All notes for Subtopic 1000.01000 – In General; Test for Subjects Not Specifically Enumerated

DecisionDescriptionPERC Vol.PERC IndexDate
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In establishing an analytic framework for assessing whether a decision falls within the scope of representation, the California Supreme Court has explained that MMBA section 3504 was intended to incorporate federal precedent regarding the scope of representation under the NLRA and therefore has repeatedly looked to federal precedents. Specifically, the Court has repeatedly noted that it applies a framework initially deriving from the U.S. Supreme Court’s analysis in First National Maintenance Corporation v. NLRB (1981) 452 U.S. 666, 676-680. Under this framework, there are three categories of managerial decisions, 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.’” (County of Orange (2018) PERB Decision No. 2594-M, p. 18, citing International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (2011) 51 Cal.4th 259, 272-273. In the closest cases—the third category of managerial decisions—PERB applies a balancing test, under which bargaining is required only if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (County of Orange, supra, PERB Decision No. 2594-M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at p. 273 and First National Maintenance, supra, 452 U.S. at p. 679.) more or view all topics or full text.
02/03/20
2659M * * * JUDICIAL APPEAL PENDING * * * County of Kern and Kern County Hospital Authority
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In determining whether a matter is within the scope of representation, the Board applies a framework initially deriving from the U.S. Supreme Court’s analysis in First National Maintenance Corporation v. NLRB (1981) 452 U.S. 666, 676-680 (First National Maintenance) and Richmond Firefighters. Under First National Maintenance, there are three categories of managerial decisions, 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.’” (County of Orange (2018) PERB Decision No. 2594-M, p. 18, citing Richmond Firefighters, 51 Cal.4th at pp. 272-273.) In the closest cases—the third category of managerial decisions—PERB applies a balancing test, under which bargaining is required only if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (County of Orange, supra, PERB Decision No. 2594-M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at p. 273 and First National Maintenance, supra, 452 U.S. at p. 679.) more or view all topics or full text.
08/06/19
2599E San Bernardino Community College District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Anaheim Union High School District (1981) PERB Decision No. 177, not Claremont Police Officers Association v. City of Claremont (2006) 39 Cal.4th 623, supplies the test for subjects not specifically enumerated as within scope under EERA. more or view all topics or full text.
438512/05/18
2594M County of Orange
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The three-step balancing test from Claremont Police Officers Association v. City of Claremont (2006) 39 Cal.4th 623 applies “to determine whether management must meet and confer with a recognized employee organization . . . when the implementation of a fundamental managerial or policy decision significantly and adversely affects a bargaining unit’s wages, hours, or working conditions.” It does not apply, however, to managerial decisions that directly define the employment relationship, which are always negotiable. more or view all topics or full text.
437311/06/18
2518E Los Angeles Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Evaluation system, including evaluation criteria, is negotiable under the Anaheim test. The requirements of the Stull Act (Education Code section 44660 et seq.) do not remove evaluation criteria from the scope of representation. more or view all topics or full text.
4114603/06/17
2504E Anaheim Union High School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Because the parties’ discussions concerned mandatory subjects, including the number and identify of employees to be laid off, and the wages and hours of remaining employees, the Board dismissed the charging party’s allegation that the employer had unlawfully insisted to impasse on a permissive subject of bargaining by proposing various economic concessions within the framework of alternative shorter and longer lists of employees to be laid off. Although an employer’s decision to layoff is not subject to bargaining, the negotiable effects of that decision include the timing, number and identity of employees to be laid off. Additionally, alternatives to layoffs, including furloughs, reductions in employee hours or other concessions in pay or benefits, are negotiable because they necessarily affect enumerated subjects, including wages and hours. (pp. 10-11.) more or view all topics or full text.
418010/14/16
2388Ma City of Palo Alto
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Although interest arbitration is not within the scope of representation under MMBA section 3504, the adoption of rules and regulations concerning either interest arbitration or mediation or both, falls squarely within the public agency’s duty, established by MMBA section 3507, to consult in good faith. Section 3507 prescribes a different scope of consultation from that under section 3505, because in section 3507, the Legislature stated with particularity those subjects for consultation. more or view all topics or full text.
