Executive Office of Public Safety

Massachusetts Municipal Police Training Council

                                                                                                         

This document is protected by copyright and may not be copied. It may be printed or downloaded for the personal, noncommercial use of the reader.

 

 

THE CHIEF’S GUIDE TO LABOR RELATIONS

                                   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This project was funded by the

 

Massachusetts Municipal Police Training Council

 

Manual written by Attorney John M. Collins

and

The Staff of the Municipal Police Institute, Inc.


 

PREFACE

 

         

This manual has been produced under a contract from the Massachusetts Municipal Police Training Council to the Municipal Police Institute, Inc.  MPI is the charitable, non-profit research and training affiliate of the Massachusetts Chiefs of Police Association, Inc.  It is one of a series of publications aimed at providing chiefs, managers and municipal officials with a reference guide to some of the most pressing issues they face. 

          This manual has been written by Attorney John M. Collins and the staff of Municipal Police Institute, Inc.  Jack Collins has served as General Counsel to the Chiefs Association and MPI since 1973.  He and his firm have also served as Town Counsel and/or Special Labor Counsel to dozens of cities and towns over the years. 

          Typing and desktop publishing was done by Dawn Thompson and Cheryl Lott.  The manual’s cover and the accompanying multimedia presentation were prepared by graphic artist, Michael J. Collins.

          Readers are reminded that this is a resource manual.  It is not intended as a substitute for consultation with municipal labor counsel.

 

 

Chief George J. DiBlasi

Executive Director

Massachusetts Chiefs of

Police Association

 

 

 

 

 

 

© 2003 Municipal Police Institute, Inc.


INTRODUCTION

 

          Public safety unions have done a commendable job in advancing compensation and benefit levels for their members.  In many cases the unions were ahead of municipal officials when it came to understanding and benefiting from the State’s collective bargaining laws.  One result has been the steady erosion of management rights.  Often trading away essential tools a chief needs to operate efficiently, some municipal officials failed to grasp the significance of certain “no cost” contract clauses.  Unfortunately, efforts to regain such squandered rights have proven difficult and expensive.

The advent of collective bargaining has produced more changes in the administration of police departments than probably any other legislative action.  Few active chiefs recall a time when unions did not play a role in virtually every personnel and organizational decision they make.  Both management and labor share common goals of professionalization and rendering a high level of service to the public.  One of the challenges facing chiefs, municipal managers and officials, however, is how to balance the competing needs of enhancing working conditions and delivering increased levels of service while living within perpetually tight budgets.

           “Practice Pointers” throughout the manual contain commentary which chiefs may find helpful, especially when used in conjunction with advise from a municipality’s labor counsel. 

          The following abbreviations are used throughout the manual:

LRC

Labor Relations Commission

JLMC

Joint Labor Management Committee

SJC

Supreme Judicial Court

ALJ

Administrative Law Judge

The Law

M.G.L. c. 150E – The Collective Bargaining Law

NLRB

National Labor Relations Board

ADA

Americans With Disabilities Act

FLSA

Fair Labor Standards Act

Commission

Labor Relations Commission

FID

Firearms Identification Card

FMLA

Family Medical Leave Act

DPW

Department of Public Works

MCAD

Massachusetts Commission Against Discrimination


 

TABLE OF CONTENTS

EXECUTIVE SUMMARY

Managing Public Employees............................................................ i

Dealing Directly With Employees ................................................... i

Hiring and Creating a New Position ................................................ i

Workplace Rules and Practices ..................................................... ii

Changing Schedules to Avoid Overtime ......................................... ii

Benefits, Compensation and Leaves .............................................. ii

Employee Performance ................................................................ iii

Management Rights...................................................................... iii

Public Policy ................................................................................. iii

Promotions ................................................................................... iii

Appointments ............................................................................... iv

Contracting Out Bargaining Unit Work ......................................... iv

Civilian Dispatchers ...................................................................... iv

Sick and Injury Leave Rules .......................................................... v

Light Duty ..................................................................................... v

Doctor’s Certificates ..................................................................... v

Good Faith Bargaining ................................................................... v

Unilateral Changes in Working Conditions ................................. viii

Arbitrators’ Views ...................................................................... viii

The L.R.C.’s View.......................................................................... ix         

Mid-Term Bargaining .................................................................... ix

Furnishing Information ................................................................ ix

Prohibited Practices ...................................................................... x

Union Rights and Responsibilities ................................................. x

Chapter 1 - MANAGING PUBLIC EMPLOYEES............................................... 1-1

§ 1       Dealing Directly With Employees.................................................................. 1-1

A.     Operational and Emergency Decision-making..................................................................................... 1-3

B.     Decision-making Affecting Terms and Conditions of Employment................................................. 1-4

§ 2       Hiring & Creating New Positions................................................................... 1-4

§ 3       Waivers............................................................................................................ 1-6

1)      Waiver by Inaction............................................................................................................................. 1-6

2)      Waiver by Contract............................................................................................................................ 1-7

§ 4       Workplace Rules and Practices...................................................................... 1-8

A.     Hours......................................................................................................................................................... 1-8

B.     Overtime and Paid Details....................................................................................................................... 1-9

C.     Work Shifts and Schedules.................................................................................................................... 1-9

D.     Job Descriptions and Work Assignments......................................................................................... 1-10

E.      Promotion................................................................................................................................................ 1-11

F.      Dress and Grooming Regulations........................................................................................................ 1-11

G.     Residency Requirements...................................................................................................................... 1-13

H.     Transfers................................................................................................................................................. 1-13

I.      Weapons................................................................................................................................................. 1-14

J.      Off-Duty Employment........................................................................................................................... 1-15

K.     Non-Smoking rule.................................................................................................................................. 1-15

L.      Vacations................................................................................................................................................. 1-16

M.    Sexual Harassment Policy..................................................................................................................... 1-16

N.     Shift Swaps............................................................................................................................................. 1-16

O.     Domestic Violence Policy..................................................................................................................... 1-16

P.      Radio Procedures................................................................................................................................... 1-17

§ 5       Changing Schedules to Avoid Overtime....................................................... 1-17

A.     Contractual Constraints........................................................................................................................ 1-18

B.     Normal Work-Week Clauses................................................................................................................ 1-18

C.     Past Practice Clauses............................................................................................................................. 1-19

D.     Unilateral Change................................................................................................................................... 1-19

E.      Holiday Schedules................................................................................................................................. 1-20

F.      Minimum Staffing................................................................................................................................... 1-20

§ 6       Benefits, Compensation and Leaves............................................................ 1-21

A.     Wages...................................................................................................................................................... 1-21

B.     Meal and Coffee Breaks........................................................................................................................ 1-21

C.     Holidays and Vacations........................................................................................................................ 1-21

D.     Leaves of Absence................................................................................................................................ 1-22

E.      Take-Home Vehicles.............................................................................................................................. 1-22

F.      Recruit Academy Fees.......................................................................................................................... 1-23

G.     Increases Under Expired Contract....................................................................................................... 1-25

H.     Bicycle Patrols........................................................................................................................................ 1-26

I.      Other Benefits......................................................................................................................................... 1-26

J.      Bullet Resistant Vests........................................................................................................................... 1-26

K.     Health Insurance.................................................................................................................................... 1-27

§ 7       Employee Performance................................................................................. 1-28

A.     Performance Evaluations...................................................................................................................... 1-28

B.     Testing..................................................................................................................................................... 1-29

C.     Discipline................................................................................................................................................. 1-30

Chapter 2 - MANAGEMENT RIGHTS.................................................................. 2-1

§ 1       Public Policy..................................................................................................... 2-2

A.     Scope of Arbitration................................................................................................................................ 2-4

B.     Mandatory Subjects of Bargaining....................................................................................................... 2-5

C.     Assignment............................................................................................................................................... 2-7

§ 2       Promotions....................................................................................................... 2-9

A.     Mandatory Subject.................................................................................................................................. 2-9

B.     Bargaining Obligation............................................................................................................................. 2-9

1)      Notice................................................................................................................................................... 2-9

2)      Opportunity to Bargain.................................................................................................................... 2-10

C.     Remedy for Violation............................................................................................................................. 2-10

§ 3       Appointments................................................................................................. 2-11

A.     Hiring Decisions and Qualification Standards.................................................................................. 2-11

B.     Entry-Level Wages................................................................................................................................ 2-12

§ 4       Contracting Out or Transferring  Bargaining Unit Work............................ 2-13

A.     Contract Out/Non-Contract Out Clauses........................................................................................... 2-16

B.     Waiver..................................................................................................................................................... 2-16

C.     Absence of Clause................................................................................................................................. 2-17

§ 5       Reorganization............................................................................................... 2-17

§ 6       Civilian Dispatchers...................................................................................... 2-18

A.     Bargaining Unit Work........................................................................................................................... 2-18

B.     Substantial Detriment............................................................................................................................ 2-19

C.     Waiver of Bargaining Rights................................................................................................................ 2-19

D.     Shared Work Exception......................................................................................................................... 2-19

§ 7       Sick and Injury Leave Rules........................................................................ 2-20

A.     Mandatory Subject of Bargaining....................................................................................................... 2-22

B.     Notice to Union...................................................................................................................................... 2-22

C.     Opportunity to Bargain/Waiver........................................................................................................... 2-23

D.     Contractual Waiver................................................................................................................................ 2-23

E.      Impasse or Agreement.......................................................................................................................... 2-24

F.      Management Options............................................................................................................................ 2-24

1)      Strike or Job Actions........................................................................................................................ 2-24

2)      Reporting Forms............................................................................................................................... 2-25

3)      Restricting Conduct......................................................................................................................... 2-25

G.     Modifying I.O.D. Benefits.................................................................................................................... 2-27

H.     Involuntary Retirement......................................................................................................................... 2-29

§ 8       Light Duty...................................................................................................... 2-29

§ 9       Doctor’s Certificates..................................................................................... 2-31

A.     Injured on Duty Situations................................................................................................................... 2-31

§ 10     Defibrillators.................................................................................................. 2-32

Chapter 3 - Good Faith Bargaining............................................................ 3-1

§ 1       The Duty to Bargain........................................................................................ 3-1

§ 2       History of the NLRB....................................................................................... 3-1

§ 3       Scope of Bargaining........................................................................................ 3-2

§ 4       Mandatory Subjects........................................................................................ 3-2

§ 5       Non-Mandatory Subjects................................................................................ 3-3

§ 6       Improper (Illegal) Subjects............................................................................. 3-4

§ 7       The Meaning of  “Good Faith”....................................................................... 3-5

§ 8       Good Faith Requisites..................................................................................... 3-5

A.     Avoiding Surface and Regressive Bargaining.................................................................................... 3-6

B.     Establishing Ground Rules and Conducting Meetings..................................................................... 3-7

C.     Reducing the Agreement to Writing..................................................................................................... 3-8

D.     Reaching Impasse.................................................................................................................................... 3-9

§ 9       Remedies for Failure to Bargain in Good Faith........................................... 3-10

Chapter 4 - Management’s Duty to Bargain in Good Faith.......... 4-1

A.     Refusal to Negotiate................................................................................................................................ 4-1

B.     Attempts to Bypass the Union.............................................................................................................. 4-1

1)      Operational and Emergency Decision-Making.............................................................................. 4-1

2)      Matters Solely Affecting an Employee........................................................................................... 4-2

C.     Conditioning Bargaining on the Outcome of Pending Litigation..................................................... 4-3

D.     Failing to Appoint a Negotiator............................................................................................................. 4-3

E.      Failure to Support a Negotiated Agreement........................................................................................ 4-4

F.      Failure or Delay in Furnishing Requested Information...................................................................... 4-6

G.     Avoiding Unilateral Changes................................................................................................................. 4-6

H.     Granting Time Off For Bargaining......................................................................................................... 4-7

Chapter 5 - Union’s Duty to Bargain in Good Faith.......................... 5-1

A.     Refusal to Bargain in Good Faith........................................................................................................... 5-1

B.     Strikes and Work Stoppages.................................................................................................................. 5-1

C.     Failing to Furnish Information............................................................................................................... 5-2

D.     Impasse Procedures................................................................................................................................. 5-2

Chapter 6 - IMPASSE RESOLUTION PROCEDURES.................................... 6-1

§ 1       Composition of Committee.............................................................................. 6-1

§ 2       Jurisdiction....................................................................................................... 6-1

§ 3       Investigation and Mediation........................................................................... 6-2

§ 4       Fact Finding and Arbitration........................................................................... 6-2

§ 5       Scope of Arbitration........................................................................................ 6-4

§ 6       Limitations....................................................................................................... 6-4

§ 7       Funding the Contract....................................................................................... 6-5

Chapter 7 - CONTRACT INTERPRETATION.................................................... 7-1

A.     Judicial Review......................................................................................................................................... 7-1

B.     Meeting of the Minds............................................................................................................................. 7-2

C.     Oral Agreements...................................................................................................................................... 7-3

D.     Multi-Year Contracts............................................................................................................................... 7-3

E.      Zipper Clauses.......................................................................................................................................... 7-4

F.      Past Practices............................................................................................................................................ 7-5

G.     Expired Contracts..................................................................................................................................... 7-6

1)      Unilateral Change............................................................................................................................... 7-7

2)      Step Increases And Longevity......................................................................................................... 7-9

3)      Management Rights......................................................................................................................... 7-10

4)      Federal Cases on Past Practice....................................................................................................... 7-10

5)      Other Permitted Changes................................................................................................................. 7-10

6)      Grievance Arbitration....................................................................................................................... 7-11

Chapter 8 - gRIEVANCE ARBITRATION........................................................... 8-1

§ 1       Public Policy: Arbitration................................................................................ 8-1

§ 2       Grievance and Arbitration Procedures........................................................... 8-2

§ 3       Deferral to Arbitration.................................................................................... 8-3

§ 4       Constitutional Challenges to Arbitration........................................................ 8-7

Chapter 9 - unilateral changes in working conditions............ 9-1

§ 1       Arbitrators’ Views........................................................................................... 9-1

A.     Definition................................................................................................................................................... 9-2

B.     Burden of Proof........................................................................................................................................ 9-2

C.     Use of Past Practice................................................................................................................................. 9-4

D.     Contract Interpretation............................................................................................................................ 9-4

1)      Clarifying Ambiguities....................................................................................................................... 9-4

2)      Enforcing Contract Language........................................................................................................... 9-4

3)      Amending Contract Language......................................................................................................... 9-5

4)      Creating New Working Conditions.................................................................................................. 9-6

E.      Changing Past Practices......................................................................................................................... 9-7

F.      Establishing New Working Conditions................................................................................................ 9-7

G.     Past Practice Clauses............................................................................................................................... 9-7

H.     Arbitrability of Past Practice Grievances.............................................................................................. 9-8

§ 2       The L.R.C.’s View........................................................................................... 9-8

Chapter 10 - MID-TERM BARGAINING............................................................ 10-1

§ 1       Unilateral Changes........................................................................................ 10-1

§ 2       Subjects of Bargaining.................................................................................. 10-2

§ 3       Impact Bargaining......................................................................................... 10-3

§ 4       Decisional Bargaining................................................................................... 10-3

§ 5       Notice and Fait Accompli............................................................................. 10-4

§ 6       Impasse and Unilateral Action by Employer................................................ 10-4

§ 7       Remedy for Unilateral Action....................................................................... 10-5

§ 8       Unilateral Changes Not Requiring Bargaining............................................ 10-5

§ 9       Timing Mid-Term Bargaining....................................................................... 10-6

Chapter 11 - furnishing information.................................................... 11-1

§ 1       Internal Affairs Records............................................................................... 11-4

§ 2       Relevant and Reasonably Necessary.......................................................... 11-8

§ 3       Contract Negotiations................................................................................... 11-9

§ 4       Contract Administration................................................................................ 11-9

§ 5       Balancing Test............................................................................................... 11-9

§ 6       Legitimate and Substantial......................................................................... 11-10

§ 7       Waiver.......................................................................................................... 11-11

§ 8       Evaluations.................................................................................................. 11-11

§ 9       Sexual Harassment Files............................................................................ 11-12

§ 10     Remedies..................................................................................................... 11-13

Chapter 12 - PROHIBITED PRACTICES......................................................... 12-1

§ 1       STATUTE OF LIMITATIONS.................................................................... 12-2

§ 2       Section 10 (a) (1)............................................................................................ 12-3

§ 3       Section 10 (a)(2)............................................................................................. 12-6

§ 4       Section 10 (a)(3)............................................................................................. 12-7

A.     Protected, Concerted Activity............................................................................................................. 12-9

B.     Knowledge.............................................................................................................................................. 12-9

C.     Adverse Action.................................................................................................................................... 12-10

D.     Improper Motivation........................................................................................................................... 12-10

§ 5       Section 10 (a)(4)........................................................................................... 12-10

§ 6       Section 10 (a)(5)........................................................................................... 12-11

§ 7       Section 10 (a)(6)........................................................................................... 12-12

Chapter 13 - UNION RIGHTS AND RESPONSIBILITIES............................. 13-1

§ 1       Duty of Fair Representation......................................................................... 13-1

A.     Breach of Duty....................................................................................................................................... 13-1

B.     Primary Jurisdiction............................................................................................................................... 13-4

C.     Arbitrary, Discriminatory, Bad Faith................................................................................................... 13-4

D.     Personal Animosity............................................................................................................................... 13-5

E.      Discrimination......................................................................................................................................... 13-6

F.      Burdens of Proof.................................................................................................................................... 13-6

G.     Damages.................................................................................................................................................. 13-6

H.     Amount Apportioned............................................................................................................................ 13-8

I.      Interest and Attorneys Fees................................................................................................................ 13-8

§ 2       Union’s Refusal to Bargain in Good Faith................................................... 13-8

A.     Totality of Circumstances..................................................................................................................... 13-9

B.     Surface Bargaining............................................................................................................................... 13-10

C.     Specific Infractions.............................................................................................................................. 13-10

1)      Work Stoppages............................................................................................................................. 13-10

D.     Inflexibility............................................................................................................................................. 13-11

E.      Agency.................................................................................................................................................. 13-12

F.      Mootness.............................................................................................................................................. 13-12

§ 3       Organizing Efforts....................................................................................... 13-12

Chapter 14 - DRUG TESTING............................................................................ 14-1

§ 1       Constitutional Issues..................................................................................... 14-1

A.     U.S. Constitution.................................................................................................................................... 14-1

B.     Massachusetts Constitution................................................................................................................ 14-2

§ 2       Drug Testing and State Laws....................................................................... 14-3

A.     Probationary Employers........................................................................................................................ 14-4

B.     Bargaining Obligations......................................................................................................................... 14-6

1)      LRC Cases.......................................................................................................................................... 14-6

2)      Court Cases....................................................................................................................................... 14-8

§ 3       Drug Testing Procedures............................................................................ 14-12

A.     Initial Screening Tests......................................................................................................................... 14-13

B.     Confirmatory Tests.............................................................................................................................. 14-13

C.     Drug Test Plan Procedures................................................................................................................. 14-13

1)      Sample Collections......................................................................................................................... 14-13

2)      Sample Identification...................................................................................................................... 14-14

3)      Chain of Custody............................................................................................................................ 14-14

4)      Whom Performs the Test............................................................................................................... 14-14

5)      The Actual Test.............................................................................................................................. 14-14

6)      Employees’ Right to Retest........................................................................................................... 14-14

7)      Analyzing Test Results................................................................................................................. 14-14

8)      Reporting Result and Record Keeping........................................................................................ 14-14

§ 4       Effects of Drug Use..................................................................................... 14-15

A.     Marijuana.............................................................................................................................................. 14-15

B.     Cocaine.................................................................................................................................................. 14-15

C.     Opiates................................................................................................................................................... 14-15

D.     Phencyclidine....................................................................................................................................... 14-16

E.      Amphetamines...................................................................................................................................... 14-16

Chapter 15 - representation and the bargaining unit............. 15-1

§ 1       Selecting an Employee Representative....................................................... 15-1

A.     Voluntary Recognition.......................................................................................................................... 15-1

B.     Representation Petition Procedures and Hearings........................................................................... 15-2

C.     Bars to Processing the Certification Petition..................................................................................... 15-3

D.     Election Procedures............................................................................................................................... 15-4

§ 2       Establishing the Bargaining Unit.................................................................. 15-5

A.     Statutory Criteria for Bargaining Units............................................................................................... 15-6

1)      Community of Interest..................................................................................................................... 15-6

2)      Efficiency of Operations and Effective Dealings......................................................................... 15-9

3)      Safeguarding Employee Rights to Effective Representation..................................................... 15-9

B.     Policy Considerations........................................................................................................................... 15-9

1)      Commission Discretion.................................................................................................................... 15-9

2)      Broad, Comprehensive Units.......................................................................................................... 15-9

3)      Regional Units................................................................................................................................. 15-10

4)      Unit Stipulation and Employee Preference................................................................................. 15-10

C.     Positions Requiring Special Consideration...................................................................................... 15-10

1)      Excluded  Employees...................................................................................................................... 15-10

2)      Professional Employees................................................................................................................. 15-14

3)      Supervisory Employees................................................................................................................. 15-15

4)      Chiefs................................................................................................................................................ 15-17

5)      Part-time, Seasonal, Casual Employees....................................................................................... 15-18

6)      DISPATCHERS............................................................................................................................... 15-18

§ 3       Adding or Severing Positions from the Bargaining Unit............................ 15-19

A.     Severance.............................................................................................................................................. 15-19

B.     Stipulation............................................................................................................................................. 15-21

C.     Accretion............................................................................................................................................... 15-21

§ 4       Agency Service Fees and Union Dues....................................................... 15-23

§ 5       Decertification............................................................................................. 15-27

APPENDIX........................................................................................... A-1


Executive Summary

 

Public safety unions play a role in virtually every personnel and organizational decision made by police chiefs.  As a result of a lack of understanding of the state’s collective bargaining laws by some municipal officials, there has been a steady erosion of management rights.  This manual seeks to provide Chiefs and municipal officials with an understanding of Massachusetts collective bargaining laws.

 

MANAGING PUBLIC EMPLOYEES

In dealing with public employees, a chief or manager must keep in mind all of the Law’s bargaining requirements.  There are few changes involving or affecting working conditions that a public employer can make without discussing the matter first with the employees’ elected representative, through either impact or decisional bargaining.[1]

 

DEALING DIRECTLY WITH EMPLOYEES

An employer may not bypass the union and deal directly with an employee on matters that are properly the subject of negotiations with the bargaining unit’s exclusive representative.  Such an action would violate the employer’s duty to bargain in good faith and would constitute a prohibited labor practice under Massachusetts law.[2]  Thus, a chief must give notice and an opportunity to bargain to the union whenever the chief wants to implement a change involving or affecting wages, hours, and other terms and conditions of employment.

 

HIRING AND CREATING A NEW POSITION

Conditions imposed on applicants for a job, i.e., “conditions for hire”, are not subject to a bargaining obligation, because “mere applicants for hire, who have had no prior employment within the bargaining unit in question, are not employees in the unit within the meaning of Section 5” of Chapter 150E.[3]  Thus, for example, requiring drug and alcohol tests of all applicants is outside the scope of bargaining.[4] 

Nevertheless, when an employer’s hiring decisions impact the terms and conditions of employment of future or existing bargaining unit members, the LRC has allowed the unions to challenge the practice.  Challenges to an employer’s hiring practices generally involve two types of disputes:  1) transfer of bargaining unit work to non-bargaining unit members, [5] and 2) imposing new obligations on applicants which carry over into employment.[6]

 

WORKPLACE RULES AND PRACTICES

An employer may impose and enforce a variety of workplace rules and regulations, ranging from dress codes to job procedures, as long as the union has notice and opportunity to bargain.  Only material changes (not merely procedural ones) require notice and bargaining.[7] The following issues are but a few examples of mandatory subjects of bargaining:

1.                 hours that an employee is required to work[8]

2.                 implementing a new work schedule[9]

3.                 changing job descriptions[10]

4.                 changing promotion criteria[11]

5.                 performance evaluation systems[12]

6.                 dress and grooming regulations[13]

7.                 implementing a new sexual harassment policy.[14]

 

CHANGING SCHEDULES TO AVOID OVERTIME

In the absence of any restriction in the collective bargaining agreement, a municipal employer may change employees’ schedules in an effort to reduce overtime costs.  Even where no contractual constraints are present, the employer must provide advance notice to the union of the intention to change the schedule and, if requested, bargain in good faith to either agreement or impasse over the impact of such change on mandatory subjects of bargaining.

 

BENEFITS, COMPENSATION AND LEAVES

Compensation, including wages, pensions, severance pay, insurance, and educational incentives, are a mandatory subject of bargaining.[15]  Rest periods, such as coffee or snack breaks, require compensation.  Employers must bargain before changing a past practice or contract provision regarding holidays[16], vacation, leaves of absence, or take-home vehicle[17] policies.

 

 

 

EMPLOYEE PERFORMANCE

Because performance evaluations have a direct impact on job security and professional advancement, they are a mandatory subject of bargaining.[18]  An employer must bargain over the decision to implement or change the performance evaluation method in addition to the impact of the decision.[19]  Testing, including drug and psychological tests, may be used on employment applicants.  However, if used in the course of employment, such tests may only be instituted after notice and bargaining.[20]  Prior bargaining is not required for tests administered to an employee in the course of a criminal investigation.[21]  The establishment or unilateral change of discipline procedures is a mandatory subject of bargaining.[22]  Whenever disciplining an employee, the employer must be cautious to avoid infringing on the employee’s exercise of Constitutional as well as collective bargaining rights.  Discipline must be commensurate both with the nature or severity of the violation and with the discipline given to other similarly situated employees.

 

MANAGEMENT RIGHTS

The Labor Relations Commission has refused to enforce general “management rights” clauses.  In order to show that the union waived certain rights in a management rights clause, the Commission requires a clear showing that there was an awareness of the right, some opportunity, if not actual discussion, and a “meeting of the minds”.  The possible sources of management rights are statutes, “inherent” in the nature of public administration, and the collective bargaining agreement.

 

PUBLIC POLICY

Massachusetts courts and the Labor Relations Commission have made it clear that, even if an agreement is reached and a provision is included in a contract, there are certain matters of inherent managerial prerogative which cannot be bargained away as a matter of public policy.  To do so would pose the danger of distorting the normal political process for patrolling public policy.[23]

 

PROMOTIONS

A municipal employer must provide the union (or other bargaining representative) with notice of any proposed change in the procedures to be used in making promotions to positions within the bargaining unit and to certain “non-unionized” positions outside the bargaining unit.[24]  If the union makes a timely demand to bargain, the employer must engage in good faith negotiations until either agreement or impasse before implementing the proposed changes.

 

APPOINTMENTS

An employer is free to determine non-discriminatory qualifications for job vacancies.  Both the National Labor Relations Board and the Massachusetts Labor Relations Commission have held that hiring decisions and qualification standards are not subject to bargaining.[25]  However, establishing wages for entry-level employees is a mandatory subject of bargaining.[26]  If a municipal employer wants to hire someone at a rate or step different from that set by a collective bargaining agreement, it must so notify the union.  It is not necessary to secure the union’s consent so long as the municipal employer provides notice and opportunity to bargain.[27]  While the cases are not clear, it is likely that bargaining in good faith to the point of agreement or impasse is all that is required.

 

CONTRACTING OUT BARGAINING UNIT WORK

Often, to save money, municipal employers want to contract certain tasks, currently being performed by bargaining unit personnel, out to the private sector or other non-unit employees.  Whether an employer is restricted from contracting out work depends on whether it is expressly barred from doing so in the collective bargaining agreement.[28]  In the absence of a contractual prohibition, an employer is free to contract out bargaining unit work so long as it fulfills its mid-term bargaining obligations.  Because “contract out” and “non-contract out” clauses constitute a waiver of a party’s respective rights, the Labor Relations Commission will only enforce them if they are clear and unambiguous.[29]

 

CIVILIAN DISPATCHERS

Police departments may utilize civilian dispatchers in place of sworn personnel.  If dispatching is bargaining unit work, assigning it to persons outside the bargaining unit is subject to mandatory bargaining.[30]  In order to prevail in a charge of prohibited (unfair labor) practice before the Labor Relations Committee, the union must prove that the work assigned constituted bargaining unit work and that the change had a substantially detrimental effect on the bargaining unit.[31]

 

 

SICK AND INJURY LEAVE RULES

Chiefs may make rules concerning eligibility for sick or injury leave, so long as they do not conflict with the terms of the collective bargaining agreement.[32]  Notice to the union and bargaining upon demand to the point of agreement or impasse is generally required.[33]

 

LIGHT DUTY

A department may require injured police employees to perform modified or light duty rather than allowing such individual to remain out of work with pay on either sick or injured on duty status.  If a department has traditionally allowed injured employees to remain on § 111F until able to perform all their duties, notice and an opportunity to bargain will be required before such § 111F eligibility criteria are changed, or more properly, before assigning such partially disabled employees to a light duty position.[34]

 

DOCTOR’S CERTIFICATES

Under certain circumstances, a municipal employer may require a doctor’s certificate as a condition of an injured employee being placed on sick or injury leave, and/or returning to work in either a light or full-duty capacity.  In the absence of any controlling provision in the collective bargaining agreement, an employer is free to provide the union with notice and opportunity to bargain regarding its intention to require a doctor’s certificate as a condition for sick leave eligibility. 

 

GOOD FAITH BARGAINING

 

DUTY TO BARGAIN

Massachusetts General Law Chapter 150E directly imposes a duty to bargain in good faith on both labor and management.  A party that  bargains in bad faith commits a prohibited practice pursuant to sections 10(a)(5) (employer) and 10(b)(2) (employee organization) of the Law.

 

HISTORY OF THE NLRB

The obligation to bargain in good faith, while not specifically addressed in the text of the National Labor Relations Act, was imposed by the National Labor Relations Board as being within the intention of the Act.[35]  The Act only applies to private sector employers and employees.  Thus, while the decisions of the National Labor Relations Board are influential and relevant authority on state public labor sector issues, they are not controlling in Massachusetts.

 

SCOPE OF BARGAINING

Collective bargaining subjects are divided into three categories:  mandatory, nonmandatory, and illegal.  The composition of each category is somewhat fixed by precedent, but the Labor Relations Commission and the courts have the discretion to define what constitutes a mandatory versus permissive subject.[36]  Mandatory subjects include those subjects that have a direct effect on the terms and conditions of employment, such as wages and hours,[37] health insurance benefits,[38] and job duties and work assignments[39].  Nonmandatory subjects of bargaining are those which involve core governmental decisions, such as the reduction of nonscheduled overtime opportunities,[40] the decision to create or abolish positions,[41] and wage parity clauses[42].

 

THE MEANING OF GOOD FAITH

Both the federal and state approach to defining the term “good faith” in the bargaining context involve looking at the totality of the parties’ conduct, both at the bargaining table as well as away from it.[43]  The duty to bargain under Chapter 150E, Section 6 is a duty to meet and negotiate and to do so in good faith.  Neither party is compelled, however, to agree to a proposal or to make a concession.  “Good faith” implies an open and fair mind as well as a sincere effort to reach common ground.

 

GOOD FAITH REQUISITES

Fundamentally, neither management nor labor may refuse to bargain over a mandatory subject of bargaining.[44]  Beyond this requirement, the parties to a labor negotiation have several additional duties:  avoid surface and regressive bargaining;[45] establish ground rules for negotiations; conduct meetings; reduce the agreement to writing;[46] and bargain to agreement or impasse over mandatory subjects of bargaining.

 

REMEDIES FOR FAILURE TO BARGAIN IN GOOD FAITH

The Labor Relations Commission has the authority to fashion remedies for violations of the Law.  The usual remedy when a respondent has refused to bargain in good faith is to issue a cease and desist order and an order that the respondent bargain in good faith on demand.[47]

 

 

 

MANAGEMENT’S DUTY TO BARGAIN IN GOOD FAITH

Aside from the good faith requisite applicable to both parties, there are a number of party-specific duties.  Neither labor nor management can refuse to negotiate after a request for bargaining.  A public employer can be charged with refusing to bargain by directly turning down a union’s request to bargain, or by acting in a manner that demonstrates that the employer is avoiding the duty to bargain.  The following are examples of actions which constitute a refusal to bargain by a public employer:  attempting to bypass the union and deal directly with an employee on topics that are properly the subject of negotiation;[48] conditioning bargaining on the outcome of pending litigation;[49] failing to appoint a negotiator;[50]  failure to support the agreement before the legislative body and to submit the cost items for funding to the appropriate financing authority;[51] failure or delay in furnishing requested information to the union which is relevant and reasonably necessary for the union to perform its duties;[52] and making unilateral changes at the expiration of a collective bargaining agreement without at least notice to the union.[53]

 

UNION’S DUTY TO BARGAIN IN GOOD FAITH

Public employee labor unions have the same duty to bargain in good faith as employers.[54]  There is no obligation to bargain over a permissive subject of bargaining, but if the union fails to bargain, management may implement its mid-term proposal.[55]  A union can fail to satisfy the good faith requirement if it refuses to even consider the employer’s proposals[56] or circumvents the employer’s selected representative[57].  The Law also prohibits strikes, including slowdowns or withholding of services.[58]  Failure to provide information requested by the employer which is reasonably related to the bargaining process or to administering the contract will also be a violation of the good faith requirement.

 

IMPASSE RESOLUTION PROCEDURES

Deadlocks occurring during negotiations over a collective bargaining agreement involving public safety bargaining units may be submitted to the Joint Labor-Management Committee for investigation and resolution.  The JLMC may invoke all traditional methods of impasse resolution procedures including mediation, fact-finding and arbitration.

 

CONTRACT INTERPRETATION

The parties to a collective bargaining agreement may disagree about the proper interpretation of the agreement’s provisions.  The collective bargaining agreement itself may provide a resolution mechanism for contract disputes in the form of binding grievance arbitration.  In the absence of such a provision, the Labor Relations Commission may order the parties to participate in a binding grievance arbitration.  Frequent areas of dispute involve oral agreements, past practices, multi-year contract provisions, zipper clauses, and whether the parties ever had a meeting of the minds on the particular contract provision.

 

GRIEVANCE ARBITRATION

In this country, there is a long-standing public policy favoring the submission of contractual labor disputes to arbitration through the grievance procedure.  Parties to a collective bargaining agreement can arrive at binding grievance arbitration in one of two ways.  The first way is by inserting a provision in the collective bargaining agreement mandating arbitration as a means of settling disputes with respect to the interpretation of the contract.[59]  Second, the parties can arrive at mandatory arbitration by an order of the Labor Relations Commission when there is no provision in the collective bargaining agreement dealing with grievance arbitration.[60]

 

UNILATERAL CHANGES IN WORKING CONDITIONS

The existence of a past practice is often important in the labor relations context during grievance arbitration and when a union files a prohibited practice charge at the Labor Relations Commission.  Unless a certain practice is incorporated in the collective bargaining agreement, or there is a “past practice clause” in the contract, management is free to propose a change.  When the proposal is made outside regular contract negotiations, all that is required is that the union be provided with notice and the opportunity to bargain.

 

ARBITRATORS’ VIEWS

When an arbitrator attempts to interpret the meaning of a provision in the collective bargaining agreement, he or she will look to the course of conduct between the parties (i.e. past practice) to help determine what the parties had in mind when they included such a provision in the contract.  Arbitrators are free to adopt their own definition of what constitutes a past practice.

In the arbitration context, whichever party asserts the existence of a past practice must prove that mutuality exists by showing that there was some implied agreement by mutual conduct on the part of both management and labor and show the scope of the alleged past practice.

Arbitrators generally utilize the determination of a past practice in one of the following ways:  to clarify any ambiguous language in the agreement; to enforce general contract language; to alter or amend the plain language of the agreement; or to establish new and independent working conditions.

