Management Rights - AELE's Home Page

CHAPTER 1 - MANAGEMENT
RIGHTS
Prior to the enactment of collective bargaining laws, management had the
right to do almost anything it deemed appropriate to carry on its business.
When municipal employees started to bargain collectively, the contracts
which resulted contained items which improved wages, hours and working
conditions. There appeared to be litle need to insert a “management
rights” clause in the early collective bargaining agreements. Essentially
management retained all rights which it did not explicitly bargain away.
Those contracts which did embody management rights clauses said little
more than that.
Over the years public employee unions grew stronger, even as those in the
private sector continued to loose members and public sympathy. As
wages and hours grew closer to those in the private sector, unions started
to press for other benefits, most notably seniority. This hallmark of the
union movement worked its way into public sector contracts as well.
Bargaining proposals that tied seniority to vacations and step increases
came easily. When public sector unions started asking to have
promotions, for example, be based solely on seniority, municipal officials
and managers balked.
This increased emphasis on benefits tied more to seniority than
performance or qualifications prompted an increasing number of
municipal employers to negotiate management rights articles into their
collective bargaining agreements. Although more detailed than their oneparagraph
predecessors, these expanded articles were rapidly agreed to by
the unions since they were not so expansive as to take away virtually any
benefits the unions had won in prior contracts. They spoke in generalities
of the kinds of things that management could do in conducting the public
enterprise. Rarely were they the subject of controversy rising to the level
of an appellate court decision, for example. The few that did found the
courts continuing the tradition of either “favoring management” or
“maintaining the long-standing public policy” of recognizing certain
maters as inherent management rights, depending on one’s point of view.
In recent years, the Labor Relations Commission (LRC) has stopped
enforcing those traditional management rights clauses. The Commission
finds them too general in nature. In order for an employer to argue that
the union waived certain rights, the Commission requires a clear showing
that there was an awareness of the right, some opportunity if not actual
discussion, and a “meeting of the minds”. The LRC insists that for
Commonwealth of Massachusetts