The City of Palo Alto had a provision in its City Charter, Article V, which established binding interest arbitration as the mechanism for resolving an impasse in negotiations with organizations representing police and fire personnel. In 2010, the City Council directed staff to prepare a measure to be placed on the November 2010 ballot to repeal Article V. Representatives of the organizations representing the City's police and fire employees, including the International Association of Firefighters, Local 1319, AFL-CIO (Local 1319), sent letters to the City's Human Resources Director, requesting to meet and confer over the proposed change. The HR Director responded that interest arbitration provisions were permissive, not mandatory, subjects of bargaining, and therefore, the City was not required to meet and confer.
On May 3, 2011, the City's Interim HR Director informed Local 1319's President, Anthony Spitaleri, that the Council's Policy and Services Standing Committee (PSS Committee) would meet to discuss a ballot measure to modify or repeal Article V. Spitaleri asked whether the HR Director's communication was a request to meet and confer. Spitaleri did not receive a response.
Through June and July, 2011, the City continued to advise Spitaleri of PSS Committee meetings wherein the interest arbitration issue would be discussed. At the same time, the City submitted reports to the Council concluding that the City was not required to meet and confer with employee representatives because interest arbitration was not a mandatory subject of bargaining.
On July 18, 2011, the Council met to consider recommendations from the PSS Committee. The City Attorney submitted a report the again opined that meeting and conferring was not necessary. The report also stated that the City had provided the police and fire unions the opportunity for "informal discussion and comment," but no oral or written comments were received. During public comment, Spitalieri requested that the Council adhere to Government Code section 3507, part of the Meyers-Milias-Brown Act (MMBA), and "consult in good faith" over the interest arbitration issue. Following public comment, the Council approved submitting a ballot measure to repeal Article V and approved an ordinance requiring non-binding mediation of collective bargaining impasses.
Local 1319 filed an unfair practice charge with the Public Employment Relations Board (PERB) on July 28, 2011. On November 8, 2011, a majority of voters approved the repeal of Article V.
Government Code section 3505 sets out the parameters of a public agency's obligation to meet and confer in good faith with recognized employee organizations. Pursuant to section 3505, a public agency must "meet and confer" in good faith with a recognized employee organization regarding wages, hours, and other terms and conditions of employment. However, section 3507 provides that a public agency may adopt reasonable rules and regulations for the administration of employer-employee relations after "consultation in good faith" with representatives of a recognized employee organization. Thus, PERB considered whether the duty to "consult in good faith" under section 3507 is the same as the duty to "meet and confer in good faith" under section 3505.
The ALJ concluded that the consultation process under section 3507 is the same as the meet and confer process under section 3505. PERB agreed and held that the consultation process under 3507 is "very much like" the meet and confer process under section 3505. PERB concluded that pursuant to section 3507, a public agency must (1) provide reasonable notice to each employee organization affected by the rule or regulation proposed for adoption or modification by the agency; and (2) provide each organization a reasonable opportunity to meet and discuss the rule or regulation prior to the agency's adoption. PERB also concluded that section 3507 requires both sides to meet and confer promptly upon request of either party, continue meeting and conferring for a reasonable period of time and endeavor to reach agreement.
PERB also concluded that the "scope" of the duty to consult under section 3507 was not the same as the scope of meeting and conferring under section 3505 because section 3507 specifically identifies subjects for consultation. PERB concluded that the specific matters that must be consulted upon under section 3507 were "mandatory subjects" for consultation. PERB explained that the mandatory subjects of bargaining under section 3505 is limited to wages, hours, and terms and conditions of employment, but the mandatory subjects under section 3507 relate to the system of collective representation. PERB held that section 3507 required the City to consult over the issue of binding interest arbitration. Thus, the City was required to consult regarding its decision to modify or repeal Article V, even though it could have lawfully declined to meet and confer under section 3505 over a proposal to include an interest arbitration provision in an MOU. In other words, while interest arbitration may be a permissive subject for meeting and conferring under section 3505, it is not a permissive subject under section 3507.
Finally, the ALJ concluded that the City afforded Local 1319 reasonable notice of the City's intention to amend the Charter, that Local 1319 did not request consultation until July 18, 2011, thus waiving its right to consult, and that the City did not violate section 3507. PERB disagreed with the ALJ. PERB found that, as early as July 2010, Local 1319 requested in writing to meet and confer, and still wished to discuss the proposed changes as of the June 20, 2011 meeting. However, the City consistently denied that it had any duty to meet and confer. PERB concluded that the City was aware that Local 1319 sought to meet with City representatives, was obliged to meet with Local 1319, but failed and refused to do so in violation of section 3507. PERB also found that these facts failed to support a conclusion that Local 1319 waived its right to consult in good faith. Finally, PERB found that the City did not satisfy its duty to consult by merely allowing Local 1319's representatives to address the Council during the comment portion of the public meetings.
PERB ordered the City to meet and confer with Local 1319 over modification or repeal of Article V, and to rescind the July 18, 2011 action referring to City voters a measure to repeal Article V.
This decision provides a definition for the phrase "meet and consult". In this decision, PERB clarifies that the duty to consult under section 3507 is virtually identical to the duty to confer under section 3505. However, though the duties may be indistinguishable, the subjects that must be discussed under each statute are different. Agencies should not assume that a permissive subject of bargaining under section 3505 is necessarily a permissive subject of consultation under section 3507. For example, the interest arbitration procedures at issue in the decision is a permissible subjects of bargaining under section 3505, but a mandatory subject for purposes of consultation under section 3505.
City of Palo Alto (2014) PERB Decision No. 2388-M, __ PERC ¶ ___.