Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Disciplinary Standards	Employer unilaterally replaced portion of work rule prohibiting off-duty consumption of intoxicating beverages with a new rule prohibiting consumption of such beverages within eight hours of reporting to duty. Change negotiable because of impact on disciplinary process.	Mandatory. Employer required to rescind change.	New York State Law Enforcement Officers Union and City of Albany, U-27105 (N.Y. PERB Dir. 2008).
Drug Testing	Employer failed to respond to Union’s demand to bargain over whether a random drug testing program should be in existence; contract was silent on the issue, and Union opposed random testing.	Mandatory. Employer required to bargain over issue.	City of Yakima, Decision 9062-B (Wash. PERC 2008).
Hours Of Work	Employer instituted new practice of requiring employees to use separate forms for requesting vacation leave and compensatory time off. Practice found not to “directly affect the work and welfare of officers.”	Not Mandatory. Employer not required to bargain over new practice.	Borough of South River, PERC No. 2008-38 (N.J. PERC 2008).
Shift Scheduling	Town changed schedule of one officer from a four-week schedule block to a block of two weeks. Since the change was not a “system-wide change in work hours,” not mandatory for bargaining.	Not Mandatory. Employer allowed to change officer’s schedule.	Town of McCandless v. McCandless Police Officers Association, 2008 WL 2436535 (Pa.Cmwlth. 2008).
Staffing	Employer unilaterally modified its policy with respect to the dispatch of a backup vehicle in response to certain calls. PERB decided the new practice was a “slight change related to deployment of staff” as opposed to a safety issue.	Not Mandatory. Employer not required to bargain over change.	Lake Mohican Professional Firefighters Association, U-26743 (N.Y. PERB 2008).
Subcontracting	Corrections employer ended a “close street supervision” program and transferred the work performed by bargaining unit members to a different unit made up of members of a different bargaining unit. Board cited lost overtime opportunities as the basis for concluding that the transfer of work was mandatory for bargaining.	Mandatory. Employer required to bargain over change.	Multnomah County Correction Deputies Association, Case No. UP-58-05 (Or. ERB 2008).
Wages	Employer refused to process to arbitration grievance seeking payment of hazardous duty stipends to firefighters while they were on sick leave status.	Mandatory. Employer required to proceed to arbitration.	City of Newark, PERC No. 2008-60 (N.J. PERC 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).