Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Bargaining Unit Configuration	Union proposed contract clause that would have defined which positions were in the collective bargaining unit. Issues of unit determination were handled by state labor board.	Not Mandatory. Employer not required to bargain over proposal.	Village of Malverne, No. U-28688 (N.Y. PERB ALJ 2009).
Discipline	Employer refused to process to arbitration disputes over “minor discipline,” such as short suspensions. Arbitration not preempted by state civil service law.	Mandatory. Employer required to process to arbitration.	Fire District I of Township of Woodbridge v. PERC, 2009 WL 1789475 (N.J. Super. A.D. 2009).
Discipline	Employer adopted new police disciplinary procedure in conflict with the terms of the negotiated disciplinary procedure in the parties’ expired agreement.	Mandatory. Employer required to rescind policy.	Town of Wallkill, U-27426 (N.Y. PERB 2009).
Health Insurance	Employer refused to arbitrate grievance challenging change in increased out-of-pocket maximum expenses associated with new health insurance program implemented by carrier. Grievance was arbitrable to the extent it asserted that employer had obligation to pay the additional costs of the new plan.	Mandatory. Employer required to arbitrate grievance.	City of Bayonne, PERC No. 2009-40 (N.J. PERC 2009).
Smoking	Employer established a new requirement that candidates for employment not smoke. No bargaining obligation because union did not represent applicants.	Not Mandatory. Employer allowed to maintain requirement.	Riverside Sheriffs Association v. Trask, 2009 WL 618239 (Cal. App. 2009).
Work Rules	New rule banned employees from surreptitiously tape recording other employees. Commission concluded that surreptitious recording could chill communication between employees and their supervisors and co-employees, and that the employer’s interest in establishing a policy banning surreptitious recording outweighed the employees’ interest in recording hostile or illegal statements by supervisors and co-employees.	Not Mandatory. Employer not required to bargain over rule.	North Hudson Regional Fire & Rescue, No. 2010-3 (N.J. PERC 2009).

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).