Management Rights - AELE's Home Page

PREFACE 

Municipal officials and department heads have come to recognize 

that few actions they may wish to take or changes they may wish to 

implement can be done without at least some union involvement. In many 

cases, the prospect of protracted negotiations has paralyzed some 

managers. Even when faced with the prospect of trying to implement 

needed improvements, some department heads decide to live with the 

status quo rather than face what appears to be a lengthy battle with the 

union. This can often amount to an abdication of their responsibility to 

the public. In reality, while consultation is often required - and virtually 

always recommended as a good management practice - it is not always 

necessary to reach agreement with the union. In many instances, unless 

constrained by the terms of a collective bargaining agreement, 

management has the right to make changes. The law simply requires that 

management provides the union with notice and the opportunity to 

demand bargaining. If such bargaining is requested, the obligation on 

both sides is to make a good faith effort to reach agreement, keeping an 

open mind, to the point of agreement or impasse. Upon reaching impasse, 

management may implement its pre-impasse position. This need not be an 

extremely protracted endeavor. The goal of this manual is to help 

department heads and other municipal officials recognize what items 

require union involvement and what actions are required in such 

instances. 

This manual is one of a series of MPI publications aimed at 

providing chiefs, managers and municipal officials with a reference guide 

to some of the most pressing issues they face. MPI is the charitable, nonprofit 

research and training affiliate of the Massachusetts Chiefs of Police 

Association, Inc. 

Commonwealth of Massachusetts

Preface 

ii 

This manual has been written by Attorney John M. (Jack) Collins of 

the Law Firm of Collins and Weinberg of Shrewsbury, Massachusetts. 

Jack Collins has served as General Counsel to the Massachusetts Chiefs 

of Police Association and MPI for more than 30 years. He and his firm 

have also served as Town Counsel and/or Special Labor Counsel to 

dozens of cities and towns over the years. Attorney Collins is a frequent 

lecturer across the country on a variety of labor relations, discrimination, 

FLSA and human resources topics. 

Typing and desktop publishing was done by Dawn Thompson. The 

manual’s cover and the accompanying multimedia presentation were 

prepared by graphic artist, Michael J. Collins. Stephanie Lyon was 

responsible for publishing the Breeze version on-line on the MPI website. 

Readers are reminded that this is a resource manual. It is not 

intended as a substitute for consultation with municipal labor counsel. 


INTRODUCTION 

Public safety unions have done a commendable job in advancing 

compensation and benefit levels for their members. In many cases the 

unions were ahead of municipal officials when it came to understanding 

and benefiting from the State’s colective bargaining laws. One result 

has been the steady erosion of management rights. Often trading away 

essential tools a chief or other municipal manager needs to operate 

efficiently, some municipal officials failed to grasp the significance of 

certain “no cost” contract clauses. Unfortunately, eforts to regain such 

squandered rights have proven difficult and expensive. 

The advent of collective bargaining has produced more changes in 

the administration of virtually all municipal departments than probably 

any other legislative action. Few active managers recall a time when 

unions did not play a role in virtually every personnel and organizational 

decision they make. Both management and labor share the goal of 

rendering a high level of service to the public. One of the challenges 

facing municipal managers and officials, however, is how to balance the 

competing needs of enhancing working conditions and delivering 

increased levels of service while living within perpetually tight budgets. 

“Practice Pointers” throughout the manual contain commentary 

which managers and other municipal officials may find helpful, 

especialy when used in conjunction with advice from a municipality’s 

labor counsel. 


TABLE OF CONTENTS 

CHAPTER 1 - MANAGEMENT RIGHTS................................................................. 1-1 

CHAPTER 2 - SCOPE OF ARBITRATION .............................................................. 2-1 

§ 1 Interest Arbitration ....................................................................................... 2-1 

A. Schools ..................................................................................................................................... 2-3 

B. Deputy Sheriffs......................................................................................................................... 2-4 

§ 2 Public Policy ................................................................................................... 2-6 

CHAPTER 3 - SUBJECTS OF BARGAINING ......................................................... 3-1 

§ 1 Mandatory Subjects....................................................................................... 3-1 

A. School Committee .................................................................................................................... 3-3 

§ 2 Non-Mandatory Subjects .............................................................................. 3-4 

§ 3 Improper (Illegal) Subjects ........................................................................... 3-5 

CHAPTER 4 -“GOOD FAITH”.................................................................................. 4-1 

§ 1 Good Faith Requisites.................................................................................... 4-2 

§ 2 Management Violations................................................................................. 4-2 

A. Refusal to Negotiate ................................................................................................................. 4-3 

B. Unilateral Changes ................................................................................................................... 4-3 

C. Remedy for Violation ............................................................................................................. 4-15 

CHAPTER 5 - ASSIGNMENT..................................................................................... 5-1 

CHAPTER 6 - PROMOTIONS.................................................................................... 6-1 

§ 1 Mandatory Subject ........................................................................................ 6-1 

§ 2 Bargaining Obligation ................................................................................... 6-1 

CHAPTER 7 - APPOINTMENTS ............................................................................... 7-1 

§ 1 Hiring Standards............................................................................................ 7-1 


Table of Contents 

ii 

§ 2 Entry-Level Wages......................................................................................... 7-4 

CHAPTER 8 - BARGAINING UNIT WORK ............................................................ 8-1 

§ 1 Remedy............................................................................................................ 8-5 

§ 2 Contract Out/Non-Contract Out Clauses.................................................... 8-5 

CHAPTER 9 - REORGANIZATION.......................................................................... 9-1 

§ 1 Bargaining Unit Work................................................................................... 9-1 

§ 2 Substantial Detriment.................................................................................... 9-3 

§ 3 Shared Work Exception ................................................................................ 9-3 

CHAPTER 10 - SICK AND INJURY LEAVE RULES........................................... 10-1 

§ 1 Mandatory Subject of Bargaining.............................................................. 10-3 

§ 2 Management Options................................................................................... 10-4 

§ 3 Modifying I.O.D. Benefits ........................................................................... 10-8 

§ 4 Involuntary Retirement............................................................................. 10-11 

CHAPTER 11 - LIGHT DUTY .................................................................................. 11-1 

§ 1 Doctor’s Certificates.................................................................................... 11-3 

§ 2 Injured on Duty Situations.......................................................................... 11-4 

CHAPTER 12 - DEFIBRILLATORS........................................................................ 12-1 

§ 1 Equipment, Workload & Safety ................................................................. 12-1 

CHAPTER 13 - WORKPLACE RULES AND PRACTICES................................. 13-1 

§ 1 Hours............................................................................................................. 13-1 

§ 2 Overtime and Paid Details .......................................................................... 13-2 

§ 3 Work Shifts and Schedules ......................................................................... 13-3 

§ 4 Job Descriptions and Work Assignments.................................................. 13-4 

§ 5 Promotion ..................................................................................................... 13-5 

§ 6 Dress and Grooming Regulations............................................................... 13-6 



iii 

§ 7 Residency Requirements ........................................................................... 13-11 

§ 8 Transfers..................................................................................................... 13-12 

§ 9 Weapons...................................................................................................... 13-13 

§ 10 Off-Duty Employment............................................................................... 13-15 

§ 11 Non-Smoking rule ...................................................................................... 13-16 

§ 12 Vacations..................................................................................................... 13-16 

§ 13 Sexual Harassment Policy ......................................................................... 13-17 

§ 14 Shift Swaps ................................................................................................. 13-17 

§ 15 Domestic Violence Policy........................................................................... 13-18 

§ 16 Radio Procedures....................................................................................... 13-19 

§ 17 Personal Cell Phones.................................................................................. 13-19 

CHAPTER 14 - CHANGING SCHEDULES............................................................ 14-1 

§ 1 Contractual Constraints.............................................................................. 14-2 

§ 2 Normal Work-Week Clauses ...................................................................... 14-2 

§ 3 Past Practice Clauses ................................................................................... 14-3 

§ 4 Holiday Schedules ........................................................................................ 14-4 

CHAPTER 15 - MINIMUM STAFFING .................................................................. 15-1 

CHAPTER 16 - BENEFITS, COMPENSATION AND LEAVES .......................... 16-1 

§ 1 Wages ............................................................................................................ 16-1 

§ 2 Meal and Coffee Breaks .............................................................................. 16-1 

§ 3 Holidays and Vacations ............................................................................... 16-2 

§ 4 Leaves of Absence ........................................................................................ 16-2 

§ 5 Take-Home Vehicles .................................................................................... 16-4 

§ 6 Recruit Academy Fees ................................................................................. 16-4 

§ 7 Bicycle Patrols .............................................................................................. 16-7 

Massachusetts Municipal Police Training Committee


iv 

§ 8 Other Benefits............................................................................................... 16-8 

§ 9 Bullet-Resistant Vests .................................................................................. 16-8 

§ 10 Health Insurance.......................................................................................... 16-9 

CHAPTER 17 - EMPLOYEE PERFORMANCE .................................................... 17-1 

APPENDIX.........................................................................................................................1 


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 


Management Rights 1-2 

management rights clauses to be enforceable, they must be far more 

detailed -- preferably containing examples -- than their predecessors. 

PRACTICE POINTERS 

It is important to recognize the possible sources of management rights. 

Some are contained in statutes while others are “inherent” in the nature of 

public administration. Where neither is the case, a municipal employer is 

still free to negotiate for certain rights, just as are the unions when seeking 

benefits. The challenge is to recognize when something is an inherent 

managerial prerogative. In that case, numerous consequences follow. For 

example, certain items need not be discussed even if the union proposes 

them at the bargaining table. Moreover, even when they are discussed, 

management may be free to refuse to include them in any resulting 

contract. Lastly, in certain circumstances, they may not be enforceable 

even when they are included in a collective bargaining agreement. 

In a 2002 Supreme Judicial Court decision involving the Worcester Police 

Department, the court upheld the Labor Relations Commission's ruling 

that the decision to engage police officers in enforcing laws pertaining to 

school attendance implicated the city's ability to set its law enforcement 

priorities, and thus was not subject to bargaining. 1 The city was not 

required to explain its decision, so long as it was a matter of policy. 2 Since 

the city failed (neglected?) to raise an argument on appeal to the SJC 

concerning the Commission's order requiring bargaining over the impact 

of the city's policy decision, the court treated that as a waiver and 

(reluctantly?) upheld that part of the LRC's decision. 3 


The Court's decision in the City of Worcester case contains an extensive 

discussion of management rights. It points out, for example, that setting 

the priorities for the deployment of law enforcement resources is purely a 

matter of policy and not a proper subject for collective bargaining. 

Other examples of exclusive managerial prerogative cited by the SJC in 

City of Worcester include: the decision to reduce staff; having one as 

opposed to two officers assigned to each cruiser; requiring police officers 

suspected of criminal conduct to take a polygraph examination; 

reassigning duties formerly performed by police prosecutors to town 

counsel; and ceasing to require the presence of arresting officers at 

arraignment. While the latter two examples required impact bargaining, 

the court in Worcester hinted that if the city had properly raised the 

argument on appeal, the court might have ruled that no impact bargaining 

was required. 



In its 1977 decision in the leading case of Town of Danvers and Local 

2038, IAFF, the Labor Relations Commission set the tone for municipal 

collective bargaining in Massachusetts on the issue of mandatory subjects 

of bargaining. The following excerpt is informative: 

The public employer, like the private employer, 

must have the flexibility to manage its 

enterprise. Efficiency of governmental 

operations cannot be sacrificed by compelling 

the public employer to submit to the negotiating 

process those core governmental decisions 

which have only a marginal impact on 

employees' terms and conditions of employment. 

The public employer has a greater responsibility 

to all citizens of the community than its 

counterpart in the private sector. The 

government, as employer, must be responsible 

not merely to narrow corporate interests but to 

the overall public interest. 

When management in the public sector gives up 

some if its "prerogatives" . . . it foregoes the 

right to make decisions in the name of all the 

people. When management in the private sector 

loses its unilateral power to act, however, the 

public loses little or nothing because the 

decision-making process is merely transferred 

from one private group to another, rather than 

from public to private. The loss of the power to 

manage unilaterally in the public service is, 

therefore, more serious than the same 

phenomenon in the private sector. Kilber, 

Appropriate Subjects for Bargaining in Local 

Government Labor Relations, 30 Md. L. Rev. 

179, 193 (1970) 

Therefore, those management decisions which 

do not have direct impact on terms and 

conditions of employment must not be 

compelled to be shared with the representatives 

of employees through the collective bargaining 

process. Those decisions must remain within 

the prerogative of the public employer. To 

compel the sharing of core governmental 

decisions grants to certain citizens (i.e., 



organized public employees) an unfair advantage 

in their attempt to influence public policy. 

In the public sector employees already have, as 

citizens, a voice in decision making through 

customary political channels. The purpose of 

collective bargaining is to give them, as 

employees, a larger voice than the ordinary 

citizen. Therefore, the duty to bargain should 

extend only to those decisions where the larger 

voice is appropriate. Summers, Public Employee 

Bargaining: A Political Perspective, 83 Yale L.J. 

1156, 1193 (1970). 

This special access to governmental decisions is 

appropriate only when those decisions directly 

affect terms and conditions of employment. 

The Supreme Judicial Court's 1979 decision involving the Boston School 

Committee echoed the LRC's analysis. 4 The court quoted from Clark, The 

Scope of the Duty to Bargain in Public Employment in Labor Relations Law 

in the Public Sector at 82-83 (A. Knapp, Ed. 1977) as follows: 

"Public policy" . . . may limit the ability of a 

public employer . . . to bind itself to a given 

contractual provision or to delegate to an 

arbitrator the power to bind it. 

The court went on to explain its rationale: 

Underlying this development is the belief that 

unless the bargaining relationship is carefully 

regulated, giving public employees a collective 

power to negotiate labor contracts poses the 

substantial danger of distorting the normal 

political process for patrolling public policy." 

Citing Welling & Winter, The Limits of Collective 

Bargaining in Public Employment, 78 Yale L.J. 

1107 (1969). 

In a decision in which the SJC ruled that the abolition of the position of 

supervisor of music was committed to the exclusive, nondelegable decision 

of the school committee and thus the issue of the propriety of abolition 

should not have been submitted to the arbitrator, the court quoted with 

approval the following from a New York school district case: 



Public policy, whether derived from, and 

whether explicit or implicit in statute or 

decisional law, or in neither, may . . . restrict the 

freedom to arbitrate. Susquehanna Valley Cent. 

School District at Conklin v. Susquehanna Valley 

Teachers Ass'n, 37 N.Y.2d 616-617, 376 

N.Y.S.2d 427, 429, 339 N.E.2d 132, 133 (1975). 5 

The Massachusetts courts have made it clear that -- even if agreement is 

reached and a provision is included in a contract -- there are certain 

matters of inherent managerial prerogative which cannot be bargained 

away. Therefore, a municipal employer is not bound by such provisions, 

even if they are inserted by agreement in a collective bargaining 

agreement. For example, in a case involving the Ayer Police Department, 

the appeals Court found that the decision to appoint police officers was a 

non-delegable managerial prerogative. 6 

There the contract required that the Selectmen reappoint police officers 

unless there was just cause found for not doing so. The court overturned 

the arbitration decision and stated: 

We need not decide whether the parties agreed 

to submit the question of [the police officer's 

reappointment] to arbitration . . . because, even 

if they did so agree, [the Board] would not be 

bound by an agreement to arbitrate its 

[reappointment] decision. 

Arguing that the Appeals Court holding in Ayer should be limited to 

departments organized under G.L. c. 41, § 96, a challenge was made 

concerning the actions of the Northborough Board of Selectmen (where 

G.L. c. 41, § 97A -- the “strong chief law” -- applied) to the Supreme 

Judicial Court. 7 There the Board voted not to reappoint an officer (union 

president) at the expiration of his term of appointment. The court found 

no logic for any distinction focusing on the statutory basis under which a 

department is organized. It reiterated the reasoning of the Ayer decision 

and stated: 

A town may not by agreement abandon a 

nondelegable right of management. Billerica v. 

International Ass'n of Firefighters, Local 1495, 

415 Mass. 692, 694 (1993). Therefore, even if 

the arbitration clause in the present case could 

be interpreted to grant an arbitrator the right to 

decide whether a police officer is entitled to 

reappointment, such an agreement would be 

unlawful and unenforceable. "[A]n agreement to 



arbitrate a dispute which lawfully cannot be the 

subject of arbitration [is] equivalent to the 

absence of a controversy covered by the 

provision for arbitration." Dennis-Yarmouth 

Regional Sch. Comm. v. Dennis Teachers Ass'n, 

372 Mass. 116, 119 (1977). 


Be careful not to include language in a collective bargaining agreement 

that conflicts with a municipal employer’s management rights. This could 

result in expensive and unnecessary arbitration. One particular area of 

concern for Civil Service departments is a provision that notes that “just 

cause” is required for discipline. This may afford employees with an 

election of remedies, viz., the Civil Service Commission or an arbitrator. 



1 City of Worcester v. Labor Relations Commission, 438 Mass. 177, 779 N.E.2d 630 (2002). 

2 Id. 

3 Id. 

4 School Committee of Boston v. Boston Teachers Union, Local 66, American Federation of Teachers (AFL- 

CIO), 375 Mass. 65, 389 N.E.2d 970 (1979) 

5 School Committee of Hanover v. Curry, 343 N.E.2d 144 (1976) 

6 Board of Selectmen of Ayer v. Sullivan, 29 Mass. App. Ct. 931, 558 N.E.2d. 1, review denied, 408 Mass. 

1102, 56 N.E.2d 121 (1989) 

7 Mass. Coalition of Police v. Board of Selectmen of Northborough, 416 Mass. 252, 620 N.E.2d 765 (1993) 


CHAPTER 2 - SCOPE OF 

ARBITRATION 

Municipal managers may be faced with the prospect of arbitration in two 

contexts. The first is at the end of regular collective bargaining contract 

negotiations. The second is often the last step in a contractual grievance 

procedure. 

§ 1 INTEREST ARBITRATION 

When arbitration is involved in an effort to settle an impasse during 

regular collective bargaining negotiations, it is referred to as “interest 

arbitration.” In Massachusets, the Colective Bargaining Law (MGL c. 

150E) only mandates interest arbitration for contractual disputes 

involving either police officers or firefighters. Other bargaining groups may 

include interest arbitration in their collective bargaining contract by 

voluntary agreement with the municipal employer, but as a practical 

matter this is rarely done. By and large, mediation and occasionally factfinding 

are the last formal steps in the impasse resolution process for 

such other bargaining groups. The latter are carried out under the 

auspices of the Massachusetts Board of Conciliation and Arbitration. 

In police and fire negotiations, the Joint Labor-Management Committee 

essentially supervises the process once it takes jurisdiction following a 

petition by one or both parties. After mediation efforts have failed, the 

JLMC will usually order the parties to binding arbitration. (Note: virtually 

all true arbitration is binding. If it were simply a recommendation, it would 

be fact-finding, or in some cases even mediation –where a mediator 

makes a recommendation and asks the parties to submit it to their 

respective constituencies.) 

If mediation efforts are not successful, the JLMC often refers outstanding 

issues to arbitration. The form of arbitration may vary. Occasionally there 

will be a three-person panel, with one (serving as the chair) and one 

representative of management and one of union. Often these persons 

come from the commitee’s membership, with the chair or vice-chair 

serving as the arbitration panel’s chair. Alternatively, a single arbitrator is 

sometimes asked to handle the case. Often a list of private arbitrators is 

provided to each side, with the parties’ ranking determining who the 

arbitrator will be. In both instances, the result is the same. The 

municipality is required to submit the arbitration award to its legislative 

body (Town Meeting, City Council, etc.) for funding. The Board of 


Scope of Arbitration 2-2 

Selectmen or the Mayor is required, in fact, to support the funding of the 

award. 

The statute which established the Joint-Labor Management Committee 

(JLMC) includes a provision specifying what matters may not be the 

subject of arbitration following the breakdown of contract negotiations. 1 

The relevant section states: 

. . . ; provided, however, that the scope of 

arbitration in police matters shall be limited to 

wages, hours and conditions of employment and 

shall not include the following matters of 

inherent managerial policy: the right to appoint, 

promote, assign, and transfer employees; and 

provided, further, that the scope of arbitration in 

firefighter matters shall not include the right to 

appoint and promote employees. Assignments 

shall not be within the scope of arbitration; 

provided, however that the subject matters of 

initial station assignment upon appointment or 

promotion shall be within the scope of 

arbitration. The subject matter of transfer shall 

not be within the scope of arbitration, provided 

however, that the subject matters of relationship 

of seniority to transfers and disciplinary and 

punitive transfers shall be within the scope of 

arbitration. Notwithstanding any other 

provisions of this act to the contrary, no 

municipal employer shall be required to 

negotiate over subjects of minimum staffing of 

shift coverage, with an employee organization 

representing municipal police officers and 

firefighters. Nothing in this section shall be 

construed to include within the scope of 

arbitration any matters not otherwise subject to 

collective bargaining under the provisions of 

chapter one hundred and fifty E of the General 

Laws. 

The Massachusetts courts have recognized consistently that there are a 

number of inherent managerial prerogatives which a municipal employer 

cannot relinquish even by agreement with a union and which an 

arbitrator may not include in an award. In the 1993 case of Town of 

Billerica v. International Association of Firefighters, Local 1495 2 , the 

Supreme Judicial Court made this clear by saying: 



There are certain non-delegable rights of 

management, matters that are not mandatory 

subjects of collective bargaining (G.L. c. 150E, § 

6 [1990 ed]), that a municipality and its agents 

may not abandon by agreement, and that an 

arbitrator may not contravene. 

The determination that a topic involves an inherent managerial 

prerogative is significant in several ways. It presumably means that the 

matter is not a mandatory subject of bargaining. If so, management need 

not discuss the proposal at negotiations. In fact, the union commits a 

prohibited (unfair labor) practice if it insists, at least to the point of 

impasse, on bargaining over a non-mandatory subject of bargaining. In 

other situations, even if the matter is a mandatory subject of bargaining, it 

still may not be a proper subject for arbitration. For example, standards 

of productivity and performance are included in G.L. c. 150E, § 6 as a 

mandatory subject of bargaining. However, the JLMC statute omits this 

topic from the scope of arbitration. Lastly, even where a contract already 

contains a provision purporting to restrict a chief's managerial prerogative, 

e.g., power of assignment, a municipal employer may be able to disregard 

the impermissible restriction and, in any event, can insist that it not be 

included in a successor agreement. 


A municipality is free to discuss certain matters during negotiations 

without waiving its right to refuse to allow an arbitrator to rule on them. 

This does not imply that topics impinging on inherent managerial 

prerogatives are therefore permissive subjects of bargaining. If this were 

the case, management would be bound, at least for the term of the 

contract, by an agreement reached on such matters. Moreover, at any 

point in the negotiations, a municipal employer is free to remove a matter 

of inherent managerial prerogative from discussions. 

It is necessary to insist that the JLMC exclude certain “non-arbitral” topics 

from any referral to arbitration. Unless this is done, virtually any dispute 

is likely to be included in an arbitration award. While it is possible to 

object later, this will result in unnecessary delay, costs and animosity. 

A. SCHOOLS 

In addition to decisions involving police and fire departments, the 

Massachusetts courts have addressed a municipal employer's bargaining 

rights in numerous school committee cases. For example, even though 

the school committee might include in a collective bargaining agreement 



provisions concerning the hiring of substitute teachers to replace regular, 

absent teachers, this is not a provision to which the school committee 

must adhere, if, in its discretion, it determines that -- for educational 

policy reasons -- it should be disregarded. 3 

What we decide in this case should not be 

construed as a requirement that, in the course 

of collective bargaining, a school committee 

must reach an agreement on class size, teaching 

load, or the use of the substitute teachers. A 

school committee is entitled to maintain its own 

position on these subjects as matters of fiscal 

management and educational policy. 

When the parties have agreed to submit a dispute to arbitration, the 

courts will generally enforce that agreement and decline to interfere with 

the arbitration process. 4 In labor disputes between public employers and 

employees, however, where a statute confers upon the public employer a 

particular managerial power, an arbitrator is not permitted to direct the 

employer to exercise that power in a way that interferes with the discretion 

granted to the employer by statute. 5 

B. DEPUTY SHERIFFS 

While the sheriff may not surrender his statutory authority to make 

deputy appointments, the sheriff may enter into a binding agreement to 

follow certain procedures in making the appointments. 6 In a 2005 

Appeals Court case involving the managerial prerogative of the Middlesex 

CountySherif to appoint deputy sherifs, the Court held that the sherif’s 

decision not to appoint a member of the union to position of deputy was a 

non-arbitrable managerial prerogative, and that the collective bargaining 

agreement did not bind the sheriff to particular appointment procedures. 7 

Under G.L. c. 37, § 3, a sheriff is vested with the discretion to appoint 

deputies who have law enforcement powers, and are thus able to perform 

certain functions beyond those that can be exercised by correction officers 

or other employees of the sheriff. 8 A correction officer does not need to be 

a deputy sheriff. The powers of a deputy sheriff are not exercised in 

carrying out the duties of a correction officer. By posting an invitation for 

correction officers to apply for the position of deputy, the sheriff was 

simply offering an opportunity for correction officers to enhance their 

incomes by performing duties outside the scope of their duties as 

correction officers. Thus, the Court explained that the appointment of a 

deputy by the sheriff can be viewed as the equivalent of appointing 

someone to exercise police-type power, and this case is closely analogous 

to cases such as Massachusetts Coalition of Police, Local 165, AFL-CIO v. 



Northborough. 9 (Which involved the right not to reappoint police officers 

when their term of appointment expired.) 

Relying on its claim that the sherif “discriminated” against a correction 

officer, the union argued that this case was controlled by Blue Hills 

Regional Dist. Sch. Comm. v. Flight, 10 which carved out an exception to the 

non-delegability doctrine in cases of constitutionally impermissible 

discrimination. In Blue Hills Regional Dist. Sch.. Comm. v. Flight, an 

arbitrator agreed with a female tenured teacher who claimed that the 

school committee had violated provisions of the CBA that expressly 

addressed procedures for promotions and required appointments to be 

made without regard to gender. The court in that case held the grievance 

was arbitrable, and created an exception to the non-delegability doctrine, 

confirming the arbitrator’s remedy that required the teacher’s promotion 

and stating that “[d]enial of promotion to a public employee because of her 

sex is constitutionally impermissible and violates statutory proscriptions, 

and makes appropriate an order granting the promotion with back pay.” 11 

The Court ruled that the Middlesex case falls outside of the 

impermissible discrimination exception. In Massachusetts Coalition of 

Police, Local 165, AFL-CIO v. Northborough, the court stated in dictum 

that even if a claim of discrimination based on union activity had not 

been waived, an arbitrator could make no lawful award to the grievant 

without conflicting with the town's non-delegable managerial authority to 

reappoint police officers. 12 The correction officer's claim in the Middlesex 

case invokes Article XIII of the CBA, which prohibits discrimination on 

the basis of constitutionally protected categories, such as race and 

gender, as well as union membership. There were no factual allegations 

anywhere in the record that refer to alleged discrimination based upon 

anything other than union membership. The Court found that the 

union's reliance on Article XIII of the CBA was insufficient to trigger the 

exception to the non-delegability doctrine established in Blue Hills 

Regional Dist. Sch. Comm. v. Flight. 13 . 

The Court explained that while it is clear that an arbitrator could not 

require the sheriff to appoint the grievant correction officer or order 

damages that would have the indirect effect of compelling his 

appointment as deputy sheriff, on the facts of this case and the relevant 

CBA provisions, “no [other] lawful remedy could be granted without 

conflicting with the town's non-delegable managerial prerogative.” 14 



§ 2 PUBLIC POLICY 

When parties agree to arbitrate a dispute, courts accord their election 

great weight. The strong public policy favoring arbitration requires a court 

to uphold an arbitrator’s decision even where it is wrong on the facts or 

the law, and whether it is wise or foolish, clear or ambiguous. 15 A court’s 

deference to the parties’ choice of arbitration to resolve their disputes is 

especially pronounced where that choice forms part of a collective 

bargaining agreement. 16 In such cases, the Legislature has severely 

limited the grounds for vacating arbitration awards. 17 But extreme 

deference to the parties’ choice of arbitration does not require a court to 

turn a blind eye to an arbitration decision that itself violates the law. A 

court will not permit an arbitrator to order a party to engage in an action 

that offends strong public policy. 18 

“’[T]he question of public policy is ultimately one for resolution by the 

courts and not by arbitrators.” 19 A court will apply a stringent, three-part 

analysis to establish whether the narrow public policy exception requires 

us to vacate the arbitrator’s decision: 

To meet the criteria for application of the public 

policy exception, the public policy in question 

‘must be wel defined and dominant, and is to be 

ascertained ‘by reference to the laws and legal 

precedents and not from general considerations 

of supposed public interests.’ 20 ‘The public 

policy exception does not address “disfavored 

conduct, in the abstract, but [only] disfavored 

conduct which is integral to the performance of 

employees duties. . .”’ 21 ‘Finaly, we require[ ] a 

showing that the arbitrator’s award reinstating 

the employee violates public policy to such an 

extent that the employee’s conduct would have 

required dismissal.’ 22 

This case ofCity of Boston v. Boston Police Patrolmen’sAssociation, 23 was 

one of those “rare instances” in which an arbitrator’s award must be 

vacated as contrary to “an explicit, wel-defined, and dominant public 

policy.” 24 The arbitrator, chosen by mutual agreement of the Boston 

Police Patrolmen’s Association (association) and the City of Boston (city) 

pursuant to a collective bargaining agreement, required the city to rescind 

its termination of John DiSciullo, a police officer. The arbitrator, 

concluding that DiSciulo, while on duty, had engaged in “egregious” and 

“outrageous” misconduct toward two civilians and that his subsequent 

reports of the incident over a two-year period demonstrated that he was 

“lacking” in both “integrity and trust,” nevertheless determined that 



DiSciulo’s actions warranted a one-year suspension without pay, rather 

than termination. On cross motions for summary judgment, a Superior 

Court judge affirmed the award, as did the Appeals Court. 25 The SJC 

granted the city’s application for further appelate review. The SJC ruled 

that because DiSciulo’s continued employment as a police oficer would 

frustrated strong public policy against the kind of egregious dishonesty 

and abuse of official position in which he was proved to have engaged, it 

vacated the arbitrator’s award. 

In the Boston case, the parties did not disagree that DiSciulo’s 

misconduct, as determined by the arbitrator, satisfied the first two prongs 

of the court’s test. To prevail, the city had to therefore demonstrate that 

public policy required that DiSciulo’s conduct,as found by the arbitrator, 

was grounds for dismissal, and that a lesser sanction would frustrate 

public policy. 26 According to the SJC, “The question to be answered is not 

whether [DiSciulo’s conduct] itself violates public policy, but whether the 

agreement to reinstate him does so.” 27 “If an award is permissible, even if 

not optimal for the furtherance of public policy goals, it must be upheld.” 28 

Given the arbitrator’s findings that DiSciulo had falsely arrested two 

individuals on misdemeanor and felony charges, lied in sworn testimony 

and over a period of two years about his official conduct, and knowingly 

and intentionally squandered the resources of the criminal justice system 

on false pretexts, the court found that an agreement to reinstate DiSciullo 

would ofend public policy. “One of the most important police functions is 

to create and maintain a feeling of security in communities. To that end, 

it is extremely important for the police gain and preserve public trust, 

maintain public confidence, and avoid an abuse of power by law 

enforcement oficials.” 29 “The image presented by police personnel to the 

general public . .‘ also permeates other aspects of the criminal justice 

system and impacts its overal success.’” 30 

The SJC explained that a police officer who uses his or her position of 

authority to make false arrests and to file false charges, and then shrouds 

his or her own misconduct in an extended web of lies and perjured 

testimony, corrodes the public’s confidence in its police. The Court noted 

that there is no lack of positive law expressing the Legislature's strong 

instruction that such individuals not be entrusted with the formidable 

authority of police officers. 31 For example, the state’s Conflict of Interest 

Law provides: "No person who has been convicted of any felony shall be 

appointed as a police officer of a city, town or district." 32 That DiSciullo 

had not been convicted of any felony and that the arbitrator did not credit 

the assault and battery charges against him were, in the Court’s opinion, 

contrary to the association's assertion, beside the point. There was no 

question that DiSciullo lied under oath, in the criminal complaints against 

Rodriguez and Caminero and at the arbitration hearing, if not elsewhere. 



The Court explained that it is the felonious misconduct, not a conviction 

of it, that is determinative. 

For an arbitration award to violate public policy, it need not violate the 

letter of a statute. 33 "Courts' authority to invoke the public policy 

exception is not limited solely to instances where the arbitration award 

itself violates positive law"). As the Court explained, exoneration of some 

felonious conduct did not cleanse or mitigate other felonious conduct. 

DiSciullo committed his serious breaches of the law while on the job and 

presuming to carry out his duties. The Legislature has forbidden persons 

found to have engaged in such conduct from becoming police officers and, 

by implication, from remaining police officers. Here, DiSciullo's 

misconduct could not have been committed but for the authority vested in 

him as a police officer. His actions thus go "to the heart of [his] 

responsibilities." 34 

The Boston court noted that, in addition to the above statutes, the 

Legislature specifically has mandated that commissioners of police of 

Boston take all necessary actions to uphold the probity of officers under 

their command, and where necessary punish misconduct and terminate 

officers' employment. 35 Pursuant to his statutory authority, the 

commissioner had issued clear, explicit regulations against the very 

misconduct in which DiSciullo engaged. 36 The cumulative message of 

these regulations is clear: Police officers themselves must obey the law 

and be truthful in all of their official dealings, or they may face 

termination. 37 

In partial mitigation of DiSciulo’s conduct, the arbitrator noted that he 

had “no history of misconduct of this nature” in his ten years on the police 

force. If anything, DiSciullo's status as an officer with what the arbitrator 

characterized as a "ten-year history [as a police officer] in racially diverse 

areas of the city" makes his conduct more offensive rather than, as the 

association claims, less so. The arbitrator’s other two grounds for 

reinstatement were that two of the most serious charges against DiSciullo 

–assault and battery on Rodriguez and Caminero–had not been proved, 

and that the department had meted out lesser sanctions to others for 

misconduct at least as egregious as DiSciulo’s. That other police oficers 

may have received lesser sanctions for their serious misconduct was not 

persuasive of how this case should be handled. According to the Court, 

each case must be judged on its own facts, and the factual record in those 

cases was not before the SJC. In any event, there was no suggestion that 

the reasons for DiSciulo’s termination were pretexts or motivated by 

improper considerations. Nor did the Court credit the association’s 

argument that the prior dispositions worked an estoppel of the 

department’s termination in this case. As the Court explained, leniency 

toward egregious police misconduct in the past (assuming that such 



leniency occurred) cannot lead a police officer to commit reprehensible 

actions in the expectation that he or she will receive a light punishment. 

The court found additional evidence that DiSciulo’s misconduct requires 

(rather than merely permits) dismissal in the agreement itself. Article VI, § 

5, of the agreement provides that arbitration decisions wil be “final and 

binding”, except for decisions that “amend[ ], ad [ ] to or detract [ ]” from 

the agreement, or that “modif[y] or abridge[ ] the rights and prerogatives 

of municipal management.” Although the agreement itself does not 

specify the “rights and prerogatives” to which it aludes, they must surely 

encompass the commissioner’s statutory obligations to establish and 

enforce disciplinary policies, including the sanction of termination, for 

misconduct that wil raise doubts in the community about a police oficer’s 

evenhanded application of the law and the veracity of his sworn testimony. 

This is not merely a case where an officer fired for feloniously abusing his 

position. The association characterizes DiSciulo’s misconduct as “a onetime 

first ofense that occurred on a single night.” But the arbitrator 

found that DiSciulo’s final two years on the police force had been spent 

carrying out a “charade of innocence” in a “calculated efort to cover his 

tracks.” 

Reported cases from other jurisdictions show that courts consistently have 

refused to enforce arbitration awards reinstating public safety officials who 

have been found to have abused their power illegally and to the detriment 

of those they are entrusted to protect. 38 

The public policy against requiring the reinstatement of police officers who 

have committed felonious misconduct stems from the necessity that the 

criminal justice system appear legitimate to the people it services. People 

will not trust the police –on the street or in court –unless they are 

confident that police officers are genuine in their determination to uphold 

the law. As the city pointed out in its Brief, police legitimacy would be 

damaged severely by reports that the city continued to employ a police 

officer who had illegally abused his power and repeatedly lied about it 

under oath. Indeed, the SJC noted that DiSciulo’s involvement in an 

investigation could prejudice the public against an otherwise flawless 

criminal prosecution. 

Although arbitration decisions are given great deference, they are not 

sacrosanct. Here the SJC noted that it could not say that the strong 

public policy favoring arbitration should trump the strong (and in the 

Court’s view, stronger) public policy, “explicit, wel-defined and 

dominant,” 39 that police officers be truthful and obey the law in the 

performance of their official duties. 



1 Chapter 730 of the Acts of 1977, as amended. 

2 Town of Billerica v. International Association of Firefighters, Local 1495, 415 Mass. 692, 694, 615 

N.E.2d 564, 565 (1993) 

3 Boston Teachers Union, Local 66, American Federation of Teachers (AFL-CIO) v. School Committee of 

Boston, 370 Mass. 455, 350 N.E.2d 707 (1976) 

4 Local no. 1710, Intl. Assn of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417-421, 721 N.E.2d 378 

(1999). 

5 See Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 526-527, 

377 N.E.2d 940 (1978) (where the subject of the proposed arbitration is within the employer’s exclusive 

and nondelegable statutory authority, it is not a proper subject for collective bargaining or arbitration). 

6 See School Comm. of Danvers v. Tyman, 372 Mass. 106, 113, 360 N.E.2d 877 (1977). 

7 Sheriff of Middlesex County v. International Broth. of Correctional Officers, Local R1-193 , 62 

Mass.App.Ct. 830, 821 N.E.2d 512 (2005). 

8 See Tedeschi v. Reardon, 5 F.Supp.2d 40, 42 n.3 (D.Mass. 1998) (noting that appointing as a deputy 

sherif confers “general law enforcement powers” and the corection oficers in Esex County must be 

sworn as deputy sheriffs to be eligible for street detail); Commonwealth v. Howe, 405 Mass. 332, 334, 540 

N.E.2d 677 (1989) (finding that deputy sheriffs are common-law “peace oficers” with the authority to 

make an arrest for a breach of the peace); Commonwealth v. Baez, 42 Mass.App.Ct. 565, 567, 569 n.6, 678 

N.E.2d 1335 (1997) (providing examples of statutes authorizing deputy sheriffs to serve criminal process 

and to make arrests in certain circumstances). Indeed, one of the reasons cited by Cassidy for wanting to be 

appointed as a deputy sheriff was so he could “expand both [his] job duties and [his] earning potential. 

9 Massachusetts Coalition of Police, Local 165, AFL-CIO v. Northborough, 416 Mass. 252, 255, 620 

N.E.2d 765 (1993) (holding that a board of selectmen’s decision not to reappoint a police officer is a 

nondelegable and nonarbitrable managerial prerogative pursuant to G.L. c. 41, § 97A); Selectmen of Ayer v. 

Sullivan, 29 Mas.App.Ct. 931, 932, 558 N.E.2d 1 (1990) (holding nondelegable the right of town’s 

selectmen to appoint police officers under G.L. c. 41, § 96;Boston v. Boston Police Patrolmen’s Asn., Inc. 

41 Mas.App.Ct. 269, 272, 669 N.E.2d 466 (1996) (discusing a broad “zone of managerial authority” 

statutorily reserved to the police commisioner for purpose of “public safety and a discipline police force 

[that] require managerial control over matters such as staffing levels, assignments, uniforms, weapons, 

definition of duties, and deployment of personnel”). 

10 Blue Hills Regional Dist. Sch. Comm. v. Flight, 383 Mass. 642, 644, 421 N.E.2d 755 (1981). 

11 Id. At 644, 421 N.E.2d 755. Se, Art. 1 of the Declaration of Rights of the Mass. Constitution. 

12 Massachusetts Coalition of Police, Local 165, AFL-CIO v. Northborough, 416 Mass. at 257, 620 N.E.2d 

765. 

13 Blue Hills Regional Dist. Sch. Comm. v. Flight, 383 Mass. at 644, 421 N.E.2d 755. 

14 Massachusetts Coalition of Police, Local 165, AFL-CIO v. Northborough, 416 Mass. at 257, 620 N.E.2d 

765. See Higher Educ. Coordinating Council v. Massachusetts Teachers Assn., 423 Mass. 23, 33, 666 

N.E.2d 479 (1996); School Comm. of New Bedford v. New Bedford Educators Assn., 9 Mass.App.Ct. 793, 

801-802, 405 N.E.2d 162 (1980). 

15 See Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007, 553 N.E.2d 1284 

(1990), and cases cited. 

16 School Dist. of Beverly v. Geller, 435 Mass. 223, 229, 755 N.E.2d 1241 (2001) (Cordy, J., concurring). 

17 See G.L. c. 150C, §11. See also School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 

753, 758, 784 N.E.2d 11 (2003) (“Arbitration has long been viewed as a particularly appropriate and 

efective means to resolve labor disputes”). 

18 See Lynn v. Thompson, 435 Mass 54, 61, 754 N.E.2d 54 (2001); Plymouth-Carver Regional Sch. Dist. v. 

J. Farmer & Co., supra. See G.L. c. 150C, § 11(a)(3). (Superior Court judge “shal” vacate arbitration 

award where “the arbitrators exceeded their powers or rendered an award requiring a person to commit an 

act or engage in conduct prohibited by state or federal law”). 

19 Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603, 722 N.E.2d 441 (2000), 

quotingMasachusets Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, 

420 Mass. 13, 16 n. 5, 648 N.E.2d430 (1995). 



20 Masachusets Highway Dep’t. v. American Fed’n of State, County & Mun. Employees, Council 93, 

supra at 16, 648 N.E.2d 430. 

21 Id. At 17, 648 N.E.2d 430. 

22 Bureau of Special Investigations v. Coalition of Pub. Safety, supra at 605, 722 N.E.2d 441 . .” Lynn v. 

Thompson, supra at 62-63, 754 N.E.2d 54. 

23 City of Boston v. Boston Police Patrolmen’s Asociation, 443 Mass. 813, 824 N.E.2d 855, 176 L.R.R.M. 

(BNA) 3265. 

