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Your MOU . . . Your Union Contract

Most Association members know that they are covered by an MOU (Memorandum of Understanding). This means that they elect leaders who "go to the table" to bargain every few years, at the end of which everyone votes on a new MOU.

When people think of "bargaining," they think of "pay raise" – and maybe a medical allowance or better retirement plan. They generally aren’t concerned with the fact that the MOU is an enforceable contract that requires the City to bargain with your Association before it can make ANY change in "wages, hours, or terms and conditions of employment." In other words, the MOU is the only legal reason that your employer cannot take a wide variety of threatening actions -- from changing your job description to "revising" the Personnel Rules, to replacing you with ‘part-time’ labor. You and your Association DO have the right to "just say no…"

Until fairly recently, city employees’ groups rarely exercised the full power of their MOU’s because enforcement was so difficult: if the City did not agree with our point of view, the only recourse was through the Court system. With the passage of SB739 in 2001, however, local government came under the jurisdiction of the Public Employment Relations Board (PERB). This meant that even small organizations could bring their "unfair practice" claims (i.e. MOU violations) before a state hearing officer, at no cost, within a reasonably short period of time.

So… given that you have a truly enforceable union contract, it might be useful to look closely at what this means. What follows is a summary of major components of most public sector MOU’s. Please keep in mind, however, that MOU’s vary a great deal from agency to agency. If you have specific questions, feel free to call your professional staff at 562-433-6983 or email: cea01@charter.net.

Your right to ‘bargain collectively’ was established in 1968 with the Meyers-Milias-Brown Act (the MMBA.) Over the years, lawsuits have fleshed out the meaning of law, so there is now general agreement on 1) which employees can be covered by a contract; 2) how those employees may be grouped into "bargaining units;" 3) how unions achieve the right to represent them; 4) what subjects are within the "scope" of bargaining; and 5) how a contract can be negotiated and enforced (including what happens when it expires or when bargaining breaks down.)

The Courts have established some fundamental rules: any public employee can be represented by a union, even confidential employees, even managers, even "temps." The MOU has higher authority than other City rules, except a City Charter. It can’t be overturned by a vote of the public. It must be honored, even if the employer has financial crisis. If it expires, the ‘terms and conditions’ remain in force until a new agreement is reached.

The right to bargain extends to all City rules affecting personnel matters -- even departmental rules, even rules which are not written down (These are called "past practices.") As long as your MOU has a "zipper clause" (a provision saying that the MOU is a "total agreement" between the parties and that neither can be forced to bargain on any subject until it expires…) the City cannot change any aspect of "wages, hours, or terms and condition of employment" unless your Association agrees to this.

The MMBA does not dictate what subjects are covered in an MOU, but it does say that any aspect of employees’ jobs – or their relationship with their workplace -- is negotiable. It could be as big as your retirement plan or a small as your job description, but it is still negotiable. (In fact, it is negotiable even if the City tells you that it is a "Management Right.")

The "Management Rights" clause of your MOU usually says something to the effect that "the City can do whatever it wants with employees, in order to provide for the needs of the public." Some Managements try to use this clause to bully the Association into giving up its right to bargain on a particular topic, or to stop the Association from objecting when the City is about to take an action which is detrimental to its members. In truth, the phrase "It’s a Management Right" doesn’t mean anything at all, if there are other places in the MOU (or in the law) where that particular subject is addressed. There are NOT very many management rights…

For example, if the Management Rights Clause says "the City has the right to assign duties" but other sections of the MOU refer to job specs or out-of-class assignments, the other sections hold priority. Or, if the Management Rights clause says "the City shall define hours of work," but other provisions detail the work schedules, or the rules for changing schedules, then these other sections hold priority – and are fully subject to bargaining.