 

THE L.R.C.’S VIEW

When a past practice involves a mandatory subject of bargaining, an employer commits a prohibited practice when it unilaterally changes such a past practice without providing the union with notice and an opportunity to bargain to the point of agreement or impasse.  Even where employer action is authorized unilaterally (e.g., where a management right is involved), an employer must bargain upon request with the union over the impact of such change upon mandatory subjects of bargaining.  The Labor Relations Commission requires a union to prove the existence of a condition of employment in order to sustain a charge of prohibited practice which alleges a unilateral change.[61]

 

MID-TERM BARGAINING

Unless specifically prevented from doing so by the provisions of a collective bargaining agreement, a municipal employer is free to institute changes during the life of a contract.  Where the proposed change involves an exclusive managerial prerogative or a permissive subject of bargaining, negotiations are required upon request to bargain only over the impact of the change on mandatory subjects of bargaining.  Prior to implementing a change in a mandatory subject of bargaining, the union is entitled to notice and the opportunity to request bargaining over both the decision and the impact to either agreement or impasse.  As long as the negotiations proceed in good faith, management may implement its position upon reaching impasse (or whenever the union bargains in bad faith.)

 

FURNISHING INFORMATION

As part of its requirement to conduct good faith bargaining, a public employer has an obligation to furnish information in its possession which is requested by the union – so long as the requested information is relevant and reasonably necessary to the union’s duties as a collective bargaining representative.[62]  The obligation to provide information arises both in the context of contract negotiations and contract administration.[63]  An employer may not refuse to provide the requested information simply because it is otherwise available to the union through the same source, e.g. public records request.[64]  A public employer may lawfully refuse to furnish a union with information it has requested if the employer has met its burden of demonstrating that its concerns about disclosure are legitimate and substantial when weighed against the union’s need for the information.[65]

 

PROHIBITED PRACTICES

Under Section 10 of Chapter 150E, it is a prohibited practice for an employer or its designated representative to:

Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter;

Dominate, interfere, or assist in the formation, existence, or administration of any employee organization;

Discriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization;

Discharge or otherwise discriminate against any employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony under this chapter, or because he has informed, joined, or chosen to be represented by an employee organization;

Refuse to bargain collectively in good faith with the exclusive representative as required in section six; or

Refuse to participate in good faith in the mediation, fact-finding, and arbitration procedures set forth in sections eight and nine.

 

UNION RIGHTS AND RESPONSIBILITIES

 
DUTY OF FAIR REPRESENTATION

A union has a duty to represent fairly all of the employees who are in its bargaining unit, not just those who are union members.[66]  It must do so without hostility or discrimination toward any, and must exercise its discretion in complete good faith and honesty.[67]  The goal of this duty is to protect an individual’s rights in a bargaining unit without undermining the collective interests.[68]  As to what constitutes “fair representation”, the most common area of disputes arise in the context of an employee who believes his union has breached its duty of fair representation when it failed to process his grievance and/or arbitrate his grievance.[69]  Where a union has breached its duty of fair representation, it has committed an actionable prohibited (unfair labor) practice under Chapter 150E.[70]

 

UNION’S REFUSAL TO BARGAIN IN GOOD FAITH

Where a union is found to have refused to bargain or has bargained in bad faith, its conduct violates Section 10(b)(2) of Chapter 150E.  Bad faith bargaining or refusals to bargain fall primarily into two categories:  those which pertain to the union’s lack of interest in reaching an agreement through “surface bargaining”;[71] and those based on overt acts.[72]  The use of illegal or other inappropriate work delays or stoppages as part of the negotiation process constitutes a refusal to bargain in good faith where it is used as a tactic to obtain concessions at the bargaining table.[73]  A second area where union refusal to bargain cases arise occurs where the union has a highly inflexible attitude toward the employer’s proposals.[74]

 

DRUG TESTING

Drug testing among governmental workers has increased in recent years.  However, in Massachusetts, public safety unions have resisted most efforts at testing employees.  Although permitted by the U.S. Constitution, the random testing of tenured public safety employees violates the Massachusetts Constitution.[75]  Probable cause testing, on the other hand, may be conducted without a warrant.

Drug testing is a mandatory subject of bargaining.[76]  As such, an employer is required to provide the union with notice and the opportunity to bargain before implementing a new drug testing policy or changing an existing one.  Pre-employment testing of applicants, as well as random testing of probationary employees and those attending a basic academy, are lawful.

 

REPRESENTATION AND THE BARGAINING UNIT

The public employer will face a number of issues pertaining to the composition of the bargaining unit.  These issues include:  the proper place for supervisory personnel (including, in some cases, managers such as the chief), challenges to the existing bargaining unit, representation proceedings and elections, and unit membership of part-time or casual employees.  Unit composition issues have an effect on the entire bargaining relationship, and often influence the tenor and progress of individual negotiation sessions.

Chapter 150E grants the Labor Relations Commission (LRC) the power to establish regulations for representation elections and criteria for appropriate bargaining units.  The LRC is required to take into account the following criteria for bargaining units:  community of interest, efficiency of operations and effective dealings, and safeguarding the rights of employees to effective representation.

 

SELECTING AN EMPLOYEE REPRESENTATIVE

There are two main procedures for establishing a bargaining representative.  First, a public employer may voluntarily recognize an employee organization designated by a majority of employees in the bargaining unit as the exclusive bargaining representative.[77]  Second, the LRC is empowered with the authority to conduct hearings and elections.[78]

 

ESTABLISHING THE BARGAINING UNIT

While the parties may stipulate to an appropriate bargaining unit, the LRC retains the authority to make a final determination based on statutory and public policy considerations.[79]  Although bargaining unit composition issues first arise when the unit is formed, compositional challenges may also arise later in the parties’ bargaining relationship if conditions have changed since the unit was certified or voluntarily recognized.

 

ADDING OR SEVERING POSITIONS FROM THE BARGAINING UNIT

After a bargaining unit has been certified, issues regarding “appropriateness” of the bargaining unit may continue to arise. [80]  The LRC generally favors larger units and discourages the severance of positions form an existing bargaining unit unless the employees at issue have distinct issues apart from other unit employees.[81]  However, they generally adopt an agreement or stipulation of the parties concerning exclusion of a position from an existing unit unless the stipulation violates its rules and/or practices.

 


 


Chapter 1 -  MANAGING PUBLIC EMPLOYEES

 

Notwithstanding the complicated nature of the employer’s bargaining duty, the public employer also has a responsibility to effectively manage employees.  This chapter will address particular management issues public employers must face each day, and will attempt to provide some insight into what standards or practices a manager can reasonably expect or request (before bargaining), or enforce (after bargaining).[82]

In dealing with public employees, a chief or manager must keep in mind all of the Law’s bargaining requirements; there are few changes involving or affecting working conditions that a public employer can make without discussing the matter first with the employees’ elected representative, through either impact or decisional bargaining.[83]

In a 2002 Supreme Judicial Court decision involving the Worcester Police Department, the court upheld the Labor Relations Commission’s decision that the decision to engage police officers in enforcing laws pertaining to school attendance implicated the city’s ability to set its law enforcement priorities, and thus was not subject to bargaining.[84]  The city was not required to explain its decision, so long as it was a matter of policy.[85]  Since the city failed (neglected?) to raise an argument on appeal to the SJC, the Commission’s order requiring bargaining over the impact of the city’s policy decision, the court treated that as a waiver and (reluctantly?) upheld that part of the LRC’s decision.[86]

 

PRACTICE POINTERS

The Court’s decision in the City of Worcester case contains an extensive discussion of management rights.  It points out, for example, that setting the priorities for the deployment of law enforcement resources is purely a matter of policy and not a proper subject for collective bargaining.

Other examples of exclusive managerial prerogative cited by the SJC in City of Worcester include:  the decision to reduce staff; having one as opposed to two officers assigned to each cruiser; requiring police officers suspected of criminal conduct to take a polygraph examination; reassigning duties formerly performed by police prosecutors to town counsel; and ceasing to require the presence of arresting officers at arraignment.  While the latter two examples required impact bargaining, the court in Worcester hinted that if the city had properly raised the argument on appeal, the court might have ruled that no impact bargaining was required.

§ 1     Dealing Directly With Employees

An employer may not bypass the union and deal directly with an employee on matters that are properly the subject of negotiations with the bargaining unit’s exclusive representative.  Such an action would violate the employer’s duty to bargain in good faith and would constitute a prohibited labor practice under Massachusetts law.[87]

Thus, a chief must give notice and an opportunity to bargain to the union whenever he/she has a proposed change involving or affecting the wages, hours, and other terms and conditions of employment (i.e., mandatory subjects of bargaining).  An exception would be when an employer conducts an informational survey of employees but this is not related to bargaining nor intended to undermine the union, such as a sick leave attitude survey.[88]

In a 2000 SJC decision, a union sought review of a decision of the Labor Relations Commission[89], concluding that a public employer did not violate its statutory duty to bargain in good faith.[90]  The Supreme Judicial Court held that employer’s survey of employees regarding sick leave, issued when the employees’ union and the employer were engaged in collective bargaining, was statutorily prohibited direct dealing.

Although Supreme Judicial Court gives weight to the Labor Relations Commission’s experience and authority, it does not affirm Commission decisions that are inconsistent with law.[91]

The court noted that a public employer has a duty to refrain from circumventing a union by dealing directly with bargaining unit employees as to mandatory subjects of negotiations; direct dealing violates the union’s statutory right to speak exclusively for the employees who have elected it to serve as their sole representative, and undermines employees’ belief that the union actually possesses the power of exclusive representation to which it is statutorily entitled.[92]

The court ruled that a public employer may not survey its employees about mandatory subjects of collective bargaining if the employees belong to a bargaining unit represented by a union at a time when the union is engaged or preparing to engage in collective bargaining with the employer, regardless of whether the employer intends to erode the bargaining position of the union; employers who solicit this information directly from employees vitiate the union’s role as the exclusive voice of employees in negotiations, and obtain a valuable index of employees’ willingness to consider various combinations of bargaining terms from the employer.

The intent on the part of a public employer to erode the bargaining position of a union is not a necessary element of statutorily prohibited direct dealing; such intent is extraordinarily difficult to prove, and unions are harmed by direct dealing regardless of whether it is intended by the employer.

When direct evidence of an employer’s intent to gain an advantage in negotiations is available, such evidence can be relevant to whether the employer’s activity was statutorily prohibited direct dealing.

An employer’s communication with its employees is direct dealing if its purpose “or” effect is the erosion of the union’s status as exclusive bargaining representative.

Employers are responsible for the foreseeable consequences of employee surveys regardless of their subjective intent.

Public employer’s survey of employees regarding sick leave, issued when the employees’ union and the employer were engaged in collective bargaining, was statutorily prohibited direct dealing; paid leave generally, including sick leave, was a term or condition of employment and was thus a mandatory subject of collective bargaining, as were policies that determined the availability of leave for employees, such as the method whereby an employee was required to verify his claim of eligibility for leave.

In a 2002 unpublished Appeals Court decision (which the SJC declined to review[93]) the Town of Mansfield appealed from a decision of the commission concluding that the town had violated G.L. c. 150E, §§ 10(a)(1) and 10(a)(5), by eliminating three patrol officer positions from the police department’s split shift in such a manner as to present the union with a fait accompli.[94]  The town was ordered, inter alia, to bargain collectively in good faith, upon request of the union, over the impact of eliminating the positions of three patrol officers from the split shift.

On January 2, 1996, the police chief posted a memorandum which stated that the split shift would no longer be available to patrol officers and only a sergeant and a dispatcher would be assigned to that shift. Formerly, three patrol officers, as well as a sergeant and a dispatcher, had been assigned to the split shift. The memorandum stated that the closing date for the annual shift bidding was January 9, 1996, and the new assignments would take effect on January 19, 1996. The union did not make a demand to bargain.

The commission ruled that while the town’s decision to eliminate three positions on the split shift was a decision over which it was not obligated to bargain, that decision had a direct impact on the patrol officers’ hours of work, and hence the impact was a mandatory subject of bargaining under G.L. c. 150E, § 6.

The Appeals Court held that the town’s claim that its decision to reduce the staffing of the split shift did not alter the terms and conditions of employment or that the impact was de minimis is without merit. See Burlington v. Labor Relations Commn.,[95] where the court held that when two members of the union suffered a loss of pay, this was a matter directly affecting the wages, terms, and conditions of employment. Here, the court noted, contrary to the town’s contention, the decision directly affected the hours, a matter included within G.L. c. 150E, § 6, of at least three patrol officers.  (It may also have affected officers on the other three shifts who may have been displaced because officers who would otherwise have bid on the split shift were obliged to bid on one of the other three shifts.)

As regards the town’s claim that requiring it to bargain over the impact of its decision interferes with its ability to determine important municipal policy, the court stated that this was likewise without merit. In Boston v. Boston Police Patrolmen’s Assn.[96], the police department instituted a plan which, inter alia, provided for the assignment of one officer per marked patrol vehicle instead of two. While, as here, that decision was a managerial one that the department could undertake without bargaining, the court pointed out that “the city correctly concede[d] that, if a managerial decision has impact upon or affects a mandatory topic of bargaining, negotiation over the impact is required.”[97]

The town also challenged what it calls the commission’s conclusion that the union did not waive its right to bargain over the impact of the decision. It claims that, because the union did not request to bargain when it had a reasonable opportunity to negotiate and unreasonably or inexplicably failed to bargain or to request bargaining, it waived its right to bargain.[98]  The commission did not rule on waiver because, according to the court, it appropriately takes the position that the doctrine of waiver by inaction does not apply where the union is presented with a fait accompli.[99]  It determined that given the short period of time that the bargaining unit members had to apply for their shifts, the employer’s conduct presented the union with a fait accompli; that is, under all the facts, the employer’s conduct had progressed to that point at which a demand to bargain would have been fruitless.[100]  The town’s contention that the commission should have looked to the date of implementation, January 19, rather than the date of bidding, January 9, is a matter within the discretion of the agency which the court declined to overrule.

A.              Operational and Emergency Decision-making

In an emergency situation, such as calling in off-duty police officers to respond to a violent public disturbance, common sense would indicate that a chief may make any necessary decisions to preserve public safety and execute the duties of the department.  On several occasions, Massachusetts courts have recognized the need for allowing municipal employers the flexibility to deal with emergencies and public safety issues.[101]  

PRACTICE POINTERS

There are as yet no Labor Relations Commission (LRC) cases specifically designating an “emergency exception” to the employer’s responsibility to consult the union prior to implementing changes affecting the terms and conditions of employment.  Therefore, a chief should be careful to ascertain whether the situation is truly an emergency, or whether the matter can first safely be taken up with the union prior to the change.

A chief may also implement strictly operational decisions not affecting mandatory subjects of bargaining, without consulting the union.  While this is true as a general principle, a chief must be cautious in defining what is a strictly operational decision.  Any time wages, hours or terms and conditions of employment are implicated, the union must be notified and given the opportunity to bargain.  Examples of operational decisions could include changing the method of executing a search warrant or altering patrol routes.

B.              Decision-making Affecting Terms and Conditions of Employment

Whenever a proposed change could potentially affect terms and conditions of employment, the chief must notify the union prior to making the change.  Sufficient notice must be given so that the Union has the opportunity to request bargaining.  Instituting a unilateral change involving a mandatory subject of bargaining without so notifying the union is a prohibited (unfair labor) practice.[102]   Even if the subject matter of the decision implicates only non-mandatory or permissive subjects of bargaining, the employer is still required to give notice to the union and the opportunity to bargain before making the change if the change will affect a mandatory subject.[103]  It is essential that a chief allow sufficient time to bargain with the union beforehand.  The employer must then bargain in good faith until agreement or impasse, and then may implement the change.

PRACTICE POINTERS

If the decision involves a mandatory subject of bargaining, the employer should first determine whether the issue was addressed in the collective bargaining agreement.  If the issue was specifically dealt with in the agreement, the union probably will refuse to bargain and insist that the employer wait until the current contract expires before discussing the change.  So long as the matter has not been dealt with comprehensively in the existing contract, or unless the contract contains a zipper clause (See Chapter 7), the union would commit a prohibited practice (M.G.L. c. 150E, § 10(b)) if it refused to negotiate in good faith over a mandatory subject of bargaining.  Where such a refusal occurs, the employer should notify the union that it has waived its right to demand bargaining and that unless it reconsiders promptly, the municipal employer will implement its proposed change.

If the decision is not specifically addressed in the labor contract, the employer may propose the change to the union and, if a timely request is made, bargain over it, with some possible exceptions.  First, a zipper clause in the collective bargaining agreement might preclude mid-term bargaining on the proposed change unless the union agrees to re-negotiate the contract.  Second, the change could be preempted by the agreement if the general issue involving the decision was dealt with extensively in the contract (or during negotiations) even though the specific issue was not. 

Where there is no zipper clause or preemption, the employer may propose the change to the union, and the union has a duty to bargain in good faith (see Chapter 3) over the proposal.  The duty to bargain also extends to proposed changes in past practices not specifically addressed in the collective bargaining agreement.[104] With respect to decisions affecting mandatory subjects of bargaining not addressed in the collective bargaining agreement, unless the union waives its right to bargain, a chief may not implement the decision until agreement or impasse[105], or until the union fails to bargain in good faith.

A chief must be careful to notify the union when hearing an employee’s grievance.  A union representative has the right to be present at such hearings to make sure the resolution does not conflict with the collective bargaining agreement, even if the employee does not choose to have the representative present for his/her or her own benefit.[106]  The employee also has the right to have a union member present during an interrogation by the employer which he/she or she reasonably expects could lead to disciplinary action, but the employee may waive this right.[107]  If the Union sends its attorney to such interview as its representative, the chief must allow the attorney to attend.[108]  However, it is likely that the chief could limit the number of union representatives present to one (so long as there was no past practice otherwise.)

 

§ 2     Hiring &  Creating New Positions

Conditions imposed on applicants for a job, i.e., “conditions for hire”, are not subject to a bargaining obligation, because “mere applicants for hire, who have had no prior employment within the bargaining unit in question, are not ‘employees in the unit’ within the meaning of Section 5 of the Law.”[109]  The Supreme Court has said:

 

The obligation to bargain extends only to the terms and conditions of employment of the employer’s employees in the unit appropriate for such purposes which the unit represents.[110]

The National Labor Relations Board has held that requiring drug and alcohol tests of all applicants was outside the scope of bargaining.[111]  Similarly, the LRC, in the Boston School Committee case, made it clear that the employer can use any hiring criteria it wants as a condition of hire, so long as the criteria employed are not discriminatory.[112]  Thus in Boston School Committee[113] and Town of Lee[114], the LRC upheld residency requirements as a precondition to employment. 

Nevertheless, when an employer’s hiring decisions impact the terms and conditions of employment of existing bargaining unit members, the LRC has allowed the unions to challenge the practice.  Challenges to an employer’s hiring practices generally involve two types of disputes: 1) transfer of bargaining unit work to non-bargaining unit members,[115] and 2) imposing new obligations on applicants which carry over into employment.[116] 

The City of Lawrence case encompasses the first type of dispute.[117]  In that case, the employer alleged that its transfer of work (previously held by city bargaining unit members) to prisoners and welfare recipients was not an unlawful transfer of bargaining unit work because the transferees were not “hired” or “employed” by the city.[118]  The ALJ rejected this defense, stating that the employer could not escape an unlawful transfer of bargaining unit work charge by claiming that the transferees were not “hired”.[119]

The second type of dispute is more common.  In City of Haverhill, the employer imposed a requirement on applicants that they take a psychological examination, the results of which were not made known until after the applicant became employed.[120]  The Hearing Officer noted the general rule that an employer’s hiring practices cannot be the subject of debate or bargaining with the union, but stated that the psychological testing requirement in Haverhill was more of a “condition for continued employment” than a “condition of hire”.  Thus, “once the employer hires an applicant, even conditionally, and that person performs work for wages, the individual has become a bargaining unit member, thus dissipating the ‘mere applicant’ rationale.”[121]  In Haverhill, the “applicants” had actually been employed for five months at the time they were terminated based on the results of the psychological examination.  The Hearing Officer found that the employer’s imposition of the test without providing the union with an opportunity to bargain, as a requirement of continued employment, constituted a prohibited practice.[122]  

While an employer is also free to create new positions and establish the hiring criteria for those positions,[123] the new positions may be included in the bargaining unit.  The employer may not, as a means of evading union representation, eliminate a bargaining unit position and “create” a new one outside of the unit.[124]

PRACTICE POINTERS

In the public safety service, it is essential to evaluate thoroughly all applicants for employment.  The union’s role starts once an individual begins work.  Whatever the municipal employer does by way of recruitment, background check, evaluation, and testing (including aptitude, intelligence, medical, drug/alcohol and psychological), is of no lawful concern to the union.

Employers must be mindful of the requirements of the Americans with Disabilities Act (ADA) as well as M.G.L. c. 151B when medical and psychological testing is used.  It is necessary that the applicant be given a “conditional offer of employment” before such testing is performed.  Thus, if they pass the physical and/or psychological tests, they have the job.  (Psychological testing which is limited to personality and other non-disease screening may be done before the conditional offer of employment, however.)

If certain test results have not been received as of the planned date of appointment, the only way an employer can hire the individual “conditionally” is with the consent of both the individual and the union.

§ 3     WAIVERS

1)               Waiver by Inaction

A union waives its right to bargain by inaction if the union:  (1) had actual knowledge or notice of the proposed action; (2) had a reasonable opportunity to negotiate about the subject; and (3) had unreasonably or inexplicably failed to bargain or request bargaining.[125]  The employer must prove these elements by a preponderance of the evidence, as the Commission does not infer a union’s waiver of its statutory right to bargain without a “clear and unmistakable” showing that a waiver occurred.[126]

Notice must be provided to the union far enough in advance of implementation of the change to afford the union the opportunity to bargain.[127]  Should the union fail promptly and effectively to request bargaining after receiving proper notice, it waives by inaction its right to bargain over the proposed change.[128]  However, a union’s demand to bargain need not be immediate in order to be timely.[129]  How much time must pass before a union will be found to have waived its right to bargain will be determined from the facts.[130]  Waiver is an affirmative defense to a charge of unlawful unilateral change.[131]

A union’s obligation to demand bargaining regarding a change in terms and conditions of employment arises when the union has actual knowledge of the proposed change.[132]  To establish a union’s waiver by inaction, an employer must show by a preponderance of the evidence that the union had actual knowledge or notice of the proposed action, had a reasonable opportunity to negotiate over the subject, and unreasonably or inexplicably failed to bargain or request bargaining.[133]  A union’s waiver of its statutory right to bargain over a subject will not be readily inferred.  There must be a “clear and unmistakable” showing that a waiver occurred.[134]

Where a public employer raises the affirmative defense of waiver by inaction, it bears the burden of proving that the union had:  1) actual knowledge of the proposed change; 2) a reasonable opportunity to negotiate prior to the employer’s implementation of the change; and, 3) unreasonably or inexplicably failed to bargain or to request bargaining.[135]

In Holliston School Committee, 23 MLC 211 (1997), the Commission decided that the School Committee’s vote in May to increase the length of the school day the next September was not a fait accompli, but rather a proposal over which the parties could have bargained.[136]  Further, the Commission determined that the Union had ample opportunity to bargain between the date Union had actual notice of the impending change and its implementation.[137]  In the 2002 case of Commonwealth of Massachusetts, by notifying the Union in late January 1998 that it intended to implement the consolidated service model in fourteen (14) DTA offices between April 1, 1998 and June 1, 1998 and offering to meet as both actual notice of the impending change and a reasonable opportunity for the Union to negotiate over the impacts of the decision to implement this service model prior to implementation.[138]  (Absent justification for a deadline, nine (9) days between the date of actual notice and the date of the change is insufficient time to afford a union a meaningful opportunity to bargain.)  Upon receiving this notice, the Union was obligated to demand negotiations about the impacts of the Commonwealth’s decision to implement the consolidated service delivery model on employees’ terms and conditions of employment, or risk waiving its right to do so.[139]

In Town of Westborough,[140] the Commission reaffirmed that “[a] party to a collective bargaining agreement need not bargain during the term of that agreement over subjects that were part of the bargain when the parties negotiated the agreement.”[141]  For the Union to prevail in its argument that the Commonwealth was precluded from implementing the consolidated service model during the term of the Alliance agreement absent the Union’s consent, the evidence must demonstrate that the issue was “consciously explored” and “consciously yielded” during negotiations.[142]

There was no evidence that the Union made any proposals about any mandatory subjects of bargaining directly affected by the Commonwealth’s decision to implement the consolidated service delivery model in fourteen (14) DTA offices and the Commonwealth subsequently refused to bargain over these proposals.  Further, there is no evidence that the Union requested additional meetings with the Commonwealth to offer any proposals or counter-proposals about the planned implementation of the consolidated service model, or that the Commonwealth refused to meet at reasonable times and places to discuss the Union’s proposals.  Rather, the Union consistently maintained its position that it was under no obligation to engage in mid-term contract negotiations over consolidation and failed to make proposals addressing the mandatory subjects of bargaining implicated by the Commonwealth’s decision.  By this action, the Union has waived its right to bargain with the Commonwealth to resolution or impasse over the impacts of the Commonwealth’s decision to implement the consolidated service delivery model in its DTA offices prior to implementation.[143]  Accordingly, the Commonwealth did not fail to bargain in good faith by implementing the consolidated service delivery model in fourteen (14) DTA local offices between April 6, 1998 and June 1, 1998.

For the reasons stated above, the LRC concluded that the Commonwealth did not deliberately repudiate the 1988 consolidation agreement by implementing the consolidated service delivery model between April 6, 1998 and June 1, 1993, over nine (9) years after it had agreed to suspend further implementation of this model in its local offices.  Therefore, the Commonwealth did not fail to bargain in good faith in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) as alleged in Count I of the complaint of prohibited practice, and accordingly, Count I was dismissed.  Further, the LRC concluded that the Commonwealth did not fail to bargain in good faith by consolidating job functions in fourteen (14) DTA offices between April 6, 1998 and June 1, 1998, in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law.  Therefore, the Commission voted to dismiss Count II of the complaint of prohibited practice.

The doctrine of waiver by inaction is not applicable to a situation where the union is presented with a fait accompli (i.e., done deal).[144]  In determining whether a fait accompli exists, the Labor Relations Commission considers “whether, under all the attendant circumstances, it can be said that the employer’s conduct has progressed to the point that a demand to bargain would be fruitless.”[145]

In a 1986 case involving an increase in the length of the school day, the Commission dismissed the union’s complaint for failure to demand bargaining in a timely manner.[146]  The Holyoke School Committee sent a letter on August 9 to the Association President who was on vacation when the letter was sent.  The LRC stated that the union could have protested or demanded bargaining before the School committee’s vote on August 16.  Moreover, it could have demanded bargaining after the vote but before the implementation of the change when school started on September 2.

In a 1982 decision in Scituate School Committee, a LRC Hearing Officer was faced with the issue of whether the employer’s lengthening of the work day to provide for an unpaid half-hour lunch period, when such periods were previously provided with pay, was an unlawful unilateral change.[147]  However, the hearing officer dismissed the complaint after finding that the union failed to object to the change in a timely manner.  It had been notified of the School Committee’s July 23 vote.  The change went into effect September 8, yet the union let that time go by without demanding bargaining.

2)               Waiver by Contract

A union may also waive its right to bargain over proposed changes by the provisions of the collective bargaining agreement.  The Commission is reluctant to find such a waiver in the absence of clear contract language.[148]  When an employer raises the affirmative defense of contract waiver, it must show that the subject was consciously considered by the parties, and that the union knowingly and unmistakably waived its right.[149]  The employer bears the burden of proving that the contract clearly, unequivocally and specifically authorizes its actions.[150]  A waiver must be shown clearly, unmistakably, and unequivocally and cannot be found on the basis of a broad, but general, management rights clause.[151]  The LRC must determine whether the contract language “expressly or by necessary implication” confers upon the employer the right to implement the change in the mandatory subject of bargaining without negotiating with the union.[152]  Where the contract language clearly demonstrates a waiver by the union, the employer’s defense prevails.  However, if the contract’s language is ambiguous, the Commission reviews the parties’ bargaining history to determine their intent.[153]

In its 1992 decision in Commonwealth of Massachusetts, the Commission dismissed the union’s complaint that the state’s unilateral changing of the hours of work of correction counselors violated Sections 10(a)(5) and (1).[154]  The union was found to have waived its right to bargain by agreeing to the following language in the contract:

 

Where the employer desires to change the work schedule of employee(s), the employer shall, whenever practicable, solicit volunteers from among the group of potentially affected employees, and select from among the qualified volunteers.  The employer shall, whenever practicable, give any affected employee whose schedule is being involuntarily changed ten (10) days written notice of such contemplated change.  The provisions of this subsection shall not be used for the purpose of avoiding the payment of overtime.

§ 4     Workplace Rules and Practices

The employer may impose and enforce a variety of workplace rules and regulations, ranging from dress codes to job procedures, as long as the union has notice and the opportunity to bargain.[155]  Only material changes (not merely procedural ones) require notice and bargaining.[156]  For example, a claim that a town changed its policy regarding lockers at the police station was dismissed when the Hearing Officer found that the new rule was simply a rewording of the existing practice.[157]

A.              Hours

The hours that an employee is required to work is, of course, a mandatory subject of bargaining.[158]  However, more particularized issues relating to hours often present special difficulties for a public employer.  For example, the LRC has held that unilaterally eliminating the grace period for tardy employees[159], changing lunch hours[160], eliminating flex-time[161], and changing the time when officers were required to report to court[162], all constituted prohibited practices given the lack of notice and opportunity to bargain.  Similarly, if the employer enters into an agreement with the union regarding hours--for example, allowing employees  to swap shifts--it may not renege on the agreement.[163]   However, unless it is incorporated into the collective bargaining agreement, an employer may make a change after providing the union with the required notice and opportunity to bargain.  An employer must also bargain prior to changing the length of the work day[164] or week.[165]  On the other hand, the installation of a time clock to record hours of work and break or meal periods is a management right which requires no bargaining so long as there will be no change in related practices, e.g., docking for tardiness stays the same.[166]  Similarly, using video surveillance to record employees’ departure times, after learning that some custodians were leaving work early and falsifying their time cards, was not a Prohibited Practice.[167]

Practice Pointers

In the absence of any requirements in the collective bargaining agreement, an employer is free to set hours for work so long as overtime is paid in conformity with the terms of the contract and the Fair Labor Standards Act (FLSA).  (The Massachusetts statutes regarding overtime are not applicable to municipal employees.)  There is no requirement that employees be assigned a fixed schedule with regular starting and quitting time, for example.  Changing hours of work to avoid overtime is not only lawful, traditionally it was expected of private industry managers.

All this is far removed from the practice in most municipalities today.  Most contracts require overtime for all work in excess of eight hours per day and forty in a week.  (The FLSA requires overtime in police cases after 43 -- with a 7 day work cycle -- and increasing proportionately to 171 hours if up to a 28 day cycle is used.)  Typically contracts give employees credit for paid days off (sick, injured, holiday, vacation, personal or bereavement days) when counting towards the overtime threshold.  None of these need be counted for FLSA purposes.

When a contract is silent on any aspect of the topic of hours of work, an employer may be able to propose a change in a practice or rule during the life of the agreement and, if the union so requests, bargain to agreement or impasse as a precondition to making the change.

The listing of shift or tours of duty in a contract should be avoided.  The more detailed the contract becomes in this area, the less flexibility a chief will have to respond to changing needs.  When the times for shifts are included, the employer should insist that some adjective such as current, usual, customary or typical is used.  This implies to arbitrators that there is room for some variation when conditions so warrant.

B.              Overtime and Paid Details

Overtime, often implicating other issues such as minimum manning, paid details, and past practices, is a frequent area of dispute between employers and employees.  Unless overtime is regularly scheduled, overtime remains a non-mandatory subject of bargaining.[168]  However, reducing the number of firefighters assigned to each engine and ladder, thereby impacting the employees’ regular overtime, without providing the union with notice and opportunity to bargain, was held to be an unlawful unilateral change.[169]  In a case dealing with both scheduled and unscheduled overtime, the LRC held that unilaterally eliminating the scheduled overtime violated the law, but dismissed the charge that the employer unlawfully reduced unscheduled overtime.[170]  Note that when an employer offers an option to employees to receive overtime pay or alternatively to receive time off for working extra hours, the employer cannot unilaterally eliminate the time off option without bargaining.[171]

Paid details may be assigned on an informal or formal (i.e., contractual) basis.  Any change in a formal, contractual assignment system is a mandatory subject of bargaining, but informal systems of assigning paid details must also be bargained over if a past practice has been created.[172]  Thus, an employer may not unilaterally change the method of assigning paid details without bargaining.[173]  However, if the employer has a past practice relating to the assignment of paid details, even though the practice was infrequent, the employer may be able to implement the practice.[174]  In Town of Arlington, the Town was found not to have violated the Law when it canceled all paid details except a traffic detail for which no police officers had volunteered to work; the Town had created a “past practice” ten to twelve years earlier when it had canceled paid details until volunteers came forward for a street resurfacing detail.[175]

The Town of Falmouth was ordered to make whole nine superior officers for lost paid detail opportunities after the town failed to live up to the agreement it made to have superior officers and patrol officers continue to share in paid details.[176]  The calculation of damages involved looking at the number of details the superior officers worked for the two year periods both before and after the violation.[177]

C.              Work Shifts and Schedules

An employer may not, as a rule, implement a new work shift without providing notice and, if requested, bargaining first.[178]  Similarly, the employer should bargain first over a change in work shift coverage or the elimination of a shift.[179]  As to changes in an individual’s work schedule, an employer may change an employee’s schedule without bargaining with the union unless there is a past practice of bargaining prior to schedule changes.[180] Occasionally, an employer may wish to change employee schedules in an effort to reduce overtime costs.[181]  As long as the overtime is not “scheduled,” and there is no applicable contract provision, the employer may restructure schedules after giving the union notice and an opportunity to bargain.  Where a contract expressly permits altering shifts, no notice or bargaining is required.[182]

The Taunton School Committee violated Section 10(a)(5) and derivatively, Section 10(a)(1) of the Law by failing to bargain in good faith by implementing a proposed teaching schedule that required teachers to teach an extra period without bargaining with the Union to resolution or impasse over its decision and the impacts of its decision.[183]

D.              Job Descriptions and Work Assignments

The employer is required to bargain prior to changing the job description of any position.[184]  Changing the job description and job duties of an employee constitutes an alteration in the terms and conditions of employment and is unlawful unless bargained over prior to implementation.  Thus, an employer may not circumvent the requirement of bargaining over a change in workload by merely changing the job description.[185]  Some minor changes, however, may be so insignificant (de minimus) as not to require bargaining.

As discussed in Chapter 2,[186] the right to assign employees is an inherent managerial prerogative.   Thus, the Appeals Court held in City of Boston v. Boston Police Superior Officers Federation that statutory provisions granting the Boston Police Commissioner the power to appoint and promote police officers would supersede contractual provisions in the collective bargaining agreement purporting to limit the Commissioner’s assignment authority.[187]  The employer, however, will nonetheless be required to bargain over the procedures relative to assignments.  (The 1998 amendments to M.G.L. c. 150E affecting the Commission’s exemption may alter future decisions in this area.)

In its 1983 decision involving the Burlington Police Department, the Supreme Judicial Court held that the decision to assign police prosecutorial duties is an exclusive managerial prerogative, and not a mandatory subject of bargaining.[188]  The Burlington case involved the transfer of prosecutorial duties from a sergeant (in a superior officer’s unit) to a police officer in a separate unit.[189]  In Town of Dennis, the Union’s charge was dismissed as time-barred for failure to file within the Commission’s 6-month statute of limitations.[190]  However, it is clear that the employer had the duty to bargain of about the impacts of its decision on terms and conditions of employment.  There was some disagreement among the three Commissioners over the scope of the employer’s obligations especially when presented with a fait accompli.  The majority concluded that regardless of whether the Town’s notice of its intended reassignment was a “proposal” or a fait accompli, the union had six months from that date of notice to file a prohibited practice charge. 

