Bargaining Update

SUBJECT	DESCRIPTION	STATUS	CASE NAME
Drug Testing	When in the past, the employer had offered employees who violated its substance abuse policy “last chance” agreements, it terminated a firefighter for a first offense. Employer not required to bargain over issue because, as “last chance” agreements were non-precedent setting, they did not establish a past practice.	Not Mandatory. Employer allowed to administer testing.	San Francisco Firefighters, Local 798 v. City and County of San Francisco, 28 PERC ¶120 (Cal. PERB 2004).
Employee Rights	Police Chief ordered a police officer not to file criminal charges against a civilian who had filed an internal affairs complaint against the officer. Case decided solely on whether the issue was a mandatory subject of bargaining, and did not deal with the officer’s rights as a citizen to file such charges.	Not Mandatory. Employer not required to bargain over issue.	Township of Hillsborough, 30 NJPER ¶8 (N.J. PERC 2004).
Grievance Procedures	Union proposal to define as a grievance “any complaint, difference, or dispute between the employer and any employee with respect to the interpretation, application, or violation of any provisions of the agreement or any applicable rule or regulation or policies, agreements, or administrative decisions affecting any employee covered by this agreement.”@@	Mandatory. Employer required to bargain over issue.	Township of West Milford, 30 NJPER ¶77 (N.J. PERC 2004).
Staffing	Employer changed staffing levels from 36 to 39 firefighters, impacting the opportunities of existing firefighters to work unscheduled overtime.	Mandatory. Employer required to rescind change.	City of Newport v. Newport Professional Firefighters Union, IAFF Local 45, 2004 WL 2013290 (Ky.App. 2004).
Transfers	Superior Officers Association filed a grievance challenging the transfer of a captain from the Internal Affairs Unit to patrol. Under New Jersey law, police employees who believe they have been unjustly reassigned or transferred must challenge the decision in court, not through the grievance procedure.@	Not Mandatory. Employer not required to process grievance.	City of Trenton and PBA, Local 11, 30 NJPER ¶23 (N.J. PERC 2004).

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).