american bar association section of labor and...

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© 2006 American Bar Association http://www.bnabooks.com/ababna/state/2006/crisci.doc

AMERICAN BAR ASSOCIATION SECTION OF LABOR AND EMPLOYMENT LAW

COMMITTEE ON STATE AND LOCAL GOVERNMENT COLLECTIVE BARGAINING AND EMPLOYMENT LAW

SCOPE OF BARGAINING – MANDATORY SUBJECTS OF BARGAINING∗

By: George S. Crisci

∗The presentation of decisions from Administrative Law Judges that have not been affirmed by their respective state labor boards/commissions is done for informational purposes only. The reader should be aware that such decisions may not be binding precedent in those jurisdictions.

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TABLE OF CONTENTS

I. REMOVING WORK FROM THE BARGAINING UNIT ............................................... 1 A. Subcontracting.................................................................................................................... 1

1. Public School Academies............................................................................................. 1 2. Traffic Control Work ................................................................................................... 1 3. Custodial Work for Special Events .............................................................................. 1 4. Holiday Shuttle Work .................................................................................................. 2 5. Proposal to Prohibit Subcontracting............................................................................. 2

B. Skimming. .......................................................................................................................... 3 1. Creating New Fire Department with Cross-Trained Public Safety Officers................ 3 2. Police Work to Sheriff’s Department........................................................................... 3 3. Custodial Services – Lead Positions ............................................................................ 3 4. Vacant Position ............................................................................................................ 4 5. Medical Support Services ............................................................................................ 4 6. Assignment of Police Sergeant to Narcotic Enforcement Team.................................. 4 7. Assignment of Police Patrol Work to Police Chief...................................................... 5 8. Claims Work ................................................................................................................ 5 9. Events Manager............................................................................................................ 6 10. Police Officer to Assist in Prison Cell Searches .......................................................... 6 11. Automation of Services................................................................................................ 7 12. Judicial Service Officers .............................................................................................. 8 13. Clerical Paraprofessionals ............................................................................................ 8 14. Assigning Work to Volunteers..................................................................................... 8

II. LEGAL IMPEDIMENTS TO ESTABLISHING MANDATORY SUBJECTS OF BARGAINING................................................................................................................... 9

A. Education Standards. .......................................................................................................... 9 1. Teacher Tenure............................................................................................................. 9 2. Restrictions on Privately Tutoring Students ................................................................ 9 3. Performing Statutory Special Education Requirements............................................. 10 4. Performance-Based Pay Increment Denial ................................................................ 10

B. Leaves of Absence............................................................................................................ 11 1. Denial of Paid Military Leave.................................................................................... 11 2. Maternity Leave ......................................................................................................... 11

C. Work-Related Injury Benefits. ......................................................................................... 11 1. Employer Payment of Health Care Expenses During Line-of-Duty Injuries............. 11 2. Initial Workplace Benefits Eligibility Determinations by Employer......................... 11 3. Eligibility for Catastrophic Medical Leave................................................................ 12 4. Refusal to Reinstate Employee Covered by Workers’ Compensation Without

Medical Clearance...................................................................................................... 12 5. Composition of Workers’ Compensation Panel of Doctors/ Providers ..................... 12 6. Deduction of Employee Portion of Industrial Insurance Contributions..................... 12

D. Unemployment Compensation ......................................................................................... 13 E. Investigating Police Misconduct. ..................................................................................... 13

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F. Indemnifying Civil Judgments ......................................................................................... 15 G. Waiver of Statutory Rights............................................................................................... 15

1. Promotions ................................................................................................................. 15 2. Waiving/Raising Minimum Wage Rate ..................................................................... 16

H. Promotions........................................................................................................................ 16 1. Incorporating Statute into Labor Contract ................................................................. 16 2. Seniority as a Factor................................................................................................... 16 3. Eligibility to Take Promotional Exam ....................................................................... 16 4. Scoring Exam, Minimum Passing Score and Filling Vacancies................................ 17

I. Deferred Compensation/Pensions. ................................................................................... 17 1. Matching Employee Contributions for Deferred Compensation ............................... 17 2. Retirement Benefits COLA........................................................................................ 17 3. Local Ordinance Altering Pension Benefits............................................................... 18 4. Pension/Social Security Benefits Information ........................................................... 18 5. Post-Retirement Medical Benefits ............................................................................. 18

J. Statutory Requirement of Uniform Health Benefits......................................................... 19 K. Paid Lunch Breaks – Wage/Hour ..................................................................................... 19 L. Voter-Approved Home Rule Charter Amendment .......................................................... 20 M. Federal Transportation Funding ....................................................................................... 21 N. Medicare Programs........................................................................................................... 21 O. Intellectual Property Rights.............................................................................................. 21 P. Civil Service. .................................................................................................................... 23

1. Layoff Procedures ...................................................................................................... 23 2. Exam Scores Information........................................................................................... 23 3. Exam Ranking/Evaluation Information ..................................................................... 23 4. Suspending Benefits After Unionization ................................................................... 23 5. Changing Job Specification........................................................................................ 24

Q. Arbitration Procedures. .................................................................................................... 24 1. Arbitrator’s Retention of Jurisdiction Pending Finalization of Remedy.................... 24 2. Scheduling of Arbitration Hearings ........................................................................... 25 3. Incorporating Prior Arbitration Awards..................................................................... 25

R. Selection of Providers Under Workforce Investment Act................................................ 25 S. Granting Extended Sick Leave......................................................................................... 26

III. PAST PRACTICES.......................................................................................................... 26 A. Take-Home Vehicles. ....................................................................................................... 26 B. Appointments ................................................................................................................... 28 C. “Training Block” to Annual Leaves ................................................................................. 28 D. Overtime. .......................................................................................................................... 28

1. Rotation Procedures ................................................................................................... 28 2. Payment for In-Service Training................................................................................ 29

E. Calculation of Suspensions – Days vs. Hours .................................................................. 29 F. Pay for Attending Bargaining Sessions............................................................................ 29 G. Modified Schedule for Deer Hunting Season................................................................... 29 H. Extra-Contractual Health Benefits ................................................................................... 30

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I. Sick Leave Benefits.......................................................................................................... 30 1. Medical Appointments ............................................................................................... 30 2. Unlimited Paid Sick Leave......................................................................................... 30

J. Extended Time for School Psychologist .......................................................................... 31 K. Compensatory Time for Work During Emergency Closings ........................................... 31 L. Calculating Paid Leave for Full-Shift Absences .............................................................. 31 M. “Summer Bump” Meeting................................................................................................ 32

IV. DRUG TESTING. ............................................................................................................ 33 A. Random Drug Testing in Employee’s Home ................................................................... 33 B. Random Drug Testing for Safety-Sensitive Positions...................................................... 33 C. Drug Testing for Workplace Injuries/Illnesses................................................................. 34 D. Revisions to Drug Policy.................................................................................................. 34 E. Pre-Employment Drug Testing......................................................................................... 34

V. ADMINISTERING SICK LEAVE .................................................................................. 35 A. Sick Leave Verification.................................................................................................... 35 B. Sick Leave Monitoring System ........................................................................................ 35 C. Sick Leave Absence Counseling Policy ........................................................................... 35 D. Restricting Child-Rearing Leave...................................................................................... 36

VI. MANDATORY BARGAINING SUBJECT ESTABLISHED........................................ 36 A. Wages. .............................................................................................................................. 36

1. Interest on Monetary Payments.................................................................................. 36 2. Compliance with Wage/Hour Laws ........................................................................... 36 3. Pay for Work in Higher Classification....................................................................... 36 4. Bi-Weekly Pay Calculation........................................................................................ 38 5. Deviation Clause ........................................................................................................ 38 6. Last Payday of School Year ....................................................................................... 38 7. Effects of Assigning Emergency Management Duties .............................................. 38 8. Effects of Cancelling Online Courses ........................................................................ 39 9. Overtime Adjustments/Allocations. ........................................................................... 39 10. Starting Salary for Employees with Prior Work Experience ..................................... 40 11. Eliminating Paid Lunch Break Not Required by Law ............................................... 40 12. Adding Easter as Paid Holiday .................................................................................. 40 13. Limiting Hiring of Part-Time Employees .................................................................. 41

B. Benefits............................................................................................................................. 41 1. Participating in Change of Health Benefits Carriers.................................................. 41 2. Deductibles................................................................................................................. 42 3. Health Benefits Changes. ........................................................................................... 42

C. Hours. ............................................................................................................................... 43 1. Retaining 24/72 Hour Work Schedule ....................................................................... 43 2. Replacing Work Schedules. ....................................................................................... 43 3. Optional Work Schedule. ........................................................................................... 44 4. Tour of Duty Chart..................................................................................................... 45

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5. Appointing Part-Time Employee to Full-Time Position............................................ 46 D. Other Conditions. ............................................................................................................. 46

1. Reimbursement for Training Courses ........................................................................ 46 2. Seniority as “Primary” Factor .................................................................................... 46 3. Summer Work Assignments for School Guards ........................................................ 46 4. Paying Union President’s Telephone Calls................................................................ 47 5. Adjusting Staffing to Reduce Overtime ..................................................................... 47 6. Preferred Assignments ............................................................................................... 47 7. Allocation of Light Duty Assignments ...................................................................... 48 8. Promotion Procedures. ............................................................................................... 48 9. Maintaining Detailed Time Records. ......................................................................... 48 10. Hiring Non-Unit Special Police ................................................................................. 49 11. Economically-Motivated Layoffs .............................................................................. 50 12. Changes to Evaluation Procedures............................................................................. 50 13. Minimum Staffing. ..................................................................................................... 51 14. Bringing Containers to Work ..................................................................................... 53 15. Additional Job Qualifications .................................................................................... 54 16. Effects of Implementing Criminal Background Checks ............................................ 54 17. Management Rights Clause........................................................................................ 54 18. Restrictions on Dual Assignments ............................................................................. 55 19. Notice of Out-of-Title Assignments........................................................................... 55 20. Expanding Patrol Areas.............................................................................................. 55 21. Effects of Disciplinary Demotion .............................................................................. 56

VII. PERMISSIVE BARGAINING SUBJECTS .................................................................... 57 A. Separate Paychecks for Overtime Pay.............................................................................. 57 B. One-Officer Patrol Cars.................................................................................................... 57 C. Training Requirements. .................................................................................................... 57

1. Defibrillator Training ................................................................................................. 57 2. Pepper Spray Training................................................................................................ 57

D. Retiree Benefits. ............................................................................................................... 58 E. Limiting Leave Time Per Shift......................................................................................... 58 F. Overtime Procedures. ....................................................................................................... 58

1. Overtime Ratio ........................................................................................................... 58 2. Mandatory Overtime .................................................................................................. 59 3. Eliminating Extra-Duty Assignments ........................................................................ 59

G. Assignment of Union President to Non-Uniformed Division .......................................... 59 H. “Surveying” Businesses ................................................................................................... 59 I. Platoon Swapping............................................................................................................. 60 J. Reinstatement Without Medical Clearance ...................................................................... 60 K. Transfers. .......................................................................................................................... 60

1. Statutory Management Right. .................................................................................... 60 2. Achieving Diversity/Racial Balance. ......................................................................... 61 3. After Eliminating Position ......................................................................................... 61 4. Eliminating Employee Conflicts ................................................................................ 62

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L. Work Shift Adjustments to Meet Operational Needs....................................................... 62 M. Promotions........................................................................................................................ 63

1. Selecting Outsider. ..................................................................................................... 63 2. Minimum Qualifications ............................................................................................ 64

N. Receipt of Standardized Student Test Scores................................................................... 64 O. Secretly Taping Grievance Meetings ............................................................................... 65 P. Discipline.......................................................................................................................... 65

1. Expungement/Non-Use of Prior Discipline Records ................................................. 65 2. Increasing Suspension on Appeal .............................................................................. 65

Q. Wearing Reflective Vests ................................................................................................. 66 R. Activating Police Lights ................................................................................................... 66 S. Information on Lease Bidding.......................................................................................... 67 T. Assignments. .................................................................................................................... 67

1. Restrictions on Out-of-Title Responsibilities............................................................. 67 2. Discontinuing Off-Duty Assignments........................................................................ 68 3. Police Work Schedules .............................................................................................. 68 4. Assigning Work Not Covered by Grant..................................................................... 68 5. Refusal to Reassign Based Upon Performance Assessment ...................................... 69 6. Fire Officer Work Schedules...................................................................................... 69

U. Parking Fees ..................................................................................................................... 69 V. Preamble/Recognition Clauses......................................................................................... 70 W. Disbanding SWAT Division............................................................................................. 70

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TABLE OF AUTHORITIES

Cases Atlantic City Board of Education,

31 NJPER ¶81 (NJ PERC 2005)............................................................................................... 37

Atlantic County, 31 NJPER ¶94 (NJ PERC 2005)......................................................................................... 53, 65

Board of Education of the Chathams School District, 31 NJPER ¶116 (NJ PERC 2005)............................................................................................. 34

Board of Trustees of University of Illinois, the Illinois Educational Labor Relations Board, 359 Ill. App. 3d 1116, 836 N.E.2d 199 (2005) ......................................................................... 67

Board of Trustees of University of Illinois, the Illinois Labor Relations Board, State Panel, 361 Ill. App. 3d 256, 836 N.E.2d 187 (2005) ........................................................................... 67

Bon Homme County Commission v. AFSCME, Local 1743A, 699 N.W.2d 441 (S.D. 2005) .................................................................................................... 53

Borough of Belmar, 31 NJPER ¶52 (NJ PERB 2005)............................................................................................... 18

Borough of Emerson, 31 NJPER ¶53 (NJ PERC 2005)......................................................................................... 19, 21

Borough of Franklin, 31 NJPER ¶120 (NJ PERC 2005)............................................................................................. 66

Borough of Paramus, 31 NJPER ¶80 (NJ PERC 2005)............................................................................................... 18

Borough of Roselle Park, 31 NJPER ¶118 (NJ PERC 2005)............................................................................................. 59

Borough of Roselle Park, Dec. No. 2006-43 (NJ PERC)................................................................................................... 61

Camden County College, 31 NJPER ¶121 (NJ PERC 2005)............................................................................................. 54

Chicago Transit Authority, 21 PERI ¶95 (Ill. LRB GC 2005) ............................................................................................... 5

City of Cape May, 31 NJPER ¶31 (NJ PERC ALJ 2005)....................................................................................... 42

City of Chicago (Department of Police), 21 PERI ¶83 (Ill. LRB LP 2005) ................................... 1

City of Chicago, 20 PERI ¶183 (Ill. LRB GC 2004) ........................................................................................... 40

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City of Cincinnati, 22 OPER ¶376 (Ohio SERB 2005)........................................................................................... 19

City of Detroit (Department of Transportation), 18 MPER ¶67 (MICH. ERC 2005)....................................................................................... 2, 19

City of Easton, Case No. PF-C-05-119-W (Pa. LRB 2005) .............................................................................. 68

City of Gardener, Case No. 05-03 (Maine LRB 2005).......................................................................................... 38

City of Gardiner, Case No. 05-03 (Maine LRB 2005).......................................................................................... 51

City of Gloucester City, 30 NJPER ¶160 (NJ PERC 2004)............................................................................................. 42

City of Highland Park, 17 MPER ¶86 (Mich. ERC ALJ 2004) ....................................................................................... 3

City of Hoboken, 31 NJPER ¶60 (NJ PERC 2005)............................................................................................... 63

City of Jeannette, 36 PPER ¶68 (Pa. LRB 2005)..................................................................................................... 4

City of Jersey City, Dec. No. 2006-29 (NJ PERC 2005).......................................................................................... 58

City of Jersey City, Dec. No. 2006-31 (NJ PERC 2005).......................................................................................... 66

City of New Haven, Dec. No. 4090 (Conn. SBLR 2005).......................................................................................... 22

City of New York, 37 NYPER ¶3033 (NY PERB 2004) ............................................................................ 35, 44, 45

City of Newark, 30 NJPER ¶148 (NJ PERC 2004)............................................................................................. 55




City of Newark, 31 NJPER ¶112 (N.J. App. 2005)............................................................................................. 59

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City of Newark, 31 NJPER ¶46 (NJ PERC ALJ 2005)....................................................................................... 59

City of Newark, 31 NJPER ¶75 (NJ PERC 2005)............................................................................................... 64

City of Newark, 31 NJPER ¶76 (NY PERC 2005) ............................................................................................. 64

City of Newark, Dec. No. 2006-30 (NJ PERC 2005).......................................................................................... 67

City of Newark, v. Police Superior Officer’s Association, 31 NJPER ¶6 (N.J. Super. 2004) .............................................................................................. 14

City of Orange Township, 30 NJPER ¶151 (NJ PERC 2004)....................................................................................... 44, 54

City of Orange, 31 NJPER ¶56 (NJ PERC 2005)............................................................................................... 40

City of Paterson, 30 NJPER ¶153 (NJ PERC 2004)................................................................................. 13, 45, 57

City of Patterson, 30 NJPER ¶153 (NJ PERC 2004)............................................................................................. 11

City of Reading, 36 PPER ¶134 (Pa. LRB ALJ 2005)......................................................................................... 41

City of Royal Oak (Police Department), 18 MPER ¶35 (Mich. ERC 2005)............................................................................................... 4

City of Salem, Dec. No. 2006-46 (NJ PERC 2005).......................................................................................... 57

City of Seattle, 2005 WL 1046290, Dec. No. 8916 (Wash. PERC ALJ 2005) ................................................. 52

City of Seattle, 2005 WL 3308681, Dec. No. 9173 (Wash. PERC ALJ 2005) ................................................. 51

City of Seattle, 2005 WL 3308681, Dec. No. 9173 (Wash. PERC ALJ) ............................................................ 6

City of Torrington, Dec. No. 4029 (Conn. SBLR 2005).......................................................................................... 54

City of Trenton, 31 NJPER ¶26 (NJ PERC 2005)............................................................................................... 61

City of Trenton, 31 NJPER ¶28 (NJ PERC 2005)............................................................................................... 60

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City of University of New York, 38 NYPER ¶4532 (NY PERB ALJ 2005) ................................................................................ 28

City of Vineland, 31 NJPER ¶119 (NJ PERC 2005)............................................................................................. 62

City of Vineland, 31 NJPER ¶92 (NJ PERC 2005)......................................................................................... 19, 39

City of Wenatchee, 2004 WL 3058183, Dec. No. 8802 (Wash. PERC ALJ 2004) ................................................. 45

Clackamas County, Case No. UP-38-03 (Ore. ERB 2005)....................................................................................... 24

Clovis Unified School District, 29 PERC ¶168 (Cal. PERB ALJ 2005) .................................................................................... 18

Connecticut Department of Correction, Dec. No. 4083 (Conn. SBLR 2005).......................................................................................... 30

Connecticut Department of Correction, Decision No. 4084 (Conn. SBLR 2005) ................................................................................... 27

Cook County Hospital, 21 PERI ¶50 (Ill. LRB LP 2005) .............................................................................................. 28

Cooperative Educational Service Agency No. 3, Dec. No. 31292 (Wis. ERC 2005) ............................................................................................ 50

County of Camden, 30 NJPER ¶156 (NJ PERC 2004)............................................................................................. 56

County of Middlesex, 30 NJPER ¶173 (NJ PERC 2004)............................................................................................. 56

County of Nassau, 37 NYPER ¶4590 (NY PERB ALJ 2004) ................................................................................ 25

County of Nassau, 38 NYPER ¶3004 (NY PERB 2005) ........................................................................................ 25

County of Nassau, 38 NYPER ¶3005 (NY PERB 2005) ........................................................................................ 25

County of Passaic, 30 NJPER ¶163 (NJ PERC 2004)................................................................................. 12, 46, 57

County of Westchester, 38 NYPER ¶4548 (NY PERB ALJ 2005) .................................................................................. 6

Department of Public Welfare, North Hampton County Assistance Office, 36 PPER ¶93 (Pa. LRB ALJ 2005)........................................................................................... 64

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Douglass Township, Case No. PF-C-04-213-E (Pa. LRB 2005) ............................................................................... 41

Eastern Westmoreland Career & Technology Center, 36 PPER ¶104 (Pa. LRB ALJ 2005)......................................................................................... 43

Edgerton Fire Protection District, Dec. No. 30686-B (Wis. ERC 2005) .......................................................................................... 8

Edison Township Board of Education, 31 NJPER ¶61 (NJ PERC 2005)............................................................................................... 61

Ellwood City Borough, 36, PPER ¶41 (Pa. LRB ALJ 2005).......................................................................................... 50

Englewood Board of Education, Dec. Nos. 2006-32 to 35 (NJ PERC 2005) ............................................................................... 10

Forest Preserve District of Cook County, 21 PERI ¶43 (Ill. LB LP 2005) ................................................................................................. 48

Fort Lee Board of Education, Dec. No. 2006-37 (NJ PERC 2005).......................................................................................... 25

Gloucester County College, 31 NJPER ¶95 (NJ PERC 2005)............................................................................................... 37

Hyannis Education Association v. Grant County School District No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005) ...................................................................................... 37

In Hewlett-Woodmere Union Free School District, 38 NYPER ¶3006 (NY PERB 2005) .......................................................................................... 9

Jackson Township Board of Education, 31 NJPER ¶96 (NJ PERC 2005)............................................................................................... 59

Kitsap County, 2005 WL 781449, Dec. No. 8402 (Wash. PERC ALJ 2005) ................................................... 33

Kitsap County, 2005 WL 781491, Dec. No. 8893 (Wash. PERC ALJ 2005) ................................................... 27

Lane County Human Resources Division, Case No. UP-22-04 (Ore. ERB 2005)....................................................................................... 26

Law Enforcement Labor Services, Inc., the Sherburne County, 695 N.W.2d 630 (Minn. App. 2005)......................................................................................... 32

Lawrence Union Free School District, 38 NYPER ¶4518 (NY PERB ALJ 2005) ................................................................................ 27

Limerick Township, 36 PPER ¶125 (Pa. LRB 2005)........................................................................................... 28, 63

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Madera County Deputy Sheriff’s Association v. Madera County Civil Service Commission, 2005 WL 236513 (Cal. App. 2005) .......................................................................................... 47

Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004) ............................................................................ 11, 24, 55

Matter of City of New York, 37 NYPER ¶3033 (NYPERB 2004) ......................................................................................... 55

Matter of State of New York (Division of State Police), 38 NYPER ¶3007 (NY PERB 2005) ........................................................................................ 14

New Hampshire Department of Safety, Division of State Police, Dec. No. 2005-028 (NH PELRB 2005)............................................ 30

New Jersey State Judiciary (Ocean Vicinage), 30 NJPER ¶143 (NJ PERC 2004)............................................................................................. 33

New Jersey Transit Bus Operations, Inc., 31 NJPER ¶74 (NJ PERC 2005)............................................................................................... 36

New Jersey Transit Bus Operations, Inc., Dec. 2006-45 (NJ PERC 2005)................................................................................................. 56

New Jersey Transit Bus Operations, Inc., Dec. No. 2006-45 (NJ PERC 2005)...................................................................................... 2, 47

New Jersey Transit Bus Operations, Inc., Dec. No. 2006-45 (NJ PERC 2006).......................................................................................... 39

New York City Transit Authority v. Amalgamated Transit Union, Local 1056, 38 NYPER ¶7505 (N.Y. Sup. 2005)......................................................................................... 58

Newark Unified School District, 29 PERC ¶108 (Cal. PERB ALJ 2005) .................................................................................... 62

North Hudson Regional Fire and Rescue, 31 NJPER ¶42 (NJ PERC 2005)............................................................................................... 56

Ocean County Library, Dec. No. 2006-47 (NJ PERC 2005).......................................................................................... 44

Old Bridge Township Board of Education, 31 NJPER ¶64 (NJ PERC 2005)................................................................................................. 1

Passaic Valley Water Commission, 31 NJPER ¶51 (NJ PERC 2005)............................................................................................... 35

Patrolman’s Benevolent Association of City of New York, Inc. v. New York State Public Employment Relations Board, 13 A.D.3d 879, 786 N.Y.S.2d 269 (2004) ................................................................................ 14

Pennsylvania State Police, Case No. PF-C-04-123-E (Pa. LRB 2005) ................................................................................. 7

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Pittsburg State University/Kansas National Education Association v. Kansas Board of Regents/Pittsburg State University, 122 P.3d 336 (Kan. 2005)......................................................................................................... 20

Plainfield Board of Education, Dec. No. 4014 (Conn. SBLR 2004)............................................................................................ 8

Poughkeepsie Professional Firefighters Associated Local 596 v. New York State Public Employment Relations Board, 16 A.D.3d 797, 792 N.Y.S.2d 637 (2005) ................................................................................ 11

Regional Transit Service, 38 NYPER ¶4517 (NY PERB Dir. 2005)................................................................................. 55

Rhode Island Department of Corrections, Case No. ULP-5657 (RI SLRB 2005) ...................................................................................... 23

Rutgers Council of AAUP Chapters v. Rutgers, State University, 381 N.J. Super. 63, 884 A.2d 821 (2005) ................................................................................. 21

Saginaw Township, 18 MPER ¶30 (Mich. ERC 2005)............................................................................................. 62

Seminole County, 31 FPER ¶197 (Fla. PERC 2005) ............................................................................................. 26

Seymour Board of Education, Dec. No. 4071 (Conn. SBLR 2005).......................................................................................... 29

Shamong Township Board of Education, 30 NJPER ¶129 (NJ PERC 2004)............................................................................................... 8

