By John M. Collins, Esq., General Counsel, Massachusetts Chiefs of Police Association, Shrewsbury, Massachusetts
In states with collective bargaining, police chiefs intending to implement a new rule or to make material changes to an existing set of rules and regulations should be sure to involve the union or unions representing various police officer bargaining units prior to the effective date of such new rules and regulations. Even chiefs in states without formal collective bargaining should find the principles dicussed in this article useful. Involving employees in the development and implementation of rules and regulations helps assure a sense of teamwork and recognition of the value of officers' input and experience. It can also produce a sincere commitment to take the rules and regulations to heart.
Employers have an obligation to bargain with the appropriate union before making changes in or affecting wages, hours, or other terms and conditions of employment. The duty to bargain is continuous and does not end with the negotiation of an agreement. It exists through the period covered by the contract. The bargaining obligation extends only to issues that are categorized as mandatory subjects of bargaining because they have a direct impact on terms and conditions of employment.
The imposition of new work rules that affect wages, hours, or other terms and conditions of employment is usually a mandatory subject of bargaining.
In some situations, a new rule or policy may be so similar to an existing rule or past practice that it does not constitute a change requiring bargaining. A new rule may simply clarify an existing rule in a way that carries out the plain and obvious intention of the old rule. If employees should reasonably expect that an existing rule or policy cover a certain situation, then the specification of that situation in writing may not be a unilateral change. But rules, even in the same subject area, that go beyond existing policies and in fact expand on such policies may be found to be more than mere clarifications and may therefore require that an employer provide the incumbent union with prior notice and an opportunity to bargain.
Under most collective bargaining laws, a public employer is required to give to employee bargaining representatives (unions) both notice and an opportunity to bargain before unilaterally establishing or changing rules or policies that involve or affect mandatory subjects of bargaining. Only when such bargaining duty is fulfilled, or when the union indicates by either action or inaction (waiver) that it does not want to bargain, or where the union fails or ceases to bargain in good faith, is the municipal employer free to act unilaterally. The bargaining obligation is satisfied when the matter in dispute is negotiated in good faith to the point of either resolution or impasse.
A municipal employer must afford the union with notice of a proposed change that involves or affects a mandatory subject of bargaining. If the union requests it, negotiations must proceed in good faith until reaching either agreement or impasse. Upon reaching impasse, a municipal employer may implement its impasse position. It may do likewise when the union fails or ceases to bargain in good faith.
The term impasse has become a word of art in the field of labor relations. The factors to be weighed in determining whether an impasse exists usually include the following:
- The good faith of the parties in negotiations
- The length of the negotiations
- The importance of the issues about which there is disagreement
- The contemporaneous understanding of the parties of to the state of negotiations
There is no one right way to approach a municipality's bargaining obligation concerning the involvement in or impact of a proposed new rule on a mandatory subject of bargaining. A chief may decide that the changes are so minor, or that they do not involve mandatory subjects of bargaining and, therefore, not engage in bargaining. Even if the chief is correct, this may result in an unfair labor practice charge from the union, if only as a gesture of self-protection. The time spent defending such action may well exceed the amount of time it would have taken to discuss any proposed changes with the union.
In some departments, the quality of the chief's relationship with the union will dictate an appropriate course of action. Where the two parties maintain a good working relationship, an informal discussion with the union steward may produce an agreement on how to proceed. Alternatively, where relations have been strained, a more formal approach may be appropriate.
Waiver of Bargaining
Where the language of a strongly worded management-rights clause specifically allows a municipal employer to modify rules or promulgate new ones, it is arguable that a new rule can be issued without prior consultation with the union.
A waiver of bargaining rights must be clear and unmistakable, and such a waiver will not be inferred lightly. To prove waiver by inaction, an employer must show that the union actually knew or had notice of the proposed change, had a reasonable opportunity to negotiate over the change, and, without explanation, failed to do so.
The conduct of midterm bargaining sessions will be similar in some ways to regular contract negotiations. They are generally done in private, with each side having the opportunity to discuss points of view. A major difference will be the give-and-take aspect.
Where the proposed rule involves and does not simply affect a mandatory subject of bargaining, the chief must engage in decisional bargaining if the union files a timely request. In that case, the parties may exchange ideas and proposals, including a union proposal that no such rule be made. Upon reaching either agreement or impasse, management may implement. It may also do so if the union fails to request bargaining in a timely manner or fails or ceases to negotiate in good faith.
Where a management right is involved, the decision is one for management to make. In such cases, negotiations will center on the impact of that decision on one or more mandatory subjects of bargaining.
There is no rule concerning the number of midterm bargaining sessions required. However, a labor-relations agency rarely will find that impasse was reached after only one session.
It is preferable to secure agreement, even if it means one or more extra bargaining sessions. If no progress is being made, and the employer is convinced that impasse has been reached, a written letter to that effect could be sent to the union. A series of warning letters to the union that little progress is being made and that impasse is near and finally reached would be very beneficial.