24 Eastern Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 62, 63, 121 S.Ct. 462, 148 

L.Ed.2d 354 (2000). See Lynn v. Thompson, 435 Mass. 54, 754 N.E.2d 54 (2001), cert. denied, 534 U.S. 

1131, 122 S.Ct. 1071, 151 L.Ed.2d 973 (2002). 

25 Boston v. Boston Police Patrolmen’s As’n, 60 Mass.App.Ct. 920, 805 N.E.2d 527 (2004). 

26 Id. At 63, 754 N.E.2d 54. Bureau of Special Investigations v. Coalition of Pub. Safety, supra. 

27 Eastern Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 62-63, 121 S.Ct. 462, 148 

L.Ed.2d 354 (2000). 

28 Masachusets Highway Dep’t v. American Fed’n of State, County & Mun. Employees, Council 93, supra 

at 19, 648 N.E.2d 430. 

29 Clancy v. McCabe, 441 Mass. 311, 328, 805 N.E.2d 484 (2004) (Ireland, J., dissenting). 

30 Civil Serv. Comm’n v. Johnson, 653 N.W.2d 533, 538 (Iowa 2002), quoting Fort Dodge v. Civil Serv. 

Comm’n, 562 N.W.2d 438, 440 (Iowa Ct.App. 1997). 

31 General Laws c. 41, § 96A 

32 See G.L. c. 268, § 1 (criminal offense of perjury, which in this case applies to DiSciullo's swearing to false 

criminal charges and testifying falsely under oath). See also G.L. c. 268, § 6A (criminalizing false police 

reports); G.L. c. 265, § 37 (crime for person acting under color of law to violate or interfere with constitutional 

rights); For the criminal liability of police officers engaging in such felonious conduct, see, e.g., 

Commonwealth v. Luna, 418 Mass. 749, 641 N.E.2d 1050 (1994) (affirming convictions of perjury and filing 

false police reports of officer on account of his false affidavit in support of search warrant.) Cambridge v. 

Civil Serv. Comm'n, 43 Mass.App.Ct. 300, 682 N.E.2d 923 (1997) (upholding decision of personnel 

administrator to authorize bypass of otherwise qualified candidate for police officer position based on her 

prior false testimony **862 under oath and involvement in domestic violence dispute several years prior to 

her eligibility for appointment). 

33 See Eastern Associated Coal Corp. v. United Mine Workers, Dist. 17, supra at 63, 121 S.Ct. 462. 

34 Massachusetts Highway Dep't v. American Fed'n of State, County & Mun. Employees, Council 93, 

supra at 17, 648 N.E.2d 430, quoting United States Postal Serv. v. American Postal Workers Union, 736 

F.2d 822, 823, 825 (1st Cir.1984). Cf. Lynn v. Thompson, supra (reinstatement proper where charges of 

using excessive force not proved); Massachusetts Highway Dep't v. American Fed'n of State, County & 

Mun. Employees, Council 93, supra (arbitration award upheld if employee's harmful conduct not related to 

job activities). 

35 See St.1962, c. 322, § 1, amending St.1906, c. 291, § 11 (police commissioner of Boston "shall have 

cognizance and control of the government, administration, disposition and discipline of the department, and of 

the police force"). 

36 See note 4, supra. 

37 See, e.g., rule 102, § 35 ("An employee of the [d]epartment who commits any criminal act shall be subject 

to disciplinary action up to and including discharge from the [d]epartment. Each case shall be considered on 

its own merits, and the circumstances of each shall be fully reviewed before the final action is taken"). 

38 See, e.g., South Windsor v. South Windsor Police Union, 41 Con. App. 649, 677 A.2d 464 (1996) (police 

officer deliberately revealed identity of confidential informant); Chicago Fire Fighters Union Local No. 2 

v. Chicago, 323 Ill.App.3d 168, 256 Ill. Dec. 332, 751 N.E.2d 1169 (2001) (fire fighters found to have been 

intoxicated while on duty). See also,State v. American Fed’n of State, County & Mun. Employees, Council 

4, Local 387, 252 Conn. 467, 747 A.2d 480 (2000) (correctional officer, while on duty, used State-owned 

telephone to place obscene call to State senator). 

39 Eastern Associated Coal. Crop. V. United Mine Workers, Dist. 17, 531 U.S. 57, 63, 121 S.Ct. 462, 148 

L.Ed.2d 354 (2000). 


CHAPTER 3 - SUBJECTS OF 

BARGAINING 

Most topics that unions and management could be asked to discuss fall 

into one of three categories: mandatory; non-mandatory (permissive); and 

prohibited (illegal.) It is important to be able to recognize into which 

category a subject falls in order for a municipality or manager to respond 

properly. 

§ 1 MANDATORY SUBJECTS 

The state’s Labor Relations Law, MGL c. 150E § 6, provides: 

The employer and the exclusive representative 

shall meet at reasonable times, including 

meetings in advance of the employer's budgetmaking 

process and shall negotiate in good faith 

with respect to wages, hours, standards or 

productivity and performance, and any other 

terms and conditions of employment, including 

without limitation, in the case of teaching 

personnel employed by a school committee, 

class size and workload, but such obligation 

shall not compel either party to agree to a 

proposal or make a concession; provided, 

however, that in no event shall the right of any 

employee to run as a candidate for or to hold 

elective office be deemed to be within the scope 

of negotiation. (emphasis added) 

Generally, if a subject of negotiation is classified as a mandatory subject of 

bargaining, a party commits a prohibited practice if it refuses a demand to 

bargain over that subject. The LRC has found that subjects that have a 

direct effect on the terms and conditions of employment, such as wages 

and hours, 1 health insurance benefits, 2 and job duties and work 

assignments, 3 are mandatory subjects of bargaining. 

The phrase "terms and conditions of employment" in the statute requiring 

school committees to negotiate in good faith on matters concerning wages, 

hours, standards of productivity and performance, and any other terms 

and conditions of employment is general and broad and must be 

determined on a case by case basis. 4 


Subjects of Bargaining 3-2 

When a public sector employer acts under authority of a municipal 

personnel statute, by-law, or regulation, the employer's freedom of action 

is always subject to collective bargaining in relation to mandatory 

subjects, including wages and terms and conditions of employment.5 

The following have also been found by the Commission to be mandatory 

subjects of bargaining: 

wages and hours, 6 

initial wages for new positions, 7 

medical library hours, 8 

drug testing or screening, 9 or instituting a new drug policy, 10 

assigning work to non bargaining unit personnel, 11 

work schedules, generally, 12 and for police detectives, 13 

pay day schedules, 14 

certain fringe benefits, such as reduced work schedules on 

holidays, 15 and health and welfare trust fund 

contributions, 16 

promotional procedures, 17 

safety issues, 18 

work load, 19 

productivity issues, 20 

allotments of gasoline, 21 

regularly scheduled overtime, 22 

changes in scheduled overtime, 23 

class size, 24 

use of psychological testing in hiring, 25 

contributions to health and welfare trust funds, 26 

selection of health insurance plans, 27 as well as health 

insurance benefits and premiums generally, 28 

percentage of group insurance contributions, 29 

compensation for added duties, 30 

overtime pay, 31 

granting leave, 32 

seniority, 33 

grooming standards, 34 

on-call status, 35 

time for cashing checks on duty, 36 

residency requirements, 37 

physical exams by a municipality’s doctor for disability 

leave, 38 

performance evaluation standards, 39 

copying charges for union requested information, 40 

scope of bargaining unit work, 41 


Mandatory Subjects of Bargaining 3-3 

patent rights for inventions, 42 

transaction of union business during work hours, 43 

penalty for not paying agency service fee, 44 

agency service fee, 45 

pay check deductions, 46 

attendance at professional meetings 47 

paid injury leave criteria, 48 

wage re-opener clause, 49 

number of firefighters on a piece of equipment when 

responding to alarm if safety issue involved, 50 

impact of non-bargaining unit employees on work load and 

working conditions, 51 

grievance procedure administration, 52 

outside employment restrictions, 53 

reduction of force impacts, 54 

non-active work time use, 55 

smoking, 56 

use of seat belts, 57 

sick leave bank, 58 

contracting out bargaining unit work, 59 

parking rates (and free parking), 60 

holding employees accountable for issued equipment, 61 and 

use of defibrillators. 62 

A. SCHOOL COMMITTEE 

Chapter 71, §§ 37 and 68 conferring on school committee exclusive 

general authority over operation and maintenance of public schools did 

not preclude committee from first being required to bargain with union 

over its decision to reduce level of janitorial services by layoffs or 

concerning impact of a reduction in force by layoffs. 63 The decision to 

reduce level of janitorial services was an exclusive school committee 

prerogative, but means of achieving a reduction in force, by layoffs or 

otherwise, and impact of that decision on terms and conditions of 

employment were matters as to which there was a duty to bargain with 

exclusive representative of those employees. 64 The timing of any decision 

by the school committee to lay off janitorial employees, the number of 

employees to lay off, and which employees to lay off were mandatory 

subjects of bargaining with the union representing those employees. 65 A 

provision of a city charter authorizing the school committee to discharge 

employees at its pleasure did not operate to preclude the committee from 

being required to bargain with the union over its decision to reduce the 

level of janitorial services by layoffs or concerning the impact of a 

reduction in force by layoffs. 66 



§ 2 NON-MANDATORY SUBJECTS 

Non-mandatory subjects of bargaining, according to the LRC, are those 

which involve core governmental decisions, such as the reduction of 

nonscheduled overtime opportunities, 67 the decision to abolish or create 

positions, 68 and wage parity clauses. 69 Other non-mandatory subjects of 

bargaining include: 

the decision to hire additional employees to perform unit 

work; 70 

school curriculum decisions; 71 

the decision to place an article on the town warrant seeking 

to rescind a local option law not enumerated in Section 7(d) 

of M.G.L. c. 150E; 72 

the decision to limit the number of bargaining unit 

employees who appear at arraignments; 73 

loss of ad hoc or unscheduled overtime opportunities; 74 

the decision to reassign district court prosecutor's duties 

from police officers to town counsel; 75 

decision to reorganize; 76 

decision to abolish or create positions; 77 

decision of employer to conform its method of calculating 

retirement benefits to the requirements of M.G.L. c.32; 78 

decision to discontinue providing private police details at 

liquor service establishments; 79 

the decision to use polygraph examination in the 

investigation of criminal activity by police officers; 80 

wage parity clauses; 81 

minimum manning per shift; 82 

minimum manning per piece of fire apparatus while 

responding to mutual aid calls where there is no safety 

issue; 83 

terms of employment which will apply to individuals after 

they leave the bargaining unit and become members of 

another unit; 84 

decision to discontinue the prior practice of allowing 

employees to choose the effective date of their retirement and 

to receive a lump sum payment upon retirement instead of 

accrued unused vacation because the decision was made by 

an independent third party. However, the City must bargain 

over the impacts of that decision. 85 

decision to enter into a Consent Order settling a matter 

before the Massachusetts Commission Against 

Discrimination (MCAD); however, an employer is obligated to 



bargain with the Union over the impact of the Consent Order 

on terms and conditions of employment. 86 

A party also commits a prohibited practice if it insists to the point of 

impasse on bargaining over a non-mandatory subject of bargaining. 87 

§ 3 IMPROPER (ILLEGAL) SUBJECTS 

Ilegal (or “improper” by the SJC definition) subjects of bargaining may not 

be the subject of an agreement between the parties. In general, the 

parties may not incorporate a provision in a collective bargaining 

agreement which conflicts with a statute. The exceptions to that rule are 

contained in M.G.L. c. 150E § 7(d), which specifies that parties may 

contract around certain enumerated statutes through a collective 

bargaining agreement. 88 Aside from these exceptions, a party commits a 

prohibited practice if it persists in requesting bargaining over an illegal or 

improper subject of bargaining. An employer may not, for example, 

suggest a provision which would exempt police oficers in a “civil service” 

department from the civil service statutes. On the other hand, a union 

may not demand that employees be allowed the power to appoint new 

firefighters. 89 Further, even if one of the parties agreed to a contractual 

provision involving an illegal subject of bargaining, the provision would 

not be enforceable. 90 

There is no obligation to engage in collective bargaining as to matters 

controlled entirely by statute. 91 For example, the Town of North Attleboro 

was not required to negotiate before refusing the firefighter union's 

request to increase the dues of certain employees to cover their cost of a 

union-sponsored dental insurance plan. 92 M.G.L. c.180, §17J controls the 

subject and precludes a municipality from making payroll deductions for 

such dental plans unless the plan was being offered "in conjunction with 

the employee organization." 

Ordinarily, a public employer has no right to inquire of a union what it 

does with its union dues. 93 However, in North Attleboro, where the "dues" 

deductions were a guise for circumventing c.180, §17J, and the town 

knew it, the town had a right to refuse to participate. 94 


One of the most common and most difficult-to-reverse mistakes a municipal 

employer makes is to include non-mandatory subjects in a collective 

bargaining agreement. Once an article makes its way into a contract, it is 

extremely difficult and often very expensive to remove it. Before starting 



each new round of negotiations, an analysis should be made of the 

existing agreement as wel as the union’s proposals. Municipalities that 

conduct negotiations without labor counsel are especially vulnerable to 

mistakes in this area. 

Chiefs should insist that the municipal negotiator not agree even to discuss 

non-mandatory subjects. Despite loud protests and threats of complaints 

over “bargaining in bad faith,” management should stand strong. It is 

clear that if the law were in the reverse, no union would make the same 

mistakes that so many municipal employers have in this regard. 



1 

Medford School Committee, 1 MLC 1250 (1975). 

2 

Board of Regents of Higher Education, 19 MLC 1069 (1992). 

3 

Town of Danvers, 3 MLC 1559 (1977). 

4 School Committee of Newton v. Newton School Custodians Ass'n, Local 454, SEIU, 438 Mass. 739, 784 

N.E.2d 598 (2003) . 

5 City of Lynn v. Labor Relations Com'n, 43 Mass.App.Ct. 172, 681 N.E.2d 1234 (1997). 

6 M.G.L. c. 150E, § 6 

7 Melrose School Committee, 3 MLC 1302 (1976) 

8 City of Boston, 9 MLC 1021 (1982). 

9 

Town of Fairhaven, 20 MLC 1343 (1994). 

10 

City of Fall River, 20 MLC 1352 (1994). 

11 Town of Andover, 3 MLC 1710 (1977). 

12 

Mass. Comm. of Admin., 9 MLC 1001 (1982). 

13 

Town of North Adams, 21 MLC 1646 (1995). 

14 Lawrence School Committee, 3 MLC 1304 (1976). 

15 

City of Everett, 22 MLC 1275 (1995). 

16 

Mass. Comm. of, Secretary of Admin. and Finance, 19 MLC 1069 (1992). 

17 Town of Danvers, 3 MLC 1559 (1977). 

18 

Town of Shrewsbury, 14 MLC 1309 (1987) (requiring seat belts to be worn by police officers); Whitman 

Hanson Regional School Comm., 10 MLC 1283 (1984). But, c.f., City of Melrose, 22 MLC 1209 (1995) 

(reducing number of firefighters utilized per apparatus was not a mandatory subject because it did not 

affect safety or workload). 

19 Medford School Committee, 1 MLC 1250 (1975); City of Worcester, 25 MLC 169 (1999). 

20 

Mass. Comm. of, Comm. of Admin. and Finance, 14 MLC 1719 (1988). 

21 Everett Housing Authority, 9 MLC 1263 (1982). 

22 City of Peabody, 9 MLC 1447 (1982). 

23 

Town of Tewksbury, 19 MLC 1189 (1992). 

24 Peabody School Committee, 13 MLC 1313 (1986). 

25 

City of Haverhill, 16 MLC 1077 (1989). 

26 Commonwealth of Massachusetts, 19 MLC 1069 (1992). 

27 

Town of Milton, 16 MLC 1725 (1990). 

28 

City of Revere, 18 MLC 1179 (1991); Board of Regents of Higher Education, 19 MLC 1248 (1992). 

29 Medford School Committee, 4 MLC 1450 (1977),af’d sub. nom. School Commitee of Medford v. Labor 

Relations Commission, 38 Mass. 932 (1980). 

30 

Lawrence School Committee, 3 MLC 1304 (1976). 

31 

City of Peabody, 9 MLC 1447 (1977). 


33 

Medford School Committee, 1 MLC 1250 (1975). 

34 Town of Dracut, 7 MLC 1342 (1980). 

35 

Wakefield Municipal Light Department, 8 MLC 1838 (1981). 

36 Norwood School Committee, 4 MLC 1751 (1978). 

37 

Boston School Committee, 3 MLC 1630 (1977).; (se also, Town of Lee v. Labor Relations Com'n, 21 

Mass.App.Ct. 166, 485 N.E.2d 971 (1985).) 

38 Town of Avon, 6 MLC 1390 (1979). 

39 

Town of Wayland, 5 MLC 1738 (1979). 


41 

Town of Andover, 3 MLC 1710 (1977). 

42 Board of Regents, 10 MLC 1107 (1983). 

43 

Town of Marblehead, 1 MLC 1140 (1975). 

44 Whittier Regional School Committee, 13 MLC 1325 (1986),af’d sub. nom. Whittier Regional School 

Committee v. Labor Relations Commission, 401 Mass. 560 (1988). 

45 

Mass. Board of Regents of Higher Education, 10 MLC 1048 (1984). 




47 

Whitman Hanson Regional School Committee, 10 MLC 1283 (1984). 

48 City of Springfield, 12 MLC 1001 (1985). 

49 Medford School Committee, 3 MLC 1413 (1977). 

50 City of Newton, 4 MLC 1282 (1977); Town of Bridgewater, 12 MLC 1612 (1986). 



53 City of Pittsfield, 4 MLC 1905 (1978); Board of Trustees, University of Massachusetts, 7 MLC 1577 

(1980). 

54 Newton School Committee, 5 MLC 1061 (1978),af’d sub. nom. School Commitee of Newton v. Labor 

Relations Commission, 388 Mass. 557 (1983). 

55 City of Everett, 2 MLC 1471 (1976); Town of Lexington, 22 MLC 1676 (1996). 

56 Abington School Committee, 21 MLC 1630 (1995); Town of Lexington, 22 MLC 1676 (1996). 

57 Town of Shrewsbury, 14 MLC 1664 (1988). 


59 City of Boston, 7 MLC 1775 (1981); Franklin School Committee, 6 MLC 1297 (1979). 

60 Board of Trustees of the University of Massachusetts, 21 MLC 1995 (1995); Commonwealth of 

Massachusetts, 27 MLC 11 (2000). 

61 New Bedford Housing Authority, 27 MLC 21 (2000). 

62 

63 School Committee of Newton v. Labor Relations Com'n, 388 Mass. 557, 447 N.E.2d 1201 (1983). 

64 Id. 

65 Id. 

66 Id. 

67 

Town of West Bridgewater, 10 MLC 1040 (1983). 

68 

School Committee of Braintree v. Raymond, 369 Mass. 689 (1976). 

69 

City of Cambridge, 4 MLC 1447 (1977). 

70 

Town of Andover, 3 MLC 1710 (1977). 

71 Groton School Committee, 1 MLC 1224 (1974). 

72 Weymouth School Committee, 9 MLC 1091 (1982),af’d. sub. nom. NationalAssociation of Government 

Employees v. Labor Relations Commission, 17 Mass. App. Ct. 542 (1984). 

73 Town of West Bridgewater, 10 MLC 1040 (1983), aff'd sub nom. West Bridgewater Police Association v. 

Labor Relations Commission, 18 Mass. App. Ct. 550 (1984). 

74 Town of West Bridgewater, supra. (reverses City of Everett, 7 MLC 1012 (1980) and City of Lowell, 6 M 

LC 1173 (1979)); see, also, Town of Billerica, 8 MLC 1957 (1982) and Town of Dracut, 9 MLC 1702 

(1983); compare City of Peabody, 9 MLC 1447 (1982) (regularly scheduled overtime equivalent to a wage 

item). 

75 Town of Burlington v. Labor Relations Commission, 390 Mass. 157 (1983). 

76 Cambridge School Committee, 7 MLC 1026 (1980) 

77 School Committee of Braintree v. Raymond, 369 Mass. 689 (1976); School Committee of Hanover v. 

Curry, 369 Mass. 683 (1976). 


79 Town of Dennis, 12 MLC 1027 (1985); City of Westfield, 12 MLC 1036 (1985). 

80 Town of Ayer, 9 MLC 1376 (1982),af’d. sub nom. Local 346, IBPO v. Labor Relations Commision, 

391 Mass. 429 (1984) 

81 City of Cambridge, 4 MLC 1447 (1977). 

82 Town of Danvers, 3 MLC 1559 (1977). 

83 Town of Reading, 9 MLC 1730 (1983). 

84 Chelmsford School Committee, 8 MLC 1515 (1981). 

85 City of Malden, 20 MLC 1400 (1994). 

86 Town of Dedham, 21 MLC 1011 (1994). 

87 

This rule was adopted in Massachusetts from the NLRB position on the subject. See, NLRB v. Wooster 

Division of Borg-Warner Corp ., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). 

88 

See Appendix under § 7(d) for a complete listing of the statutes which may be contravened by collective 

bargaining agreement. The most notable exception is that the injured on duty statute (c. 41 § 111(f)) may 

be contracted around. 



89 

The power to appoint would involve an inherent managerial prerogative which a public employer may 

not abandon by agreement, because allowing public employers to contract away these rights would be 

contrary to public policy. The subject of managerial prerogatives and rights will be further examined in the 

chapter on Management Rights. 

90 

See School Committee of Springfield v. Springfield Administrators’ Asociation, 36 Mass. App. Ct. 916 

(1994) (holding that School Committee could not bargain away its statutory authority of appointment and 

thus could not be bound by a collective bargaining provision for binding seniority preference). 

91 Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 183, 681 N.E.2d 1234 (1997). 

92 Town of North Attleboro v. Labor Relations Commission, 56 Mass. App. Ct. 635, 779 N.E.2d 654 (2002). 

93 Town of North Attleboro v. Labor Relations Commission, supra. 

94 Id. 


CHAPTER 4 - “GOOD FAITH” 

Both the federal and state approach to defining the term “good faith” in 

the bargaining context involve looking at the totality of the parties’ 

conduct. 1 The standard is a subjective one; in essence, a court or agency 

attempts to gauge the state of mind of the parties. As the Supreme 

Judicial Court stated in School Committee of Newton v. Labor Relations 

Commission: 

The duty to bargain under G.L. c. 150E § 6 is a 

duty to meet and negotiate and to do so in good 

faith. Neither party is compelled, however, to 

agree to a proposal or to make a concession. 

“Good faith” implies an open and fair mind as 

well as a sincere effort to reach common ground. 

The quality of the negotiations is evaluated by 

the totality of the conduct. 2 

The “totality of conduct” standard includes conduct at the bargaining 

table as well as conduct occurring away from it. Hostility toward the 

union is evidence of bad faith, but, standing alone, union animosity is not 

sufficient to prove a charge of bad faith. The LRC has held, however, that 

negotiations “which are generaly conducted in god faith can be tainted 

by the absence of good faith in a single aspect of those negotiations. This 

is especially true when the offensive conduct is central to the 

negotiations.” 3 

There are two main facets of the good faith requirement. First, the parties 

are required to go through the required procedures or “externals” of 

bargaining, i.e. they must arrange meeting times, attend bargaining 

sessions, appoint negotiators, etc. Second, the parties must possess a 

bona fide (good faith) intention to reach an agreement. 4 As the LRC 

indicated in the County of Norfolk case, “The parties must approach the 

table with an open mind, seeking an agreement which is fair and mutually 

satisfactory.” 5 

Refusal of party to ratify a labor agreement, otherwise fully bargained, by 

executing it amounts to breach of the duty to bargain collectively in good 

faith, and same holds true though duty is cast by statute on public rather 

than private employer. 6 

The duty to bargain is a duty to meet and negotiate and to do so in good 

faith, but neither party is compelled to agree to a proposal or to make a 


Good Faith 4-2 

concession, since good faith implies an open and fair mind as well as a 

sincere effort to reach a common ground, and quality of negotiations is 

evaluated by totality of conduct. 7 

An employer has a duty to bargain in good faith regarding a change of a 

mandatory subject prior to implementing that change. 8 

§ 1 GOOD FAITH REQUISITES 

The duty to bargain is a duty to meet and negotiate and to do so in good 

faith; neither party is compelled, however, to agree to a proposal or to 

make a concession. 9 

Fundamentally, neither management nor labor may refuse to bargain over 

a mandatory subject of bargaining. 10 Beyond this requirement, the parties 

to a labor negotiation have several additional duties which are discussed 

below. There is a diference between “hard” bargaining and bad faith 

bargaining. The good faith requirement was not intended to completely tie 

the hands of the parties or to prevent a party from aggressively advocating 

its position. 

The term "good faith" implies an open and fair mind as well as a sincere 

effort to reach a common ground. 11 Indeed, the very concept of collective 

bargaining presupposes a desire to reach ultimate agreement. 12 While 

such an obligation does not compel either party to agree to a proposal or 

make a concession, it does require that each party enter into discussions 

with an open and fair mind, have a sincere purpose to find a basis of 

agreement and make reasonable efforts to compromise their differences. 13 

The employer is obliged to make some reasonable effort in some direction 

to compromise differences with the Union if the good faith requirement 

imposes any substantial obligation at all. Agreement by way of 

compromise cannot be expected unless the one rejecting a claim or 

demand is willing to make a counter suggestion or proposal. 14 

§ 2 MANAGEMENT VIOLATIONS 

Aside from the good faith requisites applicable to both parties, there are a 

number of party-specific duties. Public employers, for example, have a 

variety of obligations they must fulfill to satisfy the Labor Relations 

Commission (LRC’s) definition of bargaining in good faith. 



A. REFUSAL TO NEGOTIATE 

While neither labor nor management can refuse to negotiate after a 

request to bargain has been received from the other party, most frequently 

it is the employer who is charged with refusal to bargain. A public 

employer can be charged with refusing to bargain by directly or explicitly 

turning down a union’s specific request to bargain, or by acting in a 

manner that demonstrates that the employer is avoiding the duty to 

bargain. 15 The public employer has an obligation to bargain with a union 

which is approved by a majority vote of the employees, or which has been 

voluntarily recognized by the employer. 16 


Unions often try to bully management into making a concession, claiming 

(incorrectly) that good faith requires it. This tactic should be resisted. 

Often, there is a fine line between “hard” bargaining and a refusal to 

bargain. The Law does not require that either party agree to a proposal or 

make a concession, but neither party can absolutely refuse to discuss a 

mandatory subject of bargaining. Thus, an employer may propose a 0% 

wage increase for economic or other reasons, but may not entirely refuse to 

discuss wages. 17 Further, a union may not refuse to discuss an 

employer’s proposed “take away” provisions if they involve a mandatory 

subject of bargaining. 18 A public employer can freely advance 0% wage 

increases, take away items, and other hard bargaining positions, as long 

as it is not presented as a “take it or leave it” proposition. 19 A party may 

be guilty of surface bargaining if it rejects the other side’s proposals, while 

tendering its own, without attempting to reconcile the two. 20 

B. UNILATERAL CHANGES 21 

A public employer violates Sections 10(a)(5) and (1) of the Law when it 

implements a change in a mandatory subject of bargaining without first 

providing the employees' exclusive collective bargaining representative with 

prior notice and an opportunity to bargain to resolution or impasse. 22 The 

duty to bargain extends to both conditions of employment that are established 

through past practice as well as conditions of employment that are 

established through a collective bargaining agreement. 23 

To establish a unilateral change violation, the charging party must show 

that: 

1) the employer altered an existing practice or instituted a new 

one; 



2) the change affected a mandatory subject of bargaining; and 

3) the change was established without prior notice or an 

opportunity to bargain. 24 

To determine whether a practice exists, the Commission analyzes the 

combination of facts upon which the alleged practice is predicated, 

including whether the practice has occurred with regularity over a 

sufficient period of time so that it is reasonable to expect that the practice 

will continue. 25 A condition of employment may be found despite sporadic 

or infrequent activity where a consistent practice that applies to 

rare circumstances is followed each time the circumstances precipitating 

the practice recur. 26 

When a collective bargaining agreement expires, an employer is not free 

unilaterally to change wages, hours, or other working conditions without 

at least providing the union notice and, if requested, engaging in good 

faith negotiation. 27 In Commonwealth of Massachusetts, the LRC found 

that the expiration of the contract and the change of union did not relieve 

the employer of its continuing duty to contribute on the employees’ behalf 

to the health and welfare trust fund established under the contract. 28 To 

establish a violation of the Law, an actual change in an existing condition 

of employment must have occurred, 29 and the change must involve or 

impact a mandatory subject of bargaining. 30 The employer’s duty to 

maintain the status quo after a contract expires applies not only to 

contractual provisions, but also long-standing past practices. 31 

The employer, upon the parties’ reaching impasse, may implement 

changes in terms and conditions of employment which are reasonably 

comprehended within its pre-impasse proposals. 32 However, in Town of 

Bellingham, the LRC found that the employer’s change in its health 

insurance contribution rates constituted an unlawful unilateral change 

since the parties had not reached impasse after only four meetings, based 

on such factors as the employer’s regressive bargaining and the parties’ 

bargaining history. 33 


One of the most opportune times for an employer to regain lost 

management rights and to implement constructive changes in department 

operations may be following the expiration of a collective bargaining 

agreement. Unfortunately, many contracts have either an “evergreen” 

clause or a provision which requires the employer to maintain all benefits 

and keeps the contract in place until a successor is executed. Employers 

should seek to delete each of the latter two provisions from an existing 

contract. Certainly they should not be added to agreements of which they 

are not already a part. 



When a contract is in effect and negotiations are not in progress, a chief is 

free to propose changing a past practice in a way which would not violate 

the agreement. Providing the union with notice of the proposed change 

and affording the union the opportunity to request bargaining is required. 

If bargaining is demanded, good faith negotiations must continue until 

agreement or impasse is reached. In the latter case, the chief is free to 

implement his/her pre-impasse position. 

Some labor attorneys interpret c.150E, §9 as precluding any changes to 

police and fire contracts after they expire, even in the absence of an 

“evergreen clause”. 

The SJC's decision in the Billerica Firefighters case discussed above 

appears to exclude all matters of inherent managerial prerogative from the 

arena of mandatory subjects of bargaining. This would be a logical 

progression form the Court's earlier rulings. In a 1976 decision, the court 

ruled that there is no requirement that all matters which are mandatory 

subjects of bargaining must be subject to arbitration. 34 The court 

explained that there is no direct correlation between what the LRC 

classifies as a mandatory as opposed to permissive subject and the issue 

of arbitrability when it said: 

We do not decide any question with respect to 

the mandatory or permissive scope of collective 

bargaining. "A naked distinction exists between 

a duty to engage in collective bargaining, and a 

freedom to submit controversies, whether or not 

subject to mandatory bargaining, to arbitration." 

Susquehanna Valley Cent. School District at 

Conklin v. Susquehanna Valley Teachers Ass'n., 

37 N.Y.2d 614-617, 376 N.Y.S.2d 427, 429, 339 

N.E.2d 132, 134 (1975). 

The Appeals Court decision involving the pay requirement for a sergeant 

assigned as a temporary lieutenant, distinguished this case from one 

which might involve the decision of assignment itself. 35 After citing 

numerous cases discussing the "broad administrative control and 

discretion" of the police commissioner, the Court stated: 

The demands of public safety, ibid., and a 

disciplined police force underscore the 

importance of management control over matters 

such as staffing levels, assignments, uniforms, 

weapons, and definition of duties. 36 



The Appeals Court explained that its holding in this case was consistent 

with earlier decisions which ruled that the means of implementing 

managerial decisions, especially touching on compensation, may be the 

subject of an enforceable provision in a collective bargaining agreement. 


The decisions of the Appeals Court and the Supreme Judicial Court would 

appear at variance with certain Labor Relations Commission (or Hearing 

Officer) decisions. Since relatively few Commission rulings are appealed to 

the Courts, it is only a matter of conjecture as to what the courts would 

have done in some cases involving assignment. 

The traditional three-part distinction among subjects of bargaining 

(mandatory, permissive and illegal/prohibited) is one followed more closely 

by the LRC than the Massachusetts courts. The distinction may be only 

semantic. However, it is possible that a municipal employer will receive 

conflicting rulings from the Commission and the Courts. The LRC might 

well order bargaining over some matters which ultimately need not (and 

should not) be submitted to arbitration. Unfortunately, a municipality may 

have to appeal an adverse Commission ruling to court if it wishes to 

challenge a bargaining order over a matter the city or town believes is an 

inherent managerial prerogative. 

Two Leominster cases involved the issue of police officer assignments 37 

and resulted in orders compelling bargaining over at least some aspects of 

assignments. It does not appear that the City decided to appeal to the 

courts in either case. 

In the 1991 case it appears that the City of Leominster allowed shift 

bidding (to learn the officer's preferences) but the chief retained the right 

to make shift assignments, with seniority being one factor. This was in 

keeping with the contract provision which specified that "[a]ssignments to 

shifts of all men in the uniformed branch shall be by seniority where 

determined practicable and expedient by the chief of the department." 

The 1993 Leominster case, a superior officers case with the same shift 

bidding language, involved both shift bidding and specialist bidding. The 

LRC's decision focused more on the chief's failure to provide the union 

with notice and opportunity to bargain before changing annual shift 

bidding than on the pure issue of assignment as a managerial prerogative. 

Several LRC decisions, especially certain Hearing Officer rulings, appear to 

place the issue of assignments in the category of a mandatory subject of 

bargaining. 38 However, some were decided before the JLMC statute was 

enacted which removes assignments from the scope of arbitration. Others 

were decided before certain court decisions found public safety 



assignments an inherent managerial prerogative. Moreover, none seem to 

have been appealed to the courts. 

On the other hand, one LRC case held that a union proposal regarding the 

assignment of off-duty police officers in Worcester to paid details involved 

a core governmental decision and was, therefore, not subject to 

bargaining. 39 

While the matter is, therefore, not free from doubt, it is likely that a court 

would overturn (or at least modify) any LRC decision ordering bargaining 

over the pure issue of police officer assignments. Even if the court was to 

allow the Commission's bargaining order to stand, it would likely uphold a 

municipal employer's right to insist that the matter not proceed to 

arbitration. Similarly, in those contracts already containing an otherwise 

objectionable provision, should an employer refuse to proceed to grievance 

arbitration, their position presumably would be upheld by the court 

(assuming the union filed a complaint under G.L. c. 150E, § 8, seeking to 

compel arbitration). This is consistent with the conclusion reached by the 

Supreme Judicial Court in a 1979 Boston School Committee case. 40 After 

discussing the public policy basis for declaring certain inherent 

managerial prerogatives beyond the scope of arbitration, the court upheld 

the school committee's refusal to participate in arbitration even though 

the contract contained a provision (which the Committee arguably 

violated) which impinged on such prerogatives. 

The SJC stated that whether the case was before the Labor Relations 

Commission, or before the Courts in an action to stay arbitration or in an 

action to either vacate or confirm an arbitration award, the issue is 

"whether the ingredient of public policy in the issue subject to dispute is 

so comparatively heavy that collective bargaining, and even voluntary 

arbitration, on the subject is, as a matter of law, to be denied effect. Cf. 

School Committee of Boston v. Boston Teachers, Local 66, 372 Mass. 605, 

614, 363 N.E.2d 485 (1977)." 41 

1) Notice to Union 

The burden is on the employer at a Labor Relations Commission 

hearing to prove that adequate notice of the proposed new rule or 

change in policy was provided to the union. The Commission utilizes 

the following principle regarding the adequacy of notice: 

The information conveyed to the union must be 

sufficiently clear for the union to make a 



judgment as to an appropriate response. The 

union is not required to respond to rumors of 

proposed changes, speculation, or proposals so 

indefinite that no response could be 

formulated. 42 

Notice should be provided directly -- and preferably in writing -- to 

the appropriate union officials, e.g., president, steward, and/or 

business agent. Simply showing that certain union members (or even 

officers) knew or should have known of a proposed new rule or 

change in policy may not be sufficient to satisfy management's 

burden on the issue of notice. 43 The LRC held that a union is not put 

on notice of a change where individual union members, who are not 

acting in their capacity as union officers or agents, learned that 

certain matters were being examined by the employer. 44 For example, 

where the Town of Wayland contemplated a new evaluation procedure 

for police officers, the union was not put on notice by the 

participation of two bargaining unit members in the discussions 

which formulated the new policy. 45 An employer should make it clear 

that a change will extend beyond the year in which it is implemented. 

When a school committee failed to indicate that the elimination of a 

convention day would be permanent, it did not meet its duty of 

providing sufficient notice that the union's failure to demand 

bargaining met the test of being a "knowing, conscious or unequivocal 

waiver" of its right to bargain over the change. 46 In addition, in 

another school committee case, the Commission held that 

information communicated to the union about possible layoffs was 

inconsistent and not legally sufficient where one document received 

by the union was a "tentative proposal for discussion purposes" and 

others indicated no reduction in personnel. 47 

2) Opportunity to Bargain/Waiver 

There is no statutory requirement specifying how much advance 

notice must be provided to a union for intended changes in rules or 

policies. The LRC attempts to use a common sense approach on a 

case-by-case basis. In situations where there is not an externally 

imposed deadline (e.g., grant deadline, loss of funding, cancellation of 

insurance carrier, statutory change in health insurance percentage 

contributions, etc.), the Commission tries to decide whether the 

notice provided sufficient time for the union to make a determination 

of whether it should demand bargaining. If a union knows of a 

proposed change, has a reasonable opportunity to bargain, and 

unreasonably fails to request bargaining, it will be found to have 

waived its right to demand bargaining. 48 



A union's obligation to demand bargaining regarding a change in 

terms and conditions of employment arises when the union has 

actual knowledge of the proposed change. 49 To establish a union's 

waiver by inaction, an employer must show by a preponderance of the 

evidence that the union had actual knowledge or notice of the 

proposed action, had a reasonable opportunity to negotiate over the 

subject, and unreasonably or inexplicably failed to bargain or request 

bargaining. 50 A union's waiver of its statutory right to bargain over a 

subject will not be readily inferred. There must be a "clear and 

unmistakable" showing that a waiver occurred. 51 

Where a public employer raises the affirmative defense of waiver by 

inaction, it bears the burden of proving that the union had: 1) actual 

knowledge of the proposed change; 2) a reasonable opportunity to 

negotiate prior to the employer's implementation of the change; and, 

3) unreasonably or inexplicably failed to bargain or to request 

bargaining. 52 

In a case involving the refusal of the City of Malden for seven weeks to 

start negotiating with the firefighters union over the means of 

accomplishing a reduction in force after the passage of Proposition 2 

1/2, coupled with the City's insistence that all negotiations be 

completed in no more than two and one-half weeks, the Commission 

ruled that there was no impasse at the time of layoffs. It further 

found that there were no circumstances beyond the control of the 

City which might justify such action prior to impasse. It therefore 

ordered the City to reinstate the unlawfully laid off firefighters with 

back pay and to bargain with the union over the layoff impact 

issues. 53 

In a 1979 case involving the Avon Police Department, the 

Commission held that a failure to seek bargaining for three months 

after the union became aware of the department's new rule requiring 

examination by a town-designated physician, was too long. The 

union "was not entitled to sit back, once it was aware of the Town's 

intention to institute the examinations by a town-selected physician, 

and wait until the policy was implemented before it demanded 

bargaining." 54 

In a Raynham firefighter case, the union knew or should have known 

that a captain’s position would not be filed when the poster was 

removed from the board. 55 The union’s leter “raised concerns” but 

never demanded bargaining. 

Where an employer raises the affirmative defense of contract waiver, 

it must show that the union knowingly and unmistakably waived its 



right. 56 The employer bears the burden of proving that the contract 

clearly, unequivocally and specifically authorizes its actions. 57 Where 

the parties’ agreement is silent on an issue, it must be shown that the 

matter allegedly waived was fully explored and consciously yielded. 58 

Where contract language exists but is ambiguous, bargaining history 

or the manner in which the parties have implemented the disputed 

contract provision are helpful. 59 However, where contract language 

contained in a management rights clause is not ambiguous, it is 

necessary only to examine the specificity of the clause and to 

determine whether the disputed action is within its scope. 60 The 

2003 City of Cambridge case found that the management rights 

clause authorized the police chief to change the criteria for overtime 

and to implement a new form of discipline without providing the 

union prior notice and an opportunity to bargain to resolution or 

impasse. 61 

Notice must be provided to the union far enough in advance of 

implementation of the change to afford the union the opportunity to 

bargain. 62 Should the union fail promptly and effectively to request 

bargaining after receiving proper notice, it waives by inaction its right 

to bargain over the proposed change. 63 However, a union's demand 

to bargain need not be immediate in order to be timely. 64 How much 

time must pass before a union will be found to have waived its right 

to bargain will be determined from the facts. 65 Waiver is an 

affirmative defense to a charge of unlawful unilateral change. 66 

In Holliston School Committee, the Commission decided that the 

School Committee's vote in May to increase the length of the school 

day the next September was not a fait accompli, but rather a proposal 

over which the parties could have bargained. 67 Further, the 

Commission determined that the Union had ample opportunity to 

bargain between the date Union had actual notice of the impending 

change and its implementation. 68 In the 2002 case of Commonwealth 

of Massachusetts, notifying the Union in late January 1998 that it 

intended to implement a consolidated service model in fourteen (14) 

DTA offices between April 1, 1998 and June 1, 1998, and offering to 

meet, constituted both actual notice of the impending change and a 

reasonable opportunity for the Union to negotiate over the impacts of 

the decision to implement this service model prior to 

implementation. 69 (Absent justification for a deadline, nine (9) days 

between the date of actual notice and the date of the change is 

insufficient time to afford a union a meaningful opportunity to 

bargain.) Upon receiving this notice, the Union was obligated to 

demand negotiations about the impacts of the Commonwealth's 

decision to implement the consolidated service delivery model on 



employees' terms and conditions of employment, or risk waiving its 

right to do so. 70 

In Town of Westborough, 71 the Commission reaffirmed that "[a] party 

to a collective bargaining agreement need not bargain during the term 

of that agreement over subjects that were part of the bargain when 

the parties negotiated the agreement." 72 For the Union to prevail in 

its argument that the Commonwealth was precluded from 

implementing the consolidated service model during the term of the 

Alliance agreement absent the Union's consent, the evidence must 

demonstrate that the issue was "consciously explored" and 

"consciously yielded" during negotiations. 73 

There was no evidence that the Union made any proposals about any 

mandatory subjects of bargaining directly affected by the 

Commonwealth's decision to implement the consolidated service 

delivery model in fourteen (14) DTA offices and the Commonwealth 

subsequently refused to bargain over these proposals. Further, there 

was no evidence that the Union requested additional meetings with 

the Commonwealth to offer any proposals or counter-proposals about 

the planned implementation of the consolidated service model, or that 

the Commonwealth refused to meet at reasonable times and places to 

discuss the Union's proposals. Rather, the Union consistently 

maintained its position that it was under no obligation to engage in 

mid-term contract negotiations over consolidation and failed to make 

proposals addressing the mandatory subjects of bargaining 

implicated by the Commonwealth's decision. Thus, the Union waived 

its right to bargain with the Commonwealth to resolution or impasse 

over the impacts of the Commonwealth's decision to implement the 

consolidated service delivery model in its DTA offices prior to 

implementation. 74 

The doctrine of waiver by inaction is not applicable to a situation 

where the union is presented with a fait accompli (i.e., done deal). 75 

In determining whether a fait accompli exists, the Labor Relations 

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." 76 

In a 1986 case involving an increase in the length of the school day, 

the Commission dismissed the union's complaint for failure to 

demand bargaining in a timely manner. 77 The Holyoke School 

Committee sent a letter on August 9 to the Association President who 

was on vacation when the letter was sent. The LRC stated that the 

union could have protested or demanded bargaining before the 



School committee's vote on August 16. Moreover, it could have 

demanded bargaining after the vote but before the implementation of 

the change when school started on September 2. 