The Labor Relations Commission (LRC or Commission) has dealt with a number of cases involving changes to work assignments, and has indicated that the following unilateral actions are unlawful:

·                                            requiring firefighters on watch duty to man the front desk;[191]

·                                            discontinuing the practice of assigning “night captains” in the  police force;[192]

·                                            involuntarily transferring workers;[193]

·                                            changing transfer and work schedule assignment procedures;[194]

·                                            assigning “breakfast duty” in a school to paraprofessionals outside the bargaining unit;[195]

·                                            adding billing duties to the position of engineering clerk;[196]

·                                            assigning firefighters to visit a vacant school building to inspect for signs of intrusion, arson, or fire hazards;[197] and

·                                            changing a contract compliance officer’s workload.[198]

However, the Commission has refused to find a violation where an employer implemented a policy requiring firefighters to perform dispatch duties, in light of a past (though infrequent) practice of assigning such duties to firefighters.[199]

PRACTICE POINTERS

Shift bidding procedures present a special problem with respect to assignments.  Most cases reported by the LRC involve collective bargaining contracts that allow shift bidding and seniority to be considered in making assignments, but that give the employer the ultimate right to make shift assignments.[200]  Even if no such provision was contained in a contract, an employer could argue that as an inherent managerial prerogative, assignments cannot be subject to absolute bidding arrangements.  At most, a procedure to advise the chief of an employee’s preference may be required.  However, the employer is required to provide notice and an opportunity to bargain when intending to change the shift bidding procedure.[201]

E.              Promotion

If an employer seeks to change the criteria for promotion, at least to a position in the unit, or to a non-union position, it may have to bargain first with the union if there is a past practice or if there is a relevant provision in the labor contract.[202]  As long as the criteria have been used by the employer in the past, the employer is generally free to continue to use those criteria in a more formal fashion.  Thus, in City of Boston, the LRC found that the City had a past practice of considering attendance as a factor in promotions, and dismissed the unlawful unilateral change charge even though the City intended to use attendance always as a factor in promotion in the future.[203] 

The denial of a promotion may also trigger the employer’s responsibility to furnish the union with the reasons for the failure to promote, especially if the union plans to file a grievance with respect to the decision.[204]  Similarly, the elimination of a position may activate the employer’s duty to bargain, where the eliminated position represents an initial “toe hold” in the promotional ladder[205] or a lost promotional opportunity.[206]

PRACTICE POINTERS

Employers should refuse to negotiate over a proposal which seeks to require the promotion of certain employees based on seniority.  Similarly, the employer should point out to the union whenever the latter proposes to control how promotions are made or what criteria will be used, that the law leaves all this exclusively to management.  Bargaining over procedures for notifying unit members of an opening, on the other hand, are proper subjects of bargaining.

Employers should avoid the pitfalls of including any language in a contract which allows employees to file grievances over promotions.  Therefore, even provisions which permit the employer to determine qualifications but then require promoting the “senior most qualified” should never be included.

The use of assessment centers for both initial hiring and promotions is becoming increasingly popular.  This is one of the best ways of avoiding claims of cronyism and similar unfairness charges.  Moreover, it goes a long way towards insulating the employer from charges of discrimination and other improprieties.

F.               Dress and Grooming Regulations

The constitutionality of public safety grooming regulations has been well established for many years.  In 1976, the U.S. Supreme Court held in Kelley v. Johnson that police departments did not infringe on an officer’s First Amendment free speech and expression rights through the enforcement of grooming regulations.[207]  For the regulations to be valid, a department was only required to demonstrate that the regulations bore a “rational relationship” to the goals the department was trying to achieve.  The regulations were justified according to the Court on two grounds: 1) as a means of making police officers readily recognizable to the public, and 2) as a means of fostering esprit de corps  through similarity of appearance. 

Similarly, the Supreme Judicial Court (SJC) in Massachusetts has upheld the decision to discipline a police officer for failing to comply with the departmental grooming code.  In Board of Selectmen of Framingham v. Civil Service Commission, the SJC upheld the indefinite suspension of a police officer whose long hair violated the department’s grooming policy.[208]  Later, the Appeals Court also determined that the policy was not so “irrational as to be branded arbitrary,” and upheld the regulation on the grounds that it promoted morale and engendered respect from the community.[209]

With respect to firefighters, the U.S. Supreme Court has also upheld grooming regulations.  In a per curiam decision dismissing certiorari, the Supreme Court upheld a fire department hair grooming regulation, stating that the regulation was supportive of “the overall need for discipline, esprit de corps, and uniformity.”[210]  In prior cases, federal courts had upheld such regulations only where they could be linked to safety justifications.[211]    For example, facial hair - beards or mustaches - prevented gas masks or SCBA equipment from sealing properly.  In Quinn v. Muscare, however, the Supreme Court stated that any factual determination concerning a safety justification for the grooming rule was “immaterial.”[212]

The LRC has held that dress and grooming standards are mandatory subjects of bargaining, so that an employer desiring to institute such regulations must first bargain with the union.[213]  A department which has continuously enforced its grooming regulations is free to continue to do so.[214]  However, a department which finds itself in the position of not having enforced its existing regulations for a considerable period of time, or having become lax in enforcing certain portions of the rules, may need to provide notice to the union before starting to enforce the rules again.[215]

The Sheriff of Worcester County was found guilty of a violation of Section 10 (a)5 and, derivatively, Section 10 (a)1 for failing to bargain in good faith by unilaterally implementing a policy of prohibiting corrections officers from wearing union pins, including union insignia, without giving the union prior notice and an opportunity to bargain to resolution or impasse.[216]  In addition, the LRC ruled that the Sheriff interfered with, restrained and coerced his employees in the exercise of their rights guaranteed under the Law by prohibiting the wearing of union insignia, in violation of Section 10(a)1 of the Law.

In contexts other than pubic safety, uniforms and grooming standards are common workplace practices (especially for hospital employees, maintenance workers, customer service types of positions, etc.),  and are similarly upheld as long as they are not irrational or unreasonable.  Typically, collective bargaining involving dress codes will focus on cleaning or uniform allowances.  One of the few LRC cases dealing with dress standards involved a dispute over whether an employer was required retroactively to pay a cleaning allowance negotiated in a contract.[217]  The LRC determined that where there was no specific agreement to make the cleaning allowance provision retroactive, and where there had been no past practice of providing such an allowance, the employer was not required to pay the retroactive allowance.[218]

PRACTICE POINTERS

Chiefs are free to set and enforce hair and grooming standards.  This includes rules concerning beards, mustaches, hair length, sideburns, visible tattoos, body piercing and jewelry.  If no rule currently exists, the chief should provide the union with notice and opportunity to bargain before implementing a change.  If the rule exists but has not been enforced for some time or not consistently, the chief need only advise the union and the employees that he/she intends to start enforcing the rule, giving sufficient notice so the employees can comply.

Occasionally the growing of beards or long hair is done as a gesture of defiance or in protest of some actions of the chief or the municipality.  Assuming there was no written rule on the subject, some chiefs have felt powerless to enforce what they believed was an “unwritten rule” for as long as they could remember.  While the area is not free from doubt, it would appear that a prompt meeting with the employees involved as well as with the union would be an appropriate first step.  The chief could order employees to shave and suspend (or so recommend to the appointing authority) such individuals until they comply.  Rather than having a member be disciplined for insubordination, the union will probably advise the employee to obey and file a prohibited practice charge at the LRC.  The chief should inform the union in writing that he/she is willing to negotiate if they so request; however, in the mean time the same status quo which has existed for years (i.e., beard-free) will be maintained.

To avoid the practical problems likely to result from objectionable tattoos or visible body piercing, chiefs should promulgate rules before the need arises.  It is simple to order an employee to remove an earring.  It is not so easy to make a tattoo go away from one’s face, neck or forearms.

The decision of what items will be worn on uniforms is a management right.  If union pins start appearing, and the chief objects, he/she should order them to be removed.  If they have been allowed, but the chief now objects, notice and opportunity to bargain is required before ordering them removed.

G.              Residency Requirements

Public Safety departments often require that employees live within the town or city limits, or that they live within a particular distance from the municipal limits.  Additionally, some public employers, while not requiring residency, give preference to persons residing in the community.  These types of regulations have been challenged on a number of occasions, at both the state and federal levels, but have been upheld.

 The Supreme Court of the United States, in McCarthy v. Philadelphia Civil Service Commission had the opportunity to consider the legality of a residency requirement for firefighters.[219]  The plaintiff had been employed as a firefighter in Philadelphia for 16 years when he was terminated because he moved his permanent residence from Philadelphia to New Jersey in contravention of a municipal regulation requiring city employees to be residents of the city.[220]  The Court had previously held in Hicks v. Miranda that this type of ordinance was “not irrational” as a valid exercise of state authority.[221]  The plaintiff in McCarthy, however, raised a new challenge to the residency requirement; he argued that the regulation infringed on his constitutionally protected right to travel.[222]  The Supreme Court rejected this claim, distinguishing other “right to travel” cases as implicating fundamental rights such as voting or receiving welfare benefits and involving the requirement of a one year residency waiting period.[223]

In Massachusetts, the Supreme Judicial Court (SJC) dealt directly with a one year residency rule which gave preference to applicants for the position of police officer who had lived in the town for that period.[224]  In Town of Milton v. Civil Service Commission, the plaintiffs challenged the residency requirement on state and federal constitutional grounds.  The SJC rejected this challenge, holding that the rule need only satisfy the “reasonable relationship to legitimate state purposes” test, not the more stringent “compelling state interest” test, because the rule did not “place a penalty” on the right to travel.[225]  The SJC cited several advantages to the residency requirement: knowledge of local geography which lead to quicker response time; familiarity with the community which encouraged trust and cooperation on the part of citizens; officers off-duty being in the community facilitated mobilization in an emergency; and facilitation of the local cadet program, which assisted local students in obtaining a higher degree while working for the police force.[226]

Similarly, the Appeals Court upheld, in Mello v. Mayor of Fall River, the dismissal of a tenured civil service employee on the grounds of her moving outside of the city in violation of the residency requirement for city employees.[227]  Moreover, the Court in Mello did not even require the City Council to make explicit findings, in enacting the ordinance, as to the importance and benefits to the city of the municipal employee residency requirement.[228] 

H.             Transfers

The Joint Labor Management Committee (JLMC) statute lists the right to transfer police officers as a matter of “inherent managerial policy”.  Although the wording is not clear, it appears that at least in firefighter situations, “the subject matter of transfer shall not be within the scope of arbitration, provided, however, that the subject matters of relationship of seniority to transfers and disciplinary and punitive transfers shall be within the scope of arbitration.”  The transfer cases which the LRC has decided have not involved police or fire service situations

A public employer is free to transfer employees at will, as long as: 1) the motivation for the transfer was not related to the employee’s union activities,[229] and 2) the transfer was not in violation of the collective bargaining agreement.  Thus, the employer may not discriminate against an employee with respect to his union activities by transferring him or her.[230]  Also, at least in non-public safety situations, if the employer has entered into an agreement with the union or has been subject to an arbitration award with respect to transferring employees, the employer may not violate the agreement.[231]

 

PRACTICE POINTERS

In many ways, the exercise of the rights of transfer and assignment appear similar.  A chief has traditionally used the power to transfer employees as an informal disciplinary tool.  At least in firefighter cases, this is no longer a matter which can be handled without regard to the union.  However, where the chief is motivated by improving the efficiency of operations in general, or with the need for a particular employee’s skills on a given shift or tour of duty, this should be free from any bargaining obligation, at least as far as the decision, if not the impact is concerned.

When confronted with a union proposal at bargaining that shifts be “bid”, the employer should refuse to negotiate.  If the union is willing to limit the matter to procedures for affording employees the opportunity to  express their preferences, this is another matter.  The ambiguous language in the Joint Labor Management Committee (JLMC) statute -- which appears aimed primarily at firefighters -- has not yet been deciphered by the courts or the LRC.  It would be prudent, then, for municipal employers to exclude or make some provision regarding “the relationship of seniority to transfers and disciplinary or punitive transfers” to minimize grievances or LRC charges in this area.

I.                 Weapons

Generally, a police chief has the authority to determine who will carry a firearm and under what conditions, so that the subject of carrying weapons cannot be included in an arbitrator’s award.[232]  However, a chief may not arbitrarily remove a police officer’s right to carry a firearm and then assign him/her to dangerous areas.[233]  Moreover, a chief may not change a past practice of having officers carry a firearm without giving the union the opportunity to bargain over the impact of the decision on mandatory subjects of bargaining, though the chief need not bargain over the decision itself.[234]

Federal legislation has added an additional complication to police officers carrying firearms.[235]  Federal law prohibits anyone convicted of a misdemeanor crime of domestic violence from “selling or otherwise disposing of a firearm or ammunition.”  Apparently, this prohibition also encompasses police officers carrying firearms in the line of duty.[236]  Any officer who in the past has been convicted[237] of a domestic violence offense may not carry a firearm in the line of duty or in the course of his/her employment, must return all departmentally-issued weapons, and must surrender or transfer custody of all personal firearms. 

Legislation enacted in 1998 in Massachusetts expands the list of persons that have either a temporary (5 year) or lifetime disqualification from being issued a Firearms Identification Card (FID Card) and/or License to Carry firearms.[238]

PRACTICE POINTERS

Given that the deprivation of the right to carry a firearm may render the police officer unable to perform the duties of the job, police chiefs may deal with an officer convicted of a domestic violence offense in a number of ways:

·                                               temporary reassignment or leave of absence, if the officer plans to pursue one or more avenues of relief (pardon by the governor or by motion to revoke or revise sentence if the Massachusetts conviction is less than 60 days old);[239]

·                                               permanent reassignment, to a position not requiring use of a firearm; or,

·                                               discipline/discharge; as long as the department had a written or long-standing policy of requiring the carrying of a firearm.[240]

The issue of a disqualification under Massachusetts law from securing a License to Carry firearms is more difficult.  The provisions of M.G.L. c. 41, §98 allow a chief to authorize officers to carry weapons without the need of a License.  Unless a department has a rule, or at least a practice, of requiring all officers to be licensed, it may be difficult for a chief to proceed in this area.  Departments without a rule or practice should relieve an officer from duty with pay and notify the union of a proposed new rule.  Upon reaching agreement or impasse, the rule may be implemented.

Should an officer be discharged because of his/her inability to carry a firearm, and he/she challenges the discharge, the courts would evaluate whether the ability to possess a firearm is rationally related to the person’s fitness and ability to be a police officer.[241]  Most likely, the requirement would satisfy the rational relationship test and the discharge would be upheld.

J.               Off-Duty Employment

A municipality has the right to regulate the off-duty employment of law enforcement officers.  The emergency nature of law enforcement, the need to ensure that officers report for duty in good physical and mental condition, and the need to avoid conflicts of interest, all combine to justify a department’s regulation (or even prohibition) of off-duty employment.[242]  The Supreme Judicial Court (SJC) has held that while the opportunity to earn a living is certainly fundamental in our society, “it is an equally basic axiom that there is no right to public employment.”[243]  Thus, a police department may restrict outside employment as a condition of employment for police officers.  Similarly, officers may also lawfully be required to seek the chief’s approval prior to obtaining outside employment.[244] 

K.              Non-Smoking rule

In its 1995 decision in Abington School Committee, the Labor Relations Commission first addressed the issue of a public employer’s ability to ban smoking in the workplace.[245]  The Commission ruled that the decision to prohibit smoking did not result from any overriding interest or educational policy concern.  It therefore attempted to balance the employees’ interest in bargaining over workplace smoking policies with the employer’s interest in creating a smoke-free working environment.  The Commission ruled that the employer could not unilaterally impose such a ban.  It noted, however, that there might be cases where the employer’s interest in prohibiting smoking is so intertwined with its mission that no bargaining would be required.

In a 1996 case involving the Lexington Police Department, the Commission held that absent evidence that smoking in police vehicles poses a direct public health hazard, there was no managerial prerogative that overrode the union’s interest in bargaining.[246]

A 1997 case involving employees at the Springfield Long Term Care Unit in the Division of Medical Assistance required notice and the opportunity to bargain before the state could abolish a smoking lounge.[247]  During renovations the smoking lounge was converted to a supply/fax/mail room.  Although the state offered evidence at the hearing of the dangers of second hand smoke, it did not take this into account in deciding to abolish the smoking lounge.  As a remedy, the state was ordered to restore a smoking area and to negotiate to agreement or impasse before implementing smoking restrictions that are not necessary to protect the health and welfare of the public.

L.               Vacations

In a 1997 decision, the LRC upheld its deferral to arbitration in a case involving a charge that a school district unilaterally changed its vacation policy.[248]  An arbitrator found that the collective bargaining agreement was silent as to whether the School Committee could unilaterally change the school calendar.  The management rights clause provided that the Committee retained all rights except those modified by the terms of the contract.  The Commission dismissed the union’s charge that the employer violated the Law by unilaterally changing the vacation schedule without offering the union an opportunity to bargain.

M.             Sexual Harassment Policy

The implementation of a new sexual harassment policy is a mandatory subject of bargaining.[249]  This is because it impacts upon the terms and conditions of employment.[250]  Therefore, despite the fact that a state law requires municipalities to adopt some form of a sexual harassment policy, the employer must still bargain over the impact of such policy if the union makes a timely request. 

When the Boston Police Department implemented a new sexual harassment policy that included new reporting requirements for superior officers, the LRC ruled that it should have offered the union notice and the opportunity to bargain.[251]

N.              SHIFT SWAPS

The ability and criteria for swapping shifts is a mandatory subject of bargaining.  In a case involving the Natick Fire Department’s shift swap policy for EMT’s, the Commission ruled that the Town violated Section 10 (a)(5) and, derivatively Section 10 (a)(1) of the Law by failing to give the union prior notice or an opportunity to bargain about restrictions on shift swaps.[252] 

In Natick, the Town argued that the ALJ erred in refusing to consider that the Town’s decision to maintain an EMT-I on every shift is a level of services decision.  The Town argued that the underlying intent of the restriction on shift swaps was to ensure that the ambulance was capable of administering advanced life support services on all shifts.  The LRC noted that decisions covering the level of services that a governmental entity will provide lie within the exclusive prerogative of management, and are not mandatory subjects of bargaining.[253]  However, even if the decision to maintain an EMT-I on every shift was within the Town’s exclusive prerogative, the Town was obligated to bargain over the impacts of that decision, including whether EMT’s would continue to be allowed to swap shifts without regard to their certification.[254]  Therefore, whether the Town’s bargaining obligation is considered as an obligation to bargain over its decision to restrict shift swaps among EMT’s or as an obligation to bargain over the impacts of its decision to maintain an EMT-I on every shift, the result is the same; the Town was obligated to give the Union notice and an opportunity to bargain before changing its policy of allowing EMT’s to swap shifts without regard to their EMT certification.  Accordingly, even if the ALJ failed to consider the Town’s argument that the decision was a level of services decision, the Town was still obligated to bargain even under the analysis it claims the ALJ should have applied.

O.              DOMESTIC VIOLENCE POLICY

The adoption of a new or revised policy on domestic violence will require notice to the union and, if requested, good faith bargaining to impasse or agreement.  In a 2001 decision involving the Lowell Police Department, the LRC concluded that the City’s domestic violence policy was a mandatory subject of bargaining.[255]

In the Lowell case, the issue was whether the City unilaterally implemented a domestic violence policy for bargaining unit members, without providing the Union with prior notice and an opportunity to bargain to resolution or impasse. A public employer violates Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it unilaterally changes an existing condition of employment or imple­ments a new condition of employment that involves a mandatory subject of bargaining, without first giving its employees’ exclusive collective bargaining representative notice and an opportunity to bargain to resolution or impasse.[256] To establish a finding of unilateral change, the charging party must demonstrate that: 1) the employer altered an existing practice or instituted a new one; 2) the change affected a mandatory subject of bargaining; and 3) the change was estab­lished without prior notice and an opportunity to bargain.[257]

 

It was undisputed that, prior to September 29, 1998, there were no policies pertaining to domestic violence. Although the City had a reporting requirement for any police officer who had been arrested, named as a defendant in a criminal matter or was the subject of a criminal complaint application, the evidence demonstrated an ab­sence of a domestic violence policy or practice. Further, unilater­ally implementing a policy that represents a change in working conditions constitutes a mandatory subject of bargaining.[258]   The City implemented the domestic violence policy without providing notice to the Union and an opportunity to bargain to resolution or impasse. Therefore, all three elements of the Commission’s unilateral change analysis were satisfied.

The City argued that the domestic violence policy did not constitute a change in working conditions and did not have to be bargained with the Union. On the basis of the record before the Commission, it determined that the City’s domestic violence policy, which sets out a reporting requirement for the bargaining unit members, details the discipli­nary penalty, and specifies that this policy can be considered in making determinations of promotions, constituted a mandatory subject of bargaining.[259]   It is well established that an employer may not impose a work rule that affects the terms and conditions of employment without bar­gaining with the union.[260] More­over, any change in the employees’ job duties is a mandatory subject of bargaining.[261]  In addition, policies that provide for the discipline and/or discharge of employees who violate them are a mandatory subject of bargaining.[262]   Furthermore, procedures for promotions affect an employee’s con­dition of employment to a significant degree and are a mandatory subject of bargaining.[263]

In Lowell, the City’s domestic violence policy contained new proce­dures and duties for reporting involvement in domestic violence, which were mandatory for the members of the bargaining unit. In addition, members of the bargaining unit who had committed or threatened to commit domestic violence would be disciplined for their acts. Moreover, under the policy, acts of domestic violence could be considered in promoting and making other work-related determination about members of the bargaining unit. Accord­ingly, the LRC concluded this domestic violence policy was a man­datory subject of bargaining.

 

P.              RADIO PROCEDURES

Section 6 of the Law requires a public employer and employee organization to negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment.[264]  According to the 2002 LRC case of Town of Andover, the radio procedure implemented by the Town was a mandatory subject of bargaining because it established standards of performance for patrol officers that were required as a condition of continued employment.[265]  Therefore, the Town was obligated under the Law to give the Union notice and an opportunity to bargain before implementing the radio procedure.  Because the Town refused to bargain over the radio procedure on demand by the Union, the LRC found that the Town violated Sections 10(a)(5) and, derivatively, 10(a)(1) of the Law by unilaterally implementing a new radio procedure and by refusing to bargain on demand over a mandatory subject of bargaining.

 

§ 5     Changing Schedules to Avoid Overtime

In the absence of any restriction in the collective bargaining agreement, a municipal employer may change employees’ schedules in an effort to reduce overtime costs.  Even where no contractual constraints are present, the employer must provide advance notice to the union of the intention to change the schedule and, if requested, bargain in good faith to either agreement or impasse over the impact of such change on mandatory subjects of bargaining.

In municipal public safety departments which operate on a 24 hour per day, 7 day a week basis, traditionally there has not been the same pressure to reduce overtime by avoiding assigning employees to night or weekend shifts as there is in the case of many private employers.  However, as the inclusion of night and weekend differential clauses in contracts increases, the pressure may mount on chiefs to consider such extra costs in determining scheduling and in making vacancy replacement decisions.  Holiday pay is another area which might receive consideration for schedule adjustment.  Many police and fire contracts pay every employee eleven extra days’ pay -- generally at straight time -- in lieu of computing holiday pay for those who actually work on the legal holiday.  There would be little benefit to adjust holiday schedules in such cases.  However, where holiday pay (often at premium and even double time rates) is tied to actual work on a holiday, savings may result if a skeleton crew is assigned to holidays.

In addition to the economic justification, there is a strong public policy favoring the avoidance of overtime pay.  In fact, the purpose of premium pay is to discourage the scheduling of overtime as much as possible.  The Fair Labor Standards Act is specifically intended to encourage the hiring of additional employees rather than overworking current employees by making it expensive for an employer which schedules employees outside of their normal work week.

Since private employers, in an effort to reduce expenses and increase profits, have attempted to rearrange schedules to avoid overtime, many of the arbitration decisions in this regard involve non-municipal employers.  However, the results of arbitration where a municipal union alleges a violation of a contractual provision, should be similar.

A.              Contractual Constraints

Some collective bargaining agreements include a provision prohibiting the changing of shifts to avoid overtime.  It is unlikely that an arbitrator would approve a unilateral shift change in such case, regardless of the economic or business justification. 

Other contractual provisions, while not specifically referencing restrictions on shift changes, may have similar effects.  For example, some contracts specify the only authorized shift schedules to which members of the bargaining unit may be assigned.  On the other hand, where a collective bargaining agreement specifies how schedule changes are to be accomplished, such a provision is likely to be controlling, at least for the life of the contract.  In the absence of any reference to how and when schedule changes may be made, both parties will be left to argue over whether and under what circumstances management may change workers’ schedules. 

B.              Normal Work-Week Clauses

Contracts which contain clauses describing a “normal” or “standard” work-week or shift usually do not prevent an employer from changing existing schedules or creating new shifts.  From a management point of view, there is little, if any, benefit from including a listing of shifts in a collective bargaining agreement.  In the Georgia-Pacific Corp. 1978 arbitration case, the arbitrator stated, “(t)he very notion of normal hours of work suggests there may be times when abnormal hours are necessary and proper, if such a shift is fully justified by operational or production requirements -- in other words if business conditions dictate.”[266]  While this is consistent with the majority view, there are some arbitrators who have reached opposite results.[267]  While it is not absolutely necessary when such normal work week clauses are included, it is advisable to add a provision similar to the following language contained in a contract involved in the 1962 Stanley Works arbitration case:

 

This article shall not be construed to be a guarantee of hours of work per day or per week.  Determination of daily or weekly work schedules shall be made by the [city/town/chief] and such schedules may be changed by the [city/town/chief] from time to time to suit the needs of the [city/town and department]; provided that the changes deemed necessary . . . shall be made known to the union representatives in advance whenever circumstances permit.[268]

Where an employer attempts to flaunt its management rights to change schedules for legitimate purposes by doing so in a capricious or arbitrary manner, an arbitrator may find a contract violation.[269]

Lastly, where the employer attempted unsuccessfully to negotiate a change in the normal hours of work clause, an arbitrator will be reluctant to find that a unilateral change is simply an exercise of a managerial prerogative.[270]

C.              Past Practice Clauses

Some unions point to the past practice or maintenance of standards clause when arguing that the employer violated a contractual provision.  Especially where only a temporary change or one which affects only a fraction of the bargaining unit is involved, such clauses are not generally interpreted by arbitrators as prohibiting schedule changes.[271]  A different result has been reached where the prevailing practice clause was found to require that employees continue to be paid for an entire shift -- as was the past practice -- regardless of when they were called to work, despite changes in business conditions.[272]

A past practice requires more than a long-standing tradition.  (See Chapter 9)  At least as far as most arbitrators are concerned, it  also requires joint thought and effort.  In a case involving the changing of a twenty-two year practice of scheduling an employee off work on Saturdays, the arbitrator found that the past practice clause did not prevent the employer from making such change.[273]  The arbitrator concluded that the evidence simply showed that management scheduled in the manner it thought best over the years.

There has been a reluctance on the part of arbitrators to approve schedule changes made to avoid overtime when certain employers have changed schedules temporarily, especially where the contract required “agreement” on all new schedules;[274] when the employer does not have a legitimate business reason for the change;[275] or where regular overtime compensation has been used by management as an economic inducement to the union to accept a compromise on other benefits.[276]  One arbitrator, while recognizing management’s “exclusive right” to schedule production, found that it was not proper to require the union to choose between a temporary change in the work week -- which resulted in a reduced work week -- or the loss of premium pay.[277]  This is in contrast to another arbitrator’s decision which approved generalized schedule changes based on legitimate external economic considerations and was not a manipulation of schedules merely to avoid overtime.[278]

D.              Unilateral Change

Even where the terms of a contract do not limit a municipal employer’s ability to change schedules, such employer must still satisfy its bargaining obligations under G.L. c. 150E prior to implementing such a change.  A public employer violates Sections 10(a)(5) and (1) of the Collective Bargaining Law when it unilaterally alters a pre-existing term or condition of employment involving a mandatory subject of bargaining without providing the exclusive representative (union) of its employees notice and an opportunity to negotiate over the change.[279]

The working hours of bargaining unit members have been held to constitute a mandatory subject bargaining.[280]

While the Massachusetts Collective Bargaining Law is not so absolute, the National Labor Relations Act (NLRA) deems it a per se violation where an employer refuses to bargain concerning hours of employment.  Under the NLRA none of the following facts will justify a refusal to bargain, that:

·        the employer instituted the changes in good faith;[281] (See Chapter 10)

·        the employer was motivated by sound business reasons or economic considerations;[282]

·        there was no loss of employees’ pay because of the change in hours;[283]

·        there was only a minimal change of hours, or the change of hours affected only a minimum number of workers;[284]

·        the change of work schedules was arranged for the special convenience or personal preference of individual employees.[285]

In order to prevail at the LRC, the charging party must show by a preponderance of the evidence that:

·        there was a pre-existing condition of employment;

·        the employer unilaterally changed that condition; and

·        the change affected a mandatory subject of bargaining.[286]

E.              Holiday Schedules

The LRC, in its 1981 decision in the City of Springfield case, addressed the City’s obligation to bargain in good faith over a change in its practice of paying overtime for a holiday.[287]  In this case the collective bargaining agreement with the Massachusetts Nursing Association, which “expired” on June 30, 1979, provided for 11 specified paid holidays and called for overtime pay, in addition to a regular day’s pay, for nurses required to work on a holiday.  Without conferring with the Association, the City issued a memorandum to department heads advising them that the Mayor “has indicated that October 1, 1979 will be a paid holiday.”  The state had recently voted to declare October 1, 1979 as a Papal Holiday, in honor of the Pope’s visit to Boston.  When the City later failed to pay the extra compensation to nurses who worked the “holiday”, the LRC found that the City’s conduct constituted a refusal to bargain in good faith.  Rather than order the extra compensation as the Association requested, the Commission simply ordered the City to cease and desist from failing or refusing to bargain in good faith with the Association over compensation for unit members who worked on October 1, 1979 in reliance upon the September 28, 1979 memorandum from the Mayor.

In another LRC decision which involved the granting of half day holidays on the day preceding Thanksgiving and Christmas, the Hearing Officer dismissed a complaint alleging a unilateral change in a past practice.[288]  The union contended there were no prerequisites to early release, while the School Committee stated that they were contingent upon the successful completion of work assignments.  The Hearing Officer found the union’s position “questionable and unrealistic” and ruled in the School Committee’s favor.

F.               Minimum Staffing

Unions may point to a minimum staffing clause as a bar to reducing coverage on holidays or at other premium pay times.  Such challenges should prove unsuccessful for a variety of reasons.  Such clauses are only enforceable for the first year of a multi-year contract.[289]  When renegotiating a collective bargaining agreement, a municipal employer may refuse to even discuss minimum staffing for shift coverage in public safety contracts.  When faced with union insistence upon such a provision, an employer may file a Prohibited Practice Charge at the Labor Relations Commission or, if the matter proceeds to arbitration under the jurisdiction of the Joint Labor-Management Committee, the municipal employer may insist that the arbitrator refrain from ruling on minimum staffing pursuant to the terms of the statute which created the JLMC.[290]  The JLMC act specifically provides:

 

Notwithstanding any other provision of this act to the contrary, no municipal employer shall be required to negotiate over subjects of minimum staffing of shift coverage, with an employee organization representing municipal police officers and firefighters.

The Labor Relations Commission has ruled that while minimum staffing for shift coverage is not a mandatory subject of bargaining[291], minimum staffing per piece of firefighting apparatus is, at least when the piece is being placed in service at a fire.  The issue of two or one-person police vehicles was not a mandatory subject of bargaining in Boston.[292]

An LRC Hearing Officer was faced with a variety of firefighter minimum staffing and unilateral change issues in the 1992 case of Town of Halifax.[293]  The Hearing Officer concluded that minimum staffing per shift is a permissive subject of bargaining because shift coverage in a fire department has a greater impact on the level of delivery of a public service than on the workload and safety of firefighters.  On the other hand, she ruled that the number of firefighters on a piece of fire apparatus when that apparatus responds to an alarm is a mandatory subject of bargaining to the extent that such coverage raises a question of safety or workload.  As regards the Town’s action in the cancellation of scheduled overtime on two dates, the Hearing Officer ruled that since this was a mandatory subject of bargaining, the Town violated the law by refusing to bargain over this change.

 

§ 6     Benefits, Compensation and Leaves

A.              Wages

Wages are, of course, a mandatory subject of bargaining.[294]  Establishing entry-level wages is also a mandatory subject of bargaining given that wages are earned after an applicant becomes an employee and a member of a bargaining unit.[295] Thus, an employer may not unilaterally decrease or increase the entry-level wage of a bargaining unit position without giving the bargaining unit notice and an opportunity to bargain.[296]  Further, an employer must comply with applicable minimum wage laws.[297]

Changing the payment schedule from weekly to monthly without providing the union with notice and opportunity to bargain was a violation of Section 10(a)(5).[298]

A parity clause is a provision in a collective bargaining agreement that directly links the wages and/or benefits of one bargaining unit to those of another bargaining unit.[299]  Such clauses violate Section 10(a)(5) of the Law.[300]    However, if the provision is worded such that it will apply only “to the extent permitted by law,” it will not be enforceable and, therefore, it will not violate the collective bargaining law.[301]

Other types of compensation, such as pensions,[302] severance pay, insurance (health[303] or life), and educational incentives,[304] also qualify as “wages” for collective bargaining purposes, and thus are mandatory subjects of bargaining. 

B.              Meal and Coffee Breaks

The Fair Labor Standards Act (FLSA)[305] requires that employees be compensated for all hours worked.  Thus, rest periods, such as coffee or snack breaks, require compensation.  If employees are completely relieved from duty during meal periods (which must be at least thirty minutes long), no payment is required.[306]  Thus, for police officers on extended surveillance activities, any meal periods would be compensable given that they are not completely relieved of duty.[307]

As a mandatory federal law, unions may not bargain away employee rights under the FLSA,[308] and an individual employee may not voluntarily waive these rights.[309]

A department head may schedule breaks at specific times, even if this changes the manner in which employees previously scheduled their breaks, according to a 1998 Administrative Law Judge’s (ALJ) ruling.[310]  This was the case even though the employer implemented the change unilaterally and gave no prior notice to the union.[311]  There she found no change in the existing practice that had each department head deciding precisely when breaks would be taken.

C.              Holidays and Vacations

The criteria for granting vacation leave is a mandatory subject of bargaining.[312]  If an employer has agreed to certain holidays explicitly in a collective bargaining agreement or implicitly by creating a past practice, an employer may not unilaterally alter the holiday work schedule or compensation.[313]  Thus, the decision not to pay teachers for Good Friday contrary to past practice was found to be unlawful by the LRC because it was a mandatory subject of bargaining (and no notice and opportunity to bargain was given.).[314]  Similarly, another public employer was found to have violated the Law when it discontinued (without notice and opportunity to bargain) its past practice of allowing officers on injury leave to accumulate vacation credits and holiday pay.[315]

The LRC has generally approached vacations in the same manner as holidays.  Thus, an employer may not unilaterally change the vacation leave policy.[316]  Further, the LRC has stated that an employer may not unilaterally change the manner in which vacation leave is assigned or approved.[317]  An employer must provide notice and opportunity to bargain to agreement or impasse before making any changes in the vacation leave policy.[318]

D.              Leaves of Absence

The LRC generally treats leaves – resulting from injury, sickness, family obligations, meetings, conventions, etc. – in the same manner as vacation or holiday leaves, and requires the employer to bargain prior to changing a past practice or contract provision relative to any leave policy.  However, some types of leaves raise special issues which require additional comment.

