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

George S. Crisci Zashin and Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, Ohio 44113 Phone: 216-696-4441 Fax: 216-696-1618 E-Mail: gsc@zrlaw.com www.zrl.aw.com

i

TABLE OF CONTENTS

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

1. Park Police Work. ......................................................................................................... 1 2. Waste Disposal. ............................................................................................................. 1 3. Temporary Contracting Out During Reorganization. .............................................. 2 4. Work Performed by Volunteers. ................................................................................. 2

B. Transferring Bargaining Unit Work............................................................................... 2 1. Calculated Displacement of Clerical Work. ............................................................... 2 2. Returning “Temporary” Transferred Work.............................................................. 3 3. Recipient of Transferred Work. .................................................................................. 4 4. Merger of Police and Fire Departments. .................................................................... 4

II. LEGAL IMPEDIMENTS TO ESTABLISHING MANDATORY SUBJECTS OF BARGAINING .......................................................................................................................... 4 A. Educational Issues............................................................................................................. 4

1. Performance-Based Withholding of Salary Increment. ............................................ 4 2. Non-Teaching Duties. ................................................................................................... 5 3. Mileage Reimbursement Rate...................................................................................... 5 4. Teacher Lead Program Funds. .................................................................................... 6 5. Salary Guide Placement. .............................................................................................. 6 6. Qualifications of Mentor Teachers.............................................................................. 7 7. Non-Reappointment of Non-Tenured Teacher. ......................................................... 7

B. Benefits............................................................................................................................... 7 1. Changing Health Benefits Plans. ................................................................................. 7 2. Concurrent FMLA Leave/Paid Sick Leave. ............................................................... 8 3. Repealing Unlawful Pension Benefits. ........................................................................ 8 4. Disability Benefits Eligibility Review Procedures...................................................... 9 5. Retroactive Docking of Extended Sick Leave Pay. .................................................... 9

C. Impact of Treating Excess Value of Free Parking as Taxable Noncash Benefit....... 10 D. Return-to-Work Program. ............................................................................................. 11 E. No-Smoking. .................................................................................................................... 11 F. Overtime Calculations. .................................................................................................. 11 G. Changing Compensation and Shift Swapping Practices to Comply with Wage/Hour Requirements...................................................................................................... 11 H. Discipline...................................................................................................................... 12

1. Police Discipline Procedures. ..................................................................................... 12 2. Modifying Reason for Separation from Employment. ............................................ 13 3. Initiating Major Discipline......................................................................................... 13 4. Drug Testing Methods. ............................................................................................... 14

I. Out-of-Seniority Order of Layoffs. ............................................................................... 14 J. Accident Form for Workers’ Compensation Claims................................................... 15 K. Civil Service Laws....................................................................................................... 15

1. Reassignment Procedures. ......................................................................................... 15 2. Layoff of Provisional Employee After Failing Exam............................................... 15

L. Fiscal Emergency Laws. ................................................................................................. 16 1. Municipalities Financial Recovery Act. .................................................................... 16

ii

2. Municipal Rehabilitation and Economic Recovery Act. ......................................... 16 M. Amount of Compensation on Union Leave............................................................... 16 N. Honorable Discharge Criteria. ...................................................................................... 17 O. Alternative Dispute Procedure for Grievance Arbitration. .................................... 17

III. MANDATORY BARGAINING SUBJECT ESTABLISHED ........................................ 18 A. Wages. .............................................................................................................................. 18

1. Additional Compensation for Performing Supervisory Duties. ............................. 18 2. Notice of Contract Duration/Salary Reduction........................................................ 18 3. Placement on Teacher Salary Guide. ........................................................................ 18 4. Adjusting Assignments to Reduce Holiday Overtime. ............................................ 18 5. Method of Petty Cash Reimbursements. .................................................................. 19

B. Benefits............................................................................................................................. 19 1. Vacation Scheduling Procedures. .............................................................................. 19 2. Reducing Number of Employees. .............................................................................. 20 3. Scheduling Compensatory Time................................................................................ 20

C. Hours. ............................................................................................................................... 20 1. Furlough Days. ............................................................................................................ 20 2. Changing Shift Length. .............................................................................................. 22

D. Leaves of Absence. .......................................................................................................... 23 1. Concurrent Use of FMLA/Paid Leave. ..................................................................... 23

E. Other Conditions............................................................................................................. 23 1. Discipline...................................................................................................................... 23

a. Violation of Smoking Policy. .................................................................................. 23 b. Departmental Investigations. ................................................................................. 23 c. Procedural Protections During Ethics Investigations. ........................................ 24

2. Transfers/Assignments. .............................................................................................. 24 a. Overtime. ................................................................................................................. 24 b. Determining Overtime Need and Staffing. ........................................................... 25 c. Seniority Basis for Bumping. ................................................................................. 25

3. Work Schedules........................................................................................................... 25 a. “Four On, Three Off.”............................................................................................ 25 b. “24/72” Work Schedule. ......................................................................................... 25 c. Change from 4-3 to 5-2 Schedule........................................................................... 26 d. Establishing Early Evening Shift........................................................................... 26

4. Educational Issues....................................................................................................... 26 a. Distance Learning Committee. .............................................................................. 26 b. Impact of Required Electronic Submission of Lesson Plans. ............................. 27

5. Inclusion in Bargaining Unit...................................................................................... 27 6. Notice of Work Rule Changes.................................................................................... 27 7. Promotions................................................................................................................... 27

a. Eligibility While on Leave of Absence. ................................................................. 27 b. Non-Bargaining Unit Position................................................................................ 28

8. Background Checks and Fingerprint Testing for Current Employees. ................ 29 9. Changing Minimum Job Qualifications. .................................................................. 29 10. Restrictions on Off-Duty Alcohol Consumption. ..................................................... 30 11. Vehicle Take-Home Policy. ........................................................................................ 30 12. Maintaining Status Quo on Expired Contracts. ....................................................... 31 13. Residency Requirement.............................................................................................. 31

iii

14. Layoff Order................................................................................................................ 32 15. Certification of Understanding. ................................................................................. 32 16. Permissive Subjects in Existing Contracts. .............................................................. 32 17. Location of Union’s File Cabinet............................................................................... 33

IV. PERMISSIVE BARGAINING SUBJECTS ..................................................................... 33 A. No-Smoking Policy.......................................................................................................... 33 B. Educational Issues........................................................................................................... 34

1. Evaluation Content and Procedures. ........................................................................ 34 a. Self-Evaluations....................................................................................................... 34 b. Student Course Evaluations................................................................................... 35 c. Classroom Visitations. ............................................................................................ 35 d. Use of Technologies and Methodologies. .............................................................. 35 e. Person to Conduct Evaluation Conferences ......................................................... 35 f. Video-Taped Observations..................................................................................... 35 g. Person to Receive Proposed Corrective Action Measures. ................................. 35

2. Distance Learning Course Assignments. .................................................................. 36 3. Educational Employee Course and Classroom Rights and Responsibilities. ........ 36 4. Work Assignments. ..................................................................................................... 36 5. Teaching Overload...................................................................................................... 36 6. Increasing Number of Class Instructional Periods.................................................. 36 7. Union Access to Inter-School Mail Facilities............................................................ 37 8. Student Reading Time. ............................................................................................... 37 9. Primary Responsibility. .............................................................................................. 37 10. Performing Non-Teaching Duties.............................................................................. 37 11. Hiring Lunchroom Monitors. .................................................................................... 37 12. Employment Opportunities for Non-Bargaining Unit Employees. ........................ 38 13. Salaries for Promotions to Positions Out of the Bargaining Unit. ......................... 38 14. Responsibilities of Joint Committee on Employee Evaluation. .............................. 38 15. Removal of Personnel Records. ................................................................................. 38 16. Availability of Teacher Editions of Textbooks. ........................................................ 38 17. Availability of Textbooks and Other Materials for Students. ................................ 39 18. Reporting Assaults. ..................................................................................................... 39 19. Staffing School Nurses. ............................................................................................... 39

C. Scheduling In-Service Training. .................................................................................... 39 D. Working on Holidays. ..................................................................................................... 40 E. Assignments. .................................................................................................................... 40

1. Return-to-Work Program. ......................................................................................... 40 2. Light Duty Policy. ....................................................................................................... 40 3. Avoiding Overtime...................................................................................................... 40 4. Seniority Bidding. ....................................................................................................... 41 5. Priority Assignments. ................................................................................................. 41 6. Replacement Procedure.............................................................................................. 41 7. Reasons for Refusal to Reassign. ............................................................................... 42

F. Vehicle Usage................................................................................................................... 42 G. Determining Fire Companies..................................................................................... 42 H. Staffing. ........................................................................................................................ 42

1. Minimum Firefighter Staffing. .................................................................................. 42 2. Overtime/Call-In/Court Time (Officer in Charge). ................................................. 43

iv

3. Minimum Staff for Trades Employees...................................................................... 43 I. Restrictions on Internet Use/Electronic Communications. ......................................... 45 J. Changing Health Benefits Carriers............................................................................... 45 K. Promotions................................................................................................................... 46

1. Politically-Motivated Decision. .................................................................................. 46 2. Changing Attendance Requirements. ....................................................................... 46 3. Advancement to Higher-Paying Position with Similar Duties................................ 46

L. Medical Exam to Substantiate Sick Leave Use. ........................................................... 47 M. Discontinuing Dues Deductions After Contract Expiration. .................................. 47 N. Layoffs.............................................................................................................................. 47 O. Tape Recording. .......................................................................................................... 49

1. Consensual Tape Recording of Investigatory Interviews........................................ 49 2. Surreptitious Recording by Employees. ................................................................... 49

P. Unredacted Copies of Complaints. ................................................................................ 49 Q. Retiree Health Benefits............................................................................................... 50 R. Scheduling........................................................................................................................ 50

1. Training Time.............................................................................................................. 50 S. Waiver of Bargaining Rights. ........................................................................................ 50 T. Disciplinary Transfers. ................................................................................................... 51 U. Police Uniform Anti-Adornment Policy........................................................................ 51 V. Evaluations vs. Discipline. .............................................................................................. 51

1. Performance Improvement Plan. .............................................................................. 51 2. Counseling Sessions and Notices................................................................................ 52

W. Restrictions on Employee Parking. ........................................................................... 52 X. Closing Fire Stations....................................................................................................... 53 Y. Bargaining Unit Composition. ....................................................................................... 53

1. Amending Contract Language is a Mandatory Bargaining Subject. .................... 54 2. Contract’s Expiration Broadened the Scope of Bargaining. .................................. 54 3. Still Negotiating in Good Faith. ................................................................................. 54 4. Bargaining Unit Cannot Exist in Perpetuity. ........................................................... 55 5. Frustrating Voter-Approved Charter Amendment................................................. 55

1

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

I. REMOVING WORK FROM THE BARGAINING UNIT

A. Subcontracting.

1. Park Police Work. The employer unlawfully subcontracted and/or otherwise transferred work formerly performed by the Park Police force to the City Police force and then laid off the entire Park Police force in response to a fiscal crisis (i.e., a $20-Million deficit, for which it needed $4.5-Million in concessions from the unions). The work in question was bargaining unit work, in that “the type of work being performed by the City Police in the parks is exactly the kind of work performed previously by the Park Police.” Although there was a large overlap of job duties between Park Police and City Police, “[o]verlap . . . does not mean indistinguishable. . . . [W]e find it significant that an entire bargaining unit function has been replaced by non-bargaining unit individuals when formerly these two job titles coexisted and often worked together.” Thus, “this wholesale transfer of Park Police work varies both in kind and degree from what has been customary between the Park Police and City Police.” The employer unsuccessfully argued that it had the legal right and authority to lay off the Park Police because of its fiscal crisis. “[W]e do not consider cost savings per se to constitute an adequate defense to a charge of unilateral subcontracting or transfer of bargaining unit work. In this regard, we are not telling the City it cannot eliminate positions or lay off employees, nor are we forbidding the City from subcontracting or transferring work. Moreover, the Union has not made that claim. We are simply telling the City to fulfill its bargaining obligation.” City of Bridgeport, Dec. No. 4386 (Conn. SBLR 5/7/09).

2. Waste Disposal. The employer unlawfully subcontracted the operation of a transfer station for the separation, recovery, collection, removal, storage, and disposition of garbage, rubbish and other refuse, including recylables. The employer had operated the transfer station for several years with its own employees, but without a proper permit from the State’s Department of Environmental Protection (DEP). After receiving violation notices from the DEP (which could have led to civil penalties of up to $25,000/day), the employer subcontracted the work, resulting in the transfer of two bargaining unit employees and the loss of a guaranteed 4.5 hours of overtime on a rotational basis for other bargaining unit employees. The Union filed an unfair labor practice charge, and the employer settled the charge by agreeing to cancel the subcontract after 90 days unless the Union approved an extension. The employer, however, continued to use subcontracted labor following the 90-day period. The employer unsuccessfully defended its actions on public policy grounds, arguing that “it had an obligation to comply with environmental laws and that it had to act immediately to resolve the emergency situation affecting the health and welfare of its employees and City residents created by numerous violations at the transfer station.” The employer’s DEP obligations under the State’s Solid Waste Management Act did not preclude the employer from fulfilling its bargaining obligations. The employer also was unsuccessful in arguing an emergency. “[T]he City had been operating a transfer station without the proper permit since shortly after its October 16,

2

1996 inception and that numerous other violations occurred in the intervening years. There is no evidence that the City took steps to remedy the violations or to bring the transfer station into compliance until nearly three months after it receive its first Notice of Violation from the DEP, when it hired [the subcontractor]. Further, at the time the City decided to extend [the subcontract] in October 2008, it was acting only on a report from [the subcontractor]; the second Notice of Violation from DEP did not arrive until almost six weeks after its decision.” City of Derby, Dec. No. 4407 (Conn. SBLR 9/2/09).

3. Temporary Contracting Out During Reorganization. The employer unlawfully laid off an employee as part of a reorganization and then contracted with an employment agency for a one-year period to perform that employee’s telephone answering duties. Indeed, through stipulated facts, it was established that: (a) answering the telephone was exclusive bargaining unit work; (b) both the laid off employee and the Union suffered an adverse impact from the contracting-out decision; and (c) the employer never notified the Union that it intended to contract-out the work. The employer unsuccessfully raised two defenses. First, the employer’s contention that the layoff of the employee was a managerial prerogative “misapprehends the nature of the allegation before us. The sole issue in this case is whether the Commonwealth unlawfully transferred bargaining unit work to non-unit personnel.” Second, the employer’s contention that there is no evidence of a calculated displacement of bargaining unit work is irrelevant because the parties already had stipulated that answering the telephone was exclusive bargaining unit work. Commonwealth of Massachusetts, Case No. SUP-04-5054 (Mass. CERB 12/10/08).

4. Work Performed by Volunteers. The employer lawfully implemented an “Adopt-A-Park” program, under which volunteers performed maintenance work at public recreational facilities, in order to alleviate severe budget shortfalls. The employer had reduced its parks and recreation budget by a total of $1-million in 2002-03 and 2003-04, another $1-million in 2004-05, and had closed facilities and announced layoffs for 2005-06. The employer than was approached by private individuals and organizations that offered assistance in restoring services and programs, leading to the establishment of the Adopt-A-Park Partnership and Sponsorship program. The employer entered into various agreements with a number of outside entities that agreed to maintain and operate parks, softball fields, and other public recreational facilities. “The record does not establish that the City's reassignment had a significant adverse impact on the bargaining unit members in that the termination of certain positions was the direct result of the 2005-2006 budget, not the implementation of the Adopt-A-Park program. Furthermore, each of the employees whose positions were eliminated were transferred to positions in other City departments, and they all retained their benefits and overtime. . . . [T]he dispute . . . was not amenable to resolution through the collective bargaining process. . . . because the . . . transfer decision was not based on either labor costs or general enterprise costs, but instead was based on restoring public services that had been eliminated due to the 2005-2006 budget cuts. Furthermore, because the work being performed as part of the Adopt-A-Park program is being done free of charge, . . . any bargaining between the parties over this work would have been futile since the Union could not have proposed that its members perform the labor at no cost. City of Grand Rapids, 22 MPER ¶70 (Mich. ERC 7/23/09).

B. Transferring Bargaining Unit Work.

1. Calculated Displacement of Clerical Work. The employer transferred work out of the non-civilian police bargaining unit to the civilian police employees bargaining unit when it transferred a clerical employee from the Community Services Bureau to the Traffic Bureau

3

and assigned clerical work that formerly had been performed by a police officer. The police officer, in turn, was assigned to perform exclusively outside duties; consequently, he lost opportunities to work and receive overtime compensation. Clerical work had been performed by employees in both bargaining units. “Where job duties have traditionally been shared by bargaining unit members and non-unit employees, the Board has held that the work in question will not be recognized as bargaining unit work. In shared-work situations, bargaining must occur where there is a ‘calculated displacement’ of bargaining unit work, or where the employer unilaterally changed a previously existing pattern of shared work. The Board may also examine whether non-unit employees subsequently constitute a greater percentage of the work force performing the disputed duties than they had previously. In determining whether there has been a calculated displacement of unit work, the Board ‘considers whether unit members have traditionally performed an ascertainable percentage of the work and whether the employer has taken action that results in a significant reduction in that percentage, with a corresponding increase in the percentage of the work performed by non-unit personnel.’ . . . Although some tasks were more often performed by [the officer] and some tasks were more often performed by non-unit clerical staff inside the Traffic Bureau, the clerical nature of the majority of the work [the officer] performed when he worked ‘inside’ was shared with non-unit clerical staff. When [the officer] was transferred to the ‘outside,’ a greater percentage of the clerical duties were then performed by non-unit civilian personnel inside the Traffic Bureau. Accordingly, there was a calculated displacement of bargaining unit work to non-unit civilian personnel following [the] decision to transfer [the officer] ‘outside.’” However, the contractual management rights provision gave the employer “the exclusive right to determine the number and types of employees required to perform the City’s operations in an economical and expeditious manner without first having to bargain to resolution or impasse.” Although the decision was not bargainable, the employer still had to negotiate the impact of its decision, including the loss of “inside” work in the Traffic Department, possible loss of overtime opportunities and an increase in the workload of police officers in the Community Services Bureau (who had to assume the clerical responsibilities of the transferred clerical employee). City of Newton, Case No. MUP-02-3634 (Mass. CERB 12/31/08).

2. Returning “Temporary” Transferred Work. The employer did not commit an unfair labor practice when it unilaterally transferred the Class B building inspection work out of the firefighters bargaining unit after it had transferred that work into that bargaining unit more than three years before from the building inspectors bargaining unit. The earlier transfer into the firefighters bargaining unit occurred because of an insufficient number of building inspectors to meet a significant growth in construction, and that situation remained until the employer hired additional building inspectors. The Commission first held that the first transfer was not temporary in nature. “Although the evidence and testimony demonstrate that the employer intended the IAFF bargaining unit to perform the Class B work on a temporary basis, the fact that the IAFF bargaining unit employees continued to perform the work for three and one-half years defeats the argument that the transfer of work was temporary. Additionally, because the IAFF bargaining unit was performing Class B inspection work except for government buildings, which the Teamsters bargaining unit continued to perform, . . . the work was [not] similar to the building inspection work being performed by the Teamsters’ bargaining unit.” However, the employer acted lawfully because the IAFF bargaining unit suffered no significant detriment when the employer transferred the Class B building inspection to the Teamsters bargaining unit. “The transfer of the Class B inspection work from the IAFF bargaining unit did not result in any loss of pay, hours of work, or impact the terms and conditions of employment in any significant manner. In fact, the only loss that the union could

4

identify was a ‘loss of morale’ on the part of IAFF bargaining unit members.” City of Snoqualmie, Dec. No. 9892-A-PECB (Wash. PERC 9/15/09).

3. Recipient of Transferred Work. The employer’s alleged transfer to Bus Terminal Agents to direct and control traffic – specifically, directing bus traffic on the platforms, ramps and in the roadways of the Port Authority Bus Terminal – which traditionally and normally had performed by police officers in another bargaining unit could not be challenged by the bargaining unit that received the work. “TWU has not satisfied the threshold inquiries in the Panel’s transfer of unit work analysis because it has not established that the work in dispute is its unit work, and that it was transferred to non-unit employees. Rather, the TWU argues here not that its unit work was transferred, but rather that it was the unlawful recipient of the transfer of another unit's work. . . . Only where there has been a showing that the work at issue constitutes the unit work of the Charging Party, and that this work has been transferred to non-unit employees, does the Panel decide whether there is an obligation to negotiate that transfer. The TWU lacks standing to enforce the rights of another unit to preserve its unit work.” Port Authority of New York and New Jersey, 2009 NYPER (LRP) LEXIS 87 (Pt. Auth. ERP 7/15/09).

4. Merger of Police and Fire Departments. The employer’s efforts to merge its police and fire departments into a public safety department with public safety officers trained in both police work and fire fighting, and its offer of voluntary cross-training as police officer to firefighters was not mandatorily negotiable. The labor contract granted the employer “broad authority” to use non-bargaining unit part-time firefighters to fill in for full-time firefighters. In fact, during the relevant time period part-time fire fighters responded to between 20-25 percent of the emergency runs handled by the fire department. To facilitate the consolidation, the employer hired six new full-time police/public safety officers and announced that four of the new public safety officers, who were already certified police officers, would be sent to fire training so that they would be able to do fire fighter work. The employer indicated that it did not plan to force the existing fire fighters to become certified police officers, and that they could remain fire fighters for the rest of their career. They also indicated that it planned to replace the fire fighters with cross-trained public safety officers by attrition. The employer acted lawfully because “the record does not establish that any of the duties Respondent proposed to transfer to its police/public safety officers had been exclusively performed by Charging Party's unit members.” Township of Leoni, 22 MPER ¶45 (Mich. ERC 5/20/09)(aff’d w/o exceptions).

