Management Rights - AELE's Home Page

Appointments 7-2
applicants for hire, who have had no prior
employment within the bargaining unit in
question, are not employees in the unit. The
exclusive bargaining representative does not
have the right . . . to bargain in behalf of such
applicants. 6
The National Labor Relations Board has held that requiring drug and
alcohol tests of all applicants was outside the scope of bargaining. 7
Similarly, the LRC, in the Boston School Committee case, made it clear that
the employer can use any hiring criteria it wants as a condition of hire, so
long as the criteria employed are not discriminatory. 8 Thus in Boston
School Committee 9 and Town of Lee 10 , the LRC upheld residency
requirements as a precondition to employment.
Nevertheless, when an employer’s hiring decisions impact the terms and
conditions of employment of existing bargaining unit members, the LRC
has allowed the unions to challenge the practice. Challenges to an
employer’s hiring practices generaly involve two types of disputes: 1)
transfer of bargaining unit work to non-bargaining unit members, 11 and 2)
imposing new obligations on applicants which carry over into
employment. 12
The City of Lawrence case encompasses the first type of dispute. 13 There
the employer alleged that its transfer of work (previously held by city
bargaining unit members) to prisoners and welfare recipients was not an
unlawful transfer of bargaining unit work because the transferees were
not “hired” or “employed” by the city. 14 The ALJ rejected this defense,
stating that the employer could not escape an unlawful transfer of
bargaining unit work charge by claiming that the transferees were not
“hired”. 15
The second type of dispute is more common. In City of Haverhill, the
employer imposed a requirement on applicants that they take a
psychological examination, the results of which were not made known
until after the applicant became employed. 16 The Hearing Officer noted
the general rule that an employer’s hiring practices cannot be the subject
of debate or bargaining with the union, but stated that the psychological
testing requirement in Haverhill was more of a “condition for continued
employment” than a “condition of hire”. Thus, “once the employer hires
an applicant, even conditionally, and that person performs work for
wages, the individual has become a bargaining unit member, thus
dissipating the ‘mere applicant’ rationale.” 17 In Haverhill, the “applicants”
had actually been employed for five months at the time they were
terminated based on the results of the psychological examination. The
Hearing Oficer found that the employer’s imposition of the test without
Commonwealth of Massachusetts