Legal Alerts Nov 12, 2015

Limitations of Labor Negotiations Exception to Brown Act

Does Not Include Negotiation of a Project Labor Agreement When the Workers are Not Employees

Limitations of Labor Negotiations Exception to Brown Act

The labor negotiations exception to the open-meeting requirements of the Ralph M. Brown Act does not permit a community college district’s governing board to meet in closed session to discuss the negotiation of a project labor agreement, the California Attorney General said in a recently issued opinion. The narrowly tailored exception does not apply because the contractors and laborers covered by such an agreement are not district employees. 

The Brown Act generally requires legislative bodies to deliberate in open session, but there is an exception for discussion of labor negotiations. The labor negotiations exception allows a legislative body to meet in closed session with its negotiating representative to discuss salaries and benefits of the body’s employees. 

The board of trustees of a community college district that is undertaking a construction project sought to meet in closed session with its negotiator to discuss the terms of a proposed project labor agreement. A project labor agreement is a pre-hire collective bargaining agreement between the owner of a construction project and one or more labor organizations, designed to set terms and conditions of employment for the construction. Once a public entity enters a project labor agreement with a labor organization, any contractors the public entity selects to do the construction work (and their subcontractors) are bound by the terms and conditions of the agreement in employing the project’s workers.

The Attorney General concluded that the board could not hold the discussion in closed session because the labor negotiations exception does not include discussions of a project labor agreement where the construction workers covered by the agreement are not district employees. 

To determine whether a worker is an employee, courts look to whether the purported employer has the right to control not only the result of the work, but the manner and means of accomplishing the desired result, and whether the employer could fire the employee without cause. In this case, the Attorney General concluded that, because the district and its board would not hire, manage, pay, discipline, or fire the construction workers who are covered by the labor agreement, those workers are not employees of the district. Accordingly, the labor negotiations exception did not apply. 

For more information about this opinion and how it may relate to your public agency, contact the attorney author of this Legal Alert listed at right in the Public Policy & Ethics Compliance practice group, or your BB&K attorney.

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