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Bargaining Unit Work 8-3
private sector rather than performed by bargaining unit personnel.
Similarly, an employer may desire to transfer bargaining unit work to
other municipal employees outside of the bargaining unit.
An employer's decision to transfer bargaining unit work to non-unit
personnel and the impacts of that decision are mandatory subjects of
bargaining that trigger the bargaining obligation defined in School
Committee of Newton. 17 This was the case where the Saugus Police
Department decided to transfer vehicle repair duties to the DPW garage
once the full-time police officer mechanics retires after thirty years on the
job. 18 Even though certain work (transmissions, etc.) had been contracted
out, the LRC found that the “shared work” exception did not apply. The
town was required to restore the position and bargain to agreement or
impasse before transferring out such work.
In a 2002 case involving the State Police Crime Lab, the Labor Relations
Commission found that on-call duty for the purpose of receiving calls from
the DEA to assist in clandestine lab investigations was exclusively
bargaining unit work. 19
In addressing the second element of the Commission's analysis, the
Commonwealth argued that the Union has suffered no adverse impact as
a result of the alleged transfer of work, because the affected chemists
continued to receive on-call pay and overtime associated with responding
to the clandestine lab requests, and because managers did not perform
the duties of the DEA-trained chemists at clandestine labs. A bargaining
unit suffers an adverse impact whenever it loses an opportunity to
perform work in the future. 20 The LRC noted that after the
Commonwealth rescinded the on-call list, the bargaining unit lost the
opportunity to earn on-call pay at the same level as it had prior to the
change. Therefore, the evidence established that the revocation of the list
directly and adversely impacted the bargaining unit's ability to earn oncall
pay in the future.
In addressing the third factor in the transfer of bargaining unit work
analysis, the Commonwealth argued that it had no obligation to bargain
over the alleged transfer of work because the Union contractually waived
its right to bargain, maintaining that the parties already negotiated a
stand-by provision in the parties' collective bargaining agreement. A
contractual waiver must be knowing, conscious, and unequivocal. 21 In
determining whether a union has contractually waived its right to bargain,
the Commission will first examine the language of the contract. 22 The
Commission has consistently held that an employer asserting the
affirmative defense of contract waiver must show that the subject was
consciously considered and that the union knowingly and unmistakably
waived its rights to bargain. 23
Massachusetts Municipal Police Training Committee