SCOPE OF REPRESENTATION – Disciplinary Action

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New investigative procedures adversely affect employment when they create a potential for discipline that did not previously exist. Investigation and discipline lie at the core of traditional labor relations and are particularly amenable to collective bargaining—both for peace officers and other employee groups. But in cases involving law enforcement agencies, the countervailing management interest is unique given that peace officers “exercise tremendous power in the name of the public.” On the continuum of possible measures to enhance police accountability or improve police-community relations, management’s need for unencumbered decisionmaking tends to outweigh the benefit of bargaining in relation to measures focused squarely on public safety and community relations, such as revising use-of-force policies, implementing a racial profiling study, or requiring officers to wear body worn cameras. Thus, because peace officers sometimes use force—a unique aspect of their role in society—the scope of representation balancing test in law enforcement cases can turn on factors that do not matter for other employee groups. Most notably, a law enforcement agency generally has no decision bargaining obligation for an isolated change to an unwritten past practice related to peace officer investigations, where the practice was more protective than the Public Safety Officers’ Procedural Bill of Rights Act. Here, Measure P was a broad sea change consisting of many interrelated changes, creating an independent investigatory path even after County peace officers have been cleared in a Sheriff’s Office’s investigation. The several challenged Measure P amendments allowing repeat investigations of the same officers over an extended period—thereby significantly and adversely affecting their career trajectory—are prime examples of changes for which the benefit of collective bargaining outweighs the short delay caused by requiring negotiations. (pp. 19, 24-26.)