Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Job Assignments	Firefighters’ union referred to arbitration grievance over failure to assign Senior Captain’s position by seniority. Though post called for premium pay, Commission ruled that assignment issues were a management right.	Not Mandatory. Employer not required to proceed to arbitration.	City of Elizabeth and Elizabeth Fire Superior Officers Association, Case No. 2007-11 (N.J. PERC 2006).
Promotions	Employer unilaterally changed promotional standards applying to the amount and proximity of recent discipline that would disqualify an applicant. Where promotional procedures are mandatory for bargaining, promotional standards are not.	Not Mandatory. Employer allowed to maintain new standards.	City of Hamburg, Case No. PF-C-06-54-E (Pa. LRB 2006).
Retirement	Proposal that employer make contribution to employee’s deferred compensation account. Proposal not preempted by statewide police/fire retirement plan.	Mandatory. Employer required to bargain over issue.	Snohomish County and Snohomish County Deputy Sheriffs’ Association, Decision 8733-C (Wash. PERB 2006).
Sick Leave	Employer refused to arbitrate grievance challenging change in “doctor slip” requirements under sick leave policy.	Mandatory. Employer required to process grievance to arbitration.	New Jersey Transit Corporation, PERC No. 2006-91 (N.J. PERC 2006).
Staffing	Employer attempted to breach a settlement agreement it reached on an earlier grievance. Under the terms of the settlement agreement, the employer was required to fill vacancies, including those from temporary absences, with a fire officer of at least equal rank.	Mandatory. Employer obliged to comply with settlement agreement.	City of Newark, 32 NJPER 23 (N.J. PERC 2006).
Vacations	Employer unilaterally changed the method by which it calculated the number of vacation slots made available to correction officers during the year. A change in the number of employees that can take vacation at any given time primarily affects staffing, and is not mandatorily negotiable, as long as the employer does not change the method by which vacation preferences are granted and the amount of vacation that employees may use is not diminished.	Not Mandatory. Employer allowed to retain changed practice.	Westchester County Correction Officers Benevolent Association, Inc. and County of Westchester, Case No. U-24784 (N.Y. PERB ALJ 2006).

There are three categories of bargaining topics.

Mandatory. Mandatory subjects must be negotiated if either side raises them during the negotiations process. If a past practice concerns a mandatory subject of bargaining, an employer may not make a change in the practice without first bargaining with the labor organization unless the labor organization has waived its right to negotiate over the subject.

Permissive. Permissive subjects need not be negotiated by either party, but can be negotiated if both sides voluntarily choose to do so. An employer is free to make changes in past practices affecting permissive subjects of bargaining without first bargaining with a labor organization.

Prohibited. Prohibited subjects are excluded from bargaining. A subject is often prohibited if it is “preempted” by another law covering the subject (e.g., a state law might preempt bargaining over the entire subject of pension benefits).