Presented by:

R. Russell Lucas, Jr., Esquire

David E. Mitchell, Esquire

CAMPBELL DURRANT BEATTY PALOMBO & MILLER, P.C.

535 Smithfield Street, Suite 700

Pittsburgh, PA 15222

(412) 395-1280

� There are things that should bebargained, and things that should not.The Union generally takes the positionthat you have to bargain with it over anychange, but this is not always true.

� To know your obligation, you have tounderstand the legal standard.

1. PLRB v. State College Area School District, 337 A.2d 262, 268 (1975).

Where an item of dispute is a mattermattermattermatterofofofof fundamentalfundamentalfundamentalfundamental concernconcernconcernconcern totototo thethethetheemployees’employees’employees’employees’ interestinterestinterestinterest inininin wages,wages,wages,wages, hourshourshourshoursandandandand otherotherotherother termstermstermsterms andandandand conditionsconditionsconditionsconditions ofofofofemploymentemploymentemploymentemployment, …

It is the duty of the Board . . . to determinewhetherwhetherwhetherwhether thethethethe impactimpactimpactimpact ofofofof thethethethe ississississueeee onononon thethethetheinterestinterestinterestinterest ofofofof thethethethe employeeemployeeemployeeemployee in wages, hoursand terms and conditions of employmentoutweighsoutweighsoutweighsoutweighs itsitsitsits probableprobableprobableprobable effecteffecteffecteffect onononon thethethethe basicbasicbasicbasicpolicypolicypolicypolicy ofofofof thethethethe systemsystemsystemsystem asasasas aaaa wholewholewholewhole.

If it is determined that the matter is oneof inherent managerial policy but doesnot affect wages, hours, and terms andconditions of employment, the publicemployer shall be required to meet anddiscuss such subjects upon request bythe public employees’ representativepursuant to Section 702.

� Wage rates and other benefits

� Health care benefits

� Pensions

� Shift times

� Pay dates

� Direct deposit

� Certain aspects of disciplinary procedures

� Tobacco use policies

� Subcontracting

� Level of services to be provided

� Job descriptions

� Job qualifications

� Hiring procedures and requirements

� Promotional criteria (but promotional procedures are bargainable)

� Terms and conditions of employment of non-bargaining unit members

Borough of Ellwood City v. PLRB, 998 A.2d 589 (Pa. 2010).

� In Ellwood City the employer was found tohave committed an unfair labor practicewhen it unilaterally changed its smokingpolicy without bargaining with the Union.

� However, the Commonwealth Courtestablished a new test for determiningwhat is a mandatory subject of bargainingunder Act 111.

In resolving whether a particulartopic is an inherent managerialprerogative, no clear test hasevolved.

Once it is determined that, as here, thetopic is rationally related to the terms andconditions of employment, i.e., germaneto the work environment, the properapproach is to inquire whether collectivebargaining over the topic would undulyinfringe upon the public employer’sessential managerial responsibilities.

If so, it will be considered amanagerial prerogative andnon-bargainable. If not, thetopic is subject to mandatorycollective bargaining.

NewNewNewNew CumberlandCumberlandCumberlandCumberland BoroughBoroughBoroughBorough,,,, 43434343PPERPPERPPERPPER 28282828 (Hearing(Hearing(Hearing(Hearing ExExExEx.... Marino,Marino,Marino,Marino,2011201120112011)))).

Decision to designate an employee’s medical leave as FMLA leavewas within employer’s managerial prerogative.

Observed that the PLRB “has previously held that changing thediscretionary aspects of an existing FMLA policy are mandatorilybargainable” and that “FMLA policies certainly impact employes’terms and conditions of employment” the issue of an employer’sinvoluntary designation of leave as FMLA leave without the optionof switching it out for accrued paid leave had not been previouslyaddressed by the PLRB.

interests as well.”

� The Hearing Examiner observed that in Borough of Ellwood City the Pennsylvania Supreme Court “recently adopted a standard to be applied” when determining whether a change to terms of employment violated Act 111 and “whether a matter constitutes a mandatory subject of bargaining, which further requires consideration of the employer’s interests as well.”

� When determining whether the Borough lawfully placed an employee on FMLA leave, both the FMLA and Ellwood City “require the weighing of the legitimate interests of the Borough against the rights, protections and interests” of the employees.

� Permitting an officer to choose when to take FMLA leave “would allow him to tack the FMLA designated leave on the end of his sick leave” which “would require the Borough to maintain his benefits and his position as an officer in the police department for twelve weeks beyond his accumulated sick leave.”

� Although that “mandatory limitation” was rationally related to officer’s and the bargaining unit’s work environment, in balancing the interests of the employer against the employee and bargaining unit it was “clear that the Borough has a greater interest.”

� A public employer operating a police department has “a managerial interest in determining the appropriate level of police service and protection within the community given its operating budget.”

� Observing that “[p]olice services are at the heart of a municipality’s function to provide for the health, safety and welfare of the community” the Hearing Examiner concluded that because “its core managerial function would be unduly infringed upon” the designation of leave as FMLA leave was a matter of managerial prerogative.

