Mandatory Subjects of Bargaining

MANDATORY SUBJECTS OF BARGAININGby Jeffrey Knopf

Massachusetts private and public sector employers are required by law to bargain over "wages, hours and any other terms and conditions of employment". The Massachusetts public sector statute, Chapter 150E of the General Laws, also includes the "standards of productivity and performance" as a mandatory subject of bargaining. For all practical purposes, the rights are nearly the same.

Generally, mandatory subjects of bargaining are those with direct impact on the the terms or conditions of employment: For example:

• Initial wages for new positions
• Work hours, work load, seniority
• Assignment of unit work to non-unit personnel
• Contracting out work traditionally done by bargaining unit employees
• Pay schedules and pay for added duties
• Method of calculating seniority

The obligation to bargain in good faith does not cease with the negotiation of an agreement, but continues during the administration of the contract. The employer must notify the Union of potential changes before they are implemented so the Union has the opportunity to present arguments and proposals concerning proposed alternatives. The information conveyed to the Union must be sufficiently clear to make a judgement as to an appropriate response. The duty is not satisfied by presenting the change as a "fait accompli" and then offering to bargain. However, where circumstances beyond the employer's control require immediate action, bargaining after the fact may satisfy the obligation to bargain.

Also remember:

• A unilateral change does not occur until an actual change in an existing condition of employment has taken place; the change must impact on a subject of mandatory bargaining;
• A change in the procedure for administering a condition of employment where the actual condition remains intact does not amount to a unilateral change;
• Mere reiteration of a previously existing policy which has not required strict enforcement may not constitute a unilateral change;
• Failure by either party to contest or otherwise allow a practice to be tolerated that is a subject of mandatory bargaining may result in a waiver to bargain.

If you believe a change in a mandatory subject of bargaining has occurred, notify your steward, Chapter representative, and Field Representative immediately.

This document relies heavily on A Guide to the Massachusetts Public Employee Collective Bargaining Law, Seventh edition, Donahue Institute for Governmental Services and the MLRC.