March 1, 2017

By:  Attorney Ann Smisek

On February 17, 2017 amendments to Chapter 20 went into effect. Any contracts that were not ratified and approved prior to that date must be re-negotiated under the newly revised Chapter 20, beginning with the presentation of initial proposals. Also, any contract negotiations that commence after February 17, 2017 must conform to the new law.

The new law changes the scope of bargaining for non-public safety bargaining units. Now, the only mandatory subject of bargaining is "base wages." The list of prohibited topics for non-public safety units has grown and now includes retirement systems, dues checkoffs, other payroll deductions for political action committees or other political contributions or political activities, insurance, leaves of absence for political activities, supplemental pay, transfer procedures, evaluation procedures, procedures for staff reduction, and subcontracting public services. Any other topics that are mutually agreed to are permissive subjects of bargaining where the employer can negotiate on the topic and include it in the contract, or can decide to not include it in the contract going forward. Health and safety matters would be an example of a permissive topic of bargaining. It is not "base wages" and it is not in the list of prohibited topics.

As you re-start or begin negotiations under the new law, you should understand the new scope of bargaining that applies to each employee unit and carefully review the collective bargaining agreement to identify the negotiability status of each provision. When you craft your initial proposals, it is imperative that you identify the provisions you intend to exclude as prohibited or permissive subjects of bargaining with specificity. It is not sufficient to simply state, "All prohibited and permissive provisions of the contract will be deleted." It is not sufficient to simply state, "All supplemental pay provisions will be deleted." Rather, you should present the initial proposal with the specific article and section number that will be deleted, and your basis for the deletion (i.e., illegal as dues checkoff, or permissive). Better yet, it is wise to present the initial proposal with a copy of the collective bargaining agreement where all prohibited language is struck through, or redlined as deleted. Any provisions that the employer proposes to delete as permissive should also be struck through or redlined.

Failure to specifically identify the language the employer proposes to remove from the contract can have severe consequences. In Sioux City Education Association & Sioux City Community School District, 98 PERB 5842, the district's initial proposal stated that if the parties failed to reach a voluntary agreement, "the Board proposes to delete all permissive language per Iowa Code Section 20.9, not specified above and that all such language be deleted from the contract as a non-mandatory topic of bargaining." PERB determined that the school district's failure to specify the articles and paragraphs, or the exact language the district proposed to delete as permissive, was a violation of Chapter 20 and a prohibited practice. The Board ruled that due to the violation, all permissive language should remain in the contract for the duration of the agreement.

Given this case precedent, employers should not take short-cuts in their initial proposals. Employers should clearly and specifically describe or identify the language in the contract that is prohibited under the new law and which permissive provisions the employer proposes to remove. If you have questions, the Employment & Labor Law attorneys at Ahlers & Cooney are available to assist in reviewing contracts for mandatory, permissive, and prohibited topics and to prepare initial proposals.

Please contact our Ahlers & Cooney, P.C. Employment & Labor Law lawyers should you have any questions.

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