Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Health Insurance	After interest arbitrator required employees to participate in “mandatory generic” features of a prescription health plan, employer unilaterally implemented its own definition of the term “mandatory generic.” The Court upheld subsequent grievance arbitrator’s order that employer bargain over the meaning of the term “mandatory generic.”	Mandatory. Employer required to bargain over program.	Commonwealth of Pennsylvania, 917 A.2d 889 (Pa.Cmwlth. 2007).
Parking	Employer eliminated 13 parking stalls that had been used on a first-come, first-serve basis by bargaining unit members. Management rights clause did not constitute waiver of right to bargain.	Mandatory. Employer required to rescind change in practice.	Omaha Police Union, Local 101, IUPA v. City of Omaha, Case No. 1121 (Neb. CIR. 2007).
Promotions	Employer unilaterally changed the criteria for promotion to the rank of sergeant. Issue negotiable even though those taking the examination were not members of the bargaining unit.	Mandatory. Employer required to bargain over new standards.Mandatory. Employer required to bargain over new standards.	City of Detroit v. Detroit Police Lieutenants and Sergeants Association, 2007 WL 397145 (Mich.App. 2007).
Subcontracting	Employer implemented policy to hire retirees as temporary non-career employees to remedy a short-term staffing shortage in the Police Department. The Court concluded that the shortage of personnel was “beyond the power of the Union to remedy, other than through overtime to the limits of human endurance, a remedy itself fraught with danger to public safety.”	Not Mandatory. Employer not required to bargain over decision.	Sacramento Police Officers Association v. City of Sacramento, 54 Cal.Rptr.3d 167 (Cal.App. 2007).@
Work Schedules	Employer ordered all superior officers to attend meetings on computer statistics program without regard to whether meetings fell on managers’ days off. Since issue of overtime compensation not implicated, PERC held employer had management right to organize computer statistics program training in a manner it deemed most effective.	Not Mandatory. Employer not required to bargain over program.	Township of Union, New Jersey, PERC No. 2007-64 (N.J. PERC 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).