Management Rights - AELE's Home Page

CHAPTER 17 - EMPLOYEE
PERFORMANCE
Because performance evaluations have a direct impact on employee job
security and professional advancement, they are a mandatory subject of
bargaining. 1 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, 2 and 2) they serve as a basis for promotions. 3 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. 4
Performance evaluation systems that measure standards of productivity
and performance are mandatory subjects of bargaining. 5 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. 6 An employer is
prohibited from unilaterally changing the criteria upon which employees
are evaluated. 7 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. 8 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. 9
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. 10 In its 1998 ruling, the LRC upheld an Administrative Law
Judge’s (ALJ’s) dismissal of the Boston Superior Oficers Federation’s
charge following the creation of a Community Appeals Board (CAB) to
review Internal Affairs Department (IAD) investigations and disciplinary
hearings. 11 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.
Commonwealth of Massachusetts