Management Rights - AELE's Home Page

Sick and Injury Leave Rules 10-2
When faced with a strike or job action (e.g., sick out), an employer may
take reasonable action, including requiring a doctor's certificate and/or
employee's affidavit of illness, as a condition of sick leave eligibility.
PRACTICE POINTERS
A strongly-worded Management Rights clause may constitute a waiver of
the union's rights to bargain over certain rules or changes in sick leave
policy. Unless a contract contains clear language, the LRC is not likely to
find that a union waived its right to demand bargaining over changes in
mandatory subjects of bargaining.
Where a collective bargaining agreement contains language concerning
sick or injury leave, the municipal employer is not free to promulgate a rule
at variance with the contract without the union's permission. Such
changes must ordinarily await regular contract negotiations. However,
where a contract is silent, or does not address the issue to be covered by a
proposed new rule or policy, the employer -- generally acting through its
chief -- may institute such a rule or policy to effectuate a legitimate
municipal objective, so long as the employer satisfies its labor relations
obligations (i.e., notice and opportunity to bargain).
The employer is required to provide the union with notice of the proposed
new rule or policy, and, upon request, enter into good faith bargaining
with the union until reaching either agreement or impasse. 10 Once the
union is on notice of the contemplated change, the union is bound to
make a prompt and effective demand for bargaining or it will be found to
have waived its right to demand bargaining over the proposed change. 11
Only a finding of fait accompli (done deal) relieves the union of the
obligation to demand bargaining over the change. 12 An exception may be
made by the LRC to the fait accompli rule where circumstances beyond the
employer's control required immediate action, thus permitting bargaining
after the fact. 13 In determining whether a fait accompli exists, the
Commission considers "whether, under all the attendant circumstances, it
can be said that the employer's conduct has progressed to the point that a
demand to bargain would be fruitless." 14 An offer by the employer to
bargain after a prohibited unilateral change has been made does not cure
the violation. 15 In such a case, the employer is required to rescind the
offending change and then offer to engage in good faith negotiations upon
demand from the union. 16
A municipal employer is not relieved of its obligation by the mere existence
of a by-law or ordinance governing the subject. If there is a conflict
between an ordinance or by-law and a collective bargaining agreement, the
ordinance or by-law must give way to the collective bargaining
Commonwealth of Massachusetts