Board (hereinafter Board) on an Unfair Labor Practice Complaint by hmh17149

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									      STATE OF RHODE ISLAND AND PROVIDENCEPLANTATIONS
    BEFORETHE RHODE ISLAND STATE LABOR RELATIONS BOARD


IN THE MA TTER OF

RHODE ISLAND STATE LABOR
RELAnONS BOARD                                   CASE NO: ULP-5485

       -AND-



TOWN OF NORTH KINGSTOWN


                               DECISION AND ORDER


                                 TRAVEL OF CASE

       The above entitled matter comesbefore the Rhode Island State Labor Relations

Board (hereinafter"Board") on an Unfair Labor Practice Complaint (hereinafter

"Complaint") issued by the Board againstthe Town of North Kingstown (hereinafter

"Employer") basedupon an Unfair Labor PracticeCharge(hereinafter"Charge") dated

August 4, 2000 and filed on August 7, 2000 by Local 473 InternationalBrotherhoodof

Police Officers, (hereinafter"Union").

       The Chargealleged:

        'That the Employer violated 28-7-12and 28-7-13(6) and (10) of the Act,
       when on or about July 31, 2000, it implemented new policies and
                   for
       procedures the receiptand continuedreceiptof injured on duty benefits
       and further, implementednew proceduresrequiring the performanceof
       light dutybargainingrepresentative." without first .bargainingwith the
       exclusive as a condition of employment,



                                                               washeld on September
       Following the filing of the Charge,an informal conference

                               of
22, 2000 between representatives the Union and Respondentand an Agent of the

Board. When the infonIlal conferencefailed to resolvethe Charge,the Board issuedthe

instant Complaint on June 4, 2001. The Employer filed its answerto the complaint on

June 7t 2001

                    on
       Fonnalhearings this matterwereheld on March 26, 2002,May 23, 2002,

                          20,                   of           both the
August27, 2002 and February 2003.Upon conclusion the hearings,

Employerand the Union submittedwritten briefs and reply briefs. In arriving at the

                                            and       the       and
Decisionand Orderherein,the Boardhasreviewed considered testimony

evidence        and       contained
        presented arguments        within the post hearingbriefs.



                                         1
                              FACTUAL SUMMARY

       From 1983 to July 31, 2000, the Town of North Kingstown's Police Department

had in effect "GeneralOrderNo. 20, Seriesof 1983",which modifiedSection306.4

(Injuries) of the Department'sRules and Regulations.(Joint Exhibit #1) Said general

order provided in pertinent part: "Membersof the North Kingstown Police Department

who are injured in the line of duty shall receivefull salarywhile their incapacityexists,or

until they areplacedon disability retirement

                                        L.
       On July 19, 2000,PoliceChief James Wynn issueda draft copy of a new

generalorder pertaining to line-or-duty injuries. (Joint Exhibit #3) The draft policy was

circulatedto senior staff and to the Union ExecutiveBoard for its review and comments.

The transmittalmemo forwardedwith the draft copy indicatedthat the policy would take

effect on July 31,2000 and that the Chief waswilling to discussthe policy with the union

prior to July 31, 2000. (Joint Exhibit #3) Also on July 19, 2000, the Union executive

Board received a memorandumfrom SergeantJosephHart, wherein he raised several

concernsand questionsabout the proposedgeneralorder (UnionExhibit #1) On July

28t 2000t Union officials met with the Police Chief to discusstheir concernsabout the

generalorder. After making one changeto the documen~the Police Chief implemented

the generalorder on July 31, 2000

                               POSITIONS OF THE PARTIES

                                               of
        The Union arguesthat the implementation GeneralOrder 2000-10constitutesa

unilateral changein a mandatorysubject for bargainingand that the employerfailed to

                                                        thus committing an unfair labor
fulfill its bargainingobligation prior to implementation,

practice.
        The Employer arguesthat the Board lacks subjectmatterjurisdiction to hear the