Skaget County, 2005 WL 636220, Dec. No. 8887 (Wash. PERC ALJ 2005) ............................................. 12, 41

Snohomish County, 2005 WL 304474, Dec. No. 8852 (Wash. PERC 2005) ........................................................... 27

Snohomish County, 2005 WL 3308684, Dec. No. 9180 (Wash. PERC ALJ 2005) ................................................... 7

Snohomish County, 2005, WL 36212, Dec. No. 8733-A (Wash. PERC ALJ 2005) ................................................ 16

Somerset Area School District, 36 PPER ¶132 (Pa. LRB ALJ 2005)............................................................................. 12, 32, 33

Southwest Ohio Regional Transit Authority, 22 OPER ¶375 (Ohio SERB 2005)........................................................................................... 33

St. Clair County Intermediate School District, 17 MPER ¶77 (Mich. ERC 2004)......................... 1

State of Alaska, Dec. No. 274 (Alaska LRA 2005) ............................................................................................ 68

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State of Connecticut, Dec. No. 4101 (Conn. SBLR 2005).......................................................................................... 22

State of Connecticut, Office of Policy and Management, Office of Labor Relations, Dec. No. 4096 (Conn. SBLR 2005).............................................................................. 22, 23, 44

State of New Jersey (Department of Corrections), 30 NJPER ¶146 (NJ PERC 2004)............................................................................................. 10

State of New Jersey Judiciary (Camden Vicinage), Dec. No. 2006-38 (NJ PERC 2005).......................................................................................... 55

State of New York (Department of Correctional Services), 38 NYPER ¶3008 (NY PERB 2005) ........................................................................................ 52

State of New York (Department of Correctional Services), 38 NYPER ¶3018 (NY PERB 2005) ........................................................................................ 29

State of New York (Department of Correctional Services-Elmira Correctional Facility, 38 NYPER ¶4526 (NY PERB ALJ 2005) ................................................................................ 28

State of Oregon, Department of Corrections, Case No. UP-33-03 (Oregon ERB 2005).................................................................................. 62

State of Oregon, Department of Corrections, Case No. UP-33-03 (Ore. ERB 2005)....................................................................................... 43

State of Wisconsin, Dec. No. 31264 (Wis. ERC 2005) ...................................................................................... 15, 53

Sun Prairie Area School District, Dec. No. 31190-A (Wis. ERC 2005) ........................................................................................ 31

Sutter County In-Home Supportive Services Public Authority, 29 PERC ¶114 (Cal. PERB ALJ 2005) .................................................................................... 52

Tiverton School Committee, Case Nos. ULP-5578 & 5596 (RI SLRB 2005).......................................................................... 9

Town of Guttenberg, 30 NJPER ¶159 (NJ PERC 2004)............................................................................................. 34

Town of Stonington, Dec. No. 4077 (Conn. SBLR 2005).......................................................................................... 29

Town of West New York, 31 NJPER ¶117 (NJ PERC 2005)....................................................................................... 38, 66

Town of West New York, 31 NJPER ¶87 (NJ PERC ALJ 2005)....................................................................................... 37

Township of Bloomfield, 30 NJPER ¶157 (NJ PERC 2004)....................................................................................... 13, 45

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Township of Harding, 31 NJPER ¶77 (NJ PERC 2005)............................................................................................... 17

Township of Irvington, 31 NJPER ¶66 (NJ PERC 2005)............................................................................................... 36

Township of Oxford, Dec. No. 2006-28 (NJ PERC 2005).......................................................................................... 39

Township of Piscataway, 31 NJPER ¶7 (N.J. App. 2004), aff’g, 30 NJPER ¶57 (PERC 2004)....................................... 46

Township of Springfield, 31 NJPER ¶115 (NJ PERC 2005)............................................................................................. 36

Township of Springfield, Dec. No. 2006-27 (NJ PERC 2005).......................................................................................... 60

Township of Stafford, 31 NJPER ¶40 (NJ PERC 2005)................................................................................... 35, 38, 48

Township of Union, 31 NJPER ¶102 (NJ PERC 2005)............................................................................................. 65

United Public Workers, Local 646 v. Hanneman, 106 Hawaii 359, 105 P.3d 2366 (2005) .................................................................................... 58

University of Washington, 2004 WL 3058186, Dec. No. 8818 (Wash. PERC ALJ 2004) ................................................... 3

University of Washington, 2005 WL636216, Dec. No. 8878 (Wash PERC ALJ 2005) ....................................................... 4

Village of Elk Grove Village, 21 PERI ¶14 (ILL. LRB, GC 2005).......................................................................................... 15

Village of Elk Grove Village, 21 PERI ¶87 (Ill. LRB, GC 2005) ............................................................................................ 15

Village of Orland Park, 21 PERI ¶42 (Ill. LB SP 2005) ................................................................................................. 49

Waldwick Board of Education, 31 NJPER ¶22 (N.J. App. 2005)............................................................................................... 11

Washington State – Office of Financial Management, 2005 WL 2921652, Dec. No. 8761-A (Wash. PERC 2005)..................................................... 20

Wayne County Sheriff, 38 NYPER ¶4507 (NY PERB ALJ 2005) ................................................................................ 26

Western Washington University, 2005 WL 1609727, Dec. No. 9011 (Wash. PERC ALJ 2005) ................................................... 6

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Wilkes-Barre Township v. Pennsylvania Labor Relations Board, 878 A.2d 977 (Pa. Cmwlth. 2005) ............................................................................................ 17

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I. REMOVING WORK FROM THE BARGAINING UNIT

A. Subcontracting.

1. Public School Academies. In St. Clair County Intermediate School District, 17 MPER ¶77 (Mich. ERC 2004), the employer unlawfully subcontracted bargaining unit work by creating public school academies and closing identical programs at its technical education center. The employer’s “decision to create academies squarely fits within [the] definition of subcontracting. In most instances, when [the employer] opened a program at an academy, it closed an identical or nearly identical program at the TEC. The number of positions filled at the academy is nearly identical to the number of bargaining unit positions lost at the TEC. The content of most of the programs/curriculum has not changed significantly, and academy employees perform the same or similar work as the former instructors at the TEC. Some positions . . . teach both academy and TEC students. Support instructors also provide instruction to all students, whether enrolled in the TEC or an academy.” The employer’s action satisfied all of the conditions for meeting the definition of subcontracting under both federal and state case law because: (a) the decision did not alter the employer’s basic operation as it was still engaged in the business of providing education to students within its district; (b) there was no capital investment or recoupment because the employer simply was paying another entity to perform bargaining unit work; and (c) the employer’s freedom to manage its business was not significantly abridged by requiring bargaining.

2. Traffic Control Work. In City of Chicago (Department of Police), 21 PERI ¶83 (Ill. LRB LP 2005), the employer unlawfully subcontracted traffic control work for Soldier Field. Pursuant to an intergovernmental agreement, these duties were reassigned to the Chicago Park District and the Metropolitan Pier and Exposition Authority. The employer’s actions satisfied all the requirements for unlawful subcontracting in that it: (1) represented a departure from the City’s past practice of assigning such duties exclusively to its own police officers; and (2) it deprived bargaining unit employees of the opportunity to work traffic control and impaired reasonably anticipated work opportunities.

3. Custodial Work for Special Events. In Old Bridge Township Board of Education, 31 NJPER ¶64 (NJ PERC 2005), the employer’s decision to use subcontracted custodians, rather than regular custodians, for scheduled events at a certain high school was mandatorily negotiable. Previously, an arbitrator had sustained a grievance and upheld the custodian’s contractual right to have overtime opportunities for special events rotated on a district-wide basis. The union did not challenge the employer’s initial decision to subcontract the custodial services; rather, it raised a narrower issue regarding the employer’s decision to use subcontracted custodians for some but not all custodial services. The union also raised a related issue involving the allocation of overtime opportunities between regular employees and subcontract custodians. “[P]ublic

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sector employers have a managerial prerogative to enter into subcontracts to have services delivered by private sector employees.… [H]owever, … the parties may negotiate over which qualified personnel will work what hours at what rates given an employer’s determination that work must be done at certain times.” The employer did not subcontract all custodial services, resulting in some services being performed by its employees and some by subcontracted custodians. “The question is which employees will get what overtime opportunities and thus extra compensation. The arbitrator has found that the parties negotiated an answer to that question. District employees have a strong interest in enforcing the agreement found by the arbitrator. It increases their work hours and compensation. The employer has not given any reason for having to allocate these overtime opportunities to subcontractor employees rather than its own employees. It relies solely on its assertion of a broad right to subcontract.… [T]hat is not enough to outweigh the employees’ side of the balance.”

4. Holiday Shuttle Work. In City of Detroit (Department of Transportation), 18 MPER ¶67 (MICH. ERC 2005) (ALJ aff’d w/out exceptions), the employer unlawfully contracted out holiday shuttle work. The employer contracted with a private company to provide transportation services to its own employees and their families each Thanksgiving Day. The employer previously had used its own employees to drive the holiday shuttle buses; however, this practice was stopped after private charter companies complained that the employer’s operation of the shuttle violated federal transit law, which prohibited the use of federally funded equipment or facilities for the purpose of providing charter service. The employer’s decision satisfied all of the criteria for unlawful subcontracting. First, “there is no evidence suggesting that [the employer] altered the scope and nature of its basic operation in any significant respect.… [T]his is not a case where the public employer has completely abandoned a program which was later taken up by another entity.… There is also nothing in the record to establish that the subcontracting decision involved capital investment, nor is there any suggestion that drivers employed by the private subcontractor have unique skills or require specialized training to perform the holiday shuttle work.”

5. Proposal to Prohibit Subcontracting. In New Jersey Transit Bus Operations, Inc., Dec. No. 2006-45 (NJ PERC 2005), a union proposal that prohibited all subcontracting “for the purpose of taking advantage of lower labor costs or when not related to the scope and direction of the Company and its capital expenditures,” did not involve a mandatory subject of bargaining. “The prohibition against labor cost subcontracting is mandatorily negotiable because it protects employees against having their wages and benefits undercut by a subcontracting decision based on a desire to reduce labor costs.” However, “[t]he prohibition against subcontracting that does not relate to a company’s scope and direction and capital expenditures is not mandatorily negotiable as written because it uses a private sector formulation to exempt certain subcontracting decisions. Because [the employer’s] statutory mission might involve other considerations, a mandatorily negotiable provision must include language that

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specifically exempts situations that would preclude [the employer] from fulfilling its statutory mission.”

B. Skimming.

1. Creating New Fire Department with Cross-Trained Public Safety Officers. In City of Highland Park, 17 MPER ¶86 (Mich. ERC ALJ 2004), the employer lawfully created a fire department and assigned those duties to public safety officers (PSO) who have been cross-trained to perform that work. The PSO’s had been laid off as part of a budget cutting measure, and they were immediately recalled as firefighters. The employer’s actions did not result in the transfer of firefighting outside the bargaining unit because the employer continued to recognize and deal with the union as the bargaining representative for the employees who performed fire fighting duties after the reorganization. Thus, the employer’s “decision to rename its public safety department and give its employees the title of firefighter, after subcontracting the police work formerly performed by this department, was not a mandatory subject of bargaining because it did not affect wages, hours, or terms and conditions of employment.”

2. Police Work to Sheriff’s Department. In City of Highland Park, 17 MPER ¶86 (Mich. ERC ALJ 2004), the employer unlawfully subcontracted police work to the County Sheriff’s department. The employer “did not alter its basic operations by subcontracting its law enforcement responsibilities to [the] County. [The employer] has the legal responsibility to provide its residents with police protection. The subcontract with [the] County did not divest [the employer] of this responsibility …. Similarly, the record does not establish that the subcontracting involves significant capital investment or recoupment.… [O]ne of the reasons they decided to subcontract the police work was to avoid making capital investments in police stations and police cars. However, the County did not assume responsibility for providing police facilities…, and [the employer’s] contract with the County specifically requires [the employer] to provide an adequately equipped police station and lock-up.” Furthermore, requiring the employer to bargain over subcontracting did not unduly restrict its ability to manage. The employer “clearly subcontracted the police work to save money, and all the reasons it gave for its decision came back to costs…. [The employer] could have given [the union] the financial information it had available, explained to [the union] the need to make immediate temporary measures because of the cash shortage, laid out the reasons it believed that the subcontracting would save money and how much [the employer] believed it might save, and given [the union] a fair opportunity to make a proposal.”

3. Custodial Services – Lead Positions. In University of Washington, 2004 WL 3058186, Dec. No. 8818 (Wash. PERC ALJ 2004), the employer unlawfully transferred custodial work historically performed by the bargaining unit when it reclassified custodial lead positions and transferred the lead work to supervisors outside of the bargaining unit. “The employer reorganized its operations to reduce the impact of future budget reductions on cleaning services.

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Although the employer’s motives concerning employee pay were on their face laudable, the reorganization did remove work from the bargaining unit.”

4. Vacant Position. In University of Washington, 2004 WL 3058186, Dec. No. 8818 (Wash. PERC ALJ 2004), the employer unlawfully failed to negotiate the effects of its decision to reallocate a vacant industrial hygienist position to an exempt compliance analyst position. “The employer’s decision to reallocate a vacant position is a fundamental managerial prerogative concerning position allocation and expenditure of available monies.” Although such a decision to reallocate a vacant position was not a mandatory subject of bargaining, the employer was obligated to bargain the effects of its decision on the bargaining unit, including the reduction in the number of bargaining unit positions and/or promotional opportunities which are a fundamental job security concerns.

5. Medical Support Services. In University of Washington, 2005 WL636216, Dec. No. 8878 (Wash PERC ALJ 2005), the employer unlawfully transferred bargaining work performed by stockroom attendants and central processing technicians from the bargaining unit. The transfer of the stockroom attendant work occurred when the employer re-classified the stockroom attendants to program assistants. The basic duties of the program assistants were similar to the stockroom attendant; however, they were more involved in problem solving and engaged in dialogue with the medical unit to which they were assigned. The work of central processing technicians occurred when the position was re-classified to clinical laboratory technicians. The duties remained the same; only the complexity of the environment changed.

6. Assignment of Police Sergeant to Narcotic Enforcement Team. In City of Royal Oak (Police Department), 18 MPER ¶35 (Mich. ERC 2005), the unilateral assignment of a police sergeant to a narcotic enforcement team was lawful because the work differed from the work performed by members of the bargaining unit. When no bargaining unit member applied to fill the vacant position, the employer declined to exercise its contractual right to assign by reverse seniority; instead, it created a non-bargaining unit sergeant position and a non-bargaining sergeant was assigned to fill the new position. The person holding this position had the authority to counsel and discipline other narcotic enforcement team officers. He also supervised the case load of other crew members and assumed, on a practical level, the responsibilities of a crew leader. In addition, his position as a sergeant allowed him to supervise drug buys and raids made pursuant to a search warrant. Given these additional duties, the position was not the same as the vacant position that was not filled by the bargaining unit members. Moreover, the employer’s actions did not have a significant adverse impact on bargaining employees because no unit member was laid off or suffered any reduction in pay from the transfer. The union’s loss of one bargaining unit position did not constitute a significant impact.

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7. Assignment of Police Patrol Work to Police Chief. In City of Jeannette, 36 PPER ¶68 (Pa. LRB 2005), the employer unlawfully assigned police patrol work to the police chief. “Although the City’s arguments have focused on the nature of the work, the City overlooks the simple fact that, by taking a shift away from the bargaining unit, the Chief unilaterally reduced the hours of work, and therefore compensation, of bargaining unit members.... This is not a circumstance where preservation of the parties’ past practices would have resulted in insufficient staffing consistent with the City’s public safety needs ..., but a simple circumstance were the City did not follow the past practice of affording a patrol officer the additional work.... Although the City’s prior police chiefs may have spent their own shift performing patrol duties, the City did not show that the Chief or his predecessors inserted themselves into bargaining unit patrol shifts before the Chief altered that practice unilaterally.… Even where bargaining unit and non-unit employees have both performed similar duties, a union can satisfy the exclusivity requirement by proving that the bargaining unit members exclusively performed an identifiable proportion or quantum of the shared duties such that the bargaining unit members have developed an expectation and interest in retaining that amount of work.” The City unsuccessfully argued that its actions were justified by its managerial prerogative to direct the assignment of work and personnel and to establish hours and adequate staffing levels. “The Board agrees that the City possesses a managerial prerogative to direct the assignment of work and establish hours and staffing levels to ensure adequate public service. However, the law is well established that managerial prerogative does not authorize an employer to remove work from the bargaining unit, and the City may not disguise its action here as part of those core managerial functions.”

8. Claims Work. In Chicago Transit Authority, 21 PERI ¶95 (Ill. LRB GC 2005) (aff’d ALJ w/out exceptions), the employer unlawfully abolished the position of Claims Representative and transferred the duties to a newly created, non-bargaining unit position of Claims Analyst. The transfer concerned wages or terms and conditions of employment. “This is true if for no other reason than that the former Claims Representatives are no longer covered by the collective bargaining agreement that previously set their wages, benefits, and terms and conditions of employment.” In addition, the employer was unable to demonstrate that the transfer was part of a legitimate reorganization. “[T]he change in the [employer’s] organizational structure was limited to separating the Claims Section from the Torts Section and making the former a separate Law Department division whose manager now reports directly to the [employer’s] first deputy general counsel.” This is not “such a basic or substantial change as to be a fundamental change in the [employer’s] organizational structure that its transfer of bargaining unit positions and work to non-unit personnel is a matter of inherent managerial authority.” Nor did the employer argue that the organizational change substantially altered the nature or essence of services provided by the employer. Furthermore, the employer did not explain “how the bargaining units of the Representatives or the non-unit status of the Analysts relates to or affects the development of the [employer’s] budget or the [employer’s] ability to control the cost of claims. Similarly, the [employer] … failed to articulate how the

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bargaining unit status of the Representatives/Analysts impaired or enhanced its ability to instruct them in how to investigate or process a claim such that the [employer’s] transfer decision is related to its inherent authority to direct its employees.” Finally, the balancing of interests favored bargaining over the transfer. The transfer resulted in a substantial loss of bargaining unit work and positions; consequently, there was a significant benefit in the union being able to bargain over the employer’s decision in order to protect the work and strength of the bargaining unit. By contrast, bargaining over the transfer decision would not place any significant burden on the employer.

9. Events Manager. In Western Washington University, 2005 WL 1609727, Dec. No. 9011 (Wash. PERC ALJ 2005), the employer unlawfully moved the work of the Events Manager out of the bargaining unit. The “Events Manager” work historically had been done by the bargaining unit. The duties performed by the non-bargaining position were essentially the same as the duties performed by the Events Manager. In addition, the transfer involved a significant detriment to bargaining unit members because the employee transferred enough work to fill an entire position. Moreover, the employer’s motivation was solely economic, even though it paid a higher salary to the person holding the nonbargaining unit position. “By not bargaining, the employer maintained control over the process and did not expend the cost of bargaining or risk the give and take outcome that is often the result of bargaining. Thereby, the employer saved labor costs.” Finally, the work was not fundamentally different from bargaining unit work as a whole in terms of the nature of the duties, skills and working conditions. “The unit appeared to be a broad catch-all unit of classified supervisors, with certain exceptions. This definition is so broad that it does not indicate whether the Events Manager position is fundamentally different from other supervisory classified positions.”

10. Police Officer to Assist in Prison Cell Searches. In County of Westchester, 38 NYPER ¶4548 (NY PERB ALJ 2005), the employer did not unlawfully transfer work out of the bargaining unit when it used a police officer and a drug detecting dog to assist in prison cell searches at a county correctional facility. To start, “work being done by police officers is not substantially similar to that previously, and exclusively, performed by the correction officers.… [The police officer] did not participate in the search of the cells, but only lead the dog to the cells, unleashed her, and remained during the search solely for the purpose of ensuring her safety and retrieving her once the search was completed. In fact, [the police officer] did not even enter the cell. Instead, a correction officer accompanied the dog and assisted in the search. [Furthermore,] even if drugs where in plain view to him, or he suspected their presence based on something he noticed, he would alert a correction officer rather than involve himself in the search procedure.” In addition, the job duties of the dog handler where substantially different from those of a correction officer. “[N]o correction officer ha[d] ever [been] trained with, maintained or utilized a drug detecting dog…. [T]he training process for handlers [was] extensive and esoteric; each dog bond[ed] with its handler and [was] an almost constant companion to that

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person.” Thus, the process of training employees to handle search dogs was significantly different from training and the use of other search apparatus. Finally, there was no indication that bargaining unit work had been lost from the employer’s use of police officers and search dogs.

11. Automation of Services.

In City of Seattle, 2005 WL 3308681, Dec. No. 9173 (Wash. PERC ALJ), the employer unlawfully transferred bargaining unit work when it implemented an automated telephone directory system for police communications. The automated system resulted in non-emergency calls being routed directly to the department that the outside caller wished to contact. Previously, such calls were handled by the dispatchers, who then transferred the calls to the appropriate departments. These calls constituted about 25-30% of the dispatcher’s work. The mechanization and discontinuation of bargaining unit work were entrepreneurial decisions that were not the subject of bargaining. The employer, however, was obligated to bargain the effects of removing the work from the bargaining unit. The employer’s actions satisfied all other criteria for unlawful transfer of bargaining unit work. The calls previously had been handled by bargaining unit dispatchers, and now they were handled by the precincts or divisions who picked up the calls that were routed through the automated system. The automated system also eliminated the need for the employer to hire more dispatchers, thus freezing existing dispatchers into their current seniority ranking and decreasing significantly overtime opportunities. The decision to transfer the work out of the bargaining unit was motivated by economics, specifically the very high rate of voluntary and mandatory overtime prior to the implementation of the automated system. The union was notified of the implementation only after the decision had been made to install the system. Finally, the automated system was not fundamentally different from the work duties and skills already performed by communications dispatchers. The job description required a broad range of knowledge and skills for a response to a range of information requests, all of which were now handled by the automated system.

In Pennsylvania State Police, Case No. PF-C-04-123-E (Pa. LRB 2005), the employer unlawfully transferred the work of supervising police communications operators (PCO) from the bargaining unit to non-bargaining unit civilian employees as part of the implementation of a technologically advanced incident information management system. Under the new system, dispatching took place at five consolidated dispatch centers. The employer unsuccessfully argued that the new technology took the matter outside of mandatory subjects of bargaining. “[T]he introduction of technology is generally a matter of managerial prerogative. The issue is obviously not whether the Employer can introduce advanced technology in the workplace, but who will perform the duties associated with the essential function and goals, which have not changed. The Commonwealth may certainly introduce new technology as part of its core managerial function to improve police services with advanced dispatching equipment and techniques. However, the new computerized, consolidated

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technology did not change the fact that the [employer] continues to require employee dispatchers to operate dispatching equipment, albeit advanced equipment, and supervisory personnel to supervise these functions .... In this case, the new technology merely serves as a better tool for employees to perform essentially the same functions.”

12. Judicial Service Officers. In Snohomish County, 2005 WL 3308684, Dec. No. 9180 (Wash. PERC ALJ 2005), the employer unlawfully transferred work performed by Judicial Service Officers (JSO) to another bargaining unit. The employer had eliminated the JSO position and reassigned the work to deputy sheriffs who formerly had performed it. The employer’s actions constituted a “classic skimming case that does not require a belabored analysis. It is a plain and simple transfer of work from one unit to another, and there is no doubt the employer is still ‘in the business’ of serving warrants and protection orders.” However, the employer was excused from negotiating the change because it had provided adequate notice to the union.

13. Clerical Paraprofessionals. In Plainfield Board of Education, Dec. No. 4014 (Conn. SBLR 2004), the employer lawfully laid off several clerical paraprofessional positions and did not unlawfully transfer that work to non-bargaining unit employees. The union unsuccessfully argued that non-unit employees (such as secretaries) were performing typing and other clerical duties. “While this is unquestionably bargaining unit work, the Union has not shown that this situation is different in any way from the situation that existed prior to the layoffs. In this regard, due to the nature of their jobs as support personnel, the clerical paraprofessionals generally perform much of the same work as that of non-bargaining unit secretaries and other employees. The evidence on this record does not establish that the current performance of any of the clerical duties by non-bargaining unit personnel differs in kind or degree from what has been customary in this school system.”

14. Assigning Work to Volunteers. In Edgerton Fire Protection District, Dec. No. 30686-B (Wis. ERC 2005), the employer unlawfully eliminated three full-time firefighter positions and assigned the work to volunteers. The transfer was made for financial reasons. “[T]he District heavily emphasizes the alleged public policy choice involved in its decision, i.e., whether to purchase a new truck, on the one hand, or maintain a full-time workforce, on the other.... However, if public employer choice to spend money on equipment rather than wages were ipso facto non-bargainable, even if services were unaffected, then virtually any economic issue affecting employees could be cast in non-bargainable terms, at least in an environment of limited revenues. An employer could simply assert, ‘we cannot give you a raise, because we want to fix the plumbing’ in order to remove wages from the scope of bargaining.... Asking the public, ‘would you like to have the same service you have now and a new truck, too, but spend less money?’ is like asking them do they want to have their cake and eat it, too – that is to say, not a serious policy choice at all.”

