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

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1000.01000 – In General; Test for Subjects Not Specifically Enumerated

Under the MMBA, the scope of representation “shall include all matters relating to employment conditions and employer-employee relations, including, but not limited to, 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.” (Gov. Code, § 3504.) If precedent does not already delineate whether a matter falls within the scope of representation, the first analytical step is to place 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, citing International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273.) (pp. 13-14.)