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Mandatory Subjects of Bargaining 3-5
bargain with the Union over the impact of the Consent Order
on terms and conditions of employment. 86
A party also commits a prohibited practice if it insists to the point of
impasse on bargaining over a non-mandatory subject of bargaining. 87
§ 3 IMPROPER (ILLEGAL) SUBJECTS
Ilegal (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. 88 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 oficers 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. 89 Further, even if one of the parties agreed to a contractual
provision involving an illegal subject of bargaining, the provision would
not be enforceable. 90
There is no obligation to engage in collective bargaining as to matters
controlled entirely by statute. 91 For example, 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. 92 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 "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. 93 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. 94
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
Massachusetts Municipal Police Training Committee