II. LEGAL IMPEDIMENTS TO ESTABLISHING MANDATORY SUBJECTS OF BARGAINING

A. Educational Issues.

1. Performance-Based Withholding of Salary Increment.

The withholding of a teacher’s salary increment because of the teacher’s allegedly harsh and negative interactions with students is based predominantly on the evaluation of teaching performance, and therefore, is beyond the scope of bargaining and arbitration. The reasons for the withholding were detailed in the teacher’s annual evaluation, which directed the teacher to show improvement in several job-related areas. Although the teacher’s performance allegedly improved, the administration believed that there were still issues regarding her interactions with several students. “The reasons for this withholding are set forth in the Interim Superintendent’s letter to the teacher notifying her of the withholding. The specified reasons

5

involve the teacher’s allegedly harsh and negative interactions with her students in her classroom. . . . [T]hese concerns as well as the allegedly inappropriate interactions with three students and one student’s parents that underlie the withholding are teaching performance reasons that must be reviewed by the Commissioner of Education rather than an arbitrator.” Bethlehem Township Board of Education, 35 NJPER ¶31 (NJ PERC 10/29/09).

Similarly, the withholding of a teacher’s employment and adjustment increments because of the way a teacher interacted with a disruptive student and the student’s parent in the hallway was based predominantly upon evaluation of teaching performance. Before the incident, the teacher had received excellent evaluations and never had received any complaints about teaching or classroom management. The incident in question involved a disruptive 13-year-old student (who refused to pull up his pants), whom the teacher removed from the classroom and into the hallway. When the student visibly ignored the teacher’s counseling, the teacher allegedly told the student that “he had plenty of money and could quit this job and we can take this outside,” causing the student to cry and ask for his father. When confronted by his superiors and the student’s father, the teacher denied making the statement and responded “I don’t need to be disrespected here or in the street.” Both the teacher and the father became agitated, prompting the teacher’s union representative to ask him to leave. The teacher’s performance evaluation for that school year contained “Unsatisfactory” ratings in four areas, all related to the incident, and a comment was made in the “Comments” section about the incident. “[T]he allegations concerning the teacher’s treatment of [the student] in the hallway involve his techniques and style for disciplining a student who was unruly in his classroom. Such student discipline issues involve a subjective assessment of teaching performance. Whether this incident of alleged misconduct stands alone is immaterial for our purposes; all that matters is that it involves an educational judgment about a teaching performance issue.” Linden Board of Education, 35 NJPER ¶129 (NJ PERC 10/29/09).

2. Non-Teaching Duties. A Union proposal allowing teaching to accept non-teaching duty assignments to make base workload for overload compensation, and provided a non-exhaustive list of non-teaching duties, was not preempted by a statute that allows an employer to involuntarily assign a faculty member if no qualified outside individual seeks a non-teaching position. The statute recently had been amended to make many aspects of extracurricular assignments mandatorily negotiable. The Union successfully argued that “the language related to compensation by providing that extracurricular assignments could be counted as part of the base load that must be worked before a unit member is eligible for overload assignments.” Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

3. Mileage Reimbursement Rate.

The employer’s reduction of the mileage reimbursement rate for employees who use their personal vehicles, in response to a statutorily-mandated establishment of that rate by a State agency was not bargainable. Responding to a circular issued by the State’s Department of Treasury, Office of Management and Budget, the employer lowered the mileage rate from the IRS-approved $0.585/mile to $0.31/mile. A State statute required school boards to comply with the OMB mileage reimbursement rate, and the statute provided further that, “If any condition in a negotiated contract, in any administrative regulation or in any statute is in conflict with these regulations, the provision of the contract, regulation or statute would prevail.” A State Department of Education regulation reiterated this requirement. An exception was made for labor contracts that pre-existed the statute. Both the State statute and

6

the OMB circular were adopted before the labor contract had been ratified. The statute, regulation and OMB circular all pre-empted the mileage reimbursement rate contained in the subsequently-ratified labor contract. Hardyston Township Board of Education, 35 NJPER ¶101 (NJ PERC 8/13/09).

A union proposal mandating that “All members of the CST who are required to travel and who are not assigned more than one school per day, shall be reimbursed, based upon the submission of a form to be developed, at the prevailing IRS rate per mile and for all other reasonable expenses such as parking fees, tolls, etc.,” was preempted by the same State administrative regulation issued by the Department of Education. “Thus, negotiations over a mileage reimbursement rate greater than that provided in the State Appropriations Act ("SAA"), currently 31 cents, is preempted by the express terms of” that regulation. Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

4. Teacher Lead Program Funds. The employer’s decision to change the method of distributing the State’s Teacher Lead Program Funds (TLPF) from a check to a debit card was removed statutorily from collective bargaining during the pendency of an unfair labor practice proceeding. The State legislature annual appropriates funds for classroom teachers to purchase, on behalf of the school district or charter school, classroom materials and supplies for the public students assigned to them and may not be used to purchase equipment. In the past, the employer distributed the funds to teachers by a check at the beginning of the school year, which teachers then were free to deposit or cash. Many teachers preferred this method because it enabled them to make purchases during back-to-school sales before the start of the school year and then use the check as reimbursement for prior purchase. The employer changed the payment method to a debit card. This change had two disadvantages to the teachers. First, the debit card could not be converted to cash, thus preventing the teachers from using the distribution as a reimbursement mechanism. Second, to make online purchases, an employee must register with Bank of America, providing their name, address, telephone number, driver's license number, and social security number. The PERC held that the employer unlawfully changed the funds distribution method. While the case was pending on appeal to court, the State legislature amended the statute, retroactive to before the unfair labor practice charge was filed, to provide that TLPF “received by a classroom teacher do not affect wages, hours, or terms and conditions of employment and, therefore, are not subject to collective bargaining.” Consequently, the appellate court reversed the PERC’s decision as being clearly erroneous. School District of Martin Counyt, Fla. v. PERC, 15 So. 2d 42, 35 FPER (LRP) ¶123 (Fla. App. 5/20/09).

5. Salary Guide Placement. A dispute regarding the salary guide placement of a teacher who returned to work following a disability leave was mandatorily negotiable and not within the jurisdiction of the Commissioner of Education. The teacher took disability retirement in response to the school board’s initiation of termination proceedings. When the teacher’s request for reinstatement from disability retirement was granted, the school board was ordered to reinstate her to her teaching position. The school board opposed the reinstatement, resulting in litigation before the Commissioner of Education. While that proceeding was pending, the school re-employed the teacher, but declined to give her any prior service credit when they placed her on the salary schedule. The union responded by filing a grievance and demanding arbitration. While the arbitration proceeding was pending, the Commissioner of Education ordered that the teacher be reinstated with back pay. An arbitrator then sustained the grievance regarding the salary grade placement. The employer unsuccessfully argued that the salary grade placement issue required an interpretation of the Commissioner of Education’s

7

reinstatement decision, which was within the Commissioner’s exclusive jurisdiction. “The Commissioner has no jurisdiction to set salary levels or to determine salary guide placement pursuant to a collective negotiations agreement. Rather, salary and salary guide placement are governed by the collective negotiations agreement.” Manalapan-Englishtown Regional Board of Education v. Manalapan-Englishtown Education Ass’n, 35 NJPER ¶82, 2009 N.J. Super. Unpub. LEXIS 1980 (NJ App. 7/28/09).

6. Qualifications of Mentor Teachers. A union proposal delineating four requirements for mentor teachers was preempted by a State administrative regulation that established nine requirements for becoming a mentor teacher. “Moreover, absent the regulation, it would be a managerial prerogative to determine the criteria to become a mentor teacher.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

7. Non-Reappointment of Non-Tenured Teacher. An arbitration decision ordering the reinstatement of a non-tenured teacher who allegedly had been non-reappointed in retaliation for exercise his collective bargaining rights was vacated because the subject of non-reappointment was not an appropriate subject for collective bargaining. Under the State’s Education Code, non-tenured teachers could be non-reappointed without cause, without any statement of reasons, and without any right of appeal or administrative redress. In addition, the State’s collective bargaining law did not list non-reappointment decisions among the matters subject to collective bargaining. Courts previously had held that this omission “did not allow the parties to negotiate greater protections for probationary teachers than that afforded by the statutes. The Legislature had made it clear that collective bargaining rights granted by the [collective bargaining statute] may not supersede the provisions of the Education Code.” If the union believed that the employer retaliated against the employee, then it should have filed an unfair labor practice charge. Sunnyvale Unified School District v. Jacobs, 171 Cal. App. 4th 168, 89 Cal. Rptr. 3d 546 (Cal. App. 2/18/09).

B. Benefits

1. Changing Health Benefits Plans. A dispute over whether the employer, a longtime participant in the State Health Benefits Program (SHBP) violated the contractual the “health and welfare benefits article” by offering two new health care plans provided by the SHBP to replace two existing plans was mandatorily negotiable. The union contended that the new plans increased out-of-pocket expenses; most of the doctors were not in the new plan; there was a longer wait to see a specialist; and there was now limited assistance from the employer. The employer unsuccessfully argued that the State statute establishing the SHBP preempted negotiations over changes to the SHBP. “[T]he Legislature and the State Health Benefits Commission set the level of benefits for the SHBP. However, an arbitrator may determine whether the parties made an agreement over benefit levels and whether the employer violated such an agreement. An arbitrator’s authority is limited in certain respects. An arbitrator cannot order an employer to continue benefits no longer provided by the SHBP after the SHBC has exercised its authority to set different levels. Nor can an arbitrator order that the SHBP reinstate a traditional plan or order the SHBP to lower co-pays. However, local employers are not required to participate in the SHBP and can withdraw from the SHBP at any time consistent with their obligations under existing collective negotiations agreements. Borough of River Edge, 35 NJPER ¶27 (NJ PERC 3/26/09).

A dispute regarding whether the employer was required to bear the cost of increased maximum out-of-pocket expenses for employees moved from the “traditional” health plan to the “direct

8

plan” of the state health benefits program after the State program had eliminated the “traditional” plan was mandatorily negotiable. The labor contract required that “The City shall assume the full cost for maintaining the present State Health Benefits for each employee and eligible dependents of that employee. The City may change carriers so long as the benefit levels are equal to or better than the current coverage.” “The union seeks to arbitrate claims that come within the framework of permissible claims . . . . The union may argue that the City has a contractual obligation to maintain a certain level of benefits, in this instance, out-of-pocket maximums. . . . [However,] if the arbitrator finds a contractual violation and orders the employer to make employees whole through reimbursement, that action may be inconsistent with the employer’s obligations as a participant in the SHBP. Perhaps the SHBC will not permit the City to remain a participant and reimburse. Perhaps it will permit the City to reimburse and remain a participant pending the next round of negotiations when the contract can be conformed to the higher out-of-pocket maximums. Perhaps the City would rather change providers than incur a reimbursement obligation.” Consequently, the employer was permitted to refile its opposition should the arbitrator issue a remedy that is not mandatorily negotiable. City of Bayonne, 35 NJPER 7 (NJ PERC 1/29/09).

2. Concurrent FMLA Leave/Paid Sick Leave. The employer unsuccessfully argued that a dispute over whether it properly denied an employee’s request to take paid sick leave concurrently with FMLA leave was preempted by the FMLA. “[T]he FMLA does not prohibit [the employee’s] ability to substitute the use of paid sick time for unpaid leave. [The FMLA] expressly contemplates the use of sick leave where an employee uses FMLA leave in order to care for a spouse suffering a serious health condition . . . . The statute goes on to indicate that the employer is not required to provide paid sick leave where the employer would not normally provide such paid leave. However, here the employer’s normal practice appears to allow employees to substitute paid sick leave when granted leave under the FMLA.” The Commission’s Designee rejected the employer’s argument that the employee was “not entitled to paid sick time because the FMLA refers to “accrued” paid leave and that since police officers are granted a one year period of unlimited sick leave, officers do not “accrue” sick time.” Relying upon the dictionary definition of “accrue” (“to come into existence as a legally enforceable claim”), the Designee held that “the sick leave granted pursuant to the terms of the collective agreement comes into existence as a legally enforceable claim and thus is ‘accrued.’” Borough of Roselle, 34 NJPER ¶115 (NJ PERC Designee 10/22/08).

3. Repealing Unlawful Pension Benefits. The employer lawfully repealed an ordinance that provided firefighters a Partial Lump Sum Distribution Option (PLSDO) pension benefit, after a state audit indicated that certain aspects of the PLSDO were illegal. The PLSDO benefit allowed firefighters to choose a retirement date for purposes of establishing their monthly pension benefit, while continuing to work after that date at full salary and having their monthly pension amount paid into an account. The State’s Auditor General audited the City’s pension funds and issued a report, which described certain aspects of the PLSDO as illegal. The Auditor General then initiated litigation to obtain a return of state subsidy funds that had been calculated by including employees who had elected to participate in the PLSDO. The employer responded by repealing the ordinance that had established the PLSDO benefit. The only reference in the labor contract to pensions benefits was a statement that, “The Firemen's Pension Fund shall be governed in accordance with the provisions of statutes of the Commonwealth of Pennsylvania and City of Erie ordinances or regulations now presently in effect and promulgated.” This provision predated the ordinance that established the PLSDO benefit. “As a general rule, an employer may not eliminate a bargained-for benefit by asserting the benefit is illegal. . . . Good faith bargaining would require that questions as to the legality

9

of the proposed terms of a collective bargaining agreement should be resolved by the parties to the agreement at the bargaining stage. Obviously the statutorily mandated obligation to bargain in good faith is not met by permitting the governmental employer to avoid the performance of a term by questioning its legality after having received the advantages that flowed from the term’s acceptance. Accordingly, the employer must negotiate with the union when a contract term is determined to be illegal and unenforceable. . . . However, “the union must present evidence that it exercised its right to bargain pension terms for its members. Absent evidence that the illegal pension benefit in the ordinance was actually negotiated and then specifically incorporated into the CBA, the municipality may rescind the ordinance without negotiating with the Union. Without evidence that the terms of the illegal benefit in the ordinance was negotiated, the municipality cannot be said to have gained a benefit from the inclusion of an illegal provision into a CBA.” City of Erie v. PLRB, 40 PPER ¶23 (Pa. Cmmwlth Ct. 3/5/09).

4. Disability Benefits Eligibility Review Procedures. A police union proposal to establish a comprehensive procedure for the application and award of benefits when a bargaining unit employee was injured in the performance of duties that included: (1) a proposed 15-day timeline for initial eligibility determinations; (2) a proposed reconsideration procedure and proposed seven-day period for the claims manager to review the documentation; and (3) a hearing procedure before an arbitrator to determine with the employer’s claims manager had a reasonable basis for denying or terminating benefits did not infringe on any rights reserved by statute to the city did not infringe upon the employer’s exclusive authority to make the initial eligibility determination for disability benefits. “[T]he proposed 15-day time limitation for determining an application for [benefits] procedures is mandatorily negotiable. While it is well-settled that [State law] grants a municipality the authority to make an initial eligibility determination, the proposed time limitation for a determination does not usurp that statutory right. . . . We reach a similar conclusion with respect to the proposed reconsideration procedure. The proposed procedure is fully consistent with the maintenance of the City’s statutory right to make eligibility determinations. There is nothing in [State law] that precludes a municipality from reconsidering its determination after receiving and evaluating additional information submitted by a claimant. The City also asserts that the proposed seven-day period for the claims manager to review the new documentation is too short to conduct an adequate review and investigation of the request for reconsideration. This concern, along with the City’s expressed fear of potential future manipulation of the proposed procedure by claimants, is relevant to the merits of the proposal, but not to its negotiability.” Finally, the proposal “seeks an arbitral process to resolve disputes over . . . benefits while at the same time recognizing the City’s statutory right to determine initial eligibility. . . . It expressly proposes that the arbitrator’s scope of review will be limited to determining whether the claims manager had a reasonable basis for the eligibility determination based upon the record before him or her. The mandatory nature of the proposal . . . is further bolstered by the proposed prohibition against either party presenting any new documentary evidence at arbitration. City of Middletown, 42 NYPER (LRP) ¶3022 (NY PERB 9/17/09).

5. Retroactive Docking of Extended Sick Leave Pay. A school board’s decision to retroactively dock extended sick leave pay for employees who had exhausted their sick leave benefits was preempted by a State statute, and not subject to arbitration, that gave the school board complete discretion in determining whether to award such benefits. Prior to the change, an employee who had used up earned sick leave could receive extended paid sick leave, less the cost of a substitute, until the next Board meeting when an end date for receiving such benefits would be established. This was consistent with the labor contract, which required that “A member who has used his total cumulative days shall have the rate of a substitute deducted

10

from his salary, up to and including a terminal date established by the Board of Education.” Because of the change, any employees who had exhausted their sick leave were not to be paid for any subsequent days that they did not report to work because of illness. The employer claimed that a State statute – which authorized the school board to award such extended sick leave, but left the decision within the school board’s discretion – mandated this change. The Commission held that the State statute “preempts arbitration over the denial of extended sick leave for school employees, whether that denial is prospective or retroactive. . . . [B]ecause the grant of extra sick leave days . . . is discretionary on a case-by-case basis, a board of education cannot negotiate away that discretion in its collective agreement with an employee association. Because the parties contract could not place any limits on the Board’s discretion, any challenge to the exercise of that discretion must be made in another forum. Neptune Township Board of Education, 35 NJPER ¶50 (NJ PERC 4/30/09).

C. Impact of Treating Excess Value of Free Parking as Taxable Noncash Benefit. The employer was required to negotiate the effects of its decision to implement mandatory reporting and withholding requirements on the taxable portion of the value of free employee parking. The employer took that action after completing a survey of local area parking rates and concluding that the fair market value of its employer-provided parking, as defined in the IRS regulations, exceeded the amount of the exclusions, triggering tax reporting and withholding requirements. The employer then began treating the excess value as a noncash benefit and adding it to the employees’ gross income for tax reporting and withholding purposes. The employer determined that the fair market value of the parking passes provided to the union members was $260 per month. After the relevant exclusions were applied, $85 per month would be added to employees’ taxable Federal gross income, and $75 per month would be added to their taxable State gross income. Employees received three withholding choices with respect to the taxable portions owed retroactively for the first six months of the change: (1) taxes withheld one time on the entire lump sum amount; (2) taxes not withheld; and (3) taxes withheld in an amount selected by the employee every biweekly pay period. Eventually, employees added the excess value to their taxable gross income in the first or second pay period of each month, or to split the amount between the two. “While we agree that the Commonwealth as employer had no discretion regarding its obligation to follow the tax laws, it did possess a fair amount of discretion and control regarding the precise tax treatment of the excess value of the fringe benefits. . . . For example, for tax and withholding purposes, the IRS rules permitted employers to treat the fringe benefits as paid on a pay period, quarterly, semiannual, annual, or other basis. . . . [T]he Commonwealth could have charged the union members directly for the excess value per month, thereby avoiding the tax and withholding requirements altogether. The IRS also permitted employers to either add the value of the fringe benefits to regular wages for a payroll period and to calculate income tax withholding on that total, or to withhold income tax on the value of the fringe benefit at the flat twenty-eight percent rate applicable to supplemental wages. In light of all these choices, we reject the Commonwealth’s assertion that there was nothing to discuss during any bargaining session. . . . The tax statutes did not prohibit employers from bargaining about this issue. Absent such a conflict, or an undermining of the purpose of the tax laws by collective bargaining, the Commonwealth was not excused from the general rule requiring bargaining with respect to the terms and conditions of employment. . . . [T]he application of the tax laws directly increased the union members’ gross taxable wages and caused a loss of approximately $300 in regular annual take home pay. While the employer might think differently, from the employees’ perspective, the loss of $300 cannot be described as immaterial. There is no more fundamental term or condition of employment than pay. The Commonwealth has provided no authority for its assertion that this amount was ‘negligible.’”

11

Secretary of Administration & Finance v. CERB, 74 Mass. App. Ct. 91; 904 N.E.2d 468 (Mass. App. 4/16/09).

D. Return-to-Work Program. The Board rejected the employer’s argument that its return-to-work program was not bargainable because it was precluded by the City’s Charter. The Board first held that “a city charter does not take precedence over the PECBA.” Nor was bargaining precluded by the State’s Disability Fund. The employer unsuccessfully argued that the Disability Fund that provided benefits for disabled bargaining unit employees was an entity entirely separate from the employer and had exclusive control over the benefits. To start, the Disability Fund was created by the City Charter. The Disability Fund, the Fire Bureau, the Police Bureau, and the Bureau of Human Resources are all departments within the City, created by the City, funded by the City, staffed in accordance with City policies, and advised by the City Attorney’s Office. The City Fire Bureau, Disability Fund, and Human Resources department worked together to implement the return-to-work program. In effect, the Fire Bureau and Disability Fund are two parts of the City’s governmental structure.” City of Portland, Case No. UP-14-07 (Ore. ERB 3/26/09).

E. No-Smoking. The State’s Clean Air Act did not require the employer to ban smoking on all campus locations, both indoors and outdoors. The Board interpreted the Act as prohibiting smoking only in “enclosed areas.” Thus, the employer was not precluded from negotiating with the union to smoke outside while on campus, and its unilaterally implemented policy banning smoking on all campus locations was unlawful. Pennsylvania State System of Higher Education, 40 PPER ¶43 (Pa. LRB 5/19/09).