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II. LEGAL IMPEDIMENTS TO ESTABLISHING MANDATORY SUBJECTS OF BARGAINING

A. Education Standards.

1. Teacher Tenure. In Shamong Township Board of Education, 30 NJPER ¶129 (NJ PERC 2004), a contract provision that prohibited any employee from being disciplined or reprimanded without just cause was enforceable and not a violation of the State’s teacher tenure statute. “Teacher tenure statutes preclude an arbitrator from granting tenure or ordering renewal of a non-tenured teacher’s employment contract or awarding back pay beyond the contract year in question. Further, [the teacher tenure statutes] empower a board to remove a teacher from the classroom and to deny reinstatement during the school year. Thus, the Legislature has protected the board’s right to determine who will teach its students for the rest of the school year and in future years.” The teacher tenure statute, however, “authorizes a board to agree to a just cause provision covering mid-year terminations of non-tenured employees accused of inefficiency, incompetency or misconduct. This [statute] further authorizes it to agree to arbitrate such just cause disputes, provided a non-tenured employee does not have a statutory appeal procedure.” Thus, a grievance alleging a discharge of a non-tenure teacher without just cause was arbitrable. “This dispute intimately and directly affects employee work and welfare. Being terminated in the middle of a school year results in a loss of pay and benefits.” Moreover, “[a]rbitrating this dispute would not significantly interfere with any educational policy. A school board has a strong interest in not having students taught by teachers adjudged to be ineffective; that interest is protected by the cases and statutes allowing a board to not reinstate a non-tenured teacher. The board also has an interest in not having an arbitrator review mid-year terminations based on its evaluative judgments and an interest in not having to pay unjustly discharged employees for the rest of a contract year, but these interests can be protected through the negotiations process and a board’s power not to agree to any contract proposal it deems unwise, and through the arbitration process and a board’s ability to presents its positions on issues of liability and remedy.”

2. Restrictions on Privately Tutoring Students. In Hewlett-Woodmere Union Free School District, 38 NYPER ¶3006 (NY PERB 2005), the employer unlawfully imposed a work rule prohibiting supervisors and administrators from privately tutoring students where they served as supervisors. This rule eliminated a practice that allowed such individuals, during non-working hours, to privately tutor for compensation students taught by teachers under the supervision of those supervisors and administrators. “Generally, an employer’s restriction on employees’ use of their nonworking time is mandatorily negotiable.... The stipulated facts offer no evidence of any real conflict of interest that existed “prior the implementation of the prohibition.” In fact the employer “carefully pointed out that they were not accusing any supervisors of any real or apparent conflicts of interest.... We cannot help but wonder if the conflicts of interests were so apparent, why didn’t they occur to any of the parties at an earlier stage?

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Certainly, no one suggests that any of the parties engaged in the practice with an evil or sinister intent. On the contrary, all parties seem to suggest that all parties had only the best interests of the District’s students in mind when they devised and implemented the practice. Even if we assume that bad things can result from the best of intentions, we are left to speculate as to how the perception of a conflict has actually or potentially harmed the District’s mission. Without something more on the District’s part, we find the interests under the Act tip in favor of the Association. We are loathe to remove this matter from the negotiations process or to presume that parties bargaining in good faith cannot reach an agreement satisfactory to all.”

3. Performing Statutory Special Education Requirements. In Tiverton School Committee, Case Nos. ULP-5578 & 5596 (RI SLRB 2005), the employer’s statutory duty to provide an Individualized Education Program (IEP) for each special education child did not permit it to transfer bargaining unit work performed by special education aides to part-time non-unit employees. “[T]he employer made no argument that the contractual limitations on the terms and conditions of employment for special education aides inhibited or hampered the School Committee’s ability in any way to comply with even one (1) IEP, let alone a multitude of them. What the evidence established, is that the Employer simply hired 4-5 additional special education aides on a part-time basis to perform bargaining unit work under terms and conditions of employment which were not negotiated with the exclusive bargaining agent for special education aides. Employer simply stated that it could assign employees to perform bargaining unit duties because it has a statutory obligation to fulfill IEP needs for its students. The Employer’s argument is tantamount to the position that the employer has no requirement to bargain any term or condition of employment with any of its employees because of its statutory mandate to provide IEPs. The Board does not and cannot accept such a proposition because of the employees’ statutory right to engage in collective bargaining and to rely upon the results obtained.”

4. Performance-Based Pay Increment Denial. In Englewood Board of Education, Dec. Nos. 2006-32 to 35 (NJ PERC 2005), a union proposal regarding the circumstances surrounding the withholding of a teacher’s annual increment involved both mandatory and preempted bargaining subjects. “[A]ll increment withholdings of teaching staff members may be submitted to binding arbitration except those based predominantly on the evaluation of teaching performance…. [I]f the reason for a withholding is related predominately to the evaluation of teaching performance, any appeal shall be filed with the Commissioner of Education.” However, the portion of the proposal that required the employer to give ten school days’ written notice of any withholding along with the reasons for such action “with such particulars as to furnish the teacher an opportunity to correct and overcome the same” involved a mandatory bargaining subject. “[P]rocedures associated with the withholding of increments of teaching staff members are mandatorily negotiable, so long as the procedures do not significantly interfere with the substantive right to withhold an increment.” Bargaining proposals requiring that: (a) when deficiencies were detected during

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an evaluation, specific recommendations to overcome those deficiencies had to be made; (b) proper evaluation procedures be followed before any recommendations to withhold an increment; and (c) timely notice of any withholding, should not significantly interfere with a school board’s decision to withhold an increment and, therefore, were mandatorily negotiable.

B. Leaves of Absence.

1. Denial of Paid Military Leave. In State of New Jersey (Department of Corrections), 30 NJPER ¶146 (NJ PERC 2004), the employer’s denial of paid military leave to a correction officer unless she used vacation days or other accumulated leave time to cover her attendance at national guard training was mandatorily negotiable. This subject was not preempted by a State statute, under which the employee was not eligible for leave with pay. That statute, however, “does not preempt arbitration of [the employer’s] claim for paid contractual leave. That statute guarantees paid military leave in certain instances, but does not prohibit a contractual benefit providing paid leave in other instances.”

2. Maternity Leave. In City of Patterson, 30 NJPER ¶153 (NJ PERC 2004), the union’s maternity leave proposal was not preempted by the federal Family and Medical Leave Act or the State Family Leave Act. The union’s proposal required longer periods of permissible leave that was allowed by federal or state statutes. “[F]amily leave statutes do not prohibit negotiated clauses provided for longer leaves than those mandated by statute.”

C. Work-Related Injury Benefits.

1. Employer Payment of Health Care Expenses During Line-of-Duty Injuries. In Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004), a union proposal seeking to hold the employer liable for the payment of all health care expenses arising from line-of-duty injuries, was mandatorily negotiable. The employer unsuccessfully argued that the proposal involved a prohibited subject to bargaining because it sought to modify existing law. The employer’s administrative code provided that the employer would pay the cost of hospital care and treatment for a member of the uniform services of the police department injured in the line of duty. “The union’s demand merely seeks to duplicate in contract language the City’s obligation to pay the health care costs of a [union] member injured in the line of duty, and the City has not demonstrated any legislative intent to foreclose collective negotiations on this subject ....”

2. Initial Workplace Benefits Eligibility Determinations by Employer. In Poughkeepsie Professional Firefighters Associated Local 596 v. New York State Public Employment Relations Board, 16 A.D.3d 797, 792 N.Y.S.2d 637 (2005), rev’g, 29 NYPER ¶7016 (N.Y. Sup. Ct. 2003), a union proposal that implicated the initial eligibility determinations for benefits to injured firefighters and police officers was preempted by State statutes that authorized municipalities to make an initial determination as to whether an injured firefighter or police officer is entitled to benefits under those statutes. “This initial determination by

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the municipality is not mandatorily negotiable. Procedures for reviewing the initial determination, however, are a proper subject for mandatory bargaining.” Under the Union’s proposal, a dispute regarding the municipality’s determination of a firefighter’s benefits was to be determined by an arbitrator under a de novo standard of review. “[T]he procedure does not nearly seek review of the municipality’s initial determination. Instead, the proposed procedure seeks to obtain a redetermination which, in effect, makes the municipality’s right to make the initial determination illusory. In short, it is a procedure to replace the determination, not review it.”

3. Eligibility for Catastrophic Medical Leave. In Waldwick Board of Education, 31 NJPER ¶22 (N.J. App. 2005), aff’g, 30 NJPER ¶41 (NJ PERC 2003), a contract provision governing catastrophic medical leave was not mandatorily negotiable because a State statute eliminated the employer’s discretion to adopt a negotiated rule. The statute declared that the employer “may pay” salary “for such length of time as may be determined by the board of education in each individual case.” Thus, “the board is specifically directed to exercise its discretion individually as to each case. Were the exercise of such discretion to become a matter of negotiation , the statutory directive of case-by-case analysis would be wholly thwarted.”

4. Refusal to Reinstate Employee Covered by Workers’ Compensation Without Medical Clearance. In County of Passaic, 30 NJPER ¶163 (NJ PERC 2004), the State’s workers’ compensation law did not preempt a grievance regarding the employer’s refusal to reinstate an employee without medical clearance. Although the State’s workers’ compensation statute “provides the exclusive remedies for employees seeking damages to compensate for work-related injuries .... this grievance does not seek workers’ compensation benefits or damages for [the employee’s] injuries during periods he admits he could not work; instead it seeks his regular salary during periods that [the employee] claims he could work and should have been returned to his regular position or given a light duty assignment. That claim is not addressed or preempted by the Workers’ Compensation Act.”

5. Composition of Workers’ Compensation Panel of Doctors/ Providers. In Somerset Area School District, 36 PPER ¶132 (Pa. LRB ALJ 2005), the employer unsuccessfully argued that it was authorized to implement changes to the composition of the workers’ compensation panel of providers and doctors under the State’s workers’ compensation statute. “[T]he fact that the WCA grants the discretion to the employer to designate a panel of positions for workers’ compensation purposes does not exclude the possibility that the decision to exercise that discretion is influenced by the collective bargaining process. [Indeed, the statute] provides that an employer and a union, may bargain the use of impartial physicians.”

6. Deduction of Employee Portion of Industrial Insurance Contributions. In Skaget County, 2005 WL 636220, Dec. No. 8887 (Wash.

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PERC ALJ 2005), the employer was relieved from bargaining over its unilateral deduction of amounts from employee’s wages to cover the amount of employee contributions for industrial insurance provided by the state. The employer’s previous practice of paying the full costs of such insurance premiums violated state law, which required the employer to deduct one-half of the premium from each employee’s pay. “[W]here necessity exists, the law will permit unilateral action…. [B]usiness or legal necessity can be the catalyst for permitted unilateral action by the employer on a mandatory subject of bargaining. Where legal necessity based upon statutory mandate is advanced as a defense, the Commission will reject the defense unless clearly warranted by the wording of the statute…. [T]he payment by employees of a share of the industrial insurance premiums provided for by statute is mandatory in nature. To hold the employer is not required by law to make payroll deductions to satisfy the employee’s obligations with respect to cost sharing would clearly frustrate legislative intent. Moreover, the employer’s payment of the employee’s share of such premium would violate the constitutional mandate against the gift of public funds.”

D. Unemployment Compensation. In Township of Bloomfield, 30 NJPER ¶157 (NJ PERC 2004), the State’s unemployment compensation statute did not affect a contract provision prohibiting the assignment of Township-related work to school crossing guards during the summer recess. The Township unsuccessfully argued that arbitration was preempted by the State’s unemployment compensation law, which allegedly prohibited collecting unemployment compensation during the summer recess. The Commission responded that, “whether school crossing guards are entitled to unemployment compensation during the summer is an issue of unemployment compensation law over which we have no jurisdiction. As for the relationship between unemployment compensation law and the negotiability dispute before us, we know of no unemployment statute or ruling that governs the negotiability of an agreement not to assign particular duties to a particular group of employees.”

E. Investigating Police Misconduct.

In City of Paterson, 30 NJPER ¶153 (NJ PERC 2004), the union’s proposals regarding procedures for interviewing officers accused of misconduct were not preempted by, or inconsistent with, a State statute authorizing law enforcement agencies to adopt and implement guidelines for such investigations. “[P]roposals establishing procedures for departmental investigations of employee misconduct are mandatorily negotiable unless a statute or regulation preempts negotiations or particular proposal would significantly interfere with the governmental policy determination.”

One proposal required that the employee be informed of the nature of the investigation before any questioning commenced, including the name of the complainant and all witnesses, but such disclosure was not necessary if sufficient information could be provided to reasonably apprise the employee of the allegations. This proposal did not conflict with an Attorney General Guideline requiring agencies to accept anonymous reports because the proposal “does not

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prohibit an investigation based on an anonymous sources nor does it mandate disclosure of complainants and witnesses in all instances.

Another proposal that prohibited requiring an employee to participate in any lineup unless the employee was provided with all legal protection as provided by law did not conflict with the Attorney General Guidelines for allowing lineups without probable cause because the proposal “does not prohibit lineups; instead, it permits them so long as the employee has received all protections provided by law.”

Another proposal requiring that any information concerning an internal affairs investigation and specifying those persons to whom such information could be disclosed, including union representatives, did not conflict with the Attorney General Guidelines. If the union is representing an officer being investigated, it may be proper under the Guidelines and the proposed contract section to provide the officer and the union with the information pertinent to the officer’s defense. Since the Attorney General Guidelines require that the police officer under the investigation receive a copy of the internal investigation report that would be used as evidence, “[t]hese reports could presumably also be released to the union official or attorney representing the officer at the hearing.”

Finally, a union proposal requiring that the union be notified of the identity of any police officer being investigated and permitting a union representative to attend any investigatory interview was consistent with the Attorney General Guidelines. “That the guidelines permit employees to request representation does not mean that they prohibit majority representatives from being informed of interviews and asking the officer whether they wish to have or forego representation.”

In Patrolman’s Benevolent Association of City of New York, Inc. v. New York State Public Employment Relations Board, 13 A.D.3d 879, 786 N.Y.S.2d 269 (2004), the following union proposals were preempted: (1) expungement of records following certain disciplinary matters; (2) disciplinary procedures, (i.e., the timing of charges and trials) as well as reimbursement of pay under certain conditions; (3) guidelines for interrogation of member; (4) the time period within which a police officer who witnesses an incident has to confer with counsel before being questioned by the department; and (5) the continuation of the program whereby disciplinary matters may, at the Commissioner’s discretion, be referred outside the department for resolution. Both the City’s Charter and Administrative Code committed the issue of police officer discipline to the authority of the Police Commissioner. “[T]hese provisions plainly vest the commissioner with full and broad authority over the discipline of police officers such that the topic sought to be submitted to the interest arbitration panel were prohibited subjects of negotiation.”

In Matter of State of New York (Division of State Police), 38 NYPER ¶3007 (NY PERB 2005), the union’s discipline proposals were a prohibited subject of bargaining under an Executive Law that placed sole authority to make rules and regulations for the discipline and control of the state police with the Police Superintendent. The statutory language “evidences a legislative intent to prevent long established statutory disciplinary provisions from being supplanted.... [T]he Legislature’s grant of authority to the

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Superintendent ... to make rules and regulations for the discipline and control of the state police is sufficiently clear and contains no indication that the Superintendent’s rules and regulations are subject to supplementation, modification or replacement by agreements between the State and an employee organization.” Equally unpersuasive was the union’s argument that its proposed procedures were mandatorily negotiable because the statute was silent as to procedures incident to a hearing. “[W]hile the statute does not explicitly state so, it is “inescapably implicit” that the grant of authority to make rules and regulations governing discipline includes the authority to make rules and regulations governing the procedures relating to that subject.”

F. Indemnifying Civil Judgments. In City of Newark, v. Police Superior Officer’s Association, 31 NJPER ¶6 (N.J. Super. 2004), aff’g, 29 NJPER ¶38 (NJ PERC 2003), the employer’s refusal to pay a civil judgment issued against a police officer who was accused of assaulting a suspect at a city jail was mandatorily negotiable under the contract’s indemnification provision, even though that provision provided obligations beyond statutory requirements. The State’s indemnification statute required a municipality to indemnify a police officer’s legal fees but not a judgment against that officer. The statute, however, “does not preempt the provisions of collective bargaining agreements which expand the scope of a municipality’s indemnification obligation beyond the terms of the statute. The scope of the obligation beyond the terms of the statute may properly be negotiated by the parties. [The statute] is a statute which confers a minimum statutory indemnification benefit upon municipal police officers. It does not fix municipal indemnification of a police officer for acts or omissions in the course of his employment expressly, significantly, and comprehensively. It does not speak in the imperative, and it does permit employer discretion.”

G. Waiver of Statutory Rights.

1. Promotions. In Village of Elk Grove Village, 21 PERI ¶14 (ILL. LRB, GC 2005), an employer proposal requiring waivers of certain provisions of the State’s Fire Department Promotions Act (FDPA) was not a mandatory subject of bargaining to the extent that the proposals provided for less rights than guaranteed under the statute. “As a general rule, promotional criteria, the weighting of those criteria, minimum eligibility requirements to participate in promotions, the order of promotion from final eligibility list and the posting of examination scores have all been deemed mandatory subjects of bargaining. The recent passage of the FDPA does not alter these principals. Rather, the FDPA, by its terms, establishes a ‘minimum’ set of guidelines for promotions that occur within a fire department.… [T]o the extent the Employer’s proposal concerns the topics long held to be mandatorily negotiable…, it is clearly, as a general matter, a mandatory subject of bargaining. However, to the extent that the employer’s proposal contains language providing for something less than what is provided for it in the FDPA regarding the subjects, it is not mandatorily negotiable. It is well settled that a proposal seeking the waiver of a statutory right is permissive subject to bargaining. There is no question that the FDPA establishes ‘minimum’ standards governing promotions in fire department, and no question the Union is entitled to those by right. While the Employer can propose language guaranteeing less than

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what is provided for in the FDPA, that language is not mandatorily negotiable.” Of particular concern was a portion of the employer’s proposal that the contractual procedures would be applicable if there was any conflict or inconsistency with the state statute.

2. Waiving/Raising Minimum Wage Rate. By contrast, in State of Wisconsin, Dec. No. 31264 (Wis. ERC 2005), the employer’s proposal that it would notify the union before it either hired employees above the minimum rate or raise the minimum rate for recruitment purposes, involved a mandatory bargaining subject. The union unsuccessfully argued that such a proposal was tantamount to asking the union to waive its right to bargain wages. “[T]he subject of the State proposal (wage rates for new hires) is not a matter presently unknown to the parties but as to which the Association is nonetheless being asked to waive its right to bargain.... The Association can and has proposed that the State not have discretion as to the wage rate to be paid new hires. Thus, the language of the State’s proposal does not seek a waiver of the Association’s right to bargain about the wage rate applicable to new hires.”

H. Promotions. In Village of Elk Grove Village, 21 PERI ¶87 (Ill. LRB, GC 2005), several union proposals dealing with promotions were mandatorily negotiable and were not preempted by the State’s Fire Department Promotional Act (FDPA).

1. Incorporating Statute into Labor Contract. The proposal to incorporate the FDPA into the contract was mandatorily negotiable. “Negotiation of a proposal to incorporate statutory mandates does not interfere with management rights because the obligation has already been created by the statute in question, and it is not necessarily amplified by its inclusion in a collective bargaining agreement.” The union had an interest in incorporating the statutory requirements because the FDPA did not provide for any enforcement mechanism; inclusion of the statutory requirement in the labor contract permitted enforcement through arbitration.

2. Seniority as a Factor. Another union proposal, dealing with the weight and computation of seniority points as part of the overall examination score was not prohibited by the FDPA. The statute specifically provided that the weight of seniority points and its computation “shall be determined by the appointing authority or through a collective bargaining agreement.” Thus, the statute “did not reserve to an employer the exclusive right to determine the relative weight of seniority points in determining promotions. The plain language makes clear that bargaining over this topic was not only contemplated but also specifically allowed for by the statute.”

3. Eligibility to Take Promotional Exam. Another union proposal, dealing with which bargaining unit members were eligible to take the promotional examination and requiring that any candidate submit a letter of intent and career resume prior to the examination was consistent with the FDPA. “With respect to eligibility requirements, the FDPA generally states that they may include ‘a minimum requirement as to the length of employment, education, training, and

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certification in subjects and skills related to fire fighting.’ The Union’s proposal that employees submit a letter of intent and a career resume relate directly thereto ....”

4. Scoring Exam, Minimum Passing Score and Filling Vacancies. Finally, the Union’s proposals dealing with the scoring of the promotional exam, the minimum passing score and the filling of vacancies all involve mandatory subjects of bargaining. “As a general rule, promotional criteria, the weighting of those criteria, minimum eligibility requirements to participate in promotions, the order of promotion from a final eligibility list and the posting of examination scores have all been deemed mandatory subjects to bargaining.” All of these proposals were procedural or mechanical in nature and did not intrude upon the employer’s substantive decision making authority under the FDPA.

I. Deferred Compensation/Pensions.

1. Matching Employee Contributions for Deferred Compensation. In Snohomish County, 2005, WL 36212, Dec. No. 8733-A (Wash. PERC ALJ 2005), a union proposal requiring the employer to match employee contributions for deferred compensation up to a maximum of five percent of employee salaries was not preempted by the State’s pension statute. In fact, the pension statute specifically envisioned that employees would have deferred compensation benefits. The pension statute defines “basic salary” as including wages and salaries deferred under provisions established pursuant to the Internal Revenue Code. Deferred compensation plans also are specifically mentioned in the State’s administrative code chapters devoted to the pension system. “By those references to ‘deferred compensation programs’ allowed by federal law, the Legislature specifically envisioned that employees covered by [the State’s pension law] could participate in deferred compensation plans.” Thus, “the Legislature has not occupied the field or preempted the employer’s authority to bargain proposals or deferred compensation.”

2. Retirement Benefits COLA. In Township of Harding, 31 NJPER ¶77 (NJ PERC 2005), a retirement cost-of-living provision in the labor contract did not involve a mandatory bargaining subject because it was precluded by the State’s pension statute. The State’s pension law precluded any negotiated agreement that would contravene or supplement pension benefits. The contract provision provided an annual cost-of-living increase based upon a percentage of the amount of pension benefits received by the retiree. The union unsuccessfully argued that the cost-of-living provision really was deferred compensation and not a supplemental retirement benefit. “This contract provision supplements State-established pension benefits.… It does not share the characteristics of negotiable benefits such as longevity pay, terminal leave, or payment for accumulated sick leave. Unlike those other benefits, the benefit under this proposal is not paid to current employees as a reward for years of service or for unused leave earned while in active status. Nor is it a form of deferred compensation. This benefit is linked to future increases in the cost of living, not previously earned, but deferred,

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compensation. It is payable to retirees, supplements State-established pension benefits, and is not otherwise authorized by statute.”

3. Local Ordinance Altering Pension Benefits. In Wilkes-Barre Township v. Pennsylvania Labor Relations Board, 878 A.2d 977 (Pa. Cmwlth. 2005), aff’g, 35 PPER ¶137 (Pa. LRB 2004), the employer unlawfully enacted an ordinance that unilaterally altered the pension benefit program of police officers. The employer argued unsuccessfully that it was authorized to enact the ordinance, contending that labor contract provisions regarding pensions were illegal under the pension statute. The employer had enacted the ordinance in response a report by the Auditor General that the employer’s pension program failed to comply with the State’s pension statute. The employer’s argument that the Board was ordering it to revise its ordinance such that it would violate the terms of the pension statute was rejected for two reasons. “First, the Board ordered the Township to rescind, not revise, the Ordinance. This was within the Board’s broad power to fashion a remedy that will effectuate the purposes of the PLRA and restore the status quo ante. Moreover, while it may be true that the CBA pension provisions violate [the pension statute], this does not excuse the Township from its duty to bargain in good faith.” It also was noted that the Auditor General’s report had been issued well before negotiations commenced for a new labor contract. Thus, the employer could have raised any potential conflicts between the pension program and the pension statute during those negotiations.

4. Pension/Social Security Benefits Information. In Clovis Unified School District, 29 PERC ¶168 (Cal. PERB ALJ 2005), the employer unlawfully denied information to the union regarding: (1) a survey questionnaire provided by the employer to the state pension system; and (2) the employer’s payment into the Social Security on behalf of the same employees. The requested material related to mandatory subjects of bargaining. The employer unsuccessfully argued that it was not obligated to provide this information because the information involved procedures mandated by State statutes and regulations which neither party could alter through the bargaining process. “[T]he mere fact that the Legislature has established a statutory scheme and CalPERS has implemented regulations governing retirement benefits does not automatically render the subject matter in the survey non-negotiable. It may be possible to fashion a proposal in this area that does not annul, replace or set aside statutory mandates. Nor would a proposal that merely incorporated statutory rights into a collective bargaining agreement automatically fall outside the scope of representation. The fact that the current collective bargaining agreement does not include a provision covering retirement benefits does not undermine the request. Nothing precludes [the union] from presenting such a proposal in future negotiations, and the information may be necessary and relevant for that purpose.”

5. Post-Retirement Medical Benefits. In Borough of Paramus, 31 NJPER ¶80 (NJ PERC 2005), the employer’s elimination of employer-paid, post-retirement medical benefits for certain employees based upon age and years of

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service was mandatorily negotiable. The employer unsuccessfully argued that a State statutory requirement that it adopt retiree paid health coverage by resolution had a preemptive effect on its duty to negotiate. “[H]ealth benefits for future retirees are mandatorily negotiable as long as the benefit at issue is not preempted by statute or regulation. A statute will not preempt negotiations unless the statute fixes an employment condition specifically, expressly, and comprehensively, thus eliminating the employer’s discretion to vary that employment condition.… The statutory requirements that the employer adopt and file a resolution are not conditions preempting the duty to negotiate; instead these conditions may be met consistent with that duty.… [I]t appears that the adoption of a resolution, even if required by statute, would not preclude the Borough from entering into a binding collective agreement to provide paid health benefits to retirees who meet the eligibility requirements of [the statute].… Even if the statute required the adoption of a resolution authorizing the Borough to pay the premium for an employee who retires with less than 25 years of service to the employer, failing to enact the resolution after negotiating the benefit is a violation of our Act.… Thus, if [the statute] requires the adoption of a resolution to effectuate the terms [of the health benefit], the Borough must adopt a resolution.”