With respect to sick leave, an employer may not unilaterally require an employee to submit to physicals conducted by employer-designated physicians.[319]  However, if the employer makes a unilateral change in the sick leave policy in response to an illegal “sick-out” by employees, then its conduct would not violate the Law (even though generally such conduct would be unlawful[320]).[321]

Leave for public safety personnel injuries raises a host of issues under M.G.L. c. 41, § 111F, the “injured on duty” provision.[322]  In 1985, the SJC ruled that a city could require an officer injured on duty to perform “light duty” if so assigned by the chief even though the officer was not yet able medically to resume all of his/her prior duties.[323]  This case and  subsequent LRC decisions have stressed the importance of bargaining with the union to impasse or agreement prior to implementing a new “light duty” policy.[324]

With respect to both sick and injury leave, an employer may, without bargaining with the union, institute a new “reporting form” which inquires about the reason for the absence, any medical treatments received, and the ability to perform regular duties.  In Town of Wilmington, the LRC upheld a new fire department reporting form, because the new form was “procedural” in nature and imposed no new substantive requirements affecting the amount of leave available, the criteria for granting leave, or any other condition of employment.[325]

For both sick and injury leave, a chief may require that an employee receiving benefits as a result of sickness or injury remain in the individual’s residence except for specific department-approved activities outside of the residence.[326]  In the Atterbury case, the Boston Police Department required approval for all reasons for leaving one’s home except for voting, doctor’s appointments, purchasing foods or medicines, attending church, physical exercises, or care of minor children.[327]

Employers must make available to employees unpaid leave for certain family obligations, including the birth of a child, adoption, foster care, care for sick family members, or personal sickness or injury (not work related), pursuant to the Family and Medical Leave Act (FMLA).[328]   The FMLA, a federal law, requires that an employer allow at least twelve consecutive weeks of unpaid leave to any qualifying employee (who worked at least 1250 hours in the prior year) requesting leave for any of the above reasons.  The employer may require the employee to provide documentation regarding the reasons for the leave, from a health care provider or otherwise, and can mandate that the employee obtain a second opinion if the employer has reason to doubt the justification for the leave.  Moreover, an employer may require that the employee utilize accrued vacation, personal, or sick leave for any part of the twelve-week period, and may require 30-days’ notice if the medical leave is foreseeable (e.g., in the case of childbirth).  The FMLA requires that the twelve weeks be consecutive, unless the employer agrees to an alternate arrangement.  Upon returning to work, an employee is entitled to the same position held before the leave or a position equivalent to the previous position with equivalent benefits, pay and other terms and conditions of employment.[329]  However, benefits or seniority need not accrue during the leave.[330] 

E.              Take-Home Vehicles

The LRC has determined that the convenience and commuting cost savings resulting from a free take-home vehicle constitutes a mandatory subject of bargaining.[331] 

In its 1998 decision involving the Boston Police Department, the Commission ruled that the City violated the Law by discontinuing the practice of assigning district sergeant detectives take-home vehicles without first giving the union notice and an opportunity to bargain in good faith to resolution or impasse.[332]  Even though the written policies since 1997 had stated that such vehicles required the Commissioner’s express authorization, he/she had never exercised it.  The employer may not begin to utilize its discretion, having never done so before, without giving the union notice and the opportunity to bargain.[333]

F.               RECRUIT ACADEMY FEES

On June 18, 1999, the International Brotherhood of Police Officers, Local 374 (Union) filed a charge with the Labor Relations Commission (Commission) alleging that the Town of Ludlow (Town) had violated Sections 10(a)(1) and (5) of M.G.L. c.150E (the Law).  Pursuant to Section 11 of the Law and Section 15.04 of the Commission’s Rules, the Commission investigated a 2002 decision involving the Town of Ludlow held that the Town failed to bargain in good faith by unilaterally implementing a requirement that new police officers either sign an agreement promising to remain on the Town’s police force for five (5) years or reimburse the Town for the cost of their police academy training without giving the Union prior notice and an opportunity to bargain to resolution or impasse, in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law.

In mid-1995, the legislature enacted and the Governor approved Section 305 of Chapter 38 of the Acts of 1995 (Section 305) that provides:

 

Section 305.  Notwithstanding the provisions of any general or special law to the contrary, the criminal justice training council is hereby authorized and directed to charge one thousand eight hundred dollars per recruit for training programs operated by the council for recruits of municipal police departments who began training on or after July first, nineteen hundred and ninety-five.  The state comptroller is hereby authorized and directed to transfer one thousand eight hundred dollars multiplied by the number of such recruits from each municipality from the local aid payments of the municipality in which said recruit shall serve.  Said transfers shall be made in the fiscal quarter immediately following the completion of training.  The state comptroller shall certify all such transfers to the house and senate committees on ways and means no later than thirty days after completion of said transfer.  Upon completion of training, said training fee shall be deducted from the recruit’s wages in eighteen equal monthly installments or as otherwise negotiated.

Section 71 of Chapter 120 of the Acts of 1995 amended Section 305 by striking out, in line 4, the word “operated” and inserting in place thereof the word “approved”.

After the enactment of Section 305, the Town prepared and gave to all newly-appointed student officers a “Recruit Training Fee Agreement, Conditional Waiver Provision” (fee waiver agreement) for their signature.  This fee waiver agreement between the Town and the individual employee provides that the Town will assume and be responsible for the $1,800.00 municipal police recruit training academy fee authorized by Section 305, provided that the student officer remains in the Town’s employ for five (5) years after completing the academy training.  The fee agreement further provides that if the police officer leaves the Town’s employ within five (5) years after the training, the police officer will reimburse the Town the full sum of $1,800.00 that the Town may deduct from any severance monies due the officer at the completion of Town employment.  If the officer’s severance monies are insufficient to cover the total amount due, the officer will be individually responsible for the balance.[334]

The Town did not notify the Union of the fee waiver agreement before giving it to the officers for their signature in March 1996, August 1997, and June 1998.  Prior to the enactment of Section 305 in mid-1995, there was no statute that imposed an $1,800.00 police academy training fee that was deducted from the Town’s local aid payments.  Moreover, prior to the enactment of Section 305, no statute stated that:  “[u]pon completion of training, said training fee [$1,800.00] shall be deducted from the recruit’s wages in eighteen equal monthly installments or as otherwise negotiated.”[335]  Prior to March 1996, the Town did not have a procedure or fee waiver agreement in place that waived the training cost assessment if officers remained in the Town’s employ for five (5) or more years.

A public employer violates Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it unilaterally changes an existing condition of employment or implements a new condition of employment involving a mandatory subject of bargaining without first affording its employees’ exclusive collective bargaining representative notice and an opportunity to bargain to resolution or impasse.[336]  The issue here was whether the Town violated Sections 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when, in March 1996, the Town began requiring new police officers to either reimburse the Town for the cost of their police academy training or sign an agreement promising to remain on the Town’s police force for five (5) years in return for which the Town agreed to waive the police academy training reimbursement.  The Town argued that the fee waiver agreement did not involve a mandatory subject of bargaining because Section 305 is not listed in Section 7(d) of the Law, and by offering the police officer and the student officers the choice of either signing a fee waiver agreement or reimbursing the Town in the method provided for in Section 305, it complied fully with the mandates of Section 305 and the Law.

The general issue of whether the police academy training cost assessment contained in Section 305 of the Acts of 1995 (Section 305) constitutes a mandatory subject of bargaining was first addressed by the Commission in Town of South Hadley, 27 MLC 161 (2001).  In that opinion, the Commission decided that a requirement that employees pay the costs of their police academy training is a condition of employment that directly affects employees’ wages, and, therefore, a training cost assessment, including the procedures for implementing the assessment, including the procedures for implementing the assessment, is a mandatory subject of bargaining.[337]  Further, because Section 305 is not listed in Section 7(d) of the Law, the Commission examined carefully its specific language to determine if a public employer has a duty to bargain under the Law.[338]  The Commission concluded that Section 305 identifies only one method for a municipality to recoup the costs of police academy training and does not preclude or alleviate a public employer’s statutory obligation to bargain over this training cost assessment, including the procedures for implementing it, with its employees’ exclusive representative.[339]  The Commission concluded, in accord with its prior decision, that the training cost assessment, including the procedures for implementing it, like a fee waiver agreement, constitute a mandatory subject of bargaining.

The Town also contended that it had no obligation to bargain with the Union about the fee waiver agreement because the officers who signed that agreement were, pursuant to M.G.L. c.41, Section 96B, student officers who are specifically exempt from certain statutory protections afforded to police officers, including collective bargaining agreements under the Law.  Further, the Town argued that, because the five (5) student officers were not Town employees and bargaining unit members on the dates they signed the fee waiver agreements, the Town had no obligation to bargain about issues that impact persons who are not in the Union’s bargaining unit.  The Commission disagreed.

Section 305 provides in relevant part that:  “[u]pon completion of training, said training fee shall be deducted from the recruit’s wages in eighteen equal monthly installments or as otherwise negotiated.”  Therefore, under Section 305, the $1,800.00 training fee is due and payable after the student officer has completed the police academy training or as otherwise negotiated.  After the student officers have completed the training, they are no longer student officers, but police officers accorded the full protections under the Law and whose wages and other terms and conditions of continued employment are governed by the parties’ collective bargaining agreement.  Therefore, the Law required the Town to bargain with the Union about the training cost assessment, including the procedures for implementing it, because the officers were Town police officers and members of the Union’s bargaining unit when the training cost assessment attached.[340]  Moreover, the fact that student officers signed the fee waiver agreement prior to the date they started working for the Town does not turn the training fee assessment under Section 305, that directly and only affects employee’s wages after hire, into a pre-condition of hire that an applicant must fulfill before beginning work.[341]

The Labor Relations Commission stated that its decision in Ludlow did not require it to determine whether the Town required the student officers to sign the fee waiver agreement or whether, as the Town asserted, the Town offered the student officers the choice of either signing the fee waiver agreements or reimbursing the Town in the manner identified in Section 305.  Under either scenario, the outcome is the same.  The Law requires the Town to give the Union prior notice and an opportunity to bargain over the new training cost assessment, including the procedures for implementing it, like the fee waiver agreement, prior to implementation.  Accordingly, the LRC ruled that, by implementing the training cost assessment in March 1996 without first giving the Union notice and an opportunity to bargain to resolution or impasse, the Town failed to bargain in good faith in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law.

G.              INCREASES UNDER EXPIRED CONTRACT

It is not unusual for a city or town to continue honoring the terms of an expired collective bargaining agreement.  In most cases, unless the employer has proposed a change, and impasse has been reached, it may be obligated to continue such benefits.  However, where a benefit under an expired contract has not become a “past practice”, a city or town may be able to withhold certain increases or payments such as step raises or longevity bonus increases.

A public employer violates Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it unilaterally changes an existing condition of employment or implements a new condition of em­ployment involving a mandatory subject of bargaining without first giving its employees’ exclusive collective bargaining repre­sentative notice and an opportunity to bargain to resolution or impasse.[342] The obligation to bargain extends to working conditions established through past practice as well as to working conditions contained in a collective bargaining agreement.[343] The rule prohibiting public employers from making unilateral changes in established conditions of employment that affect mandatory subjects of bargaining applies both during the terms of the collective bargaining agreement and after it expires.[344] Established terns and conditions of employment in effect at the time the contract expires constitute the status quo, which cannot be altered without satisfying the bargaining obligation.[345] The status quo is composed of the terms and conditions of employment that prevail when the contract expires.[346]

 

In the Town of Chatham case, to identify the terms and conditions of employment that were in effect when the parties’ 1989-1992 agreement expired, the Com­mission looked both at the relevant provisions of the expired contract, and the established practice between the parties.[347]  This rule is consistent with the Commis­sion’s traditional analysis for defining what working conditions constitute the status quo during the hiatus between collective bargaining agreements.[348]   Accordingly, under existing Commis­sion precedent, the issue does not merely turn on the language of the expired contract, but requires a factual analysis of the prior practice between the Union and the Town concerning the payment of longevity and step increment increases.

The LRC, in the Chatham case, concluded that the contractual step and longevity increases at issue in this case had become part of the status quo.  Because the Town’s practice of continuing to pay step and longevity payments, both during the term of, and in the hiatus period between collective bargaining agreements had occurred with regularity over a sufficient interval of time, it was reasonable for employees to expect this practice would continue.[349]  Therefore, by failing to pay step and longevity increases after the parties’ 1989-1992 agreement expired, without notice, or bargaining to impasse, the Town unilaterally departed from the working conditions that had prevailed unbroken for at least the past seven years.[350]

H.             BICYCLE PATROLS

The LRC has ruled that the manner in which a municipal employer implements its bicycle patrol program directly affects mandatory subjects of bargaining.[351]  These include employees’ job duties, workload and safety when responding to calls, use of safety equipment and work assignments, all of which are mandatory subjects of bargaining.[352]

An employer must notify the union of a potential change before it is implemented, so that the bargaining representative has an opportunity to present arguments and proposals concerning the physical alternatives.[353]

I.                 OTHER BENEFITS

The Commission has held that certain amenities provided by an employer at the workplace amount to benefits on which employees may rely as condition of employment and which constitute mandatory subjects of bargaining.

Examples include:

·     Providing lockers and the manner in which they may be used;[354]

·     free parking; [355]

·     choice and amount of food  available to correction officers;[356]

·     gas allotment policy;[357] and

·     library hours.[358]

 

J.               BULLET RESISTANT VESTS

The LRC reversed a Hearing Officer and ruled that the Town of Shrewsbury violated Sections 10(a)(5) and (1) of the Law by unilaterally implementing a rule that officers must wear bullet-resistant vests for paid details and court appearances.[359]

The issue in the Shrewsbury case was whether the Police Department unilaterally changed a condition of employment by the Chief’s memorandum requiring all officers to wear bullet­proof vests when on duty. On appeal, the Union challenged the Hearing Officer’s conclusion that there was no unilateral change and no violation of the Law. The full  Commission disagreed with the Hearing Officer’s conclusion and held that the Town violated the Law, for the reasons set forth below.

A public employer violates the Law when it unilaterally alters a condition of employment involving a mandatory subject of bar­gaining without first bargaining with the exclusive collective bar­gaining representative to resolution or impasse.[360]  An employer’s duty to bargain encompasses working conditions established through custom and practice, as well as those governed by the terms of a collective bargaining agreement.[361]

The uncontroverted evidence in this case established that regardless of how officers got their vests, they did not always wear them. Further, the officers who testified never wore their vests, without consequence, prior to the Chief’s memorandum. Therefore, the memorandum’s requirement that all officers wear their vests at all times constituted a unilateral change in the estab­lished practice. The requirement to use safety equipment such as bullet-proof vests is a mandatory subject of bargaining.[362]  Therefore, absent an affirmative defense, the Chief’s unilateral change in a mandatory subject of bargaining is a violation of the Law.[363]

The Town defended its action by relying on the language of the parties’ collective bargaining agreement, and the LRC considered whether the Union waived its right to bargain about the vesting requirement by agreeing to that language. The relevant question therefore was whether the Union knowingly and unequivocally waived its bargaining rights over the requirement that all officers wear the vests at all times. A contract waiver requires evidence that the parties consciously explored and knowingly yielded the right to bargain further about a matter during the life of an agreement.[364]  A waiver of the statutory right to bargain over a particular subject cannot be inferred lightly. Rather, it must be “shown clearly, unmistakably, and inequivo­cally.”[365]  The contract language on which the Town relied and the parties’ bar­gaining history established that there was no waiver in this case.

There was no evidence that either party contemplated that all officers would receive free vests pursuant to the state grant program at the time the provision was negotiated. Evidence of bargaining history establishes that the Union sought to have the Town pay for vests for officers who wanted them, and the Town wanted the officers to wear the vests if the Town was going to pay for them. Furthermore, the evidence established that the Town encouraged the officers to obtain the free vests, and officers expressed concern and were reassured that there would be no “strings attached” if they obtained the vests pursuant to the state grant program. Therefore, the Commission ruled that the Town did not meet its burden of establishing that the Union waived its right to bargain over the mandatory use of vests by all officers.

K.              HEALTH INSURANCE

The general framework surrounding the issues raised in health insurance cases is well-settled.  A public employer violates Section 10(a)(5) and (1) of the Law when it unilaterally alters an existing condition of employment or implements a new condition of employment involving a mandatory subject of bargaining without providing to the exclusive representative of its employees prior notice and an opportunity to bargain.[366]  It is undisputed that normally, under M.G.L. c.150E, a public employer must bargain over the terms and costs of health insurance coverage provided pursuant to M.G.L. c.32B and that such an employer would commit a prohibited practice by changing health insurance benefits without first bargaining over the subject.[367]  The Commission has also held that employer-subsidized health insurance is a form of compensation.[368]  Changes in the amount of a co-payment that employees are required to pay for prescription drugs or office visits under an employer’s health insurance plans are clearly changes to both the terms and costs of health insurance affecting employees’ overall compensation.  Therefore, generally, the employer must bargain with a union to resolution or impasse prior to changing the amount of co-payments that employees are required to make under the employer’s group health insurance plan.[369] 

Although the Town of Dennis did not dispute that it had an obligation to bargain over the impacts of the decision to increase insurance co-payments, it contended , citing MCOFU v. Labor Relations Commission, 417 Mass. 7 (1994) and several other Commission decisions, that it had no obligation to bargain over the decision to increase insurance co-payments because that decision was made by CCMHG and was therefore beyond the sole control of the Town.

The Commission rejected the Town of Dennis’ argument that it was excused from bargaining over the decision to increase the co-payments because that decision was made by the CCMHG and therefore was beyond its control.  The Commission has held that, where certain actions taken by parties like the Group Insurance Commission (GIC), the Legislature, or an insurance company are beyond the employer’s control, the public employer may not be required to bargain over the third party’s decision to take that action.[370]

In MCOFU v. Labor Relations Commission, the Supreme Judicial Court held that because it was inherent in the statutory scheme that the Commonwealth, as the public employer, and the union had no control over the GIC’s decision to reduce health insurance benefits, the Commonwealth was relieved of its duty to bargain over the changes in health insurance coverage mandated by GID. 417 Mass. at 9.  However, the Court specifically noted that its holding did not concern collective bargaining rights and health insurance coverage under M.G.L. c.32B for employees of political subdivisions of the Commonwealth.[371]  The Commission similarly found that there is no independent agency analogous to the GIC for purchasing health insurance for municipal employees.[372]  Moreover, although Section 12 of M.G.L. c.32B permits public authorities of two or more governmental units, it does not require those public authorities to do so, nor does that statute relieve the participants in those groups of their respective obligations to bargain over changes to the terms and costs of its employees’ benefits within their municipality.[373]

In Town of Dennis, the Labor Relations Commission stated that the record before it reflected that the CCMHG is a joint purchase group of governmental employers that arranges for the purchase and administration of health insurance for its constituent members.  The CCMHG is run by a Board of Delegates, whose membership is drawn from various municipal officials of the constituent group of governmental employers.

The Commission concluded that the Town of Dennis violated Sections 10(a)(5) and (1) of the Law by unilaterally making increases to prescription drug and office visit co-payments in 1999 and July 2001 without first giving notice to the Union and bargaining to resolution or impasse.

 

§ 7     Employee Performance

A.              Performance Evaluations

Because performance evaluations have a direct impact on employee job security and professional advancement, they are a mandatory subject of bargaining.[374]  The LRC has classified performance evaluations as mandatory subjects of bargaining for two primary reasons: 1) they establish standards by which performance of bargaining unit members will be evaluated,[375] and 2) they serve as a basis for promotions.[376]  Moreover, the LRC has stated that performance evaluations do not fall in the “managerial prerogative” category, so an employer must bargain over the decision to implement or change the performance evaluation method in addition to the impact of the decision.[377]

Performance evaluation systems that measure standards of productivity and performance are mandatory subjects of bargaining.[378]  Performance evaluations often have a direct relationship to promotions, so a change in the standards used to evaluate employee productivity or performance must be bargained over prior to implementation.[379]  An employer is prohibited from unilaterally changing the criteria upon which employees are evaluated.[380]  Evaluation procedures and criteria are changed if there is a material change in the criteria used, a new criterion is established, or there is a change in the purpose of the evaluation.[381]  An employer may choose, however, to reinstate certain evaluation procedures which it has not used for a period of time.  Thus, in Boston Department of Health and Hospitals, the LRC held that the employer could lawfully reintroduce written evaluation forms after a three-year hiatus.[382] 

An employer need not bargain before implementing a new system if such new system measures the same criteria as the prior system, since such changes do not materially or substantially change conditions of employment.[383]  In its 1998 ruling, the LRC upheld an Administrative Law Judge’s (ALJ’s) dismissal of the Boston Superior Officers Federation’s charge following the creation of a Community Appeals Board (CAB) to review Internal Affairs Department (IAD) investigations and disciplinary hearings.[384]  The union conceded that the department was entitled to create the CAB.  However, it insisted that the City had a duty to bargain before unilaterally implementing the CAB.  The LRC found that the CAB serves merely in an advisory capacity.  The ultimate decisions continued to rest with the Commissioner.  Therefore, the union failed to show that the CAB had a direct, identifiable impact on performance evaluations.

The employer also has a duty to provide the union with the personnel records and evaluations of both unit and non-unit employees if the union can demonstrate that the records are relevant and necessary for collective bargaining purposes.[385]  The LRC has recognized, however, that certain data of a highly personal, intimate, or confidential nature may be withheld.[386]  In cases where such confidential information is involved with respect to police officers, the SJC has ruled that partial disclosure of the employee evaluations is appropriate, given the public nature of such records.[387]

In order to establish that an employer has made an unlawful unilateral change with respect to performance evaluations, an employee must demonstrate that the employer effected a “material change” in the evaluation procedure.  Thus, mere “mechanical,” as opposed to “substantive,” changes are permitted.[388]  Implementing a new written evaluation[389] and changing the wording of an existing evaluation,[390] were considered mechanical changes by the LRC.  Moreover, the LRC has indicated that an employer may utilize a new factor in evaluations if that factor is linked to one of the criteria agreed to in the contract.  Thus, in City of Boston, the LRC upheld an employer’s use of quantity and quality of arrests in judging performance, because these were reasonably (and predictably) related to productivity.[391]

An employer may not, however, alter the criteria upon which employees are evaluated, without first bargaining over that decision. In Commonwealth of Massachusetts, the LRC found that the employer had committed an unlawful employment practice when it introduced “performance targets” into the evaluation procedure.[392]  The LRC came to this conclusion after finding that the parties had specifically agreed at the bargaining table that employees would not be held accountable to any specific goal or target achievement.[393]  Moreover, in Massachusetts Commissioner of Administration and Finance, the LRC found that an employer who began a worksheet chronicling an employee’s typing mistakes had unlawfully introduced a new criterion to the evaluation procedure.[394] 

When examining the LRC cases dealing with performance evaluations, several trends emerge.  First, the Commission will look to the collective bargaining agreement (CBA) to determine the proper manner, frequency, and content of performance evaluations.[395]  Second, most non-civil service employers who conduct written evaluations do so once per year.[396]  The evaluations are generally conducted by an employee’s immediate supervisor.[397]  The CBA will usually specify the procedure by which an employee can challenge the results of the evaluation.[398]

The most frequently challenged aspect of employee evaluations involves the terms categorizing the employee’s performance.  For example, in Massachusetts Department of Public Welfare, an employee complained when her evaluation rated her performance as “meeting” expectations.[399]  The employer’s evaluation procedure rated employees as “below,” “meets,” or “exceeds” standards.  The employee argued that the evaluation caused her to be denied bonus money, and sought to gain access to other employee evaluations to determine whether similarly situated employees had been evaluated in a like manner.  The hearing officer determined that the employee could see these other evaluations, and stated that it was unwise to rate employees according to such a limited scale.[400]

Federal and state cases indicate that performance evaluations will most likely be upheld if the following guidelines are followed:

·        use standardized evaluation forms,[401]

·        conduct annual evaluations,[402]

·        have face-to-face meetings between evaluators and the employee to discuss the review,[403]

·        use only objective facts (as much as possible) when forming conclusions,[404]

·        write down everything relevant to the evaluations,[405]

·        avoid general and ambiguous phrases such as “unsatisfactory” without elaborating;[406] and

·        do not consider facts which are outside the agreed upon performance criteria.[407]

B.              Testing

Employers often use various types of tests--including drug, and psychological tests--to measure an employee’s fitness for the job.  If used in the course of employment without prior agreement by the union, such tests may be instituted only if the employer bargains with the union to impasse first.[408]  However, if the tests are administered to an employee in the course of a criminal investigation, e.g., polygraph, prior bargaining is not required.[409]

Psychological tests are employed to evaluate both applicants[410] and current employees.  While management has the prerogative to implement such tests, except when use exclusively for applicants, it must first bargain over the impact on current employees with the union. [411]  The use of psychological tests has been challenged on a variety of legal grounds.  First, it was alleged that such tests violated constitutional First Amendment and privacy rights.[412]  In the case of public safety personnel, at least one appellate court has determined that a state has a sufficiently compelling interest in maintaining a qualified work force to justify the use of psychological tests.[413]

In addition to constitutional challenges, employees have challenged the use of psychological tests for particular purposes.  Nonetheless, courts have upheld the use of psychological tests for applicants,[414] probationary employees,[415] employees exhibiting erratic behavior,[416] and random or periodic testing (without cause).[417]  Moreover, an employee lawfully requested to perform a psychological evaluation may be disciplined if he/she or she refuses to submit to the exam.[418]  Also, an employee may not insist on having a lawyer present during the exam.[419]

Typically, drug and alcohol testing is treated in a similar manner to psychological testing.  Substance testing, according to the LRC, is a mandatory subject of bargaining.[420]  Thus, an employer may not unilaterally implement a drug screening or testing proposal for employees without prior bargaining with the union, and may not refuse to bargain over such a proposal.[421]  In the Town of Fairhaven case, the LRC also held that a union could agree to a drug testing provision in a labor contract, and that by doing so the union was not waiving any employee constitutional rights (search and seizure, privacy, etc.) as long as the testing occurred when the employer had “probable cause” to test a particular employee.[422]  The Supreme Judicial Court of Massachusetts has indicated, however, that random  (i.e., without cause) drug testing without an individual’s consent violates the state constitution.[423]

Polygraph examinations are also treated like other testing procedures, but they present a special complication in that polygraph tests may only be given in the course of a criminal investigation.  An employer may not even suggest that an employee submit to a polygraph exam as part of any hiring procedure or as a condition of continuing employment unless a criminal investigation is involved.[424]  Where a police officer is under criminal investigation and is ordered to submit to a polygraph test, a police department was not required to bargain with the union prior to the test.[425]

C.              Discipline[426]

The subject of discipline raises a myriad of issues related to the employer’s bargaining duty.  The establishment of discipline procedures is a mandatory subject of bargaining.[427]  An employer may not unilaterally change the discipline procedure by adding or removing a level in a progressive discipline scheme,[428] prohibiting additional activities,[429] or instituting a new policy carrying possible disciplinary penalties for noncompliance.[430]  However, the LRC has held that certain types of changes to the discipline policy are not unlawful unilateral changes.  For example, in City of Boston, the LRC found that the creation of a Community Appeals Board (CAB) was not unlawful, because the CAB was merely advisory and final discipline authority still rested with the Commissioner.[431] 

Whenever disciplining an employee, an employer must be cautious to avoid infringing on the employee’s exercise of collective bargaining rights.  Disciplining an employee in retaliation for engaging in protected union activities, such as participating in a LRC hearing[432] or filing a grievance,[433] is unlawful.[434]  The LRC may find that the actual reason for discipline is unlawful retaliation where the employer’s stated reason for the discipline was “stale” (i.e., where a significant amount of time had passed since the incident supposedly giving rise to the current disciplinary actions).[435]  However, the LRC has refused to find unlawful retaliation in the 30-day suspension of an employee, where there was no direct evidence of anti-union animus and only a single adverse statement by a supervisor.[436]  In addition, the decision not to re-appoint a police officer is a non-delegable managerial prerogative which may not be challenged without explicit evidence of retaliation.[437]  (Note:  See G.L. c.41, §133 for more recent guidelines.)

Discipline is generally appropriate whenever an employee violates an employer’s rule or policy.  However, the discipline must be commensurate both with the nature or severity of the violation and with the discipline given to other similarly situated employees.[438]

While a public employer may discipline an employee for insubordination, often an employee’s comments may implicate some protected rights as well.  Thus, one employee’s “irreverent” comments over the employer’s e-mail system were found to be protected union activities because they involved a discussion of working conditions.[439]  Moreover, in Holyoke, when the union president was fired for using profanity, the LRC reinstated the employee because he/she had not been previously warned that such comments would result in discipline.[440]  However, where an employee called the Town’s bargaining team “pigs, cheats, and liars,” both the LRC and the SJC on appeal found that these comments were not protected.[441] 

Weingarten Rule

An employer, prior to disciplining an employee, may need or want to discuss the violation with the employee or to obtain information about the incident(s) giving rise to the need for discipline.  The LRC has adopted the National Labor Relations Board’s approach to investigatory interviews (which could result in discipline) conducted by the employer.  In determining whether an employer has unlawfully denied union representation to an employee during an investigatory interview in violation of Section 10 (a) (1) of the Law, the Commission has been guided by the general principles enunciated in NLRB v. Weingarten.[442] The right to union representation attaches when an employee reasonably believes an investigatory meeting will result in discipline[443] and the employee makes a valid request for Union representation.[444] A meeting is investigatory in nature if when the employer’s purpose is to investigate the conduct of an employee and the interview is convened to elicit information from the employee or to support a further decision to impose discipline.[445] The right to union representation is not triggered merely by a meeting with the employer or its agents. Further, no right to representation attaches when the sole purpose of a meeting is to inform an employee of or to impose previously determined discipline and no investigation is involved.[446]   In NLRB v. Weingarten, the employer denied the employee’s request for union representation at an investigatory interview.[447]  The Supreme Court of the United States held that the employer’s refusal constituted an unfair labor practice, because it restrained and coerced the employee’s right to participate in concerted activities given the potential for disciplinary action as a result of the interview.[448]  The LRC has applied this rationale to public employees covered by the Law as well, holding that the failure to permit representation at an investigatory interview which could result in discipline constitutes a prohibited practice.[449]  In its 2002 decision, the LRC in Town of Hudson, ruled that if the union sends its attorney to the interview as its representative, the chief may not refuse to allow the lawyer to attend.[450]  (This does not require that any other union “buddies” be allowed to attend, nor does it increase the role of such person at the interview.)

There appears to be no decision from the Massachusetts Supreme Judicial Court nor the Massachusetts Court of Appeals which has addressed an employee’s right to counsel at an internal investigation.  However, the United States First Circuit Court of Appeals has.  That court held in Downing v. LeBritton[451], that employees are not entitled to have an attorney present during an internal investigation.  The court found no reason why an attorney would be preferable to a sympathetic and articulate fellow employee such as the union agent in helping the aggrieved employee to recall facts and to communicate his position.  That court opined that by the insertion of counsel into an investigatory interview or termination proceeding would stimulate lawyer representation of the employer; would formalize hearings; would force hearings into an adversary mold; would cause a litigation chill on decisions to terminate; and would increase the likelihood that many other ordinary personnel actions would become cases celebres.[452]

Additionally, the National Labor Relations Board has consistently rejected the assertion that an employee is entitled to counsel at an investigatory review.[453]

Moreover, the failure to provide the union with information necessary to defend bargaining unit members at a disciplinary hearing or interview has been similarly held to be unlawful.[454]  However, if the employee fails to request union representation, the employer has no duty to inform the union or request representation for the employee.[455]  If the interview is not investigatory in nature, there is also no duty for the employer to allow union representation.[456]

In determining whether an employer hash unlawfully denied union representation to an employee during an investigatory interview, the Commission has been guided by the general principles enunciated in NLRB v. Weingarten, 420 U.S. 251 (1975).[457]  A public employer that denies an employee the right to union representation at an investigatory interview the employee reasonably believes will result in discipline interferes with the employee’s Section 2 rights in violation of Section 10(a)(1) of the Law.[458]  The right to union representation arises when the employee reasonably believes that the investigation will result in discipline and the employee makes a valid request for union representation.[459]  A meeting is investigatory in nature if the employer’s purpose is to investigate the conduct of an employee and the interview is convened to elicit information from the employee or to support a further decision to impose discipline.[460]  An interview is investigatory if a reasonable person in the employee’s situation would have believed that adverse action would follow.[461]

The United States Supreme Court addressed the role of a union representative and outlined a union’s purpose in a disciplinary interview in NLRB v. Weingarten.[462]  The Court determined that a union representative is present in an interview to assist the employee, and to attempt to clarify the facts or suggest other employees who may have knowledge of them.  The Court reasoned that:

 

[a] single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.  A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.  Certainly his presence need not transform the interview into an adversary contest.[463] 

In a footnote, the Court, citing Independent Lock Co.,[464] additionally reasoned that, participation by the union representative might reasonably be designed to clarify the issues at this first stage of the existence of a question, to bring out the facts and the policies concerned at this stage, to give assistance to employees who may lack the ability to express themselves in their cases, and who, when their livelihood is at stake, might in fact need the more experienced kind of counsel which their union steward might represent.[465]

Similarly, in Massachusetts Correction Officers Federated Union v. Labor Relations Commission,[466] the Supreme Judicial Court observed that a union representative in an investigatory interview may not be “relegate[d] to the role of a passive observer”[467], nor may the representative be precluded from “assist[ing] the employee [or] clarify[ing] the facts.”[468]  In Southwestern Bell, the court held that the employer did not violate an employee’s right to union representation at an investigatory interview where the employer requested that the representative not interfere with questioning, where the representative was present in the interview, was allowed time to consult with the employee prior to the interview, was allowed time to consult with the employee prior to the interview, and was free to make any additions, suggestions, or clarifications after the interview.  In a 2002 case involving the Suffolk County Jail a union representative requested that the employer’s interviewer clarify a question posted to a union member.  In response, the interviewer’s instruction to the union representative that he “was not allowed to speak during the interview” and the reiteration that the union representative was “only present as a witness and could not request clarification of the questions” indeed relegated the union representative to the role of a passive observer without an opportunity to speak.[469]  Moreover, there was no testimony at the hearing that the union representative was informed that he would have an opportunity to clarify any questions at the end of the interview, as in Southwestern Bell.  Therefore, by denying the union representative to speak, the LRC ruled that the employer interfered with the employee’s right to Union representation in violation of Section 10(a)(1) of the Law.

Strikes

While employees in the private sector generally are permitted to strike, in Massachusetts the Law[470] prohibits strikes or work stoppages for public sector employees.  Section 9A of the Law provides:

 

(a) No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by such public employees.

(b) Whenever a strike occurs or is about to occur, the employer shall petition the Commission to make an investigation.  If, after investigation, the Commission determines that any provision of paragraph (a) of this section has been or is about to be violated, it shall immediately set requirements that must be complied with, including, but not limited to, instituting appropriate proceedings in the superior court for the county wherein such violation has occurred or is about to occur for enforcement of such requirements.

While part (b) of § 9A does indicate that the employer must petition the LRC when a strike is about to occur or is occurring, the Supreme Judicial Court of Massachusetts, in Lenox Education Association v. Labor Relations Commission, ruled that an employer need not petition the LRC prior to disciplining striking employees.[471]  Both the LRC and the SJC, in finding for the employer, reasoned that as long as the employer is acting in good faith, it is entitled to take emergency precautions to protect public services threatened by an illegal strike.[472]

 



Chapter 2 -  MANAGEMENT RIGHTS

 

Prior to the enactment of collective bargaining laws, management had the right to do almost anything it deemed appropriate to carry on its business.  When municipal employees started to bargain collectively, the contracts which resulted contained items which improved wages, hours and working conditions.  There appeared to be little need to insert a “management rights” clause in the early collective bargaining agreements.  Essentially management retained all rights which it did not explicitly bargain away.  Those contracts which did embody management rights clauses said little more than that.

