Management Rights - AELE's Home Page

CHAPTER 8 - BARGAINING
UNIT WORK
A public employer violates Section 10(a)(5) of the Law when it transfers
work performed by bargaining unit members to non-bargaining unit
personnel without giving its employees' exclusive collective bargaining
representative prior notice and an opportunity to bargain to resolution or
impasse. 1 To determine whether a department may contract out
bargaining unit work, and whether there are bargaining obligations for
doing so, one must look first to the language contained in the collective
bargaining agreement itself. A public employer must bargain with the
union before transferring work traditionally performed by bargaining unit
employees to personnel outside the unit. 2 In order to prove that an
employer unlawfully transferred work outside the bargaining unit, the
union must show:
1. the employer transferred unit work to non-unit personnel;
2. the transfer of work had an adverse impact on either
individual employees or on the bargaining unit itself; and
3. the employer did not provide the union with prior notice of the
decision to transfer the work and opportunity to bargain. 3
The Commission has held consistently that a transfer of bargaining unit
work, even if accompanied by no apparent reduction in bargaining unit
positions, constitutes a detriment to the bargaining unit because it could
result in an eventual elimination of the bargaining unit through gradual
erosion of bargaining unit duties. 4 Similarly, the Commission has held
consistently that losing the opportunity to perform unit work in the future
is a sufficient detriment to the unit to trigger a bargaining obligation. 5 In
a recent case, while the number of bargaining unit members may have
remained the same, the bargaining unit lost a specialized position that
was specifically enumerated in the collective bargaining agreement. 6
Bargaining unit members therefore lost the opportunity to perform that
position, and to earn the stipend associated with that position. These
factors constitute an adverse impact that is sufficient to trigger the
bargaining obligation. 7 The courts have supported these positions. 8 In a
2004 Appeals Court case involving the State Department of Mental
Retardation, the department transferred bargaining unit work from
second-level residential supervisors to non-union program managers when
it allowed managers to directly supervise first-level supervisors in new
four-person group homes; the transfer of bargaining unit work constituted
a detriment to the bargaining unit; and the Department failed to give
Commonwealth of Massachusetts