J. Statutory Requirement of Uniform Health Benefits.

In Borough of Belmar, 31 NJPER ¶52 (NJ PERB 2005), the employer’s health care proposal could not be submitted to interest arbitration because it was inconsistent with the statutory requirement that any such benefits be uniform as to all employees, including employees outside the bargaining unit. The statute also prohibited an interest arbitrator from issuing any award that conflicted with the uniformity requirement. Although a health care proposal could be submitted to interest arbitration if it contained a contingency that a proposed change in benefits not take effect until the uniformity requirements had been met, the employer’s proposal did not contain such a contingency provision.

By contrast, in Borough of Emerson, 31 NJPER ¶53 (NJ PERC 2005), a union proposal that sought health benefits for current employees when they retire is mandatorily negotiable. “Where an employee participates in the State Health Benefits Program and is subject to a requirement that all employees be awarded the same health insurance benefits, neither party may seek to arbitrate for a change in benefits for unit of employees only.” However, “interest arbitrators may consider union or management proposals that seek to change, for the negotiations unit involved in the proceeding, a non-SHBP employer’s payment obligation with respect to retiree health insurance premiums. Unions or employers may also continue to propose changes that are contingent on the same changes being effective for other units, but such ‘contingency’ clauses are no longer a precondition for negotiability or consideration by interest arbitrators.”

K. Paid Lunch Breaks – Wage/Hour. In City of Vineland, 31 NJPER ¶92 (NJ PERC 2005), the employer unsuccessfully argued that the Federal Fair Labor Standards Act preempted any negotiations over its decision to eliminate paid lunch breaks for employees that were not required by the wage and hour laws. FLSA regulations require

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“that an employer provide for a paid lunch period where the employee is not relieved from duty. It does not prohibit employers from agreeing to provide a paid, duty-free lunch break. Indeed, an FLSA guidance document submitted by the City indicates that breaks and rest periods ‘are usually for private agreement between employers and employees.’ Therefore, the FLSA does not preempt negotiations over this topic.”

L. Voter-Approved Home Rule Charter Amendment. In City of Cincinnati, 22 OPER ¶376 (Ohio SERB 2005), the employer was relieved from bargaining a change in the method of filling unclassified police vacancies that had been implemented after a voter-approved home rule charter amendment. The amendment resulted in future vacancies being filled through city counsel appointments. By contrast, such vacancies had been filled by the person with the highest score on the civil service promotional eligibility list. “The Charter Amendment was enacted by a vote of the majority of the City’s voters in the election. Although the City Counsel voted to authorize the placing of the Charter Amendment on the ballot, it was not the City Counsel that enacted the change. Instead, the electorate was responsible for the change. When the voters decide an issue at the ballot box, they are acting as a ‘higher-level legislative authority’ to the City Counsel…. This situation is not comparable to one party holding back an issue from bargaining and then springing it on the other party after the collective bargaining agreement has bee ratified by both parties. A review of the record does not support a finding that the City was engaged in trickery or gamesmanship with the Union.”

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M. Federal Transportation Funding. In City of Detroit (Department of Transportation), 18 MPER ¶67 (MICH. ERC 2005) (ALJ aff’d w/out exceptions), the employer unsuccessfully argued that the potential loss of federal assistance did not excuse it from negotiating before subcontracting with a private transportation company to provide transportation services to its employees for holiday shuttle runs. The employer subcontracted the work, which previously had been performed by its own employees after private charter companies complained that federal transit law prohibited the use of federally funded equipment and facilities for the purpose of providing a charter service. “Even assuming arguendo that the holiday shuttle is a charter under federal transit law, and that continued use of bargaining unit members to perform that work might jeopardize the City’s receipt of federal assistance…. [The employer] nevertheless had a duty to bargain over its decision to transfer those duties to a private contractor.… [F]ederal transit regulations do not excuse [the employer] from its duty to bargain. Even if it would have been unlikely that concessions by the Union would have made up for the potential loss in federal funding which [the employer] might have incurred had it decided to continue using [bargaining unit] members to drive the holiday shuttle, bargaining may still have served the purpose of promoting industrial peace and preventing subsequent litigation. It should also be noted that there were other options available to [the employer] besides simply eschewing federal funding or privatizing the service. For example, the City could have sought a waiver from the [federal government], as it done before in similar situations. [The employer] could have also attempted to reach an agreement with private operators which would have allowed [the union’s] members to continue to drive the shuttle buses. In any event [the employer] cannot simply hide behind [federal] regulations to escape its bargaining obligations.”

N. Medicare Programs. In Washington State – Office of Financial Management, 2005 WL 2921652, Dec. No. 8761-A (Wash. PERC 2005), aff’g, Dec. No. 8761-PECD, 2004 WL 2507443 (Wash. PERC ALJ 2004), a union proposal to repeal a “shared living” rule (which required a set-off in hours compensated for individual nursing providers in cases where the provider shares a living space with the client, or the client lives with the provider) did not involve a mandatory subject of bargaining. “[U]nder [the] traditional analysis, the shared living rule impacts employee hours and wages, and the impacts of the shared living rule would, under a traditional analysis, be a mandatory subject of bargaining. However, … when the legislature amended [the statute], it vested in [the employer] the authority to enact rules that could possibly impact employee wages and hours, and also placed that agency action outside the scope of the collective bargaining process.”

O. Intellectual Property Rights.

In Pittsburg State University/Kansas National Education Association v. Kansas Board of Regents/Pittsburg State University, 122 P.3d 336 (Kan. 2005), bargaining over the employer’s policy regarding the ownership of intellectual property was not precluded by either federal or state statutes. The employer unsuccessfully argued that bargaining was precluded by federal patent and copyright laws and a State statue regarding distribution of money received from intellectual property.

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The Copyright Act did not preclude negotiations because “the plain language of the statute reflects that Congress clearly contemplated that parties could negotiate ownership of a copyright. In other words, [the Copyright Act] allows the subject of copyright ownership to be covered within a memorandum of understanding or any other written agreement.”

In addition, “federal law regarding patent ownership does not prevent the parties from entering into a memorandum of agreement regarding the subject of patent ownership. To the contrary, the Patent Act specifically provides that the parties may assign patent ownership rights. Thus, federal law does not preempt any kind of intellectual property rights from becoming the subject of a memorandum of agreement ….”

Finally, negotiations were not preempted by a state statute which required that any revenues received by the educational institution from intellectual property be dedicated to the use of the educational institution. The statute “only provides that monies received for a particular state education institution are dedicated to that specific educational institution. The statute does not govern whether monies received by an educational institution’s employees for the sale of intellectual property belong to the educational institution or the employee.”

By contrast, in Rutgers Council of AAUP Chapters v. Rutgers, State University, 381 N.J. Super. 63, 884 A.2d 821 (2005), certain aspects of the university’s patent policy were not subject to mandatory negotiation. Four aspects of the policy were at issue: (1) distribution of royalty income to inventors; (2) the timing of disclosure of inventions and discoveries; (3) ownership of laboratory notebooks; and (4) the terms under which inventions and discoveries are assigned to the university.

The university successfully argued that it needed to retain the original laboratory notebooks to successfully prosecute a patent application. The university did not object to individuals keeping copies of that information to pursue research and publish the results.

The university also was successful in defending its requirement that the inventor disclose the invention or discovery to the university before disclosure is made of the research results by publication or through any other medium, and it was not required to engage in negotiations designed to specify more precisely when an individual is required to disclose to the university any invention or discovery. “The subject does not permit a more precise formulation. If the question whether a topic is mandatorily negotiable can only be answered on a case-by-case basis, surely the question whether an individual has made prompt disclosure can also only be answered on a case-by-case basis, considering the entire context in which the question arises.”

However, the university was required to negotiate the terms under which inventors would assign to the university their rights to inventions and discoveries. “[T]he terms of such an assignment have the potential for a significant impact upon the overall financial compensation an individual may receive as a result of

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his or her efforts…. Such issues of compensation, which intimately and directly affect the work and welfare of the employee, are mandatorily negotiable.”

P. Civil Service.

1. Layoff Procedures. In Abel v City of Pittsburgh, 2005 WL 3478351 (Pa. Cmwlth. 2005), the layoff procedures under the collective bargaining agreement took precedence over procedures in the civil service statute. The contractual procedures required the City to layoff employees by job title and individual department and reverse order of seniority. The civil service statutes, by contrast, required that the last employee appointed be the first to be laid off, without regard to job title or classification. “The Civil Service Act does not explicitly and definitively prohibit the City from collectively bargaining the issue of seniority and layoffs.… [T]he Civil Service Act establishes a procedure for layoffs, but it does not expressly prohibit the City from making any other agreement as to layoffs and seniority with those employees represented by the union.”

2. Exam Scores Information. In City of New Haven, Dec. No. 4090 (Conn. SBLR 2005), the employer lawfully refused to supply the Union with certain information pertaining to civil service examination test scores. “[I]f the information requested by the Union pertains solely to an illegal subject of bargaining specifically exempted from collective bargaining by the plain language of the statute, the employer is not statutorily obligated to provide that information.... Here, the Union is seeking the scores of employees on examinations which were never certified by the Civil Service Commission. The Union has no ability to negotiate over the conduct or the grading of examinations in question. Likewise, the Union cannot negotiate over the establishment of the list. The Civil Service Commission has the sole authority to determine whether or not to certify these test results and exercised its authority.”

3. Exam Ranking/Evaluation Information. In State of Connecticut, Office of Policy and Management, Office of Labor Relations, Dec. No. 4096 (Conn. SBLR 2005), a union proposal requiring the employer to retain and make available for inspection a description of the process for ranking and evaluating candidates involved an illegal bargaining subject. “While the Union maintains they are simply seeking information relevant to the collective bargaining process, we find this argument to mask the real nature of the proposal.... [T]he Act expressly exempts ‘the establishment, conduct and grading of merit examinations, the rating of candidates and the establishment of lists for such examination’ from the collective bargaining process. No matter what spin the Union attempts to place on its proposal, it is clear that this is an attempt to obtain information about a subject over which the Union cannot demand bargaining. The plain language of the statute exempts this area of the employer/employee relationship from collective bargaining.”

4. Suspending Benefits After Unionization. In State of Connecticut, Dec. No. 4101 (Conn. SBLR 2005), the employer unsuccessfully argued that the

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State’s personnel statute permitted it to suspend longevity payments and vacation bonus days and alter the work schedule of the lieutenants once the lieutenants unionized. The employer made these changes immediately after unionization occurred and before a collective bargaining agreement had been negotiated. “Whatever the source or genesis of the terms of the employment, the fact remains that the lieutenants had certain established terms and conditions of employment when they unionized. An employer cannot unilaterally change those terms and conditions that are mandatory subjects of bargaining once the employees are represented. We see nothing in the statutes or any other source that would prevent these employees from receiving the same level of benefits after the Union was recognized and before negotiations were finalized. Indeed, the State did not unilaterally place the lieutenants on some other pay scale after it recognized the Union. Similarly, the State did not unilaterally suspend the benefit of vacation bonus days until over a year from the date of recognition. It does not make sense to say that these employees can unilaterally lose fixed benefit levels because they selected Union representation. The State’s logic on this issue misses the mark and ignores the established rules of collective bargaining.”

5. Changing Job Specification. In Rhode Island Department of Corrections, Case No. ULP-5657 (RI SLRB 2005), the employer’s unilateral change in the job specifications of several classifications was not permitted by the State’s merit system law. The merit system law, which had been enacted many years before the State’s collective bargaining law had been enacted, authorized the Personnel Administrator to classify employees and establish their salaries, subject to public hearings and gubernatorial approval. More than three decades ago, the State legislature had repealed a statutory provision giving the merit system priority over negotiated agreements. The “merit system structure and the collective bargaining structure should be so interpreted that both may co-exist in harmony and ... rules promulgated pursuant to this section shall not change conditions of employment in a unit covered by a collective bargaining agreement…. The two systems can be harmonized ... by having the parties negotiate and reach agreement on new classifications or revised job specifications and then employing the merit system procedural processes or public hearing and submission to the Governor.... [T]he employer does have an obligation to bargain changes to the official job descriptions of represented employees ....”

Q. Arbitration Procedures.

1. Arbitrator’s Retention of Jurisdiction Pending Finalization of Remedy. In State of Connecticut, Office of Policy and Management, Office of Labor Relations, Dec. No. 4096 (Conn. SBLR 2005), a union proposal under which an arbitrator would retain jurisdiction in any case to finalize a remedy involved a mandatory bargaining subject and was not preempted by law. The employer unsuccessfully argued that the State’s arbitration statute, as interpreted by the courts, precluded an arbitrator from retaining such jurisdiction, but instead required the arbitrator to issue a final and definite award. The proposal involved a mandatory bargaining subject for two reasons. “First, grievance procedures are

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mandatory subjects for bargaining. Next, it is black letter law that arbitration is a ‘creature of contract.’... Because arbitration is a creature of contract, the parties are free to negotiate the terms that will govern the arbitrator’s conduct. Where the parties’ negotiate a contractual provision (through agreement or by invoking impasse procedures) to allow an arbitrator to retain jurisdiction in order to finalize the remedy ordered in an arbitration award, this language would change the scope of authority granted to an arbitrator. The proposal submitted by the Union would not contravene the provisions of [the arbitration statute]. Rather, it would further define the arbitrator’s powers and the scope of the parties’ submission per the collective bargaining agreement.”

2. Scheduling of Arbitration Hearings. In Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004), a union proposal requiring that arbitrators selected by the parties commit to sufficient consecutive dates to complete a particular arbitration hearing involved a mandatory subject of bargaining. “The Act provides that a public employer shall be required to negotiate with the employee’s representative regarding the administration of grievances. [The union’s] demand merely requires the City to abide by a new selection process that will enable grievances to be processed more expeditiously. The onus is on the arbitrator selected to commit to certain days in order to hear a grievance. If the arbitrator cannot make such a commitment, then another arbitrator is selected from the rotating list.”

3. Incorporating Prior Arbitration Awards. In Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004), a union proposal to reduce to writing and incorporate into a successor written collective bargaining agreement certain terms and conditions of employment that were amended by an arbitration award involved a mandatory bargaining subject. “[A]n interest arbitration award establishes the status quo of a party’s negotiations as to the term it contains. When taken individually, each of these subjects is a term and condition of employment, and, therefore, a mandatory subject of negotiation.

R. Selection of Providers Under Workforce Investment Act. In Clackamas County, Case No. UP-38-03 (Ore. ERB 2005), the selection of certain providers under the Federal Workforce Investment Act was not subject to collective bargaining. These services previously have been performed by bargaining unit employees, but the contract was awarded to a third party at the conclusion of an RFP process. The decision to award the contract to the third party was made by a “local workforce investment board,” that was established by the federal law. Bargaining was not required because the employer’s Board of Commissioners did not control the RFP process. “[A] public employer is not required to bargain about decisions about which it has no control or which it cannot countermand.... [T]he County had no control over the decision or authority to countermand [the selection of a third party], and for that reason, the County had no obligation to bargain the decision.” This is true even though the members of the local workforce investment board were selected by the Commissioners. That is because the local workforce investment board was authorized under federal law to identify service providers and award contracts to them. Under that law, the Commissioners played no

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role in the decision. The fact that the Commissioners played a role over the local workforce investment board’s budget and proposed expenditure of funds for the contract to the provider did not change the result. “It is true that the County was the fiscal agent for [the local workforce investment board] and retained certain oversight of the [local workforce investment board’s] budget. However, the County’s authority in this regard does not extend as far as the Association suggests. [The local workforce investment board] directs the County on how to disburse funds. The County must comply with the [local workforce investment board’s] direction so long as it does not violate [federal law].... [T]he Association has not alleged a misuse of funds or a violation of [federal law]. Absent such a showing, the County cannot veto payments to a properly selected provider.”

S. Granting Extended Sick Leave. In Fort Lee Board of Education, Dec. No. 2006-37 (NJ PERC 2005), a contract provision detailing the conditions under which extended sick leave benefits would be provided to employees whose absence exceeded the annual and accumulated sick leave allotment was preempted by a statute governing extended sick leave. The statute “mandates that when absence exceeds the annual and accumulative sick leave allotment, a school board may grant extended sick leave. But it must do so on a case-by-case basis, rather than by a negotiated rule…. It governs this case and does not permit a negotiated agreement to increase the number of annual sick leave days after an employee’s annual days are exhausted.”

III. PAST PRACTICES

A. Take-Home Vehicles.

In County of Nassau, 37 NYPER ¶4590 (NY PERB ALJ 2004), the employer unlawfully rescinded a past practice of assigning take-home vehicles to certain bargaining unit employees within the employer’s Department of Public Works. “[E]ach of the employees were assigned a take-home vehicle for a substantial period of time, such that they could reasonably expect the assignment to continue unchanged absent negotiations with their bargaining agent. All eight employees were assigned a take-home vehicle for a period of years. Most were assigned a vehicle because they assumed a position where the predecessor to that position had also been assigned a take-home vehicle.” In addition, all of these assignments were discussed with the employees’ supervisors who made recommendations to the employer’s highest-level manager, who ultimately authorized the take-home vehicle assignments. Finally, the employer failed to present any evidence regarding any specific travel requirement or condition that allegedly attached to the vehicle assignments.

In County of Nassau, 38 NYPER ¶3004 (NY PERB 2005), the employer lawfully changed the past practice of assigning a county vehicle with take home privileges to the Supervisor of Fleet Services. Although, the assignment of a county-owned vehicle was unequivocal and had been in existence for significant period of time, bargaining unit employees could not reasonably expect the practice to continue unchanged because the position had not been in the bargaining unit for several years. “Therefore, there can be no reasonable expectation on the part of … unit employees that the practice would continue unchanged to the benefit of the … unit. The outcome was not changed by the fact that a

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bargaining unit employee had assumed some of the duties previously performed by the person who last held the position in the bargaining unit.

In County of Nassau, 38 NYPER ¶3005 (NY PERB 2005), the employer unlawfully discontinued the practice of providing take-home vehicles to certain Parks and Recreation Department employees. “An employee’s use of an employer-owned vehicle for transportation to and from work is an economic benefit inuring to the employee and may not be unilaterally withdrawn by the employer.” In all but one instance, persons with actual or apparent authority to bind the employer had authorized the use of the vehicles.

In Wayne County Sheriff, 38 NYPER ¶4507 (NY PERB ALJ 2005), the employer lawfully implemented a one-half hour reduction in the schedules of bargaining unit members who participated in the “take home car” program. Employees who participated in the program were assigned a vehicle for their individual use to perform work duties and drive to and from their residences, but they were required to call into dispatch and be available for duty thirty minutes before their shift started. The employer eliminated the one-half hour requirement due to financial constraints. “The change at issue, while it may meet the test of a negotiable past practice and other regards, concerns only a non-mandatory issue, and, therefore, need not be negotiated. The County has essentially made a decision to decrease its staffing level, and the corresponding level of service it provides to the public by discontinuing the scheduling of employees who participate in the Take Home Car Program for an extra one-half hour of overtime per shift. It is the prerogative of management to determine staffing levels, as well as the number of employees on duty at any given time, and the County is not obligated to negotiate this matter dispute any practice to the contrary.”

In Seminole County, 31 FPER ¶197 (Fla. PERC 2005), the employer’s decision to remove take-home vehicles previously provided to certain bargaining unit members involved a mandatory bargaining subject. It was reasonable for these employees to expect that the benefit would continue indefinitely under the employer’s policy for assigning vehicles to employees in accordance with the employer’s operational needs. The employees knew that the take-home vehicles were for their use after hours on the employer’s business, and these employees were unaware of the employer’s policy of annual reviews regarding continued vehicle use. Even if the employees were aware of the review policy, the eligibility requirement applicable to the employees was neither clear nor precise. Thus, the policy did not contain a clear and concise directive for discontinuance of take-home vehicle use. Finally, the employee’s awareness of the standards for maintaining the use of a take-home vehicle “would not have placed them on notice that they were subject to losing the benefit of a take-home vehicle when their vehicle usage was not shown to have changed over the years.” However, the employer’s action was not unlawful because the union waived its right to negotiate the change.

In Lane County Human Resources Division, Case No. UP-22-04 (Ore. ERB 2005), the employer was permitted to discontinue the practice of allowing building inspectors to take vehicles home overnight. To be clearly established, a practice must be clear and consistent, occur repetitively over a long period of time, and be acceptable to both parties. We must also consider the circumstances under which the practice was created,

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and the existence of mutuality…. There is no dispute that the building inspectors have been allowed to take County-owned vehicles home consistently on a daily basis for more than a decade. That is sufficiently long and consistent enough practice to meet the first two criteria. The third criteria, acceptability, is lacking. Given the circumstances under which the practice arose, mutuality also seems absent.... To constitute acceptability, the employees and their superiors must have knowledge of the particular conduct and must regard it as the correct and customary means of handling the situation. Acceptability may be implied from long acquiescence in a known course of conduct.” Acceptability and mutuality were not found because the supervisor who permitted the employees to take vehicles home lacked the authority to authorize this use pursuant to the County’s policies. “There was no joint understanding between the County and the Union regarding this practice, and no indication that the County ever intended to continue it.”

B. Appointments. In Snohomish County, 2005 WL 304474, Dec. No. 8852 (Wash. PERC 2005), the employer unlawfully changed a twenty-year practice of conducting provisional lieutenant appointments by appointing the person with the highest examination score. The only exceptions to this practice were the two instances that were challenged by the union in this instance. “The employer’s consistent actions established the past practice.” In addition, “Civil Service Rules affecting promotions within a bargaining unit are mandatory subjects of bargaining.”

C. “Training Block” to Annual Leaves. In Kitsap County, 2005 WL 781491, Dec. No. 8893 (Wash. PERC ALJ 2005), the employer unlawfully changed a past practice used to grant or deny employee requests for annual leave by implementing a “training block” that precluded the use of annual leave when officers were expected to attend training. The past practice was to allow leave unless it was a required-leave situation or there was a field command emergency that required the employer to order the cancellation of all leaves. The employer unsuccessfully argued that its change was consistent with past practice prohibiting leave to be taken that would impair the efficiency of bargaining units. “[T]he record establishes that a change was made in that the new training regime was mandatory and not officer-requested, or ‘voluntary.’ … [T]he burden of justifying the request for leave shifted to the officer, who had to make a case that his/her leave request would not impair the ultimate achievement of the required training.”

D. Overtime.

1. Rotation Procedures. In Lawrence Union Free School District, 38 NYPER ¶4518 (NY PERB ALJ 2005), the employer unlawfully discontinued a past practice of rotating overtime in each building. This practice had existed for sixteen years, which the employer acknowledged. “While the provision of overtime relates to management’s discretion and is, therefore, a nonmandatory subject of negotiations, the procedure by which overtime, once authorized, is assigned is mandatory.... [A] long established practice with respect to this procedure for the assignment of overtime has been demonstrated.… There has been no claim made by the District that the procedure was implemented without

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authority; it was, in fact, known to and perpetuated by the Director of Facilities for the District.”

2. Payment for In-Service Training. In Connecticut Department of Correction, Decision No. 4084 (Conn. SBLR 2005), the union failed to establish a consistent practice of allowing employees the opportunity to be paid overtime for required in-service training (IST) that was not provided during their regularly-assigned shifts. “The parties stipulated to the fact that ‘there have been changes in the scheduling and locations of the IST from year to year and there have been differences in the scheduling methods used at different facilities or in different areas.’ In fact, the Union only established that out of the various correctional facilities, one had allowed employees a choice in the scheduling of training sessions for a substantial number of years. In this case, this one location does not give rise to a fixed practice. Further, the Agency’s short-lived attempt, as a result of labor and management discussions, to allow employees choices in the scheduling of training sessions does not give rise to the level of a fixed practice.”

E. Calculation of Suspensions – Days vs. Hours. In Limerick Township, 36 PPER ¶125 (Pa. LRB 2005), the union unsuccessfully argued that the employer had a past practice of calculating the length of suspensions in hours rather than days. “There is … substantial, credible evidence of record to support the finding that employees served suspensions in days regardless of the length of their shift. A summary of prior suspensions introduced by the Township revealed that, in the past, where an employee was suspended for a given number of days, those days were served, regardless of whether the employee was working an 8, 10, or 12 hour shift.”

F. Pay for Attending Bargaining Sessions. In Cook County Hospital, 21 PERI ¶50 (Ill. LRB LP 2005) (exceptions to ALJ waived), the union failed to establish that there was a past practice of paying bargaining team members three hours of overtime for attending bargaining sessions during off-duty time. “[T]he evidence fails to demonstrate that there was a change in past practice with respect to the Employer’s policy of compensating bargaining team members. The only evidence presented by the [union] is unreliable testimony and less than compelling testimony…. To the contrary, the Employer has offered credible evidence that throughout its years of negotiations with the [union] its policy has always been not to compensate off-duty bargaining union members, but, rather, only those members who are scheduled to work during negotiation sessions.”