                        the
within complaint because Police Chief hasthe legal duty and authority to enactrules

                       the
andregulationsandbecause resolutionof this disputerequiresthe interpretationof the

collective bargaining agreement.The Employeralso argues                 of
                                                       that the enactment an

              (lOD) policy is not a mandatory
injured-on-duty                             subjectfor bargainingand, thus,no

bargaining obligation arises on the Employer's part. In the alternative, the Employer

arguesthat there is no obligation to bargain becausethe Union waived that right by

                                                     that                  or
 allowing a term in the collective bargainingagreement pennits the enactment rules



                                               2
and regulationswithout negotiations. Finally, the Employer arguesthat it in fact did

                           was      thereforetherecanbe no unfair labor practice
bargainand that an agreement reached;

in this case.

                                     DISCUSSION

       Sincethe Employerhasraiseda claim of lack of subjectmatterjurisdiction, that is

the thresholdissue for the Board to address. The Employer claims that pursuantto the

Town of North Kingstown Ordinances15-34, the Chief of Police is vested with the

                                       rules and regulationscovering the government,
statutory authority to "enact reasonable

discipline, unifonns and equipment of police officers and fixing their duties and

prescribingpenaltiesfor violations of any such rules and regulations Brief p. 8 citing
                                                                   ".
N.K. Rev. Ord. § 15-33, The Chief is also vestedwith the authorityto "maintain

                                                               Briefp. 8 citing N.K.
discipline" so as to securecompleteefficiency in the department.

Rev. Ord. § 15-34.

       The general order at issue in this caseis entitled "Line of Duty Injury Policy'

           IOD policy) which states pertinentparts
(hereinafter                       in

       I        PURPOSE

       The purpose of this policy is to ensure the proper documentation,
      investigationand accountabilityfor all illnessesand injuries arising out of
      andin the courseof employment.

       ll.     POLICY
     "It is the policy of the North Kingstown Police Departmentto provide a
     comprehensive   disability management    programto assistemployees who are
     recovering from a line of duty injury. The purposeof this directive is to
     establisha consistentmethodof documenting,      investigatingand handling of
     employee   claims." (Joint Exhibit #4, p 1-2)


                               of      and           of
Thus,it is clearby the statement purpose the statement policy that the IOD

policy is not designedfor nor does it deal with the government,discipline, unifomls or

equipmentof police officers, the duties of police officers or their discipline. Thepolicy

                                                            of
dealswith the receipt, continuedreceiptandpotentialcessation salaryand benefitsfor

        who are injured on the job. Therefore,basedupon the plain language the
employees                                                                 of

                                            that
IOD policy itself»this Board is not persuaded the Chief of Police had any authority

                          to
underthe Town's ordinances enactany rules pertainingto the subjectmattercontained

in the lOD policy. Therefore,the Employer'sclaim of lack of subjectmatterjurisdiction




                                           3
on the groundsof independentstatutory authority vestedin the Police Chief is hereby

rejected.

         The Employer also claims a lack of subjectmatterjurisdiction in this Board by

stating that the resolution of this dispute requires the Board to interpret the parties

                             and
collectivebargainingagreement, that the Boardhasno suchauthority. However,the

                   in                                               is
Employeracknowledges its brief that the collectivebargainingagreement essentially

                   for
silent on procedures the applicationandreceiptofIOD benefits.

                                                  of
         The Employer also arguesthat the enactment an "injured on duty" policy is not

a mandatorysubjectfor bargaining. It is well settledthat the potential universeof matters

which could be bargained is divided into three separatecategories: (1) Mandatory

subjectsfor bargaining,(2) Pennissivesubjectsfor bargaining,and (3) Illegal subjectsfor

                             Com.,356 u.s. 342, 78 S.Ct. 718, (1958),Idaho
bargaining. NLRB v BorlZ-Wamer

        v
Statesman NLRB. 836 F.2d 1396(D.C. Cir. 1988).

