Management Rights - AELE's Home Page

Good Faith 4-9
A union's obligation to demand bargaining regarding a change in
terms and conditions of employment arises when the union has
actual knowledge of the proposed change. 49 To establish a union's
waiver by inaction, an employer must show by a preponderance of the
evidence that the union had actual knowledge or notice of the
proposed action, had a reasonable opportunity to negotiate over the
subject, and unreasonably or inexplicably failed to bargain or request
bargaining. 50 A union's waiver of its statutory right to bargain over a
subject will not be readily inferred. There must be a "clear and
unmistakable" showing that a waiver occurred. 51
Where a public employer raises the affirmative defense of waiver by
inaction, it bears the burden of proving that the union had: 1) actual
knowledge of the proposed change; 2) a reasonable opportunity to
negotiate prior to the employer's implementation of the change; and,
3) unreasonably or inexplicably failed to bargain or to request
bargaining. 52
In a case involving the refusal of the City of Malden for seven weeks to
start negotiating with the firefighters union over the means of
accomplishing a reduction in force after the passage of Proposition 2
1/2, coupled with the City's insistence that all negotiations be
completed in no more than two and one-half weeks, the Commission
ruled that there was no impasse at the time of layoffs. It further
found that there were no circumstances beyond the control of the
City which might justify such action prior to impasse. It therefore
ordered the City to reinstate the unlawfully laid off firefighters with
back pay and to bargain with the union over the layoff impact
issues. 53
In a 1979 case involving the Avon Police Department, the
Commission held that a failure to seek bargaining for three months
after the union became aware of the department's new rule requiring
examination by a town-designated physician, was too long. The
union "was not entitled to sit back, once it was aware of the Town's
intention to institute the examinations by a town-selected physician,
and wait until the policy was implemented before it demanded
bargaining." 54
In a Raynham firefighter case, the union knew or should have known
that a captain’s position would not be filed when the poster was
removed from the board. 55 The union’s leter “raised concerns” but
never demanded bargaining.
Where an employer raises the affirmative defense of contract waiver,
it must show that the union knowingly and unmistakably waived its
Massachusetts Municipal Police Training Committee