to terminating such payment. Because the Court has determined that
CCCTA's actions violated the MMBA, it need not, and does not, consider
Plaintiffs' additional claims for compensation under §§ 3506 and
3505.3 of the Act.
B. Unilateral Change in Terms and Conditions of Employment
The MMBA governs labor relations for local public employers throughout
California, including the CCCTA. See Cal. Gov't Code § 3500 et seq.
Section 3505 of the Act requires that employers "meet and confer in good
faith regarding wages, hours, and other terms and conditions of
employment" with employee representatives "prior to arriving at a
determination of policy or course of' action." Cal. Gov't Code §
CCCTA argues that it did not have a policy of compensating employee
union negotiators during a strike because a strike had not previously
occurred, no such arrangement was specified in the parties' previous
MOU, and any payment provided for Plaintiffs' negotiating activities was
statutorily required under § 3505.3 of the MMBA. CCCTA contends
that, because it did not have a policy of compensation, it did not
unilaterally change the terms and conditions of Plaintiffs' employment in
violation of the MMBA.
It is undisputed that no strike had previously occurred and that the
parties' collective bargaining agreement did not include a provision which
addressed specifically whether employee union negotiators would be
compensated for negotiations conducted during a strike. However, prior to
the strike CCCTA had paid Plaintiffs for all time spent in negotiations,
including overtime hours and hours spent negotiating during Plaintiffs'
days off. See e.g. Declaration of Carolyn A. Anderson, filed November
20, 1998 (Anderson Decl.), Exhs. F. G, H. Such compensation was not
within the mandate of § 3505.3 of the MMBA, which requires only that
employee union representatives be compensated for time spent in
negotiations during their regularly scheduled work hours. Cal. Gov't Code
§ 3505.3. Thus, CCTA voluntarily compensated Plaintiffs for
pre-expiration negotiations conducted during time when Plaintiffs were not
regularly scheduled to work.
The fact that CCCTA compensated Plaintiffs for such pre-expiration
negotiations indicates that CCCTA was paying Plaintiffs for their
negotiating activities, rather than merely providing wage replacement for
time that Plaintiffs otherwise would have been on duty. By so doing,
CCCTA established a practice of providing such compensation. It is
undisputed that CCCTA discontinued this practice after the strike began,
and that CCCTA did so without informing or discussing with Plaintiffs the
fact that they would not be compensated for their time.
The failure by an employer to meet and confer with employee union
representatives prior to making a unilateral change in the terms or
conditions of employment is a per se violation of the duty to meet and
confer in good faith. See Vernon Fire Fighters v. City of Vernon,
107 Cal.App.3d 802, 823, 165 Cal.Rptr. 908 (1980); San Joaquin County
Employees Ass'n v. City of Stockton., 161 Cal.App.3d 813, 818,
207 Cal.Rptr. 876 (1984). It is not fatal to a claim that the particular
practice is not formalized in the written collective bargaining agreement
or MOU. See San Francisco Fire Fighters, Local 798 v. Board of
Supervisors, 3 Cal.App.4th 1482, 1489, 5 Cal.Rptr.2d 176 (1992).
CCCTA argues that, even if it compensated Plaintiffs for pre-expiration
negotiations, it was not required to finance a strike against it. CCCTA
also contends that, under Simplex Wire & Cable Co. and General
Electric Co., it was not required to
confer with Plaintiffs prior to stopping wage and related payments during
the strike because Plaintiffs were not performing their jobs. See Simplex
Wire & Cable Co., 1979 WL 9983, 245 NLRB 543 (1979) (finding employer
may unilaterally cease benefits to striking employees); General Electric
Co., 80 NLRB 510 (1948) (it is "axiomatic" that employers are not
required "to finance an economic strike against it by remunerating the
strikers for work not performed").
Plaintiffs did not perform their jobs as bus operators during the
strike, nor are they requesting compensation for that undone work.
Instead, Plaintiffs participated in a series of negotiations during time
they were not otherwise working, as they had done before the strike, and
for which they had received compensation prior to the strike. Thus,
neither Simplex nor General Electric controls in this case. CCCTA failed
to meet and confer either with Plaintiffs or other union representatives
prior to terminating payment for Plaintiffs' negotiating activities. The
Court finds that this failure constitutes a violation of § 3505 of
the MMBA. The Court therefore does not consider Plaintiffs' other claims
for compensation under §§ 3506 and 3505.3 of the MMBA.
For the foregoing reasons, Plaintiffs' motion for summary judgment on
their claims under FLSA is DENIED. Plaintiffs' motion for summary
judgment on their claim under § 3505 of the MMBA, Cal. Gov't Code
§ 3505, is GRANTED and Defendant's cross-motion for summary judgment
as to that claim is DENIED. Finally, the Court denies as moot Plaintiffs'
motion, and Defendant's cross-motion, for summary adjudication of
Plaintiffs' claims under § 3506 and § 3505.3 of the MMBA.