Management Rights - AELE's Home Page

Appointments 7-3
providing the union with an opportunity to bargain, as a requirement of
continued employment, constituted a prohibited practice. 18
While an employer is also free to create new positions and establish the
hiring criteria for those positions, 19 the new positions may be included in
the bargaining unit. The employer may not, as a means of evading union
representation, eliminate a bargaining unit position and “create” a new
one outside of the unit. 20
PRACTICE POINTERS
In the public safety service, it is essential to evaluate thoroughly all
applicants for employment. The union’s role starts once an individual
begins work. Whatever the municipal employer does by way of
recruitment, background check, evaluation, and testing (including aptitude,
intelligence, medical, drug/alcohol and psychological), is of no lawful
concern to the union.
Employers must be mindful of the requirements of the Americans with
Disabilities Act (ADA) as well as M.G.L. c. 151B when medical and
psychological testing is used. It is necessary that the applicant be given a
“conditional ofer of employment” before such testing is performed. Thus,
if they pass the physical and/or psychological tests, they have the job.
(Psychological testing which is limited to personality and other non-disease
screening may be done before the conditional offer of employment,
however.)
If certain test results have not been received as of the planned date of
appointment, the only way an employer can hire the individual
“conditionaly” is with the consent of both the individual and the union.
In Boston School Committee, the Labor Relations Commission made it clear
that an employer can set any qualification it wishes as a condition of hire,
so long as it is not discriminatory. 21 Nonetheless, there have been a few
cases where a union has challenged an employer’s ability to impose a
certain qualification. Couched in terms of pre-hire conditions, the analysis
in these cases is the same as it would be for qualifications. The LRC’s
decisions regarding pre-hire conditions have concluded consistently that
pre-hire qualifications are an exclusive managerial prerogative which need
not be bargained with a union.
While an arbitrator may void an appointment if it violates a provision in a
collective bargaining agreement, the arbitrator cannot direct that another
individual be appointed. 22
Massachusetts Municipal Police Training Committee