Management Rights - AELE's Home Page

Reorganization 9-2
the work is supervisory in nature. 10 In the public sector, however,
employers probably will only be successful if the duties to be transferred
somehow qualify as managerial (not simply supervisory) in nature. 11
Certainly this would not apply to dispatch duties.
The Town of Halifax was guilty of unlawfully transferring bargaining unit
work when it filled a full-time firefighter position with a temporary
replacement firefighter who was not a bargaining unit member. 12
Other examples of unlawful unilateral assignment of bargaining unit work
to non-bargaining unit personnel include:
assigning nursing duties to a special education
paraprofessional 13
assigning laborers’ work to prisoners and welfare recipients 14
creating a new “working supervisor” with regular maintenance
and custodial duties. 15
The City of Fall River was held to have violated Section 5 and derivatively
Section 1 of the Law by refusing to bargain in good faith with the union
over the City's decision to transfer bargaining unit work
(firefighter/dispatchers) to non-bargaining unit personnel (civilians, E-
911, dispatchers located at the police station). 16 The LRC rejected the
City's contention that this was a level of services decision and, therefore,
an exclusive managerial prerogative exempt from decisional bargaining.
The Commission declared the City's decision to transfer fire dispatch
duties historically performed by bargaining unit members to non-unit
personnel constitutes a mandatory subject of bargaining. The
Commission noted that City employees would continue to perform fire
dispatch duties, and when a public employer continues to have the same
work performed, but at a lower cost, the decision to transfer bargaining
unit work to non-unit personnel is not a level of services decision exempt
from collective bargaining, but an economically motivated decision
"particularly suitable to collective bargaining." 17
PRACTICE POINTERS
Municipalities considering transferring dispatch duties to a new E-911
center should read City of Fall River carefully. It is likely that, with certain
adjustments, the decision could amount to a level of services one and,
therefore, be exempt from decisional bargaining. However, impact
bargaining would still be required.
Regardless of whether decisional or impact bargaining was involved, the
employer would still need to provide the union with notice and opportunity
Commonwealth of Massachusetts