G. Modified Schedule for Deer Hunting Season. In State of New York (Department of Correctional Services-Elmira Correctional Facility, 38 NYPER ¶4526 (NY PERB ALJ 2005), the employer lawfully discontinued the past practice of operating a correctional facility under a modified schedule on the opening day of deer hunting season. Under the prior modified schedule, services that were considered nonessential were closed, thus giving a greater number of employees an opportunity to take time off of work. “[T]ime off is a term and condition of employment and is a mandatory subject of negotiations. However, staffing levels, including the number of employees assigned to a piece of equipment, and the number of employees on duty at any one time, have long

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been held to constitute managerial prerogatives that are not mandatorily bargainable. The public employers’ right to unilaterally fix its staffing level includes the right to, at any given point in time unilaterally increase, decrease or keep constant the staffing level fixed at an earlier point in time.… Here,… the failure to operate the Facility on a modified schedule does not change the number of days officers are permitted to take off annually nor the method by which those offices are chosen to take time off on that day. Instead, the change primarily affects the number of employees scheduled to be on duty on the day in question. Although the change also reduces the number of officers given the opportunity to take that day off,… that does not make the change mandatorily negotiable, because the issue is inextricably entwined with the employer’s staffing determinations. That the ability to take that day off is considered desirable by unit employees does not render the issue mandatorily negotiable.”

H. Extra-Contractual Health Benefits. In City of University of New York, 38 NYPER ¶4532 (NY PERB ALJ 2005), the employer was permitted to terminate a practice of providing extra contractual health benefits for Continuing Education Teachers. The employer had been providing health benefits to employees who were working less than twenty hours per week, even though the labor contract provided such benefits only to employees who work more than twenty per week. “[A]n employer does not fail to bargain in good faith when it discontinues a past practice which is contrary to the express terms of a CBA. In other words, an employer may revert to the negotiated terms of its agreement.… [A]n employer having bargained and reached agreement with an employee organization as to how a subject is to be treated, cannot be held to have acted unilaterally in violation of the Act when it takes an action allowed by the agreement.” The result was unchanged by the fact that the benefits were discontinued at a time when the labor contract had expired and negotiations for a successor agreement were occurring. The expired contract expressed the status quo and defined the terms and conditions of employment that had to be continued.

I. Sick Leave Benefits.

1. Medical Appointments. In State of New York (Department of Correctional Services), 38 NYPER ¶3018 (NY PERB 2005), the employer was permitted to discontinue granting requests for pre-approved sick leave to attend scheduled medical appointments. The union failed to prove that the alleged past practice involved a mandatory subject of bargaining. “[W]hile sick leave … is a function of hours of work and thereby a mandatory subject of negotiation, the charge deals with [the employer’s] decision to pre-approve sick leave and the restrictions that [the employer] placed upon the pre-approval.… [P]re-approval necessarily constrains an employer’s right to set staffing levels, a non-mandatory subject of negotiation.”

2. Unlimited Paid Sick Leave. In Town of Stonington, Dec. No. 4077 (Conn. SBLR 2005), the employer unlawfully discontinued a past practice of granting paid sick leave, regardless of amount, if proper medical certification justifying the absence was provided. The dispute arose when the employer discontinued the sick leave of an employee who suffered a serious heart condition

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in 1995 and then took nearly 400 days of paid sick leave during the next seven years. The employer then threatened to discharge the employee if he did not return to work by a certain deadline, which the employee met. The union met its burden of establishing an existing past practice. “The Union has established an existing fixed practice of the Town continuing the paid sick leave benefits for bargaining unit members so long as the members provide medical documentation of their condition as well as a foreseeable return to work date. This is also in accordance with the written policies of the Town which require certain medical information but place no limitation on the paid sick leave benefit. With the exception of the controversy giving rise to the instant case, for over 10 years, the Town has paid sick leave benefits to bargaining unit members who provided the required documentation…. [A]n examination of the Town’s prior actions defeats the claim that the Town individually considered each request for sick leave in light of reasonableness.”

J. Extended Time for School Psychologist. In Seymour Board of Education, Dec. No. 4071 (Conn. SBLR 2005), the employer unlawfully discontinued a practice of providing twenty days of work by a school psychologist outside of the regular school year. The employer unsuccessfully argued that the elimination of the extra twenty days of work was actually an elimination of a position for which it had no obligation to bargain with the union. “There is nothing in the record to support a finding that [the psychologist] held two separate positions, one 20 days in length and one 185 days in length. Rather, the work performed during those days was of the same type and nature as the work performed during the 185 days.” More generally, the employer’s actions did not fall under its managerial prerogative. “[The psychologist’s] work is not part of a separate summer program and does not impact the School Board’s right to determine educational policy. The School Board does not assert nor does the record establish that this practice falls within any of the statutory exceptions [to bargaining]. The established practice of the additional 20 days concerns [the psychologist’s] hours of work over the course of the year and, as such, is a mandatory subject of bargaining, not falling within any exception.”

K. Compensatory Time for Work During Emergency Closings. In Connecticut Department of Correction, Dec. No. 4083 (Conn. SBLR 2005), the union failed to establish the existence of a fixed practice of providing compensatory time for essential employees who work during emergency closings. “The record reveals that in only two circumstances in the last 20 years, essential employees received compensatory time when non-essential employees were instructed not to work due to adverse weather conditions…. In a memorandum announcing the compensatory time for essential employees, the [employer’s] Director of Personnel … explained: ‘this is different from what we have done on other occasions and should not be considered precedential should another such closing occur.’ On at least six occasions prior to the instant complaint, essential employees did not receive compensatory time when non-essential employees were instructed not to report to work due to adverse weather conditions.”

L. Calculating Paid Leave for Full-Shift Absences. In New Hampshire Department of Safety, Division of State Police, Dec. No. 2005-028 (NH PELRB 2005),

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the employer unlawfully discontinued a past practice of deducting only eight hours of annual or sick leave from an employee’s leave account for a full-shift absence even if the employee’s regularly-scheduled shift was greater than eight hours. “There is sufficient credible testimony to establish that over the course of the employment relationship between these parties and during negotiations over many years, the troopers made their interests, concern and position obvious to the Division regarding the accumulation of leave time and how it would be deducted. The common reference utilized by the parties to confirm that that past practice was going to be adhered to in the future was the phrase ‘day for a day.’ The term ‘day for a day’ took on even greater significance as, on two occasions the troopers’ shift, or workday, lengthened. This term was raised in the context of negotiations and, while neither of the parties substituted or modified relevant express language in the parties’ CBA’s that would have clarified the practice, it continued openly. With this condition of work existing over such a substantial period of time, the affirmative actions taken of correcting reporting forms, the volume of occasions on which the calculations and leave time reductions were undertaken, and the widespread use and duration of reporting full shifts taken as leave of only eight (8) hours convince us that the course of dealings establish a past practice. This past practice provided that regardless of the number of leave hours scheduled or reported to the Division by members taking a full shift or day off as annual or sick leave, that member was charged with only eight (8) hours of leave.” The employer unsuccessfully argued that its actions were justified by the collective bargaining agreement because the “language in the parties’ CBA related to annual and sick leave … is reasonably susceptible to more than one interpretation.” Finally, the past practice involved a mandatory bargaining subject under the balancing test. “The amount of leave or the rate at which leave is to be deducted from an employee (1) is not reserved to the exclusive control of management by any statute, and other personnel rules or regulations that may encroach on benefits which may have been bargained for are subordinate to contractual provisions in which they are in conflict; (2) does primarily affect a condition of employment that has existed for many years rather than matters of broad managerial policy; and (3) if the past practice of leave deduction continues and is seen as part of the parties’ bargained for exchange, the resulting contract provision cannot be reasonably said to interfere with public control of governmental functions ….”

M. “Summer Bump” Meeting. In Sun Prairie Area School District, Dec. No. 31190-A (Wis. ERC 2005), the employer lawfully discontinued a long-standing practice regarding the utilization of a “summer bump” meeting for special education teacher assistants. Under this procedure, employees as a group were provided with meeting packets by which they were invited to the meeting, informed about which assignments from the prior school year were being discontinued or restructured so as to be unavailable for the next school year or available at reduced hours, and which positions were available for the following year. This procedure, however, was inconsistent with the labor contract. Specifically: (1) the positions were not posted so that they were available to bargaining unit employees who were not in that job classification; (2) the selection was based solely upon seniority without consideration of the skill and relative abilities to other bargaining unit members interested in the assignment; and (3) employees whose positions were eliminated or restructured could bump other employees without any assessment of the bumping employee’s qualifications to perform the work, without

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submitting written notice of an intent to bump, and without providing the bumped employees at least five days to investigate and consider their bumping options. Under the “new” procedure, hard copy listings of the available provisions were distributed for posting at individual schools, hard copies were mailed to the three employees whose jobs were reallocated to other work locations, and electronic copies were sent to three union vice presidents. “[The] viewing the long-standing practice as the parties’ unwritten agreement to utilize a … summer bump meeting procedure cannot and does not create an enforceable commitment binding on either party to continue to make exceptions violative of the requirements of … the parties’ Agreements…. Although the District was deviating from the parties’ 1985-2003 practice, it was justified in doing so by the fact that it was thereby conforming its conduct to the requirements of the language of the parties’ 2002-04 Agreement…. [T]his is neither a case in which the parties’ utilization of a … summer bump meeting procedure reflected their mutual understanding as to the meaning of ambiguous contract language, nor a case in which the parties’ utilization of a … summer bump meeting procedure reflected their mutual understanding on one or more subjects not specifically addressed by the language of their Agreements. Furthermore, the record also establishes that [the] Agreement clearly and unequivocally precludes unwritten agreements from superseding the language of the parties’ agreements and that historical deviations from the agreement language ‘shall not constitute a precedent in the future enforcement of all its terms and conditions.’ In addition, the record establishes that the District made it clear to the Union during the 2004-06 Agreement Negotiations that it intended to renounce the bump meeting practice and to conform its conduct to the requirements of the language of … the 2002-04 Agreement if the parties did not voluntarily agree to changes in that language.”

IV. DRUG TESTING.

A. Random Drug Testing in Employee’s Home. In City of Newark, 30 NJPER ¶172 (NJ PERC 2004), the employer’s decision to conduct a random drug test at the home of a police officer who had called in sick an hour before his shift began was mandatorily negotiable. The employer’s drug testing policy required that the bargaining units be notified one hour prior to their shift that they would be subject to random testing. The employee was selected for random testing, but he called off sick one hour before his shift began, claiming allergies and sinus problems. The urine sample was obtained from the employee while he was home, and his sample tested negative. “Procedures associated with police officer drug testing are mandatorily negotiable in general…. Employees have a significant interest in knowing the conditions in which they might be subject to the intrusions associated with a random drug test. That interest is accentuated when testing is done at an employee’s home, thus invading the privacy of the home and potentially disrupting an employee’s family life.”

B. Random Drug Testing for Safety-Sensitive Positions. In Law Enforcement Labor Services, Inc., the Sherburne County, 695 N.W.2d 630 (Minn. App. 2005), some aspects of the employer’s implementation of a random drug-testing policy for employees in safety-sensitive positions where mandatorily negotiable. “[T]he establishment of a random drug-testing policy, as expressly authorized by statute, including the designation of which employees are in the ‘safety-sensitive’ positions are not subject to collective

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bargaining even though it effects the terms and conditions of employment. But aspects of the implementation of the policy that are not in inextricably intertwined with its establishment are mandatory subjects for collective bargaining.” The court held, however, declined to suggest which areas would be subject to collective bargaining; rather, it simply agreed with the union that such areas exist.

C. Drug Testing for Workplace Injuries/Illnesses. In Somerset Area School District, 36 PPER ¶132 (Pa. LRB ALJ 2005), the employer unlawfully instituted a drug and alcohol testing program for employees who sustained on-the-job illnesses or injuries. “[C]hanges in sick leave policies and injury-on-duty policies are mandatory subjects of bargaining.… [A]n employer may not unilaterally impose drug and alcohol testing for current employees unless a real drug or alcohol problem is demonstrated among the employer’s work force and an immediate and substantial public safety risk is presented.… In this case, there is no record evidence of a real drug or alcohol problem among members of the professional bargaining unit, or of an immediate and substantial public safety risk if employees are not subjected to drug and alcohol testing when they become injured or ill on the job. Furthermore, even if such proof had been established on the record, the District would still be required to bargain with the Association over such matters as the nature, integrity and reliability of the testing process and any discipline to follow a positive test result ….”

D. Revisions to Drug Policy. In Southwest Ohio Regional Transit Authority, 22 OPER ¶375 (Ohio SERB 2005), the employer lawfully implemented revisions to its drug and alcohol policy. Among other reasons, the balancing of interests favored not requiring bargaining over the decision. Although the employer’s drug and alcohol policy logically and reasonably related to terms and conditions of employment (because of violation of the policy could result in discipline), the employer’s “inherent discretion on implementing the Policy is necessary to achieve its mission of protecting passengers and the general public when operating its mass transit system.” Thus, the employer “established an overriding management objective that justifies its unilateral action… .” Finally, “the collective bargaining process is not to a great extent an appropriate method in resolving the present conflict. While the collective bargaining process is a powerful, meaningful process, the parties’ history demonstrates that bargaining over the Drug and Alcohol Policy is unnecessary. History is evidenced by the several previous collective bargaining agreements between the parties that did not contain negotiated provisions pertaining to the Drug and Alcohol Policy and, specifically, its disciplinary consequences section.”

E. Pre-Employment Drug Testing. The employer’s implementation of a pre-employment drug testing program did not involve a mandatory bargaining subject. “[P]ersons are not employees for purposes of PERA until they are hired and working for the employer. Moreover, pre-employment drug and alcohol testing, by its very nature, is not conducted after a persons are employed.” The situation is distinguishable from the employer’s obligation to bargain over a residency requirement for new hires “because the residency requirement would be applicable during the term of their employment and thus would affect the terms and conditions of their employment.” Somerset Area School District, 36 PPER ¶132 (Pa. LRB ALJ 2005).

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V. ADMINISTERING SICK LEAVE

A. Sick Leave Verification. In New Jersey State Judiciary (Ocean Vicinage), 30 NJPER ¶143 (NJ PERC 2004), an employer’s policy that required employees who had exceeded fifteen days of sick leave during a twelve-month period to provide doctors’ notes for any future sick leave was not mandatorily negotiable. “Public employers generally have a managerial prerogative to establish a sick leave verification policy and use reasonable means to verify employee illness, and that this prerogative includes the right to determine the number of absences that will trigger a doctor’s note requirement and the time frame in which absences will be counted. However, the application of a sick leave verification policy to impose a disciplinary penalty may be reviewed through binding arbitration or an appropriate alternate statutory appeal procedure.” Because the case did not involve the application of a sick leave policy to withhold a sick leave benefit or impose a disciplinary penalty, the dispute was not mandatorily negotiable.

B. Sick Leave Monitoring System. In Kitsap County, 2005 WL 781449, Dec. No. 8402 (Wash. PERC ALJ 2005), the employer’s implantation of a sick leave monitory system did not involve a mandatory subject of bargaining. The Absence Control Tracking System (ACTS) tracked employee sick leave by using an Excel spreadsheet. The system would then identify whether an employee was a possible abuse of sick leave. Previously, sick leave use had been tracked manually. “[T]he change to ACTS for the purpose of tracking sick leave is not a meaningful change in a condition of employment. The change merely involves the input of data to a computer spreadsheet. The union admits that sick leave use has always been tracked. It is just the manner which has changed. This represents an update in technology and the storage and presentation of data. It is not a substantive change.” However, the employer was required to bargain the effects of the implementation because the identification of an employer through this new system could be the basis for denying paid leave and could be the basis for discipline if the employee failed to bring in a medical certification for future absences.

C. Sick Leave Absence Counseling Policy. An employer’s application of its sick leave absence counseling policy was mandatorily negotiable. “A public employer has a prerogative to verify that sick leave is not being abused. The employer’s right to verify illness includes the right to include the number of absences that trigger a doctor’s note requirement. The employer’s prerogative may also include conducting a conference with an employee to find out why the employee was absent and to determine whether a disciplinary sanction is warranted. But once the employer decides that there has been abuse and imposes a disciplinary sanction, arbitration may be invoked…. [D]isciplinary sanctions for absenteeism could include counseling, letters of reprimand, docking of pay, withholding of increments, tenure charges, and nonrenewal or termination of nontenure staff members.” In this instance, the counseling letters issued by the employer to the employee appear to be disciplinary in nature. “These counseling documents are more in the nature of a reprimand issued after a review of an employee’s attendance record than a memorialization of a conference conducted to determine why an employee has been absent and to ascertain whether any disciplinary action should be taken.” Town of Guttenberg, 30 NJPER ¶159 (NJ PERC 2004).

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D. Restricting Child-Rearing Leave. In Board of Education of the Chathams School District, 31 NJPER ¶116 (NJ PERC 2005), the employer’s refusal to grant the full amount of paid child-bearing leaves requested by two teachers was not mandatorily negotiable. State law permitted the use of paid sick leave for a pregnancy-related disability, and the State Board of Education had determined that the use of sick days for pregnancy-related disability would apply for thirty calendar days before and thirty calendar days following the date of delivery. In addition, a school board had the statutory right to require medical certification of a specific disability if a teacher applied for paid sick leave beyond thirty days after delivery. Both teachers requested paid sick leave beyond the thirty-day limit, and they also requested unpaid leave for several months afterward. The employer rejected this request for paid sick leave without medical documentation to the extent that the disability extended beyond the presumptive thirty-day period. “Paid sick leave days may not be used for any purpose not specifically authorized by the [statutory] definition…. The Association asks us to reject the presumptive periods of paid disability … and to allow the parties to negotiate for a longer period of presumed disability during which employees could use paid sick leave days.… [W]e [cannot] disregard the Board’s statutory right and managerial prerogative to require medical proof of actual disability as a condition to using paid sick leave days.”

VI. MANDATORY BARGAINING SUBJECT ESTABLISHED

A. Wages.

1. Interest on Monetary Payments. A union proposal requiring the payment of interest at an annual rate of ten percent from the effective date of any monetary benefit until payment was mandatorily negotiable. The proposal was not vague and ambiguous and it affected wages. Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004).

2. Compliance with Wage/Hour Laws. A union proposal requiring compliance with the federal Fair Labor Standards Act was mandatorily negotiable. Specifically, the proposal required that the employer’s on-call policy comply with the FLSA. “Compensation and other working conditions for law enforcement personnel on stand-by or on-call duty are generally mandatorily negotiable. Statutes that address terms and conditions of employment can be incorporated by reference in a collective negotiations agreement. Inclusion of this provision and the party’s contract affords the [union] an opportunity to enforce alleged violations of the FLSA through the negotiated grievance procedure.” Township of Stafford, 31 NJPER ¶40 (NJ PERC 2005).

3. Pay for Work in Higher Classification.

A contract provision requiring increased compensation for an employee who performed duties at a higher classification involved a mandatory bargaining subject. The case involved an employee who had performed duties in the higher classification for over four years. “[C]ontract clauses requiring additional compensation for work performed in a higher title or different job category are mandatorily negotiable and legally arbitrable. Employees have a strong interest in

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receiving additional pay for performing work of a higher level or different nature than that on which their standard compensation is based. In general, those compensation claims do not significantly interfere with governmental policymaking.” Passaic Valley Water Commission, 31 NJPER ¶51 (NJ PERC 2005).

The payment of garage clerks in accordance with the senior garage clerk’s salary schedule was mandatorily negotiable. The union contented that the garage clerk duties had substantially increased over the years such that two garage clerks, given their years of service, should be paid at the senior clerk level. “The salary classification in which an individual is placed intimately and directly affects employees and settles an aspect of the employer-employee relationship, specifically, the compensation to be received by individuals who are the sole clerks in their assigned garages. Moreover, even if movement to a senior clerk salary grade is termed a promotion, the position of senior clerk is within the negotiations unit and the grievances do not implicate non-mandatorily negotiable staffing and promotional issues. For example, [the employer] does not allege that senior clerks supervise other clerks and, indeed, the grievances appear to pertain only to individuals who are the only clerks in their garages. Thus, the grievances do not ask [the employer] to create new supervisory positions or to place the clerks in them. Nor do the grievances ask [the employer] to create additional positions to hire new employees. They only claim that, given certain clerks current duties and employment conditions, they are entitled under the parties agreement to be placed at a higher salary classification.” In addition, enforcement of these claims would not substantially impair the employer’s ability to carry out its statutory mission. Indeed, the employer made “no particularized arguments that enforcement of an alleged agreement to pay certain clerks in accordance with the higher, senior clerk classification would impair its ability to accomplish its mission, including its ability to require that job specifications keep pace with technology.” Nor did the grievances seek an increase in staff. Finally, “even assuming for the sake of analysis that the movement from clerk to senior clerk would be a promotion, … a proposal that required both vacancies be filled and that they be filled with qualified department employees” is mandatorily negotiable. New Jersey Transit Bus Operations, Inc., 31 NJPER ¶74 (NJ PERC 2005).

A contractual provision entitling police sergeants to higher pay when they are assigned the work of lieutenants involved a mandatory bargaining subject. The dispute arose after the employer had eliminated one lieutenant position, only to have a police sergeant allegedly reassigned to perform that work. “The Township had a managerial prerogative to eliminate the lieutenant position in the investigative division and to determine that its supervision needs in that division require the performance of sergeant-level duties.… If, despite the organizational change, [the sergeant] has been assigned to duties that are distinctly those of a lieutenant, then the arbitrator may enforce an agreement that he receive lieutenant’s pay. However, if [the sergeant] is performing supervision duties that are typically performed by a sergeant and not distinctly those of a lieutenant, then

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the arbitrator cannot effectively require the Township to fill that position with a lieutenant by requiring that the sergeant be compensated as a lieutenant.… In this case, there is a severable compensation claim asserting that [the sergeant] is in fact performing the duties of a lieutenant and should be paid accordingly.” Township of Springfield, 31 NJPER ¶115 (NJ PERC 2005).

4. Bi-Weekly Pay Calculation. A change in police officer’s pay period involved a mandatory bargaining subject. Under the labor contract, an employee’s bi-weekly pay was calculated by dividing the employee’s gross annual salary by 26. During 2004, however, there were 27 pay periods; consequently, employee compensation for that year exceeded the anticipated gross annual salary. The employer adjusted the pay schedule to maintain 26 pay dates by changing four of the pay dates. The employer contended that while the time of pay checks are mandatorily negotiable, “an employer may correct the payroll devisor to have salary payments match negotiated annual salaries.” This argument was rejected. “[W]hether the parties’ agreements in this case permitted the Township to make disputed adjustments or whether those agreements require the payment of additional salary every 11 years is an issue of contract interpretation subject to the parties’ negotiated grievance procedures.” Township of Irvington, 31 NJPER ¶66 (NJ PERC 2005).

5. Deviation Clause. The continued inclusion in the labor contract of a “deviation clause,” which permitted the employer to pay salary in excess of the base salary schedule if it became necessary to hire teachers for a particular position, involved in mandatory bargaining subject that the Commission of Industrial Relations was authorized to rule upon. “Teacher salary schedules have historically been the basic framework for teacher contracts and the method by which teacher wages are determined. Deviation from the salary schedule pursuant to a deviation clause affects those wages. Accordingly, a deviation clause falls under the category of ‘wages, hours, and other terms and conditions of employment or any question arising thereunder’ … and …. Is a subject of mandatory bargaining.” Hyannis Education Association v. Grant County School District No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005).

6. Last Payday of School Year. The employer was preliminary restrained from changing the bi-weekly payroll distribution to its ten-month employees by delaying the issuance of employees’ final paychecks until the last day of school. The employer’s attempted actions would have forced some employees to go three weeks without a paycheck. The practice for several years had been to pay ten-month employees their final check on the last pay day of the school year. Since the timing of paychecks is mandatorily negotiable, the employer was preliminary restrained from implementing the change pending the outcome of the unfair labor practice charge. Atlantic City Board of Education, 31 NJPER ¶81 (NJ PERC 2005).

7. Effects of Assigning Emergency Management Duties. The employer unlawfully failed to negotiate the effects of its decision to assign emergency

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management duties to a non-unit police captain. The union did not contest that the assignment of those duties fell within the employer’s managerial prerogative. However, the union successfully argued that the assignment of such duties to the police captain and other police force officers increased their duties, thus entitling them to additional compensation. The employer unsuccessfully argued that the new duties were incidental to or comprehended within the officer’s current duties. Noteworthy was the fact that these responsibilities previously had been included in a position with a $15,000 annual salary. Town of West New York, 31 NJPER ¶87 (NJ PERC ALJ 2005).

8. Effects of Cancelling Online Courses. The employer unlawfully cancelled certain online courses due to the impact of that decision upon the compensation of faculty members. “The College has an indisputable right to cancel courses and a financial interest in not paying full or partial payment for cancelled courses, but that interest does not outweigh the facility’s interest in enforcing an alleged agreement that they receive at least some compensation for courses assigned and subsequently cancelled.” However, the employer was permitted to raise the challenge again if an arbitrator issued an award that would significantly interfere with the employer’s managerial prerogatives. Gloucester County College, 31 NJPER ¶95 (NJ PERC 2005).

