EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Management-Rights Clause; Management Prerogative

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There are three distinct categories of managerial decisions, each with its own implications for the scope of representation. Regarding the third category, decisions that affect employment conditions but are not concerned primarily with employment, the Board must balance the benefits of bargaining over the decision against the employer’s managerial interest in making the decision. Aspects of a ballot measure that directly affect employment (e.g., investigating and disciplining employees) tend to fall on the negotiable side, unlike measures that relate primarily to public safety. Thus, decision bargaining is required for those amendments. (pp. 36-44.)

The Board’s holding in County of Orange (2019) PERB Decision No. 2657-M, that some management decisions “expanding law enforcement oversight” are outside the scope of representation, cannot exclude all decisions related to law enforcement oversight. Applying the balancing test, the Board concluded that only the ballot measure amendments on investigating employees and recommending discipline are within the scope of representation. (pp. 43-44.)