Management Rights - AELE's Home Page

Good Faith 4-10
right. 56 The employer bears the burden of proving that the contract
clearly, unequivocally and specifically authorizes its actions. 57 Where
the parties’ agreement is silent on an issue, it must be shown that the
matter allegedly waived was fully explored and consciously yielded. 58
Where contract language exists but is ambiguous, bargaining history
or the manner in which the parties have implemented the disputed
contract provision are helpful. 59 However, where contract language
contained in a management rights clause is not ambiguous, it is
necessary only to examine the specificity of the clause and to
determine whether the disputed action is within its scope. 60 The
2003 City of Cambridge case found that the management rights
clause authorized the police chief to change the criteria for overtime
and to implement a new form of discipline without providing the
union prior notice and an opportunity to bargain to resolution or
impasse. 61
Notice must be provided to the union far enough in advance of
implementation of the change to afford the union the opportunity to
bargain. 62 Should the union fail promptly and effectively to request
bargaining after receiving proper notice, it waives by inaction its right
to bargain over the proposed change. 63 However, a union's demand
to bargain need not be immediate in order to be timely. 64 How much
time must pass before a union will be found to have waived its right
to bargain will be determined from the facts. 65 Waiver is an
affirmative defense to a charge of unlawful unilateral change. 66
In Holliston School Committee, the Commission decided that the
School Committee's vote in May to increase the length of the school
day the next September was not a fait accompli, but rather a proposal
over which the parties could have bargained. 67 Further, the
Commission determined that the Union had ample opportunity to
bargain between the date Union had actual notice of the impending
change and its implementation. 68 In the 2002 case of Commonwealth
of Massachusetts, notifying the Union in late January 1998 that it
intended to implement a consolidated service model in fourteen (14)
DTA offices between April 1, 1998 and June 1, 1998, and offering to
meet, constituted both actual notice of the impending change and a
reasonable opportunity for the Union to negotiate over the impacts of
the decision to implement this service model prior to
implementation. 69 (Absent justification for a deadline, nine (9) days
between the date of actual notice and the date of the change is
insufficient time to afford a union a meaningful opportunity to
bargain.) Upon receiving this notice, the Union was obligated to
demand negotiations about the impacts of the Commonwealth's
decision to implement the consolidated service delivery model on
Commonwealth of Massachusetts