         Although there is no fixed list of topics which are mandatorysubjectsfor
bargainingt the Supreme Court has held that Section 8 (d)1 of the National

RelationsAct includesonly thoseissuesthat "settle an aspectof the relationshipbetween

the employer and employees".Allied Chemical & Alkali Workers v Pittsbur2h Plate

GlassQo.. 404 U.S. 157,92 S. Ct. 383 (1971).2 fu Ford Motor Co. v ~RB, 441 U.S.

488, 99 S.Ct. 1842 (1979), the Court held that mandatorysubjects for bargaining are

thosesubjectsthat are plainly gennaneto the "working environment"and are not among

                                                                    control",
those "managerialdecisions" which "lie at the core of entrepreneurial

fQr.Q,the NLRB and case law have developeda long list of topics which have been

detenninedto be mandatorysubjectsfor bargaining,underthe headingsof "wages" 3 (not



I           bargaining "wages,
    Requiring        over         and        and        of
                             hours, otherterms conditions employment".
                                               that mattersfalling within the mandatorysubjectfor
2 Also in Allied Chemical,the Court acknowledged
bargaining classification do not have to directly impact the terms and conditions of employmentof
employees. In that case, the issue was whether or not the Employer had to bargain over die level of
retirementbenefits for retired employees. The Court held that the retired employeeswere not employees
              of                                  to
for purposes the Act, but then turnedits analysis whetheror not the interestof thesethird party retirees
                                                     of
"vitally affects" the termsand conditionsof employment the coveredemployees.
3 Includes fixed rate wages (H.E. Fletcher, 131 NLRB 474, 48 LRRM 1071 1961 (enforced on other
grounds,298 F.2d 594 (lit Cir. 1962); incentivesor piecework rates, ProvidenceJournalCo. 180NLRB
669, 73 LRRM 1235 (1970); overtime pay, NLRB v Mont2omervWard & Co. 133 F.2d 676, 12 LRRM
508 (9d1Cir. 1943); shift differentials, Royal Bakin2 Co. 309 NLRB 144, 141 LRRM 1318 (1992);
severancepay, NLRB v Litton Fin. Printing D!~. 893 F2d 1128, 133 LRRM 2354 (9d1   Cir. 1990);rates of
pay for new jobs, LeRov Machine Co. 147 NLRB 1431, 56 LRRM1369 (1964); cost of living
                                                                              Cir.
adjustments, NLRB v HarvstoneMfQ. Com., 785 F.2d 570 121 LRRM3371 (7111 1986) celt denied,
479 U.S. 821, 107 S.Ct. 88, (1986); merit increases,NLRB v Katz. 369 U.S. 736, 82 S.Ct. 1107,(1962);
vacation benefits, ABC Food Services Inc., 176 NLRB 426, 73 LRRM 1052 (1969); holidays and
bonuses, Sinszer Mf2. Co. 24 NLRB, 444, modified on other grounds, 119 F.2d 131 (71bCir. 1941);
retirement plans, Inland Steel Co. v NLRB. 1870 F2d 247, 22 LRRM 2506 (7th Cir. 1948) ; group
insurance plans, Sv1vaniaElec. Prod. Inc. v NLRB. 291 F.2d 128, 48 LRRM 2313 (lit Cir. 1961)
                                                  4
                                    but              for
only hourly ratesof pay and salaries, all compensation servicesand emoluments
                                                                         a
related to the employment relationship) "hours" 4 (topic which encompasses wide

                                                are
variety of mattersthat effectsboth when employees requiredto work and when they

arenot requiredto work) and "tenns and conditionsof employment", The phrase"tenns

                                                           mandatory subjectsof
and conditions of employment" is a catchall that encompasses

                                              as
bargainingthat cannotbe convenientlycategorized eitherwagesor hours,andhasbeen

broadly construedby the NLRB and the Courtsto include a myriad of topics including:

         rightSt NLRB V Am. National InsuranceCo. 343 U.S. 39St 72 S.Ct. 824
Management

                            NLRB v Tomco Communications.
(1952) ; grievanceprocedures,                          Inc. 567 F.2d 871. 97

