Collective Bargaining Alisa A Blandford Assistant City Attorney
Collective Bargaining Alisa A. Blandford Assistant City Attorney for the City of Phoenix
Overview Federal State Law Phoenix City Code Bargaining Unfair Process and Prohibited Practices
Collective Bargaining: What is it? A process of negotiation between employers and a group of employees aimed at agreements to regulate salaries, working conditions, benefits, and other aspects of compensation and rights.
Federal Law: NLRA The NLRA is limited to private employers; it expressly excludes public sector employees. Historically, public sector employers had no statutory duty to engage in collective bargaining. There is no federal standard for public sector bargaining. The responsibility to bargain or not bargain for public sector employers lies in State and local laws.
Federal Law: NLRA NLRB decisions may offer guidance on employer actions and be persuasive even if not controlling. “Borrowed” language Social media policies NLRA and NLRB may come into play when dealing with private contractors. Uniform deviations Protests Inadvertent or intentional employee involvement
State Law: Right to Work Generally, “Right to work” laws prohibit the use of union membership or non-membership as a condition for getting hired. Arizona is a “Right to Work” state. This means that if employees decide to form or join a union, employees may not be fired if they decide not to join. Similarly, employees may not be fired for resigning their union position or membership.
State Law: Illegal Contracts A. R. S. §§ 23 -1302 & 1303: Prohibits the state, subdivisions thereof, corporations, individuals, and associations of any kind from entering into an agreement which excludes a person from employment or continuation of employment because of membership in a labor organization. Any such agreement is illegal and void. A. R. S. § 23 -1341: Any contract or agreement between an employer or employee where either party “promises not to join, become or remain a member of any labor organization or of any organization” or either party “promises that he will withdraw from the employment relation in the event he joins, becomes or remains a member of a labor organization or of an organization of employers, ” is contrary to public policy and void.
State Law: Illegal Conduct (A. R. S. § 23 -1303, et seq. ) Striking or picketing to force an employer to make a contract. Picketing unless there is a bona fide dispute between the employer and the majority of employees. Picketing to coerce an employer or self-employed person to join or contribute to a labor organization. Using threats to compel an employee to join a labor organization, to strike against his will, or to leave his employment. Discharging or denying employment because the person is not a member of a labor organization.
State Law: Illegal Conduct (A. R. S. § 23 -1303, et seq. ) Trespassory assembly Unlawful mass assembly Concerted interference with lawful exercise of business activity Engaging in a secondary boycott Defamation of the employer Blacklisting (A. R. S. § 23 -1361) Where the names of employees are communicated between two or more employers of labor so as to prevent the laborer from engaging in useful occupation. It is not unlawful for a former employer to provide a requesting employer information concerning a person’s education, training, experience, qualifications, and job performance to be used for the purpose of evaluating the person for employment.
State Law: Public Safety Employees A. R. S. § 23 -1411: Public safety employees serving any city, town, county or fire district in this state have the right to join employee associations which comply with the laws of this state and have freedom to present proposals and testimony to their respective governing body and their representatives. Public safety employees may not be discharged, disciplined, or discriminated against because of the exercise of these rights. This section does not compel or prohibit any employee wage and benefit negotiations.
Local Law: Phoenix City Code, Chapter 2, Article XVII, § 2 -209 et seq. , sets forth the law, rules, and guidance on the Collective Bargaining process for the City of Phoenix. Modified by some contractual provisions contained within the individual labor contracts. Initially approved by City Council in May of 1976.
City of Phoenix City Code: Phoenix Employee Relations Board Administrative body responsible for the enforcement of the City Code and Rules and Regulations regarding Labor. Essentially a local NLRB appointed by the Mayor and City Council. General Duties: Responsible for Certification, Decertification, Amendment of Certification, and Unit Clarification. Responsible for proceedings alleging an Unfair Employee Relations Practices of Prohibited Practice under the City Code. Responsible for ensuring compliance with or determining a violation of the Qualification of Employee Organization. Responsible for Proceedings to handle the Resolution of Impasses.