In a 1982 decision in Scituate School Committee, a LRC Hearing 

Officer was faced with the issue of whether the employer's 

lengthening of the work day to provide for an unpaid half-hour lunch 

period, when such periods were previously provided with pay, was an 

unlawful unilateral change. 78 However, the hearing officer dismissed 

the complaint after finding that the union failed to object to the 

change in a timely manner. It had been notified of the School 

Committee's July 23 vote. The change went into effect September 8, 

yet the union let that time go by without demanding bargaining. 

Even when an employer has not met its bargaining obligations, the 

LRC may modify its remedial order if it also finds the union delayed in 

demanding bargaining. For example, the Commission found that the 

Middlesex County Commissioners failed to bargain in good faith by 

cutting off negotiations over the impact of a reduction in force; 

however, it ruled that the union's delay in requesting bargaining 

foreclosed a status quo ante remedy. 79 

Some guidance concerning what is a reasonable period may be 

gleaned from the rulings of the Commission in cases where unions 

have successfully challenged unilateral changes by municipal 

employers. After finding the employer violated the Law, the 

Commission generally orders the employer to bargain with the union 

provided a demand for bargaining is received within five days of the 

union's receipt of an offer to bargain. 80 


In an effort to avoid litigating the issue of whether the union waived its 

right to bargain by unreasonably delaying its demand to do so, 

management could incorporate a reasonable response deadline in its 

notice. By inserting the following phrase in any such notice, so long as the 

amount of time is not unreasonably short (at least five (5) days except in 

urgent/emergency situations), it is likely that the Commission would find a 

waiver by the union if it failed to comply with a reasonable deadline: 

"Unless the union provides the undersigned with a written request to 

negotiate over the proposed change(s) by ____________, it will be presumed 

that the union has waived any right it may have to bargain over such 

change(s) or the impact of such change(s) on mandatory subjects of 

bargaining." 



3) Contractual Waiver 

A union may also waive its right to bargain over proposed 

changes by the provisions of the collective bargaining 

agreement. The Commission is reluctant to find such a waiver 

in the absence of clear contract language. 81 When an employer 

raises the affirmative defense of contract waiver, it must show 

that the subject was consciously considered by the parties, and 

that the union knowingly and unmistakably waived its right. 82 

The initial inquiry focuses on the language of the contract. 83 

The employer bears the burden of proving that the contract 

clearly, unequivocally and specifically authorizes its actions. 84 

A waiver cannot be found on the basis of a broad, but general, 

management rights clause. 85 The LRC must determine 

whether the contract language "expressly or by necessary 

implication" confers upon the employer the right to implement 

the change in the mandatory subject of bargaining without 

negotiating with the union. 86 If the language clearly, 

unequivocally and specifically permits the public employer to 

make the change, no further inquiry is necessary. 87 However, if 

the contract's language is ambiguous, the Commission reviews 

the parties' bargaining history to determine their intent. 88 

A comprehensive Management Rights clause, which specifically 

addresses the action an employer intends to take, may constitute a 

waiver by the union of its rights to notice and bargaining. However, 

unless the language is specific and on point, the Commission is not 

likely to uphold it as a waiver. As the LRC Hearing Officer in the 

Town of Hull case stated: 

It is well established that a contractual waiver of 

the right to bargain over a mandatory subject 

will not be readily inferred. The employer must 

establish that the parties consciously considered 

the situation that has arisen and that the union 

knowingly waived its bargaining rights. 89 

(and in the same decision) 

In reviewing the language of a contract, the 

Commission assesses whether the language 

expressly or by necessary implication gives the 

employer the right to implement changes in a 

subject without bargaining. 90 



In its 1992 decision in Commonwealth of Massachusetts, the 

Commission dismissed the union's complaint that the state's 

unilateral changing of the hours of work of correction 

counselors violated Sections 10(a)(5) and (1). 91 The union was 

found to have waived its right to bargain by agreeing to the 

following language in the contract: 

Where the employer desires to change the 

work schedule of employee(s), the 

employer shall, whenever practicable, 

solicit volunteers from among the group of 

potentially affected employees, and select 

from among the qualified volunteers. The 

employer shall, whenever practicable, give 

any affected employee whose schedule is 

being involuntarily changed ten (10) days 

written notice of such contemplated 

change. The provisions of this subsection 

shall not be used for the purpose of 

avoiding the payment of overtime. 

4) Impasse or Agreement 

Assuming the union makes a timely request to bargain, and 

negotiations produce an agreement, management is obviously free to 

implement the terms of such agreement. Likewise, if negotiations 

proceed in good faith to impasse, management may implement its 

pre-impasse position. 

NOTE: If the union stops negotiating in good faith, management may 

also implement. 


Where negotiations are conducted in good faith (at least by management) 

and impasse is reached, the municipal employer is free to implement its 

impasse position. Although no case has yet been decided by the LRC on 

the subject, it is arguable that the failure by the union to bargain in good 

faith may relieve management of its bargaining obligation, thus enabling it 

to implement its proposed change (at least as it existed immediately prior 

to the union's statutory violation). In fact, LRC decisions compelling 

municipal employers to enter into impact bargaining routinely include a 

clause ordering the employer to bargain in good faith until agreement or 



impasse is reached or until the union stops bargaining in good faith. One 

word of caution is in order, however: it may take the LRC many months (if 

not longer) to decide whether the union bargained in bad faith. An 

employer should be very certain before making such a determination on 

its own. 

C. REMEDY FOR VIOLATION 

When the LRC finds that an employer has made a unilateral change in a 

working condition, typically it will order a return to the status quo ante 

(i.e. as it was before). 92 Some exceptions have been made where an 

employer has raised an employee’s wages. If ordering reimbursement 

would be unfair, the Commission might not be inclined to do so, 

especialy where the employee is being penalized for the employer’s 

unlawful conduct. 93 Similarly, the Commission has declined to order 

reimbursement in cases where this might result in friction between the 

union and the employee, which is not in keeping with the spirit of the 

law. 94 (An exception was made where an increase was implemented 

during negotiations.) 95 

Where it appears that a pay raise is the only violation and no other 

employee was harmed, the Commission is unlikely to order a roll-back in 

a pay raise which was granted improperly. 96 

In a case where the Commission determined that but for the change in a 

past practice, a certain officer would have been the person promoted to 

sergeant, it ordered the town to promote him. 97 In another case where 

such a clear determination was not possible, an LRC hearing officer did 

not order rescission but rather ordered the town to return to the status 

quo ante with regard to the promotion procedures for temporary sergeant 

which involved the consideration of all candidates on the Civil Service list. 

The town was also ordered to bargain with the union upon demand 

regarding the procedure for promotion to temporary sergeant. The hearing 

officer instructed the town not to penalize the previously unsuccessful 

candidate for not having served as temporary sergeant nor to reward the 

individual who earlier received such temporary promotion when 

considering either of them for any future promotion opportunities. 


Unless a community is prepared to spend considerable time (and money) 

in litigation over whether management is free to act unilaterally, it is 

advisable to notify the union of any substantive change in the criteria or 

procedure for promotions to positions within the bargaining unit or to those 

outside the unit which are not represented by some other union and are 



not managerial or confidential. Consultation with labor counsel is 

essential before proceeding in this area. 

Unless labor counsel advises that the facts of a particular case warrant 

unilateral changes, upon request, the employer should engage in good 

faith negotiations until agreement or impasse is reached. 



1 

Harwich School Committee, 10 MLC 1364 (1984); King Phillip Regional School Committee, 2 MLC 

1393 (1976). 

2 

School Committee of Newton v. Labor Relations Commission, 447 N.E.2d 1201, 1211; 388 Mass. 557 

(1983). Citations omitted. 

3 

County of Norfolk, 11 MLC 1346, 1348 (1985). 

4 

See General Electric Co., 150 NLRB 192, 57 LRRM 1491 (1964): “Good faith bargaining . . involves 

both a procedure for meeting and negotiating, which may be called the externals of collective bargaining, 

and a bona fide intention . ..” 

5 County of Norfolk, 11 MLC 1348 (1985). 

6 Springfield Housing Authority v. Labor Relations Com'n, 16 Mass.App.Ct. 653, 454 N.E.2d 507 (1983). 

7 School Committee of Newton v. Labor Relations Com'n , 388 Mass. 557, 447 N.E.2d 1201 (1983). 

8 Id. 

9 Com. v. Labor Relations Com'n, 60 Mass.App.Ct. 831, 806 N.E.2d 457, review denied 442 Mass. 1111, 

816 N.E.2d 1222, (2004). 

10 

Everett School Committee, 9 MLC 1308 (1982); Commonwealth of Massachusetts, 8 MLC 1183 

(1981); City of Chelsea, 3 MLC 1169 (1976),af’d., 3 MLC 1384 (1977). One exception to the rule that 

parties must bargain over mandatory subjects of bargaining involves comprehensive “zipper clauses”. If 

the collective bargaining agreement contains a provisions stating that the contract represents the entire 

agreement between the parties (i.e. anything not discussed in the agreement specifically is excluded from 

future mid-term negotiations), then a party may be excused from the duty to bargain. See City of Salem, 5 

MLC 1433 (1978) (stating that a contract without a zipper clause creates a duty during the term of the 

agreement to bargain over mandatory subjects not addressed in the agreement). This topic will be further 

elaborated upon in the chapter on Mid-Term Bargaining. 

11 School Committee of Newton, 388 Mass. at 572 (citations omitted). 

12 Id. 

13 Id.; King Phillip Regional School Committee, 2 MLC 1393, 1396 (1976). 

14 City of Chelsea, 3 MLC 1048, 1050 (H.O. 1976) citing NLRB v. Polling & Son Co., 119 F2d. 32 (1941). 

15 

The sections below all constitute examples of actions which constitute a refusal to bargain by a public 

employer. 

16 

M.G.L. Chapter 150E, § 4; § 6 requires negotiations with the elected representative. Under federal law, 

an employer commits an unfair labor practice if it refuses to bargain collectively with a union that has met 

the criteria for an “exclusive bargaining representative” under 29 U.S.C. § 159(a) (National Labor 

Relations Act). 

17 

Brockton School Committee, 19 MLC 1120 (1992). 

18 

Utility Workers of America, 8 MLC 1193 (1981). 

19 

In the federal arena, the “take it or leave it” approach by management is caled “Boulwarism”, named 

for a former Vice President of General Electric who exemplified and defined the approach. He would 

research and develop what he considered to be the best possible collective bargaining agreement for the 

employees, and then present it to the union during “bargaining”. Besides refusing to budge on al major 

contract items, he would also initiate a company-wide campaign to convince employees of the value of his 

proposal. The NLRB has held that a “take it or leave it” atitude can violate the NLRA, and that direct 

dealing with employees (during the campaigns) also violated the Act. 

20 Town of Saugus, 2 MLC 1480 (1976). 

21 

The subject of unilateral changes generally arises in the context of changes in terms and conditions of 

employment during the term of the collective bargaining agreement. This section will only address the 

issue in a context where there is no contract in effect. 

22 School Committee of Newton v. Labor Relations Commission, 338 Mass. 557 (1983). 

23 Commonwealth of Massachusetts, 27 MLC 1, 5 (2000); City of Gloucester, 26 MLC 128, 129 (2000); 

City of Boston, 16 MLC 1429, 1434 (1989); Town of Wilmington, 9 MLC 1694, 1697 (1983). 

24 Commonwealth of Massachusetts, 20 MLC 1545, 1552 (1984); City of Boston, 20 MLC 1603, 1607 (1994). 

25 Swansea Water District, 28 MLC 244,245 (2002); Commonwealth of Massachusetts, 23 MLC 171,172 

(1997); Town of Chatham, 21 MLC 1526, 1531 (1995). 

26 Commonwealth of Massachusetts, 23 MLC at 172. 



27 

Because the union often lacks the actual power to make a unilateral change, generally it is the employer 

who is charged with making an unlawful unilateral change. 

28 

Commonwealth of Massachusetts, 19 MLC 1069 (1992). 

29 

City of Peabody, 9 MLC 1447 (1982). 

30 

Town of Billerica, 8 MLC 1957 (1982). 

31 


32 

Hanson School Committee , 5 MLC 1671 (1979), discussed supra in § 4, “Reaching Impase”. 

33 

Town of Bellingham, 21 MLC 1441 (1994). 

34 School Committee of Braintree v. Raymond, 369 Mass. 686, 343 N.E.2d 145 (1976) 

35 City of Boston v. Boston Police Superior Officers Federation, 29 Mass. App. Ct. 907, 556 N.E.2d 1053 

(1990) 

36 City of Boston, supra, at 1055. 

37 City of Leominster, 17 MLC 1391 (1991) and City of Leominster, 19 MLC 1636 (1993) 

38 City of Boston, 5 MLC 1691 (1979); Town of Danvers, 3 MLC 1559 (1977) 

39 City of Worcester, 4 MLC 1378 (1977) 

40 School Committee of Boston v. Boston Teachers Union, Local 66, American Federation of Teachers 

(AFL-CIO), 378 Mass. 65, 389 N.E.2d 970 (1979) 

41 Id. at 973. 

42 City of Boston School Committee, 4 MLC 1912, 1915 (1978); Quincy School Committee, 11 MLC 1179 

(1984) 

43 Town of Ludlow, 17 MLC 1203 (1990); Town of Milford, 15 MLC 1247 (1988) 

44 Boston School Committee, 4 MLC 1912, 1915 (1978) 

45 Town of Wayland, 3 MLC 1724, 1729 (H.O. 1977); see also, Leominster School Committee, 3 MLC 1530 

(H.O. 1977), modified on other grounds, 4 MLC 1512 (1977) 

46 Whitman-Hanson Regional School Committee, 10 MLC 1283, 1285-1286 (1983) 


48 City of Gardner, 10 MLC 1218, 1221 (1983); citing Scituate School Committee, 9 MLC 1010 (1982) and 

Boston School Committee, 4 MLC 1912, 1915 (1978); School Committee of Newton v. Labor Relations 

Commission, 388 Mass. 557, 570, 447 N.E.2d 1201 (1983) 

49 Boston School Committee and Administrative Guild, 4 MLC 1912, 1914-15 (1978) 

50 Id. at 1915; School Committee of Newton v. Labor Relation Commission, 388 Mass. 557, 570, 447 N.E.2d 

1201 (1983); Town of South Hadley, 26 MLC 161 (2000). 

51 City of Everett, 2 MLC 1471, 1476 (1976), aff'd sub. nom., Labor Relations Commission v. City of 

Everett, 7 Mass. App. Ct. 826, 391 N.E.2d 694 (1979); Commonwealth of Massachusetts, 28 MLC 36, 40 

(2001), citing City of Everett, 2 MLC 1471, 1476 (1976), aff'd Labor Relations Commission v. City of 

Everett, 7 Mass. App. Ct. 826 (1979). See also City of Cambridge, 23 MLC 28, 37 (1996), aff'd sub nom. 

Cambridge Police Superior Officers Association et al. v. Labor Relations Commission, 47 Mass. App. Ct. 

1108 (1999). 

52 School Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 570 (1983); City of 

Cambridge, 23 MLC 28, 37-38 (1996), aff'd sub nom. Cambridge Police Superior Officers Association & 

another v. Labor Relations Commission, 47 Mass. App. Ct. 1108 (1999). Town of Andover, 28 MLC at 270, 

citing City of Boston v. Labor Relations Commission, 48 Mass. App. Ct. 169, 174 (1999); see School 

Committee of Newton v. Labor Relations Commission, 388 Mass. at 569 (a waiver must be shown clearly, 

unmistakably, and unequivocally and cannot be found on the basis of a broad, but general, management 

rights clause). 

53 City of Malden, 8 MLRR 1356, 8 MLC 1620 (1981) 

54 Town of Avon, 5 MLRR 1148 (1979) 

55 Town of Raynham, 30 MLC 56 (2003). 

56 Town of Andover, 28 MLC at 270, citing Town of Mansfield, 25 MLC 14, 15 (1998). 

57 Town of Andover, 28 MLC at 270, citing City of Boston v. Labor Relations Commission, 48 Mass. App. 

Ct. 169, 174 (1999); see School Committee of Newton v. Labor Relations Commission, 388 Mass. at 569 (a 

waiver must be shown clearly, unmistakably, and unequivocally and cannot be found on the basis of a 

broad, but general, management rights clause). 

58 Commonwealth of Massachusetts, 5 MLC 1097, 1099 (1978), citing City of Everett, 2 MLC 1471, 1475 

(1976); Press Co., Inc., 121 NLRB 976, 42 LRRM 1493 (1958). 



59 Commonwealth of Massachusetts, 5 MLC 1097, 1099 (1978), citing City of Boston, 3 MLC 1450, 1461, 

n.13 (1977). 

60 Commonwealth of Massachusetts, 5 MLC 1097, 1099 (1978), see Ador Corp., 150 NLRB 1658, 58 

LRRM 1280 (1965). 

61 City of Cambridge, 29 MLC 134 (2003). 


63 Id. at 1915 

64 Id. at 1916 

65 Id. at 1914 

66 Id. at 1915 

67 Holliston School Committee, 23 MLC at 212-213, quoting, Scituate School Committee, 9 MLC 1010, 

1012 (1982). 

68 Holliston School Committee, 23 MLC at 213. 

69 Cf. Town of Hudson, 25 MLC 143, 148 (1999) 

70 City of Cambridge, 23 MLC at 37, citing, Town of Milford, 15 MLC 1247, 1253 (1988). 

71 Town of Westborough, 25 MLC 81 (1997). 

72 Id. at 87 (1997), citing, City of Salem, 5 MLC 1433, 1436-1437 (1978) (Commission adopts the general 

policy expressed by Section 8(d) of the Labor Management Relations Act). See also, Jacobs Mfg. Co., 94 

NLRB 1214, 28 LRRM 1162 (1951), enf'd 196 F.2d 680, 30 LRRM 2098 (CA 2, 1952). 

73 Town of Westborough, 25 MLC at 87. See also, Franklin School Committee, 6 MLC 1297, 1300 (1979). 

74 See, Holliston School Committee, 23 MLC at 212-213. 

75 City of Boston, 8 MLC 1800 (1982) 

76 Scituate School Committee, 9 MLC 1010, 1012 (1982) 

77 Holyoke School Committee, 12 MLC 1443 (1986) 

78 Scituate School Committee, 8 MLC 1726 (1982) 

79 Middlesex County Commissioners, 9 MLRR 1148, 9 MLC 1579 (1983) 

80 See attached Order issued to the South Shore Regional School District. 

81 See, Town of Andover, 28 MLC 264 (2002). 

82 Town of Mansfield, 25 MLC 14, 15 (1998). Massachusetts Board of Regents, 15 MLC 1265, 1269 (1988) 

citing Town of Marblehead, 12 MLC 1667, 1670 (1986) 

83 Town of Mansfield, 25 MLC 14, 115 (1998). 

84 City of Boston v. Labor Relations Commission, 48 Mass. App. Ct. 169, 174 (1999). 

85 School Committee of Newton v. Labor Relations Commission, 388 Mass. at 569. 

86 Melrose School Committee, 9 MLC 1713, 1725 (1983) 

87 City of Worcester, 16 MLC 1327, 1333 (1989). 

88 Town of Marblehead, 12 MLC 1667, 1670 (1986); Peabody School Committee, 28 MLC 19, 21 (2001). 

89 Town of Hull, 17 MLC 1678 (1991) citing Town of Marblehead, 12 MLC 1667, 1670 (1986) 

90 Town of Hull, 17 MLC 1678 (1991) citing Massachusetts Board of Regents, 15 MLC 1265, 1269-1270 

(1988) 

91 Commonwealth of Massachusetts, 19 MLC 1454 (1992) 

92 Framingham School Committee, 4 MLC 1809 (1978); Town of Marblehead, 12 MLC 1667, 1672 (1986). 

93 City of Quincy, 7 MLC 1391 (1980). 


95 City of Quincy, supra. 


97 Town of Stoneham, 8 MLC 1275 (1981). 


CHAPTER 5 - ASSIGNMENT 

The right to assign public safety employees is an inherent managerial 

prerogative which cannot be the subject of arbitration. 1 While it is 

arguable that management must negotiate at the request of the union over 

certain procedures relative to assignments, the ultimate decision-making 

power must rest with the chief. 

In its 1978 decision, the Supreme Judicial Court addressed the issue of 

the assignment and appointment of police officers in a Boston Police 

Department case. 2 It ruled that the assignment of a police officer by the 

police commissioner is a decision committed to the nondelegable statutory 

authority of the commissioner and is not a proper matter for arbitration. 

In this case an arbitrator found that the commissioner violated the 

provisions of the collective bargaining agreement by making a provisional 

promotion of a lieutenant to a captain and transferring that individual to a 

new assignment. The Court said, ". . . the commissioner exercised his 

inherent managerial power to assign and transfer superior officers. The 

commissioner's authority is derived from St. 1906, c. 291 as amended by 

St. 1962, c. 322, §1 . . . , in particular §10, which grants the 

commissioner 'authority to appoint . . . and organize the police . . . [and to] 

appoint . . . captains and other officers as he/she may from time to time 

deem proper,' and §11 giving the commissioner 'cognizance and control of 

the government, administration [and] disposition . . . of the department . . 

.'". 

The court concluded "the provisions of c. 291 prevail over Article XII, §3 [in 

the collective bargaining agreement] which purports to limit the 

commissioner's authority to assign superior officers by delineating the 

procedures for promoting officers from a district in which a temporary 

vacancy occurs and for which no civil service list exists, based on 

qualifications, ability and seniority. Berkshire Hills, 375 Mass. 522, 377 

N.E.2d 940 (1978)." 3 


The 1998 amendments to c. 150E were aimed at depriving the Boston 

Police Commissioner of some of his or her powers to override the terms of a 

collective bargaining agreement. It is possible that future court decisions 

in this area wil address whether some of the Commissioner’s rights (and 

possibly those of all chiefs) are inherent and are not dependent on certain 

statutes for their existence. 


Assignment 5-2 

Despite the fact that many collective bargaining agreements purport to 

restrict a chief's ability to make assignments, such clauses may not be 

enforceable. For example, a clause which purports to require absolute shift 

assignments by seniority might be voidable if it left no leeway for the chief 

to make certain shift assignments for legitimate reasons. A similar result 

would apply where a contract clause leaves no room for a chief to use 

his/her judgment or discretion in making specialist assignments. In any 

event, a municipality is free to refuse to include overly restrictive provisions 

in future contracts. In fact, a union may commit a prohibited (unfair labor) 

practice if it insists to the point of impasse on a proposal to deprive the 

chief of the ability to make assignments. 

In a 1983 case arising from the Burlington Police Department, the SJC 

ruled that the decision to assign prosecutorial duties, subject only to the 

authority of the attorney general and district attorney, is an exclusive 

managerial prerogative and is not a proper subject for collective 

bargaining. 4 

Although the procedures for resolving contractual impasses have changed 

since the Appeals Court's 1980 decision involving arbitration with the 

Taunton Police Department, the court's rationale is still applicable. 5 The 

court ruled that the last best offer arbitration panel acted beyond the 

scope of its authority when it included in its award articles which: (1) set 

forth a procedure to be followed by the city when involuntarily transferring 

a police officer from one shift to another; (2) included an article prohibiting 

rotation of shifts; and (3) contained an article providing that all 

assignments on each shift be filled by regular officers. 

The court stated that while the city could agree to these provisions (as it 

had in a previous agreement), it was not required to do so. It was free to 

adopt the position at arbitration that such provisions place overly 

inflexible or cumbersome restrictions upon the police chief's ability to 

assign his officers to their duties. 

When a city or town is simply required to 

bargain collectively concerning a subject, the 

ultimate decision whether to accept a particular 

proposal of a union remains with the city or 

town. 6 

The court noted that there is a distinction between mandatory subjects of 

bargaining in c. 150E, §6 and those matters which are within the scope of 

arbitration as provided in Chapter 730 of the Acts of 1977, as amended. 

The latter contains no reference to "standards of productivity and 

performance" and specifies that arbitration in police matters shall not 

include matters of inherent managerial policy. 



A police chief's authority to assign his officers to 

particular duties is a matter that concerns the 

public safety. 7 

The court went on to say: ". . . the Legislature did not intend to empower 

the arbitration panel in making its award to deprive the chief of his 

authority to 'exercise his own discretion and judgment as to the number, 

qualifications and identity of officers needed for particular situations at 

any given time.'" (The court referred to its prior decisions in the case of 

Labor Relations Commission v. Natick, 369 Mass. at 442, 339 N.E.2d 900 

(1976) and was quoting from Chief of Police of Dracut v. Dracut, 357 Mass. 

at 502, 258 N.E.2d at 537 (1970). 

The court included the following example to explain its reasoning: "For 

example, suppose a reserve officer had special experience in a problem 

which a particular detail was likely to face over a limited period of time 

and the chief deemed that the experience made him/her uniquely 

qualified to serve on that detail for that period of time. Article IX, §3, 

would prevent the chief from assigning the reserve officer to the detail in 

preference over a regular officer. See Boston v. Boston Police Superior 

Officers Federation, 9 Mass. App. Ct. 898, 402 N.E.2d 1098 (1980)." 

In its 1970 decision, the SJC discussed the rights of a police chief and 

found that the right to assign was an inherent managerial prerogative 

which could not be contravened by the provisions of a collective 

bargaining agreement. 8 The union proposed requiring the chief to give 

exclusive consideration to the individual request, personal preference, 

seniority and rank of a police officer in determining the assignment of 

duties, shifts, vacations and leaves of absence. The court found such 

proposals not to be mandatory subjects of bargaining and stated: 

To deprive the chief of his authority to assign his 

officers to their respective duties and to 

substitute therefor the disputed provisions of the 

agreement would be totally subversive of the 

discipline and efficiency which is indispensable 

to a public law enforcement agency. 9 

Several court cases addressing the ability to assign officers have involved 

the Boston Police Department. In its 1979 decision, the Appeals Court 

ruled that the Boston Police Commissioner's assignment of an officer to a 

desk job and the refusal to issue a service revolver to the police officer, 

which resulted in the deprivation of overtime assignments and paid 

details, was not a proper dispute for arbitration since a matter of inherent 

managerial prerogative was involved. 10 In addition, it ruled that the 

Commissioner has the power to order a psychiatric examination as a 



condition of re-issuance of the officer's service revolver since this involved 

a matter of public safety. 

The arbitrator's finding that the officer had recovered from his illness and 

that he was now performing well and should be reassigned to the streets 

was void in the absence of a showing that the Commissioner had abused 

his managerial powers, e.g., motivated by personal hostility. 

An earlier decision determined that the Commissioner was authorized to 

assign civilians to ride in police cruisers without any obligation to provide 

notice or an opportunity for comment to the union. 11 

Despite the fact that an employer has the right to determine staffing levels, 

it may be required to bargain over the impact of a change on mandatory 

subjects of bargaining. For example, the Town of Mansfield was required 

to reinstate and make up lost compensation to three patrol officers after it 

eliminated their positions from the department’s split shift without 

providing the union with notice and the opportunity to bargain. 12 

Although decision to assign prosecutorial duties, subject only to authority 

of Attorney General and district attorney, was exclusive managerial 

prerogative of town and not proper subject for collective bargaining, town 

was required to bargain over impact of decision which would not interfere 

with town's right to determine policy. 13 



1 Chapter 730 of the Acts of 1977 as amended. 

2 City of Boston v. Boston Police Superior Officers Federation, 9 Mass. App. 898, 402 N.E.2d 1098 (1980) 

3 Id. at 1099. 

4 Town of Burlington v. Labor Relations Commission, 390 Mass. 157, 454 N.E.2d 465 (1983) 

5 City of Taunton v. Taunton Branch of the Massachusetts Police Association, 10 Mass. App. Ct. 237, 406 

N.E.2d 1298 (1980) 

6 Id. at 1302. 

7 Id. at 1302. 

8 Chief of Police of Dracut v. Town of Dracut, 357 Mass. 492, 258 N.E.2d 531 (1970) 

9 Id. at 533. 

10 City of Boston v. Boston Police Patrolmen's Association, Inc., 8 Mass. App. Ct. 220, 392 N.E.2d 1202 

(1979) 

11 Boston Police Patrolmen's Association, Incorporated v. Police Commissioner of Boston, 4 Mass. App. Ct. 

673, 357 N.E.2d 779 (1976). 

12 Town of Mansfield, 25 MLC 14 (1998). 

13 Town of Burlington v. Labor Relations Com'n, 390 Mass. 157, 454 N.E.2d 465 (1983). 


CHAPTER 6 - PROMOTIONS 

The promotion of public safety (police and fire) employees is an inherent 

managerial prerogative which is not subject to arbitration. 1 A municipal 

employer must provide the union (or other bargaining representative) with 

notice of any proposed change in the procedures to be used in making 

promotions to positions within the bargaining unit and to certain “nonunionized” 

positions outside of the bargaining unit. If the union makes a 

timely demand to bargain, the employer must engage in good faith 

negotiations until reaching either agreement or impasse before 

implementing the proposed changes. 

Typically the use of psychological exams, interview panels, assessment 

centers, oral or written exams or similar screening devices for the first 

time will trigger a bargaining obligation, as will any substantive change on 

these areas. 

§ 1 MANDATORY SUBJECT 

The Labor Relations Commission has ruled that the procedures and 

requirements for promotion within the bargaining unit are mandatory 

subjects of bargaining. 2 However, to the extent that a proposal would 

violate a Civil Service provision (or presumably some other statute not 

listed in M.G.L. c. 150E, § 7(d)), it would not be mandatorily bargainable. 3 

As noted above, the statute which describes the authority and procedure 

of the Joint Labor-Management Committee (JLMC) makes it clear that the 

right to promote is an inherent managerial prerogative. 

A variety of promotional procedures have been found to be mandatory 

subjects of bargaining. For example, changed reliance on exams 4 , 

psychological testing 5 , new procedures 6 , and an added new evaluation 

procedure 7 . 

§ 2 BARGAINING OBLIGATION 

A public employer violates G.L. c. 150E, § 10(a)(1), (5), if it unilaterally 

alters a condition of employment involving a mandatory subject of 

bargaining without first giving the union representing its employees notice 

and an opportunity to bargain to agreement or good faith impasse. “A 

failure to meet and negotiate when there is a duty to do so and unilateral 

action without prior discussion can constitute an unlawful refusal to 

bargain, without regard to the party’s good or bad faith.” 8 


Promotions 6-2 

The obligation to bargain usually arises in the context of a management 

decision (or proposal) to institute new promotional requirements or 

procedures. For example, if promotions to a rank within the same 

bargaining unit have always been made in generally the same way, an 

existing condition of employment may be found by the Commission. In 

order to make a substantive change, the exclusive bargaining 

representative of the employees must be given notice of a planned or 

proposed change and the opportunity to request and engage in bargaining. 

The obligation to negotiate in good faith does not require parties to reach 

agreement or make a concession. 9 

1) Notice 

Notice must be sufficiently clear so as to afford the union the 

opportunity to decide whether to request/demand bargaining. 10 

It is not sufficient to discuss the matter with certain bargaining 

unit representatives. 11 Unless the union leadership has been 

provided actual notice, it is unlikely that the Commission will 

find that adequate notice has been given. 12 Vague reference to 

the proposed change will not suffice. 13 

The timing of such notice must be sufficiently in advance of the 

proposed change that the union has the ability to decide 

whether to forward a demand to bargain to the municipal 

employer. 14 Failure to make a timely demand to bargain may 

be found to constitute a waiver on the union’s part, thus 

enabling management to implement its proposed change 

without further involvement with the union. 15 

2) Opportunity to Bargain 

Once a timely demand has been made, the employer and the 

union must engage in good faith negotiations. 16 So long as 

such negotiations are in progress, the status quo should be 

preserved. 17 

Upon reaching agreement or impasse, the employer may 

implement the change. 18 Similarly, should the union fail to 

negotiate in good faith, the employer may stop negotiating and 

implement its proposal. 19 Whenever the employer implements 

a change without the union’s agreement in such cases, it 

should use its pre-impasse position as the basis for such 

implementation. 20 

Where an externally imposed deadline is involved, the length of 

any such negotiations may be curtailed. 21 For example, where 

a vacancy occurs in a rank for which the Civil Service eligibility 



list is due to expire in a short time, an employer may be able to 

insist on an expedited or truncated (curtailed) bargaining 

process. 


An argument could be made that the matter of promotions is entirely a 

managerial prerogative and, therefore, bargaining is not required. 

However, as discussed above, the Labor Relations Commission has 

determined that this is not the case. The courts would be likely to impose 

some bargaining obligation, even if they determined that promotional 

criteria and procedures were an exclusive managerial prerogative. In such 

cases the courts probably would still impose an obligation to bargain about 

the impact of the proposed change on a mandatory subject of bargaining. 22 

The Commission decisions in promotion cases generally do not refer either 

to impact or decisional bargaining. However, the remedies awarded and 

the dicta of such cases support the proposition that the LRC views such 

cases as requiring decisional bargaining. 

In the context of changing promotional criteria or procedures, the 

distinction may not be terribly significant. It is clear that in either case an 

employer must engage in good faith negotiations with the exclusive 

representative (union) until reaching either agreement or impasse. In 

impact cases, the employer might be able to confine the union’s role to 

questions concerning the impact of management’s decision to use a new 

testing component, for example. In decisional bargaining, the employer 

would have to engage in good faith discussions and keep an open mind to 

union-proposed alternatives. As a practical matter, it is likely that virtually 

identical topics would be discussed in either context. 



1 Chapter 730 of the Acts of 1977, as amended. 

2 Commonwealth of Massachusetts, 9 MLC 1082, 1083 (1982); Town of Danvers, 3 MLC 1559 (1977); 

Town of Wilbraham, 6 MLC 1668 (1979); Boston School Committee, 3 MLRR 1148 (1977). 

3 Town of Wilbraham, supra note 1; Town of Danvers, supra, note 1. 

4 Town of Norwell, 16 MLC 1575 (1990) 

5 Town of Danvers, 9 MLC 1829 (1983) 

6 Town of Stoneham, 8 MLC 1275 (1981) 

7 Town of Wayland, 5 MLC 1773 (1978) 

8 School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557, 572 (1983). 

9 Commissioner of Administration and Finance v. Labor Relations Commission, 60 Mass.App.Ct. 1122, 

805 N.E.2d 531 (Table) (2004) (unpublished). 

10 Comm. of Mass., 17 MLC 1282 (1991) 

11 Boston School Comm., 4 MLC 1912 (1978) 

12 City of Gardner, 10 MLC 1218 (1983) 

13 Id. 

14 Comm. of Mass., 21 MLC 1029 (1994) 


16 Town of Marblehead, 12 MLC 1668 (1985) 

17 City of Gardner, 10 MLC 1218 (1983) 

18 Town of Arlington, 21 MLC 1125 (1994) 

19 Woods Hole, Martha’s Vineyard, 12 MLC 1531 (1986) 

20 Town of Brookline, 20 MLC 1570 (1994) 

21 Town of Wilbraham, 6 MLC 1668 (1979) 

22 School Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 447 N.E.2d 1201 (1983). 


CHAPTER 7 - APPOINTMENTS 

The appointment of public safety (police and fire) employees is an inherent 

managerial prerogative that is not subject to arbitration. 1 An employer is 

free to determine non-discriminatory qualifications for job vacancies. 

There is no need to involve the union in this matter of managerial 

prerogative. However, the starting pay or step is a matter of union 

concern. If a municipal employer wants to hire someone at a rate or step 

different from that set by the collective bargaining agreement, it must so 

notify the Union. It may not be necessary to secure the union’s consent so 

long as the municipal employer provides notice and opportunity to 

bargain. While the cases are not clear, it is possible that bargaining in 

good faith to the point of agreement or impasse is all that is required. (A 

safer practice is to include a notation in a contract that management 

reserves this right. It is often easier to reach agreement when no one is 

about to be hired.) 

§ 1 HIRING STANDARDS 

An employer does not need to bargain over hiring decision and 

qualification standards. Both the National Labor Relations Board (NLRB) 

and the Massachusetts Labor Relations Commission (LRC) have held that 

a union cannot insist on bargaining over terms and conditions of 

employment of persons who are not yet members of the bargaining unit. 2 

In Allied Chemical Workers v. Pittsburgh Plate & Glass Co., 3 the Supreme 

Court said: 

The obligation to bargain extends only to the 

[wages, hours and] terms and conditions of 

employment of the employer’s employees in the 

unit appropriate for such purposes which the 

unit represents. 

Conditions imposed on applicants for a job, i.e., “conditions for hire”, are 

not subject to a bargaining obligation, because “mere applicants for hire, 

who have had no prior employment within the bargaining unit in question, 

are not ‘employees in the unit’ within the meaning of Section 5 of the 

Law.” 4 The LRC, in Boston School Committee 5 ,held that a public employer 

has no duty to bargain over a requirement which is purely a condition of 

hire. The LRC said: 

The law gives the exclusive representative the 

right to act for and negotiate agreements 

covering [only] employees in the unit. Mere 


Appointments 7-2 

applicants for hire, who have had no prior 

employment within the bargaining unit in 

question, are not employees in the unit. The 

exclusive bargaining representative does not 

have the right . . . to bargain in behalf of such 

applicants. 6 

The National Labor Relations Board has held that requiring drug and 

alcohol tests of all applicants was outside the scope of bargaining. 7 

Similarly, the LRC, in the Boston School Committee case, made it clear that 

the employer can use any hiring criteria it wants as a condition of hire, so 

long as the criteria employed are not discriminatory. 8 Thus in Boston 

School Committee 9 and Town of Lee 10 , the LRC upheld residency 

requirements as a precondition to employment. 

Nevertheless, when an employer’s hiring decisions impact the terms and 

conditions of employment of existing bargaining unit members, the LRC 

has allowed the unions to challenge the practice. Challenges to an 

employer’s hiring practices generaly involve two types of disputes: 1) 

transfer of bargaining unit work to non-bargaining unit members, 11 and 2) 

imposing new obligations on applicants which carry over into 

employment. 12 

The City of Lawrence case encompasses the first type of dispute. 13 There 

the employer alleged that its transfer of work (previously held by city 

bargaining unit members) to prisoners and welfare recipients was not an 

unlawful transfer of bargaining unit work because the transferees were 

not “hired” or “employed” by the city. 14 The ALJ rejected this defense, 

stating that the employer could not escape an unlawful transfer of 

bargaining unit work charge by claiming that the transferees were not 

“hired”. 15 

The second type of dispute is more common. In City of Haverhill, the 

employer imposed a requirement on applicants that they take a 

psychological examination, the results of which were not made known 

until after the applicant became employed. 16 The Hearing Officer noted 

the general rule that an employer’s hiring practices cannot be the subject 

of debate or bargaining with the union, but stated that the psychological 

testing requirement in Haverhill was more of a “condition for continued 

employment” than a “condition of hire”. Thus, “once the employer hires 

an applicant, even conditionally, and that person performs work for 

wages, the individual has become a bargaining unit member, thus 

dissipating the ‘mere applicant’ rationale.” 17 In Haverhill, the “applicants” 

had actually been employed for five months at the time they were 

terminated based on the results of the psychological examination. The 

Hearing Oficer found that the employer’s imposition of the test without 



providing the union with an opportunity to bargain, as a requirement of 

continued employment, constituted a prohibited practice. 18 

While an employer is also free to create new positions and establish the 

hiring criteria for those positions, 19 the new positions may be included in 

the bargaining unit. The employer may not, as a means of evading union 

representation, eliminate a bargaining unit position and “create” a new 

one outside of the unit. 20 


In the public safety service, it is essential to evaluate thoroughly all 

applicants for employment. The union’s role starts once an individual 

begins work. Whatever the municipal employer does by way of 

recruitment, background check, evaluation, and testing (including aptitude, 

intelligence, medical, drug/alcohol and psychological), is of no lawful 

concern to the union. 

Employers must be mindful of the requirements of the Americans with 

Disabilities Act (ADA) as well as M.G.L. c. 151B when medical and 

psychological testing is used. It is necessary that the applicant be given a 

“conditional ofer of employment” before such testing is performed. Thus, 

if they pass the physical and/or psychological tests, they have the job. 

(Psychological testing which is limited to personality and other non-disease 

screening may be done before the conditional offer of employment, 

however.) 

If certain test results have not been received as of the planned date of 

appointment, the only way an employer can hire the individual 

“conditionaly” is with the consent of both the individual and the union. 

In Boston School Committee, the Labor Relations Commission made it clear 

that an employer can set any qualification it wishes as a condition of hire, 

so long as it is not discriminatory. 21 Nonetheless, there have been a few 

cases where a union has challenged an employer’s ability to impose a 

certain qualification. Couched in terms of pre-hire conditions, the analysis 

in these cases is the same as it would be for qualifications. The LRC’s 

decisions regarding pre-hire conditions have concluded consistently that 

pre-hire qualifications are an exclusive managerial prerogative which need 

not be bargained with a union. 