LRRM 2660 (9thCir. 1978); vacations,GreatSouthernTrucking;Co. v NLRB. 127F.2d

180 (4th Cir. 1942) cert denied 322 U.S. 729, 64 S.Ct. 944 (1944); leavesof absence,

Singer Mfg. Co. 24 NKRB 444 (1940) modified on other grounds 119 F.2d 131 (7th

                                                  NewsDaDer
Cir,1941)and disciplinaryrules and codesof conduct,      Guild Local 10 v

NLRB, 636 F.2d 550 (D.C. Cir. 1980). SeeNational Labor RelationsBoard: Law and

Practice.13.03(5).

        The United States SupremeCourt, in recognizing that the detennination of a

                                                   analysis, has declared that the
mandatory subject for bargaining is a fact-dependent

classification of bargaining subjectsas temlS or conditions of employmentis a matter

which the Board [NLRB] hasspecialexpertiseandits judgment asto what is a mandatory

                                               deference.
subjectfor bargainingis entitled to considerable        Ford Motor Co. v NLRB. 441

U.S. 488,495,99 S.Ct. 1842(1979).

                                           to
        This Board recentlyhad the occasion review a strikingly similar factual

scenarioin ULP CaseNo 5419, Stateof RhodeIsland Labor RelationsBoard v Town of

Burrillville, decided on April 29, 2002. In that case, the Board detenninedthat the

subjectof the receipt on injured-on-dutybenefitswas a mandatorysubjectfor bargaining.

This conclusion of law was affim1edby JusticeDarigan of the Rhode Island Superior


employeestock purchase plans, Richfield Oil Com. v NLRB. 231 F.2d 717,37 LRRM 2327 (D.C. Cir.
1956,cert denied,351 U.S. 909, 76 S. Ct. 695 (1956); and employeediscount programs, NLRB v Cent.
                                            Cir.
Ill, Pub.Co., 324 F.2d 916, 54LRRM 2586(7d1 1963). SeeNLRA Law and Practice, 13.05.
4 Particular hours of day and days of week required to work, AssociatedFood Retailers.Inc. v Jewel
~   Co. 381 U.S. 761, 85 S.Ct. 1797 (1965); compensatory time off for overtime worked, Fall River
Savin2sBank. 260 NLRB 911, 109 LRRM 1292(1982); shift schedules,CarbonexCoal Co. 262 NLRB
                                                         ~e:,°u:.ces
1306, 111 LRRM 1147 (1982); overtime policies, ~ui,!.a;Ql~                      207
                                                                    E~]21.oration, NLRB 730, 141
LRRM 1279(1992) enforcedmem., 989 F.2d 492 (4 Cir. 1993);time clock procedures, Cardinal Sys.,
259 NLRB 456, 109 LRRM 1005(1981), rest periods, lunch periods and wash-up time, Nat'l Grinding
Wheel Co.. 75 NLRB 905, 21 LRRM 1095 (1948); shift assignments,SouthernNewsoaoers.      Inc.. 255
NLRB 154, 107 LRRM 1058 (1981) and leave- including leave without pay, Rockv Mountain HomitaL
289 NLRB 1370, 130LRRM 1493(1988). NLRA: Law & Practice, 13.03(4)
                                                5
Court in Case No. PC 02-2513, decided January30, 2004.                     In his decision, Justice

Darigannotedthat the GeneralOrder in that caseimpactedboth wagesand the tent1sand

co~ditionsof the officers' employmentby imposing strict new requirementswith which

officers must comply in order to qualify for injured-on-dutystatus and wages. In that

case,the generalorder: (1) pennitted an officer's duty statusto be changedfrom IOD to

