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Good Faith 4-3 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. 15 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. 16 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. 17 Further, a union may not refuse to discuss an employer’s proposed “take away” provisions if they involve a mandatory subject of bargaining. 18 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. 19 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. 20 B. UNILATERAL CHANGES 21 A public employer violates Sections 10(a)(5) and (1) of the Law when it implements a change in a mandatory subject of bargaining without first providing the employees' exclusive collective bargaining representative with prior notice and an opportunity to bargain to resolution or impasse. 22 The duty to bargain extends to both conditions of employment that are established through past practice as well as conditions of employment that are established through a collective bargaining agreement. 23 To establish a unilateral change violation, the charging party must show that: 1) the employer altered an existing practice or instituted a new one; Massachusetts Municipal Police Training Committee
Good Faith 4-4 2) the change affected a mandatory subject of bargaining; and 3) the change was established without prior notice or an opportunity to bargain. 24 To determine whether a practice exists, the Commission analyzes the combination of facts upon which the alleged practice is predicated, including whether the practice has occurred with regularity over a sufficient period of time so that it is reasonable to expect that the practice will continue. 25 A condition of employment may be found despite sporadic or infrequent activity where a consistent practice that applies to rare circumstances is followed each time the circumstances precipitating the practice recur. 26 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. 27 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. 28 To establish a violation of the Law, an actual change in an existing condition of employment must have occurred, 29 and the change must involve or impact a mandatory subject of bargaining. 30 The employer’s duty to maintain the status quo after a contract expires applies not only to contractual provisions, but also long-standing past practices. 31 The employer, upon the parties’ reaching impasse, may implement changes in terms and conditions of employment which are reasonably comprehended within its pre-impasse proposals. 32 However, in Town of Bellingham, the LRC found that the employer’s change in its health insurance contribution rates constituted an unlawful unilateral change since the parties had not reached impasse after only four meetings, based on such factors as the employer’s regressive bargaining and the parties’ bargaining history. 33 PRACTICE POINTERS One of the most opportune times for an employer to regain lost management rights and to implement constructive changes in department operations may be following the expiration of a collective bargaining agreement. Unfortunately, many contracts have either an “evergreen” clause or a provision which requires the employer to maintain all benefits and keeps the contract in place until a successor is executed. Employers should seek to delete each of the latter two provisions from an existing contract. Certainly they should not be added to agreements of which they are not already a part. Commonwealth of Massachusetts
Page 2 and 3: PREFACE Municipal officials and dep
Page 4 and 5: INTRODUCTION Public safety unions h
Page 6 and 7: Table of Contents ii § 2 Entry-Lev
Page 8 and 9: Table of Contents iv § 8 Other Ben
Page 10 and 11: Management Rights 1-2 management ri
Page 12 and 13: Management Rights 1-4 organized pub
Page 14 and 15: Management Rights 1-6 arbitrate a d
Page 16 and 17: CHAPTER 2 - SCOPE OF ARBITRATION Mu
Page 18 and 19: Scope of Arbitration 2-3 There are
Page 20 and 21: Scope of Arbitration 2-5 Northborou
Page 22 and 23: Scope of Arbitration 2-7 DiSciulo
Page 24 and 25: Scope of Arbitration 2-9 leniency o
Page 26 and 27: Scope of Arbitration 2-11 20 Masach
Page 28 and 29: Subjects of Bargaining 3-2 When a p
Page 30 and 31: Subjects of Bargaining 3-4 § 2 NON
Page 32 and 33: Subjects of Bargaining 3-6 each new
Page 34 and 35: Subjects of Bargaining 3-8 47 Whitm
Page 36 and 37: CHAPTER 4 - “GOOD FAITH” Both t
Page 40 and 41: Good Faith 4-5 When a contract is i
Page 42 and 43: Good Faith 4-7 assignments an inher
Page 44 and 45: Good Faith 4-9 A union's obligation
Page 46 and 47: Good Faith 4-11 employees' terms an
Page 48 and 49: Good Faith 4-13 3) Contractual Waiv
Page 50 and 51: Good Faith 4-15 impasse is reached
Page 52 and 53: Good Faith 4-17 1 Harwich School Co
Page 54 and 55: Good Faith 4-19 59 Commonwealth of
Page 56 and 57: Assignment 5-2 Despite the fact tha
Page 58 and 59: Assignment 5-4 condition of re-issu
Page 60 and 61: CHAPTER 6 - PROMOTIONS The promotio
Page 62 and 63: Promotions 6-3 list is due to expir
Page 64 and 65: CHAPTER 7 - APPOINTMENTS The appoin
Page 66 and 67: Appointments 7-3 providing the unio
Page 68 and 69: Appointments 7-5 entry-level wage o
Page 70 and 71: Appointments 7-7 union requests bar
Page 72 and 73: CHAPTER 8 - BARGAINING UNIT WORK A
Page 74 and 75: Bargaining Unit Work 8-3 private se
Page 76 and 77: Bargaining Unit Work 8-5 § 1 REMED
Page 78 and 79: Bargaining Unit Work 8-7 2) Absence
Page 80 and 81: Bargaining Unit Work 8-9 33 Safeway
Page 82 and 83: Reorganization 9-2 the work is supe
Page 84 and 85: Reorganization 9-4 bargaining unit
Page 86 and 87: Reorganization 9-6 If the union dem
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Reorganization 9-8 41 See Commonwea
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Sick and Injury Leave Rules 10-2 Wh
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Sick and Injury Leave Rules 10-4 §
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Sick and Injury Leave Rules 10-6 wh
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Sick and Injury Leave Rules 10-8 Up
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Sick and Injury Leave Rules 10-10 P
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Sick and Injury Leave Rules 10-12 1
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Light Duty 11-2 leave if they are c
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Light Duty 11-4 § 2 INJURED ON DUT
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Light Duty 11-6 1 Votour v. City of
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Defibrillators 12-2 they affect gre
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CHAPTER 13 - WORKPLACE RULES AND PR
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Workplace Rules and Practices 13-3
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Changing Schedules 14-2 § 1 CONTRA
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Changing Schedules 14-4 legitimate
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CHAPTER 15 - MINIMUM STAFFING The n
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Minimum Staffing 15-3 that “a min
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Minimum Staffing 15-5 1 Chapter 594
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Benefits, Compensation and Leaves 1
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Employee Performance 17-2 The emplo
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Employee Performance 17-4 compellin
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Employee Performance 17-6 37 See se
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APPENDIX A-2 SAMPLE NOTICE FORM (OP
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APPENDIX A-4 SAMPLE NOTICE FORM (OP
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APPENDIX A-6 SAMPLE FORM 5 SAMPLE D
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APPENDIX A-8 6. The employee to be
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APPENDIX A-10 CONSENT I agree that
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APPENDIX A-12 to maintai
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