You Say “Confer,” I Say “Consult.” Let’s Not Call the Whole Thing Off

March 17, 2017 by Andrew Baker

The Meyers-Milias-Brown Act imposes on covered public employers an obligation both to “meet and confer” and to “consult” with recognized employee unions. Do the different words mean there are two different bargaining obligations? Not really is the conclusion of PERB and a recent court decision upholding PERB. City of Palo Alto v. PERB., 5 Cal. App. 5th 1271 (Nov. 23, 2016), review denied (Mar. 15, 2017).

Section 3505 provides that covered employers “shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment.” Section 3505 describes that “ ‘[m]eet and confer in good faith’ means that [the employer and union] shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions, and proposals, and to endeavor to reach agreement on matters within the scope of representation.…”

On the other hand, section 3507 operates to restrict a public agency from adopting reasonable rules and regulations for the administration of employer-employee relations unless it first has a “consultation in good faith” with recognized employee organizations. Section 3507 does not specifically describe the “consultation in good faith” process contemplated by the statute.

So what’s the difference between “meet and confer” and “consult”? According to PERB, not much. And in a recent court decision, the court of appeal affirmed PERB on this.

The case arose when a firefighters union challenged a city’s failure to “consult” prior to placing a measure to repeal interest arbitration on the local ballot. PERB ruled that the city had failed to meet its obligation to consult with the union about the measure before placing it on the ballot. The city appealed. But the court of appeal affirmed PERB’s decision, and, in particular, rejected the city’s argument that “consult” should mean something substantively different from “meet and confer.”

The court approved PERB’s conclusion that the process mandated by section 3507 is “very much like” the process mandated by section 3505. PERB articulated that the process mandated by section 3507 requires certain obligations in the conduct of consultation, which include an obligation to “endeavor to reach an agreement.”

PERB, however, expressly declined to consider the question, not presented by the current case, of whether disagreements resulting from the “consultation” process are subject to the same impasse resolutions procedures as are impasses arising out of the “meet and confer” process. That question remains open for resolution another day.

 

Read the decision here: http://www.courts.ca.gov/opinions/documents/H041407.PDF

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