F. Overtime Calculations. The employer’s unilateral decision to adopt the partial public safety exemption under the Federal Fair Labor Standards Act for the purpose of computing future overtime compensation owed to city police officers was unlawful. The employer unsuccessfully argued that the partial public safety exemption constitutes a federally protected right which preempts what would otherwise be the employer’s bargaining obligation. “We are not persuaded that Congress intended § 207(k) to abrogate a municipality’s obligation under State law to bargain collectively with its employees regarding the calculation of employee overtime compensation. Unlike other Federal statutes, the Act does not contain an express preemption provision. Nor has Congress shown an intent that the Act occupy completely the field of labor standards, displacing all State law on the subject. . . . Contrary to the city’s contentions, we are unable to identify any “conflict” between Federal law and State law in the present case, given that the city may make an election under § 207(k) while still complying with its State law collective bargaining obligations . . . . By its terms, § 207(k)’s language is permissive, not mandatory. The provision does not require the city to do anything. Rather, the statute merely gives the city an opportunity to select a work period for its law enforcement employees different from the typical seven-day, forty-hour period prescribed in § 207(a). At most, § 207(k) allows the city to choose from a greater range of permissible overtime calculation formulas than would otherwise be available under the Act. However, Congress has demonstrated no preference regarding a municipality's choice to avail itself of this greater flexibility. Indeed, a municipality may choose not to avail itself of the partial exemption at all.” City of Boston v. CERB, 453 Mass. 389, 902 N.E.2d 410 (2009).

G. Changing Compensation and Shift Swapping Practices to Comply with Wage/Hour Requirements. The employer’s actions in response to a finding that its prior compensation and scheduling practices violated wage and hour laws were, for the most part, lawful and justified. Two practices caused the problem. The first involved how employees were compensated under its “4-2” schedule. Even though employees worked only 32 hours in one of six workweeks, the employee received 40 hours’ pay during the short workweek. To compensate partially for this

12

overpayment, employees were not compensated for arriving to work for roll call 15 minutes early before clocking in and for attending in-service training. The second involved allowing a gap of up to six months for employees to swap shifts. The employer was cited by the State’s Department of Labor for not compensating employees for roll call and for not accurately reflecting employee work time. The employer responded by paying employees for 32 hours’ work during the short workweek and requiring shift swaps to occur within the same work week. The decision to shorten the duration for shift swaps was not entirely required to comply with the wage and hour laws. “Based upon the testimony of NHDOL representatives, it is evident that shift swaps can be accomplished within at least a one month period without violating any applicable wage and hour law. The Town is obligated to adhere to the parties’ previously accepted and established practice as to shift swaps as closely as possible by providing as long a time as possible to complete the swap while remaining in compliance with applicable wage and hour laws. The Town is not, however, obligated to continue the established past practice of allowing shift swaps to occur beyond a one month period when to do so will result in costs the Town did not incur under the established past practice.” The remainder of the employer’s actions was legally required. “[T]the NHDOL inspection is an intervening event which has caused a change in circumstances which directly impacts the parties’ established past practice. In accordance with the results of the NHDOL inspection the Town is now obligated to pay officers for attendance at pre-shift briefing and in service training. This represents an additional cost to the Town. There was insufficient evidence that the parties’ long standing established practice concerning the 4-2 schedule, the resulting 32 hour work weeks, and the related roll call and training arrangements would continue notwithstanding any relevant and material change in the benefit of that existing arrangement to the Town, such as the cost resulting from the discontinuation of officers’ attendance at pre-shift briefings and in service training without pay. Therefore, officers are no longer entitled to 40 hours of wages during the 32 hour short week as they can no longer attend pre-shift briefings and in service training without pay.” Town of Exeter, Dec. No. 2009-183 (NH PELRB 9/9/09).

H. Discipline.

1. Police Discipline Procedures.

A police union’s proposals for disciplinary procedures and a bill of rights were prohibited subjects of bargaining for all police officers, except for honorably discharged veterans and volunteer firefighters who were eligible as a matter of law for civil service procedural protections. The broad statutory language in the employer’s City Charter, which granted the police commissioner authority to govern and discipline the department, was sufficient under prior court case law to remove matters of disciplinary interrogations and investigations from collective bargaining as to those employees who were ineligible for civil service statutory protections. The disciplinary procedure proposal called for granting bargaining unit members a choice between civil service procedures and binding arbitration when a notice of discipline sought a suspension of more than 30 days, a demotion or a termination. The bill of rights proposal sought procedural rights for bargaining unit members being interrogated or interviewed during the course of an official City investigation which may lead to disciplinary charges. Prior case law had held that a City Charter and Administrative Code, and State police disciplinary laws pre-dating certain civil service laws delegating police disciplinary authority to City officials, “demonstrate a public policy that outweighs the strong and sweeping policy supporting collective negotiations under the Act.” However, based upon “judicial precedent and early 20th century legislation granting special disciplinary procedural protections for honorably discharged veterans and volunteer firefighters. . . . that a negotiated procedure to

13

replace the civil service laws for honorably discharged veterans and volunteer firefighters was not prohibited.” City of Middletown, 42 NYPER (LRP) ¶3022 (NY PERB 9/17/09).

By contrast, this exception does not apply to more general State laws that regulate towns, villages and other political subdivisions. Rather, the decision to preempt the statutory civil service procedural protections for police officers with an alternative procedure that includes binding arbitration is a mandatory bargaining subject. Thus, an employer unlawfully attempted to repudiate a contractual discipline procedure for police officers that culminated in binding arbitration, and to replace that procedure with one then culminated in a ruling by the Town Board. The employer argued unsuccessfully that the police discipline procedures were preempted by the general State laws. Town of Wallkill, 42 NYPER (LRP) ¶3017 (NY PERB 7/23/09).

2. Modifying Reason for Separation from Employment. A dispute regarding the employer’s refusal to issue a personnel order specifying that a former police lieutenant who had been discharged after a criminal conviction had retired on a disability pension was not mandatorily negotiable. One month after the lieutenant was suspended from duty without pay and charged with violation of department rules and regulations, he filed for an accidental disability retirement pension. The application was denied, and the lieutenant appealed. While the appeal was pending (and approximately 18 months after he had applied), the lieutenant pled guilty to a criminal offense, prompting the employer to discharge him. Seven years later, the benefits appeal was granted, and the lieutenant received disability retirement benefits retroactive to when he had applied. The lieutenant requested that the employer adjust his employment record to reflect his disability retirement, which the employer refused. “[T]he [union] cannot arbitrate an appeal of major discipline. . . . [A]ppeals of major discipline in local Civil Service jurisdictions must be made to the Civil Service Commission. The [union] may not seek to have the Final Notice of Disciplinary action rescinded except by appeal to the Civil Service Commission. Nor may the lieutenant have a court order of forfeiture rescinded without going to court. The [union] may seek to have some documentation in the personnel file reflecting the fact that the lieutenant is receiving a disability pension. But it may not arbitrate a claim that the lieutenant’s final employment status should be changed from “termination” to “disability pension” absent prior action by the Civil Service Commission or a court of competent jurisdiction. City of Newark, 35 NJPER ¶6 (NJ PERC 1/29/09).

3. Initiating Major Discipline. A union’s claim that the employer violated the labor contract because it gave a police officer a ten-day suspension for an infraction that warranted minor discipline and when it processed a disciplinary issue before the Trial Board (instead of before a Command Conference for minor discipline) was not mandatorily negotiable. “[A]ppeals of major discipline in local Civil Service jurisdictions must be made to the Civil Service Commission. Although the [union] asserts that it is not seeking to arbitrate the merits of the discipline, the [union] does seek to arbitrate the City’s decision to bring major versus minor disciplinary charges. The City has a prerogative to impose discipline in the first instance, subject to review either pursuant to the grievance procedure or before the Civil Service Commission, depending on whether the final discipline imposed is minor or major.” However, the following challenges by the union were mandatorily negotiable and legally arbitrable: the convening of the Trial Board (instead of a Command Conference), the composition of the Trial Board (which was not racially diverse), and the use of vacation time in lieu of a suspension. City of Newark, 35 NJPER ¶120 (NJ PERC 9/24/09).

14

4. Drug Testing Methods. The police chief’s decision to eliminate urine testing as one of two drug testing methods and to use only hair testing (the other established method) was beyond the scope of bargaining because drug testing of police officers was an integral part of the discipline process. The unions unsuccessfully argued that the decision was bargainable because drug testing procedures were not disciplinary procedures and did not form the basis for discipline. “The Police Commissioner’s disciplinary authority . . . is not limited to the formal disciplinary process; i.e., situations where allegations of misconduct have been made or are being adjudicated against identified officers. . . . [T]he detection and deterrence of wrongdoing within the NYPD -- particularly crimes, such as illegal drug use -- is a crucial component of the Police Commissioner’s responsibility to maintain discipline within the force. And both the Board and the unions concede that the Commissioner may unilaterally institute drug testing of uniformed officers. They would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In our view, however, these subjects are inextricably intertwined with the Commissioner’s authority to conduct drug testing in the first place; they are not ancillary or tangential to his disciplinary authority.” However, “[w]e are not saying that every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining.” City of New York v. Patrolmen’s Benevolent Association of the City of New York, Inc., 2009 NY Slip Op 9314; 2009 N.Y. LEXIS 4486 (N.Y. 12/17/09).

I. Out-of-Seniority Order of Layoffs. In two cases involving different bargaining units of the same employer, the Commission rejected the employer’s arguments that State statutes regulating the hiring and employment of these employees preempted any contractually-required seniority-based layoffs and permitted the employer to implement layoffs for reasons other than seniority.

In the first case, the employer laid off the most senior investigators in the Prosecutor’s Office. The employer relied upon a State statute that authorized the employment of such investigators and placed them in the unclassified civil service. The Commission responded that the statute “contains general authority about the appointment, salaries and duties of county investigators and does not address layoff procedures. It thus does not prohibit a prosecutor from negotiating over layoff procedures. We note that other employees in civil service jurisdictions without the protections of the classified service have been permitted to negotiate for protections not granted by civil service.” Passaic County Prosecutor’s Office, 34 NJPER ¶139 (NJ PERC 12/18/08).

In the second case, the employer laid off two assistant prosecutors out of seniority order. Although the labor contract did not contain a provision for the order of layoffs, the Prosecutor’s Employee Manual provided for seniority-based layoffs. The employer justified the layoff decision by relying upon the State statute authorizing the appointment of assistant prosecutors, which provides that such persons “hold their appointments at the pleasure of the . . . prosecutors.” The Commission rejected this argument, noting that, “[C]ases construing serve at the pleasure language outside the collective negotiations context, and cases in the collective negotiations context that have recognized an employer’s ability to negotiate limits on its statutory right to have employees serve at its pleasure.” The Commission added that, “the serve at the pleasure language . . . must be read in conjunction with our Act, which authorizes negotiations over layoff by seniority provisions.” Cases that have arisen in other contexts have found that an employer can exercise its statutory discretion through collective negotiations. . . . We thus conclude that [the statute] does not preempt the Prosecutor’s discretion to agree through collective negotiations to use seniority to decide the order of economic layoffs.” Passaic County Prosecutor’s Office, 34 NJPER ¶138 (NJ PERC 12/18/08).

15

J. Accident Form for Workers’ Compensation Claims. A dispute regarding the employer’s unilateral changes to the accident form to be completed for workers’ compensation claims is mandatorily negotiable. The union contended that some questions on the new form – specifically, those on participation in athletic, recreational or sporting activities and chiropractic care – are intrusive and irrelevant to a workers’ compensation determination. State law requires an employer to complete a “first notice of accident form” and file a report of the occurrence with the Division of Workers Compensation. “As the Worker’s Compensation statute does not require that these questions be asked, negotiations over the questions are not preempted. As for the application of the remaining negotiability tests, we conclude that the City has not shown how using the prior form would substantially limit its governmental policymaking powers. The disputed questions about an employee's recreational activities and chiropractic care implicate employee privacy concerns. The City asserts that the questions were added to meet best practices, but it does not define that term or explain what difficulties it had under the prior form that had been used for over 40 years. Mere assertions that the additional questions are needed are not sufficient to overcome the employees interest in negotiating about their privacy concerns.” City of Newark, 35 NJPER ¶17 (NJ PERC 2/26/09).

K. Civil Service Laws.

1. Reassignment Procedures. A dispute regarding whether an employer violated civil service procedures when it refused an employee’s transfer request after the employee had prevailed on a discipline grievance was mandatorily negotiable. The statute provided that, “Transfers, reassignment or lateral title changes shall not be used as part of a disciplinary action, except when disciplinary proceedings have been utilized.” The employer’s argument that the arbitrator was not authorized to interpret and enforce the civil service statute was rejected. “Statutes and regulations are effectively incorporated by reference into a collective negotiations agreement and may be enforced through negotiated grievance procedures. The County has not provided any authority for its assertion that the New Jersey Department of Personnel has exclusive jurisdiction to enforce [the statute]. Thus, it was within the arbitrator’s authority . . . to interpret and enforce the statute.” County of Hudson, 35 NJPER ¶78 (NJ PERC 6/25/09).

2. Layoff of Provisional Employee After Failing Exam. A dispute involving the employer’s decision to layoff a provisional civil service employee who had failed the examination, and the arbitrator’s reinstatement of the employee for the remainder of his 12-month provisional employment was mandatorily negotiable and legally arbitrable. The State civil service laws mandated that provisional appointments may be made only in the absence of a “complete certification” (i.e., the names of at least three interested persons) and not for longer than 12 months and provided further that, “any employee who is serving on a provisional basis and who fails to file for or take an examination which has been announced for his title shall be separated from the provisional title.” The appointment was not a “complete certification” because only two persons were certified. The labor contract stated that the employer “will adhere to the NJ Department of Personnel Rules and Regulations governing layoffs.” The arbitrator held that the employer had violated both the statutory layoff procedures and the labor contract because it “took none of the required preparatory steps, considered none of the available alternatives, and failed to consult with the union concerning any of those alternatives.” The union argued, and the arbitrator agreed, that the civil service laws did not mandate the employee’s termination or layoff after he had failed the exam, because the law required termination only if the employee failed to apply for and take the exam. “[T]the grievance award does not conflict with Civil Service statutes or regulations and is consistent

16

with our cases finding disciplinary disputes for provisional employees to be legally arbitrable, so long as any arbitral remedy does not conflict with Civil Service laws. In addition, pre-layoff procedures do not significantly interfere with the prerogative to lay off. They simply require the employer to comply with certain procedures before initiating a layoff.” County of Hudson, 35 NJPER ¶4 (NJ PERC 1/29/09).

L. Fiscal Emergency Laws.

1. Municipalities Financial Recovery Act. An interest arbitration award that provided wages, benefits and other improvements to working conditions that exceed the limits contained in a Recovery Plan that was developed under the State’s Municipalities Financial Recovery Act properly was vacated. Among other things, this Act provides that, “A collective bargaining agreement or arbitration settlement executed after the adoption of a plan shall not in any manner violate, expand or diminish its provisions.” The employer was determined in 1992 to be financially distressed, and it has been operating under a series of Recovery Plans, the most recent implemented in 2002. The Recovery Plan provided that any changes occurring during collective bargaining “must be in conformance with the financial parameters of the Recovery Plan.” The interest arbitration panel believed that the award was consistent with the Recovery Plan, but the courts vacated the following portions or the award: retroactive lump sum bonuses to all personnel of $ 1000 for 2003 and again for 2004, a retroactive lump sum bonus of $ 1250 for 2005, a salary increase of 5.5% as of the last day of 2005, and five years of medical benefits for individuals who retired after January 2007. IAFF, Local 60 v. City of Scranton, 40 PPER ¶15 (Pa. Cmmwlth. 1/23/09); City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 40 PPER ¶18 (Pa. Cmmwlth. 2/6/09).

2. Municipal Rehabilitation and Economic Recovery Act. A similar preemption question was addressed in another jurisdiction. The issue was whether the State’s Municipal Rehabilitation and Economic Recovery Act (MRERA) preempted negotiations over layoff procedures. MRERA permits the State to take exceptional measures, on an interim basis, to rectify certain governance issues faced by such municipalities. It provides for the appointment of a Chief Operating Officer (COO) to oversee the implementation of the corrective measures taken by the State. The employer was the only municipality that has been covered by this statute. The unions’ labor contract provided generally for seniority-based personnel decisions, but it did not contain a layoff provision because layoffs were regulated by the civil service laws. The dispute arose when the COO laid off 26 employees (19 or whom were bargaining unit employees) for economic reasons. The affected unions responded by filing a declaratory judgment act in court and an unfair labor practice charge. The Commission granted summary judgment for the employer because the issue of preemption was intertwined with the court action. “If MRERA is found not to preempt the Civil Service Act, then there would be no issues to negotiate under the NJEERA, because the Civil Service Act comprehensively addresses layoffs by order of seniority, bumping and recall rights, and notice. If section 15 of MRERA is found to preempt the Civil Service Act, then MRERA would also preempt negotiations over layoff procedures under the NJEERA, unless there is merit to Council No. 10's argument that a portion of MRERA itself requires that labor contracts nevertheless be enforceable.” City of Camden, 35 NJPER ¶119 (NJ PERC 9/24/09).

M. Amount of Compensation on Union Leave. An interest arbitration award that required the employer to pay troopers on union leave the amount established by the union properly was vacated because the employer was required to perform an illegal act. The State pension laws provide service credit to “[a]n active member on paid leave granted by an employer for purposes of serving

17

as an elected full-time officer for a Statewide employee organization which is a collective bargaining representative,” but the statute requires further that, “the employer shall fully compensate the member, including, but not limited to, salary, wages, pension and retirement contributions and benefits, other benefits and seniority, as if he were in full-time active service.” The court accepted the employer’s argument that, “the Commonwealth is obligated to pay a trooper on “union leave” only the compensation that the trooper would receive “if he were in full-time active service” and because the “union leave” provision obligates the Commonwealth to pay a different amount of compensation, the award requires the Commonwealth to violate the statutory requirement. . . . Because the “union leave” provision here requires that the Commonwealth pay a different amount, i.e., whatever the Association designates, the provision requires that the Commonwealth violate” the pension laws. Commonwealth of Pennsylvania v. Pennsylvania State Troopers Association, 979 A.2d 442 (Pa. Cmmwlth. 2009).

N. Honorable Discharge Criteria. An interest arbitration award that required the employer to award all bargaining unit trooper retiring with 15 years of service an honorable discharge, their badge, and their retirement identification, except upon a showing of just cause involved a mandatory bargaining subject and did not require the employer to perform an illegal act. The court quickly rejected the employer’s claim that the requirement infringed upon its managerial prerogative, indicating that, “the Commonwealth does not identify any managerial policy that this court could weigh against the impact of awarding an honorable discharge on employees, except for just cause.” The court then rejected the employer’s contention that “certain provisions of the law require that the Commonwealth determine whether a trooper with fifteen years service has retired in good standing, i.e., with an honorable discharge, without the need for arbitration.” The employer relied specifically upon two laws: (1) the federal Law Enforcement Officers Safety Act of 2004 which provides that an individual who retires in good standing from service with a public agency as a law enforcement officer, and who has the proper identification, may carry a concealed firearm; and (2) a State administration regulation which provides that persons applying for employment as municipal police officers who were honorably discharged from the Pennsylvania State Police within two years of the application date need not meet all of the qualifications set forth in the regulation. The court responded that, “[N]either of these legal provisions prohibits the Commonwealth from presuming that a trooper with fifteen years service should receive an honorable discharge, nor do they prohibit the Commonwealth from proceeding to arbitration to show just cause when the Commonwealth initially determines that a trooper with fifteen years service is not entitled to an honorable discharge. Therefore, this award provision does not require the Commonwealth to perform an illegal act.” Commonwealth of Pennsylvania v. Pennsylvania State Troopers Association, 979 A.2d 442 (Pa. Cmmwlth. 2009).

O. Alternative Dispute Procedure for Grievance Arbitration. An interest arbitration award that substituted an alternative dispute resolution procedure for arbitration of certain grievances was properly vacated because the State’s collective bargaining statute required grievance arbitrations. The award added the following contract provision: “Food provided to the bargaining unit shall be fresh and edible. In the event that a grievance is filed related to the provision, the grievance may be pursued only through Step 2 of the H-1 Alternative Dispute Resolution Process and the decision of the Joint Committee shall be final and binding.” The court vacated that portion of the award because, “[t]he plain language of Section 903 [of the collective bargaining law] makes arbitration mandatory for the resolution of any disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement. Nowhere under Section 903 does it allow for the Board to issue an award to “pursue a grievance only through Step 2 of the H-1 Alternative Dispute Resolution Process” which shall then be decided by the joint committee and shall be final and

18

binding.” Commonwealth of Pennsylvania v. Pennsylvania State Troopers Association, 979 A.2d 442 (Pa. Cmmwlth. 2009).

III. MANDATORY BARGAINING SUBJECT ESTABLISHED

A. Wages.

1. Additional Compensation for Performing Supervisory Duties. A dispute involving the compensation for an employee who allegedly performed the duties of her supervisor 26 times while the supervisor was absent is mandatorily negotiable. A contractual provision addressing out-of-classification work required that the employee be paid at the rate of the higher title. The affected employee was a Secretarial Assistant, who claimed that she repeatedly performed the duties of the Supervisor of Senior and Veteran’s Services (a professional position that required a college degree). The supervisor supported the request for additional compensation, but the employer’s Business Administrator denied a grievance seeking the higher pay. “[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 receiving additional pay for performing work of a higher level or different nature than that which their standard compensation is based. In general, these compensation claims doe no significantly interfere with governmental policymaking.” Township of Hamilton, Docket No. SN-2009-071, PERC Co. 2010-46 (NJ PERC 12/17/09).