4116204/10/17
2427M County of San Luis Obispo
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
A “calcification of working conditions” is contrary to the principles of collective bargaining and will only be entertained upon “clear and unmistakable” evidence that a public agency intended to grant employees private rights of a contractual nature that survive and effectively supersede future collective bargaining obligations. Where pension plan provisions relied on by the unions did not confer an absolute right to “permanency” in the particular benefits or contributions formulas, unions failed to show that changes to employee pension contribution formulas were “vested rights” beyond the scope of mandatory bargaining. more or view all topics or full text.
3917606/03/15
2394C Santa Clara County Superior Court
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The Legislature modified the scope of bargaining by absolving the Court of the duty to bargain over the decision to impose furloughs when it enacted Government Code section 68106. more or view all topics or full text.
395610/20/14
2388M City of Palo Alto * * * SUPERCEDED by City of Palo Alto (2017) PERB Decision No. 2388a-M
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
MMBA section 3507 prescribes a different scope of consultation from that under section 3505, because in section 3507, the Legislature stated with particularity those subjects for consultation. The adoption of rules and regulations concerning either interest arbitration or mediation or both, falls squarely within the public agency’s duty, established by MMBA section 3507, to consult in good faith. County of Santa Clara (2010) PERB Decision No. 2114-M; County of Santa Clara (2010) PERB Decision No. 2120-M; DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236; and City of Fresno v. the People ex rel. Fresno Firefighters, IAFF Local 753, et al. (1999) 71 Cal.App.4th 82 do not provide guidance for our construction of section 3507 regarding a public agency’s duty to consult in good faith. In MMBA section 3507, the Legislature stated with particularity those matters a public agency may include in its rules and regulations for administration of employer employee relations, and over which it must consult. We deem these matters to be “mandatory subjects” for consultation pursuant to section 3507(a). Where an employer believes that the subject over which an employee organization desires to meet and confer exceeds the employer’s duty to meet and confer, or an employer is otherwise in doubt as to its meet and confer obligation, the employer must seek clarification. Such clarification should occur within the meet and confer process, not merely by the exchange of legal positions through correspondence or in comments between party representatives at public meetings of the governing authority of the agency. Upon receiving the union’s request or becoming aware of the union’s wish to meet, the City’s obligation was to offer to meet and discuss the City’s position that the issue on which the union sought to meet was beyond the scope of representation. By failing to offer to meet with the union’s representatives, the City violated its consultation duty under section 3507. more or view all topics or full text.
392508/06/14
2298M Salinas Valley Memorial Healthcare System
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The MMBA imposes on employers a duty to meet and confer regarding matters within the scope of representation, which does not include managerial decisions such as a decision to lay off employees. Thus, the MMBA imposes a duty to meet and confer over the implementation and the impacts and effects of a layoff decision, but not the decision itself. The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. Once an employer makes a layoff decision, the employer is obliged to notify the organization representing employees of the decision and to meet and confer in good faith, upon request, regarding the reasonably foreseeable impacts and effects of the layoff decision. Where an employer believes a matter to be outside the scope of mandatory meeting and conferring, it is obliged to explore the matter in meet and confer discussions. Thereupon, the employer may change its position and meet and confer on the matter, or it may continue to assert its prior position and decline to meet and confer. In the latter case, if the employer is incorrect, its refusal to meet and confer is unlawful. The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.) more or view all topics or full text.
12/20/12
2300H Regents of the University of California
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
A subject is within the scope of representation if: (1) it involves the employment relationship; (2) is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict; and (3) the employer's obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer's mission. more or view all topics or full text.
12/20/12
2296M City of Long Beach
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Both wages and hours are expressly included within the scope of representation under the MMBA. Thus, because the imposition of furloughs clearly affects both wages and hours of work, it is within the scope of representation, unless an exception or defense applies. more or view all topics or full text.
12/04/12
2296M City of Long Beach
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Both wages and hours are expressly included within the scope of representation under the MMBA. Thus, because the imposition of furloughs clearly affects both wages and hours of work, it is within the scope of representation, unless an exception or defense applies. Provision in local civil service rules authorizing county to reduce work hours for reasons of economy or due to a lack of work or funds does not exempt employer from obligation to meet and confer under the MMBA. more or view all topics or full text.