While an arbitrator may void an appointment if it violates a provision in a 

collective bargaining agreement, the arbitrator cannot direct that another 

individual be appointed. 22 



In both Boston School Committee, 23 and Town of Lee, 24 the LRC upheld the 

imposition of a residency requirement on all new hires as a condition of 

hire. As a condition of hire, it only pertained to applicants who, as 

potential or prospective employees, are not members of the bargaining 

unit. Similarly, in Star Tribune, 25 the National Labor Relations Board 

(NLRB) held that requiring drug and alcohol tests of all applicants was 

outside the scope of bargaining. In City of Haverhill, 26 the LRC held that 

an employer could impose a qualification that all applicants undergo a 

psychological exam as a condition of being hired. In each of these cases, 

the key inquiry was whether or not the qualification was imposed on 

applicants or employees; so long as the qualification only affected 

applicants, they were upheld. 


While the distinction between applicant and employee seems clear, there is 

one nuance of which employers should be aware. Any qualifications or 

conditions of hire must be imposed and decided before the person is hired, 

even if only conditionally. 

While whether a person meets the qualifications such as college degrees, 

CPR training, etc., can be decided immediately, some qualifications often 

take longer to consider. Where such a delay occurs, and the employer 

chooses to conditionally-hire the applicant, permitting the person to work 

pending the confirmation of a qualification, the LRC will likely consider the 

person an “employee” and require the employer to bargain over that 

qualification. Psychological testing which was not given until after an 

employee started work is such an example. 27 Where the results are not 

known or the test is not even administered until after the person was put 

to work, the qualification actually becomes a condition of continued 

“employment”, not a condition of “hire”. 

Attention should also be paid to the requirements of various federal and 

state anti-discrimination laws. For example, the Americans With 

Disabilities Act (ADA) (and presumably G.L. c.151B) precludes medical and 

psychological illness testing until a conditional offer of employment is 

made. 

§ 2 ENTRY-LEVEL WAGES 

Unlike establishing qualifications for applicants, establishing wages for 

entry-level employees is a mandatory subject of bargaining. 28 Wages, 

because they are earned after an applicant becomes an employee and a 

member of the bargaining unit, must be negotiated if the union so 

requests. 29 An employer may not unilaterally decrease or increase the 



entry-level wage of a bargaining unit position without giving the 

bargaining representative notice and an opportunity to bargain. 

Dracut School Committee 30 held that an employer cannot offer an applicant 

for a bargaining unit position a different pay rate than it is paying present 

bargaining unit members without offering to bargain (or at least providing 

the union with notice and an opportunity to bargain.) In that case, the 

school commitee and the teachers’ association were parties to a colective 

bargaining agreement which provided that all newly-hired teachers were to 

be placed at a salary step commensurate with their teaching experience. 

For more than fifteen years, the school committee capped the step 

placement of new-hires at Step 5 regardless of their experience. Realizing 

the difficulty such a cap had on attracting qualified teachers, the 

Committee unanimously voted to remove the Step 5 cap for new-hires. 

While the union argued that the school committee could not unilaterally 

change its past practice without first giving the union an opportunity to 

bargain over that mandatory subject, the school committee argued that it 

had three grounds on which to justify its decision. First, it argued that 

the establishment of an individual’s salary-step level was purely between it 

and the individual. The school committee argued that since the individual 

was not yet a bargaining unit member, the union had no right to demand 

bargaining. Next, the school committee argued that the establishment of 

step levels was a non-bargainable management right because it involved 

the establishment of educational policy. Finally, the school committee 

argued that if it were required to bargain over the step levels given to newhires, 

it could be impermissibly constrained from hiring the applicant of 

its choice, which it argued was a management right. 

Beginning its opinion by stating the general rule that initial wages for a 

newly-created bargaining unit position are “wages” for bargaining 

purposes, the LRC then cited a recent case where it held that payments 

made to employees because of their work performance and length of 

service did constitute “wages”. 31 

Addressing each of the school commitee’s arguments in order, the LRC 

first found that since one’s step level directly afects his or her “wages”, it 

was a mandatory subject of bargaining. In deciding as it did, the LRC 

said: 

It is true that mere applicants for hire who have 

not had prior employment within the unit are 

not employees in the unit. However, it is the 

bargaining unit position, not the individual 

applicant, that is the focus of this case. If a 

bargaining unit is under contract and subject to 

certain conditions of employment and an 



employee is hired into a bargaining unit 

position, the new employee’s wages are governed 

not only by the existing contract but also any 

established practice that affects that position. 32 

It next concluded that there is a clear distinction between “educational 

policy” and “terms and conditions of employment”. 33 Salary levels, it said, 

were not matters of educational policy but are terms and conditions of 

employment. 

Turning lastly to the school commitee’s argument that bargaining over 

step-levels would infringe on its management rights by restricting it from 

hiring the applicant of its choice, the LRC found that the duty to bargain 

does not afect the school commitee’s choice of candidates for bargaining 

unit positions. Moreover, while conceding that the decision to remove the 

top “step” was done pursuant to the school commitee’s need to atract 

experienced teachers into the school system, the LRC said it would only 

uphold the unilateral action if it found great economic necessity. 

Removing the top step for new hires, said the Commission, was not such 

an economic necessity. While sympathetic to the school commitee’s 

needs, it refused to uphold the change because “where the action of an 

employer is certain to undermine the status of the union, the overall 

employer’s justification of economic necessity may not serve as a 

defense”. 34 


An employer that wishes to create a new position is free to do so. There is 

no need to discuss with the union whether the position should be created. 

The qualifications are totally up to the employer. However, the sooner 

some discussion is started with the union, the smoother the process is 

likely to flow when it comes to matters which the union is entitled to 

discuss. 

One matter deserving attention is whether the new position should be 

included in an existing bargaining unit, and, if so, which unit. Usually this 

will not be a difficult decision. However, if management seeks to have a 

new position excluded from any unit, a CAS Petition is likely to be filed by 

one or more unions with the LRC. 

Assuming the employer agrees the new position should be included in an 

existing bargaining unit, it will be helpful to notify the union of plans to 

recruit and hire for the position. Showing the union a draft job description 

and the proposed salary range and qualifications will satisfy 

management’s obligations to aford the union with notice. Unless the 



union requests bargaining in a timely manner, the employer is free to 

recruit and hire consistent with the pay specified in the notice. 

It may not be possible to utilize mid-term bargaining where the employer 

wants to change the entry-level pay for a position which is already covered 

by the existing contract. If the union refuses to discuss a proposed 

change, management may have to wait until successor contract 

negotiations get started. 



1 Chapter 730 of the Acts of 1977. 

2 Allied Chemical Workers v. Pittsburgh Plate & Glass Co., 407 U.S. 157, 92 S.Ct. 383 (1971). 

3 Id. 

4 Boston School Committee, 3 MLC 1603, 1608 (1977). See also, Town of Lee, 11 MLC 1274, 1276, n. 5 

(1984). The LRC has decided a number of cases that find an exception to this rule, however. See, e.g., 

Dracut School Committee, 13 MLC 1055 (1986) (finding that employer violated law by unilaterally 

changing the salary caps for newly hired employees). Wages will be discussed further in another section of 

this Chapter. 

5 Boston School Committee, 3 MLC 1063 (1977). 

6 Id. at 1068. See, Chelmsford Sch. Admin. Assoc., 8 MLC 1515 (1981); Saugus Sch. Comm., 7 MLC 1849 

(1981); Town of Randolph, 8 MLC 2044 (1984) 

7 Star Tribune, 295 NLRB 63 (1989). 

8 Boston School Committee, 3 MLC 1603. Discrimination will be covered in a later chapter. 

9 

Id. 

10 Town of Lee, 11 MLC 1274 (1984). But see, City of Worcester, 5 MLC 1414 (1978) (holding that City 

did have duty to bargain over imposition of residency requirement as a condition of continued 

employment). 

11 See Lawrence, 21 MLC 1691 (1995). 

12 See Lowell School Committee, 22 MLC 1321 (1996). 

13 City of Lawrence, 21 MLC 1691 (1995). 

14 Id. at 1694. 

15 Id. 

16 City of Haverhill, 16 MLC 1077 (1989). 

17 Id. at 1082. See also, Lockheed Shipping Co., 273 NLRB 1711, 118 LRRM 1254 (1984). 

18 City of Haverhill, 16 MLC at 1083. See also, Lowell School Committee, 22 MLC 1321, 1325 (1996) 

(ALJ holding that School Commitee’s change in the method of appointing coaches and advisors, who had 

previously been appointed until they chose to relinquish the position and who now had to undergo reappointment 

procedures, constituted an unlawful unilateral change in working conditions). 

19 City of Lowell, 12 MLC 1656 (1986) (holding that it was employer’s managerial prerogative to 

reestablish a position previously eliminated). 

20 City of Leominster, 17 MLC 1391 (1991). 

21 Boston School Committee, 3 MLC 1063 (1977) 

22 See School Commitee of Lowel v. Local 159, Service Employees Int’l Union, 42 Mass.App.Ct. 690, 679 

N.E.2d 583 (1997);School Commision of Peabody v. Peabody Fed’n of Teachers, Local 1289, 51 

Mass.App.Ct. 909, 748 N.E.2d 992 (2001); School Committee of Newton v. Newton School Custodians 

Association, Local 454, SEIU, 438 Mass. 739, 784 N.E.2d 598 (2003). 

23 Id. 

24 Town of Lee, 11 MLC 1274 (1984). See, City of Worcester, 5 MLC 1414 (1978) (held Town did have 

obligation to bargain over imposing a residency requirement as a condition of continued employment.) 

25 Star Tribune, 295 NLRB 63 (1989). 



28 Melrose School Committee, 3 MLC 1299 (1976); Northeast Reg. Sch. Dist., 1 MLC 1075 (1974). 


30 Dracut School Committee, 13 MLC 1055 (1986). 

31 Natick School Committee, 11 MLC 1387 (1985). 

32 Dracut School Comm., 13 MLC at 1057. 

33 See, School Committee of Hanover v. Curry, 369 Mass. 683, 343 N.E.2d 144 (1976). 

34 Dracut School Committee, 13 MLC at 1058 citing Blue Hills Regional School District, 3 MLC 1613 

(1977). 


CHAPTER 8 - BARGAINING 

UNIT WORK 

A public employer violates Section 10(a)(5) of the Law when it transfers 

work performed by bargaining unit members to non-bargaining unit 

personnel without giving its employees' exclusive collective bargaining 

representative prior notice and an opportunity to bargain to resolution or 

impasse. 1 To determine whether a department may contract out 

bargaining unit work, and whether there are bargaining obligations for 

doing so, one must look first to the language contained in the collective 

bargaining agreement itself. A public employer must bargain with the 

union before transferring work traditionally performed by bargaining unit 

employees to personnel outside the unit. 2 In order to prove that an 

employer unlawfully transferred work outside the bargaining unit, the 

union must show: 

1. the employer transferred unit work to non-unit personnel; 

2. the transfer of work had an adverse impact on either 

individual employees or on the bargaining unit itself; and 

3. the employer did not provide the union with prior notice of the 

decision to transfer the work and opportunity to bargain. 3 

The Commission has held consistently that a transfer of bargaining unit 

work, even if accompanied by no apparent reduction in bargaining unit 

positions, constitutes a detriment to the bargaining unit because it could 

result in an eventual elimination of the bargaining unit through gradual 

erosion of bargaining unit duties. 4 Similarly, the Commission has held 

consistently that losing the opportunity to perform unit work in the future 

is a sufficient detriment to the unit to trigger a bargaining obligation. 5 In 

a recent case, while the number of bargaining unit members may have 

remained the same, the bargaining unit lost a specialized position that 

was specifically enumerated in the collective bargaining agreement. 6 

Bargaining unit members therefore lost the opportunity to perform that 

position, and to earn the stipend associated with that position. These 

factors constitute an adverse impact that is sufficient to trigger the 

bargaining obligation. 7 The courts have supported these positions. 8 In a 

2004 Appeals Court case involving the State Department of Mental 

Retardation, the department transferred bargaining unit work from 

second-level residential supervisors to non-union program managers when 

it allowed managers to directly supervise first-level supervisors in new 

four-person group homes; the transfer of bargaining unit work constituted 

a detriment to the bargaining unit; and the Department failed to give 


Bargaining Unit Work 8-2 

union notice and opportunity to bargain. However, the Commission was 

required to modify its order to eliminate the suggestion that the end result 

of bargaining would be the restoration of certain duties to the bargaining 

unit. 

In a 2002 case involving the Boston Police Department, the Association 

argued that the City transferred bargaining unit work when it assigned 

two individuals to identify latent prints recovered from crime scenes after 

they were promoted to detective. 9 

To determine whether the City transferred bargaining unit work, the LRC 

must first determine whether the duty of latent print identification was the 

exclusive bargaining unit work of patrol officers or whether patrol officers 

shared the work with non-unit personnel. When work is shared by 

bargaining unit members and non-unit employees, the Commission has 

determined that the work will not be recognized as exclusively bargaining 

unit work. 10 In those shared work situations, an employer is not obligated 

to bargain over every incidental variation of job assignments between unit 

and non-unit employees. 11 Rather, the employer is only required to 

bargain if there is a calculated displacement of unit work. 12 Therefore, if 

unit members have performed an ascertainable percentage of the work, a 

significant reduction in the portion of the work performed by unit 

members with a corresponding increase in the work performed by nonunit 

employees may demonstrate a calculated displacement of unit 

work. 13 

An employer must bargain about a transfer of unit work if the transfer of 

unit work results in an adverse impact on individual employees or the 

bargaining unit as a whole. 14 Here, the City's assignment of latent print 

identification duties to the two individuals after they became detectives 

denied individual unit members the opportunity to perform the specialized 

duty of identifying latent prints 15 , and reduced the opportunities for 

bargaining unit members to perform this work in the future. 16 

Accordingly, the City's transfer of the latent print identification work had 

an adverse impact on individual bargaining unit members and to the 

bargaining unit as a whole that triggered the City's statutory obligation to 

bargain to resolution or impasse with the Association prior to transferring 

that work. However, the record indicates that the City did not notify the 

Association that it planned to transfer unit work to non-unit employees or 

bargain with the Association prior to transferring the exclusive bargaining 

unit work at issue here. 

Often, during the life of an existing bargaining agreement, public safety 

and other municipal departments realize that certain tasks, such as 

custodial and maintenance work, for example, could be performed in a 

more efficient or cost effective manner if they were contracted out to the 



private sector rather than performed by bargaining unit personnel. 

Similarly, an employer may desire to transfer bargaining unit work to 

other municipal employees outside of the bargaining unit. 

An employer's decision to transfer bargaining unit work to non-unit 

personnel and the impacts of that decision are mandatory subjects of 

bargaining that trigger the bargaining obligation defined in School 

Committee of Newton. 17 This was the case where the Saugus Police 

Department decided to transfer vehicle repair duties to the DPW garage 

once the full-time police officer mechanics retires after thirty years on the 

job. 18 Even though certain work (transmissions, etc.) had been contracted 

out, the LRC found that the “shared work” exception did not apply. The 

town was required to restore the position and bargain to agreement or 

impasse before transferring out such work. 

In a 2002 case involving the State Police Crime Lab, the Labor Relations 

Commission found that on-call duty for the purpose of receiving calls from 

the DEA to assist in clandestine lab investigations was exclusively 

bargaining unit work. 19 

In addressing the second element of the Commission's analysis, the 

Commonwealth argued that the Union has suffered no adverse impact as 

a result of the alleged transfer of work, because the affected chemists 

continued to receive on-call pay and overtime associated with responding 

to the clandestine lab requests, and because managers did not perform 

the duties of the DEA-trained chemists at clandestine labs. A bargaining 

unit suffers an adverse impact whenever it loses an opportunity to 

perform work in the future. 20 The LRC noted that after the 

Commonwealth rescinded the on-call list, the bargaining unit lost the 

opportunity to earn on-call pay at the same level as it had prior to the 

change. Therefore, the evidence established that the revocation of the list 

directly and adversely impacted the bargaining unit's ability to earn oncall 

pay in the future. 

In addressing the third factor in the transfer of bargaining unit work 

analysis, the Commonwealth argued that it had no obligation to bargain 

over the alleged transfer of work because the Union contractually waived 

its right to bargain, maintaining that the parties already negotiated a 

stand-by provision in the parties' collective bargaining agreement. A 

contractual waiver must be knowing, conscious, and unequivocal. 21 In 

determining whether a union has contractually waived its right to bargain, 

the Commission will first examine the language of the contract. 22 The 

Commission has consistently held that an employer asserting the 

affirmative defense of contract waiver must show that the subject was 

consciously considered and that the union knowingly and unmistakably 

waived its rights to bargain. 23 



The Commonwealth additionally contended that it had no duty to bargain 

with the Union because revocation of the on-call list was a managerial 

decision concerning the provision of services. Decisions concerning the 

deployment of public services are management prerogatives, not subject to 

bargaining. 24 (City's decision to provide fire prevention inspections at a 

vacant school building constitutes a level of services decision) 25 ; (the 

number of custodians assigned to each building is a managerial 

decision) 26 ; (decision concerning whether to require police presence at 

certain construction details is a core governmental decision impacting the 

level of services to be offered.) 

Relying on Town of Dennis 27 , the Commonwealth asserted that due to the 

extremely low numbers of requests for assistance from the DEA with 

clandestine lab investigations, 24-hour on-call duty by chemists was no 

longer warranted. In Town of Dennis, the Commission found that the 

Town's decision to discontinue providing private police details at liquor 

service establishments was a level of service decision, and determined that 

the Town was only required to bargain over any impacts of that decision 

on bargaining unit members. 28 However, the LRC determined that this 

case does not concern a level of services decision because the DSP 

continues to provide 24-hour, seven day a week coverage for calls from the 

DEA requesting assistance with clandestine lab investigations. Moreover, 

the Commission has held that where the same services previously 

performed by unit employees are to still be used by the employer in its 

operations, but are to be performed by non-unit employees, the bargaining 

obligation will arise unless the employer can show a compelling 

nondiscriminatory reason why it should be excused from the obligation. 29 

Although the Commonwealth alleged that the chemists' on-call duty for 

clandestine lab investigations was costly and unnecessary given the small 

number of requests for assistance from the DEA, the Commission did not 

find that these reasons to be sufficiently compelling to excuse its duty to 

bargain with the Union over the transfer of that on-call duty to 

management personnel. Lastly, the Commission noted that even if this 

case concerned a level of services decision, the Commonwealth was still 

required to bargain with the Union over the impacts of the decision to 

transfer stand-by duty. 30 There was no evidence that the Commonwealth 

bargained over the impacts of the decision to transfer on-call duty from 

bargaining unit members to management personnel. 

For all of the above reasons, the Commission concluded that the 

Commonwealth violated the Law by transferring on-call duty from 

bargaining unit members to non-unit personnel without first giving the 

Union notice and an opportunity to bargain to resolution or impasse. 



§ 1 REMEDY 

If the LRC concludes that an employer has unilaterally transferred 

bargaining unit work to non-unit personnel, without first giving the union 

notice and an opportunity to bargain to resolution or impasse about the 

decision and the impacts of the decision, a remedial order will issue. 31 

The following items are likely to be included in such order: 

Upon request, bargain in good faith with the union to 

resolution or impasse concerning the decision to transfer 

duties to non-union employees. 

 

Restore to the bargaining unit the following duties that were 

transferred to a non-unit employees: 

. 

The obligation to restore the foregoing duties to the 

bargaining unit shall continue until the earliest of the 

following conditions is met: 

1. Mutual agreement is reached with Union relating to the 

subjects of bargaining set forth in paragraph 2(a) above; 

2. Good faith bargaining results in a bona fide impasse 

3. The Union fails to request bargaining within fifteen (15) 

days of this Modified Order; OR 

4. The Union subsequently fails to bargain in good faith. 

5. Make whole any bargaining unit member who suffered a 

monetary loss as a result of the Commonwealth’s decision 

to transfer the duties. The obligation to make employees 

whole shall continue until the earliest of the enumerated 

conditions, set forth in paragraph 2(b) are met 

6. Post in conspicuous places where employees represented 

by the Union usually congregate, or where notices are 

usually posted, and display for a period of thirty (30) days 

thereafter, the attached Notice to Employees. 

7. Notify the Commission within ten (10) days of receipt of 

this Order of the steps taken to comply with it. 

§ 2 CONTRACT OUT/NON-CONTRACT OUT CLAUSES 

Whether an employer is restricted from subcontracting out work depends 

on whether it is expressly barred from doing so in the collective bargaining 

agreement. 32 In the absence of a contractual prohibition, an employer is 

free to contract out bargaining unit work so long as it fulfills its mid-term 

bargaining obligations. A “non-contract out” or “work preservation” clause 

is a provision contained in a collective bargaining agreement whereby the 



employer agrees that it will not subcontract bargaining unit work outside 

the bargaining unit. 33 Alternatively, an employer and its employees may 

adopt a bargaining agreement provision in which the employer expressly 

reserves the right to contract out bargaining unit work. 34 

Under a “non-contract out” clause, an employer may not contract out 

services irrespective of whether it is willing to engage in decision or impact 

bargaining. 35 Conversely, where there exists a contract provision which 

expressly grants the employer the right to contract out bargaining unit 

work, the employer may exercise that right without bargaining over its 

decision to do so. 36 The employer must, however, afford the union an 

opportunity to bargain over the impact of that decision. 37 

1) Waiver 

The Commission has consistently held that a union waives its right to 

bargain by inaction if the union: 1) had actual knowledge or notice of 

the proposed action; 2) had a reasonable opportunity to negotiate 

about the subject; and 3) had unreasonably or inexplicably failed to 

bargain or request bargaining. 38 The employer must prove these 

elements by a preponderance of the evidence, as the Commission 

does not infer a union's waiver of its statutory right to bargain 

without a "clear and unmistakable" showing that a waiver occurred. 39 

Because “contract out” and “non-contract out” clauses constitute a 

waiver of a party’s respective rights, the Labor Relations Commission 

will only enforce them if they are clear and unambiguous. 40 Only 

where the waiver is reasonably ambiguous will the Commission 

consider the bargaining history between the parties. 41 

With regard to “contract out” provisions, the Commission has most 

frequently found that the clauses at issue did not sufficiently afford 

the employer the right to contract out work without having to bargain 

with the union first. 42 In those cases, the employers unsuccessfully 

sought to rely on the wording in the management right’s clause to 

“layof because of lack of work or other legitimate reasons.” 

Speaking on what does constitute a contractual waiver, the 

Commission has held that the following clause is sufficiently clear: 

[Management retains the right] to manage the 

affairs of the Town and to maintain and improve 

the efficiency of its operation; to determine the 

methods, means, processes and persons by 

which operations are to be conducted including 

the contracting out of work. 43 [Emphasis added.] 



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. 



1 City of Cambridge, 23 MLC 28, 36 (1996), aff'd sub. nom., Cambridge Police Superior Officers 

Association v. Labor Relations Commission, 47 Mass. App. Ct. 1108 (1999). School Committee of Newton 

v. Labor Relations Commission¸388 Mass. 557 (1983); Lowell School Committee, 28 MLC 29 (2001); see 

also, e.g., City of Somerville, 23 MLC 256, 259 (1997); City of Quincy, 15 MLC 1239, 1240 (1988); City of 

Boston, 6 MLC 1117, 1123 (1979); Town of Danvers, 3 MLC 1559, 1576 (1977); City of Boston, 21 MLC 

1350 (1994). 

2 Commonwealth of Massachusetts, 24 MLC 116 (1998); City of Quincy, 15 MLC 1239 (1988); Town of 

Danvers, 3 MLC 1559 (1977). 

3 Commonwealth of Massachusetts and AFSCME, Council 93, 21 MLC 1029 (1999); Commonwealth of 

Massachusetts, 24 MLC 116 (1998); Higher Education Coordinating Council, 25 MLC 69 (1998); Board 

of Regents of Higher Education, 19 MLC 1485 (1992); City of Gardner, 10 MLC 1218 (1983); Lowell 

School Committee, 28 MLC 29, 31 (2001); City of Gardner, 10 MLC 1218, 1219 (1983); Town of 

Bridgewater, 25 M.L.C. 103, 104 (1998). 

4 City of Holyoke, 26 MLC 97, 99 (2000); Commonwealth of Massachusetts, 24 MLC 116, 119 (1998). 

5 City of Holyoke, 26 MLC 97, 98 (2000); Town of Norwell, 13 MLC 1200, 1208 (1986). 

6 See _________________ 29 MLC 

7 See City of Holyoke, 26 MLC 97, 98 (2000); Town of Norwell, 13 MLC 1200, 1208 (1986); Franklin 

School Committee, 6 MLC1297, 1299 n. 4 (1979). 

8 See Burlington v. Labor Relations Commission, 390Mass. 157, 454 N.E.2d 465 (1983); City of Boston v. 

Labor Relations Commission, 58 Mass.App.Ct. 1102, 787 N.E.2d 1154 (Table) (2003) (unpublished 

opinion.) 


10 Higher Education Coordinating Council, 23 MLC 90, 92 (1996); City of Boston, 6 MLC 1117, 1125 

(1979). 

11 City of Somerville, 23 MLC 256, 259 (1997). 

12 Town of Bridgewater, 23 MLC 103, 104 (1998). 

13 Commonwealth of Massachusetts, 27 MLC 52, 56 (2000); City of New Bedford, 15 MLC 1732, 1737 

(1989); see also Commonwealth of Massachusetts, 29 MLC 43 (2002). 

14 City of New Bedford, 15 MLC 1732, 1737 (1989). 

15 See e.g. Commonwealth of Massachusetts, 24 MLC 118, 119 (1998). 

16 See e.g. City of Cambridge, 23 MLC at 50; Franklin School Committee, 6 MLC 1297 (1979). 

17 Supra; see e.g., Higher Education Coordinating Council, 23 MLC 90, 92 (1996); City of Quincy, 15 

MLC 1239, 1240 (1988). 

18 Town of Saugus, 29 MLC 208 (2003). 


20 See City of New Bedford, 15 MLC 1732, 1739 (1989). 

21 Town of Marblehead, 12 MLC 1667, 1671 (1986). 

22 Id. 

23 Board of Trustees of the University of Massachusetts/University Medical Center, 21 MLC 1795, 1802 

(1995). 

24 See City of Newton, 16 MLC 1036 (1989) 


26 City of Worcester, 4 MLC 1378 (1977). 

27 Town of Dennis, 12 MLC 1027 (1985). 

28 Id. at 1031. 

29 See City of Boston, 4 MLC 1202, 1210 (1977) (employer had an obligation to bargain over 

subcontracting bargaining unit work to private employees). 

30 School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983). 

31 See, e.g., Commonwealth of Massachusetts, 31 MLC 112 (2004). 

32 Gaylord Container Corp., 93 LA 465 (Abrams 1989). See, e.g., Champion International Corp., 91 LA 

245 (Duda 1988) (bargaining agreement specifically prohibited paper mill from contracting out work 

“normaly performed” by maintenance employees); Hoffman-Marmolejo, 93 LA 132 (1989) (employer 

violated bargaining agreement’s no-subcontracting clause when it subcontracted utility work). 



33 Safeway Stores, Inc., 95 LA 668 (Goodman 1990) 

34 See, Town of Acushnet, 11 MLC 1423 (1985). 

35 Champion International Corp., 91 LA 245 (Duda 1988). 

36 Town of Marblehead, 12 MLC 168 (1985). 

37 Id. 

38 Town of Dennis, 26 MLC 203, 204 (2000); Town of Hudson, 25 MLC 143, 148 (1999). 

39 Holyoke School Committee, 12 MLC 1443, 1452 (1985), citing City of Everett, 2 MLC 1471, 1476 

(1976), affd. Labor Relations Commission v. City of Everett, 7 Mass. App. Ct. 826 (1979). 

40 Bd. of Regents, 19 MLC 1248 (1992); Melrose Sch. Comm., 9 MLC 1713 (1983). 


42 See, e.g., Comm. of Mass., 21 MLC 1029 (1994); Boston School Comm., 4 MLC 1912 (1978); Town of 

Marblehead, 12 MLC 168 (1985). 

43 Town of Acushnet, 11 MLC 1425 (1985). 

44 Comm. of Mass., 21 MLC 1039 (1994); Mass Board of Regents, 19 MLC 1485, 1487-88 (1992). 

45 Fireboard Products Inc. v. NLRB, 379 U.S. 203, 85 S.Ct. 398 (1964). See also, Comm. of Mass., 17 

MLC 1282 (1991); City of Boston, 4 MLC 1202 (1977). 

46 City of Lowell, 25 MLC 33 (1998). 

47 Id. 

48 City of Gardner, 10 MLC 1218, 1218 (1983). 

49 Comm. of Mass., 21 MLC 1039 (1994). 

50 Boston School Committee, 4 MLC 1912, 1915 (1978), as cited in City of Gardner, 10 MLC 1218, 1221 

(1983). 

51 City of Gardner, 10 MLC 1218, 1219 (1983). See, e.g., Comm. of Mass., 21 MLC 1029 (1994) (employer 

refused union’s repeated requests to bargain); Town of Marblehead, 12 MLC 1668 (1985) (employer gave 

notice, but then refused union’s request to bargain). 


CHAPTER 9 - REORGANIZATION 

A governmental employer's decision to reorganize a department is within 

its managerial prerogative. 1 A public employer may exercise its 

managerial prerogative to determine the nature and level of its services 

without first bargaining over this decision with its employees' exclusive 

collective bargaining representative. 2 This is the case even where the 

reorganization involves transferring bargaining unit work to a position 

outside the bargaining unit. 3 

A public employer still must negotiate over the impacts of a core 

governmental decision on mandatory subjects of bargaining prior to 

implementation. 4 Such duty to impact bargain generally includes the 

duty to reach agreement or impasse with the union prior to 

implementation of the reorganization decision. 5 

In an effort to reduce costs and/or free up uniformed public safety 

employees, some departments have considered utilizing civilian 

dispatchers in place of sworn personnel. This can be done in an 

individual department or could involve combining one or more public 

safety dispatch functions into a central communications center. So long 

as the proper procedures are followed, this can be done at almost any 

time. 

As a general rule, the assignment of bargaining unit work to persons 

outside of the bargaining unit is a mandatory subject of bargaining. 6 An 

employer violates the Massachusetts Collective Bargaining Law, M.G.L. c. 

150E, by unilaterally changing employees' terms or conditions of 

employment without providing the union with notice and an opportunity 

to bargain. 7 In order to prevail in a charge of prohibited practice (unfair 

labor practice) before the Labor Relations Commission (LRC), an employee 

representative (union) must prove that the work assigned constituted 

bargaining unit work and that the change had a substantially detrimental 

effect on the bargaining unit. 8 

§ 1 BARGAINING UNIT WORK 

In order to determine what constitutes bargaining work, an examination 

must first be made of the parties' collective bargaining agreement, or, if 

that is not conclusive, their past customs and practices. 9 

In the private sector, management may argue that the reassignment of 

work out of the bargaining unit is lawful and requires no bargaining where 


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 


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 



to bargain, and, if requested, negotiate in good faith to agreement or 

impasse. 

§ 2 SUBSTANTIAL DETRIMENT 

The next issue to be addressed is whether the elimination of certain job 

duties from the bargaining unit causes it substantial detriment. 18 

A review of several LRC decisions will be helpful to illustrate the types of 

cases likely to result in adverse Commission rulings. No violation was 

found where the City of Boston hired traffic supervisors over the summer 

and expanded their duties to encompass issuing tickets and directing 

traffic at intersections. 19 Police officers normally performed that type of 

work. However, there was apparently enough work to go around. No 

officer lost overtime or was laid off and otherwise this work would not have 

been performed. The Commission concluded that there was no 

substantial detrimental impact on the police officer bargaining unit. 

In a case involving the decision to staff firehouses with call firefighters at 

night, rather than permanent full-time members of the union, the 

Commission found this to be an unlawful unilateral assignment of 

bargaining unit work. 20 If the night shifts had not been filled with call 

firefighters, the regulars would have been used (as contrasted with the 

Boston case above). 

While a decision simply to reduce the level of services is a managerial 

prerogative, the decision to transfer bargaining unit work previously 

performed by a security supervisor to employees outside of the bargaining 

unit, without giving the union prior notice and an opportunity to bargain, 

was held unlawful by the Commission. 21 Similarly, a Hearing officer 

found a violation where the employer transferred to the Executive Director 

the supervisory duties formerly performed by the position of maintenance 

foreman in a bargaining unit without first affording the union an 

opportunity to bargain over the decision. 22 

§ 3 SHARED WORK EXCEPTION 

The prohibition against unilaterally assigning work does not generally 

apply to "shared work" situations. 23 The work will not be recognized as 

exclusive bargaining unit work. 24 When work is performed by individuals 

both inside and outside of a complaining bargaining unit, the Commission 

will not require bargaining unless the union can show a "clear pattern" of 

assigning the work to bargaining unit members. 25 When work is shared 

by bargaining unit members and non-unit employees, the Commission 

has determined that the work will not be recognized as exclusively 



bargaining unit work. 26 In these shared work cases, an employer is not 

obligated to bargain over every incidental variation in job assignments 

between unit and non-unit employees. 27 Rather, the employer is only 

required to bargain if there is a calculated displacement of unit work. 28 

Therefore, if unit members have performed an ascertainable percentage of 

the work, a significant reduction in the portion of the work performed by 

non-unit (sic) employees may demonstrate a calculated displacement of 

unit work. 29 In a 2002 case involving the Boston Police Department, the 

LRC dismissed a union charge that the hiring of a civilian instructor at the 

police academy amounted to a transfer of union work to non-union 

personnel, as work had been shared. 30 In a Saugus case, the use of both 

truant officers and police officers to perform similar work precluded the 

issuance of a prohibited practice charge. 31 In analyzing what constitutes 

bargaining unit work, the focus should be on the nature of the functions 

performed. 32 For example, the duties of assistants to the supervisors of 

cases were the same at all Boston district courts. 33 

In shared work situations, the Commission’s analysis focuses on the preexisting 

pattern of shared work and the impact that any changes in that 

pattern may have on the allegedly aggrieved party. 34 An employer may not 

unilaterally change a pre-existing pattern of shared work. 35 

In a 2003 case, the record revealed that from 1987 to 1999 patrol officers 

held the majority of the positions of assistant to the supervisor of cases, 

while detectives held a smaler number of those positions. Since the City’s 

appointing a non-union individual did not change the pre-existing 

patterns and so no calculated displacement took place, the City did not 

violate the law. 36 

The union must introduce specific evidence concerning the percentage of 

such work performed by members of the bargaining unit. It failed to do so 

in a police case involving dispatching and ticketing in a shared work 

situation involving police officers, superior officers and even the chief, and 

thus the union's charge was dismissed. 37 

The Commission likewise ruled that the Town of Watertown was not guilty 

of unilaterally assigning police officer work to civilian dispatchers since the 

department had used Comprehensive Employment and Training Act 

(CETA) employees as dispatchers previously. However, the Town was still 

required to bargain the impact (or even the possibility of reversing the 

decision) upon the request of the union in the future. 38 

The Commission next analyzes whether the calculated displacement of 

union work had an adverse impact on either the bargaining unit members 

or the bargaining unit itself. 39 A loss of bargaining unit positions deprives 

bargaining unit members of work opportunities. 40 The transfer of 



bargaining unit work, even accompanied by no apparent reduction in 

bargaining unit positions, constitutes a detriment to the bargaining unit 

(in the LRC’s eyes, at least) because it could result in an eventual 

elimination of the bargaining unit through a gradual erosion of bargaining 

unit opportunities. 41 This is what happened in Hanson where the 

employer created a librarian position and transferred bargaining unit 

duties to that position. 42 The town failed to provide notice and 

opportunity to bargain in violation of the law. 

The union is entitled to request bargaining in an attempt to change the 

status quo. 43 A community is not required to cease the past practice of 

employing civilian dispatchers; however, unless it has a "zipper clause" in 

its collective bargaining agreement, it is required to make itself available to 

negotiate the topic on demand. The fact that a union has not objected to a 

practice for several years does not eliminate its right, at some later date, to 

request bargaining on that practice. 44 

In a case also involving civilian dispatchers, the Town of Dartmouth was 

held to have violated the law when it laid off civilian dispatchers and 

assigned the dispatching work to the police officer bargaining unit. 45 This 

was not a shared work situation and the complete reassignment of all 

bargaining unit work was found to constitute a substantial detriment. 

The Commission dismissed a complaint in a shared work situation 

involving the abolition of the position of Automobile Investigator and the 

reassignment of those duties to detectives. The decision was based 

primarily on the fact that the reassignment of duties resulted from a 

union-initiated representation petition which split-off the detectives in a 

"professional" bargaining unit from the police officers. 46 Similarly, a 

charge was dismissed where the Massachusetts Rehabilitation 

Commission had a long history of purchasing services similar to those 

provided by its vocational rehabilitation counselors. 47 


Municipalities contemplating replacing public safety personnel with civilian 

dispatchers (or other "civilianization" changes) should provide clear 

notification to the exclusive bargaining representative (union) of all affected 

bargaining units months in advance of any anticipated conversion date, 

except in an emergency. An exception may be found in a shared work 

situation where desk or dispatcher duties were not performed exclusively 

by members of only one bargaining unit unless the union can demonstrate 

the exact percentage of work their members performed or show a clear 

pattern of assigning the work to bargaining unit members. 



If the union demands bargaining, management must bargain in good faith 

until reaching either impasse or resolution (agreement). The importance of 

this matter to the affected union is great. Therefore, management must be 

willing to meet a reasonable number of times (at least several) and keep an 

open mind to issues raised and suggestions made by the union. While it is 

difficult to generalize, a department which learns at a spring town meeting 

that its budget has been cut should be prepared to commence negotiations 

promptly thereafter if it hopes to implement changes at the start of the next 

fiscal year (July 1). Labor counsel should be consulted concerning what 

role, if any, the Joint Labor-Management Committee might be expected to 

play, especially if regular contract negotiations are underway at the same 

time. 



1 City of Boston, 21 MLC 1350 (1994); Cambridge School Committee, 7 MLC 1206 (1980); 


2 School Committee of Newton v. Labor Relations Commission, 338 Mass. 557, 447 N.E.2d 1201 (1977). 


4 Mass Board of Regents of Higher Education, 14 MLC 1469 (1988); See Board of Higher Education 

(Quinsigamond Community College), 30 MLC 141 (2004). 

5 Id. 

6 Town of Watertown, 8 MLC 1376 (1981); Town of Danvers, 3 MLC 1559 (1977); Fireboard Paper 

Products Co. v. NLRB, 379 U.S. 703 (1964) 

7 Boston School Committee, 3 MLC 1603 (1977); City of Quincy, 15 MLC 1239 (1988); City of Boston, 6 

MLC 1117 (1979); Town of Danvers, 3 MLC 1559 (1997); Commonwealth of Massachusetts, 26 MLC 228 

(2000). 


9 Town of Watertown, 8 MLC 1376 (1981) 

10 Avon Products Inc., 26 L.A. 422 (1956; see also Elkouri and Elkouri, How Arbitration Works, at 515 and 

n. 473 (3rd Ed. 1973) 


12 Town of Halifax, 20 MLC 1320 (1993) 

13 Lowell School Committee, 21 MLC 1102 (1994) 

14 City of Lawrence, 21 MLC 1691 (1995) 

15 Southshore Regional School District Committee, 22 MLC 1414 (1996) 

16 City of Fall River, 27 MLC 47 (2000). 

17 Citing Commonwealth of Massachusetts, 26 MLC 161 (2000). 



20 Town of Norwell, 13 MLRR 1083 (1984) 

21 City of Haverhill, 11 MLRR 1083 (1984) 

22 Wellesley Housing Authority, 13 MLRR 1032 (1986) 

23 See, Higher Education Coordinating Council, 23 MLC 90 (1996), citing City of Quincy/Quincy Hospital, 

15 MLC 1239 (1998); Commonwealth of Massachusetts, 27 MLC 52 (2000). 

24 Town of Saugus, 28 MLC 13, 17 (2001). 

25 Town of Wilmington, 11 MLRR 1152 (1985) 

26 Higher Education Coordinating Council, 23 MLC 90, 92 (1996); City of Boston, 6 MLC 1117, 1125 

(1979); Town of Saugus, 28 MLC 13, 17 (2001). 

27 Town of Bridgewater, 25 MLC 103 (1999); City of Somerville, 23 MLC 256, 259 (1997). 

28 Town of Bridgewater, 23 MLC 103, 104 (1998). 

29 Commonwealth of Massachusetts, 27 MLC 52, 56 (2000); City of New Bedford, 15 MLC 1732, 1737 

(1989); City of Boston, 26 MLC 144, 146 (2000). 


31 Town of Saugus, 28 LRC 13 (2001). 

32 See generally Town of Norwell, 13 MLC 1200, 1208 (1986). 


34 See City of Boston, 26 MLC 144, 147 (2000); Town of Natick, 11 MLC 1434, 1438 (1985); City of 

Boston, 29 MLC 122 (2003). 

35 See City of Boston, 28 MLC 194, 195 (2002); City of Quincy, Quincy City Hospital, 15 MLC 1239, 1241 

(1988); City of Boston, 6 MLC 1117 (1979). 


37 Town of Natick, 11 MLC 1125 (1985) 

38 Town of Watertown, 8 MLC 1376 (1981) 

39 Town of Hanson, 29 MLC 71 (2002). 

40 See e.g., Town of Bridgewater, 25 MLC 103 (1999); City of Gardner, 10 MLC 1218 (1983). 



41 See Commonwealth of Massachusetts, 24 MLC 116, 119 (1998); citing City of Gardner, 10 MLC at 

1221. 

42 Town of Hanson, 29 MLC 71 (2002). 

43 City of Boston, 7 MLC 2006 (1981); City of Boston, 6 MLC 2035 (1980) 


45 Town of Dartmouth, 9 MLC 1834 (1983) 


47 Commonwealth of Massachusetts, 24 MLC 13 (1998) there the union also tried unsuccessfully to argue 

that there was a pattern of a calculated efort to displace “VR” counselors. Since the Administrative Law 

Judge found that the duties in dispute were shared, she concluded that it was not necessary to consider 

whether there was a calculated displacement of unit work. 


