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Good Faith 4-12
School committee's vote on August 16. Moreover, it could have
demanded bargaining after the vote but before the implementation of
the change when school started on September 2.
In a 1982 decision in Scituate School Committee, a LRC Hearing
Officer was faced with the issue of whether the employer's
lengthening of the work day to provide for an unpaid half-hour lunch
period, when such periods were previously provided with pay, was an
unlawful unilateral change. 78 However, the hearing officer dismissed
the complaint after finding that the union failed to object to the
change in a timely manner. It had been notified of the School
Committee's July 23 vote. The change went into effect September 8,
yet the union let that time go by without demanding bargaining.
Even when an employer has not met its bargaining obligations, the
LRC may modify its remedial order if it also finds the union delayed in
demanding bargaining. For example, the Commission found that the
Middlesex County Commissioners failed to bargain in good faith by
cutting off negotiations over the impact of a reduction in force;
however, it ruled that the union's delay in requesting bargaining
foreclosed a status quo ante remedy. 79
Some guidance concerning what is a reasonable period may be
gleaned from the rulings of the Commission in cases where unions
have successfully challenged unilateral changes by municipal
employers. After finding the employer violated the Law, the
Commission generally orders the employer to bargain with the union
provided a demand for bargaining is received within five days of the
union's receipt of an offer to bargain. 80
PRACTICE POINTERS
In an effort to avoid litigating the issue of whether the union waived its
right to bargain by unreasonably delaying its demand to do so,
management could incorporate a reasonable response deadline in its
notice. By inserting the following phrase in any such notice, so long as the
amount of time is not unreasonably short (at least five (5) days except in
urgent/emergency situations), it is likely that the Commission would find a
waiver by the union if it failed to comply with a reasonable deadline:
"Unless the union provides the undersigned with a written request to
negotiate over the proposed change(s) by ____________, it will be presumed
that the union has waived any right it may have to bargain over such
change(s) or the impact of such change(s) on mandatory subjects of
bargaining."
Commonwealth of Massachusetts