SCOPE OF REPRESENTATION – Subcontracting

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PERB has noted that subcontracting, sometimes referred to as contracting out, is “generally within the scope of bargaining.” (Long Beach Community College District (2008) PERB Decision No. 1941 (Long Beach).) PERB has found a majority of subcontracting decisions to be negotiable. Subcontracting falls within the third category of managerial decisions under Richmond Firefighters, 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.” (International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (City of Richmond) (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters). To prevail in showing that the Richmond Firefighters balancing test warrants finding a particular subcontracting decision to have been bargainable, an exclusive representative generally must establish one of three circumstances: (1) that a material portion of the employer’s concerns were amendable to bargaining; (2) the employer decided to use non-bargaining unit employees to perform substantially the same types of job duties that bargaining unit employees traditionally and historically performed; or (3) the employer unilaterally alters the terms of a written policy or agreement, or applies such policy or agreement in a new way.