2. Notice of Contract Duration/Salary Reduction. The employer’s failure to notify guidance counselors that their contracts were being reduced from 12 to 10 months, along with the corresponding reduction in salary, was mandatorily negotiable. The employer unsuccessfully argued that it had a prerogative to lay off the employees; there is no notice provision in the parties’ agreement; and the action was properly taken in an open meeting and did not warrant notices to affected employees. “[A]dequate notice is a mandatorily negotiable subject, even if the underlying personnel decision is not. Thus where an employer makes hiring, layoff, non-renewal and promotion decisions, notice and other procedural provisions are mandatorily negotiable and enforceable through grievance arbitration.” Bergen County Vocational Schools Board of Education, 35 NJPER ¶28 (NJ PERC 3/26/09).

3. Placement on Teacher Salary Guide. The employer’s decision not to move teachers to the next step on the salary schedule because of a claimed overpayment to those teachers during the previous year is mandatorily negotiable. The employer had hired the five teachers during the previous school year, but it had placed the teachers under the wrong column of the salary schedule (an error that was not discovered until nearly the end of the school year). The union insisted that the teachers had been properly placed. The employer unsuccessfully argued that it had a managerial prerogative to recoup payments made under an erroneous calculation of salary. “[P]lacement on the salary guide is a mandatorily negotiable compensation issue. The Association claims that the teachers were not placed on the proper steps of the negotiated salary guide for 2008-2009. The Board disagrees. This compensation dispute may proceed to binding arbitration.” Fair Haven Board of Education, 35 NJPER ¶56 (NJ PERC 5/28/09).

4. Adjusting Assignments to Reduce Holiday Overtime. The employer unlawfully issued a directive that staff who were assigned to positions normally closed on the weekend would no longer be permitted to work those positions on a holiday; rather, the facility would remain closed on the holiday so that the employer would not have to pay overtime (double-time) for employees who worked on the holiday. The employer unsuccessfully argued that its actions

19

involved a staffing decision that fell within its managerial prerogative. “The directive decreases the number of officers working on holidays to save money. It does not implicate any policy considerations that would hamper the delivery of services in the jail facility. . . . [The] directive effectively eliminated the officers choice to come to work and receive holiday pay or request the day off. Moreover, the directive was issued, as it states in the preamble, to reduce overtime and operational costs. Although [the employer] . . . also issued the directive to enhance overall security and safety by affording staff more rest between shifts, it is unlikely that reducing personnel in the jail facility would accomplish this goal. . . . [The employer] effectuated the County’s cost-cutting goal by directing officers not to come to work on a regularly scheduled work day. This directive not only changed officers work schedules, but appears to have changed their total annual compensation. Here, if the employer had demonstrated a particularized need to preserve or change the work schedule to support or implement a governmental policy determination, such as a need to improve supervision, enforce discipline, train rank-and-file officers, or align a unit’s schedule with the time services are most needed, it might have been able to act unilaterally. County of Morris (Sheriff), 35 NJPER ¶117 (NJ PERC 9/24/09).

5. Method of Petty Cash Reimbursements. The employer unlawfully changed current petty cash practices and procedures by eliminating direct reimbursements through the petty cash custodian in favor of petty case reimbursements through the Peoplesoft Timekeeping System. These reimbursements primarily involved minor mileage and toll reimbursements. As a result of this change in long-standing practice, employees no longer received reimbursements in cash, but rather were reimbursed through a check; had to wait longer to be reimbursed; and were being required to take additional time to cash their reimbursement check. “[T]he manner in which employees are paid is encompassed within the duty to negotiate salaries and wages. Employees have a contractual entitlement to reimbursement for incurred expenses which are a form of compensation. We also conclude that being reimbursed in cash, rather than by check, is an integral component of compensation, and therefore is a term and condition of employment. The fact that there may be valid reasons for reimbursing employees by check, rather than in cash, does not relieve the Port Authority of its duty to negotiate before altering a longstanding practice.” Port Authority of New York and New Jersey, 42 NYPER (LRP) ¶8001 (Pt. Auth. ERP 12/15/09).

B. Benefits.

1. Vacation Scheduling Procedures. A dispute regarding the employer’s change in the vacation scheduling procedures, which limited the number of vacations days per shift based upon staffing levels and to avoid overtime, was mandatorily negotiable. The employer unsuccessfully argued that it had a managerial prerogative to ensure adequate staffing and supervision within the department. “Scheduling of vacation leave or other time off is negotiable and arbitrable, provided the employer can meet its staffing requirements. An employer may deny a requested leave day to ensure that it has enough employees to cover a shift, but it may also legally agree to allow an employee to take leave even though doing so would require it to pay overtime compensation to a replacement employee. An employer does not have a prerogative to unilaterally limit the number of employees on leave or the amount of leave time absent a showing that minimum staffing requirements would be jeopardized. . . . [A]bsent a showing that staffing levels will drop below minimum standards, a grievance asserting that the employer limited the number of employees who may go out on vacation or other leave is legally arbitrable, even if an employer must call in an officer on overtime to

20

maintain its desired staffing levels.” Township of Weehawken, 34 NJPER ¶110 (NJ PERC 10/30/08).

2. Reducing Number of Employees. A dispute involving the employer’s reduction in the number of employee who could schedule the same time for vacations was mandatorily negotiable; consequently, the employer was enjoined from implementing the change pending unfair labor practice proceedings. Specifically, the employer changed the vacation leave policy from permitting two superior officers, one lieutenant and one sergeant to select vacation time at the same time on the same shift, to permitting only one supervisor, either a lieutenant or sergeant to select vacation at the same time on the same shift. [T]he granting and scheduling of time off is mandatorily negotiable so long as the selection system does not interfere with the employer's minimum staffing determinations. Thus, within the framework of the employer’s staffing requirements, the scheduling of vacations – the total amount of vacation time to which employees are entitled, the procedures for vacation selection, when employees may select vacations and the amount of consecutive vacation time which may be taken – is mandatorily negotiable. . . . While the Township argues that it changed the schedule to efficiently provide services, it takes more than just a label to demonstrate that the employer has an overriding governmental policy concern that would require taking the issue out of the negotiations arena. . . . [T]he Township has not articulated any specific rationale for its asserted need to have the change in vacation policy. The new policy change in vacation leave is not directed to any particular tour of duty but applied to the entire SOA. There are no facts shown as to the Township’s minimum supervisory staffing or that under the status quo the minimum could not be maintained through overtime assignments, for example.” Township of Edison, 35 NJPER ¶86 (NJ PERC Designee 7/8/09).

3. Scheduling Compensatory Time. An employer’s policy change that precluded taking compensatory leave with less than 24 hours’ notice except in “extraordinary circumstances” and only if the office articulated a reason for the request is mandatorily negotiable. The labor contract and a 1997 SOP mandated that last minute leave requests made the day the leave is desired required approval from the Superior Officer on Call or the Chief and would not be approved if the request created overtime. The officer was not required to articulate a reason for the leave request. “We recognize that in considering whether to grant or deny last-minute leave requests, public employers sometimes weigh the needs of the employee and the organization. Thus, an employee might be asked for the reason for the leave request. In fact, an employee, in an effort to impress upon an employer the need for a last-minute leave request, might volunteer the reason for the request. That information can then be used by the employer to decide whether to grant or deny the request. However, by flatly stating that last-minute leave requests will be granted only under extraordinary circumstances and requiring officers to articulate the reason for the last-minute request, the Township is effectively establishing a new policy whereby officers without an extraordinary reason cannot even request last-minute leave, even if granting the request will not affect the efficiency or smooth operation of the department, minimum staffing, or the ability of the department to deal with events or activities that require more than minimum staffing.” Township of Hopewell, 35 NJPER ¶103 (NJ PERC 8/13/09).

C. Hours.

1. Furlough Days. The use of unpaid “furlough days” appears to be one of the most frequent responses to the fiscal crises of public entities during the current recession. In many instances, the furlough days are negotiated. In a few instances, however, employers or other governmental entities – claiming either managerial prerogative or existing contract rights –

21

have attempted to implement such furloughs unilaterally, resulting in challenges by the affected unions.

The contractual management rights clause did not permit the employer to reduce the work week by implementing layoff days. The employer “argues that it acted within the scope of its managerial prerogative when it reduced the work week schedule by implementing layoff days. The union responds that it does not dispute the employer’s right to reduce its work force; rather, it argues, if the employer decides to exercise its prerogative, the employer must do so in the manner provided under the previously negotiated contract. . . . [T]he definition of the “workweek” provided under the contract precluded the application of the management rights clause because the collective bargaining agreement specifically addresses the number of days in the workweek clearly and unambiguously. . . . [C]ontrary to respondent’s argument, although a reduction in respondent’s workforce would be within its prerogative under the management rights clause, because respondent’s unilateral action here resulted in a significant impact to the “wages, hours, and other terms and conditions of employment” of the bargaining unit members, the management rights clause did not apply.” Ironically, the court held that if the employer “decided to reduce its workforce by laying off bargaining unit members, according to the procedure set forth under the contract relating to seniority, then the management rights clause would have protected respondent’s exercise of its managerial prerogative. Respondent’s actions here exceeded the scope of its managerial prerogative. The court “acknowledge[d] the harshness of this result, but the procedure set forth under the contract was negotiated and accepted by both parties.” 36th District Court v Michigan AFSCME Council 25, 2009 Mich. App. LEXIS 2054 (Mich App. 9/29/09).

In another case, the court issued a partial injunction pending resolution on the merits against an emergency State regulation that established unpaid furlough days. The court held that, “the procedure embodied in [the emergency regulation], to the extent it permits ‘a staggered layoff of each employee in a layoff unit for one or more work days over a defined period,’ may be inconsistent with the statutory requirements . . . providing rights to employees and requiring mandatory negotiations relating to conditions of work.” Accordingly, the court “stay[ed] the emergency regulation to the extent it relates to ‘staggered layoffs’ pending consideration of the issues as to scope of negotiations before the Public Employment Relations Commission.” By contrast, the court held that, “a decision to lay off all employees in a layoff unit, even on a temporary basis, must be considered a managerial prerogative, and lawfully embodied in the emergent regulation. Such layoffs do not impact rights such as those involving displacement and seniority. We find no basis to disturb the emergency regulation providing for temporary layoffs of ‘an entire layoff unit for one or more work days over a defined period,’ subject to the provisions of [the administrative regulation] permitting exemption of units because of their relationship to the needs of public safety, law enforcement, child welfare and care for institutionalized persons.” In the Matter of Emergency Temporary Layoff Rule, 2009 N.J. Super. Unpub. LEXIS ¶1549 (NJ Super. 4/17/09).

In a subsequent case involving the same jurisdiction, the Commission’s Designee ruled upon several requests for interim relief pending the resolution of unfair labor practice charges. These charges challenged both the “staggered” layoffs and short-term layoffs of an entire bargaining unit. However, following the court’s injunction against staggered layoffs pending the Commission’s resolution of the issue, the State ordered that such layoffs be cancelled, and that any layoffs proceed only on a bargaining-unit wide basis. Consequently, the Designee declined to issue any interim relief regarding staggered layoffs. With respect to bargaining unit-wide layoffs, the Designee concluded that the court’s refusal to enjoin such layoffs, and its

22

conclusion that such layoffs “must be considered a managerial prerogative” constituted a binding holding (and not dicta); therefore, requests by all unions representing employees working in jurisdictions covered by the civil service laws were denied. With regard to one employer who was not covered by the civil service laws, the Designee was not controlled by the court ruling. Instead, his ruling was based upon the traditional analysis of whether the decision involved a mandatory bargaining subject. The Designee rejected the employer’s argument that it had a non-negotiable management right to implement the layoffs. “[T]he Township is not laying off employees in the context of permanently removing employees from position. The predominant issue here is that Maplewood is changing employees work hours and compensation levels. It has done this by requiring employees to work four days per week in June, July and August and by reducing four unit employees from full-time to part-time. These changes are mandatorily negotiable. Maplewood is not prevented from closing its Town Hall one day per week, but it is required to engage in negotiations with the majority representative prior to changing mandatorily negotiable terms and conditions of employment such as employee work hours and compensation.” The Designee also found for the union on the issue of relative hardship to the parties: “[T]he scale tips in favor of the Charging Party. Maplewood will not be prevented in any way from taking reasonable and responsible actions reflective of the current financial circumstances. The order today requires that the Township engage in the ameliorative process of collective negotiations before it changes terms and conditions of employment and unilaterally effect temporary layoffs and reductions of positions from full-time to part-time.” Township of Maplewood, 35 NJPER ¶70 (NJ PERC Designee 5/16/09).

2. Changing Shift Length. The employer unlawfully imposed a department-wide change from twelve-hour to eight-hour shifts, for police officers. The Board rejected the employer’s argument that its actions were part of its managerial prerogative based upon safety concerns. The employer also asserted that a series of police officer resignations created an emergency situation that excused it from having to engage in collective bargaining. “It is well-established that the bargainable subject of ‘hours’ . . . includes the shift system for police officers. As such, a change in the length or type (steady or rotating) of shift schedules that affects the bargaining unit police officers is a mandatory subject of bargaining. This is not to say, however, that an employer cannot schedule or direct a police officer to work needed hours, so long as it maintains the negotiated regular shift schedule. The employer cannot simply rescind the shift schedules established by contract, interest arbitration, or past practice under the guise of direction of personnel, but must negotiate over any unit-wide change to the employes’ shift schedules. . . . [G]enerally, an employer has at its disposal the managerial prerogative to assign police officers based on workload and need. However, the ability to direct individual employes does not give an employer free reign to unilaterally implement indefinite, unit-wide changes to previously agreed upon hours or working conditions. The record here does not support the Borough’s argument that it attempted to exercise its managerial prerogative to direct police officers to respond to work for emergency coverage as needed while maintaining the agreed upon twelve-hour shifts. To the contrary, what is evident from the record is that the Borough, instead of directing police officers as needed, unilaterally implemented a bargaining unit-wide change from the agreed upon twelve-hour shifts in violation of its statutory bargaining obligation. Moreover, as for the Borough’s perceived emergency, no cognizable exigent circumstance existed here which would have excused the Borough’s unilateral change from a twelve-hour to an eight-hour rotating shift schedule. An exigent circumstance may serve as a defense to a failure to bargain charge, but only where the employer establishes that it has made reasonable efforts to avert the situation, and where it is proven that compliance with the collective

23

bargaining agreement, interest arbitration award, or collective bargaining obligations, would be impossible and cause the employer to be unable to timely perform an essential public function.” Nazareth Borough, 40 PPER ¶51 (Pa. LRB 6/16/09).

D. Leaves of Absence.

1. Concurrent Use of FMLA/Paid Leave. The employer unlawfully deviated from an established past practice by requiring an employee who had requested FMLA leave to first exhaust his unused vacation time before exhausting any paid sick leave. The labor contract required employees to exhaust all paid time off before taking unpaid FMLA leave, but it did not specify any order that the paid leave had to be taken. Several times before, the employer had allowed employees to exhaust their paid sick time first. The employee in question was the first to be required to exhaust his vacation leave first, and he was informed of that requirement only three months after his leave request had been approved. Town of Pittsfield, Dec. No. 2009-067 (NH PELRB 4/7/09).

E. Other Conditions.

1. Discipline.

a. Violation of Smoking Policy. The employer unlawfully refused to negotiate its changes to its no-smoking policy that involved disciplinary sanctions for violating the policy. The previous policy (in effect since at least 1992) had prohibited smoking in all College buildings and in College-owned vehicles and allowed smoking in five designated outdoor areas, and it also contained a provision, entitled “enforcement procedures,” detailing procedural and substantive provisions (first and second warnings and filing charges in municipal court for further offenses within specified periods) for imposing discipline for anyone (employees, students or other persons) who violated the policy. The new policy banned smoking in all campus areas, both indoors and outdoors. The new policy also differentiated between employees, students, and other individuals: (i) employees “shall be subject to appropriate disciplinary action”; (ii) students were subject to discipline under the Student Code of Conduct; (iii) other individuals might be asked to leave the College premises; and (iv) all violators would be subject to sanctions provided by applicable laws and regulations. “While the College was not required to negotiate over its decision to adopt a total smoking ban, it was required to negotiate before changing the disciplinary procedures and consequences for violating its new policy. We disagree with the College’s assertion that there was no change triggering the duty to negotiate.” Bergen Community College, 35 NJPER ¶127 (NJ PERC 10/29/09)

b. Departmental Investigations. A union proposal which required that: (i) no employee would be offered or directed to take a polygraph or voice print exam; and (ii) officer subject to an internal affairs investigation be notified in writing of the findings and results of the investigation within 15 days after the investigation concludes is mandatorily negotiable. Contract language barring both polygraph and voice print tests “is part of a policy that applies to departmental, not criminal investigations, and it provides procedural protections during those investigations consistent with a State statute.” Moreover, “[t]he 15-day limit applies after the investigation is complete. Requiring that the results be delivered to the employee in writing within 15 days does not interfere with the conduct of the investigation as the deadline applies only after a probe is complete.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

24

c. Procedural Protections During Ethics Investigations. A faculty union’s proposal for procedural protections during disciplinary proceedings – specifically, notice of the allegations, an opportunity to respond to allegations, and a written determination from the investigation – under the employer’s Reporting Compliance and Ethics Concerns policy was mandatorily negotiable. The union contended that several bargaining unit employees were investigated, disciplined and placed on administrative leave without receiving these protections. The employer responded that there are times when providing advance notice might compromise the investigation, due to a risk of loss of documentation or evidence or provide the employee with an opportunity to prepare rehearsed answers or to influence other witnesses. The Commission held that, “The procedural protections sought by AAUP are fundamental protections that intimately and directly affect employees who are the subject of an investigation and/or discipline. As a general matter, procedural protections afforded to employees after a disciplinary investigation and before the imposition of discipline are mandatorily negotiable subjects. . . . The employee interest in being able to respond to allegations before being placed on leave is substantial. So too is the employer’s interest in investigating alleged wrongdoing by employees. On balance, we find that having to negotiate over procedural protections before taking the initial disciplinary step of placing an employee on administrative leave would not significantly interfere with [the employer’s] ability to conduct investigations or to impose discipline.” However, [s]hould a case arise in which [the employer] finds a need to deviate from any negotiated procedural protections, AAUP challenges that action in binding arbitration, and [the employer] seeks restraint of binding arbitration, we can consider the parties’ specific concerns under the particular facts and circumstances of that case.” University of Medicine and Dentistry of New Jersey, 35 NJPER ¶113 (NJ PERC 12/17/09).

2. Transfers/Assignments.

a. Overtime. A claim that the employer routinely assigns mandatory overtime without declaring an emergency or first soliciting volunteers is mandatorily negotiable, but with certain conditions. The employer unsuccessfully argued that it needed to “mandate overtime to meet minimum staffing requirements given the size of the department, the number of posts needed to combat crime and protect the public, and the limitations imposed by the contractual work schedules of police officers and superior officers.” Although “[p]ublic employers have a managerial prerogative to determine staffing levels for the police department as a whole and for each position to be filled and each duty to be performed.” the Commission has “distinguished between a police department’s prerogative to decide that overtime must be worked and its duty to negotiate over the allocation of overtime opportunities among qualified employees. . . . [E]ven though the allocation of overtime is generally negotiable, an urgent situation might necessitate deviation from a negotiated allocation system. Also, if an employer needs a particular employee with special skills and qualifications to perform a specific overtime task, it may order that individual to work the overtime and thus ensure that its needs are met. In sum, the allocation of overtime is a mandatory subject of negotiations, provided the employer remains assured that it will be able to obtain enough qualified and physically sound employees to perform the tasks at hand.” The portion of the union’s grievance “seeking to have overtime assigned first to volunteers as part of an overtime allocation system” was mandatorily negotiable, but “the extent, if any, the [union] claims that the City must declare an emergency under [State statute] before it may deviate from an overtime allocation system is not mandatorily negotiable.” City of Trenton, 34 NJPER ¶101 (NJ PERC 9/25/08).

25

b. Determining Overtime Need and Staffing. In a subsequent case involving the same parties, a dispute regarding the employer’s scheduling of overtime that resulting in failing to provide police officers with four days off following four consecutive days on duty as required by the labor contract was not mandatorily negotiable to a certain extent. “[T]he City may require overtime to meet its staffing needs, not just in an emergency, even if such overtime interferes with the contractual four-day off provision. However, . . . the PBA may pursue its claim that such overtime must first be offered to qualified volunteers.” City of Trenton, 34 NJPER ¶136 (NJ PERC 12/18/08).

c. Seniority Basis for Bumping. A dispute regarding whether the employer violated the contractual seniority provisions when it declined to allow the holder of an abolished “chief mechanic” title to exercise his seniority rights and bump into a lower title was mandatorily negotiable. The labor contract provided that seniority would apply to several employment actions, but did not specify bumping. The employer unsuccessfully argued that it had a managerial prerogative to abolish positions for reasons of economy and efficiency. “Absent preemptive statutes or regulations, parties may negotiate provisions relating seniority to determinations of which satisfactory employees will be laid off, recalled, bumped or re-employed. Here, the grievant served as the Township’s chief mechanic. His qualifications to bump into the lower title mechanic are unchallenged. The arbitrator can determine whether [the grievant] is entitled to that position.” Township of Barnegat, 34 NJPER ¶112 (NJ PERC 10/30/08).