CHAPTER 10 - SICK AND 

INJURY LEAVE RULES 

Chiefs may make rules concerning eligibility for sick or injury leave, so 

long as they do not conflict with the terms of the collective bargaining 

agreement. Notice to the union and bargaining upon demand to the 

point of agreement or impasse is generally required. An employer violates 

the Law if it unilaterally alters a pre-existing condition of employment or 

implements a new condition of employment affecting a mandatory subject 

of bargaining without providing the exclusive collective bargaining 

representative with prior notice and an opportunity to bargain to 

resolution or impasse. 1 The employer's obligation to bargain before 

changing conditions of employment extends not only to actual contract 

terms, but also to working conditions that have been established through 

custom and past practice. 2 To establish a violation, the Union must show 

that: (1) the employer changed an existing practice or instituted a new 

one; (2) the change had an impact on a mandatory subject of bargaining; 

and (3) the change was implemented without prior notice to the union or 

an opportunity to bargain to resolution or impasse. 3 

The eligibility criteria for paid injured on duty leave under G.L. c. 41 § 

111F is a mandatory subject of bargaining. 4 Further, an employer's 

requirement that an employee claiming disability leave submit to an 

examination by a physician designated by the employer rather than an 

employee is a mandatory subject of bargaining. 5 

In Town of Hingham, 6 the Commission determined that the Town did not 

unilaterally change the criteria for receiving injury leave benefits when it 

required two police officers receiving G.L. c. 41 §111F benefits to undergo 

an examination by a Town-designated physician. The Commission concluded 

that, because the Town had used its discretion to order officers to 

be examined by a Town-designated physician on at least two prior 

occasions, the Town had not changed a pre-existing condition of 

employment regarding injured leave. 7 Similarly, in Town of Weymouth 8 , 

the Commission found that the Union failed to prove the Town had 

changed a pre-existing condition of employment when the Chief of Police 

required officers to submit to a physical by a Town-designated physician. 

The Commission concluded that the Town had established a past practice 

by demonstrating that, although it did not require every officer on Section 

111F leave to be examined by a Town-designated physician, it did require 

some officers to be examined by a Town-designated physician. 9 


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. 


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 



agreement. 17 The Commission has made it clear that it intends to apply 

Section 7 of the Law giving a contract precedence over ordinances/by-laws 

which are in existence at the time a contract is executed as well as those 

that post-date an agreement. 18 

§ 1 MANDATORY SUBJECT OF BARGAINING 

The basis for such obligations concerning sick leave rules is clear. The 

Commission has ruled that sick leave pay is a term and condition of 

employment. Both sick leave policies 19 and criteria for eligibility for 

injured on duty leave 20 have been held by the Labor Relations Commission 

to be mandatory subjects of bargaining. The Commission has ruled that a 

public employer violates Section 10(a)(5) of Chapter 150E, when it 

unilaterally alters a condition of employment involving a mandatory 

subject of bargaining without first providing notice to, and, if requested, 

bargaining with the union in good faith to resolution (agreement) or 

impasse. 21 

An employer's obligation to bargain before changing conditions of 

employment extends to working conditions established through past 

practice, as well as those specified in a collective bargaining agreement. 22 

In a case involving the Hull Police Department, the LRC ruled that the 

chief was not able unilaterally to discontinue the practice of allowing 

officers who exhausted their sick leave to borrow from future sick leave 

credits expected to be received in a subsequent fiscal year. 23 A past 

practice was found where, on at least eleven occasions over an eight year 

period, every officer who exhausted his or her accrued sick leave was 

allowed to remain off duty but on the payroll, with a bookkeeping entry 

amounting to borrowing from anticipated future sick leave accumulation. 


If the chief or employer wants to stop allowing employees from borrowing 

against future sick leave, this is their right. All that is needed is to provide 

the union with notice that management plans on stopping the practice. If 

the union requests bargaining, it should be limited to the impact of the 

decision to stop the gratuitous practice. 

If a chief (or his/her predecessor) has been lax in enforcing a rule or 

contract provision regarding sick leave, all that is required is notice to the 

union that the rule will be enforced in the future. 



§ 2 MANAGEMENT OPTIONS 

Several actions by management aimed at curbing suspected sick leave 

abuse or requiring employees to return to duty in a light duty capacity 

have been dealt with by the Labor Relations Commission and/or the 

courts. 

1) Strike or Job Actions 

An employer has the ability to take reasonable action in 

response to an actual or threatened strike or job action (such 

as a "sick out") involving abuse of sick leave. 

When it learned that there might be a sick out in November of 

1979, the Leominster School Committee sent letters to the 

Association's president and to its chief negotiator stating that if 

teachers took part in a suspected November 22 sick out, the 

School Committee would require verified physician's statements 

from absent employees. 24 With the exception of a note from the 

Association president to the Superintendent denying any 

knowledge of such plans, there was no other union response. 

While no job action took place in November, several times the 

normal number of teachers were absent on two days the next 

February. Teachers were required to produce doctors' 

certificates or face the loss of a day's pay in connection with the 

February sick out. 

Although the procedural trail of this case is unusual, ultimately 

the Appeals Court reinstated the Commission's original 

decision which held that the Committee's action was a 

reasonable response. Moreover, the failure of the union to 

demand bargaining after the notice in November was a waiver 

of its right to bargain over the School Committee's proposed 

change in a mandatory subject of bargaining. 

In the 1986 case of Somerville School Committee 25 , an LRC 

Hearing Officer discussed the propriety of the School 

Committee's actions in response to a sick out. When 

negotiations became sufficiently strained that the parties 

entered mediation, Association members picketed School 

Committee meetings. In addition, the Association urged its 

membership to participate in a "work to rule" job action. This 

involved foregoing all voluntary tasks both during and after 

school hours. A two day sick out involving several times the 

normal number of sick leave absences included numerous 



Association officials (except the president). The Association 

president denied any knowledge or official sanction and, in fact, 

organized an Association phone tree which restored the normal 

level of sick leave the next day. Although the contract 

contained no self-help provision, the School Committee vote to 

require absent teachers to forfeit a day's pay unless they 

submitted an affidavit of illness was held to be a "reasonable 

response to an illegal work stoppage." 26 However, since there 

was insufficient evidence to demonstrate that the Association 

had any responsibility for the sick out, that part of the charge 

against the Association was dismissed. 

An employee organization acts only through its elected officials, 

not its individual members. 27 It is not enough that the 

membership engaged in a strike. In order to establish the 

union's liability, the employer must demonstrate that the illegal 

conduct was engaged in, induced, encouraged or condoned by 

the union leadership. 28 

2) Reporting Forms 

Even without affording the union the opportunity to bargain, a 

new reporting form may be instituted where the new form 

imposes no new substantive requirements affecting such items 

as the amount of leave available, the criteria for granting 

injury/sick leave, or any other condition of employment. This 

was the result reached by the Labor Relations Commission in a 

1983 case involving the Town of Wilmington Fire Department. 29 

In that case, the Acting Fire Chief, in an attempt to curb what 

he felt was weekend sick leave abuse by firefighters, devised a 

form to be completed by all firefighters absent for one day or 

more upon their return to duty. The sickness/injury/off-duty 

report form contained a series of questions pertaining to the 

reason for the absence, the details of any medical treatment 

received, and the ability of the absent firefighter to perform 

regular duties. In reversing the Hearing Officer's decision, the 

full Commission found that the new form was merely a 

procedural modification in the method used by the employer to 

monitor sick leave and, therefore, there was no unilateral 

change in a mandatory subject of bargaining. The Commission 

has consistently ruled that an employer does not violate the 

Law when, without bargaining, it unilaterally alters procedural 

mechanisms for enforcing existing work rules, provided that 

the employer's action does not change underlying conditions of 

employment. 30 Similar reasoning was followed, for example, 



when the Commission approved the use of time clocks without 

a requirement to bargain with the union. 31 

3) Restricting Conduct 

The Boston Police Department established a rule requiring all 

officers on sick or injury leave to remain at their residences 

except for several specified reasons, and mandated that such 

officers notify and receive permission from the department prior 

to leaving their homes. The Supreme Judicial Court upheld the 

constitutionality of the rule and found that the Police 

Commissioner was empowered to make such a rule in a 1984 

case entitled Atterberry v. Police Comm'r of Boston. 32 

The complete text of the rule follows: 

SPECIAL ORDER NO. 83-1 

SUBJECT: SICK OR INJURED OFFICERS REMAINING AT 

THEIR RESIDENCE 

Rule 110, Section 22 provides, in part: The Police Commissioner 

may not allow pay from accumulated sick credit or for injury in the 

line of duty status if the officer shall fail to remain at his/her 

residence, unless permitted by the Police Commissioner to go 

elsewhere. 

In order to aid in the administration of this rule, the following 

procedures are to be implemented effective immediately. 

All officers disabled from work for sickness or injury and being 

carried on the time books of the Department pursuant to Rule 110, 

ss. 4, 5, or 16, shall remain at the residence officially listed in the 

Department's personnel records unless they receive permission from 

the Operations Division or their Commanding Officer to be 

elsewhere. 

Officers shall contact the Operations Division to request permission 

to leave the residence for the following specific purposes. In each instance, 

with the exception noted, the Operations Division will grant 

permission to be absent from the residence for reasonable times for 

these specific purposes: 

1. To keep scheduled appointments with physicians, dentists, 

physical therapists, and/or hospitals, or clinics, whether or 

not related to the officer's present sickness or injury. 



2. To purchase food, household necessities and medication for 

the officer's present injury or illness or for the health care of 

minor children. 

NOTE: One four-hour period to complete such shopping, as 

described in Number 2 above, shall be granted each week. 

Additional requests shall be granted only for emergency 

purposes. 

3. To attend church services. 

4. To register to vote or to vote in elections for municipal, 

county, State or Federal offices, or regularly scheduled union 

elections. 

5. To engage in physical exercise such as walking or swimming, 

recommended in writing by an attending physician. 

6. To answer court subpoenas in cases arising out of the 

officer's employment. 

7. To report to Headquarters or other police facilities when 

ordered to do so by a superior or commanding officer. 

The officer should make such requests by contacting the Operations 

Division at 247-4590. In making the request, the officer will state 

his purpose or purposes in leaving his residence, his destination or 

destinations, his planned time of departure, his method of 

transportation, his companions, if any, and his estimated time of 

return to his residence. Upon returning to his/her residence, the 

officer will contact the Operations Division at 247-4590 to notify the 

Department that he has returned. 

Permission to leave the residence for any purpose other than those 

listed above will not be granted unless approved by the officer's 

Commanding Officer. Sick and injured personnel should contact the 

commander at work during the commander's regularly scheduled 

working hours in order to obtain a determination prior to finalization 

of their plans to leave the residence. 

Officers who obtain such permission from their Commanding 

Officers will notify the Operations Division at 247-4590 prior to 

leaving the residence of the fact that they are leaving, that 

permission was obtained of the purpose or purposes for leaving the 

residence, the destination or destinations, the departure time, 

method of transportation, companions, if any, and estimated time of 

return to residence. 



Upon returning to the residence, the officer will contact the 

Operations Division at 247-4590 to notify the Department that 

he/she has returned. 

Operations Division personnel and Commanding Officers shall 

maintain records of all telephone requests and whether granted; as 

well as report of return to residence, on the Department form 

provided for such purpose. 

Sick or injured officers must obtain permission for every absence 

from their residence until they return to work, including for time 

periods during which, if the officer were working, would be non-work 

hours or days off. 

Officers not in compliance with this order or away from their 

residence without permission, will receive no pay for the day of their 

absence, or, if normally a day off, no pay for the next regularly 

scheduled work day. In addition, they may be subject to discipline 

for violation of Department Rules and Regulations. 

The Bureau of Investigative Services, Staff Inspection Unit, and the 

Personnel Division shall be responsible for ensuring compliance with 

this order. 

§ 3 MODIFYING I.O.D. BENEFITS 

There is a major distinction between modifying reporting requirements for 

injured on duty (IOD) leave, and attempting to change eligibility criteria or 

benefit levels under Chapter 41, § 111F. While the former (changes in 

eligibility criteria) may be effected through notice and impact bargaining 

where requested, the latter (changes in benefit levels) requires agreement-- 

generally following regular contract negotiations. 

Certain statutes may be superseded by the provisions of a collective 

bargaining agreement. Among those statutes listed in Chapter 150E § 

7(d) is the injured on duty statute for police and fire employees -- Chapter 

41 § 111F. By securing the agreement of the union -- or probably even 

through an arbitration award following Joint Labor-Management 

Committee (JLMC) involvement -- the terms of § 111F may be modified or, 

presumably, even eliminated. 

Even though G.L. c.32, §5 requires public employers to establish an Early 

Intervention Plan (EIP), they may not deal directly with employees and bypass 

the union about mandatory subjects such as hours, duties, etc. 33 



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. 


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. 



Pending a determination of eligibility for injured on duty leave, an 

employee may be placed on sick leave. Individuals requesting injury leave 

will cooperate in the Department's investigation, including, but not limited 

to, providing information concerning the circumstances of the occurrence 

causing the alleged disability and supplying or authorizing access to 

medical reports. Employees will submit to an examination by a 

municipally-designated physician, when instructed to do so. 

The following will not constitute on duty time, and injuries occurring at 

such times will therefore not be considered to have occurred in the line of 

duty: 

 

 

 

traveling to or from work (whether at the station or other place 

of assignment); 

traveling to or from paid details, court, any place of training or 

a mutual aid assignment; and 

during meal or coffee (rest) or other work breaks. 

No injured on duty leave will be allowed where the disability results from 

the use of drugs or alcohol, where the employee was negligent, where the 

employee was violating any departmental rule, regulation, policy or 

procedure, or was violating any law or by-law/ordinance. 

In computing the pay to which a disabled employee is entitled, base pay 

only will be used. Compensation will not include education incentive, 

specialist pay, shift differential, holiday pay, hazardous duty pay, 

longevity or other extra pay to which an individual might otherwise have 

been entitled in addition to base pay. 

No uniform allowance will be paid to or on behalf of persons absent on 

injury leave for more than six (6) months during any fiscal year. 

Those injured through fault of their own will not be eligible for disability 

leave. For the purpose of this Article, fault shall mean any negligent or 

intentional conduct of the employee which is the primary factor 

contributing to the injury. 

Disabled persons will, upon request, turn in their weapons and any 

departmentally issued property or equipment. 

For administrative purposes, injured employees will be deemed to be 

assigned to the day shift. Therefore, should the individual be required to 

confer with department or municipal officials, attend court in connection 

with pending cases, or submit to an examination, or perform similar 

activities, no requirement for extra compensation will be involved. 



Persons who are disabled as a result of an accident rather than a workrelated 

assault or similar trauma, will receive leave at sixty (60%) percent 

of their regular base pay, and for a period not to exceed thirty (30) days. 

Thereafter, regular sick leave may be taken if a sufficient amount is 

available. 

Persons who fail to complete the department's annual Wellness Program 

recommendations in a timely manner will not be eligible for injury leave 

unless the disability results from a work-related trauma occurring through 

no fault of the employee while responding to a call for or situation requiring 

services and which cannot be termed "accidental". 

It is recognized that the provisions of this Article are at variance with the 

terms of M.G.L. c. 41, § 111F. Pursuant to M.G.L. c. 150E, § 7(d), the 

provisions of this Article will, therefore, supersede and entirely replace 

those of c. 41, § 111F which, by agreement of the parties, will no longer 

apply to members of the bargaining unit covered by this collective 

bargaining agreement. 

§ 4 INVOLUNTARY RETIREMENT 

After years of uncertainty, in 1997 the Massachusetts Appeals Court 

clarified the authority of a chief in filing an application for involuntary 

retirement. 37 The City of Lynn appealed an LRC decision that found the 

City guilty of a prohibited practice when the Fire Chief applied for and 

caused the superannuation retirement of a firefighter in 1989. The 

Commission held that it was a unilateral change in a working condition. 

This is because previously disabled firefighters had been allowed to 

remain on IOD leave (M.G.L. c. 41, §111F) while appealing a denial of their 

application for a disability pension. 

The Appeals Court noted that the statute that gives chiefs the discretion to 

file for involuntary retirement (M.G.L. c. 32, §16(1)(a) is not among those 

listed in c. 150E, §7(d) as subject to being superseded by the terms of a 

collective bargaining agreement. The Court ruled that the chief’s authority 

to file an involuntary retirement application is a matter of exclusive 

managerial prerogative. It noted that a different result might follow if the 

chief’s action were taken in retaliation for protected union activities. 38 



1 School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983); City of Boston, 26 

MLC 177, 181 (2000); Commonwealth of Massachusetts, 25 MLC 201, 205 (1999); City of Worcester, 25 

MLC 169,170 (1999). 

2 City of Boston, 16 MLC 1429, 1434 (1989); Town of Wilmington, 9 MLC 1694, 1699 (1983). 

3 Commonwealth of Massachusetts, 27 MLC 70, 72 (2000), citing City of Boston, 26 MLC 177, 181 (2000); 

Town of Hudson, 25 MLC 143,146 (1999); Commonwealth of Massachusetts, 20 MLC 1545, 1552 (1994). 


5 Town of Avon, 6 MLC 1290, 1291-92 (1979). 

6 21 MLC 1237 (1994). 

7 Id. at 1240. 

8 Town of Weymouth, 11 MLC 1448 (1985). 

9 Id. at 1456. 

10 City of Chicopee, 2 MLC 1071 (1975) 

11 Boston School Committee, 4 MLC 1912 (1978) (only a finding of fait accompli (done deal) relieves the 

union from the obligation to demand bargaining) 

12 Town of Andover, 4 MLC 1086, 1089 (1977) 


14 Scituate School Committee, 9 MLC 1010, 1012 (1982) 

15 City of Everett, 2 MLC 1471, 1476 (1976) 

16 City of Holyoke, 12 MLC 1516, 1628 (H.O. 1986) 

17 Town of Lee, 11 MLC 1274 (1984); City of Worcester, 5 MLC 1914, 1415 (1978) 

18 Town of Lee, 11 MLC 1274 (1984); City of Springfield, 4 MLC 1517 (1977) 


20 City of Springfield, 12 MLC 1051, 1054 (1985); City of Springfield, 16 MLC 1127, 1132 (1989) 

21 School Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 447 N.E.2d 1201 (1983); 

Town of Easton, 16 MLC 1407, 1410 (1989) 

22 Town of Wilmington, 9 MLC 1694, 1699 (1983) 

23 Town of Hull, 17 MLC 1678 (1991), aff'd 19 MLC 1780 (1993) 

24 School Committee of Leominster v. Labor Relations Commission, 486 N.E.2d 756 (Mass. App. 1985) 

25 Somerville School Committee, 13 MLC 1027 (1986) 

26 Id. at 1024, citing School Committee of Leominster v. Labor Relations Commission, 21 Mass. app. Ct. 

245, 251 (1985) 

27 City of Medford, 11 MLC 1107, 1114 (1984) 

28 Somerville School Committee, 13 MLC 1027 (1986) 

29 Town of Wilmington, 9 MLC 1694 (1983) 

30 Board of Trustees, University of Massachusetts, 7 MLC 1577 (1980) (form or approval for outside 

consulting work); Brookline School Committee, 7 MLC 1185 (1980); Town of Wayland, 5 MLC 1738 

(1978) (performance evaluation forms for police officers) 

31 City of Taunton, 10 MLC 1399 (1984) 

32 Atterberry v. Police Comm. of Boston, 392 Mass. 550, 467 N.E.2d 150, cert. den. 105 S.Ct. 1172, 84 

L.Ed.2d 322 (1984) 


34 Rein v. Marshfield, 16 Mass. App. Ct. 519, 524, 452 N.E.2d 298 (1983) 

35 Willis v. Board of Selectmen of Easton, 405 Mass. 159, 539 N.E.2d 524 (1989); also citing Chalachan v. 

Binghamton, 55 N.Y.2d 989, 990, 449 N.Y.S.2d 187, 434 N.E.2d 256 (1982) 

36 Athol-Royalston Regional School Committee, 16 MLC 1316 (1989) citing Commonwealth of 

Massachusetts, 9 MLC 1360, 1361; and Massachusetts Board of Regents, 15 MLC 1265, 1269 (1988) 

37 City of Lynn v. Labor Relations Commission, et al, 43 Mass. App. Ct. 172, 681 N.E. 2d 1234 (1997). 

38 See Sullivan v. Belmont, 7 Mass. App. Ct. 214, 386 N.E. 2d 1288 (1979). 


CHAPTER 11 - LIGHT DUTY 

A department may require injured police or fire employees to perform 

modified or light duty rather than allowing such individuals to remain out 

of work with pay on either sick or injured on duty status. 

Prior to 1985, it was commonly assumed that public safety employees 

injured in the line of duty were entitled to leave without loss of pay until 

their condition improved to the point where they were able to perform each 

and every aspect of their job to which they might be assigned. 1 The 

Supreme Judicial Court, in a 1985 decision involving the Newton Police 

Department, ruled that an injured police officer could be required to 

return to work and perform light duty, especially where such duties were 

within the job description of a police officer and/or were duties to which 

police officers might otherwise be assigned. In the Newton case, the court 

noted that the city imposed the requirement after reaching impasse 

following good faith negotiations with the union. In an unpublished 2002 

SJC decision involving the Westfield Police Department, the court pointed 

out that nothing in the Newton case prohibits a city or town from offering 

police officers greater benefits than those set forth in §111F. 2 

The Labor Relations Commission has ruled that a municipal employer is 

required to provide notice and an opportunity to bargain where it intends 

to modify the criteria for determining eligibility for § 111F injury leave 

benefits. 3 The Commission recognizes that an employer does not violate § 

111F by requiring an injured employee to resume work in a limited 

capacity; however, it has ruled that the municipal employer's imposition of 

a newly created 111F eligibility criteria without first exhausting its 

bargaining obligations violated § 10(a)(5) of Chapter 150E. 


Even though some Hearing Officers have not focused on it, the Commission 

has noted the distinction between the employer's managerial prerogative to 

create a light duty position and its obligation to bargain over the impact of 

that newly created position on mandatory subjects of bargaining. 4 There 

is also a distinction between criteria for § 111F eligibility and criteria for 

light duty assignment. Since 111F provides for leave without loss of pay, 

employees required to perform light duty are on the payroll and, by 

definition, are not receiving 111F benefits (i.e., paid leave). Therefore, the 

reference by certain Hearing Officers to a bargaining obligation for 111F 

eligibility criteria is technically not applicable to a light duty situation, 

unless they mean that partially disabled employees are ineligible for 111F 


Light Duty 11-2 

leave if they are capable of performing in a light duty capacity. 

Presumably the full Commission will clarify this issue at the appropriate 

time. However, the results reached by Hearing Officers will probably not 

change, only the reasoning. If an employer has traditionally allowed 

public safety employees to remain on 111F leave until able to perform all 

the duties to which they might possibly be assigned, notice and an 

opportunity to bargain will be required before such 111F eligibility criteria 

are changed or, more properly, before assigning such partially disabled 

employees to a light duty position. 

A more logical approach would be for the Commission to recognize the 

employer's right to create a light duty position and to require a municipal 

employer to provide notice and an opportunity to bargain, if the union so 

requests, before assigning bargaining unit members to such duty for the 

first time. It is arguable that the creation of a light duty assignment is no 

different from creating such positions as prosecutor, planning officer, 

school liaison officer, training officer, records officer or desk officer. In fact, 

some departments utilize exactly those assignments when requiring a 

partially disabled (sick or injured on duty) employee to return to work. 

With this approach, a Management Rights clause which allows for the 

creation of such positions as the employer deems necessary or 

appropriate, should encompass a light duty position which involves duties 

reasonably expected of police officers or firefighters. 

Changing the shift of those on leave under § 111F requires notice and, if 

requested, bargaining with the affected union. This was the decision 

reached by an LRC Hearing Officer in a 1991 case involving the Natick 

Police Department. 5 In that case the Acting Police Chief issued a 

memorandum which altered the department's past practice of allowing 

officers who were on injured on duty leave to remain administratively on 

the shift to which they had been assigned at the time of their injury. 

Officers on 111F leave were reassigned administratively to the 8:00 a.m. to 

4:00 p.m. shift. Among other things, this change was intended to 

eliminate eligibility for night shift differential. 


So long as the employer meets its bargaining obligations (e.g., notice and 

opportunity to bargain) and does not violate a specific provision of the 

collective bargaining agreement, it could adopt a policy of administratively 

reassigning all sick or injured (on and off duty) employees to the day shift. 

The reassignment of injured or even sick employees to the day shift may 

also result in other benefits. For example, should the employee be required 

to be examined by a municipally-designated physician, to report to the 

station for a conference with the chief, or to attend a court hearing on 



behalf of the department, the employer's exposure to a claim for call-back 

pay might be reduced or eliminated. 

The Hearing Officer in Natick did not question the Acting Chief's authority 

or ability to make the administrative reassignment, only the failure to 

meet the municipality's impact bargaining obligation. It is possible that 

regular (i.e., contract) bargaining, rather than impact or mid-term 

bargaining, may be required where the collective bargaining agreement 

contains some restriction on management's ability to move employees 

from one shift to another. 

§ 1 DOCTOR’S CERTIFICATES 

Under certain circumstances, a municipal employer may require a doctor's 

certificate as a condition of an injured employee being placed on sick or 

injury leave, continuing on such leave, and/or returning to work in either 

a light or full-duty capacity. With the exception of strike or job action 

situations discussed above, the lack of cases in this area makes any 

listing of guidelines speculative. An early Hearing Officer decision 

involving the Boston Police Department upheld the ability of the Police 

Commissioner to issue a Special Order directing the commanding officers 

to require certification for all employee absences of five days or more, or 

where the absences exceeded ten days in a year. 6 This action was taken 

after the Commissioner became concerned about the amount of sick leave 

being taken by police officers. The Hearing Officer held that the 

Department rule, giving the Commissioner discretion to require a 

physician's certificate, had been incorporated into the collective bargaining 

agreement. Therefore, the Commissioner was not changing a condition of 

employment, but exercising the discretion which was part of the 

conditions of employment. The fact that he had rarely exercised that 

discretion in the past did not indicate that the power had been 

abandoned. 


In the absence of any controlling provision in the collective bargaining 

agreement, an employer is free to provide the union with notice of its 

intention to require a doctor's certificate as a condition for sick leave 

eligibility. Assuming the union demands bargaining, the employer must 

engage in good faith negotiations until either agreement or impasse is 

reached (whereupon the change may be implemented). 



§ 2 INJURED ON DUTY SITUATIONS 

Section 111F specifies that eligibility for leave without loss of pay for line 

of duty injuries terminates when a municipally-designated physician 

determines that the employee is able to return to work. 7 No obligation 

exists to notify the union of the employer's requirement that an injured 

worker submit to a physical by a municipally-designated physician to 

determine that employee's fitness for duty. In fact, failure to comply with 

an order to submit to such an examination would constitute 

insubordination and could provide grounds for termination (if not some 

lesser form of discipline). It has not yet been decided, but it is possible 

that such refusal might provide the basis for removing an injured 

employee from 111F leave status, presumably after notice and an 

opportunity for a due process hearing. 8 


The employee's physician has no role under the provisions of § 111F in 

determining eligibility for leave in the first place, the duration of any IOD 

leave, or the return of an injured employee to full or light duty status. 

However, to the extent that the present and prior chiefs have traditionally 

relied on the opinion of an employee's physician, and where no 

municipally-designated physician was ever used, the Labor Relations 

Commission has decided that a unilateral change in this past practice 

required notice and an opportunity to bargain. 9 While the chief argued 

that such reliance was not automatic, and that the chief's policy was to 

assess each case on an individual basis, this was not sufficient to 

persuade the LRC that no unilateral change was involved. Such an 

argument failed in the previously discussed Hull case, presumably 

because the Hearing Officer doubted the explanation and also because 

there were no instances where the exercise of such discretion resulted in 

any action by the Chief in denying a request for future sick leave 

borrowing. 

Disputes often arise over a sick or injured employee's fitness for return to 

duty. In the absence of a controlling provision in a collective bargaining 

agreement, or a past practice to the contrary, a chief should be able to 

require an individual to produce a note from his or her doctor or a 

municipally-designated physician clearing the employee to return to duty. 

To the extent that the chief has not done so previously, notice and an 

opportunity to bargain may be required, (i.e., if the union challenges the 

chief's action and/or demands bargaining). In order to avoid confusion 

when this issue arises while an employee is out on leave, a chief could 

post a notice and inform the union that he/she may use such procedure if 

and when the occasion arises. As a practical matter, however, if the chief 

has not posted such notice and is faced with an issue of how to handle a 



particular case, rather than engaging in the awkward practice of informing 

the union that a chief is about to alter a past practice by requiring a 

doctor's certificate as a precondition to allowing an employee to return from 

sick or injury leave, the chief could simply issue the order and, if the union 

protests, rescind the order and then engage in bargaining to agreement or 

impasse. There would be some delay, obviously. One other drawback 

might be the employer's inability to point to a union waiver of its 

bargaining rights should the same situation arise in the future. However, 

after several such instances, the employer could argue that a past practice 

no longer exists (or, more properly, that a new past practice has been 

agreed to by the parties). 

A dispute between the opinion of an employee's doctor and that of the 

municipally-designated physician is not uncommon. A chief would be 

hard-pressed to justify ignoring the report of the municipally-designated 

physician. Occasionally the terms of a collective bargaining agreement 

address how such disagreements are handled -- at least where the city or 

town's doctor pronounces an employee fit to return to duty but the 

employee's doctor disagrees. If the agreement so provides, a chief should 

be able to rely on a third impartial doctor's opinion in such a case. 

In the absence of such a third party resolution procedure (which, especially 

in the case of § 111F, is not recommended), the Chief's approach should 

focus on prevention rather than cure wherever possible. Rather than 

waiting until such a situation arises, a municipal employer should 

promulgate guidelines for handling such cases. After providing notice and 

an opportunity to bargain to the affected union(s), and, if requested, 

bargaining to agreement or impasse, there will be a mechanism in place to 

handle such conflicting eventualities. 

One word of caution is in order. Chiefs should be careful not to let an 

employee's union activities or history of filing complaints, grievances or 

even lawsuits, influence their decision on how to handle fitness for duty 

determinations. The Department of Correction was found to have violated 

§ 10(a)(3) of the Law when it refused to allow a Correction Officer to return 

to work after sick leave, even after he produced a doctor's note clearing 

him for full duty as the employer had demanded. 10 In that case, the LRC 

Hearing Officer found that the fact that the employee had filed scores of 

bizarre grievances was the primary motivation in the Commonwealth's 

decision to keep the employee on sick leave. 



1 Votour v. City of Medford, 335 Mass. 403, 140 N.E.2d 177 (1957) 

2 City of Westfield v. Labor Relations Commission, 437 Mass. 1104, 772 N.E.2d 589 (2002). 

3 City of Springfield, 12 MLC 1051, 1054 (1985); City of Springfield, 16 MLC 1127, 1133 (1989) 

4 Id. 

5 Town of Natick, 18 MLC 1155 (1991) 

6 City of Boston, 5 MLRR 1077 (1978) 

7 M.G.L. c. 41, § 111F (West, 1993) 

8 Gaffney v. Silk, 488 F.2d 1248 (1st Cir. 1973) 

9 City of Newton, 27 MLC 74 (2000). 

10 Commonwealth of Massachusetts, 16 MLC 1779 (1990) 


CHAPTER 12 - DEFIBRILLATORS 

The Commission has held that any increase or change in an employees' 

job duties, safety, or workload is a mandatory subject of bargaining, 

including the impacts of the implementation of a defibrillation program. 1 

The City argued that the Arlington case is distinguishable from the facts in 

its case because the defibrillators in Arlington were used exclusively by the 

EMT's and, thus, the impact on job duties, safety, and workload would 

have been far more appreciable than here, where the fire fighters defer to 

AMR once the ambulance arrives on the scene. However, although the 

defibrillators are not used exclusively by the City's fire fighters, the facts 

demonstrate that the City's decision to implement a defibrillation program 

required the training of bargaining unit members in the use of the 

defibrillator, changed the fire fighters' job duties, and increased their 

workload. Therefore, consistent with its decision in Arlington, the LRC 

concluded that the impacts of the City's defibrillator program is a 

mandatory subject of bargaining. 

§ 1 EQUIPMENT, WORKLOAD & SAFETY 

Issues affecting workload and safety are mandatory subjects of 

bargaining, whereas issues concerning the level of public service to be 

delivered are permissive subjects of bargaining. 2 

To determine whether an employer made any changes that affected a 

mandatory subject of bargaining, the Commission has historically 

balanced the unions’ interest in bargaining over safety and workload 

issues with the employer’s interest in making the core management 

decision of what level of services to provide. 3 A topic does not become a 

mandatory subject of bargaining merely because an employer’s actions 

marginally or indirectly implicate safety or workload issues. 4 Rather, the 

topic must directly and significantly affect safety or workload to outweigh 

the employer’s interest in making a core management decision. 5 

Applying the above-referenced standard, the Commission has determined 

that staffing per piece of fire fighting equipment while responding to an 

alarm is a mandatory subject of bargaining to the extent that it raises a 

question of safety, because the number of firefighters who engage a fire 

has a direct and significant impact on safety. 6 In contrast, minimum 

staffing per shift, staffing per piece of equipment while awaiting an alarm, 

and staffing per piece of equipment while responding to a mutual aid call 

where no safety issue exist, remain core management decisions, because 


Defibrillators 12-2 

they affect greatly the level of service provided to the public but have only 

a marginal or indirect effect on safety or workload. 7 With respect to 

firefighting equipment, the Commission has held that decisions about 

what equipment to purchase or to deploy are managerial prerogatives. 

However, if these decisions directly and significantly affect the safety and 

workload of firefighters, then the employer must bargain over the impacts 

of the decision on firefighters’ terms and conditions of employment. 8 

Accordingly, the LRC wil examine if the Employer’s decision to purchase 

and to deploy defibrillators affected the safety and workload of the 

firefighters represented by the Union, requiring the Town to impact 

bargain with the Union. 9 

In the 2004 LRC case of Town of Somerset, the Commission held that a 

municipal employer may decide to install defibrillators in cruisers and to 

train officers in their use. However, they must bargain with the union 

over the impacts if a timely request is made. 10 Failure to do so will not 

necessarily result in a cease and desist order, just a prospective 

bargaining order. 11 


Involving the union in the entire process of selection, training and 

implementation of defibrillators in police or fire vehicles is recommended. It 

will avoid needless disputes and may produce a level of cooperation where 

everyone has an opportunity for input. 


Defibrillators 12-3 

1 Town of Arlington, 21 MLC 1125, 1130 (1994). 

2 Town of Halifax, 20 MLC 1320, 1323 (1993); Town of Bridgewater, 12 MLC 1612, 1615-1616 (1986); 

Town of Danvers, 3 MLC 1559, 1574 (1977). 

3 Town of Dracut, 23 MLC 113, 114 (1996); City of Melrose, 22 MLC 1209, 1217 (1995); Town of Halifax, 

20 MLC at 1323; Town of Bridgewater, 12 MLC at 1615-1616; Town of Reading, 9 MLC 1730, 1738 

(1983); Town of Billerica, 8 MLC 1957, 1961 (1982); City of Newton, 4 MLC 1282, 1283-1284 (1977); 

Town of Danvers, 3 MLC at 1574. 

4 See e.g., Town of Dracut 23 MLC at 114; City of Melrose, 22 MLC at 1217; Town of Halifax, 20 MLC at 

1324. 

5 See e.g., Town of Bridgewater, 12 MLC at 1616-1618; Town of Billerica, 8 MLC at 1962. 

6 City of Newton, 4 MLC at 1283. 

7 Town of Danvers, 3 MLC at 1573; Town of Billerica, 8 MLC at 1961; Town of Reading, 9 MLC at 1740. 

8 Town of Halifax, 20 MLC at 1325; Town of Bridgewater, 12 MLC at 1617-1618. 

9 Town of Mansfield, 30 MLC 164 (2004). 

10 Town of Somerset, 30 MLC 47 (2004). 

11 Id. 


CHAPTER 13 - WORKPLACE 

RULES AND PRACTICES 

The employer may impose and enforce a variety of workplace rules and 

regulations, ranging from dress codes to job procedures, as long as the 

union has notice and the opportunity to bargain. 1 Only material changes 

(not merely procedural ones) require notice and bargaining. 2 For example, 

a claim that a town changed its policy regarding lockers at the police 

station was dismissed when the Hearing Officer found that the new rule 

was simply a rewording of the existing practice. 3 

§ 1 HOURS 

The hours that an employee is required to work is, of course, a mandatory 

subject of bargaining. 4 However, more particularized issues relating to 

hours often present special difficulties for a public employer. For example, 

the LRC has held that unilaterally eliminating the grace period for tardy 

employees 5 , changing lunch hours 6 , eliminating flex-time 7 , and changing 

the time when officers were required to report to court 8 , all constituted 

prohibited practices given the lack of notice and opportunity to bargain. 

Similarly, if the employer enters into an agreement with the union 

regarding hours--for example, allowing employees to swap shifts--it may 

not renege on the agreement. 9 However, unless it is incorporated into the 

collective bargaining agreement, an employer may make a change after 

providing the union with the required notice and opportunity to bargain. 

An employer must also bargain prior to changing the length of the work 

day 10 or week. 11 On the other hand, the installation of a time clock to 

record hours of work and break or meal periods is a management right 

which requires no bargaining so long as there will be no change in related 

practices, e.g., docking for tardiness stays the same. 12 Similarly, using 

video surveilance to record employees’ departure times, after learning that 

some custodians were leaving work early and falsifying their time cards, 

was not a prohibited practice. 13 


In the absence of any requirements in the collective bargaining agreement, 

an employer is free to set hours for work so long as overtime is paid in 

conformity with the terms of the contract and the Fair Labor Standards Act 

(FLSA). (The Massachusetts statutes regarding overtime are not applicable 

to municipal employees.) There is no requirement that employees be 

assigned a fixed schedule with regular starting and quitting time, for 


Workplace Rules and Practices 13-2 

example. Changing hours of work to avoid overtime is not only lawful, 

traditionally it was expected of private industry managers. 

All this is far removed from the practice in most municipalities today. Most 

contracts require overtime for all work in excess of eight hours per day and 

forty in a week. (The FLSA requires overtime in police cases after 43 -- 

with a 7 day work cycle -- and increasing proportionately to 171 hours if 

up to a 28 day cycle is used. For firefighters the thresholds are ______ and 

________.) Typically contracts give employees credit for paid days off (sick, 

injured, holiday, vacation, personal or bereavement days) when counting 

towards the overtime threshold. None of these need be counted for FLSA 

purposes. 

When a contract is silent on any aspect of the topic of hours of work, an 

employer may be able to propose a change in a practice or rule during the 

life of the agreement and, if the union so requests, bargain to agreement or 

impasse as a precondition to making the change. 

The listing of shift or tours of duty in a contract should be avoided. The 

more detailed the contract becomes in this area, the less flexibility a chief 

will have to respond to changing needs. When the times for shifts are 

included, the employer should insist that some adjective such as current, 

usual, customary or typical is used. This implies to arbitrators that there 

is room for some variation when conditions so warrant. 

§ 2 OVERTIME AND PAID DETAILS 

Overtime, often implicating other issues such as minimum manning, paid 

details, and past practices, is a frequent area of dispute between 

employers and employees. Unless overtime is regularly scheduled, 

overtime remains a non-mandatory subject of bargaining. 14 However, 

reducing the number of firefighters assigned to each engine and ladder, 

thereby impacting the employees’ regular overtime, without providing the 

union with notice and opportunity to bargain, was held to be an unlawful 

unilateral change. 15 In a case dealing with both scheduled and 

unscheduled overtime, the LRC held that unilaterally eliminating the 

scheduled overtime violated the law, but dismissed the charge that the 

employer unlawfully reduced unscheduled overtime. 16 Note that when an 

employer offers an option to employees to receive overtime pay or 

alternatively to receive time off for working extra hours, the employer 

cannot unilaterally eliminate the time off option without bargaining. 17 

Paid details may be assigned on an informal or formal (i.e., contractual) 

basis. Any change in a formal, contractual assignment system is a 

mandatory subject of bargaining, but informal systems of assigning paid 



details must also be bargained over if a past practice has been created. 18 

Thus, an employer may not unilaterally change the method of assigning 

paid details without bargaining. 19 However, if the employer has a past 

practice relating to the assignment of paid details, even though the 

practice was infrequent, the employer may be able to implement the 

practice. 20 In Town of Arlington, the Town was found not to have violated 

the Law when it canceled all paid details except a traffic detail for which 

no police oficers had volunteered to work; the Town had created a “past 

practice” ten to twelve years earlier when it had canceled paid details until 

volunteers came forward for a street resurfacing detail. 21 

The Town of Falmouth was ordered to make whole nine superior officers 

for lost paid detail opportunities after the town failed to live up to the 

agreement it made to have superior officers and patrol officers continue to 

share in paid details. 22 The calculation of damages involved looking at the 

number of details the superior officers worked for the two year periods 

both before and after the violation. 23 

An employer may prioritize paid details and the decision is a management 

right; however, upon request, good faith negotiations to impasse or 

agreement are required over the means and method of implementing that 

decision and the impacts of such decision. 24 

§ 3 WORK SHIFTS AND SCHEDULES 

Hours and shift schedules are both mandatory conditions of employment 

and mandatory subjects of bargaining. 25 An employer may not, as a rule, 

implement a new work shift without providing notice and, if requested, 

bargaining first. 26 Similarly, the employer should bargain first over a 

change in work shift coverage or the elimination of a shift. 27 As to 

changes in an individual’s work schedule, an employer may change an 

employee’s schedule without bargaining with the union unless there is a 

past practice of bargaining prior to schedule changes. 28 Occasionally, an 

employer may wish to change employee schedules in an effort to reduce 

overtime costs. 29 As long as the overtime is not “scheduled,” and there is 

no applicable contract provision, the employer may restructure schedules 

after giving the union notice and an opportunity to bargain. Where a 

contract expressly permits altering shifts, no notice or bargaining is 

required. 30 

The Taunton School Committee violated the Law by failing to bargain in 

good faith by implementing a proposed teaching schedule that required 

teachers to teach an extra period without bargaining with the Union to 

resolution or impasse over its decision and the impacts of its decision. 31 



§ 4 JOB DESCRIPTIONS AND WORK ASSIGNMENTS 

Job duties are a mandatory subject of bargaining. 32 The employer is 

required to bargain prior to changing the job description of any position. 33 

Changing the job description and job duties of an employee constitutes an 

alteration in the terms and conditions of employment and is unlawful 

unless bargained over prior to implementation. Thus, an employer may 

not circumvent the requirement of bargaining over a change in workload 

by merely changing the job description. 34 Some minor changes, however, 

may be so insignificant (de minimus) as not to require bargaining. 