Bargaining "Above the Law"

The City may also tell you that you cannot bargain on matters covered by other employment laws. This is false. Even if there are existing laws pertaining to your job -- and even if these laws change, your Association may negotiate benefits or conditions BEYOND these laws. For example, even if the state-mandated payment to injured workers is about 2/3 of their pay, you may be able to negotiate full pay for injured workers. Or, even if the law says that 48 hours of sick leave must be provided to care for family members, YOU may be able to negotiate full use of ALL sick leave for this purpose.

Further, when the state or federal laws change, and the City tells you that it must change your job in order to comply with the law, the City STILL has to negotiate with you. For example, if the Department of Transportation changes its drug testing policies for truck drivers, the City still must negotiate with your association before it can implement the changes.

Unfair Bargaining…

Of course, the right to bargain and the power to accomplish your goals (in the form of a written contract) are two different things. Public employee unions are truly only as strong as: 1) their membership, and 2) their political connections, and anyone who believes that Labor and Management are equals at the bargaining table is a bit out of touch with reality. However, the fact that you HAVE a union contract and are covered by the MMBA means that your employer must bargain fairly. If your Management is NOT bargaining fairly (i.e. "surface" bargaining or refusing to come to closure, or conditioning benefits on the waiver of rights, making changes in your contract without bargaining, or retaliating against the bargaining team) you have the ability to STOP these practices by filing a claim with PERB (the Public Employment Relations Board.)

Since cities, counties, and water districts came under PERB’s jurisdiction in 2001 unfair bargaining has diminished greatly.

"Recognition"

The MMBA protects your right to join the labor organization which represents you -- without retaliation. It requires the City to allow time off the job for "a reasonable number of representatives" to participate in contract negotiations. It grants your union the right to use City facilities for meetings, City bulletin boards and, now, thanks to recent PERB cases, the City e-mail for internal communications. If you have an MOU, the law requires the City to cooperate with dues deductions, and (if your members wish) to enforce your Agency Shop. More importantly, the MMBA allows your association to be recognized as the "exclusive legal representative" of all of the job classes covered by the MOU.

In the early days of unions, the "recognition" clause was called the "union security" clause of the Contract. It literally secured the benefits of those who were inside the union – and tried to make sure that these were NOT extended to people on "the outside." In the old days, the "Union Security" clause was how we protected the organization from "being busted," which meant giving our work to non-union employees. As financial times become difficult once again, this section of your contract may need enforcement, as employers attempt to fill jobs with cheap, at-will or part-time labor.

Speaking of enforcement, most MOU’s have a Grievance Procedure which is your first tool for making sure the Contract isn’t violated. Most people think of a "grievance" as something an individual employee files – often because he’s a complainer. But a grievance is also a written statement to your Management that you have identified a violation of your contract and want it corrected. It’s your mechanism for making sure that your rights are not ignored or eroded.

An organization that fails to grieve violations of any member’s rights is in danger of allowing those rights to be "waived" for everyone. This is the reason that the association’s right to file grievances "in its own name" is protected, under the MMBA, a "mandatory subject of bargaining."

A good grievance process will allow you, or your organization, to go ‘up the chain of command,’ ultimately to a professional arbitrator. A weaker procedure will "top out" with a meeting with the City Manager. Most managers understand that respect for the grievance procedure is essential for cooperative labor relations; but if your City is not particularly respectful, then you may take your contract violations to PERB. (PERB does not require that you complete the local grievance process, before filing a "unilateral modification" complaint, by the way…)

A "unilateral modification" is an un-negotiated change. It could be as simple as your city’s attempt to rewrite your job description without bargaining or as sweeping as an un-negotiated furlough.

Finally, in case you haven’t asked this question yet, here it is: WHO GETS TO DECIDE what items you’ll take to the bargaining table or whether you will file a grievance or PERB claim? This decision lies entirely in the hands of your elected Association leadership. Today, more than ever, employees are realizing that their Associations aren’t social groups; they hold the responsibility for negotiating and enforcing the work conditions and standard of living for hundreds of members. Nowadays, while we are all focused on democracy, please consider that participating in your employees association may be one of your most important democratic actions.

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