Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Assignment Of Duties	Employer unilaterally reassigned two officers from detective positions which carried with them premium pay, to patrol duties. Board treated change in job status as an “assignment issue,” which is not negotiable under Oregon law, rather than as a “promotion issue,” which is negotiable.	Not Mandatory. Employer allowed to maintain assignments.	Milwaukie Police Employees Association, Case No. UP-63-05 (Oregon ERB 2007).
Discipline	Employer refused to process to arbitration a grievance challenging police officer’s five-day suspension. Under New Jersey law, “minor discipline” may be submitted to binding arbitration if the contract so provides.	Mandatory. Employer required to proceed to arbitration.	New Jersey Transit Commission, #2008-31 (N.J. PERC 2007).
Medical Examinations	Employer announced new policy that Union representatives would not be allowed to videotape or audiotape medical examinations to determine line-of-duty injuries. The video or audiotaping of the medical examination is a mandatory subject of negotiation because it is a procedure for accumulating evidence to be utilized in the review of the initial determination and is not excluded from bargaining.	Mandatory. Employer required to desist from policy.	Orangetown Policemen’s Benevolent Association, Case No. U-25717 (N.Y. PERB 2007).
Retirement	Employer enacted ordinance changing amortization period for pension plan. State law completely delegated to the City the right to set the amortization period.	Not Mandatory. Employer not required to bargain over ordinance.	City of Detroit, Case No. C06 B-023 (Mich. ERC 2007).
Workers’ Compensation	Employer refused to comply with arbitrator’s award compelling it to make pension contributions for and make whole the sick leave of an employee with an on-the-job injury. Commission finds that employer’s arguments were an “impermissible collateral attack” on the finality of an arbitrator’s opinion.	Mandatory. Employer required to comply with Arbitrator’s decision.	Hazle Township, Case No. C-07-107-E (Pa. LRB 2007).

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).