3. Work Schedules.

a. “Four On, Three Off.” A union proposal for a work scheduling allowing sheriff’s officers to work four days and then take three days off (changing the current five-day workweek) was mandatorily negotiable. The employer contended that the proposal interfered with its managerial prerogative to “determine the work schedule necessary for it to address issues of adequate coverage and supervision for the proper operation of the department.” It noted that 54 of the 88 sheriff’s officers are assigned to the court operations section and that the courts operate Monday-Friday. In rejecting the employer’s argument, the Commission held that, “We cannot conclude . . . that a 4-3 work schedule would significantly interfere with the ability of the Sheriff to support a court system and probation offices that are open Monday through Friday. Absent an employer’s showing of a compelling need to remove a work schedule proposal from the arena of collective bargaining, our approach . . . is to have the parties present their arguments to the interest arbitrator. . . . But an interest arbitrator must scrutinize the wisdom of the proposed work schedule changes from both operational and financial viewpoints.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

b. “24/72” Work Schedule. A firefighters union proposal to change from a 10/14 work schedule to a 24/72 work schedule was mandatorily negotiable, even though the firefighters’ superior officers already had ratified a contract providing for a 10/14 schedule. The employer opposed the proposal, because it meant that superior officers would not be supervising the same firefighters. The Commission noted that it previously had modified an interest arbitration award to preclude the schedule change until both the firefighters and the superior officers had the same schedules, only to be reversed by the courts. Consequently, the proposal could be arbitrated, but subject to the following admonitions from the Commission: (i) “consider the work schedule proposal in light of the standards arbitrators should apply in considering proposals for a major work schedule change,

26

including proposals that would result in supervisors being on a different work schedule from the employees they supervise”; and (ii) “award such a proposal only if he or she finds that the different work schedules will not impair supervision or that, based on all the circumstances, there are compelling reasons to grant the proposal that outweigh any supervision concerns.” City of Trenton, 35 NJPER ¶121 (NJ PERC 9/24/09).

c. Change from 4-3 to 5-2 Schedule. An employer’s attempt to move officers in the Criminal Investigations Bureau from a 4-3 to a 5-2 schedule when it established a Rapid Response Unit was mandatorily negotiable. The employer unsuccessfully argued that it acted pursuant to a legitimate, non-negotiable managerial prerogative to ensure the adequate delivery of governmental services.” 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, negotiable. A grievance protesting a work schedule change is not legally arbitrable if enforcement of a particular work schedule agreement would substantially limit a governmental policy determination. . . . [I]n order to be non-negotiable, a work schedule must so impede governmental policy that it must not be addressed through negotiations despite the normal legislative desire that work hours be negotiated to improve morale and efficiency. . . . There are exceptions to the general negotiability of work schedules when the facts prove a particularized need to preserve or change a schedule to protect a governmental policy determination. However, on this record, we do not find that the Township has shown that the former schedule has caused or would cause the significant staffing and coverage gaps needed to remove a 5-2 schedule from the realm of negotiable work schedules.” Township of Edison, 35 NJPER ¶29 (NJ PERC 3/26/09).

d. Establishing Early Evening Shift. An employer’s implementation of an early evening shift schedule for police officers without prior notice to the unions or an opportunity to discuss the change was mandatorily negotiable. The employer stated that the change was made “to enhance operational efficiency in addressing peak Call For Service (CFS) times, to maximize first-line supervision, and to ensure the safe and efficient operation of the department.” The unions contended that the change was motivated primarily to reduce overtime. Applying the same standard as above, the Commission concluded noted that one of the labor contracts provided for a procedure to address work schedule changes. “Committees to meet and discuss matters of governmental policy are mandatorily negotiable. . . . [N]on-binding forums to consider non-negotiable subjects may induce parties to resolve disputes without formal proceedings. The Township has not established that it had an emergent need to create an early evening shift without first fulfilling any alleged contractual obligation to first bring its proposal to the WSRC.” Township of Edison, 35 NJPER ¶97 (NJ PERC 8/13/09).

4. Educational Issues.

a. Distance Learning Committee. A proposal established a committee that was responsible for maintaining a list of all distance learning course sections, detailed the contents of such a list, and specified who had the authority to appoint members to the committee. “This provision establishes a committee to maintain a list of courses. It does not impact curriculum or evaluation criteria nor does it limit the College’s ability to determine the composition of this committee as the College President has the power to reject the

27

Association’s designation of a unit member to sit on the Committee.” Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

b. Impact of Required Electronic Submission of Lesson Plans. Although the employer’s directive that teachers submit lesson plans electronically (which the union acknowledged), the employer still was required to bargain the impact of this requirement upon working conditions. The union identified the following areas for which it requested bargaining: (a) the need for adequate training opportunities for all teachers on the different methods in which they could electronically submit their lesson plans; (b) the need to provide the necessary equipment at all schools to implement the various alternatives for electronically submitting lesson plans; (c) the need for equivalent schools to standardize the content required for electronic submission of lesson plans; (d) the effect of requiring electronically submitted lesson plans on teachers workloads, schedules, classroom budgets, and compensation and ways to minimize any negative effects thereto; and (e) the disciplinary consequences of failing to submit lesson plans electronically. Indian River County School District, 35 FPER (LRP) ¶207 (Fla. PERC 7/2/09).

5. Inclusion in Bargaining Unit.

A dispute over whether the employer’s Chief Financial Officer (CFO) was entitled to overtime pay for attending City Council meetings was mandatorily negotiable and subject to arbitration, even though the employer contended that the CFO was not a bargaining unit employee. The Appendix to the labor contract did not list the CFO as an included position. However, the CFO had been a dues-paying union member since he became CFO in 1994. He also attended Union meetings and voted as a member. In 2001, he submitted an overtime pay claim that the employer paid. “[A]n arbitrator may interpret a contractual recognition clause and determine whether an employee is covered by the agreement. . . . This dispute over the reach of the existing contractual recognition clause does not present a negotiability issue . . . .” City of Hoboken, Docket No. SN-2009-053, PERC No. 2010-40 (NJ PERC 11/24/09).

Similarly, a dispute over whether officers in the police academy had received appropriate compensation when the employer unilaterally reduced their compensation was mandatorily negotiable and subject to arbitration, even though the employer contended that trainees are not bargaining unit employees. County of Hudson, Docket No. SN-2009-074, PERC No. 2010-47 (NJ PERC 12/17/09).

6. Notice of Work Rule Changes. A union proposal prohibiting, except under emergent circumstances, new rules or changes to existing rules to be implemented without giving the union 14 days to review them was mandatorily negotiable. “If the proposal is awarded and a new or modified rule is required to respond to an emergency, the employer may seek to restrain arbitration of any grievance protesting an alleged failure to provide the 14-day notice.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

7. Promotions.

a. Eligibility While on Leave of Absence. The employer’s declaration that an employee on workers compensation leave of absence was not eligible for a promotion is mandatorily negotiable. At the time that the position was posted, the employee did not have a return date from the leave of absence. Although “[p]ublic 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. . . . [w]hether the grievant was eligible for

28

promotion while out on workers’ compensation is an issue that . . . can be considered by the arbitrator. The Township has not determine that the grievant was unqualified for the driver position, just that he was not available to fill the position on the day of the posting. Having to consider for promotion an employee on temporary leave would not significantly interfere with the Township’s managerial prerogative to match the best qualified employee to a particular job. Township of Stafford, Docket No. SN-2009-059, PERC No. 2010-41 (NJ PERC 11/24/09).

b. Non-Bargaining Unit Position.

A contract provision that required that the non-bargaining position of Fire Chief be filled by a bargaining unit employee was lawful. The provision was included in the labor agreement at the same time that the Fire Chief position was removed from the bargaining unit. “It is well established that standards and criteria for promotion are a mandatory subject of bargaining under PERA. This is true even when the promotions are to non-unit positions, provided such positions are not executive positions exempt from the protections of PERA. In this case, the parties bargained and voluntarily reached an agreement on the criteria to be used for promotion to the position of fire chief. After the initial agreement was made, the City agreed to incorporate the same criteria for promotion to fire chief in the parties' collective bargaining agreement. Clearly, . . . the parties entered into this agreement freely and voluntarily. By so doing, the City agreed to limit its choice for promotion to fire chief to individuals who meet the agreed upon criteria. The City may lawfully accept such limitations and did so in this case. . . . [T]he City has pointed to no authority that would support its assertion that the Employer’s voluntary agreement to limit its selection of a non-unit position to a member of a subordinate bargaining unit is an unlawful restraint on the Employer’s choice of bargaining representative or is otherwise illegal. City of Hamtramck, 22 MPER ¶47 (Mich. ERC 5/22/09).

In another jurisdiction, the employer unlawfully refused to bargain the criteria for promotion to the non-bargaining unit rank of battalion chief because under the State’s Fire Department Promotion Act, certain promotions to non-bargaining unit positions are mandatory subjects of bargaining. The employer unsuccessfully argued that the Battalion Chief position was excluded from the Act’s coverage because it was: (a) an exclusively administrative or executive rank for which an examination is not required; (b) a rank that was exempted by a home rule municipality; and (c) not the next rank immediately above the highest rank included within a bargaining unit. “The Board agreed with the ALJ that the first attempted exclusion was erroneous because, “Battalion Chief is not an exclusively administrative or executive rank, finding that the supervisory function of the position, that is overseeing and directing firefighters at fires, was by far the significant aspect of the title’s duties, thereby preventing it from being an exclusively administrative or executive rank.” Moreover, the employer “had long employed interviewing and skills testing in filling the Battalion Chief title,” thus undermining the argument that an examination was not required. The second attempted exclusion also was erroneous – even though the Board of Fire Commissioners had enacted rules to exempt or release the Battalion Chief positions from the appointment requirement – because the Fire Chief traditionally had filled such positions through the selection and examination process. Finally, the Board rejected the employer’s argument that the Division Chief was the next rank immediately above the bargaining unit. “The Division Chief is now, and has most frequently been, a position filled by a civilian who therefore cannot perform fire suppression tasks. Therefore, Battalion Chiefs, not the Division Chief, respond to incidents and may direct the activities of fire

29

fighters. It is the Battalion Chief position, not the Division Chief position, that has been filled since its inception by an examination, assessment and interview process which selects applicants from amongst the bargaining unit, all sworn fire fighters and not civilians.” Village of Downers Grove, 24 PERI ¶114 (Ill. LBSP 10/3/08).

8. Background Checks and Fingerprint Testing for Current Employees. An employer’s decision to implement a criminal background check, and in some instances driver record and abuse registry checks, for all hires and to extend those background checks to transfer and promotion decisions of existing employees was mandatorily negotiable. The employer contended that the following statutes authorized its decision: (1) a 2008 State statute that allowed a person to obtain a criminal conviction record online from the State’s criminal information center if the requesting party completed a user’s agreement (previously, criminal conviction records could be provided only if the subject of the search signed a release); (2) a State statute that regulated the disclosure of records of abuse, neglect and exploitation of vulnerable adults, and permitted such disclosure to an employer to determine whether to hire or retain a person providing care, custody, treatment, transportation or supervision of children or vulnerable adults; (3) a State statute that regulated the disclosure of records of all investigations that resulted in a substantiated report of child abuse to certain employers for hiring/retention decisions; (4) a federal statute to report or index in the national criminal registry child abuse crime information; (5) a federal statute requiring a Motor Vehicle Driver Check for any position where client transport is part of the regular job duties. Employees seeking transfer or promotion were required to sign a release authorizing a Motor Vehicle Driver check, Child Abuse Registry and Adult Abuse Registry checks, and a National criminal record check through the FBI for persons who had lived in the State for less than five years (the latter of which also required the individual to submit to fingerprint testing). In addition, the employment application for many years had asked applicants about criminal convictions and notified applicants that incorrect information was cause for rejecting the application; however, it did not require applicants to sign a background information release. The Board held that the State statutes relied upon by the employer only “permit employers to perform checks, rather than mandate them.” Moreover, “[t[he state statues allow access to information about individuals who consent to it, and do not contain any requirement for these checks to be performed on any type of employee by any type of employer. As for the federal statute, the employer failed to demonstrate that either the background checks or the fingerprint testing is committed exclusively to the discretion of employers. Nor did the statutory management rights authorize the employer’s actions. “[The employer] has not met its required burden of demonstrating the existence of a specific statutory provision which circumscribes its power to bargain on issues of requiring employees to sign background check authorizations and/or submit to fingerprint testing. It is a long leap from inquiries on the employment application relating to an applicant’s criminal record, and the possible consequences of providing untruthful information, to requiring employees to sign background check authorizations and/or submit to fingerprint testing.” State of Vermont Agency of Human Services (Re: Hiring Standards Policy), Docket No. 08-17 (Vt. LRB 11/13/09).

9. Changing Minimum Job Qualifications. The employer unlawfully refused to bargain over the impact of its decision to change the prerequisites of the position of Buyer when it posted a job description that required upgraded computer skills as a condition for consideration. The prior job description required only that the person holding the position achieve proficiency in the employer’s computerized purchasing and inventory control system within 60 days of hire. Before this change, bargaining unit employees considered the Buyer position to be a desirable promotion because the job pays more and involves less physical labor than other positions in

30

the operating area. Moreover, the opportunity to learn some skills during the 60-day probationary period was considered critical by employees to their ability to obtain the job. “[T]he changes in the buyer position were indeed ‘minimum qualifications necessary for the position’ and [the employer] was not required to bargain about its determination of these minimum qualifications . . . . [However,] the issue of promotions directly affected salary and benefits, working conditions that are mandatory subjects for negotiations. . . . [T]he change . . . implemented in the qualifications for the buyer position affects salary, because the job pays higher wages than other positions in the . . . department.” The employer unsuccessfully argued that the change had a de minimis impact upon bargaining init employees. “[B]argaining unit employees are directly affected by the change in qualifications for the buyer position. Employees who previously could have qualified for the job through on-the-job experience lost the right to compete for a desirable position that pays higher wages and makes fewer physical demands on them.” Tri-County Metropolitan Transportation District of Oregon, Case No. UP-62-05 (Ore. ERB 1/16/09).

10. Restrictions on Off-Duty Alcohol Consumption. The employer unlawfully restricted off-duty police officers from using alcohol within eight hours of reporting for a tour of duty. Prior to the change, police officers were required to “refrain from consuming intoxicating beverages to the extent that it results in impairment, intoxication, obnoxious or offensive behavior which discredits them or the department, or renders the member unfit to report for duty for their next regular tour of duty.” The employer unsuccessfully argued that the policy was implemented to avoid incidents wherein officers would come to work not fully fit for duty, impaired, under the influence of intoxicating substances and/or with alcohol on their breath. “[A]n employer’s restriction on the use of non-working time by employees is a term and condition of employment and, in general, constitutes a mandatory subject of negotiations. . . . The mere fact that a work rule has a relationship to an employer’s mission does not permit an employer to act unilaterally in any manner it deems appropriate. Rather, an employer can unilaterally impose a work rule only to the extent that the unilateral action does not significantly or unnecessarily intrude on the protected interests of bargaining unit employees under the Act. . . . [T]he evidence clearly demonstrates that the City’s prohibition against police officers consuming intoxicating beverages prior to reporting for duty is mission-related. However, . . . there is no evidence in the stipulated record to support the City’s claim that the new eight-hour rule was necessary, or that the City faced a new or acute problem requiring a more stringent rule. . . . [T]he stipulation does not include facts establishing that the prior policy had been ineffective or that the City had an immediate need to act unilaterally. While it is self-evident that the public has a right to expect that police officers will not report to work inebriated or under the influence of intoxicating beverages and substances, there is absolutely nothing in this stipulated record to support the City’s claim that the unilateral implementation of the new eight-hour rule was necessary for the City to accomplish this goal.” City of Albany, 42 NYPER (LRP) ¶3005 (NY PERB 4/22/09).

11. Vehicle Take-Home Policy. The employer unlawfully altered its long-standing policies and practices permitting certain employees to take home employer-owned vehicles used during work. Under the prior policy, employees were required to complete a vehicle assignment form and a vehicle take-home authorization form. The forms must be approved by a department director and the city administrator. The employees who were approved to use take-home vehicles kept the vehicles as long as they were employed in the same position. The result of the new policy was that no employees took vehicles home with them. “[T]he issue of take-home vehicles is a mandatory subject of bargaining. Consequently, upon a proper request to bargain,

31

the City was required to negotiate over the decision to change the vehicle policy, not just the impact of the decision.” City of West Palm Beach, 35 FPER (LRP) ¶24 (Fla. PERC 2/4/09).

12. Maintaining Status Quo on Expired Contracts. The employer unlawfully combined or discontinued extracurricular activities due to budget constraints that had been negotiated in an expired labor contract, notwithstanding the possibility that maintaining and regulating extracurricular activities was an inherent managerial right. The State’s School Code vests a school district with the managerial discretion to employ and assign employees to supervise extra-duty positions. The court acknowledged that, “While that provision of the School Code is not needed to find that the number and type of extracurricular activities is an inherent management activity, it confirms that, just as with the number of subjects offered, a school district is free to create activities and clubs and is similarly free to eliminate them within its managerial discretion.” The court, however, rejected the employer’s argument that the obligation to maintain the status quo during contract negotiations does not apply to non-mandatory subjects of bargaining because they are matters of inherent managerial discretion. “While the School District is free in the subsequent contract not to negotiate over extracurricular activities, it cannot change the status quo by unilaterally stripping from the contract bargained-for provisions. To hold otherwise would fail to advance our Supreme Court’s mandate that during the interim period between contracts, maintenance of the status quo is necessary for good faith bargaining.” Coatesville Area School District v. Coatesville Area Teachers’ Association/Pennsylvania State Education Association, 40 PPER ¶61 (Pa. Cmmwlth. 7/9/09).

13. Residency Requirement. The employer unlawfully implemented a residency requirement for troopers and reassigned the troopers to work areas that were close to their residences. The labor contract provided that, “Any employee may live within a town within a patrol area to which she/he is assigned or within a reasonable distance from his/her assigned patrol area.” This subject had been discussed repeatedly in negotiations. “Evidence has not been presented to us, nor do we find, that the constitution, or any statute or any statutorily adopted regulation has reserved to the State the right to unilaterally determine trooper residency or whether individual troopers are living “within a reasonable distance” from an assigned patrol area. Therefore, the issue of the establishment of a reasonable distance from an assigned area is not a prohibited subject of bargaining as it meets the first prong of the court’s three pronged test. . . . As to whether the subject of trooper residency and “reasonable distance” is a permissive or mandatory subject of bargaining, the delineation of a required location for an employee to make his or her residence constitutes a term or condition of work. This becomes even more acute when we consider the consequence of the residency directive. The difference of a couple of miles can result in a transfer which places the involved employee on a different shift with the consequent disruption to important life arrangements and established schedules for no reason other than an indeterminate amount of gasoline savings. We find the State’s argument based on gasoline utilization unconvincing against the heavier balance of evidence showing that the parties had negotiated the “reasonable distance” provision in their agreements previously. We find that the issue of reasonableness in distance from an assigned patrol area is one that primarily affects the troopers’ terms and conditions of work . . . . There was insufficient evidence presented to convince us that allowing the parties to negotiate what constitutes a “reasonable” distance in the context of this case interferes with the public control of government.” New Hampshire Department of Safety, Division of State Police, Dec. No. 2009-088 (NH PELRB 4/30/09).

32

14. Layoff Order. Disputes regarding an employer’s attempt to lay off assistant prosecutors and senior investigators in the Prosecutor’s Office in violation of the seniority-based requirements in the labor contract was not within the employer’s managerial prerogative, even though the employee’s in question were in the unclassified civil service. “[W]hen laying off for economic reasons, an employer can agree to use seniority as a deciding factor. Here, the Prosecutor has stated that the layoffs were made because of a severe budget crisis. There is nothing in the record to suggest that the layoff decisions were performance-based. The Prosecutor asserts that he is a unique employer as he is a constitutional officer nominated and appointed by the Governor with the advice and consent of Senate and by statute is vested with all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the law. We do not find these arguments persuasive.” Passaic County Prosecutor’s Office, 34 NJPER ¶139 (NJ PERC 12/18/08); Passaic County Prosecutor’s Office, 34 NJPER ¶138 (NJ PERC 12/18/08).

15. Certification of Understanding. An employer’s attempt to issue a department communications policy that required employees, under penalty of discipline, to print and sign an attached “certification of understanding” once they read the document was mandatorily negotiable because the requirement directly affected employee work and welfare. “We disagree with the Township that having to sign an acknowledgment of understanding does not intimately and directly affect employee work and welfare. The Township has an interest in ensuring that employees have received memoranda and training and also that they have understood materials received. However, employees also have an interest in not being required to certify to an understanding of materials or training received under penalty of discipline for not signing and where that certification could be used against them should a dispute arise over their failure to comply with a procedure, rule or regulation. The employer has a prerogative to require a written acknowledgment of receipt, but not to require this Certification of Understanding.” Township of Edison, 35 NJPER ¶52 (NJ PERC 4/30/09).

16. Permissive Subjects in Existing Contracts. The employer unlawfully attempted to repudiate a contract provision and a related letter of agreement, in which the employer agreed not to challenge the eligibility of certain employees under the State’s binding interest arbitration statute (Act 312) who would not otherwise be covered. The dispute arose when the employer attempted to revise – as a cost-cutting measure – the job classification of Corrections Officer (who are not required to be certified police officers) in a bargaining unit of deputy sheriff’s, sergeants and corrections deputies in the county jail. The union agreed to the change, if the employer would agree not to challenge the eligibility of such employees for Act 312 arbitration. The employer agreed, and the agreement was incorporated in a contract provision and a separate letter agreement. In a succeeding set of contract negotiations, the employer attempted to repudiate the agreement, claiming that it involved a permissive bargaining subject. The Commission rejected the employer’s efforts. “A party may take unilateral action on a permissive subject without first entering into the bargaining process. However, a party may not take unilateral action on a permissive subject that is embodied in a bargained agreement. To find otherwise would leave little distinction between a permissive subject of bargaining and a prohibited subject of bargaining upon which an agreement would be unenforceable. . . . Although a dispute may involve a permissive subject of bargaining, once an agreement is reached, neither party has a right to unilaterally repudiate the bargain. Moreover, as here, where a permissive subject of bargaining is intertwined with mandatory subjects of bargaining, a repudiation of the permissively bargained part of the agreement is a repudiation of the entire package.” The Commission added that, “[T]he quid pro quo was an agreement to have a lower wage rate for part of the work force in exchange for an agreement that future

33

wage rates for that particular group would be submitted to binding interest arbitration. That negotiated protection is especially significant in the public sector where strikes are prohibited and the Employer can unilaterally set the new wage rate after the parties reach impasse.” County of Kalamazoo, 22 MPER ¶94 (Mich. ERC 10/16/09).