                             (2)      the
"sick" in certaincircumstances changed calculationof vacationtime for an officer

injured in the line of duty by requiring the officer to take "furlough" time when he or she

leaves the state for more than 24 hours while injured and (3) imposed mandatory

                                                      appointments be evaluated
disciplineupon officers who fail to attendtwo scheduled          to           by

the Town's physician. I4-at 10. The Court also noted that the testimony in the record

and the text of the generalorder itself supporteda conclusionthat the provisions of the

generalorder constituteda substantialand materialchangefrom the Police Department's

previouspracticesconcerninginjured on duty claims.!4.at 11

         h1 this case,the Town of North Kingstown's IOD policy also affectsboth wages

and the ternlS and conditions of the officers~ employment imposingstrict new
                                                        by

requirementswith which officers must comply in order to qualify for injured-on-duty

statusandwages.S In addition, the policy alsoimpactsnegotiatedbenefits(vacation,and

sick leave,rank).

        SectionB (5) of the policy provides:

       "Employeeswho are on injured on duty statuswho wish to leave the state
                                     of
       for a period of time in excess twenty four hoursmust obtain a letter from
       their treatingphysicianapprovingof suchtravel and submit it to the Chief of
       Police in advance.All such out of state time will be attributed to an
       employee'svacation, or if vacation has been exhausted,to leave without
                                                             assignment."
       pay, unlessthe time out of stateis part of a Department

               the
        Suppose injured officer is traveling out of state to undergoa medical

procedure                              which will requirea prolongedhospital stay
         suchas surgeryor bum treatments

out-of-state. According to the aboveportion of the policy, an injured officer undergoing

        medical treatmentis treatedas if he or shewas on a vacation and if he or she
necessary

has no vacation time on the books; he or she is placed on "leave without pay" status,

This is a significant departurefrom the previousIOD policy and certainly is germaneto



-' Although this Board hasno power to determinewhetherthe IOD policy violatesthe provisionsofR.I.G.L.
45-19-1 which requires the payment of the injured officer's salary and benefits and medical expenses,
                                                     of
during the entire tenDof incapacity,the plain language the policy certainly seemsto be violative of that
statute. See SectionsB (5) (7) which allows the Police Chief to place an injured officer into a "leave
without pay" status.
                                                  6
the working environmentof the police officers. Moreover, it appearsto be violative of

R.I.G.L 45-19-1,aswell.

       SectionsF (10) and G (1) of the IOD policy appearto conflict with eachother,

leaving the employee's status at risk and subject to the whims of a sitting Chief. Section

F (1) states that the "fina1 detennination of whether an employee's work status is accepted

as injured on duty (ill) for payroll purposesrestswith the office of the Chief of Police.

Yet, Section G (1) leaves the final and binding determination as to medical status to the

medical community, where it belongs. So, what happenswhen an injured officer's

condition is not agreed upon by his physician and the town physician and has been finally

detemrined by the third physician and the Chief is not happy? Does he get to make the

final decision as set forth by Section F (1) or is the medical opinion rendered pursuant to

G (1) determinative?

                                                   a                      and
       SectionB 10) of the new IOD policy implements light duty requirement

                                                        that are supportedby and
provides: "Employeesmay not refuse light duty assignments

         with the recommendations their attendingphysician,a Town physician,or a
consistent                      of

physician              pursuant SectionIV (0) of this order." Section B (11)
         who is selected      to

provides: "Employees who refuse such a light duty assignmentmay be subject to

                                                                          of
discipline pursuantto the rules and regulationsof the department.All cases an officer

refusing a light duty assignmentwill result in an immediate review of the continued

         of                           and
acceptance the injury being compensable may also result in discipline under the

department'srules and regulations." However,R.I.G.L. 45-19-1 provides for a complete

safetynet for wages and other benefitsfor officers who are wholly or partially

incapacitatedby reasonof injuries receivedor sicknesscontractedin the perfonnanceof

his or her duties. It seemsclear to this Board then that unlessthe Union hasagreedto a

                                    then
light duty policy throughnegotiations, the Town's orderis not only a fiat which

      to                       but
amounts an unfair laborpractice. is likely to be violativeofRI.G.L. 45-19-1as



                       THE DUTY TO BARGAIN IN GOOD FAITH

                                                                   an
       During the teml of an existing collectivebargainingagreement, employermay

                                            addressed the contractabsentconsent
not changeany term or condition of employment       in

      Union. With respectto mattersof employmentnot addressed the contract.an
                                                            in



                                            7
employer's obligation for bargaining is that of good faith and the employer may not

institute a proposed change to matters not contained in the agreement,unless the

employer has bargained to impasse or the union has waived its right to bargain.