Over the years public employee unions grew stronger, even as those in the private sector continued to loose members and public sympathy.  As wages and hours grew closer to those in the private sector, unions started to press for other benefits, most notably seniority.  This hallmark of the union movement worked its way into public sector contracts as well.  Bargaining proposals that tied seniority to vacations and step increases came easily.  When public sector unions started asking to have promotions, for example, be based solely on seniority, municipal officials and managers balked.

This increased emphasis on benefits tied more to seniority than performance or qualifications prompted an increasing number of municipal employers to negotiate management rights articles into their collective bargaining agreements.  Although more detailed than their one-paragraph predecessors, these expanded articles were rapidly agreed to by the unions since they were not so expansive as to take away virtually any benefits the unions had won in prior contracts.  They spoke in generalities of the kinds of things that management could do in conducting the public enterprise.  Rarely were they the subject of controversy rising to the level of an appellate court decision, for example.  The few that did found the courts continuing the tradition of either “favoring management” or “maintaining the long-standing public policy” of recognizing certain matters as inherent management rights, depending on one’s point of view.

In recent years, the Labor Relations Commission (LRC) has stopped enforcing those traditional management rights clauses.  The Commission finds them too general in nature.  In order for an employer to argue that the union waived certain rights, the Commission requires a clear showing that there was an awareness of the right, some opportunity if not actual discussion and a “meeting of the minds”.  The LRC insists that for management rights clauses to be enforceable, they must be far more detailed -- preferably containing examples -- than their predecessors.

PRACTICE POINTERS

It is important to recognize the possible sources of management rights.  Some are contained in statutes while others are “inherent” in the nature of public administration.  Where neither is the case, a municipal employer is still free to negotiate for certain rights, just as are the unions when seeking benefits.  The challenge is to recognize when something is an inherent managerial prerogative.  In that case, numerous consequences follow.  For example, certain items need not be discussed even if the union proposes them at the bargaining table.  Moreover, even when they are discussed, management may be free to refuse to include them in any resulting contract.  Lastly, in certain circumstances, they may not be enforceable even when they are included in a collective bargaining agreement.

In a 2002 Supreme Judicial Court decision involving the Worcester Police Department, the court upheld the Labor Relations Commission’s ruling that the decision to engage police officers in enforcing laws pertaining to school attendance implicated the city’s ability to set its law enforcement priorities, and thus was not subject to bargaining.[473]  The city was not required to explain its decision, so long as it was a matter of policy.[474]  Since the city failed (neglected?) to raise an argument on appeal to the SJC concerning the Commission’s order requiring bargaining over the impact of the city’s policy decision, the court treated that as a waiver and (reluctantly?) upheld that part of the LRC’s decision.[475]

 

PRACTICE POINTERS

The Court’s decision in the City of Worcester case contains an extensive discussion of management rights.  It points out, for example, that setting the priorities for the deployment of law enforcement resources is purely a matter of policy and not a proper subject for collective bargaining.

Other examples of exclusive managerial prerogative cited by the SJC in City of Worcester include:  the decision to reduce staff; having one as opposed to two officers assigned to each cruiser; requiring police officers suspected of criminal conduct to take a polygraph examination; reassigning duties formerly performed by police prosecutors to town counsel; and ceasing to require the presence of arresting officers at arraignment.  While the latter two examples required impact bargaining, the court in Worcester hinted that if the city had properly raised the argument on appeal, the court might have ruled that no impact bargaining was required.

§ 1     Public Policy

In its 1977 decision in the leading case of Town of Danvers and Local 2038, IAFF, the Labor Relations Commission set the tone for municipal collective bargaining in Massachusetts on the issue of mandatory subjects of bargaining.  The following excerpt is informative:

 

The public employer, like the private employer, must have the flexibility to manage its enterprise.  Efficiency of governmental operations cannot be sacrificed by compelling the public employer to submit to the negotiating process those core governmental decisions which have only a marginal impact on employees’ terms and conditions of employment.

The public employer has a greater responsibility to all citizens of the community than its counterpart in the private sector.  The government, as employer, must be responsible not merely to narrow corporate interests but to the overall public interest.

When management in the public sector gives up some if its “prerogatives” . . .  it foregoes the right to make decisions in the name of all the people.  When management in the private sector loses its unilateral power to act, however, the public loses little or nothing because the decision-making process is merely transferred from one private group to another, rather than from public to private.  The loss of the power to manage unilaterally in the public service is, therefore, more serious than the same phenomenon in the private sector.  Kilber, Appropriate Subjects for Bargaining in Local Government Labor Relations, 30 Md. L. Rev. 179, 193 (1970)

Therefore, those management decisions which do not have direct impact on terms and conditions of employment must not be compelled to be shared with the representatives of employees through the collective bargaining process.  Those decisions must remain within the prerogative of the public employer.  To compel the sharing of core governmental decisions grants to certain citizens (i.e., organized public employees) an unfair advantage in their attempt to influence public policy.

In the public sector employees already have, as citizens, a voice in decision making through customary political channels.  The purpose of collective bargaining is to give them, as employees, a larger voice than the ordinary citizen.  Therefore, the duty to bargain should extend only to those decisions where the larger voice is appropriate.  Summers, Public Employee Bargaining:  A Political Perspective, 83 Yale L.J. 1156, 1193 (1970).

This special access to governmental decisions is appropriate only when those decisions directly affect terms and conditions of employment.

The Supreme Judicial Court’s 1979 decision involving the Boston School Committee echoed the LRC’s analysis.[476]  The court quoted from Clark, The Scope of the Duty to Bargain in Public Employment in Labor Relations Law in the Public Sector at 82-83 (A. Knapp, Ed. 1977) as follows:

 

“Public policy” . . . may limit the ability of a public employer . . . to bind itself to a given contractual provision or to delegate to an arbitrator the power to bind it.

The court went on to explain its rationale:

 

Underlying this development is the belief that unless the bargaining relationship is carefully regulated, giving public employees a collective power to negotiate labor contracts poses the substantial danger of distorting the normal political process for patrolling public policy.”  Citing Welling & Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L.J. 1107 (1969).

In a decision in which the SJC ruled that the abolition of the position of supervisor of music was committed to the exclusive, nondelegable decision of the school committee and thus the issue of the propriety of abolition should not have been submitted to the arbitrator, the court quoted with approval the following from a New York school district case:

 

Public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither, may . . . restrict the freedom to arbitrate.  Susquehanna Valley Cent. School District at Conklin v. Susquehanna Valley Teachers Ass’n, 37 N.Y.2d 616-617, 376 N.Y.S.2d 427, 429, 339 N.E.2d 132, 133 (1975).[477]

The Massachusetts courts have made it clear that -- even if agreement is reached and a provision is included in a contract -- there are certain matters of inherent managerial prerogative which cannot be bargained away.  Therefore, a municipal employer is not bound by such provisions, even if they are inserted by agreement in a collective bargaining agreement.  For example, in a case involving the Ayer Police Department, the appeals Court found that the decision to appoint police officers was a nondelegable managerial prerogative.[478]           

There the contract required that the Selectmen reappoint police officers unless there was just cause found for not doing so.  The court overturned the arbitration decision and stated:

 

We need not decide whether the parties agreed to submit the question of [the police officer’s reappointment] to arbitration . . . because, even if they did so agree, [the Board] would not be bound by an agreement to arbitrate its [reappointment] decision.

Arguing that the Appeals Court holding in Ayer should be limited to departments organized under G.L. c. 41, § 96, a challenge was made concerning the actions of the Northborough Board of Selectmen (where G.L. c. 41, § 97A -- the “strong chief law” -- applied) to the Supreme Judicial Court.[479]  There the Board voted not to reappoint an officer (union president) at the expiration of his term of appointment.  The court found no logic for any distinction focusing on the statutory basis under which a department is organized.  It reiterated the reasoning of the Ayer decision and stated:

 

A town may not by agreement abandon a nondelegable right of management.  Billerica v. International Ass’n of Firefighters, Local 1495, 415 Mass. 692, 694 (1993).  Therefore, even if the arbitration clause in the present case could be interpreted to grant an arbitrator the right to decide whether a police officer is entitled to reappointment, such an agreement would be unlawful and unenforceable.  “[A]n agreement to arbitrate a dispute which lawfully cannot be the subject of arbitration [is] equivalent to the absence of a controversy covered by the provision for arbitration.”  Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Ass’n, 372 Mass. 116, 119 (1977).

A.              Scope of Arbitration

The statute which established the Joint-Labor Management Committee (JLMC) includes a provision specifying what matters may not be the subject of arbitration following the breakdown of contract negotiations.[480]  The relevant section states:

 

. . . ; provided, however, that the scope of arbitration in police matters shall be limited to wages, hours and conditions of employment and shall not include the following matters of inherent managerial policy:  the right to appoint, promote, assign, and transfer employees; and provided, further, that the scope of arbitration in firefighter matters shall not include the right to appoint and promote employees.  Assignments shall not be within the scope of arbitration; provided, however that the subject matters of initial station assignment upon appointment or promotion shall be within the scope of arbitration.  The subject matter of transfer shall not be within the scope of arbitration, provided however, that the subject matters of relationship of seniority to transfers and disciplinary and punitive transfers shall be within the scope of arbitration.  Notwithstanding any other provisions of this act to the contrary, no municipal employer shall be required to negotiate over subjects of minimum staffing of shift coverage, with an employee organization representing municipal police officers and firefighters.  Nothing in this section shall be construed to include within the scope of arbitration any matters not otherwise subject to collective bargaining under the provisions of chapter one hundred and fifty E of the General Laws.

The Massachusetts courts have recognized consistently that there are a number of inherent managerial prerogatives which a municipal employer cannot relinquish even by agreement with a union and which an arbitrator may not include in an award.  In the 1993 case of Town of Billerica v. International Association of Firefighters, Local 1495[481], the Supreme Judicial Court made this clear by saying:

 

There are certain nondelegable rights of management, matters that are not mandatory subjects of collective bargaining (G.L. c. 150E, § 6 [1990 ed]), that a municipality and its agents may not abandon by agreement, and that an arbitrator may not contravene.

The determination that a topic involves an inherent managerial prerogative is significant in several ways.  It presumably means that the matter is not a mandatory subject of bargaining.  If so, management need not discuss the proposal at negotiations.  In fact, the union commits a prohibited (unfair labor) practice if it insists, at least to the point of impasse, on bargaining over a non-mandatory subject of bargaining.  In other situations, even if the matter is a mandatory subject of bargaining, it still may not be a proper subject for arbitration.  For example, standards of productivity and performance are included in G.L. c. 150E, § 6 as a mandatory subject of bargaining.  However, the JLMC statute omits this topic from the scope of arbitration.  Lastly, even where a contract already contains a provision purporting to restrict a chief’s managerial prerogative, e.g., power of assignment, a municipal employer may be able to disregard the impermissible restriction and, in any event, can insist that it not be included in a successor agreement.

PRACTICE POINTERS

The right to assign public safety employees is an inherent managerial prerogative which cannot be the subject of arbitration.  While it is arguable that management must negotiate at the request of the union over certain procedures relative to assignments, the ultimate decision-making power must rest with the chief.

Despite the fact that many collective bargaining agreements purport to restrict a chief’s ability to make assignments, such clauses may not be enforceable.  For example, a clause which purports to require absolute shift assignments by seniority would be voidable if it left no leeway for the chief to make certain shift assignments for legitimate reasons.  A similar result would apply where a contract clause leaves no room for a chief to use his/her judgment or discretion in making specialist assignments.  In any event, a municipality is free to refuse to include overly restrictive provisions in future contracts.  In fact, a union may commit a prohibited (unfair labor) practice if it insists to the point of impasse on a proposal to deprive the chief of the ability to make assignments.

A municipality is free to discuss certain matters during negotiations without waiving its right to refuse to allow an arbitrator to rule on them.  This does not imply that topics impinging on inherent managerial prerogatives are therefore permissive subjects of bargaining.  If this were the case, management would be bound, at least for the term of the contract, by an agreement reached on such matters.  Moreover, at any point in the negotiations, a municipal employer is free to remove a matter of inherent managerial prerogative from discussions.

In addition to decisions involving police and fire departments, the Massachusetts courts have addressed a municipal employer’s bargaining rights in numerous school committee cases.  For example, even though the school committee might include in a collective bargaining agreement provisions concerning the hiring of substitute teachers to replace regular, absent teachers, this is not a provision to which the school committee must adhere, if, in its discretion, it determines that -- for educational policy reasons -- it should be disregarded.[482]

 

What we decide in this case should not be construed as a requirement that, in the course of collective bargaining, a school committee must reach an agreement on class size, teaching load, or the use of the substitute teachers.  A school committee is entitled to maintain its own position on these subjects as matters of fiscal management and educational policy.

B.              Mandatory Subjects of Bargaining

The SJC’s decision in the Billerica Firefighters case discussed above appears to exclude all matters of inherent managerial prerogative from the arena of mandatory subjects of bargaining.  This would be a logical progression form the Court’s earlier rulings.  In a 1976 decision, the court ruled that there is no requirement that all matters which are mandatory subjects of bargaining must be subject to arbitration.[483]  The court explained that there is no direct correlation between what the LRC classifies as a mandatory as opposed to permissive subject and the issue of arbitrability when it said:

 

We do not decide any question with respect to the mandatory or permissive scope of collective bargaining.  “A naked distinction exists between a duty to engage in collective bargaining, and a freedom to submit controversies, whether or not subject to mandatory bargaining, to arbitration.”  Susquehanna Valley Cent. School District at Conklin v. Susquehanna Valley Teachers Ass’n., 37 N.Y.2d 614-617, 376 N.Y.S.2d 427, 429, 339 N.E.2d 132, 134 (1975).

The Appeals Court decision involving the pay requirement for a sergeant assigned as a temporary lieutenant, distinguished this case from one which might involve the decision of assignment itself.[484]  After citing numerous cases discussing the “broad administrative control and discretion” of the police commissioner, the Court stated:

 

The demands of public safety, ibid., and a disciplined police force underscore the importance of management control over matters such as staffing levels, assignments, uniforms, weapons, and definition of duties.[485]

The Appeals Court explained that its holding in this case was consistent with earlier decisions which ruled that the means of implementing managerial decisions, especially touching on compensation, may be the subject of an enforceable provision in a collective bargaining agreement.

PRACTICE POINTERS

The decisions of the Appeals Court and the Supreme Judicial Court would appear at variance with certain Labor Relations Commission (LRC) (or Hearing Officer) decisions.  Since relatively few Commission rulings are appealed to the Courts, it is only a matter of conjecture as to what the courts would have done in some cases involving assignment. 

The traditional three-part distinction among subjects of bargaining (mandatory, permissive and illegal/prohibited) is one followed more closely by the LRC than the Massachusetts courts.  The distinction may be only semantic.  However, it is possible that a municipal employer will receive conflicting rulings from the Commission and the Courts.  The LRC might well order bargaining over some matters which ultimately need not (and should not) be submitted to arbitration.  Unfortunately, a municipality may have to appeal an adverse Commission ruling to court if it wishes to challenge a bargaining order over a matter the city or town believes is an inherent managerial prerogative. 

Two Leominster cases involved the issue of police officer assignments[486] and resulted in orders compelling bargaining over at least some aspects of assignments.  It does not appear that the City decided to appeal to the courts in either case.

In the 1991 case it appears that the City of Leominster allowed shift bidding (to learn the officer’s preferences) but the chief retained the right to make shift assignments, with seniority being one factor.  This was in keeping with the contract provision which specified that “[a]ssignments to shifts of all men in the uniformed branch shall be by seniority where determined practicable and expedient by the chief of the department.”

The 1993 Leominster case, a superior officers case with the same shift bidding language, involved both shift bidding and specialist bidding.  The LRC’s decision focused more on the chief’s failure to provide the union with notice and opportunity to bargain before changing annual shift bidding than on the pure issue of assignment as a managerial prerogative.

Several LRC decisions, especially certain Hearing Officer rulings, appear to place the issue of assignments in the category of a mandatory subject of bargaining.[487]  However, some were decided before the JLMC statute was enacted which removes assignments from the scope of arbitration.  Others were decided before certain court decisions found public safety assignments an inherent managerial prerogative.  Moreover, none seem to have been appealed to the courts.

On the other hand, one LRC case held that a union proposal regarding the assignment of off-duty police officers in Worcester to paid details involved a core governmental decision and was, therefore, not subject to bargaining.[488]

While the matter is, therefore, not free from doubt, it is likely that a court would overturn (or at least modify) any LRC decision ordering bargaining over the pure issue of police officer assignments. Even if the court was to allow the Commission’s bargaining order to stand, it would likely uphold a municipal employer’s right to insist that the matter not proceed to arbitration.  Similarly, in those contracts already containing an otherwise objectionable provision, should an employer refuse to proceed to grievance arbitration, their position presumably would be upheld by the court (assuming the union filed a complaint under G.L. c. 150E, § 8, seeking to compel arbitration).  This is consistent with the conclusion reached by the Supreme Judicial Court in a 1979 Boston School Committee case.[489]  After discussing the public policy basis for declaring certain inherent managerial prerogatives beyond the scope of arbitration, the court upheld the school committee’s refusal to participate in arbitration even though the contract contained a provision (which the Committee arguably violated) which impinged on such prerogatives.

The SJC stated that whether the case was before the Labor Relations Commission, or before the Courts in an action to stay arbitration or in an action to either vacate or confirm an arbitration award, the issue is “whether the ingredient of public policy in the issue subject to dispute is so comparatively heavy that collective bargaining, and even voluntary arbitration, on the subject is, as a matter of law, to be denied effect.  Cf. School Committee of Boston v. Boston Teachers, Local 66, 372 Mass. 605, 614, 363 N.E.2d 485 (1977).”[490]

C.              Assignment

In its 1978 decision, the Supreme Judicial Court addressed the issue of the assignment and appointment of police officers in a Boston Police Department case.[491]  It ruled that the assignment of a police officer by the police commissioner is a decision committed to the nondelegable statutory authority of the commissioner and is not a proper matter for arbitration.  In this case an arbitrator found that the commissioner violated the provisions of the collective bargaining agreement by making a provisional promotion of a lieutenant to a captain and transferring that individual to a new assignment.  The court said, “. . . the commissioner exercised his inherent managerial power to assign and transfer superior officers.  The commissioner’s authority is derived from St. 1906, c. 291 as amended by St. 1962, c. 322, §1 . . . , in particular §10, which grants the commissioner ‘authority to appoint . . . and organize the police . . . [and to] appoint . . . captains and other officers as he/she may from time to time deem proper,’ and §11 giving the commissioner ‘cognizance and control of the government, administration [and] disposition . . . of the department . . .’“.

The court concluded “the provisions of c. 291 prevail over Article XII, §3 [in the collective bargaining agreement] which purports to limit the commissioner’s authority to assign superior officers by delineating the procedures for promoting officers from a district in which a temporary vacancy occurs and for which no civil service list exists, based on qualifications, ability and seniority.  Berkshire Hills, 375 Mass. 522, 377 N.E.2d 940 (1978).”[492]

PRACTICE POINTERS

The 1998 amendments to c. 150E were aimed at depriving the Boston Police Commissioner of some of his powers to override the terms of a collective bargaining agreement.  It is possible that future court decisions in this area will address whether some of the Commissioner’s rights (and possibly those of all chiefs) are inherent and are not dependent on certain statutes for their existence.

In a 1983 case arising from the Burlington Police Department, the SJC ruled that the decision to assign prosecutorial duties, subject only to the authority of the attorney general and district attorney, is an exclusive managerial prerogative and is not a proper subject for collective bargaining.[493]

Although the procedures for resolving contractual impasses have changed since the Appeals Court’s 1980 decision involving arbitration with the Taunton Police Department, the court’s rationale is still applicable.[494]  The court ruled that the last best offer arbitration panel acted beyond the scope of its authority when it included in its award articles which: (1) set forth a procedure to be followed by the city when involuntarily transferring a police officer from one shift to another; (2) included an article prohibiting rotation of shifts; and (3) contained an article providing that all assignments on each shift be filled by regular officers.

The court stated that while the city could agree to these provisions (as it had in a previous agreement), it was not required to do so.  It was free to adopt the position at arbitration that such provisions place overly inflexible or cumbersome restrictions upon the police chief’s ability to assign his officers to their duties.

 

When a city or town is simply required to bargain collectively concerning a subject, the ultimate decision whether to accept a particular proposal of a union remains with the city or town.[495]

 The court noted that there is a distinction between mandatory subjects of bargaining in c. 150E, §6 and those matters which are within the scope of arbitration as provided in Chapter 730 of the Acts of 1977, as amended.  The latter contains no reference to “standards of productivity and performance” and specifies that arbitration in police matters shall not include matters of inherent managerial policy.

 

A police chief’s authority to assign his officers to particular duties is a matter that concerns the public safety.[496]

The court went on to say:  “. . . the Legislature did not intend to empower the arbitration panel in making its award to deprive the chief of his authority to ‘exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time.’“  (The court referred to its prior decisions in the case of Labor Relations Commission v. Natick, 369 Mass. at 442, 339 N.E.2d 900 (1976) and was quoting from Chief of Police of Dracut v. Dracut, 357 Mass. at 502, 258 N.E.2d at 537 (1970).

The court included the following example to explain its reasoning:  “For example, suppose a reserve officer had special experience in a problem which a particular detail was likely to face over a limited period of time and the chief deemed that the experience made him/her uniquely qualified to serve on that detail for that period of time.  Article IX, §3, would prevent the chief from assigning the reserve officer to the detail in preference over a regular officer.  See Boston v. Boston Police Superior Officers Federation, 9 Mass. App. Ct. 898, 402 N.E.2d 1098 (1980).”

In its 1970 decision, the SJC discussed the rights of a police chief and found that the right to assign was an inherent managerial prerogative which could not be contravened by the provisions of a collective bargaining agreement.[497]  The union proposed requiring the chief to give exclusive consideration to the individual request, personal preference, seniority and rank of a police officer in determining the assignment of duties, shifts, vacations and leaves of absence.  The court found such proposals not to be mandatory subjects of bargaining and stated:

To deprive the chief of his authority to assign his officers to their respective duties and to substitute therefor the disputed provisions of the agreement would be totally subversive of the discipline and efficiency which is indispensable to a public law enforcement agency.[498]

Several court cases addressing the ability to assign officers have involved the Boston Police Department.  In its 1979 decision, the Appeals Court ruled that the Boston Police Commissioner’s assignment of an officer to a desk job and the refusal to issue a service revolver to the police officer, which resulted in the deprivation of overtime assignments and paid details, was not a proper dispute for arbitration since a matter of inherent managerial prerogative was involved.[499]  In addition, it ruled that the Commissioner has the power to order a psychiatric examination as a condition of reissuance of the officer’s service revolver since this involved a matter of public safety.

The arbitrator’s finding that the officer had recovered from his illness and that he was now performing well and should be reassigned to the streets was void in the absence of a showing that the Commissioner had abused his managerial powers, e.g., motivated by personal hostility.

An earlier decision determined that the Commissioner was authorized to assign civilians to ride in police cruisers without any obligation to provide notice or an opportunity for comment to the union.[500]

Despite the fact that an employer has the right to determine staffing levels, it may be required to bargain over the impact of a change on mandatory subjects of bargaining.  For example, the Town of Mansfield was required to reinstate and make up lost compensation to three patrol officers after it eliminated their positions from the department’s split shift without providing the union with notice and the opportunity to bargain.[501]

 

§ 2     Promotions

A municipal employer must provide the union (or other bargaining representative) with notice of any proposed change in the procedures to be used in making promotions to positions within the bargaining unit and to certain “non-unionized” positions outside of the bargaining unit.  If the union makes a timely demand to bargain, the employer must engage in good faith negotiations until reaching either agreement or impasse before implementing the proposed changes.

Typically the use of psychological exams, interview panels, assessment centers, oral or written exams or similar screening devices for the first time will trigger a bargaining obligation, as will any substantive change on these areas.

A.              Mandatory Subject

The Labor Relations Commission has ruled that the procedures and requirements for promotion within the bargaining unit are mandatory subjects of bargaining.[502]  However, to the extent that a proposal would violate a Civil Service provision (or presumably some other statute not listed in M.G.L. c. 150E, § 7(d)), it would not be mandatorily bargainable.[503]

As noted above, the statute which describes the authority and procedure of the Joint Labor-Management Committee (JLMC) makes it clear that the right to promote is an inherent managerial prerogative.

A variety of promotional procedures have been found to be mandatory subjects of bargaining.  For example, changed reliance on exams[504], psychological testing[505], new procedures[506], and an added new evaluation procedure[507].

B.              Bargaining Obligation

The obligation to bargain usually arises in the context of a management decision (or proposal) to institute new promotional requirements or procedures.  For example, if promotions to a rank within the same bargaining unit have always been made in generally the same way, an existing condition of employment may be found by the Commission.  In order to make a substantive change, the exclusive bargaining representative of the employees must be given notice of a planned or proposed change and the opportunity to request and engage in bargaining.

1)               Notice

Notice must be sufficiently clear so as to afford the union the opportunity to decide whether to request/demand bargaining.[508]  It is not sufficient to discuss the matter with certain bargaining unit representatives.[509]  Unless the union leadership has been provided actual notice, it is unlikely that the Commission will find that adequate notice has been given.[510]  Vague reference to the proposed change will not suffice.[511]

The timing of such notice must be sufficiently in advance of the proposed change that the union has the ability to decide whether to forward a demand to bargain to the municipal employer.[512]  Failure to make a timely demand to bargain may be found to constitute a waiver on the union’s part, thus enabling management to implement its proposed change without further involvement with the union.[513]

2)               Opportunity to Bargain

Once a timely demand has been made, the employer and the union must engage in good faith negotiations.[514]  So long as such negotiations are in progress, the status quo should be preserved.[515]

Upon reaching agreement or impasse, the employer may implement the change.[516]  Similarly, should the union fail to negotiate in good faith, the employer may stop negotiating and implement its proposal.[517]  Whenever the employer implements a change without the union’s agreement in such cases, it should use its pre-impasse position as the basis for such implementation.[518]

Where an externally imposed deadline is involved, the length of any such negotiations may be curtailed.[519]  For example, where a vacancy occurs in a rank for which the Civil Service eligibility list is due to expire in a short time, an employer may be able to insist on an expedited or truncated (curtailed) bargaining process.

PRACTICE POINTERS

An argument could be made that the matter of promotions is entirely a managerial prerogative and, therefore, bargaining is not required.  However, as discussed above, the Labor Relations Commission has determined that this is not the case.  The courts would be likely to impose some bargaining obligation, even if they determined that promotional criteria and procedures were an exclusive managerial prerogative.  In such cases the courts probably would still impose an obligation to bargain about the impact of the proposed change on a mandatory subject of bargaining.[520]

The Commission decisions in promotion cases do not refer either to impact or decisional bargaining.  However, the remedies awarded and the dicta of such cases support the proposition that the LRC views such cases as requiring decisional bargaining.

In the context of changing promotional criteria or procedures, the distinction may not be terribly significant.  It is clear that in either case an employer must engage in good faith negotiations with the exclusive representative (union) until reaching either agreement or impasse.  In impact cases, the employer might be able to confine the union’s role to questions concerning the impact of management’s decision to use a new testing component, for example.  In decisional bargaining, the employer would have to engage in good faith discussions and keep an open mind to union-proposed alternatives.  As a practical matter, it is likely that virtually identical topics would be discussed in either context.

C.              Remedy for Violation

When the LRC finds that an employer has made a unilateral change in a working condition, typically it will order a return to the status quo ante (i.e. as it was before).[521]  Some exceptions have been made where an employer has raised an employee’s wages.  If ordering reimbursement would be unfair, the Commission  might not be inclined to do so, especially where the employee is being penalized for the employer’s unlawful conduct.[522]  Similarly, the Commission has declined to order reimbursement in cases where this might result in friction between the union and the employee, which is not in keeping with the spirit of the law.[523]  (An exception was made where an increase was implemented during negotiations.)[524]

Where it appears that a pay raise is the only violation and no other employee was harmed, the Commission is unlikely to order a roll-back in a pay raise which was granted improperly.[525]

In a case where the Commission determined that but for the change in a past practice, a certain officer would have been the person promoted to sergeant, it ordered the town to promote him.[526]  In another case where such a clear determination was not possible, an LRC hearing officer did not order rescission but rather ordered the town to return to the status quo ante with regard to the promotion procedures for temporary sergeant which involved the consideration of all candidates on the Civil Service list.  The town was also ordered to bargain with the union upon demand regarding the procedure for promotion to temporary sergeant.  The hearing officer instructed the town not to penalize the previously unsuccessful candidate for not having served as temporary sergeant nor to reward the individual who earlier received such temporary promotion when considering either of them for any future promotion opportunities.

PRACTICE POINTERS

Unless a community is prepared to spend considerable time (and money) in litigation over whether management is free to act unilaterally, it is advisable to notify the union of any substantive change in the criteria or procedure for promotions to positions within the bargaining unit or to those outside the unit which are not represented by some other union and are not managerial or confidential.  Consultation with labor counsel is essential before proceeding in this area.

Unless labor counsel advises that the facts of a particular case warrant unilateral changes, upon request, the employer should engage in good faith negotiations until agreement or impasse is reached.

§ 3     Appointments

An employer is free to determine non-discriminatory qualifications for job vacancies.  There is no need to involve the union in this matter of managerial prerogative.  However, the starting pay or step is a matter of union concern.  If a municipal employer wants to hire someone at a rate or step different from that set by the collective bargaining agreement, it must so notify the Union.  It is not necessary to secure the union’s consent so long as the municipal employer provides notice and opportunity to bargain.  While the cases are not clear, it is likely that bargaining in good faith to the point of agreement or impasse is all that is required.

A.              Hiring Decisions and Qualification Standards

An employer does not need to bargain over hiring decision and qualification standards.  Both the National Labor Relations Board (NLRB) and the Massachusetts Labor Relations Commission (LRC) have held that a union cannot insist on bargaining over terms and conditions of employment of persons who are not yet members of the bargaining unit.[527]

In Allied Chemical Workers v. Pittsburgh Plate & Glass Co.,[528] the Supreme Court said:

The obligation to bargain extends only to the [wages, hours and] terms and conditions of employment of the employer’s employees in the unit appropriate for such purposes which the unit represents.

Similarly, the LRC, in Boston School Committee[529],held that a public employer has no duty to bargain over a requirement which is purely a condition of hire.  The LRC said:

 

The law gives the exclusive representative the right to act for and negotiate agreements covering [only] employees in the unit.  Mere applicants for hire, who have had no prior employment within the bargaining unit in question, are not employees in the unit.  The exclusive bargaining representative does not have the right . . . to bargain in behalf of such applicants.[530]

In Boston School Committee, the Labor Relations Commission made it clear that an employer can set any qualification it wishes as a condition of hire, so long as it is not discriminatory.[531]  Nonetheless, there have been a few cases where a union has challenged an employer’s ability to impose a certain qualification.  Couched in terms of pre-hire conditions, the analysis in these cases is the same as it would be for qualifications.  The LRC’s decisions regarding pre-hire conditions have concluded consistently that pre-hire qualifications are an exclusive managerial prerogative which need not be bargained with a union.

In both Boston School Committee,[532] and Town of Lee,[533] the LRC upheld the imposition of a residency requirement on all new hires as a condition of hire.  As a condition of hire, it only pertained to applicants who, as potential or prospective employees, are not members of the bargaining unit.  Similarly, in Star Tribune,[534] the National Labor Relations Board (NLRB) held that requiring drug and alcohol tests of all applicants was outside the scope of bargaining.  In City of Haverhill,[535] the LRC held that an employer could impose a qualification that all applicants undergo a psychological exam as a condition of being hired.  In each of these cases, the key inquiry was whether or not the qualification was imposed on applicants or employees; so long as the qualification only affected applicants, they were upheld.

PRACTICE POINTERS

While the distinction between applicant and employee seems clear, there is one nuance of which employers should be aware.  Any qualifications or conditions of hire must be imposed and decided before the person is hired, even if only conditionally. 

While whether a person meets the qualifications such as college degrees, CPR training, etc., can be decided immediately, some qualifications often take longer to consider.  Where such a delay occurs, and the employer chooses to conditionally-hire the applicant, permitting the person to work pending the confirmation of a qualification, the LRC will likely consider the person an “employee” and require the employer to bargain over that qualification.  Psychological testing which was not given until after an employee started work is such an example.[536]  Where the results are not known or the test is not even administered until after the person was put to work, the qualification actually becomes a condition of continued “employment”, not a condition of “hire”.

Attention should also be paid to the requirements of various federal and state anti-discrimination laws.  For example, the Americans With Disabilities Act (ADA) (and presumably G.L. c.151B) precludes medical and psychological illness testing until a conditional offer of employment is made.

B.              Entry-Level Wages

Unlike establishing qualifications for applicants, establishing wages for entry-level employees is a mandatory subject of bargaining.[537]  Wages, because they are earned after an applicant becomes an employee and a member of the bargaining unit, must be negotiated if the union so requests.[538]  An employer may not unilaterally decrease or increase the entry-level wage of a bargaining unit position without giving the bargaining representative notice and an opportunity to bargain.

Dracut School Committee[539] held that an employer cannot offer an applicant for a bargaining unit position a different pay rate than it is paying present bargaining unit members without offering to bargain (or at least providing the union with notice and an opportunity to bargain.)  In that case, the school committee and the teachers’ association were parties to a collective bargaining agreement which provided that all newly-hired teachers were to be placed at a salary step commensurate with their teaching experience.  For more than fifteen years, the school committee capped the step placement of new-hires at Step 5 regardless of their experience.  Realizing the difficulty such a cap had on attracting qualified teachers, the Committee unanimously voted to remove the Step 5 cap for new-hires.

While the union argued that the school committee could not unilaterally change its past practice without first giving the union an opportunity to bargain over that mandatory subject, the school committee argued that it had three grounds on which to justify its decision.  First, it argued that the establishment of an individual’s salary-step level was purely between it and the individual.  The school committee argued that since the individual was not yet a bargaining unit member, the union had no right to demand bargaining.  Next, the school committee argued that the establishment of step levels was a non-bargainable management right because it involved the establishment of educational policy.  Finally, the school committee argued that if it were required to bargain over the step levels given to new-hires, it could be impermissibly constrained from hiring the applicant of its choice, which it argued was a management right.

Beginning its opinion by stating the general rule that initial wages for a newly-created bargaining unit position are “wages” for bargaining purposes, the LRC then cited a recent case where it held that payments made to employees because of their work performance and length of service did constitute “wages”.[540]

Addressing each of the school committee’s arguments in order, the LRC first found that since one’s step level directly affects his “wages”, it was a mandatory subject of bargaining.  In deciding as it did, the LRC said:

It is true that mere applicants for hire who have not had prior employment within the unit are not employees in the unit.  However, it is the bargaining unit position, not the individual applicant, that is the focus of this case.  If a bargaining unit is under contract and subject to certain conditions of employment and an employee is hired into a bargaining unit position, the new employee’s wages are governed not only by the existing contract but also any established practice that affects that position.[541]

It next concluded that there is a clear distinction between “educational policy” and “terms and conditions of employment”.[542]  Salary levels, it said, were not matters of educational policy but are terms and conditions of employment.

