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

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Anaheim Union High School District (1981) PERB Decision No. 177 (Anaheim) outlines the general test for assessing whether a topic falls within EERA’s scope of representation. Under Anaheim, supra, PERB Decision No. 177, a topic falls within the scope of representation if it is a statutorily-enumerated subject of bargaining or, if: (1) it is logically and reasonably related to wages, hours or other statutorily enumerated subjects of bargaining; (2) it is of such concern to management and employees that conflict is likely to occur, and the mediatory influence of collective bargaining is an appropriate means for resolving such conflict; and (3) its designation as a negotiable subject would not significantly abridge the employer's freedom to exercise those managerial prerogatives (including matters of fundamental policy) that are essential to achieving its mission. (Id. at pp. 4-5.) However, for certain recurring topics, PERB follows subject-specific standards that implement the overall scope of representation test. (City and County of San Francisco (2022) PERB Decision No. 2846-M, p. 18, fn. 15.) These standards promote consistency and predictability by obviating the need to “reinvent the wheel” and assess what types of facts are important each time a subcontracting or transfer of work case arises. (Id. at pp. 18-19, fn. 15.) Absent such consistent standards, an employer would not know in advance whether the law requires it to bargain a decision. (Ibid.) In layoff cases, the overarching rule is that an employer has a decision bargaining obligation when a layoff is inextricably linked to a bargainable subcontracting or transfer of work decision, and otherwise the employer has an effects bargaining obligation. (International Assn. of Fire Fighters, Local 188 v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 273-274 & 277; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621-622; City of Glendale (2020) PERB Decision No. 2694-M, p. 17, fn. 9; see also id. at p. 48.) Under Alum Rock Union Elementary School District (1983) PERB Decision No. 322, an employer must engage in decision bargaining if creation or abolition of classifications involves transfer of traditional bargaining unit duties without fundamental changes. (Id. at pp. 10-12.) (pp. 14-15.)