Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Drug Testing	Minnesota state statute allowed employer to unilaterally establish a random drug-testing plan. However, process of implementation and effects of plan mandatory for bargaining.	Mixed.	Law Enforcement Labor Services, Inc., 2005 WL 1021561 (Minn.App. 2005).
Health Insurance	Employer unilaterally changed co-payments for prescriptions. Since Association president knew of the proposed change, and even discussed it with a representative of the employer, the Association’s failure to demand to bargain before the change was implemented constituted a waiver of the right to bargain.	Employer not required to rescind change because of waiver.	Edmonds, Washington Police Officers Association, 2004 WL 3058182 (Wash. PERC ALJ 2004).
Promotions	Employer proposed that to the extent that negotiated promotional procedures conflicted with a recently-enacted statewide promotional law, the contract would control. Proposal not mandatory since the minimum guarantees in the promotional law were not waivable.	Not Mandatory. Employer not allowed to maintain proposal.	Village of Elk Grove Village, 21 PERI ¶14 (Ill. LRB Gen. Counsel 2005).
Sick Leave	Employer unilaterally implemented Absence Control Tracking System, an Excel spreadsheet that tracks absences, calculates average use of sick leave, and identifies potential “abusers.” Since System involved potential discipline, employer required to bargain over effects of implementation.	Mandatory. Employer required to rescind implementation of system.	Kitsap County, Washington Deputy Sheriff’s Guild, 2005 WL 781449 (Wash. PERC 2005).
Truthfulness	State issued a new rule that required troopers to be “truthful and honest in the discharge of their duties.” While no specific rule existed on the issue in the past, evidence showed that the mandate for truthfulness and honesty was inherent in the job of trooper before the enactment of the rule, and had, in fact, been the subject of a number of disciplinary charges against individual troopers.	Not Mandatory. Employer not required to bargain over rule.	Pennsylvania State Troopers’ Association, 36 PPER ¶38 (Pa. LRB ALJ 2005).

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).