When Policies Change: Bargaining Rights
By Gordon McQuillen
The WPPA recently has received requests for information about changes in policies within law enforcement agencies. There is also the concern that some policy changes are being brought about by the desire of law enforcement agencies to gain certification by various outside agencies which require some degree of uniformity and consistency with their policies. Our concern is that many such policy changes trigger our members’ bargaining rights.
For the purposes of this article, the term "policies" means any or all of the following: policies, procedures, rules, regulations, standard operating procedures, etc. The rules and reasoning that follow in this article apply to any sort of policies, by whatever name they might be known within your own department.
In general, collective bargaining laws have recognized three classifications of subjects for bargaining: mandatory, permissive, and illegal. If a subject relates primarily to wages, hours and conditions of employment, it is a mandatory subject for bargaining. In the case of mandatory subjects, an employer may not adopt/implement a change in such a subject without bargaining to impasse and interest arbitration (where arbitration is available) with the collective bargaining representative. In the ordinary course of things, both the employer and the bargaining unit can be compelled by legal process to engage in bargaining over these subjects. Plain examples of mandatory subjects of bargaining are all aspects of pay, uniforms, holidays, vacations, seniority, etc.
The second category is composed of those subjects described as permissive subjects. These are matters that relate primarily to the operation of the business of the employer. Neither party can be compelled to bargain over these subjects of bargaining, although either may do so. Some obvious examples of permissive subjects of bargaining are such things as staffing levels, beats, shifts, specific duties for each assignment, etc.
Although neither side in a bargaining relationship can be compelled to bargain over a permissive subject, and an employer can implement a permissive subject without being compelled to bargain over it, oftentimes the impact of the permissive subject forms a separate, mandatory, subject of bargaining. Thus, although the employer may decide, for example, to create a shift of employees who work from 1:00 p.m. to 9:00 p.m., the rate of pay, including shift premium pay, that will be paid for such hours of work is a mandatory subject of bargaining.
The third category for bargaining subjects is deemed to be illegal. This term means that not only does a party not have to bargain over a subject, but also it is unlawful for a party to do so. There are very few cases which have found a subject of bargaining to be illegal. Among those things that have been found to be illegal are grievance arbitration over the unpaid suspension, demotion or termination of a city police officer; immunity from arrest for acts committed while on duty; and the provision of health care benefits for otherwise illegal medical procedures. Thus far, we have not recognized any illegal subjects of bargaining cropping up in any of the new policy manuals.
However, we have had many changes brought to our attention that are mandatory subjects for negotiations and employers have tried to implement them without negotiating with the association. Here are a few examples of mandatory subjects that have come to our attention:
- Physical fitness requirements with a penalty of discipline, including termination, for officers who are unable to meet the unilaterally implemented fitness requirements.
- Drug and alcohol policies, including an absolute prohibition against intoxication in a public place even though the employee is off-duty; termination of employment merely for refusing to submit to drug testing; random testing of employees for drug usage.
- Internal investigation procedures – especially those that are in stark contravention of the provisions of Wis. Stats. § 164.01, et seq. or Garrity v. New Jersey, 385 US 493, 17 L Ed 2d 562, 87 S Ct 616.
- Citizen complaint procedures that violate Wisconsin law both as to the statutorily mandated citizen complaint procedures and statutory and case law protections against improper internal investigations.
In every instance where a bargaining unit member becomes aware of an impending — or already executed — change in policy that implicates a mandatory subject of bargaining, the member should notify a bargaining representative immediately. The bargaining representative must then likewise promptly notify the employer of the bargaining unit’s demand to bargain over the mandatory subject and that the employer must not adopt the new policy without having bargained to conclusion with the bargaining agent.
Failure or refusal of the employer to bargain over a mandatory subject will result in the filing of a prohibited practice complaint pursuant to Wis. Stats. Chapter 111.70. On the other hand, failure of the bargaining representative to demand to bargain once there is knowledge of the proposed or actual change in policy could result in a finding down the road that the bargaining representative waived the rights of bargaining unit employees to bargain over the policy change.
As with mandatory subjects of bargaining, when permissive subjects are raised by an employer, the bargaining agent must examine those policy changes to see whether there are any negotiable impacts on the wages, hours and employment conditions of affected bargaining unit members. Here are some examples of permissive subjects that have come to our attention and which have mandatory elements which require the immediate attention of the WPPA:
- The creation of school liaison officer positions — the compensation that accompanies these new positions, as well as variations from normal scheduling concerns, among others, are mandatory subjects of bargaining.
- Similarly, the creation of detective or investigator (or, for that matter, any other specialized position or assignment) is within the discretion of the employer; however, all wages, hours and conditions of employment regarding new positions remain mandatorily bargainable.
- Shift rotations, vacation selection, etc. — although the employer may determine unilaterally what the shifts to be worked may be and whether there will be coverage of a certain level on holidays and during vacations of bargaining unit members, the selection of shifts based on seniority, who will be assigned to work which holidays and what compensation will be paid for work on holidays, and the number of vacation days each member may have and how those days will be selected, are all subjects that must be bargained before there is a policy implemented in any of those areas.
- Internal investigations – as noted above, whether to do internal investigations and the reasons for doing so are within the sound discretion of the employer, but the procedures are mandatory subjects for bargaining, within the same limits as all other mandatory subjects for bargaining.
All WPPA members must remain alert to changes in policy that affect their wages, hours, and conditions of employment. In addition, if an employer begins applying an existing policy in a new way, bargaining may also be required.
If your department creates new policies or begins to apply existing ones in new ways, contact your WPPA business agent. The time to act is as soon as you know that there has been a policy change.