City of Phoenix City Code: Labor Landscape Five Meet and Confer Units Two Meet and Discuss Units Confidential employees who might otherwise fall into one of these groups Executives and Middle Managers
City of Phoenix City Code: Meet and Confer Process Meet and Confer = Collective Bargaining Pursuant to City Code, the City must engage in the Meet and Confer process with Units 1 through 5. Contracts are limited to no more than three years. 2016 -2019 contracts are the first time the contracts have not been for two years.
City of Phoenix City Code: Meet and Confer Definition Performance of the mutual obligation of the public employer and the employees’ authorized representatives to meet at reasonable times, including meetings in advance of the budget making process; and to confer in good faith with respect to wages, hours and other terms and conditions of employment or any question arising thereunder, and the execution of a written memorandum of understanding embodying all agreements reached, but such obligation does not compel either party to agree to a proposal or the making of a concession. The meet and confer process shall be completed in all instances on all economic items prior to the date set by law for tentative adoption of the annual budget. The duty to meet and confer includes the duty to submit any agreement reached on these matters to the public employer for action.
Meet and Confer: “Duty to meet at reasonable times” For two contracts, the City must notify the labor organization that they wish to terminate the contract by December 1 in the year prior to bargaining. “Evergreen clause” Union proposals may be submitted as soon as December 1 in the year prior to bargaining. Bargaining begins on January 1 in the year that contract expires. Bargaining must be completed by March 1.
Meet and Confer: Mandatory subjects of bargaining “Wages, hours and other terms and conditions of employment. ” All provisions and subjects contained within the MOU are mandatory subjects of bargaining.
Meet and Confer: Economic Items Bargaining and agreements on economic items are limited by the Code to the Meet and Confer Process. Bargaining on economic items must be completed by the first week of June. Economic items basically encompasses anything that costs or would require reallocation of money.
Meet and Confer: Duty to Submit Agreements are made through the Meet and Confer process between the employer and association representatives. At the end of the bargaining period, these agreements are incorporated into the labor contract. These agreements can add to, subtract from, or modify the labor contract. The final draft of the contract must be submitted to the Mayor and Council for approval. The contract is not effective until the City Council has approved it through a majority vote.
Meet and Confer: Gift Clause Concerns Cheatham v. Di. Ciccio, et al. , 379 P. 3 d 211, 240 Ariz. 315 (Ariz. 2016). A group of taxpayers represented by the Goldwater Institute filed suit against the City and one of its labor groups claiming that the provision in the Memorandum of Understanding that required the City to pay for release time was a violation of the gift clause. “Release time” was defined in contract as paying union members for time they spent on union duties. This provision had been in the contract since 1977. The value of the release time was approximately $1. 7 million out of a $60 million dollar contract.
Meet and Confer: Gift Clause Concerns The Cheatham Court found: Individual contract provisions must be assessed in light of the entire MOU and all obligations imposed. However, the provisions are still subject to a gift clause analysis. “In applying the ‘consideration’ prong of the Gift Clause, just as in assessing the ‘public purpose, ’ courts must give deference to the decisions of elected officials. ” “Our conclusion that the release time provisions do not violate the Gift Clause reflects our consideration of the MOU in its entirety, viewed in light of the City’s Meet and Confer Ordinance. From this perspective, we cannot find that the City Council abused its discretion in determining that the MOU, including its release time provisions, serves a public purpose and that the City’s payments are reasonable in light of the benefits it receives. We do not comment on the desirability of such provisions as a matter of labor relations or public policy. ”
Meet and Confer: What if no agreement is reached? If no agreement is reached by March 1, the parties must request that the matter be submitted to formal mediation. PERB shall apprise the Federal Mediation and Conciliation Service (FMCS) of the impasse and request that a mediator be assigned to the case. If the FMCS is unable to assist in a timely manner, the American Arbitration Association shall be contacted to assist. Historically, the parties have reached out to the FMCS for assistance through the Meet and Confer process, which has also caused the formal mediation process to be limited in duration. Mediation continues in some fashion until either an agreement is reached or the final deadline for contract adoption.
