Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Compensatory Time Off	Employer instituted new policy requiring an officer to find a replacement employee if the officer wished to extend annual vacation through the use of comp time.	Mandatory. Employer required to rescind policy.	El Cajon Police Officers Association v. City of El Cajon, 2006 WL 1359647 (Cal.App. 2006).
Discipline	After contract expired, employer issued dispatcher a reprimand without just cause. Standard of just cause determined to be part of “status quo” an employer must maintain during bargaining for new contract.	Mandatory. Employer required to rescind reprimand.	Deschutes County, Oregon, Case No. UP-32-04 (ERB 2006).
Off-Duty Employment	Unilateral termination of “Jobs In Blue” program under which off-duty work in uniform was administered. Under New Jersey law, employer had management right to control off-duty employment.	Not Mandatory. Employer allowed to terminate program.	Township of Union, 32 NJPER 53 (N.J. PERC Dir. 2006).
Overtime	Sheriff challenged clause in contract that emergency call-in assignments should be offered to bargaining unit members first. Clause ruled not to conflict with Sheriff’s inherent management rights.	Mandatory. Clause ruled enforceable.	Dunn County v. Wisconsin Employment Relations Commission, 2006 WL 1147598 (Wis.App. 2006).
Subcontracting	Without bargaining with firefighters’ union, employer cross-trained and appointed nine police officers to the fire department. Transfer of work outside of bargain unit mandatory for bargaining.	Mandatory. Employer required to rescind actions.	City of Iron Mountain, 19 MPER 29 (Mich. ERC 2006).
Transfers	Union proposed continuation in contract of clause requiring the employer to “consult with the union” concerning transfers, and requiring the employer to “give consideration to such factors as qualifications, seniority, and the good of the Department.” Commission found that “consultation” requirement is mandatory for bargaining since procedures related to promotions are mandatory under New Jersey law. However, since the standards for transfer are not mandatory for negotiation, the remainder of the clause struck down.	Mixed. Only portion of clause ruled mandatory.	City of Newark, 32 NJPER 47 (N.J. PERC 2006).

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).