Mcle Self-study: the Meyers-milias-brown Act at 50

• Citation: Vol. 32 No. 6
• Publication year: 2018
• Author: By Tim Yeung

MCLE Self-Study: The Meyers-Milias-Brown Act at 50

By Tim Yeung

Tim Yeung is managing partner in the Sacramento office of Sloan Sakai Yeung & Wong LLP. His practice is dedicated to labor and employment law with an emphasis on defending employers in employment litigation. He can be reached at tyeung@sloansakai.com (916) 258-8803.

Fifty years ago, California became one of the first states to give public employees the right to "collectively bargain" with their government employers, with the 1968 passage of the Meyers-Milias-Brown Act (MMBA).¹ While the MMBA only applied to employees of counties, cities, and special districts, it paved the way for subsequent laws covering almost all public employees in California. Some writers have credited Jerry Brown, during his first term as Governor, with opening the door to allowing public employees to unionize.² But it was Ronald Reagan, a former President of the Screen Actor's Guild union, who signed the MMBA.

In the private sector, employees gained modern-day collective bargaining rights with the passage of the National Labor Relations Act (NLRA) in 1935. The NLRA was part of the "New Deal" package of reforms signed by President Roosevelt during the Great Depression.³ The NLRA gave employees the right to form unions, bargain collectively with employers, and the right to strike. The NLRA also created a three-member National Labor Relations Board (NLRB) to adjudicate unfair practices such as an employer's refusal to bargain with a union. However, these rights did not apply to public employees, as the NLRA expressly excludes coverage of states and political subdivisions of states.⁴

It was not until almost 25 years after the passage of the NLRA before states started to give public employees the same rights as private employees to unionize and bargain collectively with their employers. Wisconsin is widely credited with being the first state to allow public employees to unionize, with the passage of the Wisconsin Municipal Employment Relations Act (MERA) in 1959.⁵ When enacted, MERA only applied to local, and not state, employees in Wisconsin and gave them to right to collectively bargain with their employers.

Two years later, in 1961, Governor Pat Brown signed the George Brown Act, which sought to promote "the improvement of personnel management and employer-employee relations" by requiring that an employer "consider as fully as it deems reasonable" the demands of unions.⁶ The Brown Act went further than the MERA in Wisconsin by covering virtually all public employees in California, including employees of the state, school districts, public universities, counties, cities, and special districts. However, by only requiring that employers "consider" union proposals, the Brown Act did not require modern-day collective bargaining.⁷

In the years following passage of the Brown Act, unions in California continued to press for the same collective bargaining rights enjoyed by private sector employees under the NLRA.⁸ In addition, other states continued to grant public employees collective bargaining rights.⁹ For example, in 1967 New York enacted the Public Employees' Fair Employment Act, commonly referred to as the Taylor Law, which granted public employees collective bargaining rights.¹⁰ Cognizant of these events, the California Legislature in 1968 enacted the MMBA.¹¹

Unlike the Brown Act which it replaced, the MMBA only applied to employees of counties, cities, and special districts. But the MMBA went beyond the Brown Act by requiring that employers and unions "meet and confer in good faith regarding wages, hours, and other terms and conditions of employment" with recognized unions.¹² Under the MMBA, to "meet and confer in good faith" imposes 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."¹³ This requirement has been interpreted by the courts to be the same requirement as that imposed by the NLRA.¹⁴ Under this requirement, the parties are not required to come to an agreement, but must "endeavor" to do so.¹⁵ Once agreement is reached, the MMBA required the parties to "jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination."¹⁶ Once approved by the governing body of the public employer, the memorandum of understanding would be binding on the parties.¹⁷

The MMBA also gave employees the statutory right to form, join, and particulate in the activities of the union of their choosing.¹⁸ Under the MMBA, both employers and unions "shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights."¹⁹

However, the MMBA differed in one significant respect from the NLRA by not providing a mechanism for resolving disputes. Instead of creating a state administrative agency similar to the NLRB—or a Public Employment Relations Board (PERB) as was created under the Taylor Law in New York—the MMBA deferred to a "home-rule" concept by authorizing local employers to adopt "reasonable rules and regulations . . . for the administration of employer-employee relations."²⁰ This allowed for the creation of "mini-perbs" by employers such as the City of Los Angeles, City of Torrence, County of Fresno and County of Los Angeles.²¹ For employers that did not create mini-perbs, enforcement of the MMBA's provisions was generally left to the courts.

Because the MMBA relied on local government employers for its administration, its effectiveness depended much on how local communities viewed collective bargaining.²² As Professor Joseph Grodin observed in 1972, "[i]n cities and counties where labor is politically strong, patterns of recognition and bargaining tend to approximate the model which exists in the private sector. Where labor...