17. Location of Union’s File Cabinet. The employer unlawfully ordered that a file cabinet used for union business be removed from the fire station where it had been located for years. The Union used the file cabinet as a storage space for its records since soon after becoming certified in 1989. Since then, the file cabinet was kept in the lieutenants’ office at a fire station. Documents kept in the file cabinet included all records pertaining to the union such as bank statements, receipts from purchases of material, the union’s checkbook, the Contract and bylaws, and grievances. There were different files in the file cabinet regarding union activities. The file cabinet was kept locked. As a result of a fire in at the station near the end of 2006, most of the station needed to be gutted and rebuilt, including the lieutenants’ office. The station was closed during the remodeling. Although the fire rendered the lieutenants’ office unusable, neither the file cabinet nor its contents were badly damaged by the fire. For that reason, the file cabinet was kept at the station with the other contents of the lieutenants’ office for about a year during remodeling. When remodeling was almost finished in 2008, an employer’s representative informed the union that the file cabinet could no longer be kept on fire department property and that the employer had offered a space for the union file cabinet inside an office at City Hall. “Provisions which affect terms and conditions of employment are mandatory subjects of bargaining if they encompass some aspect of the employer-employee relationship and do not relate solely to the internal procedures of the employer or the union.” The ALJ concluded that: (a) the file cabinet and its location concerned the terms and conditions of employment of bargaining unit employees; (b) the location of the file cabinet was not a matter of inherent managerial authority, since “[n]othing in the record that leads me to believe that the location of the Union file cabinet . . . bears any relation to the function of the Employer, the standard of the service it provides, its overall budget, the organizational structure and selection of new employees, examination techniques or direction of employees; and (c) “employees’ interest in communicating with their exclusive bargaining representative is significant. . . . [while] the Employer failed to identify any burdens that bargaining over the location of the file cabinet would have imposed.” City of Markham, 25 PERI ¶117 (Ill. LBSP 8/26/09).

IV. PERMISSIVE BARGAINING SUBJECTS

A. No-Smoking Policy.

The employer lawfully refused to bargain before adopting a non-smoking policy banning the use of tobacco (including smokeless tobacco) anywhere on campus. The previous policy (in effect since at least 1992) had prohibited smoking in all College buildings and in College-owned vehicles and allowed smoking in five designated outdoor areas, and it also contained a provision, entitled “enforcement procedures,” detailing procedural and substantive provisions (first and second warnings and filing charges in municipal court for further offenses within specified periods) for imposing discipline for anyone (employees, students or other persons) who violated the policy. The Commission held that a prior decision (which upheld a school board’s unilateral smoking ban in a K-12 district) “underscores the significance of an educational institution’s interests in adopting no-smoking policies applicable to all elements of the educational community. Those interests involve both the safety of the community and the educational mission of the employer. . . . Publicly declaring a campus to be completely smoke-free is a powerful educational tool, one that

34

would be weakened by carving out exceptions for employees or other affected groups. In adopting that tool, the College has made an educational policy decision that outweighs the interests of employees in negotiating over the ban on smoking. Further, the impact issue identified by the charging parties – the possibility of permitting employees to smoke in remote, undeveloped areas where students would not see them – cannot be severed from the policy decision to declare College campuses free of smoke and is therefore not mandatorily negotiable itself. It would significantly interfere with the educational policy decision to have a smoke-free campus if employees were nevertheless permitted to smoke, even if only in designated areas. That interference outweighs any personal interest an individual employee may have in smoking while on campus. The Commission held, however, that the employer was required to negotiate its change in the disciplinary procedures and consequences for violating the policy.” Bergen Community College, 35 NJPER ¶127 (NJ PERC 10/29/09).

In another case, an interest arbitration award that allowed the State Department of Corrections to prohibit smoking at the work site after satisfying its meet and discuss obligations did not impermissibly change the subject from a mandatory subject of bargaining to a managerial prerogative. The provision in question stated that, “Policies concerning tobacco use at the work site, including prohibitions against tobacco use, may be established by the Commonwealth after meet and discuss with the Association.” The court rejected the union’s argument that the inclusion of the “meet and discuss” requirement converted a mandatory subject to a permissive one. “[B]y requiring the Commonwealth to meet and discuss with the Association prior to implementing changes where tobacco could be used, the arbitration panel did not remove tobacco use from mandatory bargaining nor could it do so. What the arbitration panel did was give the Commonwealth discretion to determine where tobacco use was permitted at the work site – which the Association agrees that it could lawfully do. By adding the “meet and discuss” requirement, the arbitration panel did not change the term from a mandatory to a non-mandatory subject of bargaining, but required the Commonwealth to extend the courtesy of discussing the issue before unilaterally implementing the policy. While “meet and discuss” applies to when the Commonwealth wants to implement to tobacco use policy, if a dispute as to whether an area is a work-site – the mandatory grievance arbitration required by Section 903 of PERA would have to follow. Moreover, tobacco use remains a subject of bargaining in negotiating or arbitrating succeeding collective bargaining agreements.” Pa. State Corrections Officers Ass’n v. Commonwealth of Pennsylvania, 40 PPER ¶62 (Pa Cmmwlth. 7/13/09).

B. Educational Issues.

1. Evaluation Content and Procedures. Several Union proposals were found to involve permissive bargaining subjects. “Evaluation criteria are not mandatorily negotiable, but evaluation procedures, including notice of the criteria to be applied are mandatorily negotiable unless preempted.” Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

a. Self-Evaluations. A proposal required bargaining unit member to submit an annual performance report and objectives for the following year to their immediate administrative supervisors, and directing further that “[t]hese objectives will include professional responsibilities, professional growth, College contributions and community contributions,” and “shall be in a format and contain such information as directed by the College.” “Except to the extent that this paragraph sets deadlines and notifies the unit member of the identity of the recipient, the duty to prepare and submit a self-evaluation and list of goal

35

objectives is not mandatorily negotiable. The obligation of a faculty member to prepare such a document related primarily to non-negotiable evaluation criteria.”

b. Student Course Evaluations. A proposal required the employer to “utilize a nationally recognized form for student course evaluations [to] be administered in accordance with College procedures,“ required further that, “If the results of such evaluations are unsatisfactory or questionable, the College will conduct student course evaluations of all courses taught by the faculty member during the next semester,” with the process continuing each successive semester until the results are satisfactory or other action is taken, and also required that the same student course evaluation will be utilized for both tenured and non-tenured faculty. “[A] proposal to append the forms to the contract, thus providing the Association with notice of evaluation criteria, is mandatorily negotiable. But appending the forms to the agreement cannot bind the College to use the forms without changer for the life of the agreement.”

c. Classroom Visitations. A proposal requiring that “The observation will be conducted by the immediate supervisor who shall utilize a standard College form designed for this purpose. . . . is not mandatorily negotiable to the extent it would limit the College in its choice of an evaluator and because it requires a standardized evaluation form.”

d. Use of Technologies and Methodologies. A proposal stating that, “The College encourages the use of high technology and/or innovative instructional methodologies in the classroom and will consider a faculty members’ proficiency in the utilization of such strategies in the classroom as part of the evaluation process. . . . predominantly relates to evaluation criteria including the methods and manner of instruction.”

e. Person to Conduct Evaluation Conferences. Proposals required “the immediate supervisor” to conduct the evaluation conference, work with the bargaining unit member to finalize a written summary of measurable objects for the following year, and coordinate evaluations when the bargaining unit member services in two or more Divisions. Although “notice of the identity of the person who shall perform an evaluation is mandatorily negotiable,” these proposals “limit the College’s choice of the person it wishes to conduct an evaluation conference and collaborate with the faculty or staff member in preparing a summary of objectives for future performance.”

f. Video-Taped Observations. A proposal permitted videotaped observations of non-tenured faculty member for evaluative purposes, permitted such observations of tenured faculty members only with consent of the tenured faculty member, and detailed the appropriate use of the videotape. “This provision impermissibly restricts the College’s prerogative to set evaluation criteria by mandating that the ‘videotape itself along with the constructive critiquing commentary’ will be used as a tool in the evaluative process. We agree that the provision is not mandatorily negotiable to the extent it requires that constructive critiquing commentary be used as an evaluative tool.”

g. Person to Receive Proposed Corrective Action Measures. Proposals directing any faculty member who received an evaluation rating of questionable or unsatisfactory to submit an interim report of proposed corrective measures to the immediate administrative supervisor “are not mandatorily negotiable to the extent that set the evaluation criteria for requiring faculty members to submit an interim report and designate the College’s evaluator.”

36

2. Distance Learning Course Assignments. A proposal made participation in distance learning program course strictly voluntary and precluded a decision to forego participating in distance learning programs from being used in any evaluative manner. “Employers may unilaterally assign duties if they are incidental to or comprehended within an employee’s job description and/or normal duties. Teaching of distance learning courses is sufficiently related to normal classroom teaching so as to make the assignment of such courses non-negotiable.” In addition, precluding a decision to forego participation in distance learning programs restricted evaluation criteria. However, the Union “may seek to negotiate severable issues that may result from such assignments, such as compensation.” Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

3. Educational Employee Course and Classroom Rights and Responsibilities. A Union proposal which stated that, “Consistent with the stated catalog course descriptions, the primary responsibility for determining course content, course goals, learning objectives and the selection of appropriate learning materials and strategies rests with the unit member who teachers the course,” involved a non-mandatory bargaining subject. The employer successfully argued that, “[W]hile it has the discretion to allow a faculty member to determine course content, the above language is not mandatorily negotiable to the extent it restricts the determination of course content, goals and learning objectives, which are all elements of course curriculum. . . . A public college has a managerial prerogative to determine curriculum and the type of classes to be offered.” Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

4. Work Assignments. A proposal requiring that “The College shall assign base load in accordance with student and institutional needs and with the objective to provide a base load for each unit member. . . . would impermissibly subject the College’s assessment of student needs to the collective negotiations process and is not mandatorily negotiable.” Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

5. Teaching Overload. A proposal prohibited any bargaining unit member from accepting a second overload course section until all full-time faculty members in the subject field desiring overload teaching has been offered at least one course section. The proposal was not mandatorily negotiable because it did not permit any exceptions based upon special qualifications or needs. Burlington Community College, Docket No. SN-2009-040, PERC No. 2010-38 (NJ PERC 11/24/09).

6. Increasing Number of Class Instructional Periods. The employer lawfully increased the number of daily class instructional periods for high school teachers from 5 to 6, subject only to the obligation to negotiate the effects of that decision. The number of instructional periods was not included in the parties’ collective bargaining agreements and was not previously the subject of negotiations. “[T]he decision to change the amount of teaching time is a management right, subject only to impact negotiations. . . . [A] schedule change involving additional work for teachers is not negotiable as to the decision, but only negotiable as to the impact.” Moreover, the State’s collective bargaining law provided that a public employer has the management right to determine standards of service to be offered to the public, which has been interpreted to include class sizes and teacher work load. “[T]he decision as to the size of classes constitutes a management right not requiring negotiations because the class, i.e., a group of students who receive instructional services offered by public education, is the basic unit in which these instructional services are delivered. Therefore, the determination of class size clearly involves the setting of a standard of service . . . ; it is evident that the number of

37

students served by public education is directly related to the size and number of classes offered.” Escambia County School District, 35 FPER (LRP) ¶42 (Fla. PERC 2/24/09).

7. Union Access to Inter-School Mail Facilities. A union proposal provided the following: “The Association shall have the right to use the inter school mail facilities and school mail boxes. All such materials shall be in professional taste.” This provision was only partly mandatorily negotiable. “The direct placement of communications in school mail boxes is a mandatorily negotiable issue. However, this provision goes beyond the ability to directly place communications in school mail boxes by also permitting the use of inter-school mail facilities without any limitations on whether the use would be related to the District’s business. To that extent, this clause is not mandatorily negotiable . . . . Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

8. Student Reading Time. A union proposal which required that “the first ten minutes of class time following the home room period shall be set aside as a silent reading period for all students and staff members,” was not mandatorily negotiable. How students should spend their class time is an educational policy determination. This language would restrict the Board in its determination of how that time should be used and would significantly interfere with that policy determination.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

9. Primary Responsibility. A union proposal which provided that, “The District and the Association acknowledge that an employee's primary responsibility is to teach and that his/her energies should, to the extent possible, be utilized to this end,” is only partly mandatorily negotiable. “This clause is mandatorily negotiable as a general statement of purpose. However, to the extent it could be interpreted to require the Board to refrain from assigning non-teaching duties incidental to a teacher's primary tasks, it is not mandatorily negotiable.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

10. Performing Non-Teaching Duties. The following union proposal was only partly mandatorily negotiable: “The District agrees personnel other than staff represented by the Association shall perform non-teaching duties including but not limited to milk distribution, supervision of cafeterias or lunch rooms, the collection and processing of lunch applications and money, and the completion of attendance registers and, to the extent possible, other non-instructional clerical duties.” “This provision is not mandatorily negotiable to the extent it restricts the Board’s right to assign staff to perform duties incidental to the teacher’s primary tasks, such as lunchroom supervision and related clerical duties as well completing attendance registers. However, it is mandatorily negotiable to the extent it prohibits the assignment of clerical duties to teachers that are not incidental to the teachers primary tasks.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

11. Hiring Lunchroom Monitors. A union proposal that required the school board to hire lunchroom monitors, gave hiring priority to local residents, determined the number to be hired, and detailed their responsibilities was not mandatorily negotiable. “It is well-settled that a District’s decision to employ or not employ aides is a managerial prerogative and not mandatorily negotiable. The Association acknowledges that the District’s decision whether or not to employ aides is not mandatorily negotiable, but asserts that the provision could be negotiable if reworded to make clear that the Board’s expresses an intent to hire aides. As written, however, the provision is not mandatorily negotiable.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

38

12. Employment Opportunities for Non-Bargaining Unit Employees. A union proposal mandating that, “Lunchroom aides will be given notice and opportunity to apply for other employment positions as they become available in the school or District,” was not mandatorily negotiable because “it pertains to lunchroom aides, who are not in the Association's negotiations unit. The Association may not negotiate terms and conditions of employment for employees not in its unit.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

13. Salaries for Promotions to Positions Out of the Bargaining Unit. A union proposal mandating that, “When a professional employee is promoted to a supervisory or administrative position, said employee shall, at the time of assuming said position, be placed on the appropriate step of the new salary guide which will result in an increase for the employee,” is not mandatorily negotiable. “A professional employee who is promoted to a supervisory or administrative position would not be in the Association's negotiations unit. The Association may not negotiate terms and conditions of employment for employees not in its unit.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

14. Responsibilities of Joint Committee on Employee Evaluation. A union proposal delineated the following responsibilities of a joint Association-District Committee on Employee Evaluation: (1) “Review the Professional Improvement Plan ("PIP") form, develop and explicitly communicate clear expectations about performance goals, observations, evaluations and PIP plans to the entire District”; (2) “Revise District-wide observations and evaluation forms based on job descriptions for teachers, instructional assistants, security officers, secretaries, and each other category of employees represented by the P.E.A. using those expectations and performance goals developed above as guidelines”; and (3) “develop and implement training for administrators after the evaluation forms are completed and before the forms are disseminated.” The first two items of this proposal were only partly mandatorily negotiable. “To the extent these provisions set forth that teachers will be informed about performance goals, observations, evaluations and PIP plans, they are mandatorily negotiable. To the extent they would allow the joint committee to determine performance goals, observations, evaluation forms or PIP plans, they are not mandatorily negotiable as they intrude upon the District's managerial prerogative to develop evaluation criteria.” The Commission also commented that an administrative regulation “provides that evaluation policies and procedures will be developed under the direction of the chief school administrator, in consultation with tenured teaching staff members. That regulation is not inconsistent with our negotiability determination.” The third item was permissive. “This provision is not mandatorily negotiable as it pertains to non-unit members.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

15. Removal of Personnel Records. A union proposal that permitted an arbitrator to require the removal of obsolete or otherwise inappropriate material from a teacher’s personnel file was not mandatorily negotiable. “such language was not mandatorily negotiable since it swept too broadly and granted a third party the power to expunge any personnel documents deemed obsolete or inappropriate.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

16. Availability of Teacher Editions of Textbooks. A union proposal that required the school to supply “[t]eacher editions, exclusively for each employee's use, of all texts used in each of the courses taught by the teacher” was not mandatorily negotiable. We have held that the provision of textbooks is a matter of educational policy. We have also held that the decision

39

whether a teacher should have a teacher’s edition of a textbook is also predominately one of educational policy. The Association asserts that teachers have been forced to expend their own funds for teacher's editions. Absent a factual record that would enable us to balance the parties respective interests, we will follow our precedent noting only that should a teacher’s edition of a textbook be required, the cost of that purchase would be mandatorily negotiable.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

17. Availability of Textbooks and Other Materials for Students. A union proposal that required the school to supply “Individual books for each student, paper, pencils, chalk, erasers and other such material required in daily teaching responsibility shall be available” was not mandatorily negotiable. “The determination as to what supplies are necessary to fulfill the District’s educational mission is a managerial prerogative. The Association asserts that teachers have been forced to expend their own funds for student supplies. While the cost of supplies teachers would be required to purchase may be mandatorily negotiable, this provision would encroach too greatly on the District’s managerial prerogative to determine which supplies are necessary to meet its educational objectives.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

18. Reporting Assaults. A union proposal required that, “Such notification [of cases of assault] shall be immediately forwarded to the immediate Supervisor and School District Counsel who shall comply with reasonable requests from the employee for information in the possession of the State District Superintendent relating to the incident or the persons involved, and shall act in appropriate ways as liaison between the employees, the police, and the courts.” The proposal was not mandatorily negotiable. “Employees may negotiate for a right to request information about assaults on them, subject to a district's right to deny requests that are unreasonable given concerns about the confidentiality of ongoing criminal proceedings or student records. However, this provision as written extends beyond a simple procedural right to request information and restricts the District from denying unreasonable requests. Moreover, this provision encroaches too greatly on the District’s policy determinations as to who interacts with the police and the courts in assault matters.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

19. Staffing School Nurses. A union proposal requiring that, “A school nurse shall be scheduled to be in each building,” was not mandatorily negotiable. “Requiring a school nurse in each building involves minimum staffing levels, a subject that is not mandatorily negotiable. While the Association argues that the number of assaults has risen and that the student population cannot be adequately serviced without having a school nurse scheduled in each building, a provision that intrudes upon the District’s managerial prerogative to determine minimum staffing levels is not negotiable.” Paterson City State-Operated School District, 35 NJPER ¶49 (NJ PERC 4/30/09).

C. Scheduling In-Service Training. The employer lawfully required firefighters who attended in-service training while on call to ensure that someone is covering them and that their superiors are notified of the covering individual. “[T]his requirement is not bargainable because it relates to the City’s legitimate need to have and its inherent right to ensure employee coverage and prompt response at all times. We believe such coverage is especially important in the work situation involved in this case, where the employees at issue are charged with protecting the safety and health of the community.” City of Bridgeport, Dec. No. 4363 (Conn. SBLR 2/5/09).

40

D. Working on Holidays. The employer lawfully required employees who are working on a holiday to report to work and to leave work at certain times. The Union unsuccessfully argued that this directive changed a past practice of allowing employees to report to work on a holiday, catch up on paperwork, and leave at Noon. “[T]he City was well within its rights as an employer to require that employees being paid for a full day’s work actually work the full day, even if that day happens to be a holiday. Article 9 of the contract clearly contemplates that employees who work a holiday actually work the entire shift. Moreover, employees working on a holiday are paid for twelve hours, even though Division employees only work seven and a half hours. The City’s requirement that an employee earn his or her compensation by working the expected hours, the explicit cornerstone of most employer-employee relationships, does not represent a change in a condition of employment.” City of Bridgeport, Dec. No. 4363 (Conn. SBLR 2/5/09).

E. Assignments.

1. Return-to-Work Program. The employer was not required to bargain over the decision to implement a return-to-work program for medically restricted firefighters. The State’s collective bargaining statute excluded “assignment of duties” from the definition of “employment relations” Drawing upon prior cases, the Board held that, “[T]he issue of limited-duty status is an assignment proposal and as such is permissive.” In one prior case, “a labor organization submitted a proposal . . . that required the employer to place bargaining unit members in limited-duty positions.” In the other case, “a union bargaining proposal that obligated the employer to put injured unit members in light-duty positions was permissive.” “The City’s return-to-work program concerns the same type of assignment to limited duty positions . . . .” However, “the City’s decision to implement a return-to-work program affects numerous working conditions that are mandatory subjects for negotiations, including salary, workload, promotional opportunities and job security.” Thus, the employer was obligated to bargain the impact of its decision.” City of Portland, Case No. UP-14-07 (Ore. ERB 3/26/09).

2. Light Duty Policy. A challenge to the employer’s modified light duty policy was not mandatorily negotiable regarding the establishment of the policy, but was mandatorily negotiable regarding the impact of the new policy upon working conditions. “[P]ublic employers have a non-negotiable, non-arbitrable prerogative to establish a modified duty policy. However, we have permitted arbitration over the impact of a modified duty policy on police officers when arbitration would not substantially limit governmental policy. Absent any showing that the impact issues raised by the Association are not legally arbitrable, we will permit arbitration over them.” City of Asbury Park, 35 NJPER ¶57 (NJ PERC 5/28/09).

