NEWSLETTER, Q & A

What triggers a Demand to Bargain

October 20, 2017 / Phil Lesch

Members frequently ask: Why do we issue a "Demand to Bargain" on some issues, but not all issues, and why do we sometimes submit both a "Demand to Bargain" and a grievance?

Good questions.

The Public Employee Collective Bargaining Act ("PECBA," which is enrolled at ORS 243.650 et seq) provides PSU-AAUP with the right to bargain and enter contracts on employee relations matters. These are Collective Bargaining Agreements (CBA), and Collective Bargaining Agreements have a specific term. Our current CBA runs from April 4, 2016, the date of ratification, to November 31, 2019.

If administration proposes or implements any change that is covered by language in the contract, or if there is a well-established past practice on the matter, then any change in working conditions is enforceable through the contract’s Grievance Procedure (Article 28). In these instances, we file grievances to enforce the contract or the past practice. A recent example is the Portland Streetcar. PSU-AAUP grieved Administration’s proposal to charge PSU-AAUP members a monthly fee for a pass to ride the Streetcar. Free access to the Streetcar, however, was a well-established past practice- it was even noted as an employee benefit on the Human Resources website.

We all know, however, that Administration often wants to make changes in areas that fall within our scope of bargaining that are not in the contract, or that are not well established past practices. When this occurs, we can use the "Expedited Bargaining Process" (ORS 243.698).  This process requires Administration to provide PSU-AAUP with specific notice of the NEW policy or practice that falls within our scope of bargaining. Once we receive this notice, PSU-AAUP has the right to submit a "Demand to Bargain" over the matter within 14 days of the notice. 

Administration, however, has never provided PSU-AAUP with the required notice. As such, PSU-AAUP interprets information about ANY potential change of matters "in scope" (these are matters regarding "wages, hours and working conditions") that are not already covered by the contract as "notice," and will then submit the "Demand to Bargain" immediately. We do this in order to preserve our right to bargain under the 14-day rule. 

We've been asked- do we have to bargain over a change in past practices in the middle of the contract? No, we don't. CBA Article 42, Paragraph 2- Totality of the Agreement states:

"Each party, for the lifetime of this Agreement, agrees that the other shall not be obligated to bargain collectively with respect to any subject or matter, whether or not referred to or covered by this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of the parties at the time they negotiated or signed this Agreement."

The University can request that we bargain over matters within scope, as they have done on the Portland Streetcar, but PSU-AAUP can say: No thank you, we'll stick with the contract and/or past practice as is.

Some have asked: why we sometimes do both- file a grievance and submit a demand to bargain? We do this when it is not clear that a well-established past practice exists. Again, for something to be a past practice, both parties have to not only know about it, but have to agree that it is a practice. When there is a doubt, we will file the grievance and say something to the effect of: "to the extent that the grievance does not resolve the issue, PSU-AAUP demands to bargain the decision and/or the effects of the decision of xxx." By doing both, if an arbitrator finds that we could not prove the case in our favor, then the Employer will still have an obligation to bargain the matter. 

Last point: what exactly can we "Demand to Bargain?" 

This is a complicated question that speaks to whether the DECISION made by administration falls "in scope." A decision that would be in scope is something that is considered a mandatory subject of bargaining, but it is not in our contract and it is not a past practice. An example might be the creation of a new kind of employee leave.

If the decision falls outside of scope, then there may be "effects" of the decision that fall "in scope." An example of such a decision would be the implementation of the online leave reporting system. The decision to implement the new electronic system was not bargainable, but the impacts were. We demanded to bargain over the impacts and reached an agreement about it

When we learn of a potential or actual change, we often do not know whether the decision falls within scope. We will, then, submit a "demand to bargain over the decision and/or the effects of the decision..." so we have latitude to bargain what we have and to learn more.

EF

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