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Workplace Rules and Practices 13-6
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. 52
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. 53
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 54 or a lost promotional opportunity. 55
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.
§ 6 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 oficer’s
First Amendment free speech and expression rights through the
enforcement of grooming regulations. 56 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.
Commonwealth of Massachusetts