No Obligation To Bargain Over Selection Of Fire Chief

Written on 01/05/2023

Local 143 of the International Association of Firefighters represents firefighters employed by Everett, Mas­sachusetts. Local 143 is the exclusive bargaining agent for all privates, lieu­tenants, captains, and deputy chiefs, excluding the fire chief, who holds a managerial position. When the fire chief position became vacant in 2018, the City informed Local 143 that it was thinking about changing the process of selecting the chief. On January 31, 2019, the City posted notice that an assessment center would be held on March 14, 2019, for the position of fire chief and that the assessment center would comprise “100% of the final score.”

Local 143 immediately filed a pro­hibited practice charge contending the City had an obligation to bargain over the selection process. When a state labor board ruled in Local 143’s favor, the City appealed.

A Massachusetts appeals court re­versed the Board’s decision and found nothing negotiable about the change in the promotional process. The Court held that the question was “whether the procedures for selecting a managerial em­ ployee – by definition, a position outside of any bargaining unit – constitute ‘terms and conditions of employment’ subject to mandatory bargaining. No case so holds, and indeed, the Board’s own precedents establish that processes for choosing managerial employees such as fire chiefs are not subjects of mandatory bargaining.

“It is incorrect to say that the pro­cesses for selecting the fire chief impact the terms and conditions of employment of the deputy fire chiefs. The selection processes for chief do not change, alter, or impose upon the current jobs of the deputy chiefs or other bargaining unit employees. Rather, the selection process has to do with the deputies’ efforts to leave the bargaining unit and to become part of management, where they would occupy a supervisory and, in some ways, adverse position to the bargaining unit.

“As the chief officer, the city’s fire chief, among his or her other duties, leads the department, acts under the direction of the mayor, works with employee or­ganizations, responds to employee griev­ances, assists city officials in the collective bargaining process, and is a member of the city’s management team. The Board’s suggestion that bargaining is required because the fire chief position is part of the promotional ladder for deputy chiefs is accordingly inapt. The promotion the deputies seek here would have them cross over to a fundamentally different job.

“Finally, and for essentially the same reasons, the Board is incorrect in con­tending that the law requires application of a balancing test, under which courts must weigh the employer’s legitimate interest in maintaining its managerial prerogative to effectively govern against the impact the subject has on bargaining unit members’ terms and conditions of employment. Whatever the merits of such a balancing test, it does not apply where, as here, the proposed subject of negotiation does not actually impact employment terms and conditions.”

City of Everett v. Commonwealth Employment Relations Board, 2022 WL 15024409 (Mass. App. 2022).

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