SCOPE OF REPRESENTATION – In General; Test for Subjects Not Specifically Enumerated

Single Topic for Decision 2139M

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* * * OVERRULED IN PART by County of Orange (2018) PERB Decision No. 2594-M, where the Board overruled the decision’s interpretation of the scope of representation test, and County of Orange (2019) PERB Decision No. 2663-M, where the Board overruled the remainder of the decision as to its specific application of the scope of representation test to promotional opportunities, including procedures. * * *

Three-part test established in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 applies to determine whether a matter is within the scope of representation under the Meyers-Milias-Brown Act: (1) Does the management action have a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees. If not, there is no duty to meet and confer. (2) Does the significant and adverse effect arise from the implementation of a fundamental managerial or policy decision. If not, then the meet and confer requirement applies. (3) If both factors are present, the Board applies a balancing test. The action is within the scope of representation only if the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question. Modification of class specification to expand the pool of eligible candidates for fire captain position to include current employees who are already performing the duties covered by the designated certifications had no significant or adverse impact on the working conditions of bargaining unit employees, where modification imposed no new eligibility requirements, did not grant any preference to current fire engineers, and did not affect the opportunity of candidates with certificates to compete for and obtain fire captain positions. The determination of minimum qualifications in this case had an effect on public services and was a fundamental managerial or policy decision. Furthermore, there is no evidence that bargaining over the expansion of the candidate pool for fire captains would outweigh the City’s need to determine the qualifications necessary to provide public fire protection services to its citizens.