As discussed in Chapter 2, the right to assign employees is an inherent 

managerial prerogative. Thus, the Appeals Court held in City of Boston v. 

Boston Police Superior Officers Federation that statutory provisions 

granting the Boston Police Commissioner the power to appoint and 

promote police officers would supersede contractual provisions in the 

colective bargaining agreement purporting to limit the Commissioner’s 

assignment authority. 35 The employer, however, will nonetheless be 

required to bargain over the procedures relative to assignments. (The 

1998 amendments to M.G.L. c. 150E afecting the Commissioner’s 

exemption may alter future decisions in this area.) 

In its 1983 decision involving the Burlington Police Department, the 

Supreme Judicial Court held that the decision to assign police 

prosecutorial duties is an exclusive managerial prerogative, and not a 

mandatory subject of bargaining. 36 The Burlington case involved the 

transfer of prosecutorial duties from a sergeant (in a superior officer's unit) 

to a police officer in a separate unit. 37 In Town of Dennis, the Union's 

charge was dismissed as time-barred for failure to file within the 

Commission's 6-month statute of limitations. 38 However, it is clear that 

the employer had the duty to bargain about the impacts of its decision on 

terms and conditions of employment. There was some disagreement 

among the three Commissioners over the scope of the employer's 

obligations, especially when presented with a fait accompli. The majority 

concluded that regardless of whether the Town's notice of its intended 

reassignment was a "proposal" or a fait accompli, the union had six 

months from that date of notice to file a prohibited practice charge. 

The Labor Relations Commission has dealt with a number of cases 

involving changes to work assignments, and has indicated that the 

following unilateral actions are unlawful: 

requiring firefighters on watch duty to man the front desk; 39 



discontinuing the practice of assigning “night captains” in the 

police force; 40 

involuntarily transferring workers; 41 

changing transfer and work schedule assignment 

procedures; 42 

assigning “breakfast duty” in a school to paraprofessionals 

outside the bargaining unit; 43 

adding billing duties to the position of engineering clerk; 44 

assigning firefighters to visit a vacant school building to 

inspect for signs of intrusion, arson, or fire hazards; 45 and 

changing a contract compliance officer's workload. 46 

However, the Commission has refused to find a violation where an 

employer implemented a policy requiring firefighters to perform dispatch 

duties, in light of a past (though infrequent) practice of assigning such 

duties to firefighters. 47 In a 2002 case involving the Boston Police 

Department, the Commission, while acknowledging the Commissioner’s 

managerial authority to decide not to fill a supervisory position, made it 

clear that the city still had to meet its impact bargaining obligations by 

bargaining with the union to agreement or impasse prior to implementing 

its decision. 48 Since neither side moved at all during four 1-hour 

bargaining sessions, the commission concluded that impasse had been 

reached and dismissed the union’s unilateral change complaint. 


Shift bidding procedures present a special problem with respect to 

assignments. Most cases reported by the LRC involve collective bargaining 

contracts that allow shift bidding and seniority to be considered in making 

assignments, but that give the employer the ultimate right to make shift 

assignments. 49 Even if no such provision was contained in a contract, an 

employer could argue that as an inherent managerial prerogative, 

assignments cannot be subject to absolute bidding arrangements. At 

most, a procedure to advise the chief of an employee’s preference may be 

required. However, the employer is required to provide notice and an 

opportunity to bargain when intending to change the shift bidding 

procedure. 50 

§ 5 PROMOTION 

If an employer seeks to change the criteria for promotion, at least to a 

position in the unit, or in some cases to a non-union position, it may have 

to bargain first with the union if there is a past practice or if there is a 

relevant provision in the labor contract. 51 As long as the criteria have 



been used by the employer in the past, the employer is generally free to 

continue to use those criteria in a more formal fashion. Thus, in City of 

Boston, the LRC found that the City had a past practice of considering 

attendance as a factor in promotions, and dismissed the unlawful 

unilateral change charge even though the City intended to use attendance 

always as a factor in promotion in the future. 52 

The denial of a promotion may also trigger the employer’s responsibility to 

furnish the union with the reasons for the failure to promote, especially if 

the union plans to file a grievance with respect to the decision. 53 

Similarly, the elimination of a position may activate the employer’s duty to 

bargain, where the eliminated position represents an initial “toe hold” in 

the promotional ladder 54 or a lost promotional opportunity. 55 


Employers should refuse to negotiate over a proposal which seeks to 

require the promotion of certain employees based on seniority. Similarly, 

the employer should point out to the union whenever the latter proposes to 

control how promotions are made or what criteria will be used, that the 

law leaves all this exclusively to management. Bargaining over 

procedures for notifying unit members of an opening, on the other hand, 

are proper subjects of bargaining. 

Employers should avoid the pitfalls of including any language in a contract 

which allows employees to file grievances over promotions. Therefore, 

even provisions which permit the employer to determine qualifications but 

then require promoting the “senior most qualified” should never be 

included. 

The use of assessment centers for both initial hiring and promotions is 

becoming increasingly popular. This is one of the best ways of avoiding 

claims of cronyism and similar unfairness charges. Moreover, it goes a 

long way towards insulating the employer from charges of discrimination 

and other improprieties. 

§ 6 DRESS AND GROOMING REGULATIONS 

The constitutionality of public safety grooming regulations has been well 

established for many years. In 1976, the U.S. Supreme Court held in 

Kelley v. Johnson,that police departments did not infringe on an oficer’s 

First Amendment free speech and expression rights through the 

enforcement of grooming regulations. 56 For the regulations to be valid, a 

department was only required to demonstrate that the regulations bore a 

“rational relationship” to the goals the department was trying to achieve. 



The regulations were justified according to the Court on two grounds: 1) 

as a means of making police officers readily recognizable to the public, 

and 2) as a means of fostering esprit de corps through similarity of 

appearance. 

Similarly, the Supreme Judicial Court (SJC) in Massachusetts has upheld 

the decision to discipline a police officer for failing to comply with the 

departmental grooming code. In Board of Selectmen of Framingham v. Civil 

Service Commission, the SJC upheld the indefinite suspension of a police 

oficer whose long hair violated the department’s grooming policy. 57 Later, 

the Appeals Court also determined that the policy was not so “irrational as 

to be branded arbitrary,” and upheld the regulation on the grounds that it 

promoted morale and engendered respect from the community. 58 

With respect to firefighters, the U.S. Supreme Court has also upheld 

grooming regulations. In a per curiam decision dismissing certiorari, the 

Supreme Court upheld a fire department hair grooming regulation, stating 

that the regulation was supportive of “the overal need for discipline, esprit 

de corps, and uniformity.” 59 In prior cases, federal courts had upheld 

such regulations only where they could be linked to safety justifications. 60 

For example, facial hair - beards or mustaches - prevented gas masks or 

SCBA equipment from sealing properly. In Quinn v. Muscare, however, the 

Supreme Court stated that any factual determination concerning a safety 

justification for the grooming rule was “immaterial.” 61 

The LRC has held that dress and grooming standards are mandatory 

subjects of bargaining, so that an employer desiring to institute such 

regulations must first bargain with the union. 62 A department which has 

continuously enforced its grooming regulations is free to continue to do 

so. 63 However, a department which finds itself in the position of not 

having enforced its existing regulations for a considerable period of time, 

or having become lax in enforcing certain portions of the rules, may need 

to provide notice to the union before starting to enforce the rules again .64 

The Sheriff of Worcester County was found guilty of failing to bargain in 

good faith by unilaterally implementing a policy of prohibiting corrections 

officers from wearing union pins, including union insignia, without giving 

the union prior notice and an opportunity to bargain to resolution or 

impasse.65 In addition, the LRC ruled that the Sheriff interfered with, 

restrained and coerced his employees in the exercise of their rights 

guaranteed under the Law by prohibiting the wearing of union insignia, in 

violation of the Law. On appeal, the court held that prescribing uniforms 

for officers was a core management function exempt from collective 

bargaining requirements, but, the sherif’s asserted need for discipline and 

uniformity was not a “special circumstance” that would warrant banning 

union pins. The Appeals Court explained that it did not think the right to 

prescribe uniforms contained in G.L. c. 126, § 9A, supersedes the officers' 



G.L. c. 150E, § 2, right to wear union insignia absent a showing of special 

circumstances. The "principles appli[ed] in construing the interrelation of 

different statutes" require us to give "reasonable effect to both statutes 

and [to] create[ ] a consistent body of law." 66 There is no explicit indication 

that the Legislature, in passing c. 126, § 9A, intended to override the wellestablished 

right to wear union insignia, and the two provisions are not so 

inconsistent with one another that "both cannot stand." 67 Indeed, in 

United States Dept. of Justice, Immigration & Naturalization Serv. v. Federal 

Labor Relations Authy., 68 a case on which the sheriff heavily relies for his 

analysis of special circumstances, an analysis we discuss below, the court 

held that the management rights provisions of the Federal Labor Relations 

Act, 69 did not explicitly supersede the employee rights provisions of 5 

U.S.C. § 7102 (1996), a statute similar to, but containing fewer employee 

rights than, G.L. c. 150E, § 2. As a consequence, the court stated that 

uniformed INS employees were presumptively entitled to wear union 

badges and buttons notwithstanding the employer's right to prescribe 

uniforms. INS, 955 F.2d at 1003. 

We, too, think that the wearing of union insignia, unlike guardian angel 

buttons or tie clips, is a right protected by G.L. c. 150E, § 2, which, 

notwithstanding G.L. c. 126, § 9A, cannot be denied absent special 

circumstances or a "clear and unmistakable" indication that it was waived 

as a result of the bargaining process. 70 

We venture no opinion on whether a waiver of the statutory right to wear 

union insignia in a collective bargaining contract would be legally 

enforceable. 71 

Turning, then, to the issue of special circumstances, both the union and 

the commission argue that none exist in this case. The sheriff disagrees, 

urging that special circumstances do exist and, as noted, relies heavily on 

the Fifth Circuit's treatment of special circumstances in the INS case. 

There, the court's treatment of the issue resulted in the following 

conclusion: 

"The INS's anti-adornment/uniform policy is 

critical to its mission, in that it promotes 

uniformity, esprit de corps and discipline, and 

creates an appearance of neutrality and 

impartiality. Thus, even though the border patrol 

is not military, we hold that its law-enforcement 

mission and the means of accomplishing that 

mission are comparable in significant ways. It 

follows that its anti-adornment/uniform policy is 

similarly entitled to deference. We further hold 

that, when a law enforcement agency enforces an 



anti-adornment/uniform policy in a consistent 

and nondiscriminatory manner, a special 

circumstance exists, as a matter of law, which 

justifies the banning of union buttons" (emphasis 

added). 72 

"Special circumstances" rarely, if ever, are found in the absence of a 

comprehensive ban on all nonstandard adornments. See, e.g., Dighton 

School Comm., 8 M.L.C. at 1305 ("We are further convinced that no 

special circumstances exist to prohibit [union] buttons by the fact that 

other buttons were worn ... without ... interference or comment by the 

school administration. A rule which is enforced only against union 

buttons demonstrates the lack of any truly legitimate purpose for the 

rule"). 73 The record in this case, however, discloses nothing remotely 

resembling a comprehensive prohibition. 

We agree with the sheriff that "the need for discipline, uniformity and an 

absolutely impartial appearance exists at the Jail." People with violent 

tendencies live at the jail. A paramilitary organization and command 

structure are essential for the safety of inmates and correction officers 

alike. But the long period before April 22, 1997, during which the sheriff 

had no policy prohibiting pins, and the fact that his April 22 edict appears 

to have fallen with particular force on union pins, supports the 

commission's conclusion that no special circumstances connected to the 

jail's mission, command structure, need for discipline or other functional 

requirement justified the sheriff's unilateral prohibition of the union 

buttons employees presumptively were entitled to wear. 74 Therefore, the 

commission's conclusion that the April 22 directive, insofar as it affected 

union buttons, violated G.L. c. 150E, §§ 10(a)(1) and 10(a) (5), was 

supported by substantial evidence and did not amount to an error of law. 

We do not preclude the possibility that circumstances may change over 

time in a way that enables the sheriff to meet his burden at some point in 

the future. 75 

In light of the foregoing, paragraphs 1(a), 1(b), 2(a), and 2(b) of the 

commission's order are reversed insofar as they pertain to badges, pins, 

and any nonstandard uniform attire other than pins and badges 

containing union insignia. The commission shall modify the "Notice to 

Employees" referenced in paragraph 2(c) of its order so that it is consistent 

with this opinion. In all other respects, the commission's order is affirmed. 

So ordered. 

The Oxford Police Chief could have banned all non-department-supplied 

pins and insignia on oficers’ uniforms. However, by alowing DARE 

patches and “guardian angel” pins, for example, and banning any union 

pins, the town violated the law by discriminating against the union. 76 



In contexts other than pubic safety, uniforms and grooming standards are 

common workplace practices (especially for hospital employees, 

maintenance workers, customer service types of positions, etc.), and are 

similarly upheld as long as they are not irrational or unreasonable. 

Typically, collective bargaining involving dress codes will focus on cleaning 

or uniform allowances. One of the few LRC cases dealing with dress 

standards involved a dispute over whether an employer was required 

retroactively to pay a cleaning allowance negotiated in a contract. 77 The 

LRC determined that where there was no specific agreement to make the 

cleaning allowance provision retroactive, and where there had been no 

past practice of providing such an allowance, the employer was not 

required to pay the retroactive allowance. 78 


Chiefs are free to set and enforce hair and grooming standards. This 

includes rules concerning beards, mustaches, hair length, sideburns, 

visible tattoos, body piercing and jewelry. If no rule currently exists, the 

chief should provide the union with notice and opportunity to bargain 

before implementing a change. If the rule exists but has not been enforced 

for some time or not consistently, the chief need only advise the union and 

the employees that he/she intends to start enforcing the rule, giving 

sufficient notice so the employees can comply. 

Occasionally the growing of beards or long hair is done as a gesture of 

defiance or in protest of some actions of the chief or the municipality. 

Assuming there was no written rule on the subject, some chiefs have felt 

powerless to enforce what they believed was an “unwriten rule” for as 

long as they could remember. While the area is not free from doubt, it 

would appear that a prompt meeting with the employees involved as well 

as with the union would be an appropriate first step. The chief could order 

employees to shave and suspend (or so recommend to the appointing 

authority) such individuals until they comply. Rather than having a 

member be disciplined for insubordination, the union will probably advise 

the employee to obey and file a prohibited practice charge at the LRC. The 

chief should inform the union in writing that he/she is willing to negotiate 

if they so request; however, in the mean time the same status quo which 

has existed for years (i.e., beard-free) will be maintained. 

To avoid the practical problems likely to result from objectionable tattoos or 

visible body piercing, chiefs should promulgate rules before the need 

arises. It is simple to order an employee to remove an earring. It is not so 

easy to make a tatoo go away from one’s face, neck or forearms. 

The decision of what items will be worn on uniforms is a management 

right. If union pins start appearing, and the chief objects, he/she may 



order them to be removed. If they have been allowed, but the chief now 

objects, notice and opportunity to bargain is required before ordering them 

removed. 

§ 7 RESIDENCY REQUIREMENTS 

Public safety departments often require that employees live within the 

town or city limits, or that they live within a particular distance from the 

municipal limits. Additionally, some public employers, while not requiring 

residency, give preference to persons residing in the community. These 

types of regulations have been challenged on a number of occasions, at 

both the state and federal levels, but have been upheld. 

The Supreme Court of the United States, in McCarthy v. Philadelphia Civil 

Service Commission had the opportunity to consider the legality of a 

residency requirement for firefighters. 79 The plaintiff had been employed 

as a firefighter in Philadelphia for 16 years when he was terminated 

because he moved his permanent residence from Philadelphia to New 

Jersey in contravention of a municipal regulation requiring city employees 

to be residents of the city. 80 The Court had previously held in Hicks v. 

Miranda that this type of ordinance was “not irrational” as a valid exercise 

of state authority. 81 The plaintiff in McCarthy, however, raised a new 

challenge to the residency requirement; he argued that the regulation 

infringed on his constitutionally protected right to travel. 82 The Supreme 

Court rejected this claim, distinguishing other “right to travel” cases as 

implicating fundamental rights such as voting or receiving welfare benefits 

and involving the requirement of a one year residency waiting period. 83 

In Massachusetts, the Supreme Judicial Court dealt directly with a one 

year residency rule which gave preference to applicants for the position of 

police officer who had lived in the town for that period. 84 In Town of Milton 

v. Civil Service Commission, the plaintiffs challenged the residency 

requirement on state and federal constitutional grounds. The SJC 

rejected this challenge, holding that the rule need only satisfy the 

“reasonable relationship to legitimate state purposes” test, not the more 

stringent “compeling state interest” test, because the rule did not “place a 

penalty” on the right to travel. 85 The court cited several advantages to the 

residency requirement: knowledge of local geography which leads to 

quicker response time; familiarity with the community which encourages 

trust and cooperation on the part of citizens; officers off-duty being in the 

community facilitates mobilization in an emergency; and facilitation of the 

local cadet program, which assists local students in obtaining a higher 

degree while working for the police force. 86 



Similarly, the Appeals Court upheld, in Mello v. Mayor of Fall River, the 

dismissal of a tenured civil service employee on the grounds of her moving 

outside of the city in violation of the residency requirement for city 

employees. 87 Moreover, the Court in Mello did not even require the City 

Council to make explicit findings, in enacting the ordinance, as to the 

importance and benefits to the city of the municipal employee residency 

requirement. 88 

In a 2003 case involving the Brockton Police Department, the Appeals 

Court held that residency clause in collective bargaining agreement, in 

which parties agreed that previously enacted ordinance requiring law 

enforcement officers to be city residents would be enforced only against 

officers hired after specified date, was lawful, as applied to officers hired 

prior to agreement’s date. 

§ 8 TRANSFERS 

The Joint Labor Management Committee (JLMC) statute lists the right to 

transfer police oficers as a mater of “inherent managerial policy”. 

Although the wording is not clear, it appears that at least in firefighter 

situations, “the subject mater of transfer shal not bewithin the scope of 

arbitration, provided, however, that the subject matters of relationship of 

seniority to transfers and disciplinary and punitive transfers shall be 

within the scope of arbitration.” The transfer cases which the LRC has 

decided have not involved police or fire service situations. 

A public employer is free to transfer employees at will, as long as: 1) the 

motivation for the transfer was not related to the employee’s union 

activities, 89 and 2) the transfer was not in violation of the collective 

bargaining agreement. Thus, the employer may not discriminate against 

an employee with respect to his or her union activities by transferring him 

or her. 90 Also, at least in non-public safety situations, if the employer has 

entered into an agreement with the union or has been subject to an 

arbitration award with respect to transferring employees, the employer 

may not violate the agreement. 91 

In the education context, the involuntary transfer procedure for teachers 

is not a “hiring decision” under the education reform act, but a proper 

subject for a collective bargaining agreement. 92 


In many ways, the exercise of the rights of transfer and assignment 

appear similar. A chief has traditionally used the power to transfer 

employees as an informal disciplinary tool. At least in firefighter cases, 



this is no longer a matter which can be handled without regard to the 

union. However, where the chief is motivated by improving the efficiency 

of operations in general, or with the need for a particular employee’s skils 

on a given shift or tour of duty, this should be free from any bargaining 

obligation, at least as far as the decision, if not the impact is concerned. 

When confronted with a union proposal at bargaining that shifts be “bid”, 

the employer may refuse to negotiate. If the union is willing to limit the 

matter to procedures for affording employees the opportunity to express 

their preferences, this is another matter. The ambiguous language in the 

Joint Labor Management Committee statute -- which appears aimed 

primarily at firefighters -- has not yet been deciphered by the courts or the 

LRC. It would be prudent, then, for municipal employers to exclude or 

make some provision regarding “the relationship of seniority to transfers 

and disciplinary or punitive transfers” to minimize grievances or LRC 

charges in this area. 

§ 9 WEAPONS 

Generally, a police chief has the authority to determine who will carry a 

firearm and under what conditions, so that the subject of carrying 

weapons cannot beincluded in an arbitrator’s award. 93 However, a chief 

may not arbitrarily remove a police oficer’s right to carry a firearm and 

then assign him/her to dangerous areas. 94 Moreover, a chief may not 

change a past practice of having officers carry a firearm without giving the 

union the opportunity to bargain over the impact of the decision on 

mandatory subjects of bargaining, though the chief need not bargain over 

the decision itself. 95 

Federal legislation has added an additional complication to police officers 

carrying firearms. 96 Federal law prohibits anyone convicted of a 

misdemeanor crime of domestic violence from “seling or otherwise 

disposing of a firearm or ammunition.” Apparently, this prohibition also 

encompasses police officers carrying firearms in the line of duty. 97 Any 

officer who in the past has been convicted 98 of a domestic violence offense 

may not carry a firearm in the line of duty or in the course of his/her 

employment, must return all departmentally-issued weapons, and must 

surrender or transfer custody of all personal firearms. 

Legislation enacted in 1998 in Massachusetts expands the list of persons 

that have either a temporary (5 year) or lifetime disqualification from being 

issued a Firearms Identification Card (FID Card) and/or License to Carry 

firearms. 99 



An arbitrator upheld the termination of a Franklin police officer, even in 

the absence of a specific written requirement that officers posses a license 

to carry firearms. 


Given that the deprivation of the right to carry a firearm may render the 

police officer unable to perform the duties of the job, police chiefs may deal 

with an officer convicted of a domestic violence offense in a number of 

ways: 

temporary reassignment or leave of absence, if the officer 

plans to pursue one or more avenues of relief (pardon by the 

governor or by motion to revoke or revise sentence if the 

Massachusetts conviction is less than 60 days old); 100 

permanent reassignment, to a position not requiring use of a 

firearm; or, 

discipline/discharge; as long as the department had a written 

or long-standing policy of requiring the carrying of a firearm. 101 

The issue of a disqualification under Massachusetts law from securing a 

License to Carry firearms is more difficult. The provisions of M.G.L. c. 41, 

§98 allow a chief to authorize officers to carry weapons without the need 

of a License. Unless a department has a rule, or at least a practice, of 

requiring all officers to be licensed, it may be difficult for a chief to proceed 

in this area. Departments without a rule or practice should relieve an 

officer from duty with pay and notify the union of a proposed new rule. 

Upon reaching agreement or impasse, the rule may be implemented. 

Should an officer be discharged because of his/her inability to carry a 

firearm, and he/she challenges the discharge, the courts would evaluate 

whether the ability to possess a firearm is rationally related to the 

person’s fitness and ability to be a police oficer. 102 Most likely, the 

requirement would satisfy the rational relationship test and the discharge 

would be upheld. 

Decisions about the nature and level of services that a public employer 

provides lie within the exclusive prerogative of management, and are not 

mandatory subjects of bargaining. 103 

The City of Boston’s decision to implement a less lethal force policy 

requiring certain unit members to use beanbag shotguns and super-sock 

ammunition was clearly a managerial prerogative because it implicated 

the nature of the services that the City’s Police Department provided, 



including how the City chose to deploy its law enforcement resources. 104 

The City made the policy decision that in certain situations involving 

individuals that were armed with an edged weapon, its police officers 

should have the option of using a weapon and ammunition that 

administered a type of force that fell somewhere between lethal force and 

non-lethal force on the force continuum. Although the City’s decision to 

have certain unit members use the specialized shotguns and 

ammunition as part of the less lethal force policy was excepted from the 

statutory bargaining obligation, the City was nevertheless required to 

negotiate over the impacts of that core governmental decision on 

mandatory subjects of bargaining prior to implementation. 105 The issue 

was whether the City failed to bargain in good faith by requiring certain 

unit members to use beanbag shotguns and supersock ammunition as 

part of a less–lethal force policy without giving the union an opportunity 

to bargain to resolution or impasse over the impacts of that decision on 

the terms and conditions of employment of unit members. The 

Commission previously decided that an increase or change in employees’ 

job duties, compulsory training, and workload are mandatory subjects of 

bargaining. 106 Here, as a result of the City’s decision to deploy the 

beanbag shotgun and supersock rounds as part of a less lethal force 

policy, the City required patrol supervisors, who were bargaining unit 

members, to undergo mandatory training four times per year. Further, 

thepatrol supervisor’s job duties had changed because they were now 

responsible for deciding whether the beanbag shotgun should be 

deployed at a particular incident scene and for actually firing the 

weapon. Finally, the workload of the district lieutenants who were also 

bargaining unit members increased because the district lieutenants 

became responsible for securing the weapon between shifts and 

conducting weekly inspections of the weapons and the ammunition. 

Having decided that the City had an obligation to bargain with the union 

over the impacts of the specialized shotgun and ammunition on the 

terms and conditions of employment of unit members, the only 

remaining issue was whether the parties bargained to impasse. 

§ 10 OFF-DUTY EMPLOYMENT 

A municipality has the right to regulate the off-duty employment of law 

enforcement officers. The emergency nature of law enforcement, the need 

to ensure that officers report for duty in good physical and mental 

condition, and the need to avoid conflicts of interest, all combine to justify 

a department’s regulation (or even prohibition) of of-duty employment. 107 

The Supreme Judicial Court has held that while the opportunity to earn a 

living is certainly fundamental in our society, “it is an equaly basic axiom 

that there is no right to public employment.” 108 Thus, a police department 

may restrict outside employment as a condition of employment for police 



oficers. Similarly, oficers may also lawfuly be required to seek the chief’s 

approval prior to obtaining outside employment. 109 

§ 11 NON-SMOKING RULE 

In its 1995 decision in Abington School Committee, the Labor Relations 

Commission first addressed the issue of a public employer’s ability to ban 

smoking in the workplace. 110 The Commission ruled that the decision to 

prohibit smoking did not result from any overriding interest or educational 

policy concern. It therefore atempted to balance the employees’ interest 

in bargaining over workplace smoking policies with the employer’s interest 

in creating a smoke-free working environment. The Commission ruled 

that the employer could not unilaterally impose such a ban. It noted, 

however, that there might be cases where the employer’s interest in 

prohibiting smoking is so intertwined with its mission that no bargaining 

would be required. 

In a 1996 case involving the Lexington Police Department, the 

Commission held that absent evidence that smoking in police vehicles 

poses a direct public health hazard, there was no managerial prerogative 

that overrode the union’s interest in bargaining. 111 

A 1997 case involving employees at the Springfield Long Term Care Unit in 

the Division of Medical Assistance required notice and the opportunity to 

bargain before the state could abolish a smoking lounge. 112 During 

renovations, the smoking lounge was converted to a supply/fax/mail 

room. Although the state offered evidence at the hearing of the dangers of 

second hand smoke, it did not take this into account in deciding to 

abolish the smoking lounge. As a remedy, the state was ordered to restore 

a smoking area and to negotiate to agreement or impasse before 

implementing smoking restrictions that are not necessary to protect the 

health and welfare of the public. 

§ 12 VACATIONS 

In a 1997 decision, the LRC upheld its deferral to arbitration in a case 

involving a charge that a school district unilaterally changed its vacation 

policy. 113 An arbitrator found that the collective bargaining agreement 

was silent as to whether the School Committee could unilaterally change 

the school calendar. The management rights clause provided that the 

Committee retained all rights except those modified by the terms of the 

contract. The Commission dismissed the union’s charge that the 

employer violated the Law by unilaterally changing the vacation schedule 

without offering the union an opportunity to bargain. 



§ 13 SEXUAL HARASSMENT POLICY 

The implementation of a new sexual harassment policy is a mandatory 

subject of bargaining. 114 This is because it impacts upon the terms and 

conditions of employment. 115 Therefore, despite the fact that a state law 

requires municipalities to adopt some form of a sexual harassment policy, 

the employer must still bargain over the impact of such policy if the union 

makes a timely request. 

When the Boston Police Department implemented a new sexual 

harassment policy that included new reporting requirements for superior 

officers, the LRC ruled that it should have offered the union notice and the 

opportunity to bargain. 116 

§ 14 SHIFT SWAPS 

The ability and criteria for swapping shifts is a mandatory subject of 

bargaining. In a case involving the Natick Fire Department's shift swap 

policy for EMT's, the Commission ruled that the Town violated the Law by 

failing to give the union prior notice or an opportunity to bargain about 

restrictions on shift swaps. 117 

In Natick, the Town argued that the ALJ erred in refusing to consider that 

the Town's decision to maintain an EMT-I on every shift is a level of 

services decision. The Town argued that the underlying intent of the 

restriction on shift swaps was to ensure that the ambulance was capable 

of administering advanced life support services on all shifts. The LRC 

noted that decisions covering the level of services that a governmental 

entity will provide lie within the exclusive prerogative of management, and 

are not mandatory subjects of bargaining. 118 However, even if the decision 

to maintain an EMT-I on every shift was within the Town's exclusive 

prerogative, the Town was obligated to bargain over the impacts of that 

decision, including whether EMT's would continue to be allowed to swap 

shifts without regard to their certification. 119 Therefore, whether the 

Town's bargaining obligation is considered as an obligation to bargain over 

its decision to restrict shift swaps among EMT's or as an obligation to 

bargain over the impacts of its decision to maintain an EMT-I on every 

shift, the result is the same; the Town was obligated to give the Union 

notice and an opportunity to bargain before changing its policy of allowing 

EMT's to swap shifts without regard to their EMT certification. 

Accordingly, even if the ALJ failed to consider the Town's argument that 

the decision was a level of services decision, the Town was still obligated to 

bargain even under the analysis it claimed the ALJ should have applied. 



The City of Medford did not change its shift swapping procedures when 

the fire Chief instructed a Captain and Lieutenant to stop their weekly 

arrangement to create 24-hour schedules. 120 The Chief’s concerns about 

the two individual’s “weekly deal” did not afect the shift swapping practice 

for the other bargaining members, but only addressed his concerns that 

an individual bargaining unit member was abusing the shift swapping 

practice. 

§ 15 DOMESTIC VIOLENCE POLICY 

The adoption of a new or revised policy on domestic violence will require 

notice to the union and, if requested, good faith bargaining to impasse or 

agreement. In a 2001 decision involving the Lowell Police Department, the 

LRC concluded that the City's domestic violence policy was a mandatory 

subject of bargaining. 121 

In the Lowell case, the issue was whether the City unilaterally 

implemented a domestic violence policy for bargaining unit members, 

without providing the Union with prior notice and an opportunity to 

bargain to resolution or impasse. 

It was undisputed that, prior to September 29, 1998, there were no 

policies pertaining to domestic violence. Although the City had a reporting 

requirement for any police officer who had been arrested, named as a 

defendant in a criminal matter or was the subject of a criminal complaint 

application, the evidence demonstrated an absence of a domestic violence 

policy or practice. Further, unilaterally implementing a policy that 

represents a change in working conditions constitutes a mandatory 

subject of bargaining. 122 The City implemented the domestic violence 

policy without providing notice to the Union and an opportunity to bargain 

to resolution or impasse. Therefore, all three elements of the Commission's 

unilateral change analysis were satisfied. 

The City argued that the domestic violence policy did not constitute a 

change in working conditions and did not have to be bargained with the 

Union. On the basis of the record before the Commission, it determined 

that the City's domestic violence policy, which sets out a reporting 

requirement for the bargaining unit members, details the disciplinary 

penalty, and specifies that this policy can be considered in making 

determinations of promotions, constituted a mandatory subject of 

bargaining. 123 It is well established that an employer may not impose a 

work rule that affects the terms and conditions of employment without 

bargaining with the union. 124 Moreover, any change in the employees' job 

duties is a mandatory subject of bargaining. 125 In addition, policies that 

provide for the discipline and/or discharge of employees who violate them 



are a mandatory subject of bargaining. 126 Furthermore, procedures for 

promotions affect an employee's condition of employment to a significant 

degree and are a mandatory subject of bargaining. 127 

In Lowell, the City's domestic violence policy contained new procedures 

and duties for reporting involvement in domestic violence, which were 

mandatory for the members of the bargaining unit. In addition, members 

of the bargaining unit who had committed or threatened to commit 

domestic violence would be disciplined for their acts. Moreover, under the 

policy, acts of domestic violence could be considered in promoting and 

making other work-related determination about members of the 

bargaining unit. Accordingly, the LRC concluded this domestic violence 

policy was a mandatory subject of bargaining. 

§ 16 RADIO PROCEDURES 

Section 6 of the Law requires a public employer and employee 

organization to negotiate in good faith with respect to wages, hours, 

standards of productivity and performance, and any other terms and 

conditions of employment. 128 According to the 2002 LRC case of Town of 

Andover, the radio procedure implemented by the Town was a mandatory 

subject of bargaining because it established standards of performance for 

patrol officers that were required as a condition of continued 

employment. 129 Therefore, the Town was obligated under the Law to give 

the Union notice and an opportunity to bargain before implementing the 

radio procedure. Because the Town refused to bargain over the radio 

procedure on demand by the Union, the LRC found that the Town violated 

the Law by unilaterally implementing a new radio procedure and by 

refusing to bargain on demand over a mandatory subject of bargaining. 

§ 17 PERSONAL CELL PHONES 

The Sheriff had the right to promulgate a rule banning personal cell 

phones on duty, even without providing the union with any opportunity to 

bargain over the decision or the impact of such new rule. 130 The 

Commission found that any interest the jail officers may have in carrying 

a personal cel phone on duty is outweighed the employer’s interest in 

maintaining public safety by ensuring that the jail officers are performing 

the necessary functions of providing care, custody and control of the jails 

inmates in a safe and attentive manner. 



1 Again, these rules and procedures must also be applied in a nondiscriminatory fashion. 

2 Board of Trustees, University of Massachusetts, 7 MLC 1577 (1980). 



5 Mass. Commissioner of Admin. & Fin., 20 MLC 1195 (1993). 

6 City of Somerville, 20 MLC 1523 (1994). 


8 Town of Middleborough, 18 MLC 1409, af’d, 19 MLC 1200 (1992). 

9 City of Taunton, 17 MLC 1420 (1991). 

10 Suffolk County House of Correction, 22 MLC 1001 (1993). 

11 Nahant School Committee, 19 MLC 1666 (1993). 

12 City of Leominster, 3 MLC 1579 (1977) 

13 Duxbury School Committee, 25 MLC 22 (1998). 

14 Town of West Bridgewater, 1 MLC 1040 (1983). See Massachusetts Labor Relations Commission, 18 

Mass. App. Ct. 550 (1984). 

15 City of Melrose, 21 MLC 1519 (1995). See also, Town of Tewksbury, 19 MLC 1189 (1992) (reversing 

hearing oficer and holding that town’s appointment of a provisional lieutenant constituted a unlawful 

unilateral change because of the impact on regular, scheduled overtime). Compare another City of Melrose 

case, 22 MLC 1209 (1995), where the Commission found no unlawful unilateral change given that the 

reduction in number of firefighters assigned to each engine and ladder had no impact on safety and/or 

workload. See also, Town of Halifax, 20 MLC 1320 (1993),af’d, 38 Mass. App. Ct. 1121 (1995) (finding 

no unlawful unilateral change when town reduced number of firefighters assigned to work weekend shift 

where there were no safety or workload implications). 


17 Town of Brookline, 15 MLC 1631 (1989). 

18 Town of Natick, 12 MLC 1732 (1986). 

19 City of Revere, 20 MLC 1015 (1993); Town of Falmouth, 19 MLC 1498 (1992); City of Taunton, 17 

MLC 1575 (1991); City of Springfield, 17 MLC 1001 (1990). 

20 

A consistent practice that applies to rare circumstances may become a condition of employment if it is 

followed each time the circumstances precipitating the practice occur. See Town of Arlington, 16 MLC 

1350 (1989); Town of Lee. 11 MLC 1274, 1277, n. 8 (1984). 

21 16 MLC at 1351. 

22 Town of Falmouth, 25 MLC 24 (1998). 

23 Id. 


25 Commonwealth of Mass. _____, 30 MLC 60 (2003). 

26 Suffolk County House of Correction, 22 MLC 1001 (1995); City of Boston, 14 MLC 1029 (1987). 

27 Town of Halifax, 19 MLC 1560 (1993); Springfield Hospital, 22 MLC 1645 (1996). 

28 Higher Education Coordinating Council, 22 MLC 1433 (1996). 

29 See supra section on “Overtime”. 


31 Taunton School Committee, 28 MLC 378 (2002). 

32 Town of Danvers, 3 MLC 1559, 1576 (1977); City of Boston 30 MLC 38 (2003). 

33 Town of Wilbraham, 6 MLC 1668 (1980). The bargaining requirement applies to positions which are 

filled or unfilled. 

34 Town of Plainville, 20 MLC 1217 (1993) (holding employer unlawfully unilaterally assigned leaf 

burning duties to firefighters). 

35 City of Boston v. Boston Superior Officers Federation, 9 Mass. App. Ct. 157, 454 N.E.2d 1298 (1980). 

Note, however, that until 1998 the City of Boston had greater power and authority in this area than other 

towns and cities because of the special statute granting such authority. Normally, certain inherent 

managerial prerogatives may be bargained away by an employer voluntarily during contract negotiations 

(as long as the right at issue is not nondelegable, such as the right to appoint), though such a prerogative 



may never be mandated by an arbitrator’s decision. See Berkshire Hills, 375 Mass. 522, 377 N.E.2d 940 

(1978). 

36 Burlington v. Labor Relations Commission, 390 Mass. 157, 454 N.E.2d 465 (1983). 

37 Id. 


39 Town of Wayland, 17 MLC 1286 (1990). 



42 City of Everett, 15 MLC 1298 (1989). 

43 Springfield School Committee, 18 MLC 1357 (1992). 

44 Peabody Municipal Light Department, 28 MLC 88 (2001). 

45 City of Newton, 14 MLC 1287 (1988),af’d, 16 MLC 1036 (1989). 


47 Town of Scituate, 16 MLC 1195 (1989). 


49 See, e.g., City of Leominster, 17 MLC 1931 (1991). 

50 City of Leominster, 19 MLC 1636 (1993). 

51 Town of Norwell, 18 MLC 1263 (1992). 

52 City of Boston, 21 MLC 1487, 1491 (1995). 

53 Mass. Commissioner of Admin & Fin., 14 MLC 1280 (1987). 


55 City of Quincy, 15 MLC 1048 (1988). 

56 Kelley v. Johnson, 425 U.S. 238 (1976). 

57 Board of Selectmen of Framingham v. Civil Service Commission, 366 Mass. 547, 321 N.E.2d 649 (1974) 

(Framingham I). 

58 Board of Selectmen of Framingham v. Civil Service Commission, 7 Mass. App. 398, 387 N.E.2d 1198 

(1979) (Framingham II). 

59 Quinn v. Muscare, 425 U.S. 560, 96 S. Ct. 1752 (1976). 

60 See, e.g., Yarbrough v. Jacksonville, 363 F. Supp. 1176 (M.D. Fla. 1973) (regulation valid where effect 

on safety shown); Lindquist v. Coral Gables, 323 F. Supp. 1161 (S.D. Fla. 1971) (regulation invalid where 

no such effect was shown). 

61 Quinn v. Muscare, 425 U.S. at 562-3, 96 S. Ct. at 1753. 

62 Town of Dracut, 7 MLC 1342 (1980). 

63 Town of Winchester, 24 MLC 44 (1997). 

64 See City of Worcester, 4 MLC 1317 (1977) (upholding right of new police chief to begin enforcing 

regulations which had previously been under enforced, as long as he/she provided adequate notice to 

employees of his/her intent to do so). 

65 Sheriff of Worcester County, 27 MLC 103 (2001). 

66 Boston v. Board of Educ., 392 Mass. 788, 792, 467 N.E.2d 1318 (1984). 

67 Commonwealth v. Graham, 388 Mass. 115, 125, 445 N.E.2d 1043 (1983). 

68 United States Dept. of Justice, Immigration & Naturalization Serv. v. Federal Labor Relations Authy., 

955 F.2d 998 (5th Cir.1992) (INS ) 

69 Federal Labor Relations Act, 5 U.S.C. § 7106(b)(1) (1996). 

70 National Labor Relations Bd. v. Mead Corp., 73 F.3d 74, 79 (6th Cir.1996), quoting from Metropolitan 

Edison Co. v. National Labor Relations Bd., 460 U.S. 693, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983).) 

71 See Lodge 743, International Assn. of Machinists v. United Aircraft Corp., 337 F.2d 5 (2d Cir.1964), 

cert. denied, 380 U.S. 908, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965) (distinguishing between enforceable and 

unenforceable waivers of statutory rights). 

72 INS, 955 F.2d at 1004. 

73 See also National Labor Relations Bd. v. Harrah's Club, 337 F.2d 177, 178 (9th Cir.1964); Burger King 

Corp. v. National Labor Relations Bd., 725 F.2d 1053, 1055 (6th Cir.1984); Immigration & Naturalization 

Serv. v. Federal Labor Relations Authy., 855 F.2d at 1465. 

74 See Boise Cascade Corp., 300 N.L.R.B. 80, 84 (1990) (evidence that pins were worn for six months 

without incident was "most important point" in determining absence of special circumstances). 



75 See, e.g., Meijer, Inc. v. National Labor Relations Bd., 130 F.3d 1209, 1217 (6th Cir.1997) (requiring 

"affirmative showing" of negative impact). 

76 Town of Oxford, 31 MLC 40 (2004). 

77 Boston Water and Sewer Commission, 15 MLC 1319 (1989),af’d sub nom, Boston Water and Sewer 

Workers v. Labor Relations Commission, 28 Mass. App. Ct. 359 (1990). 

78 Id. 

79 McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S. Ct. 1154 (1976). 

80 Id. at 1155. 

81 Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S. Ct. 2281, 2288-2289 (1975). 

82 McCarthy v. Philadelphia Civil Service Commission,424 U.S. at 1155. On the isue of “right to travel,” 

refer to Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322. 

83 Id. 

84 Town of Milton v. Civil Service Commission, 312 N.E.2d 188 (Mass. 1974). 

85 Id. 

86 Id. at 194. See also, Doris v. Police Commissioner of Boston, 373 N.E.2d 944 (Mass. 1978) (holding 

that the city was not stopped from enforcing its residency requirement despite the city’s previous failure to 

enforce the requirement). 

