Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Disciplinary Procedures	Employer changed past practice of automatically accepting arbitration awards and began to submit awards to Board of Supervisors for approval. Collective bargaining explicitly allowed submission of awards to Board for approval.	Not Mandatory. Employer allowed to submit awards for approval.	Riverside Sheriffs’ Association v. Trask, 2009 WL 618239 (Cal. App. 2009).
Health Insurance	Police union proposed that employer be required to provide health insurance for the dependents of retired employees who were deceased.	Mandatory. Employer required to bargain over proposal.	Village of Malverne, No. U-28688 (N.Y. PERB ALJ 2009).
Light Duty	Employer refused to arbitrate grievance challenging implementation of modified duty policy. Decision to implement policy not mandatory for bargaining, though impacts of the decision on employees were mandatorily negotiable.	Mixed. Employer required to submit to arbitration.	City of Asbury Park, PERC No. 2009-66 (N.J. PERC 2009).
Residency	Police union demanded to negotiate a procedure to review whether employees were in compliance with a residency requirement. Though New York state law made residency not negotiable, procedures to determine residency compliance were subject to bargaining.	Mandatory. Employer required to bargain over procedures.	City of Niagara Falls, No. U-27834 (N.Y. PERB ALJ 2009).
Shift Schedules	Employer unilaterally changed officers from a 12-hour shift schedule to an eight-hour rotating shift. Employer’s defense that the 12-hour shift was “experimental” rejected where shift lasted longer than unsigned memorandum of agreement describing the shift.	Mandatory. Employer required to rescind change.	Nazareth Borough, No. PF-C-08-42-E (Pa. LRB 2009).
Timeliness Violation	Employer unilaterally changed its policy regarding firefighter duties and driver’s license requirements. Union failed to file unfair labor practice complaint within the six-month time limit.	Undecided.	City of Alhambra, No. 2036-M (Cal. PERB 2009).
Union Activities	Employer refused to arbitrate grievance challenging removal of materials from union’s bulletin board. Contract allowed removal of materials that were “obscene or offensive,” and factual issue existed as to whether e-mails fell in that category.	Mandatory. Employer required to submit to arbitration. Employer required to rescind change.	Township of Plainsboro, PERC No. 2009-42 (N.J. PERC 2009).

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).