Management Rights - AELE's Home Page

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:
[Management 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