3. Avoiding Overtime. A dispute regarding the employer’s decision to reassign corrections officers from their normal assignments to fill vacant posts rather than call-in qualified officers to perform those duties on an overtime basis is not mandatorily to the extent the grievance concerns temporary reassignments within a job classification and job description and does not involve a change in work hours. The employer established a new shift assignment called “Supplemental Relief Post” (SRP) to cut overtime costs by having a group of correction officers available to fill temporarily posts caused by leaves or other reasons. When an assignment required more training than the SRP possessed, an experienced, fully-trained officer was reassigned from his normal post (chosen through bidding ) and an SRP was assigned to the non-specialized post that the reassigned officer had been working. “[T]o the extent the . . . grievance involves situations where employees had their shifts changed to avoid the need to fill posts on an overtime basis, the grievance involves a mandatorily negotiable subject . . . . To the extent the . . . grievance involves only a change in assignment within a

41

shift to avoid overtime costs and to assign regularly scheduled correction officers to positions for which they are qualified, the subject of the grievance involves the managerial prerogative to assign duties within a shift and within a job description. . . . The employee’s interest in working the post he or she bid for is real, but to permit arbitration would unduly restrict the employer’s ability to assign duties to those best qualified to perform them within their regular work hours.” County of Union, 35 NJPER ¶130 (NJ PERC 10/29/09).

4. Seniority Bidding. A union proposal setting forth a seniority bidding procedure and timetable was not mandatorily negotiable. The proposal excluded certain specific positions and percentages of posts and also allowed the Sheriff to contest an awarded bid for just cause, but also provided that “shifts/days will be made by seniority in a unit where possible.” The Commission held that, “Public employers and majority representatives may agree that seniority can be a factor in shift selection where all qualifications are equal and managerial prerogatives are not otherwise compromised. By naming certain positions and percentages of other positions that are not subject to bidding, the proposal would arguably limit the employer to the listed exclusions. And by specifying that seniority will apply where possible and by requiring the employer to demonstrate ‘just cause’ before deviating from the bidding procedure, the proposal would significantly interfere with the employer’s prerogative to deviate from seniority bidding because of special skills or training needs.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

5. Priority Assignments. A union proposal requiring bargaining unit County Sheriff’s officers to be assigned all County funded work and work on County roads, property, facilities and at County functions that require or utilize the services of uniformed law enforcement officers before using any the services from any other law enforcement officers was mandatorily negotiable. “This is more than a provision that protects negotiations unit work. It would significantly interfere with the County’s ability to assign work based on employee qualifications. It could also permit unit employees to acquire work for this negotiations unit that may historically have been performed by other negotiations units. . . . [T]he PBA seeks work that may have been regularly performed by County employees not jointly owned by the Sheriff. In addition, . . . a police department is not required to assign off-duty law enforcement personnel to the types of projects addressed . . . in order to provide overtime opportunities, where it decides than an on-duty officer shall be assigned.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

6. Replacement Procedure. An employer policy permitting the senior sergeant on duty to serve as the Watch Commander rather than call in a lieutenant on an overtime basis to fill the post involved an exercise of the employer’s managerial prerogative to determine rank qualifications for the Watch Commander position. For many years the Watch Commander position had been filled in the first instance by an on-duty lieutenant and then to a sergeant (at acting lieutenant’s pay) if no lieutenant was available. The employer’s policy cited operational flexibility, maximizing first-line supervision, and ensuring the efficient operation of the department. The employer contended that limiting the Watch Commander post to lieutenants would require an unnecessary increase in staffing levels at a time when there had been a reduction in the number of lieutenants. The Commission held that, “The Township has a prerogative to determine the qualifications required for the Watch Commander post. Here, the Township has determined that both lieutenants and sergeants are qualified to serve as Watch Commander. The decision comes within its managerial prerogative to decide which officers are qualified to perform which duties. . . . [T]he Township has a managerial prerogative to assign sergeants to the Watch Commander position and cannot be required to negotiate over a

42

provision that would require it to assign lieutenants in the first instance.” However, “an agreement to require the use of indisputably qualified lieutenants in the first instance would be permissively negotiable.” The employer’s reasons for the change “are abstract and do not indicate the substantial limitation on the government’s policymaking powers that would require invalidating an agreement to bring in lieutenants on overtime to fill a vacant Watch Commander position. Thus, the PBA may arbitrate its claim that the Township is contractually required to first try to use lieutenants to fill a vacant Watch Commander post.” Finally, requiring sergeants who perform the Watch Commander duty to receive acting lieutenant pay is mandatorily negotiable. “[A] union can negotiate acting pay for police officers who are performing the duties of a higher rank or for particular duties, even if those duties are not of a higher rank.” Township of Edison, Docket No. SN-2009-042, PERC No. 2010-39 (NJ PERC 11/24/09).

7. Reasons for Refusal to Reassign. The employer’s reasons for refusing to grant an employee’s reassignment request (i.e., because the employee prevailed on a previous discipline grievance) was not mandatorily negotiable. A finding “that the County had applied a different standard in considering the requested reassignment . . . . does not involve a legally arbitrable subject. The criteria for a reassignment decision involve the exercise of a managerial prerogative. Challenges to the exercise of that prerogative are not legally arbitrable. Nor does a claim that a reassignment was discriminatory transform a non-negotiable reassignment decision into a negotiable and arbitrable one. A claim that the decision to deny the reassignment request was in retaliation for filing a grievance may be litigated in an unfair practice proceeding.” County of Hudson, 35 NJPER ¶78 (NJ PERC 6/25/09).

F. Vehicle Usage. The employer lawfully directed employees who used department vehicles to pick up their vehicle during work time and drop it off during work time, required employees to leave the keys in the office (thus requiring the employees to report to the office before picking up the vehicle), and advised employees that no overtime would be paid if employees picked up their vehicles late or dropped them off early. “Assigning work is a management right; as such the City was not required to negotiate this change.” City of Bridgeport, Dec. No. 4363 (Conn. SBLR 2/5/09).

G. Determining Fire Companies. The employer lawfully issued a policy, declaring that the Fire Chief, rather than the Fire Commission, would determine companies. “[D]etermining organizational structure is an inherent management right.” City of Bridgeport, Dec. No. 4376 (Conn. SBLR 3/19/09).

H. Staffing.

1. Minimum Firefighter Staffing. The employer did not have a duty to bargain over the fiscally-motivated (i.e., reducing overtime) decision to reduce the minimum shift size from seven firefighters to six firefighters because that decision “is primarily related to the City’s management and public policy judgments as to fiscal and service level choices and not to firefighter safety.” “[T]he City does not have an obligation to bargain over the fiscal/service level choices it makes unless the impact of those choices on employee safety predominates over the City’s interest in making those fiscal/service level choices. . . . [T]his shift size reduction is primarily related to the City’s fiscal/service level choices.”

Attempting to establish a safety concern, the Union unsuccessfully invoked a Department of Commerce administrative regulation establishing a minimum staffing level (five firefighters,

43

unless human life was in danger) that must be present before the fire is internally attacked and the National Fire Protection Association (NFPA) standards regarding the minimum number of firefighters (four) who must arrive together on a single apparatus in response to a structural fire. There were no instances in the previous five years where human life was in danger and the minimum staffing level under the administrative regulation would not have been met. Although there would have been instances in the past where the NFPA standards would not have satisfied under the new minimum staffing, “the small size of the Department and the cross training received by employees substantially limits any loss of cohesion caused by arrival of multiple units.” Based upon a statistical analysis, there would be only one structural fire per year at which the number of available responding firefighters would be reduced by the six-person minimum shift staffing.

In challenging the legitimacy of the employer’s interests, the Union unsuccessfully argued that “the fiscal trigger for the City’s action diminishes the strength of the City interests that are to be balanced against employee safety impacts . . . .” Rather, “economically motivated layoffs of public employees resulting from budgetary restraints is a matter primarily related to the exercise of municipal powers and responsibilities and the integrity of the political process of municipal government. The citizens of a community have a vital interest in the continued fiscally responsible operation of its municipal services. . . . [T]here is an inevitable link between reduction in staffing and a reduction in the level of service. Further, . . . the fiscal trigger for a reduction in service in no way diminishes the weight of the municipal employer’s interests. Indeed, . . . fiscally motivated decisions to reduce service are permissive subjects of bargaining – even where jobs are lost.” City of South Milwaukee, Dec. No. 32059-A (Wis. ERC 7/15/09).

2. Overtime/Call-In/Court Time (Officer in Charge). A union proposal required that: (1) a department assignment of more than four Sheriff’s officers must have a supervisory officer assigned; (2) a supervisory officer unavailable for more than a two-hour period must be replaced with another supervisory officer, or if one was unavailable, by the most senior or, in special situations, the most qualified Officer; and (3) the Officer in Charge receive one additional hour of overtime for each hour or portion of an hour assigned as an Officer in Charge. The first item was not mandatorily negotiable because it established “a staffing threshold for the assignment of an OIC. It is not sufficiently linked to employee safety to warrant mandatory negotiations.” The second item also was not mandatorily negotiable because “[i]t requires the assignment of a superior officer or the elevation of another officer to be officer in charge. Management has a prerogative to decide whether to replace an absent supervisor.” The third item was mandatorily negotiable “as they relate to rates of pay for work in a higher pay category.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

3. Minimum Staff for Trades Employees. A provision in an expired labor contract, entitled “Health and Safety,” which required that, “Except where an exceptional emergency exists, for the purposes of furthering the safety of the employees, at least two employees shall be assigned for . . . salting and plowing,” was not mandatorily negotiable. When the parties negotiated the clause, the snow plow truck controls were on the passenger side, making it necessary to assign two people to operate the vehicle. Since then, all but two trucks had been modified so that controls for the operation of the truck and the plow were next to the driver. “The Township has a managerial prerogative to determine its staffing levels. The clause at issue requires the employer to assign two employees to the operation of salt and plow trucks, to do any street work where danger exists, and in other instances when the Township would normally call in

44

two employees for overtime work. We appreciate the Union’s safety concerns, but they would have to be addressed through other means besides a contractual clause determining how many employees will be used to operate a vehicle or assigned to a job.” Township of Maplewood, 35 NJPER ¶32 (NJ PERC 3/26/09).

45

I. Restrictions on Internet Use/Electronic Communications. The employer lawfully implemented several revisions to its electronic communications policy in response to growing concerns over how employer-provided computers were being used by employees. The original electronic communications policy had been implemented in 1999 without any bargaining with the union. The employer revised this policy in 2007, resulting in the union’s challenge. Many of the changes were permissible because they did not represent a change from the 1999 policy; rather, the employer only updated existing personnel rules to reflect technology changes. Three changes, however, did implicate whether a mandatory or permissive subject was implicated. Two changes involved management rights: (1) prohibiting the use of any type of file removal/deletion program without assistance and approval of authorized employer representatives; and (2) prohibiting hacking. Noting that access to file deletion programs had increased significantly between 1999 and 2007, the Board held that, “In order to carry out its statutory mandates and goals, the State has the right and the obligation to seek to protect its computer systems from being damaged and its computer files from being destroyed. In so doing, it is permissible for the State to prohibit employees from using a file deletion/removal program without assistance and approval of agency administrators so that potential damage to computers and agency files is avoided. . . . Preserving the integrity of its computer systems and data that go to the core of State operations and services is a management right that does not have to be bargained. The prohibition against hacking was a management right for the same reason. “A state agency has the right to protect unauthorized access to its computers, computer networks, databases, data, or electronically stored information. In order to carry out its statutory mandate and goals, it is permissible for the State to prohibit employees from engaging in such conduct.” However, the third revision – prohibiting employees from developing or maintaining a personal web page on or from a State device, and using peer-to-peer networks (e.g., Napster, Kazaa) – was mandatorily bargainable. The revision goes well beyond the 1999 policy, because “[a]n employee apparently now would commit a per se violation of the revised policy, and be subject to possible discipline, for updating or adding text to a personal web page on his or her own time from a State computer. This is so even though such actions may result in no greater burden on the state resources than other limited personal use of electronic communications systems by employees which is permitted. Under the 1999 policy, it is evident that such conduct would be assessed on a case by case basis to determine whether it was ‘authorized personal use’ of a State computer, rather than constitute a per se violation. The State and VSEA could have negotiated reasonable standards to clearly reflect the differences in burden on State resources resulting from developing and maintaining a personal web page.” State of Vermont (Re; Electronic Communications Policy), Docket No. 08-11 (Vt. LRB 7/15/09).

J. Changing Health Benefits Carriers. The employer was not enjoined from switching carriers that resulting in a reduction in benefit levels for bargaining unit employees, where the employer established a fund to reimburse employees for the differences in coverage between the old and new plans. “In cases where a change of carriers has resulted in a change in benefit levels, the Commission has not regularly restrained employers from making the carrier change, but has most often required employers to create a fund to reimburse employees for any differences in their benefit levels. Orders requiring such funds have been issued to ensure compliance even when employers have recognized their obligation and volunteered to create funds or procedures for reimbursement.” Thus, while the Commission ordered the employer to continued to maintain the reimbursement fund until it had completed negotiations over the change in carriers and benefit levels, it declined to enjoin the employer from changing carriers pending those negotiations. Borough of Lodi, 35 NJPER ¶12 (NJ PERC 2/17/09).

46

K. Promotions.

1. Politically-Motivated Decision. A dispute regarding an employer’s alleged politically-motivated refusal to hire an individual for the position of mason/carpenter was not mandatorily negotiable or legally arbitrable. The union alleged that the employee was denied the promotion in favor of another employee “because of the other employee’s personal and political relationship with the Chairman of the Authority’s Board of Commissioners. The Chairman is allegedly a powerful political official and the promoted employee is allegedly a supporter of the Chairman.” The union claimed that the denial of the promotion was an unconstitutional violation of the employee’s First Amendment rights. In holding that an arbitration award in favor of the union should be vacated, the Commission held that, “The Authority has a managerial prerogative to promote the candidate it believes is best qualified for a promotional position. Challenges to the exercise of that prerogative are not legally arbitrable. Nor does a claim that a promotion decision was unconstitutionally motivated transform a non-negotiable promotion decision into a negotiable and arbitrable one. A claim that the decision to deny the promotion was politically motivated must be litigated in a court of competent jurisdiction, not arbitration.” Ocean County Utilities Authority, 35 NJPER ¶100 (NJ PERC 8/13/09).

2. Changing Attendance Requirements. The employer lawfully changed the promotional criteria by considering an employee’s attendance record over a one-year period rather than the previous practice of considering the attendance record over a three-year period. Previously, the attendance criteria for admission to the promotional examination required an absence record not exceeding four occasions or twelve days of absence per year over a three year period. The employer changed the attendance requirements to an attendance record not exceeding four occasions and/or twelve days of absence within twelve months of the filing deadline for the examination. “[S]tandards for promotion are not mandatory subjects of negotiation . . . . The record before us demonstrates that it is the change in the attendance criteria, a non-mandatory subject of negotiations, which is at issue in this matter. While the Charging Party contends that there are procedural implications in the Port Authority’s decision to change the attendance criteria . . . , we find no evidence in this record to support a claim that the Port Authority made a unilateral change in any procedural provision of the parties’ Memorandum of Agreement.” Port Authority of New York and New Jersey, 42 NYPER (LRP) ¶8003 (Pt. Auth. ERP 7/15/09).

3. Advancement to Higher-Paying Position with Similar Duties. A dispute regarding an employer’s refusal to promote a detective to the position of “Detective First Grade” is not mandatorily negotiable to a limited extent. The labor contract mandated that a Detective Second Grade “shall be automatically appointed to the position of Detective First Grade” after: (a) completing one year of satisfactory performance; (b) receiving the recommendation of the Chief of Police; and (c) completing two satisfactory evaluations by the Detective's Commanding Officer and a satisfactory evaluation by the Chief of Police. The employee in question had satisfied all of the prerequisites, but his elevation was denied by the Chief’s superiors. Although the elevation resulted in increased compensation, they were considered comparable on the organizational chart. “Both the Chief and the governing body have a managerial prerogative to decide whether to make these types of personnel decisions. Whether viewed as an assignment or a promotion, elevation to detective involves a public employer’s non-negotiable prerogative to match the best qualified employees to particular jobs. . . . [A]dvancement to a higher paying position involves the exercise of a managerial prerogative, even if the two positions have the same duties . . . . The dispute was not mandatorily negotiable “to the extent the unions claim that the Township violated the parties contracts by not placing

47

the detective in the position of Detective First Grade.” However, the dispute was mandatorily negotiable “to the extent the unions claim that the Township changed promotion/ assignment criteria without notice.” “Procedures associated with assignment and promotion are negotiable. They may include notice of changes in assignment or promotional criteria.” The Commission commented that, “We will not speculate about what remedies might or might not be lawful if a violation is proved.” Township of Barnegat, 35 NJPER ¶19 (NJ PERC 2/26/09).

L. Medical Exam to Substantiate Sick Leave Use. A dispute over whether the employer changed the sick leave verification procedures by requiring an employee to be examined by an employer-selected physician to substantiate his purported illness was not mandatorily negotiable. The employee, who had been absent for over three months had submitted conflicting information regarding whether he would be returning to work, and the employee’s doctor was not able to provide a clear anticipated return-to-work date. “[While] an employer has a prerogative to establish a sick leave verification policy and to use “reasonable means to verify employee illness or disability,” the issue “of whether a policy had been properly applied to deny sick leave benefits” is mandatorily negotiable. “[A]n employer has a prerogative to require employees on sick leave to produce doctors notes verifying their sickness. . . . [T]he Borough has a managerial prerogative to require the grievant to undergo a medical evaluation arranged by the Borough to verify the bona fides of his claim of illness. . . . In the face of unclear documentation, it would substantially limit governmental policy if the Borough could not reasonably exercise its right to verify a sick leave claim by requiring the sergeant to undergo a Borough-arranged medical evaluation.” Borough of Waldwick, 34 NJPER ¶135 (NJ PERC 2/11/09).

M. Discontinuing Dues Deductions After Contract Expiration. The employer lawfully stopped collecting union membership dues in the middle of negotiations and before the parties had reached impasse. “The law is well-settled that . . . a public employer has a duty to bargain in good faith over mandatory subjects as wages, hours, and other terms and conditions of employment and may not take unilateral action on mandatory subjects prior to reaching an impasse in negotiations. The issue of dues deduction, however, is treated differently and is a firmly established exception to this rule. . . . [A]n employer may legally discontinue dues deductions after the expiration of the collective bargaining agreement, whether or not the parties are at an impasse.” City of Detroit, 22 MPER ¶41 (Mich. ERC 4/23/09).

N. Layoffs.

The employer’s decision to layoff 18 firefighters and implement “rolling closures” of three fire stations for economic reasons was not mandatorily bargainable, but the impact of those decisions upon working conditions was bargainable (which the union waived, by requesting bargaining only over the layoff decision). The court upheld the PERB’s dismissal of an unfair labor practice charge that challenged the layoffs. The union’s attempt to recast the employer’s action as one involving a reduction in staffing levels and a corresponding adverse impact upon safety was rejected. “[R]echaracterizing a layoff decision as one that merely impacts shift staffing levels does not transform the decision into a mandatory subject of collective bargaining. . . . “[A] public agency’s decision to terminate employees, based on lack of sufficient funds to support their continued employment is a fundamental managerial concern which requires that such decisions be left to the employer’s prerogative.” The court distinguished between transfers of work to a non-bargaining unit from a decision to lay off employees due to budget constraints. “It is well established that layoffs are subject to collective bargaining when they result from transferring work to subcontractors or employees outside the bargaining unit. Here, the layoffs did not result from a transfer of firefighting work to an entity other than the City's fire department. Instead, the City

48

chose to reduce the total number of firefighters.” The court also distinguished between a “constant manning procedure” (where the decision itself is bargainable if it involves workload and safety) and a “personnel reduction” plan (where only the effects of the decision are bargainable). “[I]if we were to accept [the union’s] argument that workload and safety concerns associated with staffing levels dictate whether a layoff decision is negotiable, a layoff decision would almost always be subject to collective bargaining or, at a minimum, a public entity’s refusal to bargain would compel the issuance of an unfair practice complaint by PERB that could only be resolved following a factual determination whether the layoff primarily involved the workload and safety of the remaining employees. Focusing on staffing levels would entirely undermine the rule that layoffs are not subject to negotiation. Rather, the focus should be on the layoffs and not the consequent reduction in the number of firefighters on duty per shift. When shift staffing levels are reduced following layoffs motivated by economic concerns, it goes without saying that the decision primarily concerns issues within the managerial prerogative of the public entity.” Finally, the court distinguished between “shift staffing levels” (the number of personnel assigned to each engine or other piece of equipment) and “equipment staffing levels” (the number of firefighters on duty throughout the City at any one time). The union asserted only a change to shift staffing levels. “This distinction is important because a change in the number of personnel assigned to each engine or truck presumably has a much greater impact on workload and safety than the number of firefighters on duty throughout the City.” IAFF, Local 188 v. Cal. PERB, 172 Cal. App. 4th 265, 91 Cal. Rptr. 3d 551 (Cal. App. 2009), review granted, 211 P.3d 1062; 97 Cal. Rptr. 3d 273 (Cal. 2009).

