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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