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

Single Topic for Decision 2298M

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The MMBA imposes on employers a duty to meet and confer regarding matters within the scope of representation, which does not include managerial decisions such as a decision to lay off employees. Thus, the MMBA imposes a duty to meet and confer over the implementation and the impacts and effects of a layoff decision, but not the decision itself. The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. Once an employer makes a layoff decision, the employer is obliged to notify the organization representing employees of the decision and to meet and confer in good faith, upon request, regarding the reasonably foreseeable impacts and effects of the layoff decision. Where an employer believes a matter to be outside the scope of mandatory meeting and conferring, it is obliged to explore the matter in meet and confer discussions. Thereupon, the employer may change its position and meet and confer on the matter, or it may continue to assert its prior position and decline to meet and confer. In the latter case, if the employer is incorrect, its refusal to meet and confer is unlawful. The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.)