12/04/12
2234S State of California (Department of Developmental Services)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
To prevail on a transfer of work theory, the charging party must establish as a threshold matter that its bargaining unit had previously and exclusively performed the duties at issue. Where unit and non-unit employees traditionally have performed overlapping duties, the employer does not violate its duty to negotiate in good faith merely by increasing the quantity of work that non-unit employees perform and decreasing the quantity of work that unit employees perform. more or view all topics or full text.
3611401/31/12
2218E Pasadena Area Community College District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Decision to cancel winter intersession classes was outside scope of representation. No violation of duty to bargain effects, where no demand to bargain negotiable effects of decision was ever made. more or view all topics or full text.
368011/09/11
2139M City of Alhambra * * * OVERRULED IN PART by County of Orange (2019) PERB Decision No. 2663-M and County of Orange (2018) PERB Decision No. 2594-M
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Three-part test established in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 applies to determine whether a matter is within the scope of representation under the MMBA: (1) Does the management action have a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees. If not, there is no duty to meet and confer. (2) Does the significant and adverse effect arise from the implementation of a fundamental managerial or policy decision. If not, then the meet and confer requirement applies. (3) If both factors are present, the Board applies a balancing test. The action is within the scope of representation only if the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question. Modification of class specification to expand the pool of eligible candidates for fire captain position to include current employees who are already performing the duties covered by the designated certifications had no significant or adverse impact on the working conditions of bargaining unit employees, where modification imposed no new eligibility requirements, did not grant any preference to current fire engineers, and did not affect the opportunity of candidates with certificates to compete for and obtain fire captain positions. The determination of minimum qualifications in this case had an effect on public services and was a fundamental managerial or policy decision. Furthermore, there is no evidence that bargaining over the expansion of the candidate pool for fire captains would outweigh the City’s need to determine the qualifications necessary to provide public fire protection services to its citizens. more or view all topics or full text.
3416010/26/10
2120M County of Santa Clara
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Interest arbitration provisions are not within the scope of representation under the MMBA. more or view all topics or full text.
3410906/25/10
2120M County of Santa Clara
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Prevailing wage provisions that establish wages (as opposed to those that merely establish an initial bargaining position) are within the scope of representation under the MMBA. more or view all topics or full text.
3410906/25/10
2114M County of Santa Clara
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Interest arbitration provisions are not within the scope of representation under the MMBA. more or view all topics or full text.
349706/08/10
2114M County of Santa Clara
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Prevailing wage provisions that establish wages (as opposed to those that merely establish an initial bargaining position) are within the scope of representation under the MMBA. more or view all topics or full text.
349706/08/10
1876Ha Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In determining if non-enumerated matters fall within the scope of representation as a “term or condition of employment,” PERB applies a three-part test. A subject is within the scope of representation if: (a) it involves the employment relationship; (b) the subject is of such concern to management and employees that conflict is likely to occur, and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict; and (c) the employer’s obligation to negotiate would not significantly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employers mission. PERB has indicated a matter is outside the scope of bargaining if “imposing a bargaining obligation would significantly abridge the employer’s managerial prerogatives.” more or view all topics or full text.
337304/15/09
1876Ha Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The University’s decision to prohibit faculty and staff from parking in newly built parking structures was not within the scope of representation under HEERA. more or view all topics or full text.
337304/15/09
2112I Los Angeles Superior Court
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The charge failed to state a prima facie case for unlawful unilateral change, where the alleged changes were outside the scope of representation. Union alleged the employer made changes in practice by eliminating nine regular court interpreter assignments and leaving vacancies in daily as-needed assignments unfilled. The Court Interpreter Act specifically provides that the “delivery of court services” is outside the scope of representation, and the Board has held that an employer’s determination of staff or service levels is not within the scope of representation. A matter outside scope does not become a mandatory subject of bargaining because the parties negotiate over it or even reach an agreement. Charge fails to establish a prima facie case where the charge merely states that the employer made staffing decisions based on unlawful animus and not legitimate business reasons. A charging party has the burden to allege the “who, what, when, where and how” of an unfair practice. Mere legal conclusions are not sufficient to state a prima facie case. more or view all topics or full text.