The employer lawfully implemented budget-related layoffs across several bargaining units shortly after negotiating contractual layoff off provisions with the affected unions that permitted the layoffs. “[I]t is apparent that this case is, at its core, an attempt by the Unions to collaterally attack Respondent’s decision to reduce the size of its work force for purposes of managing its budget. [A] public employer has an inherent right to determine the size of its work force and to reduce its work force. . . . [T]he decision to reduce the work force for economic reasons goes to the very essence or heart of an employer's ability to operate. It is well-settled that an employer’s decision to reduce the size of its work force or reorganize positions within a bargaining unit is within the scope of managerial prerogative and is not a mandatory subject of bargaining.” Although the employer was obligated to engage in impact bargaining upon request from the unions, there was no evidence that the unions made such a request. Moreover, the employer did not breach its duty to bargain in good faith when it announced the layoffs shortly after negotiating contractual layoff provisions with some of the affected unions where those contracts previously had no-layoff provisions. “[T]he Board has refused to find a violation of the Act absent evidence that the employer made a final and fixed determination to take action adverse to employee interests and failed to disclose that decision so as to deter the Union from bargaining over the effect of that action on employees. . . . For the Unions to now argue that they were surprised when management exercised its rights under those provisions is disingenuous at best. A party who presumes that language to which it voluntarily agrees at the bargaining table will not be invoked during the term of the agreement does so at its own peril. There is nothing in the record to suggest that Respondent made any false representations to Charging Parties during negotiations concerning either its financial situation or the possibility of layoffs, nor is there any evidence that the school district had made any final decision to implement layoffs at the time it entered into [the] agreements . . . .” Finally, the employer did not engage in direct dealing when it informed bargaining unit employees of the budget deficit that prompted the layoffs. “A union fails to meet its burden of proof of direct dealing where the employer communicates with employees for the purpose of providing information relating to planned or actual changes in operations or procedures, the employees are

49

offered nothing and are not requested to make an agreement.” Pontiac School District, 22 MPER ¶51 (Mich. ERC 5/29/09)(aff’d w/o exceptions).

O. Tape Recording.

1. Consensual Tape Recording of Investigatory Interviews. The employer’s intermittent practice of tape recording investigatory interviews with the interviewee’s consent was lawful. The union unsuccessfully argued that the tape recordings were contrary to past practice. “[T]he tape recording of investigatory interviews is likely a non-mandatory subject of bargaining that cannot be implemented without mutual agreement of the parties. Regardless, the record in this case does not indicate that the parties’ practice was that investigatory interviews were not taped, or that Respondent commenced tape recording investigatory interviews with . . . cases [at issue]. Instead, the evidence demonstrates that Respondent had intermittently taped investigatory interviews at least since mid-2006, and had done so only with the consent of the interviewee. In the future, to halt the tape recording of investigatory interviews, Charging Party need only make plain that it will not assent to it.” Illinois State Toll Highway Authority, 25 PERI ¶76 (Ill. LPSP 6/22/09).

2. Surreptitious Recording by Employees. The employer lawfully implemented a work rule prohibiting employees from using any recording devices while on duty. “We recognize that employees have an interest in being able to record hostile or illegal statements by supervisors and co-employees and that such recordings have provided evidentiary support for discrimination claims. . . . We agree with the employer that surreptitious recording could chill communication between employees and that supervisors and co-employees may fear that statements they make could be used against them at some future date. On balance, we believe that on this record, the employer's interest in establishing a policy banning surreptitious recording outweighs the employees interest in recording hostile or illegal statements by supervisors and co-employees. The Regional has identified specific concerns and points to a particular case where surreptitious recording adversely affected department operations. The Association has identified only speculative interests. A lack of employee complaints to the Association about recording is not dispositive.” North Hudson Regional Fire & Rescue, 35 NJPER ¶96 (NJ PERC 8/13/09).

P. Unredacted Copies of Complaints. The employer lawfully adopted without bargaining amendments to its Municipal Code to provide the Office of Professional Accountability Review Board (which reviews citizen complaints about police conduct, but does not have the authority to discipline any employee or recommend that any employee be disciplined) with un-redacted copies of closed complaints as part of that entity’s review process and strengthened that Board’s confidentiality obligations. The OPARB reviewed closed investigatory files and the employer redacted indentifying information, including the name of the officer who is the subject of the complaint and any witnesses. The process of redacting the closed investigatory files was labor intensive and often caused delays in providing the files to the OPARB. In addition, the OPARB found the redacted files unintelligible and difficult to read. The employer implemented the change to provide unredacted copies after the union rejected such changes through bargaining. The same legislative enactment also clarified that OPARB board members were obligated to keep confidential information contained within the investigatory files and that the employer would hold OPARB members’ harmless only for those actions taken in conformance with members official duties. The limitations on the OPARB’s authority were unchanged. Reversing the Hearing Examiner, the Commissioner held that, “conclusions that providing the OPARB with un-redacted files will impact the terms and conditions of employment are based upon the union’s speculation

50

of what could occur, not what actually has occurred. Under the facts of this case, the union’s speculation does not transform the subject matter of the . . . amendment into a mandatory subject of bargaining because the OPARB’s authority is still limited by ordinance.” In addition, “[a]lthough the union asserts that the employer could simply change the names in the OPA files to protect employee confidentiality, this assertion nevertheless fails to demonstrate how providing un-redacted files to the OPARB impacts the terms and conditions of employment. In fact, a union witness testified that he could not think of an instance where the OPARB either interfered with an OPA investigation or attempted to interject itself into the disciplinary process.” City of Seattle, Dec Nos. 9957-A-PECB, 9958-A-PECB (Wash. PERC 10/6/09).

Q. Retiree Health Benefits. The employer lawfully altered the health benefits provided to current retirees under the current labor contract (which provided retirees with similar benefits to current bargaining unit members). “Individuals who have already retired from their public employment are not employees within the definition of PERA or members of the union’s bargaining unit. An employer has no duty to bargain over the concerns of third parties unless these concerns vitally affect the terms and conditions of employment of bargaining unit members. . . . [T]he future retirement benefits of active workers are part of their overall compensation, and . . . both the level of future benefits and provisions to protect them against future contingencies [are] mandatory subjects of bargaining. . . . [H]owever, . . . the health insurance benefits paid to already retired individuals [is] not a mandatory subject because their effect on active employees’ retirement plans was too speculative a foundation on which to base an obligation to bargain. . . . The changes made by the Respondent in this case in January 2009 did not affect the future health insurance benefits of any individual actively employed at that time.” City of St. Clair Shores, 22 MPER ¶50 (Mich ERC 5/29/09)(aff’g ALJ w/o exceptions).

R. Scheduling.

1. Training Time. A union proposal allowing sheriff’s officers to use one hour of their regularly scheduled workday to engage in physical fitness training was not mandatorily negotiable. “As written, the proposal does not clearly provide that such activity would occur only on breaks. Employers of law enforcement personnel may unilaterally set physical fitness requirements and standards that personnel must satisfy. But it is not obligated to negotiate that officers’ training to meet those requirements occur during the normal work day in lieu of other assigned duties. A public employer may decide that it is beneficial to devote part of the work day to such training, but it cannot be required to do so. However, . . . seeking release time to conduct physical training to prepare for law enforcement fitness tests would be mandatorily negotiable.” County of Monmouth (Sheriff), 35 NJPER ¶132 (NJ PERC 10/29/09).

S. Waiver of Bargaining Rights. The employer unlawfully insisted to impasse, and then unilaterally implemented, management rights and salary proposals the effectively required the union to waive its bargaining rights. The management rights proposal gave the employer “the exclusive right and authority to determine work schedules, schedule employees overtime work and overtime pay, promote and demote employees, compensate employees, discipline employees, and transfer employees.” This language was similar to language that had been found in a prior decision to be illegal. The Commission rejected the employer argument that the management rights article contains no unlawful waivers because it does not contain the words unilateral or unilaterally. “However, the article contains phrases such as exclusive right, exclusively reserved and complete authority to exercise those rights and powers which are incidental to the rights and powers enumerated above. . . . [T]he relevant language is similar to that found to be illegal . . . .” The salaries article waived the union’s right to bargain over wages because the city would

51

unilaterally provide bargaining unit members with the same percentage increase as that given to other employees. City of Winter Park, 35 FPER (LRP) ¶43 (Fla. PERC 2/27/09).

T. Disciplinary Transfers. A challenge to the employer’s substantive decision to transfer a sergeant for disciplinary reasons was not mandatorily negotiable or legally arbitrable. The sergeant was transferred after he sent an e-mail to the Troop Administration mailbox that the employer characterized as an “inappropriate, unprofessional and disparaging manner.” The Administration mailbox is a group e-mail box shared by several enlisted members and civilian personnel. The e-mail was sent in response to an e-mail from the Administration Office, forwarding two Field Operations Section memoranda to All Regional Commands, Stations, Offices and Unit Supervisors. “We restrain arbitration over the substantive decision to transfer the grievant. That issue is not legally arbitrable. Procedural claims may be submitted to binding arbitration, but the Association has not identified any specific procedural issues in either its grievance, demand for arbitration, or brief.” New Jersey State Police, 35 NJPER ¶80 (NJ PERC 6/25/09).

U. Police Uniform Anti-Adornment Policy. The employer lawfully issued a policy providing that “[n]o team designation, merit award, commemorative or affiliation pins shall be worn on the uniform of the day” for police officers. The policy was issued after a prior Board decision that the employer had unlawfully prohibited a police officer from wearing a union pin due, in part, to the lack of a comprehensive and neutral uniform anti-adornment policy. The Board held that “[t]his order does not mean that the City will be precluded from banning NEPBA pins in the future if the City adopts a comprehensive and neutral anti-adornment uniform policy consistent with the standards discussed in this decision.” The policy did not involve a mandatory bargaining subject. “The board does not consider a public employee’s uniform in a paramilitary organization . . . to be a mandatory subject of bargaining. The uniform of a law enforcement officer qualifies as a matter of “managerial policy within the exclusive prerogative of the public employer.” Such matters include the “functions, programs and methods of the public employer, including…the selection, direction and number of its personnel…” In law enforcement, the uniform is directly related to these matters which are within the employer’s exclusive prerogative. The subject is, however, a permissive subject of bargaining, but there is insufficient evidence that the Commission has bargained the uniform in the past and therefore is required to bargain any changes to the uniform policy. There is also insufficient evidence that they have expressly agreed to bargain the changes to the uniform policy.” Portsmouth Police Commission, Dec. No. 2009-081 (NH PELRB 4/20/09).

V. Evaluations vs. Discipline.

1. Performance Improvement Plan. The employer’s decision to issue a performance improvement plan to a patrol officer was not mandatorily negotiable. The employee issued the PIP because the police officer consistently received low grades on his semi-annual evaluations concerning traffic enforcement issues. The union unsuccessfully argued that the PIP was a reprimand that could be challenged as minor discipline. “An employer has a non-negotiable right to select the criteria for evaluating its employees. In particular, a law enforcement agency has a managerial prerogative to use a traffic enforcement index as an evaluation criterion or a traffic enforcement standard. However, if an employer issues a reprimand to an employee for failing to meet performance criteria, that reprimand may be challenged in binding arbitration. . . . We realize that there may not always be a precise demarcation between that which predominantly involves a reprimand and is therefore disciplinary . . . and that which pertains to the [employer]’s managerial prerogative to observe and evaluate [employee] and is therefore non-negotiable. We cannot be blind to the reality that a ‘reprimand’ may involve combinations

52

of an evaluation of teaching performance and a disciplinary sanction; and we recognize that under the circumstances of a particular case what appears on its face to be a reprimand may predominantly be an evaluation and vice-versa. . . . While we will not be bound by the label placed on the action taken, the context is relevant. Therefore, we will presume the substantive comments of an evaluation relating to . . . performance are not disciplinary, but that statements or actions which are not designed to enhance . . . performance are disciplinary. . . . [T]he counseling session and PIP were not designed to criticize [the employee] for past conduct, but to notify him of performance deficiencies and give him a PIP that specifies that he must endeavor to increase his selective enforcements and motor vehicle stops. The PIP also notifies him that failure to improve will be noted in his next Performance Evaluation and may subject him to future disciplinary action. But the PIP itself neither notes a failure to improve nor imposes discipline.” Township of Plainsboro, 34 NJPER ¶123 (NJ PERC 11/25/08).

2. Counseling Sessions and Notices. Similarly, the conducting of counseling sessions of police officers by supervisors and the issuing of counseling notices was not mandatorily negotiable, because neither constituted discipline. “[S]uperior officers conducted individual counseling sessions with all patrol officers under their command. Each squad supervisor was given discretion to determine acceptable performance and productivity levels within his or her squad, and flexibility to conduct the counseling sessions accordingly. Officers with identified performance deficiencies would be counseled as to what areas needed improvement and provided with guidance on how to improve their performance. Officers who were counseled on improving their performance were afforded time to do so. Upon conclusion of the counseling, each officer was issued a Performance Notice documenting what was discussed in the counseling session. The type of counseling that was provided to each officer was listed at the top of the Notice. Squad supervisors would identify the nature of the counseling as “Recognition,” “Counseling,” or “Appraisal Interview.” Supervisors had the discretion to check more than one category. Discipline was not identified as a goal or a consequence of the counseling sessions. Many of the Notices reminded officers that productivity would be monitored in the future. The Performance Notices were placed in the employees personnel files and may be considered in assessing qualifications for future promotion.” Applying the same criteria and analysis as above in determining whether the counseling activities were evaluative and not disciplinary, the Commission concluded that, “[T]he counseling sessions and Performance Reports were not designed to penalize officers for past conduct, but to notify them of performance deficiencies and to remind them to be more diligent in certain areas in the future. . . . [T]he Notices neither note a failure to improve nor impose discipline. Thus, the Notices are not reprimands and thus may not be challenged as unjust minor discipline in binding arbitration. The fact that these evaluative documents may be used in future promotional decisions does not alter our analysis. Evaluations are often used for that purpose.” However, the Commission also held that a claim that officers were not notified of the acceptable levels of productivity was mandatorily negotiable. “An agreement to provide notice of evaluation criteria is procedural and would not substantially limit the Township's policymaking powers.” Township of Edison, 35 NJPER ¶51 (NJ PERC 4/30/09).

W. Restrictions on Employee Parking. The employer lawfully prohibited certain members of faculty and staff from parking in newly built parking structures because the decision to restrict faculty and staff access to student parking lots didn't fall within the scope of representation. The employer and unions have historically negotiated the cost of faculty parking, but not the specific locations where they were permitted to park. Parking locations changed frequently. Before the change, the employer had been granting the faculty and staff permission to park in both faculty and staff lots, as well as student lots. Students did not have a reciprocal access. Because additional

53

parking was needed, the employer concluded that parking rates needed to be increase. The employer was unable to negotiate an increase for the unionized employees, so it increased parking rates only for non-unionized employees and students. When the new parking facilities were constructed, unionized employees were denied access. The Commission held that the employer’s decision “to restrict faculty and staff access to student parking lots is not within the scope of representation. Specifically, based on the past conduct of the parties, we find the subject of parking access is not of such concern to management and employees that conflict is likely to occur. In addition, because students compete directly with the faculty and staff for a limited number of parking spaces, we find the mediatory influence of collective negotiations is not the appropriate means of resolving such conflicts on CSU campuses. We also find obligating CSU to negotiate this subject would significantly abridge its freedom to exercise those managerial prerogatives essential to the achievement of its mission.” Trustees of California State University, 33 PERC ¶73 (Cal. PERC 4/15/09).

X. Closing Fire Stations. The employer’s decision to close a fire station was within its managerial prerogative. The union unsuccessfully argued that: (1) the decision should have been submitted to binding interest arbitration under the State’s collective bargaining law; and (2) the closing raises safety concerns. The court rejected the first argument because the statute requires arbitration only on matters dealing with “wages and hours.” “The Town and the Union should negotiate on working conditions. Failing to reach an accord, however, the parties are not compelled to submit unresolved issues regarding matters other than wages and hours to interest arbitration, particularly where such decisions would interfere with management prerogatives. The arbitrators may consider certain factors related to the terms and conditions of employment in resolving wage and hour disputes, but only wage and hour disputes are mandatory subjects of interest arbitration under the FAA. In the end, it is management who must make the critical, operational decisions characteristic of any organization with a quasi-military hierarchy.” The court rejected the second argument because “the Union never established a threat to firefighter safety or to public safety. Rather, the evidence established that the Town has one of the fastest response times in the area, and will continue to have a prompt response time, consistent with national standards. Here, the issue is not even a decrease in the number of employees, but just a decrease in the number of fire stations.” The court held that, “The decision to close a fire station to make more profitable use of the station facility and thereby achieve economic savings is fundamental to the basic direction of the enterprise. Disposing of or repurposing the Fire Department’s property is an executive-level decision at the “core of entrepreneurial control.” It is a managerial decision about how to deploy the Fire Department’s resources in the most efficient manner that has minor, incidental effects on the terms and conditions of firefighter employment. The Town’s decision was based on considerations relating to the essence of the firefighting mission, not on a desire to eliminate firefighter jobs. No firefighters will lose their jobs as a result of Station 3’s closing. The Town's motives, related to the overall direction of the enterprise, further militate against submitting the unresolved issues in question to arbitration.” Local 2334 of International Association of Firefighters v. Town of North Providence, 2009 R.I. Super. LEXIS 159 (R.I. Super. 12/31/09).

Y. Bargaining Unit Composition. The long-standing rule in Ohio is that adjustments or alterations to “deemed certified” bargaining units (i.e., bargaining units that pre-existed the effective date of Chapter 4117, and were declared to be certified as of that date pursuant to uncodified Section 4(A) of 1983 S.B. 133) are prohibited until the composition of the bargaining unit is challenged by another employee organization as part of a representation election petition. The only recognized exceptions to this rule occur when: (1) a joint petition is filed by the public employer and the incumbent union; (2) a unilaterally-filed clarification petition that seeks a ruling on whether certain positions that were established after the bargaining unit was deemed certified should be

54

included in the bargaining unit based upon the current bargaining unit description and job descriptions that existed when the clarification petition was filed; and (3) the parties’ collective bargaining agreement provides for arbitration over unit clarification disputes.

In City of Cincinnati v. State Employment Relations Board, 2009-Ohio-2834, 2009 Ohio App. LEXIS 2413 (1st Dist. June 17, 2009), aff’g, SERB 2007-003 (11-29-07), cert. denied, 2009-Ohio-5704, 2009 Ohio LEXIS 3128 (Ohio 11/4/09), the court upheld SERB’s rejection of an employer’s effort to create another exception via the statutory dispute resolution procedures of fact-finding and conciliation. From the outset of negotiations, the employer proposed removing all references to the Assistant Police Chief from the collective bargaining agreement. In so doing, the employer rejected both a tentative agreement and a fact-finder’s recommendation that maintained the inclusion of the position in the bargaining unit. The employer then submitted its proposal to binding conciliation, where it also failed. SERB held that the employer engaged in bad faith bargaining when it submitted the proposal to conciliation. Relying upon long-standing NLRB precedent, SERB held that the composition of a bargaining unit is a permissive, not a mandatory subject of bargaining unless the parties already have agreed upon a contractual procedure (such as binding arbitration) to amend the composition of the bargaining unit. However, “[t]he mere recitation in a recognition clause of the positions contained in the bargaining unit, whether deemed certified or Board certified, does not, without more, make the composition of the bargaining unit a mandatory subject of bargaining.”

On appeal, the employer unsuccessfully raised several arguments:

1. Amending Contract Language is a Mandatory Bargaining Subject. The employer first argued that amending the bargaining unit composition language in the labor agreement was a mandatory bargaining subject, relying upon language in Section 4117.08(A) that “the continuation, modification, or deletion of an existing provision of a collective bargaining agreement” must be bargained. The court adopted the argument raised by both SERB and the union that this phrase is modified by the language “all matters pertaining to wages, hours, or terms and conditions of employment,” which also is included in Section 4117.08(A). The court reasoned that, “[A] clause that simply recites which police positions are a part of the bargaining unit is not a matter that pertains to ‘wages, hours, or terms and conditions of employment.’ Taking the City’s argument to its extreme would mean that the Union and the City would be required to bargain over each and every clause in the entire CBA, and make the above-quoted language superfluous. We agree with SERB that the recognition clause, which defines the composition of the bargaining unit, is not a mandatory subject of bargaining.”

2. Contract’s Expiration Broadened the Scope of Bargaining. The employer next argued that Section 4117.05(B), which codifies the “contract bar” doctrine, gave it the right to bargain over any subject, including the composition of the bargaining unit, once the labor contract expired. The court responded that, “R.C. 4117.05 only pertains to the procedure that unions must follow to become the exclusive bargaining representative for an employee unit. It has no bearing on the composition of the unit.”

3. Still Negotiating in Good Faith. Notwithstanding the determination that it was insisting to impasse on a non-mandatory bargaining subject, the employer maintained that it was entitled to bring the issue to binding conciliation. The court responded that, “The parties were not required to bargain over the composition of the bargaining unit, and by taking its proposal to conciliation, the City attempted to change the unit’s composition by a method other than the only three methods available. In this case, were the City’s position correct, a conciliator would

55

have decided whether assistant police chiefs should be removed from the bargaining unit. To have a conciliator decide this issue is clearly not one of the three accepted methods of changing the composition of a bargaining unit. And it makes no sense--could a conciliator remove employees from a union?”

4. Bargaining Unit Cannot Exist in Perpetuity. The court also rejected the employer’s argument that SERB’s ruling effectively permits the bargaining unit to exist in perpetuity. The court responded briefly that there exist three methods for changing the composition of a bargaining unit, and all of those methods remain.

5. Frustrating Voter-Approved Charter Amendment. The employer’s final argument was that SERB’s ruling failed to consider the effect of the voter-approved charter revision that had changed the assistant police chiefs from classified to unclassified civil service. The court distinguished its prior decision (in which it upheld SERB’s ruling) that the voter-approved charter revision did not constitute a failure to bargain in good faith. The court rejected the employer’s argument that the voter-approved charter revision mandated that assistant police chiefs be removed from the bargaining unit; rather, the only change was to the civil service status of the assistant police chiefs. The court noted that “[N]othing in the statutes or the case law prohibits classified employees from belonging to a union or from being part of a bargaining unit.” Finally, the court made it clear that a voter-approved charter revision could not have any effect on a bargaining unit’s composition, indicating that, “[V]oters could not override state law on this issue.”