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

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The California Supreme Court has articulated a nuanced approach to applying MMBA section 3504. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters).) Under this framework, which PERB has adopted, “there are three distinct categories of managerial decisions, each with its own implications for the scope of representation: (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.” (County of Orange (2018) PERB Decision No. 2594-M, p. 18 (Orange), citing Richmond Firefighters, supra, 51 Cal.4th at pp. 272-273, internal quotations omitted.) Decisions in the third category of managerial decisions—the closest cases---have “a direct impact on employment [even] though the decision is not in [itself] primarily about conditions of employment.” (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 637, internal quotations and citations omitted (Claremont).) For such decisions, PERB balances the benefits of bargaining over the decision against the employer’s managerial interest in making the decision. (Richmond Firefighters, supra, 51 Cal.4th at p. 273; Claremont, supra, 39 Cal.4th 18 at p. 638; Building Material, supra, 41 Cal.3d at p. 660; Orange, supra, PERB Decision No. 2594-M, p. 18.)