349406/07/10
2094H Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Nurse-to-patient staffing ratios relate to the workload of individual nurses on a particular shift. Proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement was within scope of representation because proposed provision merely reiterated employer’s obligations under law and allowed employee organization to enforce ratios through arbitration. more or view all topics or full text.
344102/02/10
2048E San Francisco Unified School District * * * OVERRULED IN PART by Rio Hondo Community College District (2013) PERB Decision No. 2313-E
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Employees’ reporting location is not within the scope of representation under EERA. more or view all topics or full text.
3312306/30/09
1942C Fresno County Superior Court * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In order to fall within Trial Court Act section 71634(b)’s list of decisions excluded from the scope of representation, the decision must not only be one which reasonably falls within one of the excluded categories, but the reason for the decision must be for the purpose of carrying out the unique and special responsibilities of the trial courts. more or view all topics or full text.
323801/31/08
1926H Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The decision to implement a computer policy is within CSU’s exercise of managerial prerogative because computer policies are necessary for CSU to provide its educational mission. “Computing resources support virtually every facet of [CSU’s] operations, including student admissions, registration, advisement, instruction, health care services, library services, research, communications, fund-raising, business and finance, plant operations, human resources, and public safety.” Additionally, computer networks are constantly under attack from viruses and worms which have the potential to take down an entire computer network thereby preventing CSU from providing its educational mission. more or view all topics or full text.
3115210/31/07
1910M County of Ventura
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The County unilaterally changed a negotiated policy of the parties' memorandum of agreement which addresses grievance processing, without providing the Association with prior notice and an opportunity to bargain, when it failed to process a grievance filed by the Association. more or view all topics or full text.
3111406/21/07
1900M Sutter County In-Home Supportive Services Public Authority
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The effects of the criminal background check in this case that primarily relate to wages, hours, and terms and conditions of employment, are within the scope of bargaining. The effects of the criminal background check in this case that primarily relate to the quality and nature of public services, are outside the scope of bargaining based upon the managerial prerogative. more or view all topics or full text.
319204/25/07
1895E Newark Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
A pre-paid legal services plan relates to an enumerated subject under Gov. Code Section 3543.2, and therefore the Board need not analyze whether pre-paid legal services are akin to insurance. Although the pre-paid legal services plan was negotiable, the District did not unilaterally implement the program, because the program did not have a generalized and continued impact on the bargaining unit. The Association's proposal regarding the make up and dissemination of the STAR results is not negotiable and impinged upon managerial rights. more or view all topics or full text.
317803/27/07
1863E El Centro Elementary School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
A permissive subject is not transformed into a mandatory subject solely on the basis that it is incorporated into a collective bargaining agreement. Accordingly, it is not an unfair practice for an employer to repudiate a contractual provision containing a permissive subject of bargaining because the employer does not have a duty under EERA to negotiate that term. more or view all topics or full text.
311011/13/06
1849M County of Santa Cruz
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Association did not allege sufficient facts to demonstrate that the County actually contracted out bargaining unit work. The union presented documentation that County approved money to contract with physicians, but charge did not indicate whether any physicians were actually hired. more or view all topics or full text.
3015108/16/06
1842H Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
A change is not rendered non-negotiable because it arguably benefited employees. more or view all topics or full text.
3012505/18/06
1775E Standard School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
PAR is within the scope of representation under EERA section 3543.2(a) and the Anaheim test in that it is logically and reasonably related to the terms and conditions of employment. (1) A local PAR program is logically and reasonably related to evaluation procedures. (2) The Legislature required a school District to negotiate the development and implementation of a local PAR Program. (3) Negotiating a local PAR program would not significantly intrude upon a union’s managerial prerogative; pp. 11-12, proposed dec. more or view all topics or full text.
2916208/26/05
1656H Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Policies that protected employees from unlawful discrimination are within the scope of representation. However, a policy that applies only to students and non-represented employees is not within scope, unless the employee performance is affected – such as placing a complaint in an employee’s personnel file. more or view all topics or full text.
2819707/08/04
1568E Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
It is the Association’s knowledge that the District intended to unilaterally contract out work that triggers the statute of limitations. more or view all topics or full text.
