Management Rights - AELE's Home Page

Bargaining Unit Work 8-7
2) Absence of Clause
In the absence of a clear and unequivocal provision restricting or
expanding an employer’s right to contract out bargaining unit work,
an employer may contract out such work so long as it does not do so
in an unlawful manner. 44
To lawfully contract out bargaining unit work, an employer must
afford the union an opportunity to bargain over the decision and
impact of the proposed change, and allow the union the opportunity
to possibly make its bargaining unit competitive with other employers
prior to implementing that decision. 45 Lowell was guilty of falling to
provide formal notice to the union before eliminating its Ashes and
Waste Division. 46 Even though it held 18 negotiating sessions with
the union over the City’s Department of Public Works (DPW)
reorganization plan, no actual notice of the elimination of the division
was given to the union. 47
The Commission will determine whether an employer unlawfully
transferred work outside the bargaining unit by asking:
(1) Did the employer transfer bargaining unit work to non-unit
individuals?
(2) Did the transfer of work have an adverse impact on either the
individual employees or on the bargaining unit itself? and
(3) Did the employer give the exclusive bargaining representative
prior notice and an opportunity to bargain over the decision
to transfer the work? 48
By definition, in virtually all contract-out clause cases, the first two
inquiries are answered affirmatively. 49 Turning to the third
question, the Commission analyzes whether the employer gave the
union notice and an opportunity to bargain.
As to what constitutes “notice”, the Commission requires that notice
be actual rather than based upon rumor or mere speculation. 50
With regards to the “opportunity to bargain”, the Commission
requires that the employer be willing and available to bargain over a
proposed change before implementing it. 51 So long as good faith
negotiations are held if the union so requests, management may
implement its proposal upon reaching either agreement or impasse.
Massachusetts Municipal Police Training Committee