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

Single Topic for Decision 2772Ma

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In determining whether an employer’s decision is within the scope of representation under MMBA section 3504, the Board first determines into which of three categories of managerial decisions the decision falls: (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. “When a decision falls into the third category, we first determine whether the decision has ‘a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees’ that ‘arises from the implementation of a fundamental managerial or policy decision.’ If both requirements are met, we determine whether ‘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.’”

Here, the Court of Appeal affirmed the Board’s determination that the disputed Measure P amendments fell into the third category under this framework because the County has a substantial interest in increasing transparency and fostering community trust in policing and correctional services. Thus, the Board considered whether the decision to place the disputed Measure P amendments on the ballot had “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees,” reviewing all relevant circumstances from the perspective of a reasonable employee. As to the first term, “significant” means “large or important enough to have an effect or to be noticed.” As to the second term, long-settled precedent holds that an employer action is adverse whenever a reasonable employee in the same circumstances “would consider the action to have an adverse impact on the employee’s employment.” Finally, under the reasonable employee standard, the effect of a change need only be reasonably foreseeable to be considered “significant and adverse.” Applying these standards, the Board found that the disputed Measure P provisions significantly and adversely affect Association-represented employees’ working conditions by creating a second, independent investigatory path. (pp. 14-18.)