SCOPE OF REPRESENTATION – Transfer of Work Out of Unit

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The Board clarified that the Eureka standard, as an analytic matter, better measures whether a deviation from the status quo is sufficiently material to trigger a bargaining obligation, rather than determining whether a transfer of work is within the scope of representation, as often characterized in prior PERB precedent. This clarification is equivalent to the one PERB made in County of Santa Clara (2022) PERB Decision No. 2820-M, where the Board explained that the “reasonably comprehended” standard for new job duties measures whether a deviation from the status quo is material. (Id. at pp. 6-7.) There, the Board explained that past precedent treating the “reasonably comprehended” standard as defining the scope of representation was an historical artifact. (Id. at p. 7.) As PERB now separately analyzes change to status quo and scope of representation, it makes sense that the Eureka standard, like the “reasonably comprehended” test, will normally be more integral to determining whether the employer materially changed the status quo than to determining whether job duties constitute a mandatory bargaining topic. In sum, Santa Clara, supra, PERB Decision No. 2820-M explained that while job duties and assignments normally fall within the scope of representation, the “reasonably comprehended” test helps to assess whether adding job duties or assignments constitutes a material change. (Id. at pp. 5-7.) By the same logic, the Eureka standard helps to assess whether an employer materially changed the status quo by subtracting job duties from a bargaining unit. (pp. 17-18.)