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Appointments 7-5 entry-level wage of a bargaining unit position without giving the bargaining representative notice and an opportunity to bargain. Dracut School Committee 30 held that an employer cannot offer an applicant for a bargaining unit position a different pay rate than it is paying present bargaining unit members without offering to bargain (or at least providing the union with notice and an opportunity to bargain.) In that case, the school commitee and the teachers’ association were parties to a colective bargaining agreement which provided that all newly-hired teachers were to be placed at a salary step commensurate with their teaching experience. For more than fifteen years, the school committee capped the step placement of new-hires at Step 5 regardless of their experience. Realizing the difficulty such a cap had on attracting qualified teachers, the Committee unanimously voted to remove the Step 5 cap for new-hires. While the union argued that the school committee could not unilaterally change its past practice without first giving the union an opportunity to bargain over that mandatory subject, the school committee argued that it had three grounds on which to justify its decision. First, it argued that the establishment of an individual’s salary-step level was purely between it and the individual. The school committee argued that since the individual was not yet a bargaining unit member, the union had no right to demand bargaining. Next, the school committee argued that the establishment of step levels was a non-bargainable management right because it involved the establishment of educational policy. Finally, the school committee argued that if it were required to bargain over the step levels given to newhires, it could be impermissibly constrained from hiring the applicant of its choice, which it argued was a management right. Beginning its opinion by stating the general rule that initial wages for a newly-created bargaining unit position are “wages” for bargaining purposes, the LRC then cited a recent case where it held that payments made to employees because of their work performance and length of service did constitute “wages”. 31 Addressing each of the school commitee’s arguments in order, the LRC first found that since one’s step level directly afects his or her “wages”, it was a mandatory subject of bargaining. In deciding as it did, the LRC said: It is true that mere applicants for hire who have not had prior employment within the unit are not employees in the unit. However, it is the bargaining unit position, not the individual applicant, that is the focus of this case. If a bargaining unit is under contract and subject to certain conditions of employment and an Massachusetts Municipal Police Training Committee
Appointments 7-6 employee is hired into a bargaining unit position, the new employee’s wages are governed not only by the existing contract but also any established practice that affects that position. 32 It next concluded that there is a clear distinction between “educational policy” and “terms and conditions of employment”. 33 Salary levels, it said, were not matters of educational policy but are terms and conditions of employment. Turning lastly to the school commitee’s argument that bargaining over step-levels would infringe on its management rights by restricting it from hiring the applicant of its choice, the LRC found that the duty to bargain does not afect the school commitee’s choice of candidates for bargaining unit positions. Moreover, while conceding that the decision to remove the top “step” was done pursuant to the school commitee’s need to atract experienced teachers into the school system, the LRC said it would only uphold the unilateral action if it found great economic necessity. Removing the top step for new hires, said the Commission, was not such an economic necessity. While sympathetic to the school commitee’s needs, it refused to uphold the change because “where the action of an employer is certain to undermine the status of the union, the overall employer’s justification of economic necessity may not serve as a defense”. 34 PRACTICE POINTERS An employer that wishes to create a new position is free to do so. There is no need to discuss with the union whether the position should be created. The qualifications are totally up to the employer. However, the sooner some discussion is started with the union, the smoother the process is likely to flow when it comes to matters which the union is entitled to discuss. One matter deserving attention is whether the new position should be included in an existing bargaining unit, and, if so, which unit. Usually this will not be a difficult decision. However, if management seeks to have a new position excluded from any unit, a CAS Petition is likely to be filed by one or more unions with the LRC. Assuming the employer agrees the new position should be included in an existing bargaining unit, it will be helpful to notify the union of plans to recruit and hire for the position. Showing the union a draft job description and the proposed salary range and qualifications will satisfy management’s obligations to aford the union with notice. Unless the Commonwealth of Massachusetts
