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

Single Topic for Decision 2876M

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MMBA section 3504 defines the scope of representation as including “wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” Where precedent is not already clear on whether a matter falls within the scope of representation, the Board begins by placing the matter in one of three categories, 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.’” (City and County of San Francisco (2022) PERB Decision No. 2846-M, pp. 15-18 (San Francisco), citing International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters).) For decisions in the third category, bargaining is required if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (Richmond Firefighters, supra, 51 Cal.4th at p. 273.) The Board applies this balancing test in two steps. First, looking at the matter from the perspective of a reasonable employee, PERB assesses whether the decision’s implementation will significantly and adversely impact wages, hours, or other terms or conditions of employment. (San Francisco, supra, PERB Decision No. 2846-M, p. 18, citing Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638; County of Sonoma (2023) PERB Decision No. 2772a-M, p. 16.) If there is a significant and adverse effect, PERB must resolve whether “the employer’s need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (San Francisco, supra, PERB Decision No. 2846-M, pp. 18-19.) For many types of decisions, PERB need not “reinvent the wheel” by applying the Richmond Firefighters framework from scratch, because precedent establishes subject-specific standards that show how the framework applies to a given topic. 25 (The Accelerated Schools (2023) PERB Decision No. 2855, p. 15; San Francisco, supra, PERB Decision No. 2846-M, p. 18, fn. 15.) (pp. 23-25.)