All notes for Subtopic 1000.02137 – Subcontracting

DecisionDescriptionPERC Vol.PERC IndexDate
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
In addition to the test for negotiability set forth in Anaheim Union High School District (1981) PERB Decision No. 177, where an employer contemporaneously decides to terminate bargaining unit work and replace employees with those of an independent contractor to do the same work under similar conditions, such decisions do not involve a change in the scope and direction of the enterprise or a core entrepreneurial decision beyond the scope of the collective bargaining obligation. When this kind of subcontracting is involved, there is thus no need to inquire into labor costs or to apply Anaheim or any other tests for negotiability, as the U.S. Supreme Court, the NLRB, and PERB have all concluded that, as a matter of law, such decisions are negotiable. (p. 37.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Using the test PERB set forth in Anaheim Union High School District (1981) PERB Decision No. 177 for the negotiability of subjects not specifically enumerated by statute as within the scope of representation, the Board has found subcontracting decisions to be negotiable if the management decision does not change the scope or direction of the enterprise. While a subcontracting decision may involve a managerial decision “at the core of entrepreneurial control” and “be based on factors not amenable to negotiation” (Ventura County Community College District (2003) PERB Decision No. 1547, p. 19), decisions involving personnel matters, such as absenteeism, workplace efficiency and employee turnover, are suitable for collective bargaining. Decisions to outsource which are based on labor costs, viz., “overall enterprise costs,” are “peculiarly suitable for resolution through the collective bargaining framework,” because the union has control over some enterprise costs (labor costs) and may make concessions through negotiations that “substantially mitigate the concerns underlying the employer’s decision, thereby convincing the employer to rescind its decision.” (Ibid.) (pp. 36-37.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
HEERA neither expressly enumerates nor excludes subcontracting decisions from the scope of representation. While such decisions involve managerial decisions regarding the merits, necessity or organization of services, activities or programs, they also unquestionably affect wages, hours and working conditions, including whether employees who have previously performed such work will be employed at all. Where a management decision affects the merits, necessity or organization of any service or activity provided by law, it may nonetheless be negotiable if intertwined with a negotiable decision. Put another way, a decision affecting negotiable matters does not become non-negotiable simply because other, non-negotiable matters are also implicated by the decision. (pp. 34-35.) more or view all topics or full text.
4310012/19/18
2610H Regents of the University of California (Berkeley) (University Council-American Federation of Teachers)
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
The University’s decision to subcontract the Young Musician’s Program was negotiable under either of two lines of PERB and federal cases. First, it was substantially motivated by labor costs and personnel problems which were peculiarly suitable for resolution through collective bargaining. University’s principal decisionmaker acknowledged that his decision to transfer the Program to a non-University entity was influenced by concerns that the Program consumed revenue from another department needed to cover salaries and other human resources expenditures, and that the Program was undergoing a period of growth and expansion, portending additional expenses in the future. Second, its practical effect was to replace University employees with those of another employer, the Young Musicians Choral Orchestra (YMCO), to perform essentially the same services under similar circumstances. The YMCO later “restored” the Program’s operations, pursuant to contractual agreements with the University. The YMCO uses University space for its performances. Its director is the same, its board president is the same, its marketing identity is largely the same, including its use of University trademarks and scripts, its musical instruments are the same, several of its teachers are the same, and the students served by the Program are also the same. We conclude that the University was not authorized to act unilaterally to close the Program and transfer operations to YMCO. (pp. 33, 38, 41.) more or view all topics or full text.