87 Mello v. Mayor of Fall River, 495 N.E.2d 876 (Mass. App. Ct. 1986) 

88 Id. 

89 This issue is discussed further in the chapter on Union Rights and Responsibilities. 

90 See Cosby, 32 Mass. App. Ct. 392 (1992); Mass. Dept. of Corrections, 17 MLC 1293 (1990). 

91 See City of Boston, 17 MLC 1711 (1991); Mass. Comm’r of Admin. & Finance, 19 MLC 1235 (1992). 

92 School Committee of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 784 N.E. 11 (2003). 

93 City of Boston v. Boston Police Patrolman’s Asociation, 8 Mass. App. Ct. 220 (1979). 

94 See Mayor of Somerville v. Caliguri, 8 Mass. App. Ct. 335 (1979). Note, however. that the Somerville 

case also involved some race discrimination issues, where the police chief had denied a black officer the 

right to carry a firearm and then sent him/her into an area in which the citizens had previously been hostile 

to him. Thus, it appears that a court wil only question a chief’s decision relative to firearms asignment 

when the motivation is improper. 

95 See Mass. Bd. of Regents (Fitchburg State College), 8 MLC 1483 (1981); 8 MLC University of Mass., 7 

MLC 1503 (1980) 

96 See Federal Gun Control Act (1968, as amended 1996). 

97 See, e.g., U.S. v. Monteleone, 77 F.3d 1086, 1092 (8th Cir. 1996). 

98 If the conviction was expunged or set aside, or the officer was pardoned or his/her civil rights restored (in 

a jurisdiction other than Massachusetts), then the federal law does not require that the officer be relieved of 

his/her weapon. 

99 Chapter 180 of the Acts of 1998. 

100 A police chief is not required to accommodate a police officer who cannot carry a weapon as a result of 

a domestic violence conviction, regardless of whether or not he/she plans to pursue such relief. 

101 See Town of Stoughton, D-3306 (8/7/90) (Civil Service Commission cases) (holding that the town could 

suspend a police oficer for losing his/her driver’s license where having a license was required for the job). 

102 Such a challenge has not been heard by a court yet, but most likely the courts would treat the firearm 

carrying requirement the same as the residency requirement (see discussion above) and only require a 

rational relationship between the rule and ability to do the job. 

103 Commonwealth of Massachusetts, 25 MLC at 205 (1999); citing, Town of Danvers, 3 MLC 1559 

(1977). 

104 City of Boston, 30 MLC 20 (2003), See City of Worcester, 438 Mass. 177, 181 (2002) (employer was not 

obligated to bargain over its decision to assign truancy enforcement duties to its police officers because the 

decision implicated the city’s ability to set its law enforcement priorities). 

105 School Committee of Newton v. Labor Relations Commission, 388 Mass. at 564. 

106 Peabody Municipal Light Department, 28 MLC 88, 89 (2001); City of Boston, 26 MLC 177, 181 

(2000); Commonwealth of Massachusetts, 27 MLC 70, 72 (2000). 

107 See Wilmarth v. Town of Georgetown, 28 Mass. App. Ct. 697, 555 N.E.2d 597 (1990). 

108 See Town of Milton v. Civil Service Commission, 365 Mass. 368, 312 N.E.2d 188 (1974). 

109 Befi v. District Court of Holyoke, 314 Mass. 622, 625, 51 N.E.2d 328 (1943). 



110 Abington School Committee, 21 MLC 1630 (1995). 

111 Town of Lexington, 22 MLC 1676 (1996). 

112 Commonwealth of Massachusetts/Commission of Administration and Finance, 24 MLC 17 (1997). 

113 North Middlesex Regional School District Committee, 24 MLC 42 (1997). 

114 Harris-Teeter Super Markets, 293 NLRB 743, 131 LRRM 1296 (1989). 

115 Dracut School Committee, 29 MLC 1013 (H.O. 1993); City of Boston, 25 MLC 76 (H.O. 1998). 


117 Town of Natick, 28 MLC 85 (2001). 

118 Town of Dennis¸12 MLC 1027 (1985). 

119 See School Committee of Newton v. Labor Relations Commission, 388 Mass. 554 (1983); 


120 City of Medford, 30 MLC 34 (2003). 


122 City of Peabody, 9 MLC 1447, 1452 (1982). 

123 Commonwealth of Massachusetts, Case No. SUP-4345 (Slip Op. June 29, 2001); City of Peabody, 9 MLC 

at 1452; Johnson Bateman Co., 295 NLRB 180, 183, 131 LRRM 1393, 1397 (1989); Town of Danvers, 3 

MLC 1559, 1574 (1977). 

124 City of Peabody, 9 MLC at 1452. 

125 Commonwealth of Massachusetts, Case No. SUP-4345 (Slip Op. June 29,2001); Commonwealth of 

Massachusetts, 27 MLC 70, 72 (2000); Town of East Longmeadow, 25 MLC 128,129 (1999). 

126 Johnson Bateman Co., 295 NLRB at 183. 

127 Town of Danvers, 3 MLC at 1574. 

128 M.G.L. c.150E, §6; Lowell School Committee, 23 MLC 216 (1997), aff'd sub nom. School Committee of 

Lowell v. Labor Relations Commission, 46 Mass. App. Ct. 921, (1999). 

129 Town of Andover, 28 MLC 264 (2002); see City of Lowell, 28 MLC 126 [Case No. MUP-2299 (Slip. 

Op. October 10, 2001)]; see also City of Fall River, 20 MLC 1352, 1358 (1994). 

130 Sufolk County Sherif’s Department, 29 MLC 63 (2002). 


CHAPTER 14 - CHANGING 

SCHEDULES 

The working hours of bargaining unit members have been held to 

constitute a mandatory subject bargaining. 1 In the absence of any 

restriction in the collective bargaining agreement, a municipal employer 

may change employees' schedules to enhance coverage or in an effort to 

reduce overtime costs. Even where no contractual constraints are 

present, the employer must provide advance notice to the union of the 

intention to change the schedule and, if requested, bargain in good faith to 

either agreement or impasse over the impact of such change on 

mandatory subjects of bargaining. 

In municipal public safety departments which operate on a 24 hour per 

day, 7 day a week basis, traditionally there has not been the same 

pressure to reduce overtime by avoiding assigning employees to night or 

weekend shifts as there is in the case of many private employers. 

However, as the inclusion of night and weekend differential clauses in 

contracts increases, the pressure may mount on chiefs to consider such 

extra costs in determining scheduling and in making vacancy replacement 

decisions. Holiday pay is another area which might receive consideration 

for schedule adjustment. Many police and fire contracts pay every 

employee eleven extra days' pay -- generally at straight time -- in lieu of 

computing holiday pay for those who actually work on the legal holiday. 

There would be little benefit to adjust holiday schedules in such cases. 

However, where holiday pay (often at premium and even double time rates) 

is tied to actual work on a holiday, savings may result if a skeleton crew is 

assigned to holidays. 

In addition to the economic justification, there is a strong public policy 

favoring the avoidance of overtime pay. In fact, the purpose of premium 

pay is to discourage the scheduling of overtime as much as possible. The 

Fair Labor Standards Act is specifically intended to encourage the hiring 

of additional employees rather than overworking current employees by 

making it expensive for an employer which schedules employees outside of 

their normal work week. 

Since private employers, in an effort to reduce expenses and increase 

profits, have attempted to rearrange schedules to avoid overtime, many of 

the arbitration decisions in this regard involve non-municipal employers. 


Changing Schedules 14-2 

§ 1 CONTRACTUAL CONSTRAINTS 

Some collective bargaining agreements include a provision prohibiting the 

changing of shifts to avoid overtime. It is unlikely that an arbitrator would 

approve a unilateral shift change in such case, regardless of the economic 

or business justification. 

Other contractual provisions, while not specifically referencing restrictions 

on shift changes, may have similar effects. For example, some contracts 

specify the only authorized shift schedules to which members of the 

bargaining unit may be assigned. On the other hand, where a collective 

bargaining agreement specifies how schedule changes are to be 

accomplished, such a provision is likely to be controlling, at least for the 

life of the contract. In the absence of any reference to how and when 

schedule changes may be made, both parties will be left to argue over 

whether and under what circumstances management may change 

workers' schedules. 

§ 2 NORMAL WORK-WEEK CLAUSES 

Contracts which contain clauses describing a “normal” or “standard” 

work-week or shift usually do not prevent an employer from changing 

existing schedules or creating new shifts. From a management point of 

view, there is little, if any, benefit from including a listing of shifts in a 

collective bargaining agreement. In the Georgia-Pacific Corp. 1978 

arbitration case, the arbitrator stated, "(t)he very notion of normal hours of 

work suggests there may be times when abnormal hours are necessary 

and proper, if such a shift is fully justified by operational or production 

requirements -- in other words if business conditions dictate." 2 While this 

is consistent with the majority view, there are some arbitrators who have 

reached opposite results. 3 While it is not absolutely necessary when such 

normal work week clauses are included, it is advisable to add a provision 

similar to the following language contained in a contract involved in the 

1962 Stanley Works arbitration case: 

This article shall not be construed to be a 

guarantee of hours of work per day or per week. 

Determination of daily or weekly work schedules 

shall be made by the [city/town/chief] and such 

schedules may be changed by the 

[city/town/chief] from time to time to suit the 

needs of the [city/town and department]; 

provided that the changes deemed necessary . . . 

shall be made known to the union 



representatives in advance whenever 

circumstances permit. 4 

Where an employer attempts to flaunt its management rights to change 

schedules for legitimate purposes by doing so in a capricious or arbitrary 

manner, an arbitrator may find a contract violation. 5 

Lastly, where the employer attempted unsuccessfully to negotiate a 

change in the normal hours of work clause, an arbitrator will be reluctant 

to find that a unilateral change is simply an exercise of a managerial 

prerogative. 6 

§ 3 PAST PRACTICE CLAUSES 

Some unions point to the past practice or maintenance of standards clause 

when arguing that the employer violated a contractual provision. 

Especially where only a temporary change or one which affects only a 

fraction of the bargaining unit is involved, such clauses are not generally 

interpreted by arbitrators as prohibiting schedule changes. 7 A different 

result has been reached where the prevailing practice clause was found to 

require that employees continue to be paid for an entire shift -- as was the 

past practice -- regardless of when they were called to work, despite 

changes in business conditions. 8 

A past practice requires more than a long-standing tradition. At least as 

far as most arbitrators are concerned, it also requires joint thought and 

effort. In a case involving the changing of a twenty-two year practice of 

scheduling an employee off work on Saturdays, the arbitrator found that 

the past practice clause did not prevent the employer from making such 

change. 9 The arbitrator concluded that the evidence simply showed that 

management scheduled in the manner it thought best over the years. 

There has been a reluctance on the part of arbitrators to approve schedule 

changes made to avoid overtime when certain employers have changed 

schedules temporarily, especially where the contract required "agreement" 

on all new schedules; 10 when the employer does not have a legitimate 

business reason for the change; 11 or where regular overtime compensation 

has been used by management as an economic inducement to the union 

to accept a compromise on other benefits. 12 One arbitrator, while 

recognizing management's "exclusive right" to schedule production, found 

that it was not proper to require the union to choose between a temporary 

change in the work week -- which resulted in a reduced work week -- or 

the loss of premium pay. 13 This is in contrast to another arbitrator's 

decision which approved generalized schedule changes based on 



legitimate external economic considerations and was not a manipulation 

of schedules merely to avoid overtime. 14 

§ 4 HOLIDAY SCHEDULES 

The LRC, in its 1981 decision in the City of Springfield case, addressed the 

City's obligation to bargain in good faith over a change in its practice of 

paying overtime for a holiday. 15 In this case the collective bargaining 

agreement with the Massachusetts Nursing Association, which "expired" 

on June 30, 1979, provided for 11 specified paid holidays and called for 

overtime pay, in addition to a regular day's pay, for nurses required to 

work on a holiday. Without conferring with the Association, the City 

issued a memorandum to department heads advising them that the Mayor 

"has indicated that October 1, 1979 will be a paid holiday." The state had 

recently voted to declare October 1, 1979 as a Papal Holiday, in honor of 

the Pope's visit to Boston. When the City later failed to pay the extra 

compensation to nurses who worked the "holiday", the LRC found that the 

City's conduct constituted a refusal to bargain in good faith. Rather than 

order the extra compensation as the Association requested, the 

Commission simply ordered the City to cease and desist from failing or 

refusing to bargain in good faith with the Association over compensation 

for unit members who worked on October 1, 1979 in reliance upon the 

September 28, 1979 memorandum from the Mayor. 

In another LRC decision which involved the granting of half day holidays 

on the day preceding Thanksgiving and Christmas, the Hearing Officer 

dismissed a complaint alleging a unilateral change in a past practice. 16 

The union contended there were no prerequisites to early release, while 

the School Committee stated that they were contingent upon the 

successful completion of work assignments. The Hearing Officer found 

the union's position "questionable and unrealistic" and ruled in the School 

Committee's favor. 



1 Medford School Committee, 1 MLC 1250 (1975) 

2 Georgia-Pacific Corp., 71 LA 1256, 1259 (Howell 1978); see also FMC Corp., 85 LA 18, 20 (Karlins 

1985); Dresser Industries, 66 LA 1201 (Mills 1976); Scott Paper Co., 48 LA 591 (Williams 1967); Ideal 

Corrugated Box Co., 46 LA 129 (Hayes 1965); Universal Food Corp., 44 LA 226 (Hebert 1965); U.S. Steel 

Corp., 41 LA 1051, 1052 (Mittenthal 1963); United States Pipe & Foundry Co., 28 LA 467 (Hepburn 

1957); Wasau Iron Works, 22 LA 473, 475 (Slavney 1954) 

3 Mississippi Aluminum Co., 27 LA 625 (Reynard 1956); Robertshaw-Fulton Controls Co., 21 LA 436 

(Wolff 1953); Armstrong Rubber Co., 17 LA 463 (Conn. Bd. of Med. and Arb. 1951) 

4 Stanley Works, 39 LA 375 (Summers 1962) 

5 Collingwood General and Marine Hospital, 82 LA 1073, 1075 (Adams 1984); United Carbon Co., 39 LA 

311 (Hale 1962); Aro, Inc., 34 LA 254 (Tatum 1960) 

6 Kroger Co., 36 LA 129 (Updegraff 1960); St. Regis Paper Co., 51 LA 1102, 1110 (Solomon 1968); 

Traylor Engineering and Manufacturing, 36 LA 687 (Crawford 1961); City of Highland Park, 76 LA 811 

(McDonald 1981) 

7 Kimberly-Clark Corp., 42 LA 983 (Sembower 1964) 

8 Pacific Towboat & Salvage Co., 82-2 ARB § 8554 (Rule 1982) 

9 Hopwood Foods, Inc., 73 LA 418 (Leahy 1979) 

10 Ohio Corrugating Co., 77-1 ARB § 8294 (Dworkin 1974) 

11 General Precision, Inc. 42 LA 589, 593 (Roberts 1963) 

12 Witco Chemical Co., 30 LA 901 (Whitney 1958) 

13 General Precision, Inc., supra. 

14 Stanley Works, 39 LA 374, 377 (Summers 1962) 

15 City of Springfield, 7 MLC 1832 (1981) 

16 Dedham School Committee, 5 MLRR 1179 (1979) 


CHAPTER 15 - MINIMUM 

STAFFING 

The number of police officers or firefighters on a shift is a decision left 

entirely to the employer. It is an exclusive managerial prerogative. When 

renegotiating a collective bargaining agreement, a municipal employer may 

refuse to even discuss minimum staffing for shift coverage in public safety 

contracts. When faced with union insistence upon such a provision, an 

employer may file a Prohibited Practice Charge at the Labor Relations 

Commission or, if the matter proceeds to arbitration under the jurisdiction 

of the Joint Labor-Management Committee, the municipal employer may 

insist that the arbitrator refrain from ruling on minimum staffing 

pursuant to the terms of the statute which created the JLMC. 1 The JLMC 

act specifically provides: 

Notwithstanding any other provision of this act 

to the contrary, no municipal employer shall be 

required to negotiate over subjects of minimum 

staffing of shift coverage, with an employee 

organization representing municipal police 

officers and firefighters. 

Unions may point to a minimum staffing clause as a bar to reducing 

coverage on holidays or at other premium pay times. Such challenges 

should prove unsuccessful for a variety of reasons. Such clauses are only 

enforceable for the first year of a multi-year contract. 2 The Labor 

Relations Commission has ruled that while minimum staffing for shift 

coverage is not a mandatory subject of bargaining 3 , minimum staffing per 

piece of firefighting apparatus is, at least when the piece is being placed in 

service at a fire. The issue of two or one-person police vehicles was not a 

mandatory subject of bargaining in Boston. 4 

An LRC Hearing Officer was faced with a variety of firefighter minimum 

staffing and unilateral change issues in the 1992 case of Town of Halifax. 5 

The Hearing Officer concluded that minimum staffing per shift is a 

permissive subject of bargaining because shift coverage in a fire 

department has a greater impact on the level of delivery of a public service 

than on the workload and safety of firefighters. On the other hand, she 

ruled that the number of firefighters on a piece of fire apparatus when 

that apparatus responds to an alarm is a mandatory subject of bargaining 

to the extent that such coverage raises a question of safety or workload. 


Minimum Staffing 15-2 

A municipal employer may not submit a funding request to meet its 

obligations under a minimum staffing clause which is contingent on a 

Proposition 2 ½ override. 6 

In a 2005 case, the Town of Bedford brought an action to vacate an 

arbitration award pursuant to G.L. c. 150C, § 11(a)(3). The Town 

contended that it did not violate the collective bargaining agreement when 

the Chief of the Fire Department unilaterally changed the number of callback 

firefighters from four to three. The Town argued that this type of 

decision fals within the Chief’s managerial prerogative and is not the 

proper subject of arbitration. 

The court’s review of an arbitrator’s decision is governed by G.L. c. 150C, § 

11E, and is limited in scope. 7 “Courts inquire into an arbitration award 

only to determine if the arbitrator has exceeded the scope of his authority, 

or decided the mater based on fraud, arbitrary conduct or procedural 

irregularity in the hearings.” 8 “An arbitrator exceeds his authority by 

granting relief beyond the scope of the arbitration agreement . . . by 

awarding relief beyond that which the parties bound themselves . . . or by 

awarding relief prohibited bylaw.” 9 

The Town argued that issues concerning call-back procedures should not 

have been submitted to arbitration because the subject is reserved for the 

Town’s discretion under a managerial rights theory. The Union contended 

that call-back procedures are not managerial prerogatives, but even if they 

are so construed, the call-back provision was at least enforceable during 

the first year of the agreement. 

When one party to a collective bargaining agreement is a public employer, 

there are certain subjects that cannot be arbitrated, even if they 

inadvertently become part of an agreement. The courts have held that 

some subjects are so central to the role of a government agency and its 

accountability in the political process, that decisions regarding these 

topics are reserved for the sole discretion of the public employer. 10 These 

subjects are considered non-delegable rights of management “that a 

municipality and its agents may not abandon by agreement, and that an 

arbitrator may not contravene.” 11 “[T]o the extent subjects within that 

zone find their way into a collective bargaining agreement, the provisions 

of the colective bargaining agreement are not enforceable.” 12 While 

determinations of staffing levels that affect public safety might appear to 

be non-delegable management prerogatives that are “beyond the scope of 

public sector bargaining.” 13 The Supreme Judicial Court has held that 

minimum staffing requirements that are, or are similar to job security 

provisions, such as the minimum number of firefighters required to be on 

duty at any time, are enforceable for periods not exceeding one fiscal 

year. 14 The Court reached this conclusion despite its express recognition 



that “a minimum-staffing requirement in a fire department may involve 

public safety considerations,” because “such a requirement has a direct 

effect on the number of people that will be employed and is similar to a job 

security clause . .” 15 

The Court held, however, that although minimum staffing provisions were 

managerial rights that could be bargained for, they were not enforceable in 

the second year of the agreement without funding appropriated by the 

town because such a provision would interfere with a town’s exclusive 

managerial prerogative to annually determine staff levels and appropriate 

funding. 16 Similarly, in Saugus v. Newbury, 17 the Appeals Court held that 

job security clauses are not enforceable for more than one fiscal year, and 

that a collective bargaining provision that attempts to control a public 

employer’s ability to determine staffing levels beyond one year intrudes 

upon an exclusive managerial prerogative. 18 In other words, a minimum 

staffing provision that is in the nature of a job security provision can be 

enforced under a collective bargaining agreement during a fiscal year in 

which funding is appropriated. 

The 2005 case of Local 2071, International Association of Firefighters v. 

Town of Bellingham arose out of a labor-management dispute between the 

Town of Bellingham and a local firefighters union which is the 

representative of firefighters employed by the Town. 19 The dispute was 

committed to the Joint Labor-Management Commitee (“JLMC”) pursuant 

to St. 1987, c. 589, § 4A. The JLMC in turn referred the dispute to a 

panel of arbitrators. The arbitrators made an award consisting of a 3% 

annual wage increase in favor of the employees and the imposition of a 

twenty-four hour shift. The Town did not challenge the award of a wage 

increase, but disputed the validity of the order for the twenty-four hour 

shift, and has filed a motion in opposition. 

The Town maintained that the setting of shift schedules is a nonarbitrable 

issue as it is a “core management right.” 

The fundamental question before the court was whether the matter of a 

twenty-four hour work shift as ordered by the arbitrators is equivalent to 

the assignment of firefighters, a non-arbitrable subject, or is subject to 

any other explicit exemption under the JMLC law. From the context of the 

JLMC statute which excludes assignments and transfers of employees 

from arbitration, the Superior Court Judge noted that it is evident that the 

Legislature sought to exempt from arbitration any issue directly related to 

the type of work performed by employees, but not work hours. Thus, 

based upon the record before the court, the Judge ruled that the issue 

was arbitrable, and that there is support in the record for the decision by 

the arbitrators. 



NOTE: This case is on appeal. The SJC has agreed to decide it. This is 

often an indication that it may reverse the trial court’s ruling. 


An employer may refuse to include a minimum staffing clause in any 

future collective bargaining agreement. The union cannot insist on even 

discussing the topic, as it is not a mandatory subject of bargaining. The 

employer can refuse to allow the issue to be included in a reference to an 

arbitrator in the event the case reaches the JLMC. 

Where a department is in the midst of a multiyear contract, it is necessary 

to submit a funding request each year to cover the cost of such clause. 

However, once the contract expires, this obligation ceases, probably even if 

there is an “evergreen” clause. 

Simply because someone must support the funding request does not 

preclude other town or city officials from opposing it. For example, the 

Chair of the Finance Committee is not bound to support a request, even if 

the Town Manager or Selectmen are. 



1 Chapter 594 of the Acts of 1979; amended by Chapter 726 of the Acts of 1985 

2 Chelsea Firefighters Union v. Receiver for the City of Chelsea, 1992 Superior Court Decision. See also, 

Town of Bilerica v. International As’n of Firefighters, Local 1495 415 mass. 692, 615 N.E.2d 564, 144 

BNA LRRM 2513(1993) 

3 City of Newton, 4 MLC 1282 (1977); Town of Bridgewater, 12 MLC 1612 (1986). 


5 Town of Halifax, 19 MLC 1560 (1992) 

6 Local 1652, IAFF v. Town of Framingham, 442 Mass. 463, 813 N. E. 2d 543 (2004). 

7 School Comm. of Hanover v. Hanover Teachers As’n, 435 Mass. 736, 740 (2002). 

8 Id., citing Plymouth Carver Regional Schol Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990) 

(internal quotations omitted). 

9 School Comm. of Hanover, 435 Mass. at 740. 

10 Lynn v. Labor Relations Commission, 43 Mass.App.Ct. 172, 178 (1997). 

11 Billerica, 415 Mass. at 694. 

12 Boston v. Boston Police Superior Officers Federations, 29 Mass.App.Ct. 907, 908 (1990). 

13 SeeBoston v. Boston Police Patrolmen’s Asoc., Inc., 403 Mass. 680, 684 (1989) (decision regarding 

number officers assigned to cruisers is nondelegable). 

14 Billerica, 415 Mass. at 694-695, citing Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 

Mass. 197, 212 (1982). 

15 Id. At 695. 

16 Id. At 694-695. 

17 Saugus v. Newbury, 15 Mass.App.Ct. 611, 613 (1983). 

18 See also, Melrose and Melrose Firefighters Union, Local 1627, 22 MLC 1209, 1218-1219 (1995). 

19 Local 2071, International Association of Firefighters v. Town of Bellingham, 18 Mass.L.Rptr. 697, 2005 

WL 350962 (Mass.Super.) (2005) 


CHAPTER 16 - BENEFITS, 

COMPENSATION AND LEAVES 

§ 1 WAGES 

Wages are, of course, a mandatory subject of bargaining. 1 Establishing 

entry-level wages is also a mandatory subject of bargaining given that 

wages are earned after an applicant becomes an employee and a member 

of a bargaining unit. 2 Thus, an employer may not unilaterally decrease 

or increase the entry-level wage of a bargaining unit position without 

giving the bargaining unit notice and an opportunity to bargain. 3 Further, 

an employer must comply with applicable minimum wage laws. 4 

Changing the payment schedule from weekly to monthly without providing 

the union with notice and opportunity to bargain was a violation of 

Section 10(a)(5). 5 

A parity clause is a provision in a collective bargaining agreement that 

directly links the wages and/or benefits of one bargaining unit to those of 

another bargaining unit. 6 Such clauses violate Section 10(a)(5) of the 

Law. 7 However, if the provision is worded such that it wil apply only “to 

the extent permited by law,” it wil not be enforceable and, therefore, it 

will not violate the collective bargaining law. 8 

Other types of compensation, such as pensions, 9 severance pay, 

insurance (health 10 or life), and educational incentives, 11 also qualify as 

“wages” for colective bargaining purposes, and thus are mandatory 

subjects of bargaining. 

The terms of employment, upon reinstatement after disability may be 

governed by a collective bargaining agreement. The statute providing for a 

public employee’s return to “the position from which he retired or a similar 

position within the same department,” after the employee has taken 

disability retirement, does not entitle the employee to the same pay grade 

or level of seniority that he may have had at the time of the disability 

retirement. 

§ 2 MEAL AND COFFEE BREAKS 

The Fair Labor Standards Act (FLSA) 12 requires that employees be 

compensated for all hours worked. Thus, rest periods, such as coffee or 

snack breaks, require compensation. If employees are completely relieved 


Benefits, Compensation and Leaves 16-2 

from duty during meal periods (which must be at least thirty minutes 

long), no payment is required. 13 However, for police officers on extended 

surveillance activities, any meal periods would be compensable given that 

they are not completely relieved of duty. 14 

As a mandatory federal law, unions may not bargain away employee rights 

under the FLSA, 15 and an individual employee may not voluntarily waive 

these rights. 16 

A department head may schedule breaks at specific times, even if this 

changes the manner in which employees previously scheduled their 

breaks, according to a 1998 Administrative Law Judge’s (ALJ) ruling. 17 

This was the case even though the employer implemented the change 

unilaterally and gave no prior notice to the union. 18 There she found no 

change in the existing practice that had each department head deciding 

precisely when breaks would be taken. 

§ 3 HOLIDAYS AND VACATIONS 

The criteria for granting vacation leave is a mandatory subject of 

bargaining. 19 If an employer has agreed to certain holidays explicitly in a 

collective bargaining agreement or implicitly by creating a past practice, 

an employer may not unilaterally alter the holiday work schedule or 

compensation. 20 Thus, the decision not to pay teachers for Good Friday 

contrary to past practice was found to be unlawful by the LRC because it 

was a mandatory subject of bargaining (and no notice and opportunity to 

bargain was given.). 21 Similarly, another public employer was found to 

have violated the Law when it discontinued (without notice and 

opportunity to bargain) its past practice of allowing officers on injury leave 

to accumulate vacation credits and holiday pay. 22 

The LRC has generally approached vacations in the same manner as 

holidays. Thus, an employer may not unilaterally change the vacation 

leave policy. 23 Further, the LRC has stated that an employer may not 

unilaterally change the manner in which vacation leave is assigned or 

approved. 24 An employer must provide notice and opportunity to bargain 

to agreement or impasse before making any changes in the vacation leave 

policy. 25 

§ 4 LEAVES OF ABSENCE 

The LRC generally treats leaves–resulting from injury, sickness, family 

obligations, meetings, conventions, etc.–in the same manner as vacation 

or holiday leaves, and requires the employer to bargain prior to changing a 



past practice or contract provision relative to any leave policy. However, 

some types of leaves raise special issues which require additional 

comment. 

With respect to sick leave, an employer may not unilaterally require an 

employee to submit to physicals conducted by employer-designated 

physicians. 26 However, if the employer makes a unilateral change in the 

sick leave policy in response to anilegal “sick-out” by employees, then its 

conduct would not violate the Law (even though generally such conduct 

would be unlawful 27 ). 28 

Leave for public safety personnel injuries raises a host of issues under 

M.G.L. c. 41, § 111F, the “injured on duty” provision. 29 In 1985, the SJC 

ruled that a city could require an oficer injured on duty to perform “light 

duty” if so assigned by the chief, even though the oficer was not yet able 

medically to resume all of his/her prior duties. 30 This case and 

subsequent LRC decisions have stressed the importance of bargaining 

with the union to impasse or agreement prior to implementing a new “light 

duty” policy. 31 

With respect to both sick and injury leave, an employer may, without 

bargaining with the union, institute a new “reporting form” which inquires 

about the reason for the absence, any medical treatments received, and 

the ability to perform regular duties. In Town of Wilmington, the LRC 

upheld a new fire department reporting form, because the new form was 

“procedural” in nature and imposed no new substantive requirements 

affecting the amount of leave available, the criteria for granting leave, or 

any other condition of employment. 32 

For both sick and injury leave, a chief may require that an employee 

receiving benefits as a result of sickness or injury remain in the 

individual’s residence except for specific department-approved activities 

outside of the residence. 33 In the Atterbury case, the Boston Police 

Department required approval for al reasons for leaving one’s home 

except for voting, doctor’s appointments, purchasing foods or medicines, 

attending church, physical exercises, or care of minor children. 34 

Employers must make available to employees unpaid leave for certain 

family obligations, including the birth of a child, adoption, foster care, care 

for sick family members, or personal sickness or injury (not work related), 

pursuant to the Family and Medical Leave Act (FMLA). 35 The FMLA, a 

federal law, requires that an employer allow at least twelve consecutive 

weeks of unpaid leave to any qualifying employee (who worked at least 

1250 hours in the prior year) requesting leave for any of the above 

reasons. The employer may require the employee to provide 

documentation regarding the reasons for the leave, from a health care 



provider or otherwise, and can mandate that the employee obtain a second 

opinion if the employer has reason to doubt the justification for the leave. 

Moreover, an employer may require that the employee utilize accrued 

vacation, personal, or sick leave for any part of the twelve-week period, 

and may require 30-days’ notice if the medical leave is foreseeable (e.g., in 

the case of childbirth). The FMLA requires that the twelve weeks be 

consecutive, unless the employer agrees to an alternate arrangement. 

Upon returning to work, an employee is entitled to the same position held 

before the leave or a position equivalent to the previous position with 

equivalent benefits, pay and other terms and conditions of employment. 36 

However, benefits or seniority need not accrue during the leave. 37 

§ 5 TAKE-HOME VEHICLES 

The LRC has determined that the convenience and commuting cost 

savings resulting from a free take-home vehicle constitutes a mandatory 

subject of bargaining. 38 

In its 1998 decision involving the Boston Police Department, the 

Commission ruled that the City violated the Law by discontinuing the 

practice of assigning district sergeant detectives take-home vehicles 

without first giving the union notice and an opportunity to bargain in good 

faith to resolution or impasse. 39 Even though the written policies since 

1997 had stated that such vehicles required the Commissioner’s express 

authorization, he/she had never exercised it. The employer may not begin 

to utilize its discretion, having never done so before, without giving the 

union notice and the opportunity to bargain. 40 

§ 6 RECRUIT ACADEMY FEES 

A 2002 decision involving the Town of Ludlow held that the Town failed to 

bargain in good faith by unilaterally implementing a requirement that new 

police officers either sign an agreement promising to remain on the Town's 

police force for five (5) years or reimburse the Town for the cost of their 

police academy training without giving the Union prior notice and an 

opportunity to bargain to resolution or impasse. 

In mid-1995, the legislature enacted and the Governor approved Section 

305 of Chapter 38 of the Acts of 1995 (Section 305) that provides: 

Section 305. Notwithstanding the provisions of 

any general or special law to the contrary, the 

criminal justice training council is hereby 

authorized and directed to charge one thousand 



eight hundred dollars per recruit for training 

programs operated by the council for recruits of 

municipal police departments who began 

training on or after July first, nineteen hundred 

and ninety-five. The state comptroller is hereby 

authorized and directed to transfer one 

thousand eight hundred dollars multiplied by 

the number of such recruits from each 

municipality from the local aid payments of the 

municipality in which said recruit shall serve. 

Said transfers shall be made in the fiscal quarter 

immediately following the completion of training. 

The state comptroller shall certify all such 

transfers to the house and senate committees on 

ways and means no later than thirty days after 

completion of said transfer. Upon completion of 

training, said training fee shall be deducted from 

the recruit's wages in eighteen equal monthly 

installments or as otherwise negotiated. 

Section 71 of Chapter 120 of the Acts of 1995 amended Section 305 by 

striking out, in line 4, the word "operated" and inserting in place thereof 

the word "approved". 

After the enactment of Section 305, the Town prepared and gave to all 

newly-appointed student officers a "Recruit Training Fee Agreement, 

Conditional Waiver Provision" (fee waiver agreement) for their signature. 

This fee waiver agreement between the Town and the individual employee 

provides that the Town will assume and be responsible for the $1,800.00 

municipal police recruit training academy fee authorized by Section 305, 

provided that the student officer remains in the Town's employ for five (5) 

years after completing the academy training. The fee agreement further 

provides that if the police officer leaves the Town's employ within five (5) 

years after the training, the police officer will reimburse the Town the full 

sum of $1,800.00 that the Town may deduct from any severance monies 

due the officer at the completion of Town employment. If the officer's 

severance monies are insufficient to cover the total amount due, the officer 

will be individually responsible for the balance. 41 

The Town did not notify the Union of the fee waiver agreement before 

giving it to the officers for their signature in March 1996, August 1997, 

and June 1998. Prior to the enactment of Section 305 in mid-1995, there 

was no statute that imposed an $1,800.00 police academy training fee 

that was deducted from the Town's local aid payments. Moreover, prior to 

the enactment of Section 305, no statute stated that: "[u]pon completion 

of training, said training fee [$1,800.00] shall be deducted from the 



recruit's wages in eighteen equal monthly installments or as otherwise 

negotiated." 42 Prior to March 1996, the Town did not have a procedure or 

fee waiver agreement in place that waived the training cost assessment if 

officers remained in the Town's employ for five (5) or more years. 

A public employer violates the Law when it unilaterally changes an 

existing condition of employment or implements a new condition of 

employment involving a mandatory subject of bargaining without first 

affording its employees' exclusive collective bargaining representative 

notice and an opportunity to bargain to resolution or impasse. 43 The 

issue here was whether the Town violated the Law when, in March 1996, 

the Town began requiring new police officers to either reimburse the Town 

for the cost of their police academy training or sign an agreement 

promising to remain on the Town's police force for five (5) years in return 

for which the Town agreed to waive the police academy training 

reimbursement. The Town argued that the fee waiver agreement did not 

involve a mandatory subject of bargaining because Section 305 is not 

listed in Section 7(d) of the Law, and by offering the police officer and the 

student officers the choice of either signing a fee waiver agreement or 

reimbursing the Town in the method provided for in Section 305, it 

complied fully with the mandates of Section 305 and the Law. 

The general issue of whether the police academy training cost assessment 

contained in Section 305 of the Acts of 1995 (Section 305) constitutes a 

mandatory subject of bargaining was first addressed by the Commission 

in Town of South Hadley. 44 In that opinion, the Commission decided that 

a requirement that employees pay the costs of their police academy 

training is a condition of employment that directly affects employees' 

wages, and, therefore, a training cost assessment, including the 

procedures for implementing the assessment, including the procedures for 

implementing the assessment, is a mandatory subject of bargaining. 45 

Further, because Section 305 is not listed in Section 7(d) of the Law, the 

Commission examined carefully its specific language to determine if a 

public employer has a duty to bargain under the Law. 46 The Commission 

concluded that Section 305 identifies only one method for a municipality 

to recoup the costs of police academy training and does not preclude or 

alleviate a public employer's statutory obligation to bargain over this 

training cost assessment, including the procedures for implementing it, 

with its employees' exclusive representative. 47 The Commission 

concluded, in accord with its prior decision, that the training cost 

assessment, including the procedures for implementing it, like a fee waiver 

agreement, constitute a mandatory subject of bargaining. 

The Town also contended that it had no obligation to bargain with the 

Union about the fee waiver agreement because the officers who signed 

that agreement were, pursuant to M.G.L. c.41, Section 96B, student 



officers who are specifically exempt from certain statutory protections 

afforded to police officers, including collective bargaining agreements 

under the Law. Further, the Town argued that, because the five (5) 

student officers were not Town employees and bargaining unit members 

on the dates they signed the fee waiver agreements, the Town had no 

obligation to bargain about issues that impact persons who are not in the 

Union's bargaining unit. The Commission disagreed. 

Section 305 provides in relevant part that: "[u]pon completion of training, 

said training fee shall be deducted from the recruit's wages in eighteen 

equal monthly installments or as otherwise negotiated." Therefore, under 

Section 305, the $1,800.00 training fee is due and payable after the 

student officer has completed the police academy training or as otherwise 

negotiated. After the student officers have completed the training, they 

are no longer student officers, but police officers accorded the full 

protections under the Law and whose wages and other terms and 

conditions of continued employment are governed by the parties' collective 

bargaining agreement. Therefore, the Law required the Town to bargain 

with the Union about the training cost assessment, including the 

procedures for implementing it, because the officers were Town police 

officers and members of the Union's bargaining unit when the training 

cost assessment attached. 48 Moreover, the fact that student officers 

signed the fee waiver agreement prior to the date they started working for 

the Town does not turn the training fee assessment under Section 305, 

that directly and only affects employee's wages after hire, into a precondition 

of hire that an applicant must fulfill before beginning work. 49 

The Labor Relations Commission stated that its decision in Ludlow did not 

require it to determine whether the Town required the student officers to 

sign the fee waiver agreement or whether, as the Town asserted, the Town 

offered the student officers the choice of either signing the fee waiver 

agreements or reimbursing the Town in the manner identified in Section 

305. Under either scenario, the outcome is the same. The Law requires 

the Town to give the Union prior notice and an opportunity to bargain over 

the new training cost assessment, including the procedures for 

implementing it, like the fee waiver agreement, prior to implementation. 

§ 7 BICYCLE PATROLS 

The LRC has ruled that the manner in which a municipal employer 

implements its bicycle patrol program directly affects mandatory subjects 

of bargaining. 50 These include employees' job duties, workload and safety 

when responding to calls, use of safety equipment, and work assignments, 

all of which are mandatory subjects of bargaining. 51 



An employer must notify the union of a potential change before it is 

implemented, so that the bargaining representative has an opportunity to 

present arguments and proposals concerning the physical alternatives. 52 

§ 8 OTHER BENEFITS 

The Commission has held that certain amenities provided by an employer 

at the workplace amount to benefits on which employees may rely as 

condition of employment and which constitute mandatory subjects of 

bargaining. 

Examples include: 

Providing lockers and the manner in which they may be 

used; 53 

free parking; 54 

choice and amount of food available to correction officers; 55 

gas allotment policy; 56 and 

library hours. 57 

§ 9 BULLET-RESISTANT VESTS 

The LRC reversed a Hearing Officer and ruled that the Town of 

Shrewsbury violated the Law by unilaterally implementing a rule that 

officers must wear bullet-resistant vests for paid details and court 

appearances. 58 

The issue in the Shrewsbury case was whether the Police Department 

unilaterally changed a condition of employment by the Chief's 

memorandum requiring all officers to wear bulletproof vests when on 

duty. On appeal, the Union challenged the Hearing Officer's conclusion 

that there was no unilateral change and no violation of the Law. The full 

Commission disagreed with the Hearing Officer's conclusion and held that 

the Town violated the Law, for the reasons set forth below. 

A public employer violates the Law when it unilaterally alters a condition 

of employment involving a mandatory subject of bargaining without first 

bargaining with the exclusive collective bargaining representative to 

resolution or impasse. 59 An employer's duty to bargain encompasses 

working conditions established through custom and practice, as well as 

those governed by the terms of a collective bargaining agreement. 60 



The uncontroverted evidence in this case established that regardless of 

how officers got their vests, they did not always wear them. Further, the 

officers who testified never wore their vests, without consequence, prior to 

the Chief's memorandum. Therefore, the memorandum's requirement that 

all officers wear their vests at all times constituted a unilateral change in 

the established practice. The requirement to use safety equipment such as 

bullet-resistant vests is a mandatory subject of bargaining. 61 Therefore, 

absent an affirmative defense, the Chief's unilateral change in a 

mandatory subject of bargaining is a violation of the Law. 62 

The Town defended its action by relying on the language of the parties' 

collective bargaining agreement, and the LRC considered whether the 

Union waived its right to bargain about the vesting requirement by 

agreeing to that language. The relevant question therefore was whether 

the Union knowingly and unequivocally waived its bargaining rights over 

the requirement that all officers wear the vests at all times. A contract 

waiver requires evidence that the parties consciously explored and 

knowingly yielded the right to bargain further about a matter during the 

life of an agreement. 63 A waiver of the statutory right to bargain over a 

particular subject cannot be inferred lightly. Rather, it must be "shown 

clearly, unmistakably, and unequivocally." 64 The contract language on 

which the Town relied and the parties' bargaining history established that 

there was no waiver in this case. 

There was no evidence that either party contemplated that all officers 

would receive free vests pursuant to the state grant program at the time 

the provision was negotiated. Evidence of bargaining history establishes 

that the Union sought to have the Town pay for vests for officers who 

wanted them, and the Town wanted the officers to wear the vests if the 

Town was going to pay for them. Furthermore, the evidence established 

that the Town encouraged the officers to obtain the free vests, and officers 

expressed concern and were reassured that there would be no "strings 

attached" if they obtained the vests pursuant to the state grant program. 

Therefore, the Commission ruled that the Town did not meet its burden of 

establishing that the Union waived its right to bargain over the mandatory 

use of vests by all officers. 

