably delaying bargaining sessions; not giving negotiators enough authority; reneging on a tentative agreement; or attempts by either side to bypass negotiators, such as a union's dealing directly with the employer's governing body or the employer negotiating directly with employees. See City of San Jose (2013) PERB Dec. No. 2341M, 38 PERC 94; Chino Valley Unified Sch. Dist. (1999) PERB Dec. No. 1326, 23 PERC 30097; Oakland Unified Sch. Dist. (1983) PERB Dec. No. 0326E, 7 PERC 14195; Walnut Valley Unified Sch. Dist. (1981) PERB Dec. No. 0160E, 5 PERC 12038. However, it is not bad faith to fail to reach agreement on mandatory subjects, as long as a good faith effort has been made and impasse procedures have been exhausted. See City of Davis (2018) PERB Dec. No. 2582M, 43 PERC 51; State of Cal. Dep't of Forestry & Fire Protection (1993) PERB Dec. No. 0999S, 17 PERC 24112; Davis Joint Unified Sch. Dist. (1984) PERB Dec. No. 0393E, 8 PERC 15136. It also is not bad faith to refuse to negotiate over a nonmandatory subject of bargaining. Berkeley Unified Sch. Dist. (2012) PERB Dec. No. 2268E, 37 PERC 7; Lake Elsinore School Dist. (1986) PERB Dec. No. 0603E, 11 PERC 18022. Whether conduct satisfies the duty to bargain is measured by the totality of circumstances. See Fresno County In-Home Supportive Servs. Pub. Auth. (2015) PERB Dec. No. 2418M, 39 PERC 133; Muroc Unified Sch. Dist. (1978) PERB Dec. No. 0080E, 3 PERC 10004. See also Zerger, California Public Sector Labor Relations, chap 6 (2018) for a detailed summary and citations to leading cases defining the duty to bargain in good faith and indicia of bad faith.

It is "per se" bad faith for the employer unilaterally to change the terms and conditions of employment that are within the scope of representation without providing the exclusive representative with notice of the proposed change and the opportunity to negotiate over it. See California State Employees Ass'n v Public Employment Relations Bd. (1996) 51 CA4th 923; Fairfield-Suisun Unified Sch. Dist. (2012) PERB Dec. No. 2262, 36 PERC 176. Stockton Police Officers Ass'n v City of Stockton (1988) 206 CA3d 62. The employer may unilaterally implement a proposed change only after negotiations have reached an impasse and impasse procedures (see §21.26) have been exhausted without an agreement being reached. Public Employment Relations Bd. v Modesto City Schs. Dist. (1982) 136 CA3d 881. However, if the employer notified the union of the proposed change and the union did not request to negotiate within a reasonable time thereafter, the employer may implement the change without negotiations. Metropolitan Water Dist. of So. Cal. (2009) PERB Dec. No. 2055M, 33 PERC 144. If the proposed change addresses a matter already covered by the current collective bargaining agreement, the unilateral change may also be a contract violation, over which a grievance may be filed.

PERB

PERB has exclusive initial jurisdiction to hear and decide whether any of the statutes it administers has been violated. Such unlawful acts are termed "unfair practices." Govt C §3509(b) (MMBA);

They generally include claims that either party has violated its duty to bargain in good faith or to participate in the required impasse procedures, that the employer or the union has taken reprisal against an employee for activity protected by the statute, that the employer has interfered with the union's representation activities, or that the union has violated its duty of fair representation. Govt C §§3506.5, 3509(b) (MMBA);

Unfair practice proceedings are governed by regulations adopted by PERB. 8 Cal Code Regs §§31001–32980. A charge alleging that an unfair practice has been committed must be filed in one of PERB's three regional offices within 6 months after the alleged unfair practice occurred. Govt C §3514.5 (Dills Act); Govt C §§3524.55(a)(1), 3524.72 (JCEERA); Govt C §3541.5 (EERA); Govt C §3563.2 (HEERA); Coachella Valley Mosquito & Vector Control Dist. v PERB (2005) 35 C4th 1072 (MMBA); Govt C §71639.1(c) (TCEPGA); Govt C §71825(c) (TCIELRA). A charge must be in writing, identify the charging party and the respondent, be signed by the charging party, identify the statutory sections allegedly violated, and include a clear and concise statement of the facts and conduct alleged to be unlawful. It must state whether a grievance has been filed on the same conduct and if the collective bargaining agreement provides for binding arbitration, so that PERB may determine whether it must defer the matter to arbitration. 8 Cal Code Regs §32615. Forms and information for filing unfair practices charges can be found on PERB's website: https://www.perb.ca.gov. A PERB agent reviews the charge to determine whether it states a prima facie violation of the statute. The agent has authority to issue a "complaint" or to dismiss the charge because it fails to state a prima facie case, it is untimely, or it must be deferred to arbitration under an agreement's grievance procedure. 8 Cal Code Regs §32620. PRACTICE TIP: The agent's decision not to issue a complaint may be appealed to the Board itself. 8 Cal Code Regs §32635. The Board's decision not to issue a complaint may be appealed to superior court by means of a petition for writ of mandate under CCP §1085. International Ass'n of Fire Fighters v Public Employment Relations Bd. (2011) 51 C4th 259.

If a complaint issues, a PERB administrative law judge (ALJ) conducts an evidentiary hearing. 8 Cal Code Regs §§32168–32170. Following the hearing and submission of closing arguments, the ALJ issues a proposed decision. 8 Cal Code Regs §32215. The ALJ's proposed decision becomes final if neither party files exceptions (i.e., appeals the decision to the Board). 8 Cal Code Regs §§32215, 32300. In reviewing the ALJ's proposed decision, the Board does not hold an evidentiary hearing, but may allow oral argument. 8 Cal Code Regs §32315. The Board may adopt the ALJ's decision as its own decision or may issue a full opinion resolving all legal and factual issues. 8 Cal Code Regs §32320(a). On appeal, the Board applies a de novo standard of review, but defers to the ALJ's credibility determinations based on observation of witness testimony. Anaheim Union High Sch. Dist. (2016) PERB Dec. No. 2504E, 41 PERC 80; Santa Clara Unified Sch. Dist. (1979) PERB Dec. No. 104E, 3 PERC 10124. The ALJ or the Board may order any remedy that effectuates the purpose of the applicable statute, including an order to cease and desist the unlawful conduct, or to make an affected employee whole through reinstatement and back pay. Govt C §3514.5(c) (Dills Act); Govt C §3524.55(c) (JCEERA); Govt C §3541.3(i), (n) (EERA); Govt C §3563.3 (HEERA); Govt C §3509(a)–(b) (MMBA); Govt C §71639.1(b)–(c) (TCEPGA); Govt C §71825(b)–(c) (TCIELRA); Pub Util C §99561(h), (m) (TEERA); 8 Cal Code Regs §32325. Board monetary remedies are traditionally limited to back pay and benefits, including interest. Attorney fees may be awarded only when the charge "is without arguable merit and pursued in bad faith." City of Alhambra (2009) PERB Dec. No. 2036M, 33 PERC 103. Decisions of the Board are precedent for future cases under PERB's jurisdiction. 8 Cal Code Regs §32320(c). Effective July 1, 2013, a Board decision reviewing an agent's decision not to issue a complaint is not precedential unless so designated by a majority of the Board members participating in the decision. 8 Cal Code Regs §32320(d). Unappealed ALJ decisions are binding on the parties to the dispute, but are not precedent-setting and may not be appealed to a court. 8 Cal Code Regs §§32215, 32305(a).