What Are Mandatory Subjects Of Bargaining
And Why Do They
Matter To You?
By Mark Hollinger, WPPA Staff Attorney
Bargaining subjects are divided into three categories: mandatory, permissive and prohibited. A mandatory subject of bargaining is defined as a proposed bargaining issue where the employees’ legitimate interest in wages, hours or conditions of employment outweighs the employer’s concerns about the restriction on managerial prerogatives or public policy. A bargaining subject categorized as mandatory, therefore, requires that the parties negotiate on this subject if the issue is raised by either party. For example, proposals for wage increases or an anti-nepotism policy are mandatory subjects of bargaining.
If the restrictions on the employer’s managerial prerogative or public policy has greater importance than does the employees’ concerns in wages, hours or conditions of employment, the bargaining subject is defined as permissive. Granted, the rule we have been saddled with to distinguish mandatory from permissive subjects of bargaining is not intuitive and provides little real guidance in predicting what is, or is not, mandatory. Suffice it to say, when the issue is primarily related to formulation of basic policy or the exercise of municipal powers and responsibilities in promoting the health, safety, and welfare of citizens, it will probably be held to be a permissive subject of bargaining.
When a permissive subject of bargaining is raised by either the employer or the union, the parties may bargain on the issue but they are not required to do so. An example of permissive subjects of bargaining are those issues that propose to restrict a municipality’s ability to make law enforcement service level choices. For example, a proposal to continue a practice which guarantees regular part-time employees represented by the union a regular ten-hour shift of work when they replace regular full-time employees who are absent from the regular shift is merely a permissive subject of bargaining. In such a case the parties would be permitted to negotiate, but the union could not compel the employer to negotiate. The practical effect of a determination that a bargaining subject is permissive is to kill the issue for the union because the only specific rights you have are explicitly in the contract, or implied in the contract through a binding past practice. In other words, employers can unilaterally implement policies, procedures and rules which deal with permissive subjects of bargaining.
Prohibited subjects of bargaining are those over which the parties are forbidden by law from bargaining. An especially egregious example of a prohibited subject of bargaining is the holding that a police association’s proposal allowing a suspended officer to arbitrate a suspension - rather than proceeding to a hearing before a police and fire commission - is unlawful.
As a practical matter, when confronted with a change in wages, hours or working conditions, and you are unsure as to whether this change implicates mandatory, permissive or prohibited subjects of bargaining, contact the leadership of your local or your business agent. Your business agent will consult with the WPPA legal department and we will advise you on how to proceed.
As you know, often your employer will make policy, procedure or rule changes without consulting with the union. If these changes touch upon mandatory subjects of bargaining it is of paramount importance that you bring these situations to our attention so that we can make a demand to bargain. This is critically important because even when these mid-term changes involve mandatory subjects of bargaining, if a demand to bargain is not made we may lose our right to challenge the employer’s actions. This is so because the union is obligated to request bargaining in a timely fashion or risk losing the right to bargain over the change.
Since the legislature enacted the Municipal Employment Relations Act in 1971, the Wisconsin Employment Relations Commission (WERC) has resolved disputes over whether a subject is a mandatory subject of bargaining. During this 30-year period, the WERC has created considerable case law that helps us distinguish mandatory from permissive and prohibited subjects of bargaining. Often, however, there are not bright lines separating these three categories of bargaining subjects.
Decisions concerning whether a subject is a mandatory subject of bargaining may have the effect of putting a subject on (or taking it off) the bargaining table. In other words, they determine the scope of bargaining. That is why it is important for you to know about and exercise your right to bargain over mandatory subjects of bargaining; and when you are unsure of your bargaining rights, it is important for you to consult the leadership of your local and business agent so that your rights can be protected.
