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

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1000.01000 – In General; Test for Subjects Not Specifically Enumerated

In determining whether a matter is within the scope of representation, the Board applies a framework initially deriving from the U.S. Supreme Court’s analysis in First National Maintenance Corporation v. NLRB (1981) 452 U.S. 666, 676-680 (First National Maintenance) and Richmond Firefighters. Under First National Maintenance, there are three categories of managerial decisions, each with its own implications for the scope of representation: (1) “‘decisions that “have only an indirect and attenuated impact on the employment relationship” and thus are not mandatory subjects of bargaining,’ such as advertising, product design, and financing; (2) ‘decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls,’ which are ‘always mandatory subjects of bargaining’; and (3) ‘decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they involve “a change in the scope and direction of the enterprise” or, in other words, the employer’s “retained freedom to manage its affairs unrelated to employment.’” (County of Orange (2018) PERB Decision No. 2594-M, p. 18, citing Richmond Firefighters, 51 Cal.4th at pp. 272-273.) In the closest cases—the third category of managerial decisions—PERB applies a balancing test, under which bargaining is required only if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (County of Orange, supra, PERB Decision No. 2594-M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at p. 273 and First National Maintenance, supra, 452 U.S. at p. 679.)