Milwaukee SDrine:Division of Illinois Coil SQringlli   268 NLRN 601, 115 LRRM 1065

(1984 enforcedsub nom., UAW Local 547 v. NLRB. 765 F.2d 175 (D.C. Cir 1985)

Also seeNLRA Law & Practice. 12.06(3). In this case,it is undisputedthat neitherthe

previouslOD policy nor the CBA containedany languageabout light duty assignments,

                            that                     to
let alonemandatoryassignments could force an employee work out of rank.

                                                                          to
       Under federallaw, an employer'sunilateralimplementationof or changes plant

rules without notice to or consultation with the union may constitute a violation of

                                                     constitutematerialsignificant
Section8 (a) (5) of the NLRA wheresuchrules or changes

and substantialchangesto tenIlSand conditionsof employment. TheDevelopingLabor

Law, 4th Ed. Supp., 224. citing Nortech Waste.336 NLRB No. 79, 168 LRRM 1361

             in
(2001)(changes sick leavepolicy); FlambeauAim1old Com. 334 NLRB No. 16 (2001)

       in                                     approvalprocess). "An employermay
(changes discipline policy, sick leave/vacation

also violate the Act when it unilaterally convertsa previously informal and occasional

rule into a written policy statementthat includes discipline and aoolies at all times.II

(emphasisaddedherein) l1Ie DevelopingLabor Law, 4thEd. Supp., 224 citing Sc~ter

                                   169 LRRM 2525 (D.C. Cir. 2002) In Sc~ter, the

employer unilaterally instituted a new rule, the violation of which could result in

                                   to                                      of
tenninationand requiredthe employees sign the policy as an "acknowledgement" its

                                                                   a
receipt. The Court held that the new work rule, which had converted previously

informal policy into a hard and fast rule and whoseviolation would subjectan employee

                   had                                                 ~
to summarydischarge, a significanteffect on the conditionsof employment.

       In this case,there are several"hard and fast rules" which appearto require a loss

of IOD status,evenwhen the subjectmatterof the rule may not be within the control of

the employee. For instance,SectionN (A) (9) requiresthe injured officer to obtain and

submit to the Chief, a completed"Physician'sReportof an EmployeeInjury". Failure to

producethe report within fifteen (15) daysof the injury will result in the time off being

treatedas unpaid leave,unlessand until the IOD claim is provedto the satisfactionof the

Chief. An injured employee,or evena healthyone for that matter, cannotcontrol if and



                                           8
when a treatingphysicianfills out paperwork The injured employeemay not evenknow

who it was that treatedhim or her, dependingupon where the treatmentwas obtained,

                       and
under what circumstances how long it takesfor the employeeto be in a sufficiently

healthy position to chasedown paperwork. This section of the policy is written with

                 -
mandatorylanguage "will be treatedas unpaidleave" insteadof discretionarylanguage

-    "may be treatedas unpaid leave", Once again,the Board is faced with the possibility

that an employeecould easilybe deprivedof rightful statutorybenefitsthroughthe whims

of a singleindividual or by a policy that is simply too rigid for the circumstances.

           SectionN (B) (7) providesanotherexampleof rigidity that result in punishment.

It provides that employeeswho fail to report for a medical examination "will be

considerednot to have provided sufficient proof of his/her status and will be removed

from injured on duty status. The employeemay also be subjectto discipline. Thus, the

employee who suffers a death in his or her family requiring attendanceat a funeral instead

of a doctor's appointment will be removed from laD status. The employeewho has no

transportation to a doctor's appointment because his or her medical conditions prohibit

driving and he or she could not find alternate transportation will be removed from IOD

status. An employee who fails to report becauseof an error in scheduling by the doctor's

office or becausehe or she did not receive timely notice of the appointment automatically

loses IOD status          The list could go on andon. While none of theseresults may be

                                                                        of
actually intendedby the draftsmanof the policy, they are mandatedbecause the way

                                                 to
the policy is written.6 This is very disconcerting the Board.

