Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Grievance Procedures	Interest arbitration decision awarding language that “the right to arbitrate grievances shall be retroactive to the effective date of the contract.” Court found that grievance procedure, and thus necessarily retroactive application of grievance procedure, were mandatory topics for bargaining under Michigan law.	Mandatory.	Ottawa County v. Police Officers Association of Michigan, 2008 WL 5265900 (Mich.App. 2008).
Health Insurance	Employer failed to respond to Union’s request to reopen negotiations on health care benefits when premiums increased at a rate faster than 10%. Contract clause allowed such a reopening. “Business necessity” defense rejected where employer had ample time to bargain with the Union.	Mandatory. Employer required to bargain over issue.	City of Tukwila, Decision 9691-A (Wash. PECB 2008).
Holidays	Proposal that would require holiday pay to be placed into base pay.	Mandatory. Employer required to submit to interest arbitration over issue.	Borough of Fort Lee, PERC No. 2008-70 (N.J. PERC 2008).
Performance Evaluations	Union sought to arbitrate grievance challenging comments placed in employee’s performance evaluation. Though evaluation itself is not grievable, the Union could challenge the use of the evaluation for disciplinary purposes.	Not Mandatory. Employer not required to submit to arbitration over issue.	Monmouth County Sheriff’s Office, PERC No. 2008-64 (N.J. PERC 2008).
Subcontracting	Transfer of clerical work associated with traffic officers’ duties to non-sworn personnel. Decision to transfer mandatory for bargaining, but Union specifically waived the right to bargain through collective bargaining agreement. Employer still required to bargain over impacts of transfer.	Mixed.	City of Newton, No. MUP-02-3634 (Mass. ERB 2008).
Union Activities	Proposals to allow release time for union training and meetings. Use of union leave does not amount to illegal employer financial assistance to a union.	Mandatory. Employer required to bargain over issues.	Yakima County, Decision 10204 (Wash. PECB 2008).

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).