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Bargaining Unit Work 8-5 § 1 REMEDY If the LRC concludes that an employer has unilaterally transferred bargaining unit work to non-unit personnel, without first giving the union notice and an opportunity to bargain to resolution or impasse about the decision and the impacts of the decision, a remedial order will issue. 31 The following items are likely to be included in such order: Upon request, bargain in good faith with the union to resolution or impasse concerning the decision to transfer duties to non-union employees. Restore to the bargaining unit the following duties that were transferred to a non-unit employees: . The obligation to restore the foregoing duties to the bargaining unit shall continue until the earliest of the following conditions is met: 1. Mutual agreement is reached with Union relating to the subjects of bargaining set forth in paragraph 2(a) above; 2. Good faith bargaining results in a bona fide impasse 3. The Union fails to request bargaining within fifteen (15) days of this Modified Order; OR 4. The Union subsequently fails to bargain in good faith. 5. Make whole any bargaining unit member who suffered a monetary loss as a result of the Commonwealth’s decision to transfer the duties. The obligation to make employees whole shall continue until the earliest of the enumerated conditions, set forth in paragraph 2(b) are met 6. Post in conspicuous places where employees represented by the Union usually congregate, or where notices are usually posted, and display for a period of thirty (30) days thereafter, the attached Notice to Employees. 7. Notify the Commission within ten (10) days of receipt of this Order of the steps taken to comply with it. § 2 CONTRACT OUT/NON-CONTRACT OUT CLAUSES Whether an employer is restricted from subcontracting out work depends on whether it is expressly barred from doing so in the collective bargaining agreement. 32 In the absence of a contractual prohibition, an employer is free to contract out bargaining unit work so long as it fulfills its mid-term bargaining obligations. A “non-contract out” or “work preservation” clause is a provision contained in a collective bargaining agreement whereby the Massachusetts Municipal Police Training Committee
Bargaining Unit Work 8-6 employer agrees that it will not subcontract bargaining unit work outside the bargaining unit. 33 Alternatively, an employer and its employees may adopt a bargaining agreement provision in which the employer expressly reserves the right to contract out bargaining unit work. 34 Under a “non-contract out” clause, an employer may not contract out services irrespective of whether it is willing to engage in decision or impact bargaining. 35 Conversely, where there exists a contract provision which expressly grants the employer the right to contract out bargaining unit work, the employer may exercise that right without bargaining over its decision to do so. 36 The employer must, however, afford the union an opportunity to bargain over the impact of that decision. 37 1) Waiver The Commission has consistently held that a union waives its right to bargain by inaction if the union: 1) had actual knowledge or notice of the proposed action; 2) had a reasonable opportunity to negotiate about the subject; and 3) had unreasonably or inexplicably failed to bargain or request bargaining. 38 The employer must prove these elements by a preponderance of the evidence, as the Commission does not infer a union's waiver of its statutory right to bargain without a "clear and unmistakable" showing that a waiver occurred. 39 Because “contract out” and “non-contract out” clauses constitute a waiver of a party’s respective rights, the Labor Relations Commission will only enforce them if they are clear and unambiguous. 40 Only where the waiver is reasonably ambiguous will the Commission consider the bargaining history between the parties. 41 With regard to “contract out” provisions, the Commission has most frequently found that the clauses at issue did not sufficiently afford the employer the right to contract out work without having to bargain with the union first. 42 In those cases, the employers unsuccessfully sought to rely on the wording in the management right’s clause to “layof because of lack of work or other legitimate reasons.” Speaking on what does constitute a contractual waiver, the Commission has held that the following clause is sufficiently clear: [<strong>Management</strong> retains the right] to manage the affairs of the Town and to maintain and improve the efficiency of its operation; to determine the methods, means, processes and persons by which operations are to be conducted including the contracting out of work. 43 [Emphasis added.] 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
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Scope of Arbitration 2-3 There are
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Scope of Arbitration 2-5 Northborou
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Scope of Arbitration 2-7 DiSciulo
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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 68 and 69: Appointments 7-5 entry-level wage o
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 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 13-17
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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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