9. Overtime Adjustments/Allocations.

a. Scheduling Adjustments to Avoid Overtime. An employer’s decision to change work hours to avoid paying overtime to bargaining unit members was mandatorily negotiable. “Allocation of overtime is negotiable and legally arbitrable, subject to the employer’s right to assign a sufficient number of qualified employees to perform the necessary overtime task.… [T]he employer has not presented any governmental policy reason why that overtime work needed to be assigned to [certain] police officers. We acknowledge that having to call in officers for a brief period of overtime may be inconvenient for the employer, but we are not persuaded that having to do so makes the alleged agreement unenforceable or that the employer’s concerns cannot be addressed through the negotiations process.” Town of West New York, 31 NJPER ¶117 (NJ PERC 2005).

b. Allocation for Emergency Call-Back. The employer’s new policy, which changed the method in which overtime was allocated for an emergency call-back, involved a mandatory bargaining subject. “[T]he manner in which overtime offered significantly affects the working conditions and thus is a mandatory subject.... [T]he method of a warning overtime that is part of the City’s new call-back policy was a mandatory subject of bargaining. This part of the new policy was a change from a well-established practice since, under the previous policy of using general call-backs exclusively, all firefighters who chose to respond to a call back could respond. There was no need for the Association to negotiate about

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who would get the overtime, since it was naturally allocated by the election of the firefighters. When the new call-back policy was instituted, which limited the offer of overtime in certain circumstances, the City also unilaterally created a system by which the two-person overtime would be allocated (first two firefighters calling into the station after call announced). City of Gardener, Case No. 05-03 (Maine LRB 2005).

10. Starting Salary for Employees with Prior Work Experience. A union proposal providing that officers with five years of law enforcement experience start at a higher step on the salary schedule and also including prior service in determining longevity calculations and selection of vacations is mandatorily negotiable. “A public employer is required to negotiate over the salary guide placement of newly hired police officers based on their prior law enforcement service. This principle also covers crediting prior service toward longevity payments, vacation days and sick leaves. The [union’s] proposed changes intimately and directly affect employee working welfare and do not interfere with any governmental policy making powers.” Township of Stafford, 31 NJPER ¶40 (NJ PERC 2005).

11. Eliminating Paid Lunch Break Not Required by Law. An employer’s alteration of the work week or the elimination of a paid lunch break for certain employees was mandatorily negotiable. This change had been made because certain employees were not eligible for a paid lunch break under the Federal Fair Labor Standards Act. “Work hours are among the most fundamental terms and conditions of employment. Generally included in the duty to negotiate over work hours is the duty to negotiate over the length of the work year and work day. Also included is the duty to negotiate, upon request, over paid, duty-free lunch period periods. On the other hand, an employer generally has a prerogative to determine the hours during which it will offer its services…. [T]he City does not contend that the elimination of the paid lunch breaks was necessary to, or connected with, a decision concerning the hours during which the City will provide services. Nor does it assert that the change in work schedule and lunch breaks was a result of any other governmental policy determination. Accordingly, applying the negotiability balancing test to the facts of this case,… the employee’s interests in negotiating over the length of the work day and a paid lunch break outweigh the employer’s interest in determining these issues unilaterally.” City of Vineland, 31 NJPER ¶92 (NJ PERC 2005).

12. Adding Easter as Paid Holiday. A union proposal to make Easter Sunday a paid holiday was mandatorily negotiable. Acceptance of the union’s proposal would mean that employees who worked on the holiday would receive holiday pay and overtime pay while employees who were off duty would receive holiday pay. The employer unsuccessfully argued that the union’s proposal was preempted from collective bargaining because it was an unconstitutional violation of the First Amendment. “[P]aid holidays are mandatorily negotiable unless a statute, regulation or constitutional provision preempts negotiations over a particular proposal.” Paying leave that extends to all bargaining unit employees

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on a neutral basis, even if the designated leave falls on a religious holiday, is constitutionally permissible and mandatorily negotiable. The union’s proposal was “not limited to religious employees. Instead, the proposed addition would simply increase the value of the holiday pay provision for all employees as part of the overall compensation arrangements. An interest arbitrator may determine whether that form of increased compensation is warranted by the evidence presented in that proceeding.” Township of Oxford, Dec. No. 2006-28 (NJ PERC 2005).

13. Limiting Hiring of Part-Time Employees. A union proposal to limit the hiring of part-time employees to 10% of the full-time workforce and deleting a sentence in the labor contract allowing the employer to employ part-time employees “notwithstanding any other provision of the collective bargaining agreement,” was mandatorily negotiable. “[T]he proposed deletion of the … sentence would not eliminate [the employer’s] ability to hire and use part-time operators; the rest of the clause both recognizes and restricts that ability…. [T]he concept of a 10% limitation on hiring is in general a mandatorily negotiable subject protecting the work and welfare of full-time personnel against the unrestricted use of part-time personnel at lower wage rates…. [However, the employer] can challenge the enforcement of any mandatorily negotiable provision if it can demonstrate, under a particular set of facts, that compliance would prevent it from delivering its services.” New Jersey Transit Bus Operations, Inc., Dec. No. 2006-45 (NJ PERC 2006).

B. Benefits.

1. Participating in Change of Health Benefits Carriers.

The union’s competitive bidding proposal, which required the employer to award contracts regarding employee health care coverage pursuant to competitive bidding and also required the employer to establish a joint labor-management committee to consider factors used in evaluating the bids, was a mandatory subject of bargaining. “[T]he identity of the police officers’ health insurance providers or carriers has a substantial effect on their level of benefits…. [E]mployees are required to pay a percentage as co-pay for any fee that is negotiated between the health care administrator and the health provider. This is … the direct link between the administrator and its costs and the amount of money employees pay as a percentage of their health care costs, which undeniably affects employee wages and the levels and costs of health insurance benefits.” In addition, “the establishment of a joint labor management committee also affects employee wages, hours and terms and conditions of employment.… In essence it simply requires both parties to jointly determine in committee fashion the various factors used to evaluate responsible bidders the City receives for its health insurance plans. This discussion of the factors used to evaluate responsible bidders also affects employee wages, hours and working conditions for the simple fact that it relates to the particular carrier and the level of benefits that carrier agrees to provide, and the costs and wages employees will be required to pay in

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order to receive those benefits.” Furthermore, “the Union’s proposal does not concern matters of inherent managerial authority.… While the City may be required to bargain with several unions about the criteria it uses to select insurance carriers, and while it may be difficult to reach consensus throughout the bargaining units, it simply does not implicate matters of inherent managerial rights ….” Finally, “the benefits of bargaining over this proposal clearly outweighed the burdens bargaining would impose on the Employer. Simply put, the benefit levels employees derive from a health insurance carrier are among the most basic of fringe benefits that they enjoy and form a part of their wages, hours and terms and conditions of employment. Employees’ concerns about these types of benefits far outweigh any administrative inconvenience the City could, or very well might, experience. While there is no question that this proposal divests the City of a substantial amount of the discretion it would otherwise have to determine various health insurance providers, that result is justified because these matters directly and significantly impact the level of benefits and the amount of the out-of-pocket expenditures charged to employees.” City of Chicago, 20 PERI ¶183 (Ill. LRB GC 2004).

By contrast, the employer’s unilateral replacement of a health insurer was permissible. “The identity of an insurance carrier is generally only permissively negotiable for police and fire employees, and not mandatorily negotiable for civilian employees. That generalization, however, does not apply if a change in the carrier changes the level of insurance benefits. When a change in carriers changes the level of benefits, the change is mandatorily negotiable.... The current evidence does not show that the [new plans] failed to meet the substantially equivalent or substantially equal to or better standard required by the collective agreements.” However, the employer was still ordered to provide more information to the union to better assess whether the new plan was substantially equivalent to the previous one. City of Orange, 31 NJPER ¶56 (NJ PERC 2005).

2. Deductibles. The employer unlawfully imposed deductibles to be paid by employees for certain classes of dental insurance benefits. The employer unsuccessfully argued that the $50 deductible was too insignificant to give rise to a duty to bargain. “While the specific economic impact upon bargaining unit employees was not established, the evidence in the record shows that over $18,000 has been paid by all employees of the employer for the deductible implemented by the employer for calendar year 2004. The employer, depending upon the nature of the service paid, would have fully paid 50-70% of that figure absent its institution of the deductible. By the change with respect to the deductible, and employer cost sharing for certain services, the monthly premium was less than would have otherwise been the case.” Skaget County, 2005 WL 636220, Dec. No. 8887 (Wash. PERC ALJ 2005).

3. Health Benefits Changes.

The employer unlawfully implemented changes to the health care plan, including limiting hospital stays, eliminating the carryover of all Fourth Quarter

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deductibles, and reducing the amount of inpatient days for mental health treatment. Although some other changes in the new health care plan were beneficial to employees, some of the changes clearly were detrimental. “The subject of health insurance is a mandatory subject of bargaining under [the] Act ….” Since the employer changed several elements of the prior plan, it was ordered to resume offering the health insurance plan that had existed prior to the changes and to bargain with the union over any changes to the plan that it wanted to make. City of Reading, 36 PPER ¶134 (Pa. LRB ALJ 2005).

The employer unlawfully changed the medical insurance plan, which resulted in different coverage and increased cost for bargaining unit members. “[M]edical benefits (i.e., plans, coverage, co-pays, contributions, etc.) constitute a mandatory subject of bargaining .... The Township ... argues that the Examiner erred in failing to provide an impact analysis regarding the effect on the employees. This contention is ... without merit given the abundance of precedent ... requiring employers to bargain any changes in medical or health benefits, coverage or procedure.... The Examiner, therefore, was under no obligation to ‘reinvent the wheel’ by again analyzing a separate impact of the Township’s unilateral change where the Board has already declared the issue to be a mandatory subject of bargaining with statutory impact on officers’ compensation and terms and conditions of employment.” Douglass Township, Case No. PF-C-04-213-E (Pa. LRB 2005).

C. Hours.

1. Retaining 24/72 Hour Work Schedule. A union proposal to retain the 24/72 hour work schedule for firefighters was mandatorily negotiable. Although police and firefighter work schedules generally are mandatorily negotiable, there are exceptions “when the facts prove a particularized need to preserve or change a work schedule to protect a governmental policy determination.” The relevant inquiry is “whether [the work schedule proposal] so involved and impeded governmental policy that it must not be addressed through negotiations and interest arbitration.” In this case, no such governmental interest was involved. “The facts do not prove a particularized need to eliminate the current work schedule to protect a governmental policy determination. It appears that the City’s negotiations proposal is a response in part to the [union’s] demand for increase staffing levels, and not an assertion that the current schedule so impedes government policy that changes to that schedule cannot be addressed through negotiations and interest arbitration. City of Gloucester City, 30 NJPER ¶160 (NJ PERC 2004).

2. Replacing Work Schedules.

a. Replacing Eight-Hour Schedule with Twelve-Hour Schedule. The employer unlawfully replaced an eight-hour work schedule for police officers with a twelve-hour schedule. “[T]he work schedules of police officers and firefighters are mandatorily negotiable. However, [there are] exceptions to the rule of negotiability when the facts prove a particularized

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need to preserve or change a work schedule to effectuate a governmental policy.” In this instance, there was no evidence of a “specific operational problem with the contractual 8-hour shift schedule.” Indeed, the employer conceded that the schedule had worked for many years. Rather, the employer’s “primary interest in the 12-hour shift is economy; the City anticipates savings in overtime, sick leave, etc. Even if the City’s projections are correct, labor cost issues alone do not make the subject of work schedules non-negotiable. The City has also cited as an advantage of the 12-hour shift an increase in the available pool of off-duty officers that could be assigned in emergencies. The record does not indicate any instances of deficient emergency coverage.” City of Cape May, 31 NJPER ¶31 (NJ PERC ALJ 2005).

b. Shift Schedule Changes. The new shift schedule implemented by the employer involved a mandatory bargaining subject. The new schedule changed the rank of various assignments, and changed the start/stop times and days off for a large number of bargaining unit employees. The changes also eliminated the “incumbency” provisions that allowed certain employees to remain in their prior positions during the position bidding process. The employer unsuccessfully argued that its action was included within its managerial prerogative to schedule services. The statutory management right “addresses scheduling of services to the public, not scheduling of employee work hours…. A public employer is free to establish the hours to the public, but it must bargain over which of these hours a particular employee will work…. [S]cheduling the particular hours of the day and days of the week an employee is assigned to work constitutes ‘hours of work,’ a per se mandatory subject of bargaining ….” The employer also argued unsuccessfully that the balancing of interests weighed against negotiating the change. “The changed working conditions at issue here concern hours, a subject expressly listed as mandatory in [the collective bargaining statute]. Such matters are per se mandatory and are not subject to the balancing test.” State of Oregon, Department of Corrections, Case No. UP-33-03 (Ore. ERB 2005).

3. Optional Work Schedule.

a. Starting/Ending Times and Planning Period. The employer unlawfully eliminated the optional work schedule for teachers and set uniform start and ending times for bargaining unit members. Teachers previously had been permitted to arrive at work one hour early, take their thirty-minute duty-free prep period at that time, and then leave work one-half hour early. By eliminating the option, these teachers were required to have their duty free prep period at the end of the day, requiring them to leave work one-half hour later. “[C]hanges in employee work schedules are mandatory subjects of bargaining. However, [there is] an exception to this general rule where a work schedule change affects only a portion of

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the bargaining unit and has a greater impact on the employer’s core managerial interests than on the interest of the employees. The employer argues that this exception to the general rule is applicable here, because only about half of the bargaining unit members worked the earlier schedule, and the work schedule change is allegedly justified by certain managerial concerns.… [T]he Employer ignores the fact that under the established practice …, all bargaining unit members have the option of working either an earlier or later schedule.… therefore, … the Employer’s unilateral action affected the entire bargaining unit. The Employer has also failed to establish that its unilateral action had a greater impact on core managerial concerns than on the interests of the employees.… [T]he Employer ignores the fact that regardless of when teachers have their prep period, by contract it is duty-free. Therefore, whether teachers have their prep periods at the same time during the day or at one of two possible times during the day, they cannot be compelled to carry out the activities that the Employer cites in its brief during their prep periods. Thus, the alleged reasons for eliminating the optional work schedule may never come to fruition.” Eastern Westmoreland Career & Technology Center, 36 PPER ¶104 (Pa. LRB ALJ 2005).

b. Optional Forty-Hour Work Week. A union proposal providing for a voluntary, optional forty-hour work week involved a mandatory bargaining subject. The standard work week for employees was 35 hours. Employees would have a chance to grieve the employer’s refusal to provide the alternate work schedule. Although it was a close call, the proposal was found to involve a mandatory bargaining subject. “We are troubled by the content of this proposal. Allowing individual employees the choice of working 35 or 40 hours a week certainly impacts management’s ability to run its operation. However, when we balance this factor against the Union’s ability to negotiate over an issue as fundamental as hours of work, we conclude this proposal is a mandatory subject of bargaining…. There is no fundamental difference between allowing employees to request a reduction in hours or an increase in work hours up to 40 hours.” State of Connecticut, Office of Policy and Management, Office of Labor Relations, Dec. No. 4096 (Conn. SBLR 2005).

4. Tour of Duty Chart. A union proposal that: (a) introduced a new work schedule that required the adoption of a chart providing for 10- or 12-hour appearances for patrol officers; and (b) convened a Joint Labor-Management Committee to resolve all other wage and benefit issues associated with the tour of duty chart, involved a mandatory subject of bargaining. The proposal was not vague or ambiguous, and “a change in tours of duty which does not interfere with an employer’s right to determine its staffing needs is a mandatory subject of negotiations.” The Joint Labor-Management Committee also involved a mandatory bargaining subject “because its purpose [was] to resolve the details of the change in tours.” Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004).

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5. Appointing Part-Time Employee to Full-Time Position. An employer’s decision not to appoint a qualified part-time employee to fill a full-time position was mandatorily negotiable and did not involve the governmental policy concerns present in a typical hiring or promotion decision. “The duties of the full-time [employee] are the same as the duties of the part-time [employee]. The only difference is the work hours of the two positions. Work hours intimately and direct affect employee work and welfare. There is a direct link between total work hours and annual compensation and … benefits. Given that this decision did not involve an advancement in title under Civil Service regulations, the employee’s interest in seeking extra work hours, compensation and benefits outweighs any employer interest in selecting unilaterally which employee will receive the work hours, compensation and benefits of full-time employment.” Ocean County Library, Dec. No. 2006-47 (NJ PERC 2005).

D. Other Conditions.

1. Reimbursement for Training Courses. A union proposal allowing employees to attend, with reimbursement by the employer, any three police training courses during a calendar year was mandatorily negotiable. “An employer has a prerogative to decide which employee will be trained, how they will they be trained and how long they will be trained. However, an employer may agree to reimburse employees for tuition payments for work-related courses.” The union’s proposal was mandatorily negotiable “to the extent it concerns course work separate from and in addition to the employer’s mandatory training courses. It advances the employee’s interest in being more knowledgeable about policing and does not significantly interfere with the employer’s right to determine what they must know to do their jobs.” City of Orange Township, 30 NJPER ¶151 (NJ PERC 2004).

2. Seniority as “Primary” Factor. A union proposal requiring seniority to be “the primary factor in shifts, discretionary assignments and vacation picks” was mandatorily negotiable. The proposal does not restrict management in the delivery of services because it provides that seniority should only be one of the factors to be considered when filling vacancies in job titles.” Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004).

3. Summer Work Assignments for School Guards. The assignment of township-related work to school guards during the summer recess was mandatorily negotiable. “Public employees have an interest in not being required to perform duties outside their job description. When employees are hired, there is an understanding of what kind and amount of work will be performed relative to the compensation earned. Any significant deviation in job duties would destroy the balance of the duties-compensation equation. Public employers have an interest in being able to assign a variety of duties to employees in order to provide the myriad of services government must deliver.” In this case, crossing guards were assigned to monitor library computers or make sure library patrons are silent, or they were assigned to Township parks. “Neither assignment appears

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to involve duties incidental to the crossing guards’ regular job duties.” Thus, there was “no significant interference with governmental policy arising from the [union] contesting the assignment of duties not incidental to a crossing guard’s regular duties.” Township of Bloomfield, 30 NJPER ¶157 (NJ PERC 2004).

4. Paying Union President’s Telephone Calls. A union proposal requiring the employer to provide a telephone to the union and to pay for the union’s official telephone calls was mandatorily negotiable. The employer unsuccessfully argued that such a requirement constituted an unconditional gift. In addition, the employer’s “concern that there is no contractual mechanism for ensuring that calls are limited to union business can be addressed through negotiations and goes to the wisdom of the proposal rather than its negotiability.” City of Paterson, 30 NJPER ¶153 (NJ PERC 2004).

5. Adjusting Staffing to Reduce Overtime. An employer unlawfully changed the minimum staffing level for firefighters to reduce overtime costs. “Whether a staffing proposal is a mandatory or permissive subject to bargaining depends on the nature of the proposal. Staffing levels with a direct relationship to employee workload and safety are mandatory subjects and an employer must bargain. A distinction also must be drawn between ‘shift staffing’ and ‘equipment staffing.’ Depending on the facts, shift and equipment staffing can be closely related with a number of workers on a shift necessarily effects equipment staffing and workers safety and/or workload.” In this case, “the employer changed shift staffing, but equipment staffing was inexorably tied to that change….” The employer’s decision to reduce the minimum shift staffing to six “affected the number of employees assigned to particular equipment which, in turn, affected firefighter safety….” The subject of staffing here was a mandatory subject of bargaining. “The record shows a sufficiently significant impact on employee safety…. On balance, the Union’s safety concerns appear stronger than the employer’s interest in reducing its costs of operation.” City of Wenatchee, 2004 WL 3058183, Dec. No. 8802 (Wash. PERC ALJ 2004).

6. Preferred Assignments. An employer’s refusal to assign two firefighters to their preferred positions and work locations was mandatorily negotiable. “Public employers have a non-negotiable prerogative to assign employees to meet the governmental policy goal of matching the best qualified employees to particular jobs. However, public employers and majority representatives may agree that seniority can be a factor in shift assignments where all qualifications are equal and managerial prerogatives are otherwise compromised.” In one instance, the employer did not suggest that “qualifications, operational problems, or any other managerial reason prompted the transfer…. Absent an articulated managerial need to deviate from the alleged seniority system, the Union may seek to enforce the claim through binding arbitration. Enforcement of that claim would not substantially limit governmental policy making powers.” However, the other transfer was found to be not mandatorily negotiable because the grievance sought to have the employee transferred into a position for which he was no longer qualified, i.e., his certification as an arson

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investigator had expired. “Enforcement of a past practice requires such an assignment would substantially limit the City’s policy making powers.” City of Newark, 30 NJPER ¶174 (NJ PERC 2004).

7. Allocation of Light Duty Assignments. The employer refused to offer a light duty assignment to an employee who had been medically cleared to take the assignment. Although the creation of light duty assignments is not mandatorily negotiable, the denial of available light duty assignments to employees for which they were qualified is mandatorily negotiable. County of Passaic, 30 NJPER ¶163 (NJ PERC 2004).

8. Promotion Procedures.

A union’s proposed promotion procedures were mandatorily negotiable. This proposal concerned: (a) the order in which the employer must administer various components of the promotional process; and (b) whether to withhold the results of one component (i.e., the numerical scores from the written examination) until all other aspects of the promotional process were completed. The court upheld the Commission’s conclusion that “neither of the two proposals deprived the Township of the manager prerogative of determining the criteria for promotion of its officers to the position of Sergeant.” Township of Piscataway, 31 NJPER ¶7 (N.J. App. 2004), aff’g, 30 NJPER ¶57 (PERC 2004). The Commission had rejected the employer’s argument that the first proposal interfered with its prerogative to determine promotional criteria was rejected. “[T]his proposal does not interfere with that prerogative since the employer retains ultimate control of who will be promoted at the end of the process.” The Commission likewise held that the union’s second proposal also did not interfere with any managerial prerogative. “The employer has not stated a managerial interest, beyond its financial interest, in cutting off the promotion process after the written examination. Our holding protects the employer’s undisputed prerogative to set promotional criteria and apply those criteria to its final promotion decisions.”

A union proposal to delete a contract provision that the employer’s decision to fill promotional vacancies be final and not subject to appeal was mandatorily negotiable. “[A] clause concerning the filling of vacancies [is] not mandatorily negotiable to the extent it call[s] for management and the majority representative to jointly determine in the first instance whether an employee [is] qualified for promotion… [However], the parties could specifically negotiate for arbitral review of management’s promotional decisions.” The union’s proposal “presents the mandatorily negotiable issue of grievance procedures for appealing promotional denials.” New Jersey Transit Bus Operations, Inc., Dec. No. 2006-45 (NJ PERC 2005).

9. Maintaining Detailed Time Records.

The employer’s new requirement that district attorney investigators maintain detailed time records of their daily activities was subject to the statutory meet-and-confer requirement. The employer unsuccessfully argued that these new

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requirements were not a significant change from the recordkeeping previously required of investigators. “Investigators were previously required to keep such notes as would permit effective testimony on specific cases to which they had been assigned, notes which, as far as our records show, were not routinely turned over to the investigators’ administrative supervisor.… [G]eneral timesheets and investigative notes (which the record does not indicate were ever turned over to anyone) do not together equal a detailed daily diary turned over to the supervisor for general administrative review. Similarly, the fact that the diaries were to be used to enhance efficiency and improve employee supervision does not, in itself, except the time log requirement from the meet-and-confer requirements…. [T]he diary requirement, as a matter of law, has a significant impact on the investigators’ terms and condition of employment. The requirement adds an entirely new job duty, namely, creation of a detailed log of daily activities; it requires employees to account in writing to their supervisor for every portion of their workday when previously they worked independently; and it provides a new source of information for possible disciplinary action against an investigator for ‘incompetency or inefficiency’ under [the employer’s] civil service rules.” Furthermore, the requirement did not involve fundamental policy decisions that directly affected the quality and nature of public services, which would be exempt from the meet-and-confer requirement. “[T]he manner in which [the employer] chooses to supervise investigators is hardly fundamental. It had little, if any, affect on public services. Rather, it primarily impacted the working conditions of the employees in question and thus was a proper subject for mandatory collective bargaining.” Madera County Deputy Sheriff’s Association v. Madera County Civil Service Commission, 2005 WL 236513 (Cal. App. 2005).

By contrast, the requirement that police officers complete various forms to document the performance of their duties was not mandatorily negotiable. “The employees may have an interest in performing less paperwork, but that interest is outweighed by the employer’s interest in having employees document events related to the performance of their duties. A contractual restriction on the employer’s right to assign these duties would substantially limit governmental policy.” The employer, however, was required to send copies of the forms to the union. City of Newark, 30 NJPER ¶161 (NJ PERC 2004).

10. Hiring Non-Unit Special Police. A union proposal dealing with the hiring of special police who are non-members of the police officers bargaining unit was mandatorily negotiable. Although the union “cannot negotiate over the terms and conditions of employment of non-unit employees, including special police …. [The statute] does, however, touch upon the terms and conditions of employment of regular police officers. For example, it provides that special police officers may not be employed to replace or substitute for full-time, regular police officers or in any way diminish the number of full-time officers employed by the local unit.… [T]he provision can be applied to preserve the terms and conditions of employment of regular police officers, but cannot, as the parties acknowledge, be applied to determine the terms and conditions of employment of special police.” Township of Stafford, 31 NJPER ¶40 (NJ PERC 2005).

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11. Economically-Motivated Layoffs. The employer’s unilateral layoffs, which were economically motivated, were unlawful. “An economically motivated layoff due to lack of funding already has been held particularly amenable to collective bargaining and, as such, a mandatory subject of bargaining about which the employer has a duty to bargain. That is because such a decision truly invites the use of the collective bargaining process. A bargaining representative is frequently in the best position to provide alternatives which may alleviate economic conditions and avoid employee layoffs. An exclusive bargaining representative’s options may include, for example, restructuring wages and benefits, forgoing wage increases, and exploring options for early retirement, in order to avoid or reduce the scope of the layoff.” In addition, “the District’s budgetary problems were not so immediate that bargaining could not occur.” Forest Preserve District of Cook County, 21 PERI ¶43 (Ill. LB LP 2005).