283312/18/03
1608M City and County of San Francisco
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
There is no obligation on either party to negotiate over permissive subjects of bargaining. However, once an agreement is reached regarding a permissive subject and it is embodied in the parties’ collective bargaining agreement, the parties are bound to that agreement for its duration. Once the agreement expires there is no obligation to adhere to the agreement or bargain a new one. more or view all topics or full text.
2813903/22/04
1507H Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Under the Anaheim test, CSU’s computer usage policies established new grounds for discipline against employees who violate their provisions and so are within the scope of representation. Such policies are subject to negotiation both as to the criteria for discipline and as to the procedure to be followed. CSU’s computer usage policies affect matters within the scope of representation as they pertain to APC’s use of CSU e-mail to communicate with employees. Computer resources, telephones and fax machines comprise “reasonable” means of access in a large academic institution and reasonable access rights are negotiable. Govt. Code section 8314 does not prohibit personal use of computer, telephone and fax equipment; rather, it prohibits use for personal purposes but excludes from that prohibition occasional, incidental or minimal use for personal purposes. Although portions of the policies may concern matters within management prerogative, other issues, involving the ill-defined criteria for discipline, internal monitoring of employee e-mail, and training employees to comply with copyright and other licensing restrictions, clearly are negotiable items. The absence of Educ. Code section 89535 from HEERA 3572.5 does not preclude the parties from negotiating forms and bases for discipline not included within section 89535, provided that the subject is related to wages, hours or other negotiable terms and conditions of employment. more or view all topics or full text.
272601/08/03

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Order for employee to submit to drug testing was a matter "relating to employment conditions" not requiring "consideration of the merits, necessity, or organization of any service or activity provided by law" in light of absence of evidence showing that cities' primary purpose was protection of public safety. City therefore violated bargaining obligation under MMBA by unilaterally ordering employee to submit to drug testing. Before issuing order city was required to meet and confer in good faith with the employees' bargaining organization and fully consider the presentations of the organization. If a matter related to the employment conditions of a single employee, even one who is reasonably suspected of drug use, it appears to fall within the scope of representation. more or view all topics or full text.

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
County ordinance labeled an urgency measure effective immediately and declared necessary to "protect the public health and safety" and "to prevent the substantial impairment of County departmental operations" allowing suspension of employees during rolling job actions found valid. more or view all topics or full text.

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Gov. Code § 31454.1 does not permit union to request to meet and confer with respect to the assumptions and calculations of actuary, but does allow union to present its views on recommendations of actuarial valuation. more or view all topics or full text.

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
City sponsored program drawing employees exclusively from city employee volunteers not immunized from the MMBA because program was wholly voluntary. more or view all topics or full text.

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The court adopted the test for scope of representation used by the federal courts. That test reviews the materiality or significance of an employer-provided service to employees where the service is optional with the employee, the extent to which the service materially affects the employee's living conditions, the presence or absence of feasible alternatives to the employer-provided service available to the employees, the value of the employer-provided service, and the extent to which the employer-provided service has been presented by the employer as an alternative to cash compensation. Applying this test the court found that an increase in parking fees is not a negotiable subject. more or view all topics or full text.

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The Legislature included the exclusionary phrase "the merits, necessity or organization" to the scope of bargaining language to forestall any expansion of the language of "wages, hours, and working conditions" to include more general managerial policy decisions. The federal decisions on scope of representation reflect the same interest as those that promoted the inclusion of the "merits, necessity or organization" bargaining limitation, thus the federal precedents provide reliable if analogous authority in the issue. Requiring that the decision have a significant or material relationship to working conditions is substantially the same as requiring that the decision primarily involved working conditions (Firefighters). This is consistent with Fibreboard which found that decisions which impinge only indirectly upon a subject of bargaining are not negotiable. more or view all topics or full text.

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
the phrase wages, hours, and other terms and conditions of employment is to be liberally construed, consistent with the generous interpretation which has been accorded it in decisions dealing with the federal law from which it has been incorporated into the MMBA. more or view all topics or full text.
1451H Trustees of the California State University
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Under HEERA, the phrase "terms and conditions of employment" is interpreted the way the Board interprets it under the Ralph C. Dills Act. As such, private sector precedents regarding the scope of representation under the NLRA are also applicable to HEERA cases. Under HEERA, a matter is within the scope of representation as concerning "terms and conditions of employment" if (1) it involves the employment relationship, (2) is of such concern to both management and labor that conflict is likely to occur and the mediatory influence of collective negotiations is an appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer's mission. more or view all topics or full text.
