Management Rights - AELE's Home Page

Sick and Injury Leave Rules 10-9
The Labor Relations Commission and the courts are reluctant to find a
waiver of bargaining rights or an outright modification of § 111F in the
absence of clear language in a collective bargaining agreement. The
Massachusetts Appeals Court first addressed the issue of a possible
agreement to supersede § 111F by the language in a collective bargaining
agreement in the case of Rein v. Marshfield. 34 While recognizing the ability
of the parties -- as specified in Chapter 150E § 7(d) -- to do so, the
Supreme Judicial Court confirmed the position the Appeals Court took in
Rein in the SJC's 1989 decision entitled Willis v. Board of Selectmen of
Easton. 35 In that case the court stated, "We are reluctant to construe a
collective bargaining agreement as one which overrides statutory
provisions absent clear language expressing that intent."
The Labor Relations Commission similarly has ruled that it will not find a
waiver without evidence of a "knowing, conscious and unequivocal"
surrender by the union of its rights to bargain. 36 When it comes to
overriding § 111F, even the language of a strong but general Management
Rights clause probably would be insufficient. The Commission has
repeatedly found that vague, generally worded Management Rights
clauses are ineffective to justify unilateral actions by management on a
variety of much less important issues. It is, therefore, logical to conclude
that unless the contract contains language specifying an agreement to
supersede § 111F, neither the Commission nor the courts will find that
the injured on duty statute has been overridden.
PRACTICE POINTERS
The following is a draft Injured on Duty proposal which would radically
alter many of the elements of § 111F. Some parts might be proposed as
impact bargaining items, while others would require regular negotiations.
This is provided only as an example of topics which a municipal employer
might consider including in its contract negotiations proposal. A chief
should not attempt to use it without consulting labor counsel.
SAMPLE INJURED ON DUTY ARTICLE
Only an employee who is injured while responding to a call for service or
providing such service when appropriate or required to do so by
department rules, regulations, policies or procedures may, subject to the
following, be eligible for a leave without loss of pay for the duration of any
resulting disability which precludes such individual from performing his
normal duties or any assignment which the Chief may make which is not
inconsistent with the employee’s training or ability. Employees who wish
to apply for leave without loss of pay may do so by completing an
application form supplied by the Department prior to the end of a shift or
tour of duty on which the injury or illness occurs.
Massachusetts Municipal Police Training Committee