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PREFACE Municipal officials and dep
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INTRODUCTION Public safety unions h
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Table of Contents ii § 2 Entry-Lev
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Table of Contents iv § 8 Other Ben
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Management Rights 1-2 management ri
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Management Rights 1-4 organized pub
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Management Rights 1-6 arbitrate a d
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CHAPTER 2 - SCOPE OF ARBITRATION Mu
Page 18 and 19: Scope of Arbitration 2-3 There are
Page 20 and 21: Scope of Arbitration 2-5 Northborou
Page 22 and 23: Scope of Arbitration 2-7 DiSciulo
Page 24 and 25: Scope of Arbitration 2-9 leniency o
Page 26 and 27: Scope of Arbitration 2-11 20 Masach
Page 28 and 29: Subjects of Bargaining 3-2 When a p
Page 30 and 31: Subjects of Bargaining 3-4 § 2 NON
Page 32 and 33: Subjects of Bargaining 3-6 each new
Page 34 and 35: Subjects of Bargaining 3-8 47 Whitm
Page 36 and 37: CHAPTER 4 - “GOOD FAITH” Both t
Page 38 and 39: Good Faith 4-3 A. REFUSAL TO NEGOTI
Page 40 and 41: Good Faith 4-5 When a contract is i
Page 42 and 43: Good Faith 4-7 assignments an inher
Page 44 and 45: Good Faith 4-9 A union's obligation
Page 46 and 47: Good Faith 4-11 employees' terms an
Page 48 and 49: Good Faith 4-13 3) Contractual Waiv
Page 50 and 51: Good Faith 4-15 impasse is reached
Page 52 and 53: Good Faith 4-17 1 Harwich School Co
Page 54 and 55: Good Faith 4-19 59 Commonwealth of
Page 56 and 57: Assignment 5-2 Despite the fact tha
Page 58 and 59: Assignment 5-4 condition of re-issu
Page 60 and 61: CHAPTER 6 - PROMOTIONS The promotio
Page 62 and 63: Promotions 6-3 list is due to expir
Page 64 and 65: CHAPTER 7 - APPOINTMENTS The appoin
Page 66 and 67: Appointments 7-3 providing the unio
Page 70 and 71: Appointments 7-7 union requests bar
Page 72 and 73: CHAPTER 8 - BARGAINING UNIT WORK A
Page 74 and 75: Bargaining Unit Work 8-3 private se
Page 76 and 77: Bargaining Unit Work 8-5 § 1 REMED
Page 78 and 79: Bargaining Unit Work 8-7 2) Absence
Page 80 and 81: Bargaining Unit Work 8-9 33 Safeway
Page 82 and 83: Reorganization 9-2 the work is supe
Page 84 and 85: Reorganization 9-4 bargaining unit
Page 86 and 87: Reorganization 9-6 If the union dem
Page 88 and 89: Reorganization 9-8 41 See Commonwea
Page 90 and 91: Sick and Injury Leave Rules 10-2 Wh
Page 92 and 93: Sick and Injury Leave Rules 10-4 §
Page 94 and 95: Sick and Injury Leave Rules 10-6 wh
Page 96 and 97: Sick and Injury Leave Rules 10-8 Up
Page 98 and 99: Sick and Injury Leave Rules 10-10 P
Page 100 and 101: Sick and Injury Leave Rules 10-12 1
Page 102 and 103: Light Duty 11-2 leave if they are c
Page 104 and 105: Light Duty 11-4 § 2 INJURED ON DUT
Page 106 and 107: Light Duty 11-6 1 Votour v. City of
Page 108 and 109: Defibrillators 12-2 they affect gre
Page 110 and 111: CHAPTER 13 - WORKPLACE RULES AND PR
Page 112 and 113: Workplace Rules and Practices 13-3
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Workplace Rules and Practices 13-9
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Changing Schedules 14-2 § 1 CONTRA
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Changing Schedules 14-4 legitimate
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CHAPTER 15 - MINIMUM STAFFING The n
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Minimum Staffing 15-3 that “a min
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Minimum Staffing 15-5 1 Chapter 594
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Benefits, Compensation and Leaves 1
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Employee Performance 17-2 The emplo
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Employee Performance 17-4 compellin
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Employee Performance 17-6 37 See se
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APPENDIX A-2 SAMPLE NOTICE FORM (OP
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APPENDIX A-4 SAMPLE NOTICE FORM (OP
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APPENDIX A-6 SAMPLE FORM 5 SAMPLE D
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APPENDIX A-8 6. The employee to be
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APPENDIX A-10 CONSENT I agree that
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APPENDIX A-12 to maintai
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