� Result could have been different in New Cumberland Borough if the issue had been addressed in the CBA.

� Many other aspects of FMLA policies have been found to be bargainable (whether paid leave must be used concurrently with FMLA leave, whether a calendar year or a rolling 12 month period is used to determine eligibility).

ChambersburgChambersburgChambersburgChambersburg BoroughBoroughBoroughBorough,,,, 43434343 PPERPPERPPERPPER2222 ((((HearingHearingHearingHearing ExExExEx.... Wallace,Wallace,Wallace,Wallace, 2011201120112011))))....

� Implementation of written policy intended to formalize unwritten cell phone and landline usage policies for borough police officers was not an unfair labor practice.

� Employer does not commit an unfair labor practice “by reducing an unwritten policy to writing without change even if the policy is a mandatory subject of bargaining.

FraternalFraternalFraternalFraternal OrderOrderOrderOrder ofofofof Police,Police,Police,Police, LodgeLodgeLodgeLodgeNoNoNoNo.... 5555 vvvv.... CityCityCityCity ofofofof PhiladelphiaPhiladelphiaPhiladelphiaPhiladelphia,,,, 45454545PPERPPERPPERPPER105105105105 ((((HearingHearingHearingHearing ExExExEx.... Leonard,Leonard,Leonard,Leonard,2014201420142014))))....

� Employer adopted a new Disciplinary Code that increased the severity of discipline imposed.

� Employer order to rescind and bargain over penalty provisions of the code.

� Employer had the managerial prerogative to adopt most of the new rules.

� However, rules regarding making false reports, fraternization, and custody of prisoners involved mandatory subjects of bargaining.

2222.... ProfessionalProfessionalProfessionalProfessional AssociationAssociationAssociationAssociation ofofofofParamedicsParamedicsParamedicsParamedics vvvv.... PennPennPennPenn HillsHillsHillsHillsMunicipalityMunicipalityMunicipalityMunicipality, 43 PPER 49(Hearing Ex. Marino, 2011).

The Hearing Examiner ruled that notes madeby two of the employer's representativesduring the meeting were subject to discoveryunder Rule 4000.03 of the Rules of CivilProcedure because they were investigationsummaries and conclusions prepared by theemployer in preparation for litigation.

� This is a somewhat strange ruling (can’t the Union take its own notes?), but you should use it to your advantage.

� You create the record. Take notes knowing that they are going to be used as an exhibit in arbitration.

� Make sure they reflect favorably on you.

3333.... ConneautConneautConneautConneaut SchoolSchoolSchoolSchool DistrictDistrictDistrictDistrict,,,, 12121212PPERPPERPPERPPER (LRP)(LRP)(LRP)(LRP) PPPP12121212,,,, 155155155155 (PLRB(PLRB(PLRB(PLRB1981198119811981))))....

Conneaut School District adopted forPennsylvania the rule set forth in NLRB v. J.Weingarten, Inc., 420 U.S. 251 (1975),where the Supreme Court held thatbargaining unit employees have the right tounion representation during investigatoryinterviews if they reasonably believe thatthe interview may result in discipline.

�

� You have the right to ask questions.

� The employee is obligated to answer, and to answer truthfully.

� Even in cases with criminal implications, the employee has no Fifth Amendment right to remain silent after being given Garrity warnings.

� You do not, at this stage, have to share information.

SouthSouthSouthSouth MiddletonMiddletonMiddletonMiddleton SchoolSchoolSchoolSchool DistrictDistrictDistrictDistrict,,,,45454545 PPERPPERPPERPPER 109109109109 (Hearing(Hearing(Hearing(Hearing ExExExEx.... MarinoMarinoMarinoMarino2014201420142014))))....

� A Weingarten interview “is an exercise of managerial prerogative (the employer' s right to supervise, discipline, and if necessary to discharge employes for cause) and is not, as the Supreme Court points out in Weingarten, affected by the right of employes to collectively bargain through their representative.”

� “Clearly, the Board has concluded that there is nothing bargainable about the manner in which an employer conducts an investigatory interview.”

� “The only protected right of the employe during the investigatory interview is the presence of a union representative. The court reporter' s presence has no effect on the provision or presence of the union representative. Therefore, there is no chilling affect or coercion with respect to the exercise of rights protected by PERA.”

� In contrast, grievance meetings and bargaining sessions cannot be recorded without the consent of all parties (and generally should not be recorded anyway).

� Weingarten rights attach any time employee reasonably believes he or she could be disciplined as a result of an interview.

� If the employee is not the subject of the investigation, then say that. If things change during the interview, permit the employee to obtain a Weingarten representative (or even consider permitting one from the start).

� Employees have a right to a union representative of their choosing –but must be reasonably available.

� Representative can advise and assist, but not speak for the employee.

4444.... SomersetSomersetSomersetSomerset BoroughBoroughBoroughBorough 18181818 PPERPPERPPERPPER18085180851808518085 (Final(Final(Final(Final Order,Order,Order,Order, 1987198719871987))))....

