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

Single Topic for Decision 2819E

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EERA provides that “matters not specifically enumerated are reserved to the public school employer.” (§ 3543.2, subd. (a)(4).) However, the Legislature balanced this restrictive language by expansively requiring negotiations over “matters relating to wages, hours of employment, and other terms and conditions of employment.” (§ 3543.2, subd. (a)(1).) The California Supreme Court, noting that these EERA provisions are in tension with one another and that the Legislature authorized PERB to apply its expertise to determine which matters “relate to” employment terms and conditions, has specifically endorsed PERB’s three-part test for distinguishing between mandatory and non-mandatory bargaining subjects. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 857-860 (San Mateo).) Pursuant to that test, which the Board adopted in Anaheim Union High School District (1981) PERB Decision No. 177, an exclusive representative’s right to represent employees extends to a non-enumerated subject if: “(1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not significantly abridge his freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the [employer’s] mission.” (Id. at pp. 4-5; San Mateo, supra, 33 Cal.3d 850, 857-859.) (pp. 19-20.)