Management Rights - AELE's Home Page

Employee Performance 17-2
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. 12 The LRC has recognized, however, that certain
data of a highly personal, intimate, or confidential nature may be
withheld. 13 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. 14
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 efected a “material change” in the
evaluation procedure. Thus, mere “mechanical,” as opposed to
“substantive,” changes are permited. 15 Implementing a new written
evaluation 16 and changing the wording of an existing evaluation, 17 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. 18
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. 19 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. 20 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. 21
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. 22 Second, most non-civil service
employers who conduct written evaluations do so once per year. 23 The
evaluations are generaly conducted by an employee’s immediate
supervisor. 24 The CBA will usually specify the procedure by which an
employee can challenge the results of the evaluation. 25
Commonwealth of Massachusetts