12. Changes to Evaluation Procedures.

The substantive criteria of the employer’s project evaluations system were not mandatorily negotiable, but the procedural aspects of that system were bargainable. Under the prior evaluation system, an employee’s foreman evaluated the employee on an annual basis. These evaluations were the basis for an employee’s step wage increase. The foreman received informal, verbal input from crew leaders throughout the year, which occurred irregularly. The new evaluation system rated an employee’s progress on individual projects and formalized how a supervisor obtained feedback from crew leaders regarding the employee’s work performance. Employee’s were evaluated on their projects at least every 2-3 months. “[I]t is clear that the project evaluations affect employee terms and conditions of employment. The project evaluations contain different criteria than those that were included on the annual evaluations, are completed by crew leaders as opposed to foreman, occur more frequently throughout the work year, and serve as the basis for the annual evaluations, which in turn control employee wage increases.” In addition, [n]othing about the mechanical aspects of an employee’s evaluation implicates any of the managerial concerns…. However, “the substantive aspects of the evaluations do involve matters of inherent managerial discretion…. It is clear that the purpose of evaluations is to assess the quality of employee work performance; ensuring the quality of that performance, in turn, necessarily involves important policy determinations and the overall direction of an employer’s work force. In addition, the Village’s ability to determine the standard and level of employee work performance also relates directly to the standards that it provides to the surrounding community.” Village of Orland Park, 21 PERI ¶42 (Ill. LB SP 2005).

Two bargaining proposals dealing with evaluations – limiting the use of evaluations conducted by co-employees and requiring an employer to provide assistance before commencing discipline – were mandatory bargaining subjects. A third proposal – limiting the use of evaluations by administrators who were not supervisors – involved a permissive bargaining subject.

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The prohibited disciplinary use of evaluations by fellow bargaining unit employees involves a mandatory bargaining subject because “if a municipal employer wishes to have employees perform duties that are not fairly within the scope of the employer’s responsibilities, the municipal employer must require that right at the bargaining table…. [E]valuating fellow employees for potential discipline is not fairly within the scope of a unit employee’s job responsibilities and hence a Union proposal that would limit such assignments is a mandatory subject of bargaining.”

The remedial assistance proposal was a close call, but the balancing of interests favored characterizing the proposal as a mandatory bargaining subject. “As to the effect on conditions of employment, we believe that requiring an employer to provide assistance to an employee and overcoming identified performance difficulties is ‘inherently and directly’ related to job security to the same extent as are length and frequency of job observations…. On the other side of the balancing test, we recognize that requiring an employer to provide assistance also affects managerial interests…. [T]he assistance proposal at issue here affects job security more than it affects managerial prerogatives…. While we agree with [the employer] that the assistance proposal at issue here would come into play in nearly all situations of performance deficiency …, the proposal does not on its face dictate an extraordinary, excessive, or burdensome expenditure of resources.” Likewise, the proposal did not unduly interfere with management’s discretion to determine whether, when, and how to assist employees in overcoming performance difficulties. “[M]any typical contractual provisions limit to some extent management’s discretion regarding fulfillment of its mission but nonetheless were mandatory subjects of bargaining…. [R]emedial assistance is primarily related to job security and the just cause standard, so long as the employer retains discretion to determine what and when performance difficulties need to be addressed and what type and amount of assistance is appropriate under the circumstances.” Finally, the fact that the employer’s efforts in providing remedial assistance could be reviewed by an arbitrator did not unduly interfere with managerial prerogatives. “While [the employer’s] discretion would be subject to arbitrary review and hence not totally unfettered, a contractual standard such as ‘appropriate’ or ‘reasonable’ still leaves the employer a full panoply of options, methodologies, and ‘management techniques’ from which to choose in its own judgment in the first instance.” Cooperative Educational Service Agency No. 3, Dec. No. 31292 (Wis. ERC 2005).

13. Minimum Staffing.

a. Staffing Ratio for transporting Prisoners. An employer unlawfully changed from two to one the number of police officers used to transport male prisoners. The record indicated that during transports, prisoners became violent without advance notice and had injured police

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officers. Having two police officers present during a transport deterred prisoners from acting violently. “[T]he number of police officers to be used to transport prisoners is a mandatory subject of bargaining. To begin with, there is no dispute that the number of police officers used to transport prisoners is rationally related to their duties. Indeed, transporting prisoners is one of their duties. In addition, the use of two police officers to transport prisoners acts as a deterrent to prisoners becoming violent and injuring them. It is apparent, then, that the number of police officers used to transport prisoners implicates an interest they may have in their own safety and thus is a mandatory subject of bargaining.... Indeed, ... the Borough’s asserted interest in determining levels of service and staffing, formulating its budget and selecting and directing its personnel do not substantially outweigh the safety interest of the police officers.... This dispute did not implicate the managerial prerogative of determining staffing levels because “[t]he total number of police officers to be employed by the burrow is not at issue...” Ellwood City Borough, 36, PPER ¶41 (Pa. LRB ALJ 2005), aff’d, 36 PPER ¶89 (Pa. LRB 2005).

b. Number Needed for Emergency Call-Back. By contrast, the decision to change the number of firefighters needed for an emergency-call back involved a permissive bargaining subject. Under prior practice, which had existed for eighteen years, the call-back applied to all bargaining unit employees who responded. Those who were not needed were sent home but received two hours’ overtime pay. Under the new policy, the call back was limited to the first two personnel to respond. The employer’s policy was viewed as having two parts. “First, the policy allows the Fire Chief to determine when only two off-duty firefighters are needed in an emergency call-back situation.... Second, the policy provides for the manner in which the two off-duty firefighters are selected for the call-back -- the first two firefighters who call into the station will be awarded the overtime.”

The first part was viewed as a permissive bargaining subject because it was a decision about minimum manning. “The Association makes no argument that there is any connection between safety, workload, or other working conditions and the number of firefighters that the City chooses to seek on a call back.” Equally unsuccessful was the Union’s argument that the employer was motivated solely by a desire to reduce overtime. “This matter may be, in fact, ‘only’ about money. The City wishes to be able to control its overtime costs by deciding that some situations only need two off-duty firefighters to respond; the Association wishes to be able to preserve the opportunity to get overtime pay (at least two hours), for those firefighters who wish to respond to the call back. The fact that it is about money does not make the call back policy mandatory subject to bargaining, however.... The City’s unilateral institution of the new call back policy may result in there being occasions when certain unit members will not have the opportunity to earn some overtime wages that

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they formerly would have been allowed to earn. A loss of some potential overtime wages is possible for some members, although this is a matter of speculation. However, the board has been unable to find -- and the Association has not cited – any case which establishes that the amount of overtime that an employer offers to employees is itself a mandatory subject of bargaining. City of Gardiner, Case No. 05-03 (Maine LRB 2005).

c. Increased Minimum Staffing. The employer’s unilateral increase in the minimum number of dispatchers was unlawful. Although the employer increased minimum staffing levels, it did not hire additional dispatchers. “Because the employer’s minimum staffing change impacted use of vacation leave, the employer had a duty to provide notice to the union well in advance of the proposed change, and to bargain the decision and any effects of the decision.” City of Seattle, 2005 WL 3308681, Dec. No. 9173 (Wash. PERC ALJ 2005).

14. Bringing Containers to Work. The employer’s unilateral implementation of gate procedures that prohibited employees from bringing containers to their work stations that exceeded a certain size and number involved a mandatory subject of bargaining. The new policy prohibited of carrying of duffle/gym bags, back packs or other similar containers into maximum and medium security correctional facilities beyond the security man-lock. Employees were permitted to bring one appropriate lunch receptical, with a maximum size of 10 inches wide by 12 inches long by 12 inches high. The new policy also authorized the employer to search any containers for contraband, which the Union conceded was appropriate. The employer did not provide free food to the officers, but there were vending machines to obtain various food items. These changes were made in response to incidents involving staff who brought contraband into the facilities, such as television sets, video cassette recorders, computers, video games and an electric “sawzall.” There also was an incident in which an individual impersonated a correction officer and carried a bag into the facility. The imposter was stopped, but a search of his bag found escape paraphernalia, including correction officer uniforms and a chemical agent container. “[A]n employee’s ability to bring permissible personal items to the work place is mandatorily negotiable subject because it directly affects the employer’s comfort and convenience while on the job.... We agree that [the employer’s] mission includes ensuring the safety and security of correctional facilities. [The employer’s] ability to search for contraband in food containers that officers may carry into facilities to their work stations advances the safety and security of facilities. [The union] concedes [the employer’s] right to search officer’s food containers for contraband. However, [the employer’s] new policy prescribes the size and number of food containers that officers are permitted to carry into facilities. In this respect, the new policy adversary impacts the comfort, convenience, and expenses of officers in [the] bargaining unit more than advances [the employer’s] mission of ensuring safety.” State of New York (Department of Correctional Services), 38 NYPER ¶3008 (NY PERB 2005).

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15. Additional Job Qualifications. An employer unlawfully changed working conditions when it changed the requirements for the Police Communications Dispatcher I position by requiring any individual who accepted employment in that position agree to attend training to become qualified in radio dispatching after beginning employment. This requirement was contained in “final offer of employment” letters sent to successful applicants. Employees in that position previously did not perform any radio dispatching duties. However, the employees in the Dispatcher II classification were required to operate radios. This disparity contributed to staffing problems in the communication center. The employer unsuccessfully argued that the change involved a permissive subject for bargaining because it applied only to applicants. “If the employer had altered its requirements for Dispatcher I to require that applicants hold some sort of certificate or license in radio dispatching or pass a pre-employment test for proficiency in dispatch skills, the analysis of this issue would end right here. [However], ‘new hires’ become ‘existing employees’ with all statutory protections as soon as they begin employment, and any ongoing condition of employment becomes a matter which may be subject to the obligation to bargain. Although the letters outlining the requirements were sent to applicants, not employees, the employer’s own words in those letters made it clear that the requirement to become radio qualified was an ongoing condition of their subsequent employment.” City of Seattle, 2005 WL 1046290, Dec. No. 8916 (Wash. PERC ALJ 2005).

16. Effects of Implementing Criminal Background Checks. An employer was required to bargain over the effects of its decision to implement a criminal background check policy for employees. The decision, itself, to implement the criminal background check was within the employer’s managerial discretion. The union, however, appropriately raised several issues regarding the implementation of that policy, including: (a) whether any information in a person’s criminal record would remain confidential; (b) whether certain employees would be exempted based upon length of exemplary work records; (c) whether employees would be required to pay a fee for the background checks; (d) the appeal rights of employees who claim that they have been incorrectly identified of having been convicted of a particular crime or who believe there are extenuating circumstances that would exclude their disqualification; and (e) the categories of offenses that are either reportable or would result in automatically exclusion from employment. “All of these queries concern matters within the terms and conditions of employment and do not impinge on [employer’s] legitimate concerns over public safety.” Sutter County In-Home Supportive Services Public Authority, 29 PERC ¶114 (Cal. PERB ALJ 2005).

17. Management Rights Clause.

An employer lawfully insisted upon the inclusion of a management rights clause in the collective bargaining agreement. Drawing upon case law from other jurisdictions, both federal and state, the court held that a management rights clause is a mandatory bargaining subject. However, the employer failed to

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negotiate in good faith with the union where it refused to make concessions regarding the clause, and its only rationale provided for their inclusion in the contract was the desire for more flexibility in decision making. Bon Homme County Commission v. AFSCME, Local 1743A, 699 N.W.2d 441 (S.D. 2005).

By contrast, the employer’s proposal for management rights and zipper clauses involved permissive subjects of bargaining where both proposals sought to have the union waive its statutory right to bargain over matters that arose during the term of the contract as to which the Union would not have any knowledge at the time that the contract was executed. Both provisions, therefore, were contrary to the public policy in favor of collective bargaining over mandatory subjects of bargaining. State of Wisconsin, Dec. No. 31264 (Wis. ERC 2005).

18. Restrictions on Dual Assignments. A union proposal that restricted the employer’s authority to require dual assignments for bargaining unit nurses was mandatorily negotiable. The union contended that limiting dual assignments to twice monthly adequately addressed the employer’s need to provide coverage during emergencies because such assignments had been made an average of seven times in three months. “Nevertheless, the employer must be able to ensure adequate coverage in the event of an emergency.” Negotiations were permitted over the proposal “with the understanding that, as with many negotiated provisions, the employer may deviate from that provision to ensure adequate coverage when emergencies arise.” Atlantic County, 31 NJPER ¶94 (NJ PERC 2005).

19. Notice of Out-of-Title Assignments. A union proposal requiring notice of any assignment to an out-of-title position was mandatorily negotiable. “A proposal requiring that an out-of-title assignment be designated in writing is mandatorily negotiable.” Atlantic County, 31 NJPER ¶94 (NJ PERC 2005).

20. Expanding Patrol Areas. The employer’s decision to expand the area patrolled by campus security officers to off-campus locations as part of a “downtown crime watch” initiative was mandatorily negotiable. The expansion was intended to assist the local police department’s staffing shortages. Prior to the expansion, campus police had never conducted any patrols beyond the immediate perimeter of the two campus buildings. “[E]mployees may seek to negotiate for contractual protections against being required to assume duties outside their job titles and beyond their normal duties. Parties negotiate over compensation for a position given the amount, nature and difficulty of the work required. Obtaining contractual protection against the imposition of unrelated and out-of-title duties protects the integrity of the equation between the negotiated salaries and the required work. And it inhibits the potential abuse of imposing extra duties without affording employees any opportunity to seek extra pay. In some instances, however, an employer may still have a prerogative to assign duties outside an employee’s job description – for example, when necessary to respond to an emergency or provide proper training or supervision. In those instances, severable employment conditions may be mandatorily negotiable – for

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example, compensation or rotation of assignments among qualified employees. On this record, we cannot conclude that the expanded foot patrols are incidental to the more limited duties previously performed by the security officers. Security Officers are now being required to perform 20-30 minute foot patrols once each hour in areas beyond their immediate perimeter of the two-building Camden Campus.” Camden County College, 31 NJPER ¶121 (NJ PERC 2005).

21. Effects of Disciplinary Demotion. The disciplinary demotion of a non-unit supervisor to the bargaining unit position of lieutenant as part of a settlement of the supervisor’s legal action was unlawful. The union was not a party to that settlement agreement. The employer unsuccessfully argued that it was allowed by its Charter to demote employees and that the supervisor was qualified to be appointed as a lieutenant because he previously held such a position. “[W]e agree with the City that it has the right to initially determine discipline including demotion of employees and that the collective bargaining agreement between the parties does not address the specific procedures for demoting an employee back into the bargaining unit. However, the City is not free to enter into a settlement which substantially impacts the conditions of employment of the members of the bargaining unit without first bargaining with the Union about those substantial impacts. Here, the record is perfectly clear that the … settlement agreement, to which the Union was not a party, substantially affected major terms and conditions of employment of the bargaining unit. The City stipulated that [the supervisor’s] return to the bargaining unit with full seniority affected the seniority rights and privileges of all of the bargaining unit members. Most importantly, [the supervisor’s] assignment to a Lieutenant position at the time that a valid list of candidates existed essentially prevented the promotion of another member of the bargaining unit.” City of Torrington, Dec. No. 4029 (Conn. SBLR 2005).

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VII. PERMISSIVE BARGAINING SUBJECTS

A. Separate Paychecks for Overtime Pay. A union proposal that the employer pay certain amounts of overtime in separate checks to employees was not mandatorily negotiable. The union failed to show how its proposal “would affect employee work and welfare.” City of Orange Township, 30 NJPER ¶151 (NJ PERC 2004).

B. One-Officer Patrol Cars. The employer’s one-officer patrol car policy did not involve a mandatory bargaining subject. A police lieutenant had split up two officers assigned to one patrol car and ordered one officer to complete a burglary report and the other officer to handle an accident report. “Public employers are accorded broad discretion in determining how best to deploy police officers and assign them to particular duties. Determining the number of police officers assigned to a patrol car has been held to be a non-negotiable issue of setting staffing levels.” Enforcing the policy through arbitration, therefore, “would substantially limit management’s prerogatives to determine staffing levels and to deploy officers as it deems best, given the number of officers available to handle the simultaneous receipt of multiple service calls. The [union’s] safety concerns are not severable from the prerogatives.” City of Newark, 30 NJPER ¶148 (NJ PERC 2004).

C. Training Requirements.

1. Defibrillator Training. A union proposal requiring police officers to be trained and certified in the use of a defibrillation unit and to compensate such officers who are trained and certified was not mandatorily negotiable. “[T]he decision to train, without more, including defibrillation training, is a managerial prerogative and, thus, a non-mandatory subject of negotiation. As the [union’s] demand for compensation is inseparable from the rest of the demand, it is a unitary and, therefore, a nonmandatory subject of negotiations.” Matter of City of New York, 37 NYPER ¶3033 (NY PERB 2004).

2. Pepper Spray Training. The employer’s implementation of a training requirement that probation officers who carry pepper spray be exposed to the spray was not mandatorily negotiable. The employer’s policies allowed for alternate protection measures when a medical condition precluded an officer from using the spray. In addition, no officer was required to carry the spray, but any officer carrying it had to complete the training program, including the one-time exposure requirement. “[T]he officer’s significant health and safety interests in not being sprayed … were outweighed by the employer’s prerogative to determine what training was required to ensure that the officers could do their jobs effectively.” The record included an FBI report that pepper spraying does not generally cause long-term ill effects. Moreover, officers with health concerns were allowed to opt out of the exposure and were permitted to ask for alternative protection measures if they elected not to carry pepper spray. While probation officers were not expected to control riots, which was the reason for allowing such exposure for police officers, the reasons asserted by the employer for requiring such exposure were otherwise similar to the reasons given in prior cases

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involving police officers. State of New Jersey Judiciary (Camden Vicinage), Dec. No. 2006-38 (NJ PERC 2005).

D. Retiree Benefits.

A union proposal requiring the city to make additional health and welfare annual contributions for each active and retired member involved a nonmandatory bargaining subject. “A union has no right to negotiate on behalf of current retirees.” The union’s proposal was distinguished from proposals involving benefits for current employees who later retire. “An employee organization’s right to negotiate is limited to the terms and conditions of employment of current employees in its negotiating unit.” Matter of City of New York, 37 NYPER ¶3033 (NYPERB 2004).

The employer had no duty to negotiate changes in the dental insurance provided to current retirees. “The board has long held that demands for health insurance for employees who had already retired are not mandatorily negotiable .... Because the union is not the representative of retirees, it has no bargaining rights or obligations on behalf of retirees.” Regional Transit Service, 38 NYPER ¶4517 (NY PERB Dir. 2005).

A union proposal increasing pension benefits of both current retirees and future retirees was not mandatorily negotiable. A proposal affecting the benefits of future retirees as well as current part-time employees who had retired but were rehired, would be mandatorily negotiable, but the proposal was not mandatorily negotiable because it covered current retirees as well as future retirees. New Jersey Transit Bus Operations, Inc., Dec. 2006-45 (NJ PERC 2005).

E. Limiting Leave Time Per Shift. The employer’s directive limiting the use of accumulated leave time to one police officer per shift, which resulted in the denial of a request for a vacation day, was not mandatorily negotiable. “A public employer has a non-negotiable right to determine the minimum staffing for each shift. But the scheduling of vacation days and other time off is mandatorily negotiable so long as an agreed-upon system does not prevent an employer from fulfilling its staffing requirements. An employer may legally agree to allow an employee to take a vacation day even though doing so will, for example, require it to pay overtime compensation to a replacement employee or temporarily reassign another employee to maintain its staffing levels. The additional cost of overtime payments does not make a vacation scheduling dispute non-negotiable. Nevertheless, an employer has a reserved right to deny a leave if granting a request would prevent it from deploying the minimum number of officers required for a shift. A contract cannot be construed to provide an automatic right to take leave under such circumstances.” County of Camden, 30 NJPER ¶156 (NJ PERC 2004).

F. Overtime Procedures.

1. Overtime Ratio. A change in the overtime ratio that the employer had negotiated with another bargaining unit that represented fire officers was not mandatorily negotiable. Because of the change, the employer called in one fire officer for every four firefighters, instead of the previous ratio of one office for every five firefighters. “Overall staffing levels and how many firefighters and fire

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officers will be on duty at a particular time are issues that are outside the scope of negotiations…. [A]rbitration would have substantially limited the employer’s ability to make staffing decisions about the number of employees needed to perform fire fighting duties and the number needed to perform supervisory duties…. [A]n employer has the prerogative to set the staffing levels of fire officers vis-à-vis firefighters. That principle pertains in overtime as well as emergency situations.” North Hudson Regional Fire and Rescue, 31 NJPER ¶42 (NJ PERC 2005).

2. Mandatory Overtime. The employer’s refusal to excuse a pregnant employee from working overtime and requiring her to go on medical leave was not mandatorily negotiable. “A public employer has a managerial prerogative to set staffing levels necessary for the efficient delivery of government services. That prerogative extends to unilaterally mandating overtime to ensure staffing levels are met. The allocation of overtime among qualified unit employees, however, is generally mandatorily negotiable.” In this instance, the employer “had a right to determine that [the employee] could not remain on active duty unless she was physically capable of working more than 8 hours when needed to do so.” County of Middlesex, 30 NJPER ¶173 (NJ PERC 2004).

3. Eliminating Extra-Duty Assignments. An employer’s decision to eliminate extra duty assignments for police officers at a local motor vehicle facility and instead assign officers who already were scheduled to work at that time was not mandatorily negotiable. The “enforcement of an alleged agreement not to deploy an on-duty police offer would substantially limit governmental policy making powers. [An employer has] a right to decide when an on-duty officer would be assigned to a public safety post…. How on-duty officers will be deployed is generally a governmental policy decision reserved to management.” City of Salem, Dec. No. 2006-46 (NJ PERC 2005).

G. Assignment of Union President to Non-Uniformed Division. A union proposal that required the union’s president to be assigned to the non-uniformed division was not mandatorily negotiable. The union unsuccessfully argued that “wearing plain clothes allows the president to appear as an equal to management when performing union function [because] that interest is outweighed by the employer’s interest in determining the divisional assignment of its officers.” The employer, however, was required to negotiate a related proposal that the union’s president be placed into detective status with regard to terms and conditions of employment because the proposal “is limited to identifying the president’s salary, benefits and employment conditions and does not require that any detective duties be assigned.” City of Paterson, 30 NJPER ¶153 (NJ PERC 2004).

H. “Surveying” Businesses. A union proposal allowing officers to survey businesses and distribute window security shield decals was not mandatorily negotiable. This practice had been characterized as form of union solicitation. “[T]he City may refuse to negotiate over lending its own endorsement to this practice by assigning officers for that purpose. Given its prerogative to determine how to best deploy its police

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officers, we hold that it may so refuse.” City of Paterson, 30 NJPER ¶153 (NJ PERC 2004).

I. Platoon Swapping. A union proposal permitting an employee to swap with another employee of the opposite platoon within the same division was not mandatorily negotiable. The union’s proposal did not expressly require the police department’s prior approval before a swap could be made. City of Paterson, 30 NJPER ¶153 (NJ PERC 2004).

J. Reinstatement Without Medical Clearance. The employer’s refusal to reinstate an employee who had not received medical clearance was not mandatorily negotiable. “[A]n arbitrator cannot order the County to place [the employee] in a position or job assignment that runs contrary to the County’s determination of his physical ability to perform the job.” In this case, the employee had been cleared medically only to perform light duty work, which would have required an assignment to a different shift. The Union, therefore, could not pursue that portion of a grievance that required the employee’s reinstatement to his regular shift. County of Passaic, 30 NJPER ¶163 (NJ PERC 2004).

K. Transfers.

1. Statutory Management Right.

An employer lawfully transferred manual refuse workers to another location without bargaining. The state collective bargaining statute provided that “the employer and the exclusive representative shall not agree to any proposal … which would interfere with the rights of the public employer to … transfer… employees in positions …. Since the statute clearly provided that the transfer of employees was a management right, it was not subject to the balancing of interests test normally used in determining the existence of a mandatory subject of bargaining. The statute “does not expressly state or imply that an employer’s right to transfer employees is subject to a balancing of interests…. Rather,… parties are permitted and encouraged to negotiate all matters affecting wages, hours and conditions of employment as long as the negotiations do not infringe upon an employer’s management rights…. In other words, the right to negotiate wages, hours and conditions of employment is subject to, not balanced against, management rights.” United Public Workers, Local 646 v. Hanneman, 106 Hawaii 359, 105 P.3d 2366 (2005).

The transfer of two express bus routes from one bus depot to another involved a managerial prerogative. The transfers were made to reduce operating costs and improve maintenance of the buses. State statutes expressly authorized the employer “to manage, control and direct the maintenance and the operation of transit facilities ... with power, in its discretion, to extend, modify, discontinue, curtail, or change routes or methods of transportation with the convenience and safety of the public would be served thereby or where existing routes or methods are inefficient or uneconomical.” Consequently “[s]aid statutory provision is an implicit expression of public policy that forecloses any labor negotiation of the

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dispute over [the employer’s] right to implement a bus route change.” However, the employer was obligated “to engage in effects bargaining over the extent to which its employees’ seniority rights might be lost or dissipated following the express bus route change even though, or, perhaps, because, these seniority matters are closely related to or naturally flow from the non-negotiable management decision to implement the route change.” New York City Transit Authority v. Amalgamated Transit Union, Local 1056, 38 NYPER ¶7505 (N.Y. Sup. 2005).