           EXCEPTIONS TO THE DUTY TO BARGAIN IN GOOD FAITH

          The obligation to bargaincontinueseven after a collective bargainingagreement

                as                                    not      in
hasbeennegotiated to any term or conditionof employment embodied the

         unless one party or both have waived their right to bargaining. NLRBv
agreement,

JacobsManufacturing Co. 196 F.2d 680, 20 LRRM 2098 (2nd Cir 1952) Waivers may

arise from the expressterms of the contract, from the failure of one party to request

                                               or
negotiations when infonned on prospectivechanges may be inferred from the history

of the parties' negotiations, Because right to demandbargainingis a statutoryrightt
                                     the

waiverswill not be readily inferredand will be found only when thereis "clear and


6   Of course,there is always the possibility that the draftsmandid intend to have such significant power
retained in the Chief.
                                                    9
unmistakable"evidencethat a waiver was intended. BozemanDeaconess
                                                                HosQit~l,322

                                     Co.,              131 LRRM
NLRB 1107,(1997) quotingJobnson-Batem~ 295 NLRB 180,184,

1393(1989) Also seeNLRA Law and Practice 12.04(9)

       Contractualwaivers aremost typically incorporated                   rights"
                                                        into the "management

clauseof contracts.Theseclausesgenerallyreserveto the Employer,the afflrmative right

to act unilaterally in regardsto specifiedsubjectsconcerningthe terms and conditionsof

                      Court has held that a waiver will not be inferredfrom
employment. The Supreme

                          and                 mustbe clear and unmistakable.
generalcontractuallanguage that waiver language

       Under federal lawt it is a settledconceptthat evenwhen there exists a mandatory

                                       to                                     to
subjectfor bargaining,unilateral changes sucha tenD or condition of employment,

be illegal, must be measuredagainstexiting rules to seewhether there is a significant,

substantialand material impact on employees'tenDSand conditions of employment. If

      by
changes an employerlack suchan impact, then no bargainingis required. Rust Craft

Broadcasting.225 NLRB 327 1976, United TechnologiesCom. 278 NLRB 306, 308

(1986), PeerlessFood PrQducts,236 NLRB 161 (1978).           Compare with W -1 Forest

Products                                                subject,in part
        Co., 304 NKRB 83, (1991)(smokingban was mandatory

      violation of the ban could leadto discipline)
because

       In this case,the Town arguesthat it was not required to bargain with the union

                                         the                           contains
over the tenns of this GeneralOrderbecause collectivebargainingagreement

a provision that allows the Town to reviserules andregulations,after discussionwith the

Union and that the Union's consentis not required. Therefore,the Town arguesthat

becauseit has reservedthe right to implement rules and regulations, then it had no

                                                                                      to
obligationto bargainover the creationof a light duty policy and the significant changes

the existing laD policy which could result in the deprivationof a statutorybenefit by an

injured employee. If the Town's logic is carriedto a natural conclusion,then the Town

could unilaterally implementany changeto any term or condition of employmentmerely

by issuinga role or regulation.

                                                          providesthat the town and
       Section3.3 (A) of the collective bargainingagreement

Union "shall recognizeand adhereto all provisions of federal, state and local laws, the

North Kingstown Police DepartmentRules and the terms of this agreement". Thus, any

rule or regulation which is subject to revision after discussionwith the Union (but not



                                          10
        by                          be
agreement the Union) must necessarily in compliancewith federal,stateand local

                                                                        rules and
laws.By Town Ordinance,the Chief only hasthe authorityto "enactreasonable

regulations covering the government, discipline, uniforms and equipment of police

officers and fixing their duties and prescribingpenaltiesfor violations of any suchrules

andregulations".

