Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Compensatory Time Off	Employer unilaterally eliminated compensatory time off system and cashed out employees’ accrued compensatory time off. Commission rejected the argument that recent change in case law surrounding the Fair Labor Standards Act necessitated the elimination of comp time.	Mandatory. Employer required to rescind change in policy and restore compensatory time off system.	City of Pasco, Washington, Decision #9181-A (Wash. PECB 2008).
Equipment	Employer unilaterally issued policy in handbook concerning use of the employer’s computers and the Internet. Terms for use of computers were not “material, substantial and significantly affecting the terms and conditions of employment.”	Not Mandatory. Employer allowed to maintain handbook provision.	City of Okmulgee, Oklahoma, 124 LA 423 (Walker, 2007).
Premium Pay	Proposal would allow the parties to agree on future premium pay positions.	Mandatory. Employer required to bargain over proposal.	Borough of Upper Saddle River, #2008-22 (N.J. PERC 2007).
Privacy	After receiving requests from the media, employer disclosed bargaining unit members’ sick leave usage, overtime pay, and discipline. Since the employer had never before received such requests from the media, there was no “past practice” the employer changed in releasing the information.	Not Mandatory. Employer not required to bargain.	Multnomah County, Oregon, Case No. UP-18-06 (Or. ERB 2008).
Smoking	Employer enacted ordinance banning smoking in all City buildings, vehicles, or equipment. Not mandatory for bargaining because the rule applied not just to employees, but to citizens.	Not Mandatory. Employer allowed to maintain ordinance.	Borough of Ellwood City, 2007 WL 4615472 (Pa.Cmwlth. 2008).
Vehicles	Employer significantly reduced the number of take-home vehicles and unilaterally changed the number of the first-come-first-served parking stalls. Commission noted the employer’s obligation to give the labor organization notice of intent to changes in mandatory subjects of bargaining, and the failure to give notice may lead to rejection of claim that bargaining demand was untimely.	Mandatory. Employer required to rescind changes in policy.	City of Omaha, CIR Case No. 1121 (Neb. CIR 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).