253209106/25/01

1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Court affirmed PERB's 3-step test for determining whether a subject is negotiable set forth in Anaheim Union HSD (1981) PERB Decision No. 177. [33 Cal.3d at 857-858] Interpretation of the statutory provision defining scope of representation falls squarely within PERB's legislatively designated field of expertise. [33 Cal.3d at 856] PERB's construction is to be regarded with deference by court and will generally be followed unless it is clearly erroneous. [33 Cal.3d at 856] more or view all topics or full text.
A082E Jefferson School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Since PERB does not render advisory opinions, Board designation of the parameters of the duty to negotiate can be obtained only by a party's refusal to discuss disputed items; p. 13. more or view all topics or full text.
41103203/07/80
1163E Arcata Elementary School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Employer decisions involving the level of services to be provided fall within the management prerogative. These decisions include the creation of new positions, determining the number of hours assigned to new positions, discontinuing a service by abolishing a position and laying off employees; p. 5. more or view all topics or full text.
202712006/26/96
1092E Marin Community College District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Negotiating about salary step placement of former managers was found not to impact the District's ability to run its school and thus did not violate the third prong of the Anaheim test; p. 8. more or view all topics or full text.
192607003/21/95
0955E Eureka City School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The district's smoking policy fails to satisfy the Anaheim test establishing that it is not a mandatory subject of bargaining within the scope of representation; p. 14. more or view all topics or full text.
162316810/27/92
0903E Baldwin Park Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Board expressly rejects reliance on modified Anaheim test to determine whether matter is a mandatory subject of bargaining; pp. 6-9. more or view all topics or full text.
152215509/24/91
0798E Compton Community College District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Although student grievance policy not a specifically enumerated subject of bargaining, under Anaheim test, Board found it was negotiable; pp. 23-24, proposed dec. more or view all topics or full text.
142107903/22/90
0723E San Bernardino City Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
It is the burden of the charging party to show that a negotiable matter is within scope; p. 6, proposed dec. more or view all topics or full text.
132006003/03/89
0688Eb San Francisco Community College District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The exclusive representative of the classified employees has no right to bargain over subject related to certificated staff. SEIU had alleged that the District had unilaterally, without negotiations, adopted a policy barring classified personnel who worked in the District from also serving as certificated employees. more or view all topics or full text.
142102512/20/89
0556E Stanislaus County Department of Education
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Negotiations over ending operation of migrant child education program would significantly abridge managerial prerogatives. more or view all topics or full text.
101703912/31/85
2485E Petaluma City Elementary School District/Joint Union High School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully refusing to meet and negotiate. more or view all topics or full text.
412306/30/16
1948E San Francisco Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
With regard to school district employees, EERA preempts contrary local impasse resolution procedures, including the binding interest arbitration procedure in the City of San Francisco Charter. more or view all topics or full text.
325803/13/08
0431S State of California (Agricultural Labor Relations Board) (Cauchon, et al.)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Section 3516 provison precluding negotiations over the "merits necessity, or organization of any service or activity provided by law or executive order" was meant to forestall expansion of negotiable subjects into managerial policy. R.A. dismissal upheld. more or view all topics or full text.
81521611/13/84
0361S State of California (Department of Transportation)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
First case to rule on meaning of scope language of SEERA and provide statement of test for determining whether subject within scope. Matters are within scope if they involve employment relationship and are of such concern to both management and employees that conflict is likely to occur, and if mediatory influence of collective negotiations is an appropriate means of resolving conflict; p. 10. more or view all topics or full text.
71429511/28/83
0333S State of California (Department of Transportation)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In light of virtually identical scope language of Dills and NLRA, PERB holds private sector precedent regarding scope to be applicable to Dills cases. more or view all topics or full text.
71422508/18/83
0322E Alum Rock Union Elementary School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Cites Anaheim test. more or view all topics or full text.
71418406/27/83
0265E Calexico Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Proposals which are otherwise negotiable are within scope unless a conflicting Education Code provision precludes variance from its terms; section 45038 et seq., of the Education Code do not preclude negotiations over lump-sum salary payments. more or view all topics or full text.