§ 10 HEALTH INSURANCE 

The general framework surrounding the issues raised in health insurance 

cases is well-settled. A public employer violates the Law when it 

unilaterally alters an existing condition of employment or implements a 

new condition of employment involving a mandatory subject of bargaining 

without providing to the exclusive representative of its employees prior 

notice and an opportunity to bargain. 65 The terms and costs of health 



insurance benefits, including co-payments, are conditions of employment 

that constitutes mandatory subjects for bargaining. 66 It is undisputed 

that normally, under M.G.L. c.150E, a public employer must bargain over 

the terms and costs of health insurance coverage provided pursuant to 

M.G.L. c.32B and that such an employer would commit a prohibited 

practice by changing health insurance benefits without first bargaining 

over the subject. 67 The Commission has also held that employersubsidized 

health insurance is a form of compensation. 68 Changes in the 

amount of a co-payment that employees are required to pay for 

prescription drugs or office visits under an employer's health insurance 

plans are clearly changes to both the terms and costs of health insurance 

affecting employees' overall compensation. Therefore, generally, the 

employer must bargain with a union to resolution or impasse prior to 

changing the amount of co-payments that employees are required to make 

under the employer's group health insurance plan. 69 

Although the Town of Dennis did not dispute that it had an obligation to 

bargain over the impacts of the decision to increase insurance copayments, 

it contended , citing MCOFU v. Labor Relations Commission, 70 

and several other Commission decisions, that it had no obligation to 

bargain over the decision to increase insurance co-payments because that 

decision was made by CCMHG and was therefore beyond the sole control 

of the Town. 

The Commission rejected the Town of Dennis' argument that it was 

excused from bargaining over the decision to increase the co-payments 

because that decision was made by the CCMHG and therefore was beyond 

its control. The Commission has held that, where certain actions taken by 

parties like the Group Insurance Commission (GIC), the Legislature, or an 

insurance company are beyond the employer's control, the public 

employer may not be required to bargain over the third party's decision to 

take that action. 71 

In MCOFU v. Labor Relations Commission, the Supreme Judicial Court 

held that because it was inherent in the statutory scheme that the 

Commonwealth, as the public employer, and the union had no control 

over the GIC's decision to reduce health insurance benefits, the 

Commonwealth was relieved of its duty to bargain over the changes in 

health insurance coverage mandated by GID. 72 However, the Court 

specifically noted that its holding did not concern collective bargaining 

rights and health insurance coverage under M.G.L. c.32B for employees of 

political subdivisions of the Commonwealth. 73 The Commission similarly 

found that there is no independent agency analogous to the GIC for 

purchasing health insurance for municipal employees. 74 Moreover, 

although Section 12 of M.G.L. c.32B permits public authorities of two or 

more governmental units, it does not require those public authorities to do 



so, nor does that statute relieve the participants in those groups of their 

respective obligations to bargain over changes to the terms and costs of its 

employees' benefits within their municipality. 75 

In Town of Dennis, the Labor Relations Commission stated that the record 

before it reflected that the CCMHG is a joint purchase group of 

governmental employers that arranges for the purchase and 

administration of health insurance for its constituent members. The 

CCMHG is run by a Board of Delegates, whose membership is drawn from 

various municipal officials of the constituent group of governmental 

employers. 

The Commission concluded that the Town of Dennis violated the Law by 

unilaterally making increases to prescription drug and office visit copayments 

in 1999 and July 2001 without first giving notice to the Union 

and bargaining to resolution or impasse. 



1 G.L. c. 150E, § 6. See also, Lawrence School Committee, 3 MLC 1304 (1976) (holding that paydays 

schedules are also a mandatory subject of bargaining). 


3 See Dracut School Committee, 13 MLC 1055 (1986) (holding that a public employer may not offer an 

applicant a higher wage than it is currently paying bargaining unit members without giving the union the 

opportunity to bargain). 

4 The federal minimum wage is curently set at $5.15 an hour; Masachusets’ minimum wage is 

$5.25/hour but does not apply to a municipal employee. Overtime pay rates for police and fire are 

computed under the Fair Labor Standards Act in a special manner. See 29 U.S.C. § 207(k). 

5 Worcester County Sheriff's Department, 28 MLC 1 (2001). 


7 Town of Mashpee, 19 MLC 1572 (1992). 

8 Norfolk County, 24 MLC 104 (1998). 

9 Where a decision regarding pensions and other retirement benefits is made by someone other than the 

employer, the employer may still have to bargain over the impact of the change. See, e.g., Malden, 20 

MLC 1400 (1994) (requiring employer to bargain over impact of decision by the Retirement Board); 

Higher Educ. Coordinating Council, 22 MLC 1172 (1993) (requiring employer to bargain over impact of 

legislation establishing an optional retirement plan). 

10 This includes bargaining over contribution or premium rates. See Everett, 416 Mass. 620 (1993). 

However, where the insurance carrier cancels the policy, the employer may implement a new plan before 

reaching agreement or impasse with the union. See Weymouth, 21 MLC 1189 (1993). 

11 See Framingham, 20 MLC 1536 (1994). 

12 29 U.S.C. § 207(e). 

13 29 CFR § 785.19 reads as follows: 

(a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meal periods do not 

include coffee breaks or time for snacks. These are rest periods. The employee must be completely 

relieved from duty for the purposes of eating regular meals. Ordinarily, 30 minutes or more is long enough 

for a bona fide meal period. A shorter period may be long enough under special circumstances. The 

employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. 

For example, an office employee who is required to eat at his desk or a factory worker who is required to 

be at his machine is working while eating. [citations omitted] 

(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the 

premises if he/she is otherwise completely freed from duties during the meal period. 

The courts have adopted two tests to determine whether meal time compensation is in fact necessary, and 

examine: 1) who receives the greatest benefit from meal periods, see Amour & Co. v. Wantock, 323 U.S. 

126 (1944), or 2) whether employees are required to perform any duties during meal times, see Culkin v. 

Glen L. Marting Nebraska Co., 97 F. Supp. 661 (D. Neb. 1951),af’d197 F. 2d 981 (8th Cir. 1951). 

14 29 CFR 553.223(b). This provision applies to police and fire departments under the 207(k) exemption 

of the FLSA, where the employer may take advantage between a seven and twenty-eight day consecutive 

work schedule. 

15 Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981). 

16 Brooklyn Savings Bank v. O’Neal, 328 U.S. 697 (1981). 

17 City of Lynn, 24 MLC 92 (1998). 

18 Id. 

19 Massachusetts Port Authority, 26 MLC 100, 101 (2000). 

20 See Everett, 22 MLC 1275 (1995) (holding that employer unilaterally and unlawfully altered the pay and 

compensation schedule for Christmas and Thanksgiving). 

21 See New Bedford School Committee, 2 MLC 1181 (1975). 

22 Town of Billerica, 11 MLC 1302 (1985). 

23 See City of Revere, 21 MLC 1325 (1994). But cf., City of Leominster, 17 MLC 1699 (1991) 

24 See Mas. Comm’r of Admin. & Fin., 21 MLC 1637 (1995). 

25 Sheriff of Suffolk County, 28 MLC 72 (2001). 

26 City of Everett, 12 MLC 1418 (1986). 



27 See Town of Westfield, 10 MLC 1232 (1983). 

28 Somerville School Committee, 13 MLC 1024 (1986). 

29 See “The Chief’s Guide to Injured on Duty Claims” (published by the Municipal Police Institute, Inc.) 

for a full treatment of this complicated issue. 

30 See Newton Branch of the Massachusetts Police Assn. v. City of Newton, 484 N.E.2d 1326 (1985). 

31 See, e.g., City of Springfield, 15 MLRR 1133 (1989); Town of Arlington, 15 MLRR 1130 (1989). 

32 Town of Wilmington, 9 MLC 1694 (1983). 

33 See Atterberry v. Police Commissioner of Boston, 392 Mass. 550, 467 N.E.2d 150 (1984). 

34 Id. 

35 This only applies, however, to employers with 50 or more employees. Further, an employee is entitled 

to (i.e., “eligible” for) the 12 weeks unpaid leave only if he/she or she has worked 1,250 hours during the 

previous twelve-month period. 

36 The employer may deny restoration of an employee’s job after the twelve weeks leave only if: 1) the 

employee is among the highest paid ten percentof the employer’s employees; 2) the denial is necesary to 

prevent “substantial and grievous” economic injury to the employer’s operations; and 3) the employer 

notifies the employee of its intent to deny restoration as soon as it determines such action is necessary. 

37 Health insurance, however, must be maintained by the employer during the leave. 

38 Town of Dedham, 16 MLC 1235 (1989). 


40 See Town of Tewksbury, 11 MLC 1170 (1984); Town of Hingham, 19 MLC 1543 (1992). 

41 On October 7, 1996, town meeting members authorized the Town "to waive the training fee for new 

recruits to the Ludlow Police Department provided that they remain a member of the force for a period of 

five (5) years or more pursuant to the provisions of Section 305 of Chapter 38 of the Acts of 1995." 

42 We have modified these facts in response to the Town's request. 

43 Commonwealth of Massachusetts v. Labor Relations Commission, 404 Mass. 124, 127 (1989); School 

Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 572 (1983); City of Boston, 16 MLC 

1429, 1434 (1989); City of Holyoke, 13 MLC 1336, 1343 (1986). 

44 Town of South Hadley, 27 MLC 161 (2001). 

45 Town of South Hadley, 27 MLC at 162. 

46 See, City of Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 172 (1997) (public employer has no 

duty to bargain when acting pursuant to a specific, narrow, statutory mandate not listed in Section 7(d)). 

47 Town of South Hadley, 27 MLC at 163. 

48 Cf. City of Gloucester, 26 MLC 128 (2000) (decision to cease crediting student officers with 

compensatory time and the impacts of that decision on the bargaining unit members' terms and conditions 

of employment is a mandatory subject of bargaining because the officers were permanent city employees at 

the time they sought to use the compensatory time). 

49 See, Boston School Committee, 3 MLC 1603 (1977) (residency as a condition of continued employment 

is a mandatory subject of bargaining, but residency is purely as a condition of hire is not). 

50 Town of East Longmeadow, 28 MLC 67 (2001). 

51 Id.; see City of Taunton, 26 MLC 225, 226 (2000). 

52 Town of East Longmeadow, 28 MLC 67, 69 (2001); City of Taunton at 226. 


54 Commonwealth of Massachusetts, 27 MLC 11 (2000); 

55 City of Boston, 15 MLC 1209 (H.O. 1988), aff'd 16 MLC 1086 (1989). 

56 Everett Housing Authority, 9 MLC 1263 (1982). 



59 School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983); Town of 

Arlington, 21 MLC 1125 (1994); City of Boston, 21 MLC 1350, 1359 (1994). 

60 City of Boston, MLC 1429, 1434 (1989). 

61 See, e.g., Town of Shrewsbury, 14 MLC 1664 (1988) (use of seat belts a mandatory subject.) 

62 See, e.g., Commonwealth of Massachusetts, 20 MLC 1545, 1552 (1994) and cases cited therein. 

63 City of Boston v. Labor Relations Commission, 48 Mass. App. Ct. 169, 174 (1999); City of Leominster, 

23 MLC 62, 65 (1996); Town of Marblehead,12 MLC 1667,1670 (1986). 



64 School Committee of Newton, 388 Mass. at 569; Cih, of Worcester, 16 MLC 1327, 1333 (1989); Town 

of Andover, 4 MLC 1086, 1089 (1977); Town of Hudson, 25 MLC 143 (1999). 

65 City of Somerville, 19 MLC 1795, 1798 (1993) citing Town of Ludlow, 17 MLC 1191, 1195 (1990); 

Commonwealth of Massachusetts v. Labor Relations Commission, 404 Mass. 124 (1989); School 

Committee of Newton v. Labor Relations Commission, 338 Mass. 557, 572 (1983). 

66 Town of W. Dennis, 28 MLC 297 (2002). 

67 Massachusetts Correctional Officers Federated Union (MCOFU), v. Labor Relations Commission, 417 

Mass. 7, 9, n.3 (1994); City of Somerville, 19 MLC at 1799, citing Kerrigan v. City of Boston, 361 Mass. 24 

(1982); Town of Ludlow, 17 MLC 1191, 1195 (1990) citing School Committee of Medford v. Labor 

Relations Commission, 8 Mass. App. Ct. 139, 140 (1979). 

68 Board of Regents of Higher Education, 19 MLC 1248, 1265 (1992), citing Anderson v. Board of 

Selectmen of Wrentham, 406 Mass. 508 (1990). 


70 MCOFU v. Labor Relations Commission, 417 Mass. 7 (1994). 

71 See e.g., MCOFU v. Labor Relations Commission, 417 Mass. 7, 1994 (employer not required to bargain 

over Group Insurance Commission's decision to reduce health insurance benefits); Town of Weymouth, 23 

MLC 71 (1996) (insurance company's decision to cancel Town's coverage excused Town from bargaining 

over decision to cancel that coverage); City of Somerville, 19 MLC 1798 (1993) (Legislature's mandating 

increase in employee portion of HMO premium deduction excused City from bargaining over Legislature's 

decision to make change.) 

72 417 Mass. at 9. 

73 Id. at 9, n.3, citing Town of Ludlow, 17 MLC 1191, 1198 (1990). 

74 City of Malden, 23 MLC 181, 184 (1997). 

75 M.G.L. c.32B, Section 12 states in pertinent part that "upon acceptance of this chapter, the appropriate 

public authorities of two or more governmental units mayjoin together in negotiating and purchasing …one 

or more policies of insurance…for the employees of said governmental units." (Emphasis supplied).g 


CHAPTER 17 - EMPLOYEE 

PERFORMANCE 

Because performance evaluations have a direct impact on employee job 

security and professional advancement, they are a mandatory subject of 

bargaining. 1 The LRC has classified performance evaluations as 

mandatory subjects of bargaining for two primary reasons: 1) they 

establish standards by which performance of bargaining unit members 

will be evaluated, 2 and 2) they serve as a basis for promotions. 3 Moreover, 

the LRC has stated that performance evaluations do not fall in the 

“managerial prerogative” category, so an employer must bargain over the 

decision to implement or change the performance evaluation method in 

addition to the impact of the decision. 4 

Performance evaluation systems that measure standards of productivity 

and performance are mandatory subjects of bargaining. 5 Performance 

evaluations often have a direct relationship to promotions, so a change in 

the standards used to evaluate employee productivity or performance 

must be bargained over prior to implementation. 6 An employer is 

prohibited from unilaterally changing the criteria upon which employees 

are evaluated. 7 Evaluation procedures and criteria are changed if there is 

a material change in the criteria used, a new criterion is established, or 

there is a change in the purpose of the evaluation. 8 An employer may 

choose, however, to reinstate certain evaluation procedures which it has 

not used for a period of time. Thus, in Boston Department of Health and 

Hospitals, the LRC held that the employer could lawfully reintroduce 

written evaluation forms after a three-year hiatus. 9 

An employer need not bargain before implementing a new system if such 

new system measures the same criteria as the prior system, since such 

changes do not materially or substantially change conditions of 

employment. 10 In its 1998 ruling, the LRC upheld an Administrative Law 

Judge’s (ALJ’s) dismissal of the Boston Superior Oficers Federation’s 

charge following the creation of a Community Appeals Board (CAB) to 

review Internal Affairs Department (IAD) investigations and disciplinary 

hearings. 11 The union conceded that the department was entitled to 

create the CAB. However, it insisted that the City had a duty to bargain 

before unilaterally implementing the CAB. The LRC found that the CAB 

serves merely in an advisory capacity. The ultimate decisions continued 

to rest with the Commissioner. Therefore, the union failed to show that 

the CAB had a direct, identifiable impact on performance evaluations. 


Employee Performance 17-2 

The employer also has a duty to provide the union with the personnel 

records and evaluations of both unit and non-unit employees if the union 

can demonstrate that the records are relevant and necessary for collective 

bargaining purposes. 12 The LRC has recognized, however, that certain 

data of a highly personal, intimate, or confidential nature may be 

withheld. 13 In cases where such confidential information is involved with 

respect to police officers, the SJC has ruled that partial disclosure of the 

employee evaluations is appropriate, given the public nature of such 

records. 14 

In order to establish that an employer has made an unlawful unilateral 

change with respect to performance evaluations, an employee must 

demonstrate that the employer efected a “material change” in the 

evaluation procedure. Thus, mere “mechanical,” as opposed to 

“substantive,” changes are permited. 15 Implementing a new written 

evaluation 16 and changing the wording of an existing evaluation, 17 were 

considered mechanical changes by the LRC. Moreover, the LRC has 

indicated that an employer may utilize a new factor in evaluations if that 

factor is linked to one of the criteria agreed to in the contract. Thus, in 

City of Boston,the LRC upheld an employer’s use of quantity and quality 

of arrests in judging performance, because these were reasonably (and 

predictably) related to productivity. 18 

An employer may not, however, alter the criteria upon which employees 

are evaluated, without first bargaining over that decision. In 

Commonwealth of Massachusetts, the LRC found that the employer had 

committed an unlawful employment practice when it introduced 

“performance targets” into the evaluation procedure. 19 The LRC came to 

this conclusion after finding that the parties had specifically agreed at the 

bargaining table that employees would not be held accountable to any 

specific goal or target achievement. 20 Moreover, in Massachusetts 

Commissioner of Administration and Finance, the LRC found that an 

employer who began a worksheet chronicling an employee’s typing 

mistakes had unlawfully introduced a new criterion to the evaluation 

procedure. 21 

When examining the LRC cases dealing with performance evaluations, 

several trends emerge. First, the Commission will look to the collective 

bargaining agreement (CBA) to determine the proper manner, frequency, 

and content of performance evaluations. 22 Second, most non-civil service 

employers who conduct written evaluations do so once per year. 23 The 

evaluations are generaly conducted by an employee’s immediate 

supervisor. 24 The CBA will usually specify the procedure by which an 

employee can challenge the results of the evaluation. 25 



The most frequently challenged aspect of employee evaluations involves 

the terms categorizing the employee’s performance. For example, in 

Massachusetts Department of Public Welfare, an employee complained 

when her evaluation rated her performance as “meeting” expectations. 26 

The employer’s evaluation procedure rated employees as “below,” “meets,” 

or “exceeds” standards. The employee argued that the evaluation caused 

her to be denied bonus money, and sought to gain access to other 

employee evaluations to determine whether similarly situated employees 

had been evaluated in a like manner. The hearing officer determined that 

the employee could see these other evaluations, and stated that it was 

unwise to rate employees according to such a limited scale. 27 

Federal and state cases indicate that performance evaluations will most 

likely be upheld if the following guidelines are followed: 

use standardized evaluation forms, 28 

conduct annual evaluations, 29 

have face-to-face meetings between evaluators and the 

employee to discuss the review, 30 

use only objective facts (as much as possible) when forming 

conclusions, 31 

write down everything relevant to the evaluations, 32 

avoid general and ambiguous phrases such as 

“unsatisfactory” without elaborating; 33 and 

do not consider facts which are outside the agreed upon 

performance criteria. 34 

Employers often use various types of tests--including drug, and 

psychological tests--to measure an employee’s fitness for the job. If used 

in the course of employment without prior agreement by the union, such 

tests may be instituted only if the employer bargains with the union to 

impasse first. 35 However, if the tests are administered to an employee in 

the course of a criminal investigation, e.g., polygraph, prior bargaining is 

not required. 36 

Psychological tests are employed to evaluate both applicants 37 and current 

employees. While management has the prerogative to implement such 

tests, except when use exclusively for applicants, it must first bargain over 

the impact on current employees with the union. 38 The use of 

psychological tests has been challenged on a variety of legal grounds. 

First, it was alleged that such tests violated constitutional First 

Amendment and privacy rights. 39 In the case of public safety personnel, 

at least one appellate court has determined that a state has a sufficiently 



compelling interest in maintaining a qualified work force to justify the use 

of psychological tests. 40 

In addition to constitutional challenges, employees have challenged the 

use of psychological tests for particular purposes. Nonetheless, courts 

have upheld the use of psychological tests for applicants, 41 probationary 

employees, 42 employees exhibiting erratic behavior, 43 and random or 

periodic testing (without cause). 44 Moreover, an employee lawfully 

requested to perform a psychological evaluation may be disciplined if 

he/she or she refuses to submit to the exam. 45 Also, an employee may 

not insist on having a lawyer present during the exam. 46 

Typically, drug and alcohol testing is treated in a similar manner to 

psychological testing. Substance testing, according to the LRC, is a 

mandatory subject of bargaining. 47 Thus, an employer may not 

unilaterally implement a drug screening or testing proposal for employees 

without prior bargaining with the union, and may not refuse to bargain 

over such a proposal. 48 In the Town of Fairhaven case, the LRC also held 

that a union could agree to a drug testing provision in a labor contract, 

and that by doing so the union was not waiving any employee 

constitutional rights (search and seizure, privacy, etc.) as long as the 

testing occurred when the employer had “probable cause” to test a 

particular employee. 49 The Supreme Judicial Court of Massachusetts has 

indicated, however, that random (i.e., without cause) drug testing without 

an individual’s consent violates the state constitution. 50 

Polygraph examinations are also treated like other testing procedures, but 

they present a special complication in that polygraph tests may only be 

given in the course of a criminal investigation. An employer may not even 

suggest that an employee submit to a polygraph exam as part of any 

hiring procedure or as a condition of continuing employment unless a 

criminal investigation is involved. 51 Where a police officer is under 

criminal investigation and is ordered to submit to a polygraph test, a 

police department was not required to bargain with the union prior to the 

test. 52 



1 Commonwealth of Mass. v. Labor Relations Commission, 404 Mass. 124, 533 N.E.2d 1325 (1989). 

2 See, Fall River School Committee, 7 MLC 1843 (1981); Burlington School Committee, 6 MLC 1334 

(1979); Town of Wayland, 5 MLC 1738 (1979); Town of Wayland, 3 MLC 1450 (1977). 


4 Id. Reprimands or directives to improve performance, however, do not fall into the category of 

“performance evaluations.” See Peters Township School Committee, 73 LA 702 (1989); see also 

“Discipline” section below. 

5 Town of Wayland, 5 MLC 1738 (1979). 

6 See, e.g., Mass. Commissioner of Admin. & Finance, 21 MLC 1697 (1995) (finding that employer 

refused to bargain in good faith over decision to change the evaluation criteria for two positions). 


8 Id.; See also Commonwealth of Massachusetts, 13 MLC 1717 (1987). 

9 Boston Department of Health and Hospitals, 8 MLC 1077 (1981). 



12 Mass. Dept. of Public Welfare and Alliance, 21 MLC 1499, 1506 (1995). See also, Worcester School 

Committee, 14 MLC 1682 (1988); Commonwealth of Mass., 11 MLC 1440 (1985); Board of Trustees, 

Univ. of Mass. (Amherst), 8 MLC 1139 (1981). 

13 Board of Trustees, Univ. of Mass. (Amherst), 8 MLC 1148, 1152 (1981). 

14 Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 293 (1979). The LRC has also modified 

orders to produce employee records in order to protect promotional candidates. Town of Weymouth, 16 

MLC 1031 (1989). 


16 City of Worcester, 4 MLC 1317,af’d, 4 MLC 1697 (1978); see also, Boston Dept. of Health and 

Hospital, 8 MLC 1077 (1981) (upholding employer’s reintroduction of writen evaluations after three year 

absence). 

17 Town of Arlington, 4 MLC 1614 (1977),af’d4 MLC 1946 (1978); see also, Trading Port Inc., 224 

NLRB 160 (1976). 

18 City of Boston, 5 MLC 1796, 1797 (1977). 

19 Commonwealth of Massachusetts, 18 MLC 1161, 1164 (1991). 

20 Id. at 1163. 

21 Massachusetts Commissioner of Administration and Finance, 13 MLC 1125 (1986); see also, Waltham 

School Committee, 9 MLC 1034 (1983) (finding School Committee had unlawfully introduced a new 

evaluation criteria when it added a probationary period). 

22 Comm. of Mass., 18 MLC 1161, 1163 (1991). 



25 Comm. of Mass., 16 MLC at 1753 (discussing challenge to employee evaluation result by means of 

grievance procedure). 

26 Massachusetts Department of Public Welfare, 19 MLC 1340 (1992). 

27 Id. 

28 See Hirsch, LABOR AND MANAGEMENT IN MASSACHUSETTS, 135 (1990). 

29 Broken Arrow, City of Oklahoma City, 96 LA 439 (1991). 

30 Ashway County Board of Mental Health, 94 LA 303 (1990). 

31 See Hirsch, supra, at 135-136. 

32 See generally, Commonwealth of Mass., 20 MLC 1336 (1996). 

33 Id. 

34 Ohio State, County & Municipal Employees, 92 LA 1167 (1989); City of Erie, 96 LA 557 (1991). 

35 City of Fall River, 20 MLC 1352 (1994). 

36 Mass. Labor Relations Commission v. IBPO, 391 Mass. 429 (1984) (holding that administering 

polygraph test to an officer was not unlawful, even though the Town had not bargained with the union, 

because the test was administered as part of a criminal investigation). 



37 See section above on hiring criteria for discussion regarding tests for applicants; see also, Swearer v. 

Karoleski, 563 A.2d 586 (Penn. 1989) (approving the goal of testing personality traits of applicants based 

on a correlation between test results and future on-the-job performance, though invalidating the test 

because it lacked a pass/fail standard). 

38 

See City of Haverhill, 16 MLC 1215,af’d17 MLC 1215 (1989). 

39 McKenna v. Fargo, 451 F. Supp. 1355 (D.N.J. 1978),af’d601 F.2d 575 (1976). 

40 Id. 

41 See McKenna, supra note 156. 

42 Redmond v. City of Overland Park, 672 F. Supp. 473 (D. Kan. 1987). 

43 City of Boston v. Boston Patrolman’s Asociation,8 Mass. App. 220. 392 N.E.2d 1202 (1979); Conte v. 

Horcher, 365 N.E.2d 567 (Ill. 1977) 

44 Hild v. Brunner, 496 F. Supp. 93 (D.N.J. 1980). 

45 See, e.g., Lucheso v. Dillon, 439 N.Y.S.2d 783 (1981). 

46 Nolan v. Police Commissioner of Boston, 420 N.E.2d 335 (1981) (holding that due process only required 

that the psychological evaluation be recorded). 

47 Town of Fairhaven, 20 MLC 1348 (1994). 

48 

City of Fall River, 20 MLC 1352 (1993); City of Boston, 13 MLC 1706 (1986). 

49 Id. 

50 Robert T. Guiney v. Police Commissioner of Boston, 411 Mass. 328 (1991);Horsemen’s Benevolent and 

Protective As’n v. State Racing Commision, 403 Mass. 692, 699-700 (1989) 

51 

52 Patch v. Mayor of Revere, 397 Mass. 454, 492 N.E.2d 77 (1988). 


Appendix 

Sample Form 1 Notice Form–Change in Rule or Practice (Opt. 1) 



Sample Form 4 

Sample Form 5 

Sample Form 6 

Sample Form 7 

Order 

Sample Drug Testing Clause 

Sample Drug Testing Policy Notice 

Sample Management Rights Clause 


APPENDIX A-2 

SAMPLE NOTICE FORM (OPTION 1) 

SAMPLE FORM 1 

TO: 

FROM: 

Union President 

Chief 

DATE: 

RE: 

Change in Rule or Practice 

Be advised that effective thirty (30) days from now, i.e., ___________, 

200__, I intend to put the following rule/practice/policy into effect: 


APPENDIX A~3 


SAMPLE FORM 2 

TO: 

FROM: 


Chief 

DATE: 

RE: 

Change in Rule or Practice - Decisional Bargaining 

Be advised that effective thirty (30) days from now, i.e., ___________, 200__, 

I intend to put the following rule/practice/policy into effect: 

If you would like to negotiate the impact of such action on members of 

your bargaining unit, please let me know -- in writing -- within five (5) 

days of receipt of this notice. Your reply should specify the mandatory 

subjects of bargaining which you contend will be impacted. 

The following dates are available: 

Please select one (or more) date(s) and include such selection in your 

written reply as well. If you are unable to meet on any of the dates offered, 

please supply me with three (3) alternatives (during normal business 

hours), the last of which should be no later than _________, 200__. 

If I have not received a written request for bargaining within five (5) days, I 

will consider this a waiver and implement the proposed 

rule/practice/policy. 


APPENDIX A-4 


SAMPLE FORM 3 

TO: 

FROM: 


Chief 

DATE: 

RE: 

Change in Rule or Practice - Offer to Bargain Impact 

Be advised that effective thirty (30) days from now, i.e., ___________, 200__, 

I intend to put the following rule/practice/policy into effect: 

If you would like to negotiate the impact of such action on members of 

your bargaining unit, please let me know -- in writing -- within five (5) 

days of receipt of this notice. Your reply should specify the mandatory 

subjects of bargaining which you contend will be impacted. 

The following dates are available: 

Please select one (or more) date(s) and include such selection in your 

written reply as well. If you are unable to meet on any of the dates offered, 

please supply me with three (3) alternatives (during normal business 

hours), the last of which should be no later than _________, 200__. 

If I have not received a written request for bargaining within five (5) days, I 

will consider this a waiver and implement the proposed 

rule/practice/policy. 


APPENDIX A~5 

ORDER 

SAMPLE FORM 4 

WHEREFORE, IT IS HEREBY ORDERED that the South Shore 

Regional School District Committee (Employer) shall: 

1. Cease and desist from failing and refusing to bargain 

collectively in good faith with the South Shore Regional 

Vocational Technical Teachers Federation, Local 1896, MFT, 

AFT, AFL-CIO (Union) over the impacts of the Employer's 

decision to not fund or fill certain extra-curricular positions. 

2. Take the following affirmative action which will effectuate the 

policies of G.L. c. 150E: 

a. Within five (5) days from the date of receipt of this 

decision, offer to bargain in good faith with the Union 

over the impacts of the decision to not fund or fill 

certain extra-curricular positions by proposing to meet 

at a reasonable time and place. 

b. Beginning as of the date of receipt of this decision, pay 

the four (4) employees affected by the decision to not 

fund or fill certain extracurricular positions the 

additional wages and other benefits they formerly 

received for performing such duties until one of the 

following occurs: 

(1) Resolution of bargaining by the parties; 

(2) Failure of the Union to accept the offer to 

commence bargaining within five (5) days after 

notice of the offer; 

(3) Failure of the Union to bargain in good faith; 

(4) Good faith impasse between the parties. 

c. Post the attached Notice to Employees in places where 

employees usually congregate and leave posted for a 

period of thirty (30) days; 

d. Notify the Commission within ten (10) days of the 

steps taken to comply with this order. 


APPENDIX A-6 

SAMPLE FORM 5 

SAMPLE DRUG TESTING ARTICLE 

A. Probationary Employees. Employees may be tested periodically 

during the probationary period with or without reasonable suspicion at 

such times as may be determined by management. 

B. Absence from Duty. An employee who is absent from duty for 

more than sixty (60) continuous calendar days on sick leave, injured-onduty 

leave, disciplinary suspension, or leave of absence may be tested 

once within the first fourteen (14) calendar days after his/her return to 

active duty. 

C. Serious Incidents. An employee involved in an incident on 

the job which is serious, life threatening, or involves serious bodily injury 

may be tested. 

D. Career Assignments. An employee may be tested. 

1. Youth Officer/D.A.R.E. 

2. Detective 

3. Drug Assignment 

4. Undercover Task Force 

5. As a condition for promotion to Sergeant 

The Union will not discourage or interfere with an employee's seeking one 

of these positions. The employer will not make an appointment in bad 

faith as a pretext for testing an employee. 

E. Reasonable Suspicion. An employee may be tested after a 

determination by the Chief or his/her designee that there is reasonable 

suspicion to test the employee. Reasonable suspicion is a belief based on 

objective facts sufficient to lead a reasonably prudent person to suspect 

that an employee is using or is under the influence of drugs so that the 

employee's ability to perform his/her duties is impaired. Reasonable 

suspicion shall be based upon information of objective facts obtained by 

the department and the rational inferences which may be drawn from 

those facts. The information, the degree of corroboration, the results of 

the investigation or injury and/or other factors shall be weighed in 

determining the presence or absence of reasonable suspicion. 

F. Random Testing. Employees that sign a consent form, and those 

that may be placed on a disciplinary probation status, may be tested at 

such times as may be determined by management. 


APPENDIX A~7 

G. Procedures. 

1. Hair samples, urine samples, or blood samples when 

requested by the Chief will be taken from an employee or a prospective 

employee according to directions provided by the testing facility. The 

sample will either be hand delivered to the testing facility or it will be 

mailed via overnight courier service such as provided by Federal Express. 

2. The laboratory selected to conduct the analysis must be 

experienced and capable of quality control, documentation, chain of 

custody, technical expertise and demonstrated proficiency in 

radioimmunoassay testing. A certificate from such facility will be issued 

for use in all discipline cases. (Only a laboratory which has been properly 

licensed or certified by the state in which it is located to perform such 

tests will be used.) The testing standards employed by the laboratory 

shall be in compliance with the Scientific and Technical Guidelines for 

Drug Testing Programs, authored by the Federal Department of Health 

and Human Services, initially published on February 13, 1987, and as 

updated. 

3. The employee to be tested will be interviewed to establish the 

use of any drugs currently taken under medical supervision. 

Any employee taking drugs by prescription from a licensed 

physician as a part of treatment, which would otherwise constitute illegal 

drug use, must notify the tester in writing and include a letter from the 

treating physician. Any disclosure will be kept confidential with tester. 

4. Test results will be made available also to the employee upon 

request. Employees having negative drug test results shall receive a 

memorandum stating that no illegal drugs were found. If the employee 

requests it, a copy of the memorandum will be placed in the employee's 

personnel file. 

5. The testing procedures and safeguards provided in this 

policy shall be adhered to by all personnel associated with the 

administering of drug tests. The employees will be accompanied by an 

officer from the department assigned to supervise the taking of the 

sample and responsible for proper conduct and uniform procedures of 

the sampling process. The employee will be assigned a test code 

identification for the purposes of maintaining anonymity and to assure 

privacy throughout the sampling and testing procedure. The employee 

will sign and certify department documentation that the coded 

identification on the testing sample corresponds with the assigned test 

code identification. 


APPENDIX A-8 

6. The employee to be tested will be notified of the test 

requirement a reasonable time before testing and when blood or urine 

samples are to be taken, shall report to the station at the time designated 

for transportation to the medical facility or laboratory designated by the 

department to obtain the testing sample. Hair samples may be taken at 

the station. 

7. The department will designate to the testing facility the 

specific drugs for which the sample is to be analyzed. The testing facility 

will report findings only as to those specific drugs for which the 

department requested testing. 

The testing shall consist of an initial screening test, and, if that is 

positive, a confirmation test. The confirmation test shall be by gas 

chromatography or mass spectrometry. 

8. Each step of the processing of the test sample shall be 

documented in a log to establish procedural integrity and the chain of 

custody. Where a positive result is confirmed, test samples shall be 

maintained in secured storage for as long as necessary. 

H. Prohibited Conduct. 

1. Illegal possession of any controlled substance. 

2. Illegal use of any controlled substance. 

3. Refusal to comply with the requirements of this drug policy. 

4. Improper use of prescription medicine. 

I. Impairment by Prescription Medicine. An employee shall notify 

the chief when required to use prescription medicine which the 

employee has been informed may impair job performance. The employee 

shall advise the chief of the known side effects of such medication and 

the prescribed period of use. The chief of police shall document this 

information through the use of internal confidential memoranda 

maintained in a secured file. The employee may be temporarily 

reassigned to other duties, or prohibited from working, where 

appropriate, while using prescription medicine which may impair job 

performance or create unsafe working conditions. An employee 

prohibited from working may utilize sick leave or I.O.D. leave where 

appropriate or may be placed on unpaid leave of absence if neither sick 

leave or I.O.D. leave is available. 


APPENDIX A~9 

SAMPLE FORM 6 

SAMPLE DRUG TESTING POLICY NOTICE 

The position of a professional law enforcement officer is a public trust. 

The illegal use of drugs by members of this department is strictly 

prohibited. As the Massachusetts Supreme Judicial Court stated in the 

case ofO'Connor v. Police Comm’r of Boston,408 Mass. 324 (1990): 

Drug use is often difficult to discern. Yet, drug 

use by police officers has the obvious potential, 

inimical to public safety and the safety of fellow 

officers, to impair the perception, judgment, 

physical fitness, and integrity of the users. 

Furthermore, the unlawful obtaining, possession 

and use of drugs cannot be reconciled with 

respect for the law. Surely, the public interest 

requires that those charged with responsibility 

to enforce the law respect it. Surely, too, public 

confidence in the police is a social necessity and 

is enhanced by procedures that deter drug use 

by police cadets. 

Attached for your information are copies of the Law Enforcement Code of 

Ethics and the Police Code of Conduct as most recently amended by the 

International Association of Police Chiefs. These embody the noble goals 

of our profession. 

Be advised that during the period of your probation and during your 

attendance at an approved police recruit training academy, you will be 

subject to drug testing. Such testing may take the form of urinalysis, hair 

analysis or blood testing. Samples may be collected on an unannounced 

(random) basis without any need to demonstrate reasonable 

suspicion/probable cause to suspect illegal drug use. The detection of a 

controlled substance will subject you to disciplinary action, including 

dismissal. 

Please sign below indicating that you are aware of and consent to the 

department's drug testing policy and procedure. 


APPENDIX A-10 

CONSENT 

I agree that during the period of my probation and during the period I am 

enrolled in an approved recruit training academy, I shall upon request 

submit urine, hair and/or blood samples for drug testing aimed at 

detecting the presence or residue of controlled substance. I understand 

that illegal drug use is strictly prohibited and that violation of this policy 

will result in discipline, including dismissal. 

SIGNED: 

(Signature) 

(Name) 

(Address) 

(City/Town) 

COMMONWEALTH OF MASSACHUSETTS 

, ss. Date: , 200__ 

On this ____ day of , 200__, before me, the 

undersigned notary public, personally appeared , 

proved to me through satisfactory evidence of identification, which was my 

personal knowledge of said individual, to be the person whose name is 

signed on the preceding or attached document, and acknowledged to me 

that he/she signed it voluntarily for its stated purpose. 

, Notary Public 

My Commission Expires: 


APPENDIX A~11 

MANAGEMENT RIGHTS CLAUSE 

Sample Form 7 

Nothing in this Agreement shall limit the City/Town in the exercise 

of its function of management and in the direction and supervision of the 

City/Town 's business. This includes, but is not limited to the right to: 

add or eliminate departments; require and assign overtime; increase or 

decrease the number of jobs; change process; contract out work; assign 

work and work to be performed; schedule shifts and hours to work and 

lunch or break periods; hire; suspend; demote, discipline, or discharge; 

transfer or promote; layoff because of lack of work or other legitimate 

reasons; establish rules, regulations, job descriptions, policies and 

procedures; conduct orderly operations; establish new jobs; abolish and 

change existing jobs; determine where, when, how and by whom work 

will be done; determine standards of proficiency in police skills and 

physical fitness standards; except where any such rights are specifically 

modified or abridged by terms of this Agreement. 

Unless an express, specific provision of this Agreement clearly 

provides otherwise, the City/Town, acting through its City/Town 

Manager and Police Chief or other appropriate officials strictly adhering 

to the chain of command as may be authorized to act on their behalf, 

retains all the rights and prerogatives it had prior to the signing of this 

Agreement either by law, custom, practice, usage or precedent to manage 

and control the Police Department. 

By way of example but not limitation, management retains the 

following rights: 

 

 

 

 

 

to determine the mission, budget and policy of the 

Department; 

to determine the organization of the Department, the 

number of employees, the work functions, and the 

technology of performing them; 

to determine the numbers, types, and grades of 

positions or employees assigned to an organizational 

unit, work project, or to any location, task, vehicle, 

building, station or facility; 

to determine the methods, means and personnel by 

which the Department's operations are to be carried; 

to manage and direct employees of the Department; 


APPENDIX A-12 

 

 

 

 

 

 

 

 

 

 

 

to maintain and improve orderly procedures and the 

efficiency of operations; 

to hire, promote and assign employees; 

for legitimate safety purposes to transfer, temporarily 

reassign, or detail employees to other shifts or other 

duties; 

to determine the equipment to be used and the 

uniforms to be worn in the performance of duty; 

to determine the policies affecting the hiring, 

promotion, and retention of employees; 

to establish qualifications for ability to perform work in 

classes and/or ratings, including physical, intellectual, 

and mental health qualifications; 

to lay off employees in the event of lack of work or 

funds or under conditions where management believes 

that continuation of such work would be less efficient, 

less productive, or less economical; 

to establish or modify work schedules and shift 

schedules and the number and selection of employees 

to be assigned not inconsistent with the provisions of 

this agreement; 

to take whatever actions may be necessary to carry out 

its responsibilities in situations of emergency; 

to enforce existing rules and regulations for the 

governance of the Department and to add to or modify 

such regulations as it deems appropriate subject to 

fulfilling its bargaining obligations; 

to suspend, demote, discharge, or take other 

disciplinary action against employees, to require the 

cooperation of all employees in the performance of this 

function, and-to determine its internal security 

practices. 

Management also reserves the right to decide whether, when, and 

how to exercise its prerogatives, whether or not enumerated in this 

Agreement. Accordingly, the failure to exercise any right shall not be 

deemed a waiver. 


APPENDIX A~13 

Nothing in this article will prevent the Union from filing a grievance 

concerning a violation of a specific provision of this contract. However, 

where no specific provision of the contract limits its ability to act, 

management may exercise its rights under this article without having 

such actions being subject to the grievance procedure. 

The parties agree that each side had a full opportunity during the 

course of negotiations to bargain over any and all mandatory bargaining 

subjects, whether or not included in this Agreement. Accordingly, as to 

any such matter over which the contract is silent, the City/Town retains 

the right to make changes but only after prior consultation with the 

Union, involving notice and opportunity to bargain, if the Union so 

requests, to the point of agreement or impasse. 

It is understood and agreed by the parties hereto that the 

City/Town does not have to rely on any collective bargaining contract 

with its employees as the source of its rights and management 

prerogatives. This contract does not purport to spell out the job 

responsibilities and obligations of the employees covered by this contract. 

Job descriptions are not meant to be all-inclusive. Management reserves 

the right to assign duties consistent with an oficer’s training and ability, 

regardless of whether the exact duty is listed in a written job description.

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