Turning lastly to the school committee’s argument that bargaining over step-levels would infringe on its management rights by restricting it from hiring the applicant of its choice, the LRC found that the duty to bargain does not affect the school committee’s choice of candidates for bargaining unit positions.  Moreover, while conceding that the decision to remove the top “step” was done pursuant to the school committee’s need to attract experienced teachers into the school system, the LRC said it would only uphold the unilateral action if it found great economic necessity.  Removing the top step for new hires, said the Commission, was not such an economic necessity.  While sympathetic to the school committee’s needs, it refused to uphold the change because “where the action of an employer is certain to undermine the status of the union, the overall employer’s justification of economic necessity may not serve as a defense”.[543]

PRACTICE POINTERS

An employer that wishes to create a new position is free to do so.  There is no need to discuss with the union whether the position should be created.  The qualifications are totally up to the employer.  However, the sooner some discussion is started with the union, the smoother the process is likely to flow when it comes to matters which the union is entitled to discuss.

One matter deserving attention is whether the new position should be included in an existing bargaining unit, and, if so, which unit.  Usually this will not be a difficult decision.  However, if management seeks to have a new position excluded from any unit, a CAS Petition is likely to be filed by one or more unions with the LRC.  (See Chapter 15.)

Assuming the employer agrees the new position should be included in an existing bargaining unit, it will be helpful to notify the union of plans to recruit and hire for the position.  Showing the union a draft job description and the proposed salary range and qualifications will satisfy management’s obligations to afford the union with notice.  Unless the union requests bargaining in a timely manner, the employer is free to recruit and hire consistent with the pay specified in the notice.

It may not be possible to utilize mid-term bargaining where the employer wants to change the entry-level pay for a position which is already covered by the existing contract.  If the union refuses to discuss a proposed change, management may have to wait until successor contract negotiations get started.

§ 4     Contracting Out or Transferring  Bargaining Unit Work

A public employer violates Section 10(a)(5) of the Law when it transfers work performed by bargaining unit members to non-bargaining unit personnel without giving its employees’ exclusive collective bargaining representative prior notice and an opportunity to bargain to resolution or impasse.[544]  To establish that a public employer has violated the Law, an employee organization must demonstrate that:  1) the employer transferred bargaining unit work to non-unit personnel; 2) the transfer of unit work had an adverse impact on individual employees or the bargaining unit itself; and 3) the employer failed to give the employee organization prior notice and an opportunity to bargain to resolution or impasse over the decision to transfer the work.[545] 

In a 2002 case involving the Boston Police Department, the Association argued that the City transferred bargaining unit work when it assigned Wong and Murphy to identify latent prints recovered from crime scenes after they were promoted to detective.[546]

To determine whether the City transferred bargaining unit work, the LRC must first determine whether the duty of latent print identification was the exclusive bargaining unit work of patrol officers or whether patrol officers shared the work with non-unit personnel.  When work is shared by bargaining unit members and non-unit employees, the Commission has determined that the work will not be recognized as exclusively bargaining unit work.[547]  In those shared work situations, an employer is not obligated to bargain over every incidental variation of job assignments between unit and non-unit employees.[548]  Rather, the employer is only required to bargain if there is a calculated displacement of unit work.[549]  Therefore, if unit members have performed an ascertainable percentage of the work, a significant reduction in the portion of the work performed by unit members with a corresponding increase in the work performed by unit members with a corresponding increase in the work performed by non-unit employees may demonstrate a calculated displacement of unit work.[550]

Having determined that the task of identifying latent prints was the exclusive work of patrol officers, the Labor Relations Commission turned to determine whether the City unlawfully transferred that work outside the bargaining unit.  When the City promoted Wong and Murphy to the rank of detective in October 1998, they became members of one of the Society’s bargaining units.  Yet, the city continued to assign them to identify latent prints recovered from crime scenes.  Because the LRC had previously determined that as of October 1998, the City had established a seven-year practice of assigning only members of the Association’s bargaining unit to identify these latent prints, the City’s assignment of Wong and Murphy to perform the same duties constituted a transfer of unit work.  An employer must bargain about a transfer of unit work if the transfer of unit work results in an adverse impact on individual employees or the bargaining unit as a whole.[551]  Here, the City’s assignment of latent print identification duties to Wong and Murphy after they became detectives denied individual unit members the opportunity to perform the specialized duty of identifying latent prints[552], and reduced the opportunities for bargaining unit members to perform this work in the future.[553]  Accordingly, the City’s transfer of the latent print identification work had an adverse impact on individual bargaining unit members and to the bargaining unit as a whole that triggered the City’s statutory obligation to bargain to resolution or impasse with the Association prior to transferring that work.  However, the record indicates that the City did not notify the Association that it planned to transfer unit work to non-unit employees or bargain with the Association prior to transferring the exclusive bargaining unit work at issue here.

Based on the record and for the reasons stated above, the Commission ruled that the City has violated Sections 10(a)(5) and (1) of the Law by failing to bargain over its decision to transfer bargaining unit work to non-bargaining unit personnel.

An employer’s decision to transfer bargaining unit work to non-unit personnel and the impacts of that decision are mandatory subjects of bargaining that trigger the bargaining obligation defined in School Committee of Newton.[554]

Often, during the life of an existing bargaining agreement, public safety and other municipal departments realize that certain tasks, such as custodial and maintenance work, for example, could be performed in a more efficient or cost effective manner if they were contracted out to the private sector rather than performed by bargaining unit personnel.  Similarly, an employer may desire to transfer bargaining unit work to other municipal employees outside of the bargaining unit.

To determine whether a department may contract out bargaining unit work, and whether there are bargaining obligations for doing so, one must look first to the language contained in the collective bargaining agreement itself.  A public employer must bargain with the union before transferring work traditionally performed by bargaining unit employees to personnel outside the unit.[555]  In order to prove that an employer unlawfully transferred work outside the bargaining unit, the union must show:

¨      the employer transferred unit work to non-unit personnel;

¨      the transfer of work had an adverse impact on either individual employees or on the bargaining unit itself; and

¨      the employer did not provide the union with prior notice of the decision to transfer the work and opportunity to bargain.[556]

In a 2002 case involving the State Police Crime Lab, the Labor Relations Commission found that on-call duty for the purpose of receiving calls from the DEA to assist in clandestine lab investigations was exclusively bargaining unit work.[557]

In addressing the second element of the Commission’s analysis, the Commonwealth argued that the Union has suffered no adverse impact as a result of the alleged transfer of work, because the affected chemists continue to receive on-call pay and overtime associated with responding to the clandestine lab requests, and because managers do not perform the duties of the DEA-trained chemists at clandestine labs.  A bargaining unit suffers an adverse impact whenever it loses an opportunity to perform work in the future.[558]  The LRC noted that after the Commonwealth rescinded the on-call list, the bargaining unit lost the opportunity to earn on-call pay at the same level as it had prior to the change.  Therefore, the evidence established that the revocation of the list directly and adversely impacted the bargaining unit’s ability to earn on-call pay in the future.

In addressing the third factor in the transfer of bargaining unit work analysis, the Commonwealth argued that it had no obligation to bargain over the alleged transfer of work because the Union contractually waived its right to bargain, maintaining that the parties already negotiated a stand-by provision in the parties’ collective bargaining agreement.  A contractual waiver must be knowing, conscious, and unequivocal.[559]  In determining whether a union has contractually waived its right to bargain, the Commission will first examine the language of the contract.[560]  The Commission has consistently held that an employer asserting the affirmative defense of contract waiver must show that the subject was consciously considered and that the union knowingly and unmistakably waived its rights to bargain.[561]

The Commonwealth additionally contends that it had no duty to bargain with the Union because revocation of the on-call list was a managerial decision concerning the provision of services.  Decisions concerning the deployment of public services are management prerogatives, not subject to bargaining.[562]  (City’s decision to provide fire prevention inspections at a vacant school building constitutes a level of services decision)[563]; (the number of custodians assigned to each building is a managerial decision)[564]; (decision concerning whether to require police presence at certain construction details is a core governmental decision impacting the level of services to be offered.)

Relying on Town of Dennis[565], the Commonwealth asserted that due to the extremely low numbers of requests for assistance from the DEA with clandestine lab investigations, 24-hour on-call duty by chemists was no longer warranted.  In Town of Dennis, the Commission found that the Town’s decision to discontinue providing private police details at liquor service establishments was a level of service decision, and determined that the Town was only required to bargain over any impacts of that decision on bargaining unit members.[566]  However, the LRC determined that this case does not concern a level of services decision because the DSP continues to provide 24-hour, seven day a week coverage for calls from the DEA requesting assistance with clandestine lab investigations.  Moreover, the Commission has held that where the same services previously performed by unit employees are to still be used by the employer in its operations, but are to be performed by non-unit employees, the bargaining obligation will arise unless the employer can show a compelling nondiscriminatory reason why it should be excused from the obligation.[567]

Although the Commonwealth alleges that the chemists’ on-call duty for clandestine lab investigations was costly and unnecessary given the small number of requests for assistance from the DEA, the Commission did not find that these reasons to be sufficiently compelling to excuse its duty to bargain with the Union over the transfer of that on-call duty to management personnel.  Lastly, even if this case concerned a level of services decision, the Commonwealth was still required to bargain with the Union over the impacts of the decision to transfer stand-by duty.[568]  Here, there was no evidence that the Commonwealth bargained over the impacts of the decision to transfer on-call duty from bargaining unit members to management personnel.

For all of the above reasons, the Commission concluded that the Commonwealth violated Sections 10(a)(5) and, derivatively, 10(a)(1) of the Law by transferring on-call duty from bargaining unit members to non-unit personnel without first giving the Union notice and an opportunity to bargain to resolution or impasse.

A.              Contract Out/Non-Contract Out Clauses

Whether an employer is restricted from subcontracting out work depends on whether it is expressly barred from doing so in the collective bargaining agreement.[569]  In the absence of a contractual prohibition, an employer is free to contract out bargaining unit work so long as it fulfills its mid-term bargaining obligations.  A “non-contract out” or “work preservation” clause is a provision contained in a collective bargaining agreement whereby the employer agrees that it will not subcontract bargaining unit work outside the bargaining unit.[570] Alternatively, an employer and its employees may adopt a bargaining agreement provision in which the employer expressly reserves the right to contract out bargaining unit work.[571]

Under a “non-contract out” clause, an employer may not contract out services irrespective of whether it is willing to engage in decision or impact bargaining.[572]  Conversely, where there exists a contract provision which expressly grants the employer the right to contract out bargaining unit work, the employer may exercise that right without bargaining over its decision to do so.[573]  The employer must, however, afford the union an opportunity to bargain over the impact of that decision.[574]

B.              Waiver

The Commission has consistently held that a union waives its right to bargain by inaction if the union: 1) had actual knowledge or notice of the proposed action; 2) had a reasonable opportunity to negotiate about the subject; and 3) had unreasonably or inexplicably failed to bargain or request bargaining.[575]  The employer must prove these elements by a preponderance of the evidence, as the Commission does not infer a union’s waiver of its statutory right to bargain without a “clear and unmistakable” showing that a waiver occurred.[576]

Notice of a proposed employer action will be imputed to a union when a union officer with authority to bargain is first made aware of the employer’s proposed plan.[577]  The information that the employer conveys to the union must be sufficiently clear for the union to respond appropriately and must be received far enough in advance to allow effective bargain­ing to occur.[578] The Commission has found notice to be sufficient to evoke a union response in several cases in which the employer stated it was considering certain actions, without specifying a date or deadline.[579] The Commission will not apply the doctrine of waiver by inaction where the union is presented with a fait accompli, (i.e., “done deal”) where, “under all the attendant circumstances, it can be said that the employer’s conduct has progressed to a point that a demand to bargain would be fruitless.”[580]

Because “contract out” and “non-contract out” clauses constitute a waiver of a party’s respective rights, the Labor Relations Commission will only enforce them if they are clear and unambiguous.[581]  Only where the waiver is reasonably ambiguous will the Commission consider the bargaining history between the parties.[582]

With regard to “contract out” provisions, the Commission has most frequently found that the clauses at issue did not sufficiently afford the employer the right to contract out work without having to bargain with the union first.[583]  In those cases, the employers unsuccessfully sought to rely on the wording in the management right’s clause to “layoff because of lack of work or other legitimate reasons.”

 

Speaking on what does constitute a contractual waiver, the Commission has held that the following clause is sufficiently clear:

 

[Management retains the right] to manage the affairs of the Town and to maintain and improve the efficiency of its operation; to determine the methods, means, processes and persons by which operations are to be conducted including the contracting out of work.[584]  [Emphasis added.]

C.              Absence of Clause

In the absence of a clear and unequivocal provision restricting or expanding an employer’s right to contract out bargaining unit work, an employer may contract out such work so long as it does not do so in an unlawful manner.[585]

To lawfully contract out bargaining unit work, an employer must afford the union an opportunity to bargain over the decision and impact of the proposed change, and allow the union the opportunity to possibly make its bargaining unit competitive with other employers prior to implementing that decision.[586]  Lowell was guilty of falling to provide formal notice to the union before eliminating its Ashes and Waste Division.[587]  Even though it held 18 negotiating sessions with the union over the City’s Department of Public Works (DPW) reorganization plan, no actual notice of the elimination of the division was given to the union.[588]

The Commission will determine whether an employer unlawfully transferred work outside the bargaining unit by asking:

(1)              Did the employer transfer bargaining unit work to non-unit individuals?

(2)              Did the transfer of work have an adverse impact on either  the individual employees or on the bargaining unit itself? and

(3)              Did the employer give the exclusive bargaining representative prior notice and an opportunity to bargain over the decision to transfer the work?[589]

By definition, in virtually all contract-out clause cases, the first two inquiries are answered affirmatively.[590]  Turning to the third question, the Commission analyzes whether the employer gave the union notice and an opportunity to bargain.

As to what constitutes “notice”, the Commission requires that notice be actual rather than based upon rumor or mere speculation.[591]

With regards to the “opportunity to bargain”, the Commission requires that the employer be willing and available to bargain over a proposed change before implementing it.[592]  So long as good faith negotiations are held if the union so requests, management may implement its proposal upon reaching either agreement or impasse.

 

§ 5     Reorganization

A public employer may exercise its managerial prerogative to determine the nature and level of its services without first bargaining over this decision with its employees’ exclusive collective bargaining representative.[593]

There is no dispute that a governmental employer’s decision to reorganize a department is within its managerial prerogative.[594]

However, it still must negotiate over the impacts of  a core governmental decision on mandatory subjects of bargaining prior to implementation.[595] 

 

§ 6     Civilian Dispatchers

In an effort to reduce costs and/or free up uniformed public safety employees, some departments have considered utilizing civilian dispatchers in place of sworn personnel.  This can be done in an individual department or could involve  combining one or more public safety dispatch functions into a central communications center.  So long as the proper procedures are followed, this can be done at almost any time.

As a general rule, the assignment of bargaining unit work to persons outside of the bargaining unit is a mandatory subject of bargaining.[596]  An employer violates the Massachusetts Collective Bargaining Law, M.G.L. c. 150E, by unilaterally changing employees’ terms or conditions of employment without providing the union with notice and an opportunity to bargain.[597]  In order to prevail in a charge of prohibited practice (unfair labor practice) before the Labor Relations Commission (LRC), an employee representative (union) must prove that the work assigned constituted bargaining unit work and that the change had a substantially detrimental effect on the bargaining unit.[598] 

A.              Bargaining Unit Work

In order to determine what constitutes bargaining work, an examination must first be made of the parties’ collective bargaining agreement, or, if that is not conclusive, their past customs and practices.[599]

In the private sector, management may argue that the reassignment of  work out of the bargaining unit is lawful and requires no bargaining where the work is supervisory in nature.[600]  In the public sector, however, employers probably will only be successful if the duties to be transferred somehow qualify as managerial (not simply supervisory) in nature.[601]  Certainly this would not apply to dispatch duties.

The Town of Halifax was guilty of unlawfully transferring bargaining unit work when it filled a full-time firefighter position with a temporary replacement firefighter who was not a bargaining unit member.[602]

Other examples of unlawful unilateral assignment of bargaining unit work to non-bargaining unit personnel include:

·        assigning nursing duties to a special education paraprofessional[603]

·        assigning laborers’ work to prisoners and welfare recipients[604]

·        creating a new “working supervisor” with regular maintenance and custodial duties.[605]

The City of Fall River was held to have violated Section 5 and derivatively Section 1 of the Law by refusing to bargain in good faith with the union over the City’s decision to transfer bargaining unit work (firefighter/dispatchers) to non-bargaining unit personnel (civilians, E-911, dispatchers located at the police station).[606]  The LRC rejected the City’s contention that this was a level of services decision and, therefore, an exclusive managerial prerogative exempt from decisional bargaining.  The Commission declared the City’s decision to transfer fire dispatch duties historically performed by bargaining unit members to non-unit personnel constitutes a mandatory subject of bargaining.  The Commission noted that City employees would continue to perform fire dispatch duties, and when a public employer continues to have the same work performed, but at a lower cost, the decision to transfer bargaining unit work to non-unit personnel is not a level of services decision exempt from collective bargaining, but an economically motivated decision “particularly suitable to collective bargaining.”[607]

PRACTICE POINTERS

Municipalities considering transferring dispatch duties to a new E-911 center should read City of Fall River carefully.  It is likely that, with certain adjustments, the decision could amount to a level of services one and, therefore, be exempt from decisional bargaining.  However, impact bargaining would still be required.

Regardless of whether decisional or impact bargaining was involved, the employer would still need to provide the union with notice and opportunity to bargain, and, if requested, negotiate in good faith to agreement or impasse.

B.              Substantial Detriment

The next issue to be addressed is whether the elimination of certain job duties from the bargaining unit causes it substantial detriment.[608]

A review of several LRC decisions will be helpful to illustrate the types of cases likely to result in adverse Commission rulings.  No violation was found where the City of Boston hired traffic supervisors over the summer and expanded their duties to encompass issuing tickets and directing traffic at intersections.[609]  Police officers normally performed that type of work.  However, there was apparently enough work to go around.  No officer lost overtime or was laid off and otherwise this work would not have been performed.  The Commission concluded that there was no substantial detrimental impact on the police officer bargaining unit.

In a case involving the decision to staff firehouses with call firefighters at night, rather than permanent full-time members of the union, the Commission found this to be an unlawful unilateral assignment of bargaining unit work.[610]  If the night shifts had not been filled with call firefighters, the regulars would have been used (as contrasted with the Boston case above).

While a decision simply to reduce the level of services is a managerial prerogative, the decision to transfer bargaining unit work previously performed by a security supervisor to employees outside of the bargaining unit, without giving the union prior notice and an opportunity to bargain, was held unlawful by the Commission.[611]  Similarly, a Hearing officer found a violation where the employer transferred to the Executive Director the supervisory duties formerly performed by the position of maintenance foreman in a bargaining unit without first affording the union an opportunity to bargain over the decision.[612]

C.              Waiver of Bargaining Rights

A union may waive its right to bargain by inaction, i.e. by not demanding to do so after receiving notice of management’s intention to transfer bargaining unit work.  A Hearing Officer concluded that the union waived its rights to bargain over the issue of the University of Massachusetts Medical Center’s unilateral assignment of bargaining unit work to non-bargaining unit employees.  Management discussed the matter with the union two months earlier and the union failed to demand bargaining.  This case involved a decision to hire part-timers to fill the unpopular weekend shifts and to fund the same by leaving several vacant full-time positions in the bargaining unit unfilled.[613]

Another manner in which a union may waive its bargaining rights is by a written waiver, typically in the language of a collective bargaining agreement.  It is not usual to have an article devoted exclusively to the issue of the employer’s right to transfer unit work to non-unit dispatchers.  If one does exist, the issue of contractual waiver will be easier to resolve.  In the absence of such an article, the Management Rights clause should be reviewed to determine if the parties specifically agreed that the employer could reassign dispatch or other work when it deemed it appropriate.  An employer will be unable to rely on a broad and general Management Rights clause to indicate a waiver by a union of its rights to bargain over the assignment of job duties.[614]

D.              Shared Work Exception

The prohibition against unilaterally assigning work does not generally apply to “shared work” situations.[615]  When work is performed by individuals both inside and outside of a complaining bargaining unit, the Commission will not require bargaining unless the union can show a “clear pattern” of assigning the work to bargaining unit members.[616]  When work is shared by bargaining unit members and non-unit employees, the Commission has determined that the work will not be recognized as exclusively bargaining unit work.[617]  In these shared work cases, an employer is not obligated to bargain over every incidental variation in job assignments between unit and non-unit employees.[618]  Rather, the employer is only required to bargain if there is a calculated displacement of unit work.[619]  Therefore, if unit members have performed an ascertainable percentage of the work, a significant reduction in the portion of the work performed by non-unit (sic) employees may demonstrate a calculated displacement of unit work.[620]  In a 2002 case involving the  Boston Police Department, the LRC dismissed a union charge that the hiring of a civilian instructor at the police academy amounted to a transfer of union work to non-union personnel, as work had been shared.[621]  In a Saugus case, the use of both truant officers and police officers to perform similar work precluded the issuance of a prohibited practice charge.[622] 

The union must introduce specific evidence concerning the percentage of such work performed by members of the bargaining unit.  It failed to do so in a police case involving dispatching and ticketing in a shared work situation involving police officers, superior officers and even the chief, and thus the union’s charge was dismissed.[623]

The Commission likewise ruled that the Town of Watertown was not guilty of unilaterally assigning police officer work to civilian dispatchers since the department had used  Comprehensive Employment and Training Act (CETA) employees as dispatchers previously.  However, the Town was still required to bargain the impact (or even the possibility of reversing the decision) upon the request of the union in the future.[624]

The union is entitled to request bargaining in an attempt to change the status quo.[625]  A community is not required to cease the past practice of employing civilian dispatchers; however, unless it has a “zipper clause” in its collective bargaining agreement, it is required to make itself available to negotiate the topic on demand.  The fact that a union has not objected to a practice for several years does not eliminate its right, at some later date, to request bargaining on that practice.[626]

In a case also involving civilian dispatchers, the Town of Dartmouth was held to have violated the law when it laid off civilian dispatchers and assigned the dispatching work to the police officer bargaining unit.[627]  This was not a shared work situation and the complete reassignment of all bargaining unit work was found to constitute a substantial detriment.

The Commission dismissed a complaint in a shared work situation involving the abolition of the position of Automobile Investigator and the reassignment of those duties to detectives.  The decision was based primarily on the fact that the reassignment of duties resulted from a union-initiated representation petition which split-off the detectives in a “professional” bargaining unit from the police officers.[628]  Similarly, a charge was dismissed where the Massachusetts Rehabilitation Commission had a long history of purchasing services similar to those provided by its vocational rehabilitation counselors.[629]

PRACTICE POINTERS

Chiefs or municipalities contemplating replacing public safety personnel with civilian dispatchers (or other “civilianization” changes) should provide clear notification to the exclusive bargaining representative (union) of all affected bargaining units months in advance of any anticipated conversion date, except in an emergency.  An exception may be found in a shared work situation where desk or dispatcher duties were not performed exclusively by members of only one bargaining unit unless the union can demonstrate the exact percentage of work their members performed or show a clear pattern of assigning the work to bargaining unit members.

If the union demands bargaining, management must bargain in good faith until reaching either impasse or resolution (agreement).  The importance of this matter to the affected union is great.  Therefore, management must be willing to meet a reasonable number of times (at least several) and keep an open mind to issues raised and suggestions made by the union.  While it is difficult to generalize, a department which learns at a spring town meeting that its budget has been cut should be prepared to commence negotiations promptly thereafter if it hopes to implement changes at the start of the next fiscal year (July 1).  Labor counsel should be consulted concerning what role, if any, the Joint Labor-Management Committee might be expected to play, especially if regular contract negotiations are underway at the same time.

§ 7     Sick and Injury Leave Rules

Chiefs may make rules concerning eligibility for sick or injury leave, so long as they do not conflict with the terms of the collective bargaining agreement.  Notice to the union and bargaining upon demand to the point of agreement or impasse is generally required.  An employer violates the Law if it unilaterally alters a pre-existing condition of employment or implements a new condition of em­ployment affecting a mandatory subject of bargaining without providing the exclusive collective bargaining representative with prior notice and an opportunity to bargain to resolution or impasse.[630] The employer’s obligation to bargain before changing conditions of employment extends not only to actual contract terms, but also to working conditions that have been established through custom and past practice.[631]  To establish a violation, the Union must show that: (1) the employer changed an existing practice or instituted a new one; (2) the change had an impact on a mandatory subject of bargaining; and (3) the change was implemented without prior notice to the union or an opportunity to bargain to resolution or impasse.[632]

The eligibility criteria for paid injured on duty leave under G.L. c. 41 § 111F is a mandatory subject of bargaining.[633]  Further, an employer’s requirement that an employee claiming disability leave submit to an examination by a physician designated by the employer rather than an employee is a mandatory subject of bargaining.[634]

In Town of Hingham,[635] the Commission determined that the Town did not unilaterally change the criteria for receiving injury leave benefits when it required two police officers receiving G.L. c. 41 §111F benefits to undergo an examination by a Town-designated physician. The Commission con­cluded that, because the Town had used its discretion to order officers to be examined by a Town-designated physician on at least two prior occasions, the Town had not changed a pre-existing condition of employment regarding injured leave.[636] Similarly, in Town of Weymouth[637], the Com­mission found that the Union failed to prove the Town had changed a pre-existing condition of employment when the Chief of Police required by officers to submit to a physical by a Town-designated physician. The Commission concluded that the Town had established a past prac­tice by demonstrating that, although it did not require every officer on Section 111F leave to be examined by a Town-designated physician, it did require some officers to be examined by a Town-designated physician.[638]

When faced with a strike or job action (e.g., sick out), an employer may take reasonable action, including requiring a doctor’s certificate and/or employee’s affidavit of illness, as a condition of sick leave eligibility.

PRACTICE POINTERS

A strongly-worded Management Rights clause may constitute a waiver of the union’s rights to bargain over certain rules or changes in sick leave policy.  Unless a contract contains clear language, the LRC is not likely to find that a union waived its right to demand bargaining over changes in mandatory subjects of bargaining.

Where a collective bargaining agreement contains language concerning sick or injury leave, the municipal employer is not free to promulgate a rule at variance with the contract without the union’s permission.  Such changes must ordinarily await regular contract negotiations.  However, where a contract is silent, or does not address the issue to be covered by a proposed new rule or policy, the employer -- generally acting through its chief -- may institute such a rule or policy to effectuate a legitimate municipal objective, so long as the employer satisfies its labor relations obligations (i.e., notice and opportunity to bargain).

The employer is required to provide the union with notice of the proposed new rule or policy, and, upon request, enter into good faith bargaining with the union until reaching either agreement or impasse.[639]  Once the union is on notice of the contemplated change, the union is bound to make a prompt and effective demand for bargaining or it will be found to have waived its right to demand bargaining over the proposed change.[640] 

Only a finding of fait accompli (done deal) relieves the union of the obligation to demand bargaining over the change.[641]  An exception may be made by the LRC to the fait accompli rule where circumstances beyond the employer’s control required immediate action, thus permitting bargaining after the fact.[642]  In determining whether a fait accompli exists, the Commission considers “whether, under all the attendant circumstances, it can be said that the employer’s conduct has progressed to the point that a demand to bargain would be fruitless.”[643]  An offer by the employer to bargain after a prohibited unilateral change has been made does not cure the violation.[644]  In such a case, the employer is required to rescind the offending change and then offer to engage in good faith negotiations upon demand from the union.[645]  A municipal employer is not relieved of its obligation by the mere existence of a by-law or ordinance governing the subject.  If there is a conflict between an ordinance or by-law and a collective bargaining agreement, the ordinance or by-law must give way to the collective bargaining agreement.[646]  The Commission has made it clear that it intends to apply Section 7 of the Law giving a contract precedence over ordinances/by-laws which are in existence at the time a contract is executed as well as those that post-date an agreement.[647] 

A.              Mandatory Subject of Bargaining

The basis for such obligations concerning sick leave rules is clear.  The Commission has ruled that sick leave pay is a term and condition of employment.  Both sick leave policies[648] and criteria for eligibility for injured on duty leave[649] have been held by the Labor Relations Commission to be mandatory subjects of bargaining.  The Commission has ruled that a public employer violates Section 10(a)(5) of Chapter 150E, when it unilaterally alters a condition of employment involving a mandatory subject of bargaining without first providing notice to, and, if requested, bargaining with the union in good faith to resolution (agreement) or impasse.[650]

An employer’s obligation to bargain before changing conditions of employment extends to working conditions established through past practice, as well as those specified in a collective bargaining agreement.[651]  In a case involving the Hull Police Department, the LRC ruled that the chief was not able unilaterally to discontinue the practice of allowing officers who exhausted their sick leave to borrow from future sick leave credits expected to be received in a subsequent fiscal year.[652]  A past practice was found where, on at least eleven occasions over an eight year period, every officer who exhausted his accrued sick leave was allowed to remain off duty but on the payroll, with a bookkeeping entry amounting to borrowing from anticipated future sick leave accumulation.

PRACTICE POINTERS

If the chief or employer wants to stop allowing employees from borrowing against future sick leave, this is their right.  All that is needed is to provide the union with notice that management plans on stopping the practice.  If the union requests bargaining, it should be limited to the impact of the decision to stop the gratuitous practice.

If a chief (or his/her predecessor) has been lax in enforcing a rule or contract provision regarding sick leave, all that is required is notice to the union that the rule will be enforced in the future.

B.              Notice to Union

The burden is on the employer at a Labor Relations Commission hearing to prove that adequate notice of the proposed new rule or change in policy was provided to the union.  The Commission utilizes the following principle regarding the adequacy of notice:

 

The information conveyed to the union must be sufficiently clear for the union to make a judgment as to an appropriate response.  The union is not required to respond to rumors of proposed changes, speculation, or proposals so indefinite that no response could be formulated.[653]

Notice should be provided directly -- and preferably in writing -- to the appropriate union officials, e.g., president, steward, and/or business agent.  Simply showing that certain union members (or even officers) knew or should have known of a proposed new rule or change in policy may not be sufficient to satisfy management’s burden on the issue of notice.[654]  The LRC held that a union is not put on notice of a change where individual union members, who are not acting in their capacity as union officers or agents, learned that certain matters were being examined by the employer.[655]  For example, where the Town of Wayland contemplated a new evaluation procedure for police officers, the union was not put on notice by the participation of two bargaining unit members in the discussions which formulated the new policy.[656]  An employer should make it clear that a change will extend beyond the year in which it is implemented.  When a school committee failed to indicate that the elimination of a convention day would be permanent, it did not meet its duty of providing sufficient notice that the union’s failure to demand bargaining met the test of being a “knowing, conscious or unequivocal waiver” of its right to bargain over the change.[657]  In addition, in another school committee case, the Commission held that information communicated to the union about possible layoffs was inconsistent and not legally sufficient where one document received by the union was a “tentative proposal for discussion purposes” and others indicated no reduction in personnel.[658]

C.              Opportunity to Bargain/Waiver

There is no statutory requirement specifying how much advance notice must be provided to a union for intended changes in rules or policies.  The LRC attempts to use a common sense approach on a case-by-case basis.  In situations where there is not an externally imposed deadline (e.g., grant deadline, loss of funding, cancellation of insurance carrier, statutory change in health insurance percentage contributions, etc.), the Commission tries to decide whether the notice provided sufficient time for the union to make a determination of whether it should demand bargaining.  If a union knows of a proposed change, has a reasonable opportunity to bargain, and unreasonably fails to request bargaining, it will be found to have waived its right to demand bargaining.[659]

In a case involving the refusal of the City of Malden for seven weeks to start negotiating with the firefighters union over the means of accomplishing a reduction in force after the passage of Proposition 2 1/2, coupled with the City’s insistence that all negotiations be completed in no more than two and one-half weeks, the Commission ruled that there was no impasse at the time of layoffs.  It further found that there were no circumstances beyond the control of the City which might justify such action prior to impasse.  It therefore ordered the City to reinstate the unlawfully laid off firefighters with back pay and to bargain with the union over the layoff impact issues.[660]

In a 1979 case involving the Avon Police Department, the Commission held that a failure to seek bargaining for three months after the union became aware of the department’s new rule requiring examination by a town-designated physician, was too long.  The union “was not entitled to sit back, once it was aware of the Town’s intention to institute the examinations by a town-selected physician, and wait until the policy was implemented before it demanded bargaining.”[661]

Even when an employer has not met its bargaining obligations, the LRC may modify its remedial order if it also finds the union delayed in demanding bargaining.  For example, the Commission found that the Middlesex County Commissioners failed to bargain in good faith by cutting off negotiations over the impact of a reduction in force; however, it ruled that the union’s delay in requesting bargaining foreclosed a status quo ante remedy.[662] 

Some guidance concerning what is a reasonable period may be gleaned from the rulings of the Commission in cases where unions have successfully challenged unilateral changes by municipal employers.  After finding the employer violated the Law, the Commission generally orders the employer to bargain with the union provided a demand for bargaining is received within five days of the union’s receipt of an offer to bargain.[663]

PRACTICE POINTERS

In an effort to avoid litigating the issue of whether the union waived its right to bargain by unreasonably delaying its demand to do so, management could incorporate a reasonable response deadline in its notice.  By inserting the following phrase in any such notice, so long as the amount of time is not unreasonably short (at least five (5) days except in urgent/emergency situations), it is likely that the Commission would find a waiver by the union if it failed to comply with a reasonable deadline:

“Unless the union provides the undersigned with a written request to negotiate over the proposed change(s) by ____________, it will be presumed that the union has waived any right it may have to bargain over such change(s) or the impact of such change(s) on mandatory subjects of bargaining.”

D.              Contractual Waiver

In addition to waiting too long (as discussed above) to request bargaining, in certain circumstances the Commission may find that the union waived its right to bargain by the language of a collective bargaining agreement.

A comprehensive Management Rights clause, which specifically addresses the action an employer intends to take, may constitute a waiver by the union of its rights to notice and bargaining.  However, unless the language is specific and on point, the Commission is not likely to uphold it as a waiver.  As the LRC Hearing Officer in the Town of Hull case stated:

It is well established that a contractual waiver of the right to bargain over a mandatory subject will not be readily inferred.  The employer must establish that the parties consciously considered the situation that has arisen and that the union knowingly waived its bargaining rights.[664]

(and in the same decision)


In reviewing the language of a contract, the Commission assesses whether the language expressly or by necessary implication gives the employer the right to implement changes in a subject without bargaining.[665]

E.              Impasse or Agreement

Assuming the union makes a timely request to bargain, and negotiations produce an agreement, management is obviously free to implement the terms of such agreement.  Likewise, if negotiations proceed in good faith to impasse, management may implement its pre-impasse position. 

NOTE:  If the union stops negotiating in good faith, management may also implement.

PRACTICE POINTERS

Where negotiations are conducted in good faith (at least by management) and impasse is reached, the municipal employer is free to implement its impasse position. Although no case has yet been decided by the LRC on the subject, it is arguable that the failure by the union to bargain in good faith may relieve management of its bargaining obligation, thus enabling it to implement its proposed change (at least as it existed immediately prior to the union’s statutory violation).  In fact, LRC decisions compelling municipal employers to enter into impact bargaining routinely include a clause ordering the employer to bargain in good faith until agreement or impasse is reached or until the union stops bargaining in good faith.  One word of caution is in order, however: it may take the LRC many months (if not longer) to decide whether the union bargained in bad faith.  An employer should be very certain before making such a determination on its own.

F.               Management Options

Several actions by management aimed at curbing suspected sick leave abuse or requiring employees to return to duty in a light duty capacity have been dealt with by the Labor Relations Commission and/or the courts.

1)               Strike or Job Actions

An employer has the ability to take reasonable action in response to an actual or threatened strike or job action (such as a “sick out”) involving abuse of sick leave.