The non-disciplinary transfer of police officers to positions for which they were determined to be better qualified was not mandatorily negotiable. These transfers affected the length of the employee’s work day and the amount of holidays they received. “Public employers have a non-negotiable prerogative to assign employees to particular jobs to meet the governmental policy goal of matching the best qualified employees to particular jobs…. A transfer based on the assessment of an employee’s skills or qualifications is not subject to binding arbitration simply because it has a concomitant effect on working conditions. The loss of seven holidays is an inseparable consequence of the grievant’s transfer from a position that enjoys that negotiated benefit to one that does not but instead has a shorter work day.” City of Jersey City, Dec. No. 2006-29 (NJ PERC 2005).

2. Achieving Diversity/Racial Balance.

The employer’s unilateral transfer of firefighters to achieve diversity was permissible. The substantive decision to transfer or reassign employees and the criteria for selecting employees to transfer is generally not mandatorily negotiable, although related procedures are mandatorily negotiable.” The record reflected that achieving diversity was the main, if not only, reason motivating the transfers. The Commission previously had held that the transfers at issue involved the “non-negotiable managerial prerogative where the City transferred certain firefighters to promote cross-training, improve efficiency, increase diversity and decrease response time.” The ALJ was bound by this prior determination. City of Newark, 31 NJPER ¶46 (NJ PERC ALJ 2005).

The employer’s decision to transfer and reassign several firefighters to achieve racial balance did not involve a mandatory subject of bargaining. “[M]atters relating to work hours, including work schedules, are mandatorily negotiable …. However,… even shift changes are non-negotiable if they will impede employer prerogatives, as by interfering with effective supervision. Here, we deal with job assignments rather than working hours. Both the Act and the Agreement reserve to the employer the right to transfer employees.… The historical fact that the City had never involuntarily transferred its officers or fire fighters does not negate the authority to do so.” City of Newark, 31 NJPER ¶112 (N.J. App. 2005), aff’g, 30 NJPER ¶102 (NJ PERC 2004).

3. After Eliminating Position. The employer lawfully reassigned a security officer from a ten-month day shift position to a twelve-month position on the midnight shift. The employer had abolished the employee’s ten-month daytime

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position in response to a budget defeat. A successful challenge to this decision “would significantly interfere with the Board’s governmental policy decision to eliminate daytime security functions at the high school.” Jackson Township Board of Education, 31 NJPER ¶96 (NJ PERC 2005).

4. Eliminating Employee Conflicts. The transfer of a police records clerk from the police department’s records room to a position at the local library was not mandatorily negotiable. The transfer was made because of conflicts between the clerk and police officers at the work location. The clerk was reassigned because police officers could not be reassigned. “The Borough asserts that major disruption was caused by the disagreements, the grievant’s increased complaints about harassment, and her difficulties in interacting with other employees. High-ranking officials could not communicate with the grievant without a third party. The Borough maintains that there was no other position in the Borough in which to place the grievant and her skills were transferable to the Library, which needed the additional help. It points out that she has maintained her title, salary, and benefits and that she will continue to be represented by the Union even though Library employees are not part of its collective negotiations unit. The substantive decision to transfer or reassign an employee to a different position is generally neither negotiable nor arbitrable. Here, the grievant challenges the Borough’s non-negotiable managerial prerogative to reassign personnel to a different position to deliver its services without disruption and in the manner it deems to be most efficient.” Borough of Roselle Park, 31 NJPER ¶118 (NJ PERC 2005).

L. Work Shift Adjustments to Meet Operational Needs.

The employer’s decision to adjust the work shifts for officers in the Vice Enforcement Unit to coincide with the times that services were most needed was not mandatorily negotiable. “Public employers have a prerogative to determine the hours and days in which a service will be operated and to determine the staffing levels at any given time. But within those determinations, work schedules of individual employees are, as a general rule, mandatorily negotiable. But a particular work schedule may not be mandatorily negotiable if it would significantly interfere with a governmental policy determination....” In this case, “the City has established a need to change the starting and ending times of the Vice Enforcement Unit.” City of Trenton, 31 NJPER ¶28 (NJ PERC 2005).

The employer’s decision to create two new shifts for two police lieutenants did not involve a mandatory bargaining subject. This adjustment resulted in lieutenants working different shifts during the work week. The change was made to ensure that the lieutenants would not have overlapping responsibilities during a particular shift and also would have the opportunity to work with and evaluate employees on more than one shift. “Public employers have a prerogative to determine the hours during which a service will be operated and to determine the staffing levels at any given time. But within those determinations, work schedules of individual employees are, as a general rule, negotiable…. However, a grievance protesting a work schedule change is not legally arbitrable if enforcement of a particular work schedule agreement would substantially

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limit a governmental policy determination.” Here, the employer “established a governmental policy basis for establishing new shifts for lieutenants in order to implement its new management command structure. Given the chief’s believe that supervision, communication and the overall delivery of policy services will improve if an officer of the lieutenant rank or higher is on duty at all times, lieutenant work hours are intertwined with governmental policy determinations about the type of supervisory command structure the department should have.” However, a contract provision that required the joint development of all work schedules was mandatorily negotiable. The union successfully argued that the employer had not shown that the shifts it unilaterally implemented were the only shifts that would accomplish its governmental policy objective of ensuring that a management level officer was on duty at all times. Consequently, the employer had a “prerogative to require a command level presence at all times, but the [union] may seek to enforce an alleged contractual obligation to have the [union] and the [employer] develop work schedules consistent with the new command structure.” Township of Springfield, Dec. No. 2006-27 (NJ PERC 2005).

The employer’s decision to reassign a sergeant and to implement a six-month shift rotation for all sergeants was not mandatorily negotiable. The change replaced the prior practice of adjusting shifts on a yearly basis. “[T]he work schedules of individual employees, including police officers, are as a general rule mandatorily negotiable, unless the facts prove a particularized need to preserve or change a work schedule to effectuate a governmental policy. While all shift schedules or rotations effect employee work hours, some are also intertwined with the nature of the duties performed. When that is the case, a shift schedule proposal or provision may implicate the principle that an employer has a prerogative to match the best qualified employees to particular assignments…. [E]mployers [have] a prerogative to unilaterally change the shifts of positions or individuals to achieve operational, supervisory or other governmental policy objectives.” In this case, the “enforcement of an agreement providing for annual non-rotating shift selections would substantially limit governmental policy making given the [employer’s] description of the problems experienced under that system; [the] conclusion that rotating shifts has improved safety and operations; and [the] judgment that rotating shifts fosters sergeant’s familiarity with both day and night shift responsibilities and maintains effective supervisory relationships between sergeants and patrol officers and sergeants and lieutenants.” Borough of Roselle Park, Dec. No. 2006-43 (NJ PERC).

M. Promotions.

1. Selecting Outsider.

The employer’s determination that all in-house applicants lacked the necessary qualifications for appointment to a promotional position and its denial of an employee’s application for that promotion was not mandatorily negotiable. The employer sought to fill the position of Maintenance Repair, Recreation Maintenance Worker. None of the in-house applicants had the required repairing, mechanical or plumbing qualifications to work on the employer’s pool filtration and chlorinating systems. Consequently, the employer hired an outside applicant. “The City found that all of its in-house applicants … lack the necessary

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qualifications for the job. An employer cannot be required to make a promotion when no suitable candidate exists. Nor can an employer be barred from filling a vacancy with a qualified outside applicant. Seniority preferences in permanent promotions apply only where applicants are equally qualified.” City of Trenton, 31 NJPER ¶26 (NJ PERC 2005).

The employer lawfully declined to promote an employee to a facility management position and lawfully declined to include the Union’s president on the interview committee. “Public employers have a non-negotiable right to fill vacancies and make promotions to meet the governmental policy goal of matching the best qualified employees to particular jobs. While contract clauses may legally give preference to senior employees when all qualifications are substantially equal, the employer retains the right to determine which, if any, candidates are equally qualified.… A public employer may elect to include an employee representative on an interview committee, but is not required to negotiate over proposals requiring that employee representatives be part of the process involved in making personnel decisions.” Edison Township Board of Education, 31 NJPER ¶61 (NJ PERC 2005).

The employer’s decision to appoint an outside candidate to a provisional position as a secretarial assistant was not mandatorily negotiable. After posting the position internally, the employer concluded that none of the internal candidates was eligible. “In general, a public employer has a right to fill vacancies from among all available candidates. However, procedurally, it may agree to consider current employees before considering non-employees. Such procedural guarantees may not obligate the employer to promote from among its current work force.… Upholding [the union’s] claim in arbitration would significantly interfere with the employer’s prerogatives to consider candidates from both within and without the Electric Utility Department and to select the person it believes best qualified for the provisional position.” City of Vineland, 31 NJPER ¶119 (NJ PERC 2005).

2. Minimum Qualifications. The employer’s decision to change the rank of various assignments that could be bid on involved permissive bargaining subject. “The decision of whether to assign a corporal or a sergeant to a position is generally the employer’s prerogative. Such determinations concern assignment of duties and minimum qualifications, both of which are permissive subjects for bargaining.” State of Oregon, Department of Corrections, Case No. UP-33-03 (Oregon ERB 2005).

N. Receipt of Standardized Student Test Scores. The manner in which the employer received standardized student test scores involved a permissive subject to bargaining; consequently, the union’s instance to impasse on a proposal to have the employer receive student test results in a certain manner was unlawful. The union submitted its proposal because the State’s Department of Education, for the first time, released students test scores grouped by the student’s teacher. The union’s proposal: (1) directed that teacher-grouped student test scores be provided only to the teacher; and (2)

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required the school district to receive only grade-level information regarding the test scores. The portion of the union’s proposal that prohibited administrators from viewing teacher-specific test results intruded upon the District’s managerial prerogatives. “There is no evidence that the District has discretion as to how it receives the test results reported by the Department of Education, since there is no evidence that this is a matter within its control. Moreover, the [union] would have to deprive the District of information that it was entitled to receive and consider for purposes unrelated to teacher evaluations.…” “[A] school district should not precluded from allowing principals and other administrators to view such test results for educational purposes unrelated to teacher evaluations, such as whether the school’s curriculum and teachers’ varied strategies for implementing that curriculum are successful in improving test scores.” Newark Unified School District, 29 PERC ¶108 (Cal. PERB ALJ 2005).

O. Secretly Taping Grievance Meetings. The secret tape recording of grievance meetings by the union was unlawful. Such secret tape recording of grievance meetings “interfere with the bargaining process and was equivalent to bargaining to impasse on a permissive subject.…” “There is no question that grievance meetings are an integral part of the collective bargaining process and are subject to [the] requirement of good faith bargaining.... [T]he recording of grievance meetings and other discussions impacting wages, hours, or other conditions of employment, severely inhibits the willingness of parties to express themselves and significantly impairs the bargaining process.” Saginaw Township, 18 MPER ¶30 (Mich. ERC 2005).

P. Discipline.

1. Expungement/Non-Use of Prior Discipline Records. A contract provision requiring that disciplinary actions be expunged after five years and that disciplinary records be removed from a personnel file did not involve a mandatory bargaining subject. “Contract clauses requiring public employers to expunge or destroy disciplinary records have been held to be not mandatorily negotiable. Employers have a significant interest in maintaining a record of prior disciplinary actions for consideration in connection with promotions, reemployment, or, perhaps, to defend itself against allegations that it failed to take appropriate disciplinary actions.… Contract clauses setting time limits on the use of past disciplinary infractions in present disciplinary proceedings are mandatorily negotiable for employees who are not police officers.… [S]uch clauses establish a component of a mandatorily negotiable progressive discipline system. … [However,] for police officers, major disciplinary determinations cannot be subject to either negotiations or arbitration.… Parties in police jurisdictions cannot negotiate to have an arbitrator review major disciplinary actions, which could include reducing a disciplinary penalty. They also cannot negotiate to reduce the effect of major disciplinary penalties by deeming them removed for purposes of deciding future disciplinary actions.” City of Hoboken, 31 NJPER ¶60 (NJ PERC 2005).

2. Increasing Suspension on Appeal. The employer lawfully increased a police officer’s unpaid suspension from seven to fifty days for engaging in

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conduct on becoming an officer. The suspension was increased after the police officer had appealed the seven-day suspension. At that point, the employer hired outside labor counsel, who suggested that the appropriate penalty, based upon the employer’s disciplinary guidelines, was a fifty-day suspension. The employer’s ordinance authorized the Township Manager to impose discipline after a full investigation had been made by the Chief of police, along with a recommendation for discipline. “The ability of the employer to establish and carry out a disciplinary policy for its police officers is far more rationally related to the employer’s managerial concerns than the police officer’s duties. Whether the Township in its discretion considers recommendations for discipline from the chief of police, outside labor counsel, or even an ‘advisory committee’ does not affect the duties that the police officer must perform on a daily basis, nor the process the employee must engage to challenge the discipline once imposed.… Furthermore, the same rationale applies to the Township’s ability to revise a notice of discipline within its guidelines. Binding an employer to a legally deficient or erroneously issued disciplinary notice, is contra-intuitive to the public employer’s managerial interests in directing a competent and efficient police force, and is not rationally related to the employee’s duties as a police officer.… Simply stated, the employer’s decision about who will conduct the investigation and who will decide discipline is a managerial prerogative not subject to collective bargaining.” Limerick Township, 36 PPER ¶125 (Pa. LRB 2005).

Q. Wearing Reflective Vests. A directive requiring all police officers assigned to walking posts and traffic controls to wear reflective vests was not mandatorily negotiable. “The City effectively modified the uniform of officers assigned to traffic control and walking posts when it required them to wear reflective vests.… [P]olice uniforms are not mandatorily negotiable unless related to officer health and safety.… [T]his grievance primarily involves the City’s governmental policy decision to modify the uniform of certain officers, in part for the operational reasons of improving traffic control and increasing officer visibility and in part because the City believes the vests will decrease the likelihood that officers will be injured on duty and will reduce its workers’ compensation costs. Given the governmental policy determination inherent in the initial establishment of uniform requirements, the City’s decision to modify the uniform for the above reasons does not convert the topic into a mandatorily or permissively negotiable issue because of the [union’s] disagreement with the City’s safety assessment.… The City has cited substantial reasons for its belief that the reflective vests will increase employee safety and the grievance is aimed at preventing the City from implementing a safety measure rather than seeking additional safety protections.” City of Newark, 31 NJPER ¶76 (NY PERC 2005).

R. Activating Police Lights. A directive requiring all police units to activate their overhead lights every hour from dusk till dawn in an effort to show increased police visibility and to deter crime was not mandatorily negotiable. “[A]rbitration … would substantially limit the City’s governmental policymaking. The order is part of the City’s plan to address a recent rash of violent crimes and reflects its judgment that, consistent with the experience in some other jurisdictions, the measure could help reduce violence by enhancing police visibility and citizen access. Thus, the order goes to the core of the

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City’s policy making authority to decide how to best deliver policy services.… The [union’s] contentions that the order will cause drivers to ignore police cars with activated overhead lights, thereby causing traffic jams, harming citizens and police officers, and preventing or delaying officers from responding to emergencies, all center on the order’s advisability, not officers’ safety. Any impact on police officer safety is speculative and subordinate to the decision on how to deliver police services.” City of Newark, 31 NJPER ¶75 (NJ PERC 2005).

S. Information on Lease Bidding. An employer lawfully refused to provide information requested by the union relating to unsuccessful bidders for lease premises. Employees had been complaining that the conditions of their working facility, which was leased, affected their health and safety. Specific complaints involved the ventilation system, mold in the walls and to the carpeting, the condition of the roof, the building’s location in a flood plan, and the fact that on at least two occasions the building had actually been flooded. The union requested the names and addresses of individuals, companies or corporations who had submitted bids to lease office space to the employer that had been rejected. “The subject of leases … is not a mandatory subject of bargaining, but rather a meet and discuss matter.… In its argument, the Union has styled the information request as one involving a health and safety issue, which is a mandatory subject of bargaining. There is no dispute that the union has received sincere complaints from employees … that the working conditions at the presently leased premises threatens their health and safety. However, the fact remains that what the Union is requesting constitutes lease proposals from the unsuccessful bidders. The Board has held that the employer is under no duty to supply such information.” Department of Public Welfare, North Hampton County Assistance Office, 36 PPER ¶93 (Pa. LRB ALJ 2005).

T. Assignments.

1. Restrictions on Out-of-Title Responsibilities.

A union proposal that restricted nurses that perform out-of-title assignments from performing field responsibilities was not mandatorily negotiable. “[E]mployees generally have a right to negotiate over not being assigned tasks that are unrelated to normal job functions. However, in situations where an employer has added duties, either regularly or occasionally, to jobs held by public safety employees, health care workers, teachers or others in charge of children, [employers are] allowed greater managerial discretion to assign duties that, at first glance, may appear unrelated to the employee’s normal tasks.” “[G]iven the around-the-clock nature of the nursing care in that division, and consistent with … the employer’s reserved right to make dual assignments,… this proposal [is] too restrictive and therefore not mandatorily negotiable.” Atlantic County, 31 NJPER ¶94 (NJ PERC 2005).

A union proposal barring the assignment of per diem pool nurses to out-of-title positions or charge duties was not mandatorily negotiable. The union’s “qualms about the qualifications or credentials of employees who may be assigned to out-of-title or charge duties is more of a managerial than an employee concern. A public employer is not obligated to negotiate over the qualifications of employees

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it hires or assigns to particular tasks, even where it is alleged that state laws or regulations mandate that jobs be performed by properly licensed workers.” Atlantic County, 31 NJPER ¶94 (NJ PERC 2005).

2. Discontinuing Off-Duty Assignments. The union unsuccessfully sought interim relief to prevent the employer from discontinuing its “Jobs in Blue” program regarding the assignment of off-duty police work to private vendors. “While … the amount of compensation, the assignment procedures, and even the administrative fees charged to vendors are all negotiable components of an off-duty work program, policy considerations about how such a program will be administered are generally within the employer’s managerial prerogative.… While the issue of compensation derived from the off-duty work intimately and directly affects the work and welfare of police, requiring the Township to operate such a program would significantly interfere with the exercise of its inherent managerial prerogatives and also would substantially limit is policy making power. It appears that it has a managerial right to decide not to provide the Jobs in Blue service to the public.” Township of Union, 31 NJPER ¶102 (NJ PERC 2005).

3. Police Work Schedules. The employer’s decision to alter police officers’ work schedule was not mandatorily negotiable. These adjustments were made to align the officers’ schedules with the times when their services were most needed. Consequently, two police officers received assignments that they had not requested. “Public employers have a prerogative to determine the hours and days during which a service will be operated and to determine the staffing levels at any given time. But within those determinations, work schedules of individual employees are, as a general rule, mandatorily negotiable.… But a particular work schedule may not be mandatorily negotiable if it would significantly interfere with the governmental policy determination.” The employer had “shown a governmental policy basis for placing [the two officers] on steady day shifts given their assignments, the chief’s concern about [one officer’s] performance and his judgment that [this officer] is best supervised by [a particular supervisor].” Finally, there was “no indication or contention that the adjustments were made for economic as opposed to operational reasons.” Borough of Franklin, 31 NJPER ¶120 (NJ PERC 2005).

4. Assigning Work Not Covered by Grant. The assignment of work to urban enterprise zone (UEZ) police officers that was not contained within the UEZ grant (i.e., directing traffic at a paving project) was not mandatorily negotiable to the extent that the decision involved a certain work assignment. “Management has a well-established and non-negotiable prerogative to assign duties within a job description. Traffic control on a paving detail is within the job description of police officers and the [union] cannot challenge that assignment through binding arbitration. An alleged external restriction on the use of police officers in the UEZ grant does not transform a non-negotiable assignment decision into a negotiable or arbitrable subject.” Town of West New York, 31 NJPER ¶117 (NJ PERC 2005).

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5. Refusal to Reassign Based Upon Performance Assessment. The employer’s refusal to reassign a captain to the Arson Unit was within its managerial prerogative and was not mandatorily negotiable. “[T]he substantive decision to transfer or reassign an employee is preeminently a policy determination and … the power of the employer to make the policy decision would be significantly hampered by having to proceed to negotiations.” In this case, the employee sought “to replace the current commanders of the Arson Unit and reclaim his previous position. He asserts he is more qualified than the incumbents to be the commander. The chief does not wish to change command and does not believe that [the employee] would be a good choice to lead the unit given his previous request to transfer out of that unit. It is not within our province to agree or disagree with that assessment. Nor can an arbitrator second-guess that determination since to do so would substantially limit the employer’s prerogative to assign superior officers based on management’s assessment of employee qualifications.” City of Jersey City, Dec. No. 2006-31 (NJ PERC 2005).

6. Fire Officer Work Schedules. The employer’s decision to change the schedule for closing fire companies so that it corresponded with the work schedule of firefighters rather than the work schedule of fire officers was not mandatorily negotiable. The change resulted in fire officers having to report to a different fire house once during every eight day cycle. “A decision to reassign an employee is generally not mandatorily negotiable. Although an employee’s assignment has an appreciable affect on his or her welfare, that impact is outweighed by the managerial interest in deploying personnel in the manner that the employer considers best-suited to the delivery of governmental services. However, the balance may shift if a reassignment implicates other negotiable employment conditions such as work hours. A fire officer’s occasional reassignment to another company does not appear to change any negotiable employment condition. There is no impact on employee work hours or compensation…. [A] reassigned captain is not required to share command or perform any administrative responsibilities or additional duties…. Because the work schedules for fire officers and fire fighters differ, any schedule for closing fire companies would result in either firefighters or fire officers being periodically reassigned to different fire companies. The [employer] believes that it is more efficient to reassign individual fire captains rather than groups of firefighters and leads to more seamless accountability and neither we nor an arbitrator can second-guess these conclusions. This is a governmental policy determination that remains outside the scope of collective negotiations.” City of Newark, Dec. No. 2006-30 (NJ PERC 2005).

U. Parking Fees. The issue of parking fees for employees did not involve a mandatory bargaining subject. Although such fees do involve terms and conditions of employment, they also concern matters within the employer’s inherent managerial authority. “The University is in the business of higher education.… [T]he mission of the University of Illinois is teaching, researching, public service, and economic development.… [P]arking facilities, unlike economic buildings, are considered auxiliary units and do not receive state funding. Yet, parking cannot be deemed to be totally

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subordinate to the University’ mission. The control of an income stream from parking; the control of land used; the equal treatment of employees, faculty, and staff; and the need to consider the impact of bargaining with 16 other represented employee units clearly lie at the core of entrepreneurial control. Further, the parking budget and parking locations are inextricably tied to the University’s master plan, which is a necessity if the University is to fulfill its academic mission. [Finally], mandatory bargaining of this issue would be a significant burden on the University, with only limited benefits.… The University, with thousands of students and employees, controls many acres of land and must plan for the most efficient and cost-effective use of that land for the present and the future. The existence, location, and cost of parking are components of the University conducting its day-to-day business and fulfilling its mission as well as integral to future land use.” Board of Trustees of University of Illinois, the Illinois Labor Relations Board, State Panel, 361 Ill. App. 3d 256, 836 N.E.2d 187 (2005), rev’g, 20 PERI ¶84 (Ill. LB SP 2004) and Board of Trustees of University of Illinois, the Illinois Educational Labor Relations Board, 359 Ill. App. 3d 1116, 836 N.E.2d 199 (2005), rev’g, 20 PERI ¶84 (Ill. LB SP 2004).

V. Preamble/Recognition Clauses. The contractual Preamble and Recognition clauses were permissive bargaining subjects. Consequently, the employer’s unilateral decision to eliminate the requirement that instructional staff be required to maintain a valid teaching certificate did not have to be bargained. The union unsuccessfully contended that both provisions, which refer to “teachers” who were required to have certificates as opposed to non-certificated “instructors,” were violated by the unilateral change. The Recognition clause was a permissive subject of bargaining because “management found that the certification required of teachers has nothing to do with their ability to do their job.… [M]anagement also felt that no longer requiring the certification was justified because it would have a larger recruitment pool to draw from, management needs were changing, certificated and experienced teachers were less important than a person with actual trade experience, and actual experience was a stronger focus than formal instruction. These policy concerns of the State outweigh any economic interests of the effected employees.” The Preamble likewise was found to be a permissive subject of bargaining because it was “more in the nature of a scope of bargaining unit clause. Although extensive bargaining about the unit commonly occurs, the scope of the unit is not a mandatory subject of bargaining.” State of Alaska, Dec. No. 274 (Alaska LRA 2005).

W. Disbanding SWAT Division. The employer’s disbanding of its SWAT division was not subject to mandatory bargaining. “[A] public employer’s permanent and complete cessation of services is a proper exercise of managerial prerogative that does not implicate the employer’s bargaining obligation. The argument that the City’s actions impact the bargaining unit members’ hours and working conditions is unavailing. Often, a public employer’s exercise of managerial prerogatives indirectly impacts bargaining unit members’ wages, hours, and/or working conditions. While the employer owes the Union a duty to bargain over the impact of these actions on demand, the subsequent impact on bargainable subjects itself does not render the exercise of managerial prerogative a violation of a public employer’s bargaining obligation. Accordingly, although the City may owe the Union a duty to bargain the impact of its

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decision to eliminate the SWAT division upon demand, it does not owe the Union a duty to bargain over the underlying decision to eliminate the division.” City of Easton, Case No. PF-C-05-119-W (Pa. LRB 2005).

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