71401612/20/82
0266E Brawley Union High School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Where a provision of the Education Code requires a certain action, the parties are prohibited from negotiating a provision which directly conflicts with the statutory requirement; p. 9. more or view all topics or full text.
71402012/21/82
0255E San Bernardino City Unified School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Negotiability of a proposal is not precluded by the Education Code, so long as the proposal does not directly conflict with the Code; pp. 8-9 Unless language in the Education Code clearly evidences an intent to set an inflexible standard or insure immutable provisions, the negotiability of a proposal is not precluded; p. 9. more or view all topics or full text.
61324910/29/82
0177E Anaheim Union High School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
A subject is negotiable, even though not specifically enumerated, if (1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not significantly abridge his freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the district's mission. more or view all topics or full text.
51214810/28/81
0999S State of California (Department of Forestry and Fire Protection)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
In matters involving the fundamental employment relationship, the unique status of the Dills Act as a supersession statute mandates that great deference be given to the rights of employees and their exclusive representatives; p. 16. The Dills Act provides the state employer and an exclusive representative with the authority to supersede specified statutory provisions relating to the employment relationship by agreeing to memorandum of understanding provisions which differ from the specified statutory provisions; p. 17. By designating specific sections of the Government Code as supersedable, the Legislature has provided clear direction of its intent to ensure that the subjects of those sections are appropriate subjects of collective bargaining within the scope of representation; p. 17. subjects of collective bargaining within the scope of representation; p. 17. bargaining within the scope of representation; p. 18. more or view all topics or full text.
172411206/22/93
0129E San Mateo City School District * * * ANNULLED by San Mateo City School District v. PERB (1983) 33 Cal.3d 850, and REPLACED by Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Annulled By San Mateo City School District v. PERB (1983) 33 Cal. 3d 850; REPLACED By Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375 more or view all topics or full text.
41109205/20/80
0132E Healdsburg Union High School District and Healdsburg Union School District ANNULLED by San Mateo City School District v. PERB (1983) 33 Cal.3d 850, and REPLACED by Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Annulled By San Mateo City School District v. PERB (1983) 33 Cal. 3d 850; Replaced By Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375. more or view all topics or full text.
41111206/19/80
0133E Jefferson School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Questionable scope analysis in light of San Mateo v. PERB (1983) 33 Cal 3d 850. more or view all topics or full text.
41111706/19/80
0096E Palos Verdes Peninsula Unified School District/Pleasant Valley School District
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Questionable analysis in light of San Mateo v. PERB (1983) 33 Cal 3d 850. In a lead opinion, not joined by another member, one member held that EERA did not permit permissive subjects of bargaining, only mandatory or prohibited; pp. 12-29. more or view all topics or full text.
31009707/16/79
0928S State of California (Department of Personnel Administration) (International Union of Operating Engineers Local 39)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Board summarily affirms dismissal of charge that DPA violated 3516.5, and 3519(a), (b), and (c) of Dills by failing to give notice and opportunity to bargain to unions before proposing an initiative to the Attorney General or people of the state which would allow the Governor, in state of fiscal emergency, to furlough or reduce salaries of state employees. Matters at issue found not to be within the scope of representation because: (1) the mediatory influence of collective bargaining is not suited to the resolution of this conflict; and (2) such obligation would unduly abridge employers' freedom to exercise managerial prerogative. more or view all topics or full text.
162306304/20/92
0927S State of California (Governor Pete Wilson) (Association of California State Attorneys and Administrative Law Judges; Professional Engineers in California Government; California Association of Professional Scientists)
1000.1000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Board summarily affirms dismissal of charge that Governor violated 3516.5, and 3519(b) and (c) of Dills by failing to give notice and opportunity to bargain to unions before proposing an initiative which would allow him, in state of fiscal emergency, to furlough or reduce salaries of state employees, to the Attorney General or people of the State. Matters at issue found not to be within the scope of representation because: (1) the mediatory influence of collective bargaining is not suited to the resolution of this conflict; and (2) such obligation would unduly abridge employers' freedom to exercise managerial prerogative. more or view all topics or full text.
162306104/13/92