4310012/19/18
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Even if subcontracted work could fairly be termed “new work,” which was not the case, it still would have been sufficiently similar to that which the bargaining unit traditionally performed so as to require bargaining before any subcontracting decision. (See Overnite Transportation Co. (2000) 330 NLRB 1275, 1276, affd. in part, reversed in part mem. (3d Cir. 2000) 248 F.3d 1131(Overnite); Mi Pueblo Foods (2014) 360 NLRB 1097, 1099 [same].) The principles articulated in Overnite and Mi Pueblo Foods are not foreign to PERB precedent. PERB has noted that an “actual or potential” diminution of union work through subcontracting not only withdraws wages and hours associated with the contracted-out work from the unit, but also weakens the collective strength of employees in the unit, which in turn undermines their collective ability to effectively deal with the employer. (Arcohe Union School District (1983) PERB Decision No. 360, pp. 5-6; see also City of Sacramento (2013) PERB Decision No. 2351-M, pp. 21-22.) more or view all topics or full text.
4413502/03/20
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
City’s subcontracting decision within scope of bargaining for at least two separate reasons. First, City’s reasons for subcontracting, including desire to reduce labor costs and performance of work in a timely manner, provided one basis for finding that the City’s subcontracting decision amenable to bargaining. Independently, PERB found a bargaining obligation because the subcontracted duties were substantially the same as those performed by unit employees, and City decided to use non-bargaining unit employees to perform substantially the same types of job duties that bargaining unit employees traditionally and historically performed. Where an employer intends to continue performing some of the same duties as before, while using non-unit employees to perform such duties, there is no need to look at the employer’s motivation for subcontracting. City did not have a duty to bargain prior to reducing the amount of bargaining unit work it needed or wanted to perform, but did have a duty to bargain before deciding to use non-bargaining unit alternatives to perform remaining and future work. Where City’s decision to layoff was linked to its decision to subcontract remaining and future work, City committed a clear MMBA violation by failing to provide notice and an opportunity to bargain over the decision. Fact that the City subcontracted less than its otherwise full complement of work did not remove the subcontracting decision from the scope of representation. more or view all topics or full text.
4413502/03/20
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
PERB has noted that subcontracting, sometimes referred to as contracting out, is “generally within the scope of bargaining.” (Long Beach Community College District (2008) PERB Decision No. 1941 (Long Beach).) PERB has found a majority of subcontracting decisions to be negotiable. Subcontracting falls within the third category of managerial decisions under Richmond Firefighters, 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.” (International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (City of Richmond) (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters). To prevail in showing that the Richmond Firefighters balancing test warrants finding a particular subcontracting decision to have been bargainable, an exclusive representative generally must establish one of three circumstances: (1) that a material portion of the employer’s concerns were amendable to bargaining; (2) the employer decided to use non-bargaining unit employees to perform substantially the same types of job duties that bargaining unit employees traditionally and historically performed; or (3) the employer unilaterally alters the terms of a written policy or agreement, or applies such policy or agreement in a new way. more or view all topics or full text.
4413502/03/20
2659M * * * JUDICIAL APPEAL PENDING * * * County of Kern and Kern County Hospital Authority
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
PERB generally finds that subcontracting decisions are within the scope of bargaining. To prevail in showing that the Richmond Firefighters balancing test warrants finding a particular subcontracting decision to have been bargainable, a union generally must establish one of three circumstances: (1) the employer’s reasons for subcontracting included labor costs, personnel issues or other issues that are amenable to bargaining; (2) the subcontractors performed substantially the same duties as that traditionally or historically performed by unit employees, even absent evidence of the employer’s motivation; or (3) where the employer unilaterally alters the terms of a written policy or agreement, or applies such policy or agreement in a new way. While the union need only establish one viable theory to bring the employer’s subcontracting decision within the scope of bargaining, the Board found that the union prevailed under all three where the employer began using contract medical assistants to staff newly-opened clinics, without notifying the union or giving it an opportunity to bargain.Just as a union has no need to establish the employer’s motivation for subcontracting when the employer replaces existing bargaining unit employees with employees of an outside organization, the same is true when an employer opens new operations, if the nature of the subcontracted job duties is sufficiently similar to the duties that bargaining unit employees already perform for the employer. (Mi Pueblo Foods (2014) 360 NLRB 1097, 1098-1099; Overnite Transportation Co. Overnite Transportation Co. (2000) 330 NLRB 1275, 1276, affd. in part, reversed in part mem. (3d Cir. 2000) 248 F.3d 1131.) more or view all topics or full text.
