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 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.)