When it learned that there might be a sick out in November of 1979, the Leominster School Committee sent letters to the Association’s president and to its chief negotiator stating that if teachers took part in a suspected November 22 sick out, the School Committee would require verified physician’s statements from absent employees.[666]  With the exception of a note from the Association president to the Superintendent denying any knowledge of such plans, there was no other union response.  While no job action took place in November, several times the normal number of teachers were absent on two days the next February.  Teachers were required to produce doctors’ certificates or face the loss of a day’s pay in connection with the February sick out.

Although the procedural trail of this case is unusual, ultimately the Appeals Court reinstated the Commission’s original decision which held that the Committee’s action was a reasonable response.  Moreover, the failure of the union to demand bargaining after the notice in November was a waiver of its right to bargain over the School Committee’s proposed change in a mandatory subject of bargaining.

In the 1986 case of Somerville School Committee[667], an LRC Hearing Officer discussed the propriety of the School Committee’s actions in response to a sick out.  When negotiations became sufficiently strained that the parties entered mediation, Association members picketed School Committee meetings.  In addition, the Association urged its membership to participate in a “work to rule” job action.  This involved foregoing all voluntary tasks both during and after school hours.  A two day sick out involving several times the normal number of sick leave absences included numerous Association officials (except the president).  The Association president denied any knowledge or official sanction and, in fact, organized an Association phone tree which restored the normal level of sick leave the next day.  Although the contract contained no self-help provision, the School Committee vote to require absent teachers to forfeit a day’s pay unless they submitted an affidavit of illness was held to be a “reasonable response to an illegal work stoppage.”[668]  However, since there was insufficient evidence to demonstrate that the Association had any responsibility for the sick out, that part of the charge against the Association was dismissed.

An employee organization acts only through its elected officials, not its individual members.[669]  It is not enough that the membership engaged in a strike.  In order to establish the union’s liability, the employer must demonstrate that the illegal conduct was engaged in, induced, encouraged or condoned by the union leadership.[670]

2)               Reporting Forms

Even without affording the union the opportunity to bargain, a new reporting form may be instituted where the new form imposes no new substantive requirements affecting such items as the amount of leave available, the criteria for granting injury/sick leave, or any other condition of employment.  This was the result reached by the Labor Relations Commission in a 1983 case involving the Town of Wilmington Fire Department.[671]  In that case, the Acting Fire Chief, in an attempt to curb what he felt was weekend sick leave abuse by firefighters, devised a form to be completed by all firefighters absent for one day or more upon their return to duty.  The sickness/injury/off-duty report form contained a series of questions pertaining to the reason for the absence, the details of any medical treatment received, and the ability of the absent firefighter to perform regular duties.  In reversing the Hearing Officer’s decision, the full Commission found that the new form was merely a procedural modification in the method used by the employer to monitor sick leave and, therefore, there was no unilateral change in a mandatory subject of bargaining.  The Commission has consistently ruled that an employer does not violate the Law when, without bargaining, it unilaterally alters procedural mechanisms for enforcing existing work rules, provided that the employer’s action does not change underlying conditions of employment.[672]  Similar reasoning was followed, for example, when the Commission approved the use of time clocks without a requirement to bargain with the union.[673]

3)               Restricting Conduct

The Boston Police Department established a rule requiring all officers on sick or injury leave to remain at their residences except for several specified reasons, and mandated that such officers notify and receive permission from the department prior to leaving their homes.  The Supreme Judicial Court upheld the constitutionality of the rule and found that the Police Commissioner was empowered to make such a rule in a 1984 case entitled Atterberry v. Police Comm’r of Boston.[674] 

The complete text of the rule follows:

 

SPECIAL ORDER NO. 83-1

SUBJECT:    SICK OR INJURED OFFICERS REMAINING AT THEIR RESIDENCE

Rule 110, Section 22 provides, in part: The Police Commissioner may not allow pay from accumulated sick credit or for injury in the line of duty status if the officer shall fail to remain at his/her residence, unless permitted by the Police Commissioner to go elsewhere.

In order to aid in the administration of this rule, the following procedures are to be imple­mented effective immediately.

All officers disabled from work for sickness or injury and being carried on the time books of the Department pursuant to Rule 110, ss. 4, 5, or 16, shall remain at the residence officially listed in the Department’s personnel records unless they receive permission from the Operations Division or their Commanding Officer to be elsewhere.

Officers shall contact the Operations Division to request permission to leave the residence for the following specific purposes.  In each in­stance, with the exception noted, the Operations Division will grant permission to be absent from the residence for reasonable times for these specific purposes:

1.         To keep scheduled appointments with physicians, dentists, physical therapists, and/or hospitals, or clinics, whether or not related to the officer’s present sickness or injury.

2.         To purchase food, household necessities and medication for the officer’s present injury or illness or for the health care of minor chil­dren.

NOTE: One four-hour period to complete such shopping, as described in Number 2 above, shall be granted each week.  Additional requests shall be granted only for emergency purposes.

3.         To attend church services.

4.         To register to vote or to vote in elections for municipal, county, State or Federal offices, or regularly scheduled union elections.

5.         To engage in physical exercise such as walking or swimming, recommended in writing by an attending physician.

 6.        To answer court subpoenas in cases aris­ing out of the officer’s employment.

7.         To report to Headquarters or other police facilities when ordered to do so by a superior or commanding officer.

The officer should make such requests by contacting the Operations Division at 247-4590.  In making the request, the officer will state his purpose or purposes in leaving his residence, his destination or destinations, his planned time of departure, his method of transportation, his companions, if any, and his estimated time of return to his residence.  Upon returning to his/her residence, the officer will contact the Opera­tions Division at 247-4590 to notify the Depart­ment that he has returned.

Permission to leave the residence for any purpose other than those listed above will not be granted unless approved by the officer’s Commanding Officer.  Sick and injured person­nel should contact the commander at work dur­ing the commander’s regularly scheduled work­ing hours in order to obtain a determination prior to finalization of their plans to leave the residence.

Officers who obtain such permission from their Commanding Officers will notify the Oper­ations Division at 247-4590 prior to leaving the residence of the fact that they are leaving, that permission was obtained of the purpose or pur­poses for leaving the residence, the destination or destinations, the departure time, method of transportation, companions, if any, and estimat­ed time of return to residence.

Upon returning to the residence, the officer will contact the Operations Division at 247-4590 to notify the Department that he/she has returned.

Operations Division personnel and Com­manding Officers shall maintain records of all telephone requests and whether granted; as well as report of return to residence, on the Department form provided for such purpose.

Sick or injured officers must obtain permis­sion for every absence from their residence until they return to work, including for time peri­ods during which, if the officer were working, would be non-work hours or days off.

Officers not in compliance with this order or away from their residence without permission, will receive no pay for the day of their absence, or, if normally a day off, no pay for the next regularly scheduled work day.  In addition, they may be subject to discipline for violation of Department Rules and Regulations.

The Bureau of Investigative Services, Staff Inspection Unit, and the Personnel Division shall be responsible for ensuring compliance with this order.

G.              Modifying I.O.D. Benefits

There is a major distinction between modifying reporting requirements for injured on duty (IOD) leave, and attempting to change eligibility criteria or benefit levels under Chapter 41, § 111F.  While the former (changes in eligibility criteria) may be effected through notice and impact bargaining where requested, the latter (changes in benefit levels) requires agreement--generally following regular contract negotiations.

Certain statutes may be superseded by the provisions of a collective bargaining agreement.  Among those statutes listed in Chapter 150E § 7(d) is the injured on duty statute for police and fire employees -- Chapter 41 § 111F.  By securing the agreement of the union -- or probably even through an arbitration award following Joint Labor-Management Committee (JLMC) involvement -- the terms of § 111F may be modified or, presumably, even eliminated.

Even though G.L. c.32, §5 requires public employers to establish an Early Intervention Plan (EIP), they may not deal directly with employees and by-pass the union about mandatory subjects such as hours, duties, etc.[675]

The Labor Relations Commission and the courts are reluctant to find a waiver of bargaining rights or an outright modification of § 111F in the absence of clear language in a collective bargaining agreement.  The Massachusetts Appeals Court first addressed the issue of a possible agreement to supersede § 111F by the language in a collective bargaining agreement in the case of Rein v. Marshfield.[676]  While recognizing the ability of the parties -- as specified in Chapter 150E § 7(d) -- to do so, the Supreme Judicial Court confirmed the position the Appeals Court took in Rein in the SJC’s 1989 decision entitled Willis v. Board of Selectmen of Easton.[677]  In that case the court stated, “We are reluctant to construe a collective bargaining agreement as one which overrides statutory provisions absent clear language expressing that intent.”

The Labor Relations Commission similarly has ruled that it will not find a waiver without evidence of a “knowing, conscious and unequivocal” surrender by the union of its rights to bargain.[678]  When it comes to overriding § 111F, even the language of a strong but general Management Rights clause probably would be insufficient.  The Commission has repeatedly found that vague, generally worded Management Rights clauses are ineffective to justify unilateral actions by management on a variety of much less important issues.  It is, therefore, logical to conclude that unless the contract contains language specifying an agreement to supersede § 111F, neither the Commission nor the courts will find that the injured on duty statute has been overridden.

PRACTICE POINTERS

The following is a draft Injured on Duty proposal which would radically alter many of the elements of § 111F.  Some parts might be proposed as impact bargaining items, while others would require regular negotiations.  This is provided only as an example of topics which a municipal employer might consider including in its contract negotiations proposal.  A chief should not attempt to use it without consulting labor counsel.

SAMPLE INJURED ON DUTY ARTICLE

Only an employee who is injured while responding to a call for service or providing such service when appropriate or required to do so by department rules, regulations, policies or procedures may, subject to the following, be eligible for a leave without loss of pay for the duration of any resulting disability which precludes such individual from performing his normal duties or any assignment which the Chief may make which is not inconsistent with the employee’s training or ability.  Employees who wish to apply for leave without loss of pay may do so by completing an application form supplied by the Department prior to the end of a shift or tour of duty on which the injury or illness occurs.

Pending a determination of eligibility for injured on duty leave, an employee may be placed on sick leave.  Individuals requesting injury leave will cooperate in the Department’s investigation, including, but not limited to, providing information concerning the circumstances of the occurrence causing the alleged disability and supplying or authorizing access to medical reports.  Employees will submit to an examination by a municipally-designated physician, when instructed to do so.

The following will not constitute on duty time, and injuries occurring at such times will therefore not be considered to have occurred in the line of duty:

·                    traveling to or from work (whether at the station or other place of assignment);

·                    traveling to or from paid details, court, any place of training or a mutual aid assignment; and

·                    during meal or coffee (rest) or other work breaks.

No injured on duty leave will be allowed where the disability results from the use of drugs or alcohol, where the employee was negligent, where the employee was violating any departmental rule, regulation, policy or procedure, or was violating any law or by-law/ordinance.

In computing the pay to which a disabled employee is entitled, base pay only will be used.  Compensation will not include education incentive, specialist pay, shift differential, holiday pay, hazardous duty pay, longevity or other extra pay to which an individual might otherwise have been entitled in addition to base pay.

No uniform allowance will be paid to or on behalf of persons absent on injury leave for more than six (6) months during any fiscal year.

Those injured through fault of their own will not be eligible for disability leave.  For the purpose of this Article, fault shall mean any negligent or intentional conduct of the employee which is the primary factor contributing to the injury.

Disabled persons will, upon request, turn in their weapons and any departmentally issued property or equipment.

For administrative purposes, injured employees will be deemed to be assigned to the day shift.  Therefore, should the individual be required to confer with department or municipal officials, attend court in connection with pending cases, or submit to an examination, or perform similar activities, no requirement for extra compensation will be involved.

Persons who are disabled as a result of an accident rather than a work-related assault or similar trauma, will receive leave at sixty (60%) percent of their regular base pay, and for a period not to exceed thirty (30) days.  Thereafter, regular sick leave may be taken if a sufficient amount is available.

Persons who fail to complete the department’s annual Wellness Program recommendations in a timely manner will not be eligible for injury leave unless the disability results from a work-related trauma occurring through no fault of the employee while responding to a call for or situation requiring services and which cannot be termed “accidental”.

It is recognized that the provisions of this Article are at variance with the terms of M.G.L. c. 41, § 111F.  Pursuant to M.G.L. c. 150E, § 7(d), the provisions of this Article will, therefore, supersede and entirely replace those of c. 41, § 111F which, by agreement of the parties, will no longer apply to members of the bargaining unit covered by this collective bargaining agreement.

H.             Involuntary Retirement

After years of uncertainty, in 1997 the Massachusetts Appeals Court clarified the authority of a chief in filing an application for involuntary retirement.[679]  The City of Lynn appealed an LRC decision that found the City guilty of a prohibited practice when the Fire Chief applied for and caused the superannuation retirement of a firefighter in 1989.  The Commission held that it was a unilateral change in a working condition.  This is because previously disabled firefighters had been allowed to remain on IOD leave (M.G.L. c. 41, §111F) while appealing a denial of their application for a disability pension.

The Appeals Court noted that the statute that gives chiefs the discretion to file for involuntary retirement (M.G.L. c. 32, §16(1)(a) is not among those listed in c. 150E, §7(d) as subject to being superseded by the terms of a collective bargaining agreement.  The Court ruled that the chief’s authority to file an involuntary retirement application is a matter of exclusive managerial prerogative.  It noted that a different result might follow if the chief’s action were taken in retaliation for protected union activities.[680]

 

§ 8     Light Duty

A department may require injured police or fire employees to perform modified or light duty rather than allowing such individuals to remain out of work with pay on either sick or injured on duty status.

Prior to 1985, it was commonly assumed that public safety employees injured in the line of duty were entitled to leave without loss of pay until their condition improved to the point where they were able to perform each and every aspect of their job to which they might be assigned.[681]  The Supreme Judicial Court, in a 1985 decision involving the Newton Police Department, ruled that an injured police officer could be required to return to work and perform light duty, especially where such duties were within the job description of a police officer and/or were duties to which police officers might otherwise be assigned.  In the Newton case, the court noted that the city imposed the requirement after reaching impasse following good faith negotiations with the union.  In an unpublished 2002 SJC decision involving the Westfield Police Department, the court pointed out that nothing in the Newton case prohibits a city or town from offering police officers greater benefits than those set forth in §111F.[682]

The Labor Relations Commission has ruled that a municipal employer is required to provide notice and an opportunity to bargain where it intends to modify the criteria for determining eligibility for § 111F injury leave benefits.[683]  The Commission recognizes that an employer does not violate § 111F by requiring an injured employee to resume work in a limited capacity; however, it has ruled that the municipal employer’s imposition of a newly created 111F eligibility criteria without first exhausting its bargaining obligations violated § 10(a)(5) of Chapter 150E.

PRACTICE POINTERS

Even though some Hearing Officers have not focused on it, the Commission has noted the distinction between the employer’s managerial prerogative to create a light duty position and its obligation to bargain over the impact of that newly created position on mandatory subjects of bargaining.[684]  There is also a distinction between criteria for § 111F eligibility and criteria for light duty assignment.  Since 111F provides for leave without loss of pay, employees required to perform light duty are on the payroll and, by definition, are not receiving 111F benefits (i.e., paid leave).  Therefore, the reference by certain Hearing Officers to a bargaining obligation for 111F eligibility criteria is technically not applicable to a light duty situation, unless they mean that partially disabled employees are ineligible for 111F leave if they are capable of performing in a light duty capacity.  Presumably the full Commission will clarify this issue at the appropriate time.  However, the results reached by Hearing Officers will probably not change, only the reasoning.  If an employer has traditionally allowed public safety employees to remain on 111F leave until able to perform all the duties to which they might possibly be assigned, notice and an opportunity to bargain will be required before such 111F eligibility criteria are changed  or, more properly, before assigning such partially disabled employees to a light duty position.

A more logical approach would be for the Commission to recognize the employer’s right to create a light duty position and to require a municipal employer to provide notice and an opportunity to bargain, if the union so requests, before assigning bargaining unit members to such duty for the first time.  It is arguable that the creation of a light duty assignment is no different from creating such positions as prosecutor, planning officer, school liaison officer, training officer, records officer or desk officer.  In fact, some departments utilize exactly those assignments when requiring a partially disabled (sick or injured on duty) employee to return to work.  With this approach, a Management Rights clause which allows for the creation of such positions as the employer deems necessary or appropriate, should encompass a light duty position which involves duties reasonably expected of police officers or firefighters.        

Changing the shift of those on leave under § 111F requires notice and, if requested, bargaining with the affected union.  This was the decision reached by an LRC Hearing Officer in a 1991 case involving the Natick Police Department.[685]  In that case the Acting Police Chief issued a memorandum which altered the department’s past practice of allowing officers who were on injured on duty leave to remain administratively on the shift to which they had been assigned at the time of their injury.  Officers on 111F leave were reassigned administratively to the 8:00 a.m. to 4:00 p.m. shift.  Among other things, this change was intended to eliminate eligibility for night shift differential. 

PRACTICE POINTERS

So long as the employer meets its bargaining obligations (e.g., notice and opportunity to bargain) and does not violate a specific provision of the collective bargaining agreement, it could adopt a policy of administratively reassigning all sick or injured (on and off duty) employees to the day shift.

The reassignment of injured or even sick employees to the day shift may also result in other benefits.  For example, should the employee be required to be examined by a municipally-designated physician, to report to the station for a conference with the chief, or to attend a court hearing on behalf of the department, the employer’s exposure to a claim for call-back pay might be reduced or eliminated.

The Hearing Officer in Natick did not question the Acting Chief’s authority or ability to make the administrative reassignment, only the failure to meet the municipality’s impact bargaining obligation.  It is possible that regular (i.e., contract) bargaining, rather than impact or mid-term bargaining, may be required where the collective bargaining agreement contains some restriction on management’s ability to move employees from one shift to another.

 

§ 9     Doctor’s Certificates

Under certain circumstances, a municipal employer may require a doctor’s certificate as a condition of an injured employee being placed on sick or injury leave, continuing on such leave, and/or returning to work in either a light or full-duty capacity.  With the exception of strike or job action situations discussed above, the lack of cases in this area makes any listing of guidelines speculative.  An early Hearing Officer decision involving the Boston Police Department upheld the ability of the Police Commissioner to issue a Special Order directing the commanding officers to require certification for all employee absences of five days or more, or where the absences exceeded ten days in a year.[686]  This action was taken after the Commissioner became concerned about the amount of sick leave being taken by police officers.  The Hearing Officer held that the Department rule, giving the Commissioner discretion to require a physician’s certificate, had been incorporated into the collective bargaining agreement.  Therefore, the Commissioner was not changing a condition of employment, but exercising the discretion which was part of the conditions of employment.  The fact that he had rarely exercised that discretion in the past did not indicate that the power had been abandoned.

PRACTICE POINTERS

In the absence of any controlling provision in the collective bargaining agreement, an employer is free to provide the union with notice of its intention to require a doctor’s certificate as a condition for sick leave eligibility.  Assuming the union demands bargaining, the employer must engage in good faith negotiations until either agreement or impasse is reached (whereupon the change may be implemented).

A.              Injured on Duty Situations

Section 111F specifies that eligibility for leave without loss of pay for line of duty injuries terminates when a municipally-designated physician determines that the employee is able to return to work.[687]  No obligation exists to notify the union of the employer’s requirement that an injured worker submit to a physical by a municipally-designated physician to determine that employee’s fitness for duty.  In fact, failure to comply with an order to submit to such an examination would constitute insubordination and could provide grounds for termination (if not some lesser form of discipline).  It has not yet been decided, but it is possible that such refusal might provide the basis for removing an injured employee from 111F leave status, presumably after notice and an opportunity for a due process hearing.[688]

PRACTICE POINTERS

The employee’s physician has no role under the provisions of § 111F in determining eligibility for leave in the first place, the duration of any IOD leave, or the return of an injured employee to full or light duty status.  However, to the extent that the present and prior chiefs have traditionally relied on the opinion of an employee’s physician, and where no municipally-designated physician  was ever used, the Labor Relations Commission has  decided that a unilateral change in this past practice required notice and an opportunity to bargain.[689]  While the chief argued that such reliance was not automatic, and that the chief’s policy was to assess each case on an individual basis, this was not sufficient to persuade the LRC that no unilateral change was involved.  Such an argument failed in the previously discussed Hull case, presumably because the Hearing Officer doubted the explanation and also because there were no instances where the exercise of such discretion resulted in any action by the Chief in denying a request for future sick leave borrowing.

Disputes often arise over a sick or injured employee’s fitness for return to duty.  In the absence of a controlling provision in a collective bargaining agreement, or a past practice to the contrary, a chief should be able to require an individual to produce a note from his doctor or a municipally-designated physician clearing the employee to return to duty.  To the extent that the chief has not done so previously, notice and an opportunity to bargain may be required, (i.e., if the union challenges the chief’s action and/or demands bargaining).  In order to avoid confusion when this issue arises while an employee is out on leave, a chief could post a notice and inform the union that he/she may use such procedure if and when the occasion arises.  As a practical matter, however, if the chief has not posted such notice and is faced with an issue of how to handle a particular case, rather than engaging in the awkward practice of informing the union that a chief is about to alter a past practice by requiring a doctor’s certificate as a precondition to allowing an employer to return from sick or injury leave, the chief could simply issue the order and, if the union protests, rescind the order and then engage in bargaining to agreement or impasse.  There would be some delay, obviously.  One other drawback might be the employer’s inability to point to a union waiver of its bargaining rights should the same situation arise in the future.  However, after several such instances, the employer could argue that a past practice no longer exists (or, more properly, that a new past practice has been agreed to by the parties).

A dispute between the opinion of an employee’s doctor and that of the municipally-designated physician is not uncommon.  A chief would be hard-pressed to justify ignoring the report of the municipally-designated physician.  Occasionally the terms of a collective bargaining agreement address how such disagreements are handled -- at least where the city or town’s doctor pronounces an employee fit to return to duty but the employee’s doctor disagrees.  If the agreement so provides, a chief should be able to rely on a third impartial doctor’s opinion in such a case.

In the absence of such a third party resolution procedure (which, especially in the case of § 111F, is not recommended), the Chief’s approach should focus on prevention rather than cure wherever possible.  Rather than waiting until such a situation arises, a municipal employer should promulgate guidelines for handling such cases.  After providing notice and an opportunity to bargain to the affected union(s), and, if requested, bargaining to agreement or impasse, there will be a mechanism in place to handle such conflicting eventualities.

One word of caution is in order.  Chiefs should be careful not to let an employee’s union activities or history of filing complaints, grievances or even lawsuits, influence their decision on how to handle fitness for duty determinations.  The Department of Corrections was found to have violated § 10(a)(3) of the Law when it refused to allow a Corrections Officer to return to work after sick leave, even after he/she produced a doctor’s note clearing him/her for full duty as the employer had demanded.[690]  In that case, the LRC Hearing Officer found that the fact that the employee had filed scores of bizarre grievances was the primary motivation in the Commonwealth’s decision to keep the employee on sick leave.

§ 10         Defibrillators

 An employer violates the Law when it unilaterally alters a pre-existing condition of employment or implements a new condition of employment affecting a mandatory subject of bargaining without providing the exclusive collective bargaining representative with prior notice and an opportunity to bargain to resolution or impasse.[691]  To establish a violation, the Union must show that: (1) the employer changed an existing practice or instituted a new one; (2) the change had an impact on a mandatory subject of bargaining; and (3) the change was implemented without prior notice to the union or an opportunity to bargain to resolution or impasse.[692]  

The Commission has held that any increase or change in an employees’ job duties, safety, or workload is a mandatory subject of bargaining, including the impacts of the implementation of a defibrillation program.[693]  The City argued that the Arlington case is distinguishable from the facts in its case because the defibrillators in Arlington were used exclusively by the EMT’s and, thus, the impact on job duties, safety, and workload would have been far more appreciable than, here, where the fire fighters defer to AMR once the ambulance arrives on the scene. However, although the defibrillators are not used exclusively by the City’s fire fighters, the facts demonstrate that the City’s decision to implement a defibrillation program required the training of bargaining unit members in the use of the defibrillator, changed the fire fighters’ job duties, and increased their workload. Therefore, consistent with its decision in Arlington, the LRC  concluded that the impacts of the City’s defibrillator program is a mandatory subject of bargaining.

 



Chapter 3 -  Good Faith Bargaining

 

§ 1     The Duty to Bargain

In Massachusetts, and numerous other states, there was some resistance to encouraging (or even allowing) public sector employees to organize and bargain collectively despite the national policy favoring bargaining. 

The debate over the issue of public sector bargaining was resolved in this state by the passage in 1965 of various amendments to Chapter 149, § 178.  That law was replaced in 1973 by the current law (effective July 1, 1974) governing public employee collective bargaining,  Chapter 150E of the Massachusetts General Laws (hereinafter referred to as “the Law” or “the Collective Bargaining Law”), which established and regulates labor relations and collective bargaining between public employers and employees.  Additionally, the Law created the Massachusetts Labor Relations Commission (“LRC”, or “the Commission”), the state agency charged with administering the Law’s mandates.  Pursuant to the Law, public employees have the right to organize and bargain collectively as to the terms and conditions of employment.[694] Regarding the quality of negotiations between employer and employees, the Law states:

“The employer and the exclusive representative shall meet at reasonable times, including meetings in advance of the employer’s budget-making process and shall negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment . . . , but such obligation shall not compel either party to agree to a proposal or to make a concession . . .[695]

The Law directly imposes a duty to bargain in good faith on both labor and management, and Labor Relations Commission decisions subsequent to the Law’s passage have refined the meaning of “good faith” to provide guidance to parties engaged in collective bargaining.

A party to collective bargaining negotiations who bargains in bad faith commits a “prohibited practice” pursuant to sections 10(a)(5) (employer) and 10(b)(2) (employee organization) of the Law.  Either an employer or an employee organization may bring a complaint to the LRC charging the other party with violating the duty to bargain in good faith.  However, a single employee acting alone has no standing to pursue a refusal to bargain charge against an employer, even if the union has failed in its duty to represent that employee fairly.[696]

 

§ 2     History of the NLRB 

The Concept in Massachusetts

The concept of imposing a duty to bargain in good faith on parties involved in labor negotiations arose initially from federal labor laws.  The National Labor Relations Act (NLRA, also commonly known as the Wagner Act) was enacted by Congress in 1935.[697] The NLRA established the right of employees to organize and bargain collectively with their employer, and considered a refusal by an employer to bargain with the employees’ representative to be  an unfair labor practice.  While only applicable to private sector employees, the NLRA has had a significant impact on the manner and substance of all collective bargaining.  The NLRA established a national policy favoring collective bargaining, its purpose being “to eliminate the causes of certain substantial obstructions to the free flow of commerce.”[698] The obligation to bargain in good faith with an employee representative was not specifically addressed in the text of the NLRA, but the National Labor Relations Board (NLRB), created to administer the NLRA, imposed this condition as being within the intention of the Act.[699] The Taft-Hartley or Labor Management Relations Act (LMRA) later created a reciprocal duty for labor unions to bargain in good faith.  Thus, both management and labor are required, under federal law, to approach the bargaining table with a sincere desire to reach agreement and to minimize sources of conflict.

The NLRA does not, however, apply to public sector employers and employees, and the LMRA precludes the National Labor Relations Board from having jurisdiction over any state or its political subdivisions.[700] Thus, while the decisions of the National Labor Relations Board are influential and relevant authority on state public sector labor issues, they are not precedent (i.e., controlling) in Massachusetts. 

 

§ 3     Scope of Bargaining

Traditionally, collective bargaining subjects are divided into three categories: mandatory, non-mandatory (or permissive), and illegal.  The composition of each category is somewhat fixed by precedent, but the Labor Relations Commission has the discretion to define what constitutes a mandatory versus permissive subject.  In West Bridgewater Police v. Labor Relations Commission,[701] the Massachusetts Appeals Court quoted Ford Motor Co.  v. NLRB:

 

The appropriate scope of collective bargaining cannot be determined by a formula; it will inevitably depend upon the traditions of an industry, the social and political climate at any given time, the needs of employers and employees, and many related factors.  What are proper subject matters for collective bargaining should be left in the first instance to employers and trade unions, and in the second place, to any administrative agency skilled in the field. . . .  It cannot and should not be strait-jacketed by legislative enactment.[702]

Aside from the LRC, the courts also have the discretion to interpret the Law and determine what constitutes a mandatory subject of bargaining.  As a result, there is some semantic if not substantive distinction between decisions of the LRC and the Massachusetts courts on this issue.  The Supreme Judicial Court (SJC) of Massachusetts, for example, generally frames its inquiry in terms of whether something is a “proper” (i.e., not illegal) subject of bargaining.  Proper subjects of bargaining include both mandatory and permissive subjects of bargaining.[703]

 

§ 4     Mandatory Subjects

Generally, if a subject of negotiations is classified as a mandatory subject of bargaining, a party commits a prohibited practice if it refuses a demand to bargain over that subject.  The LRC has found that subjects which have a direct effect on the terms and conditions of employment, such as wages and hours,[704] health insurance benefits,[705]  and job duties and work assignments,[706] are mandatory subjects of bargaining.   The following have also been found by the Commission to be mandatory subjects of bargaining:

·        wages and hours,[707]

·        initial wages for new positions,[708]

·        medical library hours,[709]

·        drug testing or screening, [710] or instituting a new drug policy,[711]

·        assigning work to non bargaining unit personnel,[712]

·        work schedules, generally,[713] and for police detectives,[714]

·        pay day schedules,[715]

·        certain fringe benefits, such as reduced work schedules on holidays,[716] and health and welfare trust fund contributions,[717]

·        promotional procedures,[718]

·        safety issues,[719]

·        work load,[720]

·        productivity issues,[721]

·        allotments of gasoline,[722]

·        regularly scheduled overtime,[723]

·        changes in scheduled overtime,[724]

·        class size,[725]

·        use of psychological testing in hiring,[726]

·        contributions to health and welfare trust funds,[727]

·        selection of health insurance plans,[728] as well as health insurance benefits and premiums generally,[729]

·        percentage of group insurance contributions,[730]

·        compensation for added duties,[731]

·        overtime pay,[732]

·        granting leave,[733]

·        seniority,[734]

·        grooming standards,[735]

·        on call status,[736]

·        time for cashing checks on duty,[737]

·        residency requirements,[738]

·        physical exams by a municipality’s doctor for disability leave,[739]

·        performance evaluation standards,[740]

·        copying charges for union requested information,[741]

·        scope of bargaining unit work,[742]

·        patent rights for inventions,[743]

·        transaction of union business during work hours,[744]

·        penalty for not paying agency service fee,[745]

·        agency service fee,[746]

·        pay check deductions,[747]

·        attendance at professional meetings[748]

·        paid injury leave criteria,[749]

·        wage reopener clause,[750]

·        number of firefighters on a piece of equipment when responding to alarm if safety issue involved,[751]

·        impact of nonbargaining unit employees on work load and working conditions,[752]

·        grievance procedure administration,[753]

·        outside employment restrictions,[754]

·        reduction of force impacts,[755]

·        non-active work time use,[756]

·        smoking,[757]

·        use of seat belts,[758]

·        sick leave bank,[759] and

·        contracting out bargaining unit work,[760]

·        parking rates (and free parking),[761]

·        holding employees accountable for issued equipment,[762]

·        use of defibrillators.[763]

 

§ 5     Non-Mandatory Subjects

A party also commits a prohibited practice if it insists to the point of impasse over a non-mandatory subject of bargaining.[764]  Nonmandatory subjects of bargaining, according to the LRC, are those which involve core governmental decisions, such as the reduction of nonscheduled overtime opportunities,[765]  the decision to abolish or create positions,[766] and wage parity clauses.[767]  Other non-mandatory subjects of bargaining include:

·        the decision to hire additional employees to perform unit work;[768]

·        school curriculum decisions;[769]

·        the decision to place an article on the town warrant seeking to rescind a local option law not enumerated in Section 7(d) of M.G.L. c. 150E;[770]

·        the decision to limit the number of bargaining unit employees who appear at arraignments;[771]

·        loss of ad hoc or unscheduled overtime opportunities;[772]

·        the decision to reassign district court prosecutor’s duties from police officers to town counsel;[773]

·        decision to reorganize;[774]

·        decision to abolish or create positions;[775]

·        decision of employer to conform its method of calculating retirement benefits to the requirements of M.G.L. c.32;[776]

·        decision to discontinue providing private police details at liquor service establishments;[777]

·        the decision to use polygraph examination in the investigation of criminal activity by police officers;[778]

·        wage parity clauses;[779]

·        minimum manning per shift;[780]

·        minimum manning per piece of fire apparatus while responding to mutual aid calls where there is no safety issue;[781]

·        terms of employment which will apply to individuals after they leave the bargaining unit and become members of another unit;[782]

·        decision to discontinue the prior practice of allowing employees to choose the effective date of their retirement and to receive a lump sum payment upon retirement instead of accrued unused vacation because the decision was made by an independent third party.  However, the City must bargain over the impacts of that decision.[783]

·        decision to enter into a Consent Order settling a matter before the Massachusetts Commission Against Discrimination (MCAD); however, an employer is obligated to bargain with the Union over the impact of the Consent Order on terms and conditions of employment.[784]

There is no obligation to engage in collective bargaining as to matters controlled entirely by statute.[785]  Therefore, the Town of North Attleboro was not required to negotiate before refusing the firefighter union’s request to increase the dues of certain employees to cover their cost of a union-sponsored dental insurance plan.[786]  M.G.L. c.180, §17J controls the subject and precludes a municipality from making payroll deductions for such dental plans unless the plan was being offered by “in conjunction with the employee organization.”

Ordinarily, a public employer has no right to inquire of a union what it does with its union dues.[787]  However, in North Attleboro, where the “dues” deductions were a guise for circumventing c.180, §17J, and the town knew it, the town had a right to refuse to participate.[788]

 

§ 6     Improper (Illegal) Subjects

Illegal (or “improper” by the SJC definition) subjects of bargaining may not be the subject of an agreement between the parties.  In general, the parties may not incorporate a provision in a collective bargaining agreement which conflicts with a statute.    The exceptions to that rule are contained in M.G.L. c. 150E § 7(d), which specifies that parties may contract around certain enumerated statutes through a collective bargaining agreement.[789]  Aside from these exceptions, a party commits a prohibited practice if it persists in requesting bargaining over an illegal or improper subject of bargaining.  An employer may not, for example, suggest a provision which would exempt police officers in a “civil service” department from the civil service statutes.  On the other hand, a union may not demand that employees be allowed the power to appoint new firefighters.[790]  Further, even if one of the parties agreed to a contractual provision involving an illegal subject of bargaining, the provision would not be enforceable.[791]

PRACTICE POINTERS

One of the most common and most difficult to reverse mistakes a municipal employer makes is to include non-mandatory subjects in a collective bargaining agreement.  Once an article makes its way into a contract, it is extremely difficult and often very expensive to remove it.  Before starting each new round of negotiations, an analysis should be made of the existing agreement as well as the union’s proposals.  Municipalities that conduct negotiations without labor counsel are especially vulnerable to mistakes in this area.

Chiefs should insist that the municipal negotiator not agree even to discuss non-mandatory subjects.  Despite loud protests and threats of complaints over “bargaining in bad faith,” management should stand strong.  It is clear that if the law were in the reverse, no union would make the same mistakes that so many municipal employers have in this regard.

