How Does Bargaining Work in the Public Sector?
AFSCME has a long history of successfully negotiating good contracts in the Public Sector under Act 195. The negotiating team is made up of members, AFSCME staff, and attorneys who all have vast experience and knowledge of the laws and procedures related to bargaining in the public sector. The information below gives an overview of some of the essential regulations and procedures.
Workers who have come together and formed a union have the right to engage in collective bargaining with the employer. The Public Employee Relations Act of 1970 (Act 195) establishes the rights of public employees to organize and sets the framework for collective bargaining for public sector unions in the state. Under this act, public employers, such as state and local governments, must bargain in good faith with public employee organizations, such as AFSCME.
Collective bargaining under Act 195 covers wages, hours, and working conditions. Employers are required to provide the union with information on their finances, staffing, and other aspects of their operations that could affect negotiations. This allows the union to effectively bargain on behalf of its members. The duty to bargain over wages, hours, and terms and conditions of employment applies not only during contract negotiations, but also during the contract term, if the employer seeks to change a mandatory subject of bargaining.
Potential subjects of bargaining fall within three general categories: mandatory,
Permissive, and prohibited.
• Mandatory subjects are those issues about which the parties have a legal obligation to bargain. These extend only to those issues that directly affect “wages, hours, and other terms and conditions” of employment. A refusal to bargain about a mandatory subject, or a unilateral change to a mandatory subject, is an unfair labor practice.
• Permissive subjects are those issues over which the parties are not required to bargain, but which are not unlawful.
• Prohibited subjects are those over which it is illegal to bargain.
Parties may bargain to an impasse and/or engage in a strike or lockout only over mandatory
topics. Parties may not bargain to an impasse or engage in a strike or lockout over a permissive or prohibited topic.
Some examples of mandatory bargaining subjects include, among other things:
1. Wages and Hours of Work
• rates of pay; overtime and other premium pay
• incentive rates/pay; longevity increases, severance pay or bonuses
• on call/call-in pay & shift differentials
• breaks, work schedules (days and hours of work)
• health and welfare contributions for current employees
• pension/retirement contributions
• disability programs
• vacations/holidays/personal days/sick leave/leaves of absence/bereavement leave
• clothing or tool allowances
• employer-provided or reimbursed transportation
3. Working Conditions
• grievance/arbitration procedures
• seniority, transfers, promotions
• seniority-based layoff/bumping/recall rights
• preservation of bargaining unit work
• effects of changes in operations/work removal
• health and safety
Permissive (Voluntary) Subjects: Aside from mandatory bargaining subjects, the parties may voluntarily bargain over or discuss other permissible issues. The parties are not required to bargain about non-mandatory bargaining subjects. Any agreement to include a permissible subject in a collective bargaining agreement will, however, be binding. The union cannot lawfully strike and the employer cannot lawfully lock out in attempts to reach agreement on these issues.
Examples of permissive (voluntary) subjects of bargaining:
• decision to close facilities
• decision to change business operations based on fundamental change in nature of business
• job descriptions (except to the extent that changes amount to transfer of bargaining unit work)
• selection of supervisors
• matters related to internal union affairs
NOTE: Even though the union may not have the right to bargain the actual permissive subject (e.g., the decision to shut down a particular operation), the Union does have the right to bargain over the impact of that issue on wages, hours and terms and conditions of employment (e.g., bumping/recall rights, severance pay, etc.).
Prohibited Subjects: Prohibited subjects refer to any issue that is inconsistent with the underlying policies of the collective bargaining statute or is otherwise illegal. Other provisions that would bind employers to violate the law (e.g., wage rate below minimum wage, etc.)
Act 195 sets out the procedures for resolving any disputes that may arise during the collective bargaining process. For the most part, the law does not regulate the content of the collective bargaining agreement; rather, it regulates the bargaining process. If the two sides cannot agree, either side can request mediation from the Pennsylvania Labor Relations Board. The Board appoints a mediator that is present at each negotiation session and will facilitate negotiations and try to help the parties reach a resolution.
UNFAIR PRACTICES IN CONNECTION WITH NEGOTIATIONS
Interfering, restraining or coercing employees in the exercise of their rights to:
• Organize, form, join or assist in a union
• Bargain collectively through representatives of their own free choice
• For example, if an employer unilaterally decreases employee wages during negotiations, that unilateral change is an unlawful violation of its duty to bargain in good faith
• Threats to take disciplinary action against union officials related to conduct at the bargaining table, or their communications with their members.
• Threats of disciplinary action for engaging in a lawful strike or picketing activity.
Refusal to bargain in good faith.
• Direct dealing (i.e., bypassing the union and directly negotiating wages, hours or working conditions with bargaining unit employees).
• Unilateral change to past practice with regard to a mandatory subject of bargaining.
• Refusal to provide relevant information to the union.
• Unilateral transfer of bargaining unit work to non-bargaining unit personnel or subcontractors.
• Unilaterally implementing the employer’s final offer, or other changes to the terms and conditions of employment in effect at contract expiration prior to the employees going on strike (public sector).