Subjects Which Have Been Held to be Included Within the Scope of Representation:

The following are examples of subjects which are subject to negotiations prior to implementation, modification or rescission:

• Group insurance benefits
• Impact of staffing levels.
• Adoption of safety requirements.
• Size of case load of social workers.
• Work hours and work days.
• Job security.
• Contracting out work performed by bargaining unit.
• Promotional opportunities.
• Elimination of work or reassignment of work of the unit of representation.
• Removal of the ability to work overtime.
• Any change in the rate of pay.
• Lay off procedures.
• Modification of benefits, even those not ordinarily associated with public employment.
• Grievances procedures.
• Restrictions on the right of representation during officer-involved shootings.
• Actions which significantly increase the cost of the employee to perform his work.
• Disciplinary appeal procedures.
• Procedures for verification of claims for sick leave use.
• Adoption of fitness-for-duty examinations, including mandatory drug testing programs.

As you can see, the courts broadly interpret the MMBA when determining if a new policy or practice falls within the scope of representation. While the MMBA is broad, it does have its limitations. The following is a list of items which have been excluded by the courts as not falling within the scope of representation:

• Promotional opportunities regarding positions outside the bargaining unit.
• The right to lay off employees, except for the effects of such lay off upon the bargaining unit.
• Adoption of a "shooting policy."
• Implementation of a shooting review board or police commission.
• Non-safety issues of an unsubstantial nature which do not directly impact the employment relationship.
• Mandatory increased employee retirement contributions where the MOU does not require the employer to pick up those increases.
• Changes in promotional policies to comply with court decree to remedy past racial discrimination.
• Change in or initiating employee parking fees.
• Adopting charter provision established minimum salary.

Association leaders should keep a close eye on policy and/or practice changes the public employer unilaterally makes before meeting and conferring that may fall within the scope of representation. Many public employers are either ignorant of the law or simply refuse to deal with the association on matters they feel are within their complete control. When local government agencies implement policies or practices that association leaders feel are within the scope of representation and should be met and conferred over, they should either write a letter to the public employer or have their attorneys write, demanding that the policy change not be implemented until the agency and association have bargained over it. If the agency refuses to meet and confer in good faith, the association may obtain a writ of mandate or injunction compelling the agency to meet and confer in good faith prior to implementing the policy or rule.

If an association fails to challenge changes in policies or rules, it may be waiving its right to make challenges in the future. Under Government Code ' 3304.5, a public employer is required to provide "written notice" of applicable changes or adoptions which are "proposed to be adopted". An employer simply sending out the new rule, after it has been adopted, does not comply with 3304.5. If the employer does send out proper notice or as some courts have held, an association otherwise has knowledge of the proposed change, and the association fails to request a meet and confer session prior to adoption, they may not later challenge the adoption.