§ 7     The Meaning of  “Good Faith”

Both the federal and state approach to defining the term “good faith” in the bargaining context involve looking at the totality of the parties’ conduct.[792]  The standard is a subjective one; in essence, a court or agency attempts to gauge the state of mind of the parties.  As the Supreme Judicial Court stated in School Committee of Newton v. Labor Relations Commission:


The duty to bargain under G.L. c. 150E § 6 is a duty to meet and negotiate and to do so in good faith.  Neither party is compelled, however, to agree to a proposal or to make a concession.  “Good faith” implies an open and fair mind as well as a sincere effort to reach common ground.  The quality of the negotiations is evaluated by the totality of the conduct.[793] 

The “totality of conduct” standard includes conduct at the bargaining table as well as conduct occurring away from it.  Hostility toward the union is evidence of bad faith, but, standing alone, union animosity is not sufficient to prove a charge of bad faith.  The LRC has held, however, that negotiations “which are generally conducted in good faith can be tainted by the absence of good faith in a single aspect of those negotiations.  This is especially true when the offensive conduct is central to the negotiations.”[794]

There are two main facets of the good faith requirement.  First, the parties are required to go through the required procedures or “externals” of bargaining, i.e. they must arrange meeting times, attend bargaining sessions, appoint negotiators, etc.  Second, the parties must possess a bona fide (good faith) intention to reach an agreement.[795]  As the LRC indicated in the County of Norfolk case, “The parties must approach the table with an open mind, seeking an agreement which is fair and mutually satisfactory.”[796]

 

§ 8     Good Faith Requisites

Fundamentally, neither management nor labor may refuse to bargain over a mandatory subject of bargaining.[797]  Beyond this requirement, the parties to a labor negotiation have several additional duties which are discussed below.  There is a difference between “hard” bargaining and bad faith bargaining.  The good faith requirement was not intended to completely tie the hands of the parties, nor to prevent a party from aggressively advocating its position.

The term “good faith” implies an open and fair mind as well as a sincere effort to reach a common ground.[798]  Indeed, the very concept of collective bargaining presupposes a desire to reach ultimate agreement.[799]  While such an obligation does not compel either party to agree to a proposal or make a concession, it does require that each party enter into discussions with an open and fair mind, have a sincere purpose to find a basis of agreement and make reasonable efforts to compromise their differences.[800]  The employer is obliged to make some reasonable effort in some direction to compromise differences with the Union if the good faith requirement imposes any substantial obligation at all.  Agreement by way of compromise cannot be expected unless the one rejecting a claim or demand is willing to make a counter suggestion or proposal.[801]

A.              Avoiding Surface and Regressive Bargaining

Surface bargaining occurs when a party makes a pretense of bargaining but is merely going through the motions of negotiations without any real intent to reach an agreement.  Similarly, a party may be guilty of surface bargaining if it rejects the other side’s proposals while tendering its own, without making any attempt to reconcile the two positions.[802]  The LRC has also indicated that a party is surface bargaining if it merely attends a prescribed number of meetings without engaging in meaningful discussions.[803]  The NLRB and the Massachusetts Labor Relations Commission have specified several factors that each will consider in determining whether a party is guilty of surface bargaining, including:

·        the prior bargaining history of the parties;[804]

·        the length of the current negotiations (i.e. whether they were purposefully shortened to avoid bargaining) ;[805]

·        a party’s willingness to make concessions (though failing to yield on a major issue while making other concessions is not evidence of surface bargaining) ;[806]

·        the character of the proposals or demands made, including whether the party makes insincere proposals to sidestep important issues, as well as  the number, substance, timing, reasonableness, and predictable unacceptability of proposals or demands;[807]

·        any occurrence of dilatory (stalling or delaying) tactics during the negotiations, including the failure to schedule meetings, the frequent postponement of meetings, prolonged discussions on formalities, long lapses between meetings, etc.;[808]

·        whether unrealistic conditions were imposed for agreement, including demands that the other party cease pending litigation (including prohibited practice charges),[809] or make concessions on ground rules which would render the other party’s right to bargain meaningless;[810]

·        whether there were unilateral changes made in bargaining subjects during negotiations;[811]

·        the employer’s attempts to deal directly with the employees instead of communicating to them through their selected representative;[812]

·        any evidence that either party failed or delayed in providing requested information;[813]

·        the maintenance of an extreme bargaining position without providing any justification;[814] and

·        any other unfair (prohibited) labor practices.[815]

This list is not exhaustive, but it does provide some guidance as to what constitutes surface bargaining in the context of labor negotiations. 

Each party to collective bargaining must endeavor to move the negotiations forward, toward agreement.[816]  To move backward is considered “regressive”.[817]  A party bargains regressively in violation of its duty to bargain in good faith by withdrawing an offer made in earlier bargaining sessions.[818]   Where the School Committee’s negotiator withdrew agreement on a three-year wage offer, it was guilty of regressive bargaining.[819]  This was the case even though the Committee contended that its projected revenues could not support all three years of the wage offer.  The Commission found that there were sufficient funds for the first year and that the Committee failed to demonstrate the kind of fiscal emergency that might have excused a withdrawal of their wage proposal.  One who retracts an offer on the table for retaliatory reasons also engages in regressive bargaining.  Negotiators, however, are free to make tentative proposals and later retract them during bargaining, as long as the retraction is not retaliatory.[820]

PRACTICE POINTERS

It is advisable to include in the ground rules the right to make “package offers” which may be withdrawn if not accepted, leaving a party free to return to an earlier position.  If no such rule has been adopted, a party can condition any package or even individual proposal on the ability to return to an earlier position and, especially if the other party does not object, no claim for regressive bargaining should succeed.

B.              Establishing Ground Rules and Conducting Meetings

The LRC views the environment in which negotiations take place as critical to the process of collective bargaining.  For this reason, the LRC has established several rules concerning meetings and ground rules.

Ground rules for any negotiations are a mandatory subject of bargaining.  Thus, the parties may bargain to impasse over ground rules, but “neither party can be permitted to prevent the commencement of bargaining by insisting on ground rules which are patently unreasonable or which in and of themselves prevent bargaining.”[821]  The ground rules may establish meeting times and places, and any other preliminary matters incident to starting collective bargaining.  For example, normally parties may make any new proposal that is not regressive or in bad faith, but the parties may agree to a ground rule establishing a cut-off date after which no new proposals may be raised.[822]  Another typical ground rule for public sector bargaining is requiring ratification of any agreement by the parties’ principals in order for the contract to be finalized. 

A party may not, however, insist on a ground rule which requires open, public negotiations.  While M.G.L. c. 39, § 23B, does require that governmental bodies conduct meetings open to the public, this law does not require open sessions for collective bargaining or grievance procedures.[823] The Commission has stated that neither party may insist on open bargaining sessions.[824]  A party (generally the public employer) commits a per se (i.e., automatic) violation of Sections 10(a)(5) and (1) of the Law by insisting upon open bargaining sessions once the other party (generally the union) has objected to the presence of the public.[825]  The reason for this rule was articulated in Holbrook School Committee, when the Labor Relations Committee stated, “The norm is closed sessions; parties will not be permitted to scuttle bargaining by insisting otherwise.”[826] As a permissive subject of bargaining, the issue of open negotiating sessions nevertheless may be discussed at the table and agreed to by the parties.[827]

With respect to participation in bargaining sessions, neither party may require disclosure of the composition of the other side’s bargaining team as a prerequisite to negotiations, or coerce the other party in its choice of bargaining representative.[828]

The Law requires that the parties meet “at reasonable times,” and often parties will establish in the ground rules the meeting time and place for future negotiations.  As to the time for negotiations, an employer may refuse to agree to a union’s proposal that bargaining take place on weekends and evenings.[829]  In one LRC case, the City of Somerville charged that the union unlawfully refused to bargain, by insisting on negotiating only during the workday.[830]  The City, on the other hand, was insisting that holding the bargaining sessions during the day would disrupt its operations.  The LRC found that this “procedural standoff” did not violate the Law.[831]

Thus, while it is not entirely clear whether a union or an employer may insist on bargaining during a particular time of the day or week, there is some authority for the proposition that the parties may bargain on this issue to the point of impasse.

PRACTICE POINTERS

An employer is free to refuse to allow on-duty personnel to attend negotiations.  However, good faith probably requires that it should then be willing to hold such sessions outside of regular work hours or to allow employees to make arrangements for substitutions.

As a practical matter, ground rules rarely make much of a difference in how negotiations are conducted.  Non-objectionable rules include not exceeding two hour sessions unless both parties agree and scheduling the next session at the end of each negotiation session.  The requirement that neither party make public statements prior to impasse (and then only after 24 hour’s notice) is a good one, but hard to enforce.  Neither party can insist on restricting who the other has on its negotiating team (unless on-duty personnel are involved.) 

Experience shows that initializing all tentative agreements may prove cumbersome and is not always a good idea.  On the other hand, making sure everyone knows that all arguments are tentative until a package is agreed upon, and then subject to ratification, is very important.

As to the location of bargaining sessions, negotiations may be held in any mutually agreeable location.  However, neither party may insist that sessions be held outside of the municipality.  Thus, when the Plainville School Committee refused to meet with the union out of town, the LRC held that this action was not evidence of bad faith bargaining.[832]

 

C.              Reducing the Agreement to Writing

Section 7(a) of the Law provides that agreements must be reduced to writing and may not exceed a term of three years.  An agreement which automatically continues beyond three years, unless either party proposes to change it (“evergreen” clause), does not violate the Law.  In Town of Burlington, the LRC stated that by not proposing changes, the parties are in effect agreeing to a new contract.[833] 

The LRC has stated that when the parties have reached agreement on all substantive issues, the agreement must be reduced to writing.  Thus, a party commits a prohibited practice if it refuses to execute a written contract that sets forth the terms of the negotiated agreement.[834]  This obligation extends to so-called side agreements or side letters as well as to comprehensive collective bargaining agreements.[835]  An alleged lack   of funds to pay for the cost items of the agreement does not justify a refusal by the public employer to sign the negotiated agreement.[836]  The only exception to this rule involves oral modifications to a written contract, where the LRC has held that such oral modifications are effective without a writing.[837]  After agreement has been reached and the writing effected, neither party is free unilaterally to change any provision of the contract.[838] 

The issue often arises as to whether the parties have, in fact, reached agreement, and thus have triggered the writing requirement.  In determining whether an agreement has been reached, the LRC looks at whether there has been a “meeting of the minds” on the actual terms of the agreement.  The Law recognizes that a meeting of the minds can occur without anything having been reduced to writing or having been signed by either party,[839] but it must be found that the parties actually reached agreement on all the substantive issues.[840]  Simply presenting language that had previously been proposed by the other party does not amount to a meeting of the minds if there is a dispute as to the meaning involved.[841]  Additionally, it must be found that the agreement or meeting of the minds occurred between the authorized representatives of the public employer and the union.

 

 

PRACTICE POINTERS

Negotiators are not signatories to the collective bargaining agreement.  Make it clear in the ground rules that a contract must first be ratified by the Mayor or Selectmen and, once fully typed and reviewed, signed by them to be binding on the city or town.  Similarly, it is helpful to remind the union that the contract is subject to funding by the city council or town meeting.

D.              Reaching Impasse

A public employer violates Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it unilaterally changes an existing condition of employment or implements a new condition of employment involving a mandatory subject of bargaining without first affording its employees’ exclusive collective bargaining representative prior notice and an opportunity to bargain to resolution or lawful impasse.[842]

To determine whether impasse has been reached, the Commission considers the following factors:  bargaining history, the good faith of the parties, the length of the negotiations, the importance of the issues to which there is disagreement, and the contemporaneous understanding of the parties concerning the state of the negotiations.[843]  Further, the Commission focuses specifically on whether the parties have negotiated in good faith on bargainable issues to the point where it is clear that further negotiations would be futile because the parties are deadlocked.[844]

Thus, to fulfill its responsibility to bargain in good faith, the employer is obligated to:  1) make itself available at reasonable times and places for the purpose of negotiating over the decision and impacts of block scheduling,[845]; 2) participate in such negotiations in good faith,[846] and 3) refrain from unilaterally establishing block scheduling until impasse had been reached on all mandatory aspects of the block scheduling decision.[847]

Impasse occurs when the parties have made a good faith effort at bargaining which, despite their best intentions, does not conclude in agreement.  Parties may bargain to impasse over any mandatory subject of bargaining.  However, as discussed earlier, insisting on a non-mandatory provision in the contract to the point of impasse (or an illegal one) constitutes a prohibited practice.[848]  A finding that impasse has been reached during mid-term bargaining means that the parties have satisfied their duty to bargain and that the employer may implement changes in terms and conditions of employment which are reasonably comprehended within its pre-impasse proposals.[849]  (See Chapter 10 - Midterm Bargaining)  During regular contract negotiations aimed at producing an initial or successor collective bargaining agreement, certain statutory impasse resolution procedures apply.[850]  (See Chapter 6 - Impasse Resolution Procedures)

Impasse in negotiations occurs only when “both parties have negotiated in good faith on all bargainable issues to the point where it is clear that further negotiations would be fruitless because the parties are deadlocked.”[851] To determine whether impasse has been reached, the LRC considers the following factors: bargaining history, the good faith of the parties, the length of the negotiations, the importance of the issues to which there is disagreement, and the contemporaneous understanding of the parties concerning the state of the negotiations.[852]

Although the Commission considered a union’s unilateral expression of desire to continue bargaining as evidence that the parties may not have bargained to impasse[853], the ultimate test remains whether there is a “likelihood of further movement by either side” and whether the parties have “ exhausted all possibility of compromise.”[854]

In Commonwealth of Massachusetts, the employer rejected the union’s request for an additional meeting to “ devise a more creative plan” after the employer had presented the union with what the employer had characterized as the “final draft” of its proposal. In determining that the parties had not bargained to impasse, the Commission pointed out that the union’s request came after the employer had: 1) indicated that, despite what it characterized as its “final draft,” the union could have input into the proposed policy and; 2) explained to the union why it had rejected the union’s most recent proposals.

In City of Boston[855], after the employer rejected the union’s proposal concerning the impacts of a planned reorgani­zation in the context of mid-terns negotiations, the union presented a proposal during successor collective bargaining agreement nego­tiations, which had been occurring simultaneously. Although the employer did not refuse to bargain over the proposal, it maintained its position that the parties had bargained to impasse over the impacts of the reorganization in the context of mid-term negotia­tions and, therefore, the employer would continue with its plan to implement the changes. On the day before the employer imple­mented its plan, the union presented an additional proposal, part of which the employer incorporated into its final implementation. In determining that the parties had not bargained to impasse, the Commission rejected as inflexible the employer’s argument that, despite the union’s proposal during successor negotiations, the parties had bargained to impasse in the context of mid-term nego­tiations.[856]

In both Commonwealth of Massachusetts, and City of Boston, the Commission recognized that collective bargaining is a dynamic process that is influenced by many factors. Changing circum­stances, like the union learning why the employer had rejected its proposals as in Commonwealth of Massachusetts or the context in which the union makes its proposal as in City of Boston, could affect the parties’ relative positions on any outstanding issues and, cou­pled with the union’s expressed desire to continue bargaining, improve the likelihood of further compromise. See also, Wood’s Hole, Martha’s Vineyard and Nantucket Steamship Authority[857], (no impasse where hiatus in bargaining and major change in employer’s bargaining proposal significantly al­tered the framework for the negotiations); Town of Arlington[858], (no impasse because union membership’s rejec­tion of Town’s offer changed the dynamics of bargaining and created need for both sides to bargain further)[859]; (no impasse where passage of time created possibility that parties could retreat from earlier positions, allowing for eventual settlement.)

In a Boston case, a review of the history of the parties’ negotiations  over the use of take-home vehicles lead the LRC to the conclusion that, even if the union was sincere in its expressed willingness to continue bargaining over the matter, there was little likelihood that either party would or could ever present a proposal that would move the parties any closer toward resolution.[860]

In Mass. Commissioner of Administration and Finance, the LRC listed several criteria that it will examine in determining whether impasse has been reached:

 

·        the bargaining history of the parties,

·        evidence of good faith by the parties,

·        the length of the negotiations,

·        the importance of the issues on which the parties disagree, and

·        the contemporaneous understanding of the parties about the state of bargaining (i.e., both parties believe that impasse has been reached).[861] 

The LRC also commented in the Mass. Commissioner case that it will  focus specifically on whether the parties have negotiated in good faith on bargainable issues to the point where it is clear that further negotiations would be fruitless because the parties are deadlocked.[862]  Thus, in City of Boston, the Union’s request for continued bargaining precluded the LRC from finding that impasse had occurred.[863]  After an alleged impasse, the duty to bargain is revived when either party indicates a desire to negotiate in good faith over previously deadlocked issues.[864]  Similarly, neither party may attempt to foreshorten bargaining by establishing an artificial or unreasonable deadline for completion of negotiations.[865]

The jurisdiction of the Joint Labor-Management Committee (JLMC) may be invoked by either party to police or fire contract negotiations upon reaching impasse during regular contract negotiations.[866]  While the LRC has the exclusive statutory prerogative to decide issues of good faith bargaining and the existence of impasse, it has deferred to the JLMC when charges are filed while the JLMC is handling a case.  The JLMC has the authority during regular contract negotiations to utilize its impasse resolution procedures, such as mediation, fact-finding and arbitration, to move the negotiations forward.[867]

 

§ 9     Remedies for Failure to Bargain in Good Faith

Section 11 of the Law grants the Commission broad discretion in formulating remedies which will best effectuate the policies of the Law.[868]  The remedial power of the LRC under § 11 encompasses the authority to fashion “make whole” remedies to compensate a party which suffers due to the other party’s unlawful action.[869]  The usual remedy when a respondent has refused to bargain in good faith is to issue a cease and desist order and an order that the respondent bargain in good faith on demand.[870]  There are instances where the LRC has found that this type of remedy is not sufficient to put the parties back into the position they were in prior to the bad faith conduct (i.e., the status quo ante) and is thus inadequate.  Where the respondent’s conduct substantially impairs bargaining between the parties, the Commission will grant extraordinary relief to remedy the full consequences of the violation.[871]  Thus, the LRC will order compensatory relief where warranted.[872]  However, the Commission is not authorized to issue awards compelling one party to pay the other’s legal fees in presenting its case.”[873]

Where the City of Lawrence decayed funding a grievance arbitration settlement agreement for more than 8 months, the LRC found this was unreasonably long.[874]  As a remedy under Section 11 of the Law, the Commission awarded interest, retroactive to 6 weeks after the parties signed the grievance settlement agreement.



Chapter 4 -  Management’s Duty to Bargain in Good Faith

 

 

Aside from the good faith requisites applicable to both parties, there are a number of party-specific duties.  Public employers, for example, have a variety of obligations they must fulfill to satisfy the Labor Relations Commission (LRC’s) definition of bargaining in good faith.

A.              Refusal to Negotiate

While neither labor nor management can refuse to negotiate after a request to bargain has been received from the other party, most frequently it is the employer who is charged with refusal to bargain.  A public employer can be charged with refusing to bargain by directly or explicitly turning down a union’s specific request to bargain, or by acting in a manner that demonstrates that the employer is avoiding the duty to bargain.[875]  The public employer has an obligation to bargain with a union which is approved by a majority vote of the employees, or which has been voluntarily recognized by the employer.[876]

PRACTICE POINTERS

Unions often try to bully management into making a concession, claiming (incorrectly) that good faith requires it.  This tactic should be resisted.

Often, there is a fine line between “hard” bargaining and a refusal to bargain.  The Law does not require that either party agree to a proposal or make a concession, but neither party can absolutely refuse to discuss a mandatory subject of bargaining.  Thus, an employer may propose a 0% wage increase for economic or other reasons, but may not entirely refuse to discuss wages.[877]  Further, a union may not refuse to discuss an employer’s proposed “take away” provisions if they involve a mandatory subject of bargaining.[878]  A public employer can freely advance 0% wage increases, take away items, and other hard bargaining positions, as long as it is not presented as a “take it or leave it” proposition.[879]  As discussed in Chapter 3, a party may be guilty of surface bargaining if it rejects the other side’s proposals, while tendering its own, without attempting to reconcile the two.[880]

B.              Attempts to Bypass the Union

An employer may not bypass the union and deal directly with an employee on matters that are properly the subject of negotiations with the bargaining unit’s exclusive representative.  Such an action would violate the employer’s duty to bargain in good faith and would constitute a prohibited practice under Massachusetts law.[881]  Granting salary adjustments following a survey, violates the Law if the employer does not involve the union.[882]  Even where the legislature enacted a health insurance buy-out program, the employer was required to provide the union with notice and an opportunity to bargain to resolution or impasse about the amount of money to be paid to eligible employees who elect to participate in the program.[883]

Thus, in most circumstances, a chief must give notice and an opportunity to bargain to the union whenever he/she has a proposed change involving or affecting the wages, hours, and other terms and conditions of employment (i.e., mandatory subjects of bargaining).  In certain limited circumstances, a chief might be able to make operational decisions or to deal with an employee directly without consulting the union.

1)               Operational and Emergency Decision-Making

In an emergency situation, such as calling in off-duty police officers or firefighters to respond to a violent public disturbance or fire, common sense would indicate that a chief may make any necessary decisions to preserve public safety and execute the duties of the department.  On several occasions, Massachusetts courts have recognized the need for allowing municipal employers the flexibility to deal with emergencies and public safety issues.[884]  However, there are as yet no LRC cases specifically designating an “emergency exception” to the employer’s responsibility to consult the union prior to implementing changes affecting the terms and conditions of employment.

PRACTICE POINTERS

A chief should be careful to ascertain whether the situation is truly an emergency, or whether the matter can first safely be taken up with the union prior to the change.

A chief may also implement strictly operational decisions not affecting mandatory subjects of bargaining, without consulting the union.  While this is true as a general principle, a chief must be cautious in defining what is a strictly operational decision.  Any time wages, hours or terms and conditions of employment are implicated, the union must be notified and given the opportunity to bargain.  Examples of operational decisions in a police context  could include changing the method of executing a search warrant or altering patrol routes. 

2)               Matters Solely Affecting an Employee

Section 6 of the Law imposes upon public employers the obligation to negotiate in good faith with the exclusive bargaining unit representatives of their employees concerning wages, hours, standards or productivity and performance, and any other terms and conditions of employment.  The duty to bargain collectively with the employee’s exclusive collective bargaining representative prohibits the employer from negotiating directly with employees in the bargaining unit on matters that are properly the subject of negotiations with the bargaining unit’s exclusive representative.[885]  Direct dealing is impermissible for at least two related reasons.  First, direct dealing violates the union’s statutory right to speak exclusively for the employees who have elected it to serve as their sole representative.[886]  Second, direct dealing undermines employees’ belief that the union actually possesses the power of exclusive representation to which the statute entitles it.[887]

The Commission has held that involuntary deductions from the pay of employees is a mandatory subject of bargaining.[888]  In Millis School Committee, the Commission determined that a payment plan developed by the Superintendent and an individual employee to repay his retirement plus a 10% stipend was a mandatory subject of bargaining and concluded that the School Committee violated the Law by bypassing the Union and negotiating directly with the employee on the method of repayment.[889]  Further, in Town of South Hadley[890], the Commission found that a training cost assessment and the repayment of training costs was a term and condition of employment.  The Town argued that the repayment schedule of a training fee for employees was authorized by statute that provided, “[u]pon completion of training, said training fee shall be deducted from the recruit’s wages in eighteen monthly installments or as otherwise negotiated.”  The Commission rejected the Town’s argument, holding that the statute identified only one possible method of recouping the training cost assessment, and that it did not restrict the Town’s obligation to bargain with the Union.[891]

 

 

PRACTICE POINTERS

Whenever a proposed change could potentially affect terms and conditions of employment, the chief must notify the union prior to making the change.  Sufficient notice must be given so that the union has the opportunity to request bargaining.  Instituting a unilateral change involving a mandatory subject of bargaining without so notifying the union is a prohibited (unfair labor) practice.[892]   Even if the subject matter of the decision involves only non-mandatory or permissive subjects of bargaining, the employer is still required to give notice to the union and the opportunity to bargain before making the change if the change will affect a mandatory subject.[893]  It is essential that a chief allow sufficient time to bargain with the union beforehand.  The employer or chief must then bargain in good faith until agreement or impasse, and then may implement the change.

If the decision involves a mandatory subject of bargaining, the employer should first determine whether the issue was addressed in the collective bargaining agreement.  If the issue was specifically dealt with in the agreement, the union probably will refuse to bargain and insist that the employer wait until the current contract expires before discussing the change.  Unless the contract contains a zipper clause, the union would commit a prohibited practice (M.G.L. c. 150E, s. 10(b)) if it refused to negotiate in good faith over a mandatory subject of bargaining which was not covered completely by the terms of the collective bargaining agreement.  Where such a refusal occurs, the employer should notify the union that it has waived its right to demand bargaining and that unless it reconsiders promptly, the municipal employer will implement its proposed change.

If the decision is not specifically addressed in the labor contract, the employer may propose the change to the union and, if a timely request is made, bargain over it, with some possible exceptions.  First, a zipper clause in the collective bargaining agreement would preclude mid-term bargaining on the proposed change unless the union agrees to re-negotiate that provision in the contract.  Second, the change could be preempted by the agreement if the general issue involving the decision was dealt with extensively in the contract even though the specific issue was not.

Where there is no zipper clause or preemption, the employer may propose the change to the union, and the union has a duty to bargain in good faith over the proposal.  The duty to bargain extends to proposed changes in past practices not specifically addressed in the collective bargaining agreement. With respect to decisions affecting mandatory subjects of bargaining not addressed in the collective bargaining agreement, unless the union waives its right to bargain, a chief may not implement the decision until agreement or impasse.

A chief must be careful to notify the union when hearing an employee’s grievance.  A union representative has the right to be present at such hearings to make sure the resolution does not conflict with the collective bargaining agreement, even if the employee does not choose to have the representative present for his/her own benefit.[894]  The employee also has the right, if he/she so requests, to have a union member present during an interrogation by the employer which an employee could reasonably expect might lead to disciplinary action, but the employee may waive this right.[895]  If the Union sends an attorney as its representative, the chief must also allow that person to attend.[896]

Lastly, even though no LRC case has addressed the matter directly, an employer should provide the union with a copy of all disciplinary hearing notices and decisions.

C.              Conditioning Bargaining on the Outcome of Pending Litigation

Neither party may refuse to bargain because a prohibited practice charge has been brought against it.  Bargaining may not be contingent upon the withdrawal or resolution of pending prohibited practice charges or any other pending litigation.[897]

PRACTICE POINTERS

It is customary to resolve most pending LRC or arbitration cases which were filed during negotiations at the time agreement is reached on the collective bargaining agreement.  This is especially true if the charges or grievances related to a party’s conduct during negotiations.  A party may propose including the resolution or dismissal of those cases as part of a settlement proposal.  However, if the other party demands (to the point of impasse) that such “linkage” be dropped, it would be a prohibited practice to insist.

D.              Failing to Appoint a Negotiator

Both the public employer and the union usually designate representatives to act on their behalf at the bargaining table.  The employer is required to appoint a negotiator.[898]  Presumably so too is the union, but no LRC decision has involved this issue.  The negotiator could be a third party (e.g., Labor Counsel or Personnel Board member(s)) or one or more members of the respective parties (e.g., Selectman or union member).

In order to satisfy its good faith obligations, the employer[899] must give its negotiating representative sufficient authority to make proposals at the bargaining table.[900]  Although an employer does not have to be represented by a person with authority to conclude a binding contract, the character and powers of the employer’s representative are factors which are considered in determining whether bargaining has been conducted in good faith.  The LRC may find a violation of the duty if the employer’s representative has authority to bargain but attends none of the bargaining sessions or has no authority to make commitments on any vital or substantive provision of a proposed agreement.  The authority of an employer’s representative is deficient if it is limited to the transmittal of proposals (“errand boy” doctrine) and the making of recommendations to the employer.[901] 

The authority of the negotiator may be limited in some respects; for example, the parties (the public employer and the union) usually retain the right to ratify or disapprove the final contract package agreed upon by their negotiating teams.  If a party has limited the authority of its negotiator, it must inform the other party at the bargaining table.  In the absence of an express limitation, the negotiating team will be deemed to have broad authority to bind contractually the party whom it represents.[902]  For example, the Supreme Judicial Court has held that “in the absence of circumstances that make the assumption unreasonable, an employer has the right to assume that the principal officer of a union . . . has authority to act on behalf of that union . . . to bind it to agreements he/she makes.”[903] 

PRACTICE POINTERS

At the first bargaining session, the negotiators should fully disclose any limitations on their authority.  This is best done by establishing clear ground rules for the conduct of the negotiations, so as to avoid claims of regressive bargaining and complaints of prohibited practice arising out of a negotiator’s alleged lack of authority to make a proposal or reach an agreement.

A typical negotiating team for a municipality during negotiations for a collective bargaining agreement might include its labor attorney, the chief executive officer (manager, mayor, etc.) and/or a member of the board of selectmen, personnel board or finance committee.  There is no requirement concerning who is appointed as a negotiator so long as that person or team has sufficient authority to conduct negotiations in good faith.

Unless there are compelling reasons not to do so, it is advisable to have the police or fire chief on the negotiating team as a resource person.  The chief can point out during a caucus the implications of various union proposals.  For example, some may impact overtime, others may conflict with management rights, and some may be impractical without hiring additional personnel.  Also, claims that “we’ve always done it that way” can be refuted before the employer’s negotiating team agrees to amend the contract inappropriately.

It is advisable to designate a principal spokesperson.  Others on the team should refrain from speaking, holding most of their comments until a caucus is held.

Having a majority the Board of Selectmen on the negotiating team is not recommended.  Nor is it generally a good idea to include anyone who alone has the authority to bind the employer.  The Union could then argue that all oral “tentative agreements” discussed during negotiations are binding on the municipal employer without need of further ratification (or more thoughtful consideration).

E.              Failure to Support a Negotiated Agreement

The employer’s duty to bargain in good faith does not end once the contract has been signed by the parties.  The public employer, through its chief executive officer, is also required to support the agreement before the legislative body and to submit the cost items in the contract for funding to the appropriate financing authority.[904]   The cost items can include, for example, wage increases, uniform allowances, educational incentives, shift differential pay, etc.  In a city or town, the appropriate legislative body is the city council or the town meeting (or any other body vested with the power of appropriation).  Unless or until there is legislative appropriation to fund a cost item, that cost item has no monetary significance.[905]

The duty to support the agreement before the appropriate legislative body extends to taking affirmative steps to defeat legislation which would prevent the employer from carrying out the terms of the agreement.[906]  The chief executive officer (selectmen, mayor, manager, etc.) cannot sit silently while the funding request is being debated.  This obligation rests with the chief executive officer alone; other municipal officials unconnected to the negotiations or members of the legislative body are free to speak out in opposition to the agreement.  A belief by the chief executive officer that the legislative body will reject the funding request does not excuse the failure to submit the request.  If, despite the support of the chief executive officer, the legislative body refuses to appropriate the funds required for any part of the agreement, the entire contract becomes, in effect, void, and the parties return to the bargaining table.[907]

A town was found not to have committed a prohibited practice when members of the school committee successfully used their efforts to block funding of police and fire department contracts since the school committee is neither the town’s chief executive officer nor the town’s bargaining representative relative to the police and fire departments.[908]

Similarly, a town did not commit a prohibited practice when the town’s finance committee (also know in some municipalities as the advisory committee) refused to support the funding of cost items in a negotiated collective bargaining agreement since the finance committee acts independently of the board of selectmen and since, in this case, there was no evidence that the board of selectmen were using the finance committee as a means of preventing funding for the agreement.[909]

A board of selectmen’s obligation to support the negotiated agreement was not violated when the chairman of the board of selectmen gave to town meeting members an erroneous interpretation of the consequences of adopting a statutory provision relating to health insurance premium contributions since his/her conduct as a whole really amounted to support for the agreement.[910]

No prohibited practice was committed, even though the members of the board of selectmen did not speak in favor of the funding request at the town meeting, where the town’s executive secretary affirmatively spoke in support of the agreement and sat next to and spoke with the board of selectmen during the town meeting.  After looking at the totality of the selectmen’s conduct in connection with the allegation  that there had been a failure to support the agreement, the Labor Relations Commission concluded that no prohibited practice occurred since the town meeting members could reasonably interpret the selectmen’s action as being in support of the agreement where the executive secretary, who spoke in favor, was clearly acting as the agent of the Selectmen.  The selectmen’s silence, under the facts of this case, therefore, was not improper.[911]

On the other hand, a board of selectmen was found not to have satisfied its statutory obligation to seek funding of the agreement when it sat in silence and did not affirmatively support the funding request even though the finance committee had given a negative recommendation.  The Labor Relations Commission noted that the selectmen’s silence could be interpreted as agreement with the finance committee’s recommendation, and that under the circumstances, the selectmen had the affirmative obligation “to convey clearly their support of the funding article.”[912]  The Labor Relations Commission also rejected various constitutional and public policy arguments made by the selectmen and concluded that requiring the board of selectmen to speak in favor of an agreement which they negotiated and to which they are a party does not infringe on their first amendment rights and does not impair the obligation of a public official to exercise independent judgment as to whether to support a negotiated collective bargaining agreement.

Such constitutional or public policy arguments could, however, be raised by a member of a board of selectmen who is elected to that position subsequent to the negotiation of a collective bargaining agreement.[913]

PRACTICE POINTERS

It is easier for a board of selectmen or mayor to support an agreement which it reached voluntarily with the union.  However, this is not the case when an “agreement” is the result of an adverse award handed down by an arbitrator assigned by the Joint Labor-Management Committee (JLMC).  For example, if all other town employees and bargaining groups received a 3% pay increase, the selectmen or mayor may feel hypocritical having argued against a greater pay raise for police or fire employees for a year or more, only to be required now to “support” a 5% raise at town meeting or before the city council or board of aldermen.

The constitutional challenge raised before the LRC was not appealed to the courts.  Therefore, it is possible that a freedom of speech argument could be made successfully in a judicial forum.  However, rather than commit the time and money for such a challenge, most employers rely on other municipal officials to explain to the legislative (funding) body why the manager, mayor or selectmen appear to have a change of heart.

F.               Failure or Delay in Furnishing Requested Information

A public employer’s statutory obligation to bargain in good faith with the employees’ exclusive bargaining representative includes the duty to disclose[914] to the union information it requests which is relevant and reasonably necessary for the union to perform its duties as the exclusive bargaining representative (e.g., analyzing contract proposals or administering the contract).[915]  The union’s right to information includes that which assists it in determining whether a grievance should be filed or pursued.[916]  A public employer has an obligation to provide only information that is within its possession or control[917], and it may not unreasonably delay in providing the union with such information.[918]  Additionally, the fact that the information being sought by the union is a “public record”[919], or is available from some other source is no defense to a public employer’s refusal to provide relevant and necessary information in its possession or control.[920]  An employer may justify its refusal to provide information by demonstrating that it has legitimate and substantial concerns about disclosure of the information and that it has made reasonable efforts to provide as much of the information as possible.[921]

In determining whether an employer has violated its duty to provide requested information, the Labor Relations Commission applies a balancing test.  Under this test, the union must first show that the requested information is relevant and reasonably necessary for its duties as a bargaining agent.  The standard for determining “relevancy” is broad and liberal.[922]  Once the union has made this showing, the employer has the burden of demonstrating that its confidentiality or other concerns about disclosure of the information are legitimate and substantial, or that it has already made a reasonable effort to provide the union with as much of the requested information as possible.[923]

Note:  See Chapter 11 - Furnishing Information.

G.              Avoiding Unilateral Changes[924]

When a collective bargaining agreement expires, an employer is not free unilaterally to change wages, hours, or other working conditions without at least providing the union notice and, if requested, engaging in good faith negotiation.[925]  In Commonwealth of Massachusetts, the LRC found that the expiration of the contract and the change of union did not relieve the employer of its continuing duty to contribute on the employees’ behalf to the health and welfare trust fund established under the contract.[926]  To establish a violation of the Law, an actual change in an existing condition of employment must have occurred,[927] and the change must involve or impact a mandatory subject of bargaining.