The Pennsylvania Labor Relations Boardupheld the Municipality’s right toeliminate certain shifts from its workschedule, even though the contractrequired the Municipality to maintain allexisting terms and conditions ofemployment, including past practices.

The Board reasoned that whether ornot to provide coverage on certainshifts was a managerial prerogative,and therefore not a mandatorysubject of collective bargaining.

� If there is an overall staffing guarantee, you should insist that it come out in the next round of negotiations/interest arbitration.

� However, minimum staffing per shift (or vehicle) requirements can be bargainable where a safety issue exists (typically police and fire)

Act Act Act Act 195:195:195:195:

AUGUST AUGUST AUGUST AUGUST 3.3.3.3.

When negotiations with a public works orother Act 195 group of employees doesnot resolve the dispute, submission of thedispute to the Pennsylvania Bureau ofMediation is mandatory and must becommenced no later than 150 days priorto the budget submission date.

Unless a public employer hasspecifically designated a differentbudget submission date, the default isDecember 31, which means thatmediation must ordinarily becommenced by nononono laterlaterlaterlater thanthanthanthan AugustAugustAugustAugust 3333....

5. Berks County v. PLRB, 445A.2d 860 (Pa. Commw. 1982).

A new union was certified on November 29, 1978and requested bargaining on December 18, 1978.The County’s budget submission date wasDecember 5, 1978. In responding to the union’srequest, the County took the position that itwould meet with the union, but that it was onlywilling to discuss economic terms for 1980because the budget for 1979 had been set.

The union filed an unfair laborpractice charge alleging refusal tobargain in good faith. The LaborBoard sustained the charge because,in its view, the time limitations in Act195 were merely directory and notmandatory.

The County appealed. Inanalyzing the Labor Board’sdecision the CommonwealthCourt stated that the timedeadline sections of Act 195are unambiguous.

They clearly prohibit submission of animpasse in negotiations to arbitration laterthan one hundred thirty days prior to thebudget submission date and, of course wemay not, when the words of a statute areclear and free from ambiguity, disregard theletter of the statute under pretext ofpursuing its spirit.

The cases from the Labor Boardalso make clear that the samerule applies in bargaining withinterest arbitration units underAct 111.

An Act 195 bargaining unit that misses thedeadlines will be precluded from going onstrike.

An Act 111 bargaining unit that misses thedeadlines will be precluded from insisting ongoing to binding interest arbitration if a dealcannot be reached at the bargaining table.

In FOP Lodge No. 5 v. City ofPhiladelphia, 27 PPER 27126 (FinalOrder, 1996) the Labor Board upheld ahearing examiner’s dismissal ofcharges against the City where the Cityrefused to submit to interestarbitration because the union had notcomplied with the statutory timelines.

Act 111:Act 111:Act 111:Act 111:

SEPTEMBER 12SEPTEMBER 12SEPTEMBER 12SEPTEMBER 12

Under the mandatory Act 111 timetable, bargaining must begin at leastsix (6) months before the start of theemployer’s fiscal year (which isgenerally June 30).

A Union request for dates to meet canbe sufficient to start the process.

The employer is not required tocommence negotiations before that date.A bargaining impasse is deemed to occurif a settlement is not reached within thirty(30) days after collective bargainingproceedings begins. This is the caseregardless of the number of negotiationsessions which occur, if any.

A demand for arbitration may be madeby either party at any time after animpasse is reached, but it must bemade at least one hundred ten (110)days before the start of the employer’sfiscal year (typically SeptemberSeptemberSeptemberSeptember 12121212).

IfIfIfIf thethethethe employeesemployeesemployeesemployees demanddemanddemanddemandarbitration,arbitration,arbitration,arbitration, thethethethe employeremployeremployeremployer isisisis thenthenthenthenrequiredrequiredrequiredrequired totototo respondrespondrespondrespond withinwithinwithinwithin fivefivefivefive ((((5555))))daysdaysdaysdays ofofofof thethethethe employees’employees’employees’employees’ demanddemanddemanddemand forforforforarbitrationarbitrationarbitrationarbitration andandandand identifyidentifyidentifyidentify itsitsitsits issuesissuesissuesissues inininindisputedisputedisputedispute....

McDonald Borough, 44 PPER 104(Hearing Ex. Marino 2013)

in Act 111.”

Police Union demanded Act 111 interestarbitration in December 2011 even though CBAdid not expire until over two years later inDecember 2013.

Union unfair labor practice charge was dismissedbecause “Act 111 does not create a duty tobargain prior to the six-month deadline set forthin Act 111.”

� First, you should make sure that you comply with the deadlines under either Act 111 or Act 195.

� Next, you should insist that the Union do so. Do not waive anything.

� The question is, what to do if they miss a deadline?

� The “nuclear option” would be to refuseto arbitrate over the year for which thedeadline was missed.

� Often it leads to a better result to use theUnion’s mistake as leverage to get abetter deal.