                                                                             by
          The provision of IOD benefitsto injured police officers is mandated R.I.G.L.

45-19-1 This statuterequiresvery simply that a municipality shall pay to the injured-on-

duty police officer, who is either wholly or partially incapacitated,during the period of

incapacity, the salaryor wagesand benefitsto which the police officer would havebeen

entitledhad he or shenot beenincapacitated.

          Therefore,this Board finds that the promulgationof the "GeneralOrder", doesnot

appearto be the type of rule or regulation that is authorizedby the North Kingstown

         Howevertevenif it were authorized the Ordinance, General
Ordinance.                               by             the     Order

                                                     to
impactson mandatorysubjectsfor bargainingand operates deprive an injured officer

                          benefitsin many circumstances requiresa partially
of statutoryand contractual                           and

incapacitatedofficer to involuntarily return to duty status. Therefore, the unilateral

implementationof the policy without bargainingin good faith is violative of R.I.G.L. 28-
7-13 (6) and (10). 7


                                   FINDINGS OF FACT

1) The Respondentis an "Employer" within the meaning of the Rhode Island State

      Labor RelationsAct.

2) The Union is a labor organization which exists and is constituted for the purpose, in

      whole or in part, of collective bargaining and of dealing with employers in grievances

                                     and                             within the
      or othermutualaid or protection as suchis a "Labor Organization"

      meaningof the RhodeIsland StateLaborRelationsAct.

                                                                            had
3) From 1983to July 31, 2000, the Town of North Kingstown's Police Department

      in effect "General Order No. 20, Seriesof 1983", which modified Section 306.4

      (Injuries) of the Department'sRules and Regulations.Said generalorder provided in

      pertinentpart "Membersof the North KingstownPolice Departmentwho areinjured




7   The Employeralso argues                     and
                           that it had bargained actuallyreachedagreement.However,the Employer
made only one change to the policy, implemented and then agreed to continue discussions. This is not
reaching an agreement.
                                                   11
   in the line of duty shall receive full salarywhile their incapacity exists,or until they

   areplacedon disability retirement."

4) On July 19, 2000, Police Chief JamesL. Wynn issueda draft copy ora new general

   order pertaining to line-or-duty injuries. On July 28, 2000, Union officials met with

   the Police Chief to discuss their concerns about the general order. After making one

   change to the document, the Police Chief implemented the general order on July 31,

   2000.

5) After the implementation of the General order, some additional discussionswere

   conducted and some correspondencewas exchangedbetween the parties

                             CONCLUSIONS OF LAW

                                                   and
 ) The issueof the receiptof injuredon dutybenefits the issueof "light duty" are

   mandatorysubjectsfor bargaining.

                                            of                    that
2) The Union has provenby a fair preponderance the credibleevidence the

   Employerhascommitteda violation ofR.I.G.L. 28.7.13 (6) and (10).

                                         ORDER
                                       and
1) The Employeris herebyorderedto cease desistfrom further useof the Injured on

   Duty policy, without fIrSt bargaining its implementation in good faith with the

   exclusivebargainingagent.




                                           12
                                  RHODE ISLAND STATE LABOR RELATIONS BOARD


                                               ~ Lt ~            'Chairman

                                                        bJ!"
                                                           ~;~ ~ ~
                                     _.:;~~~,.- .6" /1.~:~=~~~e!:=:~
                                          -"Wp---:an'f
                                       I'./'
                                                                              ---




                                                /)..R.Io~   $". ~-.e'Sl~Q."'~~:::'"
                                                  Gerald S. Goldstein, Member (Dissent)




                                  (/ M          ~oG~~~~ember


   ~ ~
Enteredasan Order of the
RhodeIsland StateLabor RelationsBoard

Dat d:
By:                              O04

   Robyn   TT.   lden,Ac .   Administrator



NOTE: Elizabeth S. Dolan, Board Member, recusedherself from participation in this
      matter.


ULP-S48S

								
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