Impasse: What if no agreement is reached? If an agreement on all items in dispute, including economic items, is not reached by March 1, PERB is notified and Impasse is declared. The parties are furnished with a list of “not less than five qualified fact-finders”. Fact-finders are found through FMCS and the list of hearing officers maintained by PERB. For every Unit, a fact-finder is chosen to preside over the fact finding hearing. Fact finding hearings must commence “within five working days of notification by the Board of his or her selection. ” The parties can refer the matter directly to City Council if formal mediation fails and avoid the fact-finding process.
Fact Finding: What if no agreement is reached? Administrative hearings – Fact Finding hearings - are held. There are few if any rules or guidelines for the conduct of the hearings. A report and advisory recommendation is issued by the factfinder. The parties have five days to reach agreement, otherwise the report is forwarded to the City Council. Thereafter, PERB may assist the parties to effect a resolution of the dispute. Deadline for reaching agreement is April 14.
City Council: What if no agreement is reached? If no agreement has been reached by April 14, the matter is submitted to City Council will conduct public hearings. Within 10 days of the conclusions of the public hearings, the City Council “shall take such action as it deems to be in the public interest. ” This can include imposition of Terms and Conditions of Employment. This has only happened once: 2014 -2016 Contract year with one Meet and Confer Unit.
Meet and Discuss: What about the others? The Meet and Discuss units begin negotiations no later than March 1 of the bargaining year. The parties may adopt informal dispute resolution procedures during this process. If agreements are not reached by April 15, either or both parties may request a mediation be assigned to resolve disputes. The City shall contact the FMCS for a list of five qualified mediators. The formal mediation period is no more than 15 days. If no agreement is reached, the matter is submitted to the City Manager, who “shall take such action as he deems is in the public interest. ”
Bargaining Process: Outside the Meet and Confer During the terms of the contract, the City and the labor units can meet to try to resolve ongoing labor issues, including modifications to the labor contracts themselves. Why: Some issues are too complicated to be completed in the formal process. Some issues are new. Some are not important enough to have a place at the table. If agreement is reached, the parties sign side agreements which are incorporated into the next labor contract. Economic issues are excluded from this informal processes.
City Code: Meet and Confer: Unfair Employee Relations Practices The City is prohibited from: Refusing to meet and confer with an authorized representative of the employees. Discussing with members of City Council negotiation issues in dispute from the time the dispute is submitted to the fact-finding process (on or about March 8) and extending to the time that the fact-finder’s report is made public (on or about April 12). Employee organizations are prohibited from: Refusing to meet and confer with the employer. Discussing negotiation matters with members of the City Council from the time the organization makes its presentation to Council (on or about December 8) until the presentation of issues to the City Council (on or about April 19).
City Code: Meet and Confer: Prohibited Practices Employees shall not engage in, initiate, sponsor, or direct a strike. Employees shall be prohibited from engaging in, initiating, or sponsoring, directly or indirectly, picketing of the public employer or any of its property in furtherance of a strike.
City Code: Meet and Discuss: Prohibited Practices The employer is prohibited from: Refusing to meet and discuss with representatives of an authorized employee association as set forth in this Division. Authorized employee associations are prohibited from: Refusing to meet and discuss with representatives of the employer as set forth in this Division. Discussing meet and discuss matters with the Mayor or members of the City Council during the meet and discuss process.
Labor Lessons: We still need to be aware of the NLRA and NLRB decisions. Employers tend to have the most protections. When labor relations are governed by the municipalities’ own regulations, there is a lot of flexibility. Rules, regulations, and time limits are a good thing. Elected official approval can protect against other legal challenges.
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