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

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EERA requires a public school employer to meet and negotiate in good faith with an exclusive representative “with regard to matters within the scope of representation.” (§ 3543.3; see also §§ 3543.2, 3543.5, subd. (c).) EERA defines the “scope of representation” to include “matters relating to wages, hours of employment, and other terms and conditions of employment,” and lists certain enumerated subjects as “terms and conditions of employment.” (§ 3543.2, subd. (a)(1).) Subjects within the scope of representation are known as “mandatory subjects of bargaining” (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 8, such that “parties to a collective bargaining relationship must meet and confer upon demand” over them. (Anaheim Union High School District (2016) PERB Decision No. 2504, p. 8.) The same obligation does not apply to subjects outside the scope of representation, which are called “non-mandatory” or “permissive” subjects. While parties may negotiate over such matters, neither party is required to do so. Although the District faults the ALJ for failing to distinguish between the scope of representation and the scope of bargaining, the ALJ did not err in using the exact term that EERA uses, “scope of representation,” to refer to mandatory subjects of bargaining, just as both parties did during their negotiations. (pp. 18-19.)