444008/06/19
1770E Oakland Unified School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
School District violated Educational Employment Relations Act by unilaterally subcontracting police work from District police force to Oakland Police Department. There is no need to apply the labor costs test when an employer replaces its employees with those of a contractor to perform the same services under similar circumstances. more or view all topics or full text.
2914306/21/05
1242E Redwoods Community College District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
PERB follows the U.S. Supreme Court rulings which held that subcontracting decisions which are based, at least in part, on labor costs are negotiable; p. 20, proposed dec. District's subcontracting decision was based in part on labor costs and did not involve a change in the scope and direction of the enterprise and is negotiable; p. 21, proposed dec. Contemporaneous decision by the District to terminate the duties of bargaining members and transfer work to outside contractor is negotiable; p. 23, proposed dec. more or view all topics or full text.
222902912/19/97
1011E Mark West Union School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
A prima facie case of subcontracting is stated where charging party alleges a connection between the decisions to layoff unit members and to utilize volunteers to perform the same tasks; pp. 2-3. more or view all topics or full text.
172414909/02/93
0868E Whisman Elementary School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Unilateral acts of subcontracting and transfer of work have been analyzed differently by the Board; p. 12. Contracting out refers to a transfer of unit work to those not in the employ of the employer in question; p. 12. Supplier of volunteer labor akin to second employer for purposes of subcontracting analysis because its agent recruits volunteers and supplies them to the school at scheduled times; pp. 12-13. Where Education Code section 35021 expresses legislative intent to limit those circumstances where a volunteer aide will be found to be an employee of the District, transfer of work to volunteers analyzed under subcontracting analysis; pp. 13-14. Where District had no intention of reinstating tutorial program which utilized unit members at the point when it was lawfully terminated, and where a similar program was initiated several years later with utilized unit members at the point when it was lawfully terminated, and where a similar program was initiated several years later with more or view all topics or full text.
152204302/14/91
0754E Calexico Unified School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Where the transfer of assignments out of the unit affects the overtime earnings of unit employees it must be bargained for; p. 22, proposed dec. more or view all topics or full text.
132015907/17/89
0662E San Diego Community College District * * * REVERSED IN PART by San Diego Adult Educators v. PERB (1990) 223 Cal. App. 3d 1124
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Work previously done by unit members now done by private foundation for benefit and at behest of employer constitutes unilateral subcontracting of unit work. more or view all topics or full text.
121905404/05/88
0668E Tahoe - Truckee Unified School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Evidence supports finding that the District unilaterally subcontracted unit work. more or view all topics or full text.
121908105/27/88
0651E Fremont Union High School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Employer subcontracting consists of the substitution of one group of workers for another to perform the same task in the same location under the ultimate control of the same employer. No subcontracting shown in District's entering into lease agreement with private institution to provide comprehensive summer school where: summer school employees not under ultimate control of District. more or view all topics or full text.
121902112/30/87
0391E Goleta Union School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Subcontracting not found where employer transferred unit counselor work to consultants hired by the employer. Subcontracting exists where unit work is given to nonemployees. more or view all topics or full text.
81513408/01/84
0367E Oakland Unified School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Subcontracting within scope; p. 23. Test for subcontracting is whether the acts evidenced a change in the quantity and kind of prior practice in this area. Westinghouse test for legal subcontracting not satisfied here. Adverse impact inherent in finding of unilateral change; p. 25. more or view all topics or full text.
81500812/16/83
0360E Arcohe Union School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Subcontracting unit work is within scope. more or view all topics or full text.
71429411/23/83
0937E Eastside Union School District
1000.2137: SCOPE OF REPRESENTATION; Subcontracting
Subcontracting of bargaining unit work is a negotiable subject, within the scope of representation; p. 3; p. 11, proposed dec. more or view all topics or full text.
162308406/02/92