Management Rights - AELE's Home Page

Good Faith 4-11
employees' terms and conditions of employment, or risk waiving its
right to do so. 70
In Town of Westborough, 71 the Commission reaffirmed that "[a] party
to a collective bargaining agreement need not bargain during the term
of that agreement over subjects that were part of the bargain when
the parties negotiated the agreement." 72 For the Union to prevail in
its argument that the Commonwealth was precluded from
implementing the consolidated service model during the term of the
Alliance agreement absent the Union's consent, the evidence must
demonstrate that the issue was "consciously explored" and
"consciously yielded" during negotiations. 73
There was no evidence that the Union made any proposals about any
mandatory subjects of bargaining directly affected by the
Commonwealth's decision to implement the consolidated service
delivery model in fourteen (14) DTA offices and the Commonwealth
subsequently refused to bargain over these proposals. Further, there
was no evidence that the Union requested additional meetings with
the Commonwealth to offer any proposals or counter-proposals about
the planned implementation of the consolidated service model, or that
the Commonwealth refused to meet at reasonable times and places to
discuss the Union's proposals. Rather, the Union consistently
maintained its position that it was under no obligation to engage in
mid-term contract negotiations over consolidation and failed to make
proposals addressing the mandatory subjects of bargaining
implicated by the Commonwealth's decision. Thus, the Union waived
its right to bargain with the Commonwealth to resolution or impasse
over the impacts of the Commonwealth's decision to implement the
consolidated service delivery model in its DTA offices prior to
implementation. 74
The doctrine of waiver by inaction is not applicable to a situation
where the union is presented with a fait accompli (i.e., done deal). 75
In determining whether a fait accompli exists, the Labor Relations
Commission considers "whether, under all the attendant
circumstances, it can be said that the employer's conduct has
progressed to the point that a demand to bargain would be
fruitless." 76
In a 1986 case involving an increase in the length of the school day,
the Commission dismissed the union's complaint for failure to
demand bargaining in a timely manner. 77 The Holyoke School
Committee sent a letter on August 9 to the Association President who
was on vacation when the letter was sent. The LRC stated that the
union could have protested or demanded bargaining before the
Massachusetts Municipal Police Training Committee