Appeal from a decision of the Commonwealth
Employment Relations Board.
Jeffrey A. Honig, Deputy City Solicitor,
for city of Newton.
Jillian M. Bertrand for Commonwealth
Employment Relations Board.
Alan H. Shapiro (John M. Becker also
present) for Newton Police Superior Officers Association, MassCOP Local 401.
HAND, J.
In 2016, the chief of police (chief) of the city of Newton (city), in
consultation with the city's employment manager, ordered Captain Doe[2] to
undergo physical and psychological "fitness for duty" examinations,
and placed him on paid administrative leave pending the results of those
examinations. The Newton Police Superior
Officers Association, MassCOP Local 401 (union) -- of which Doe was a
bargaining unit member and which had a collective bargaining agreement with the
city (CBA) -- requested bargaining over certain aspects of the
examinations. The city did not bargain
as requested by the union. After
undergoing both examinations, Doe was cleared to return to work. The union filed a charge of prohibited
practice with the Department of Labor Relations (DLR) alleging, inter alia,
that the city had engaged in practices in violation of G. L. c. 150E,
§ 10 (a) (5), and derivatively, § 10 (a) (1),[3] when it (1) failed
to bargain over the procedure for fitness for duty examinations and (2) imposed
a fitness for duty policy as a condition of employment without first giving the
union notice and an opportunity to bargain to resolution or impasse about the
decision and its impact on employees' terms and conditions of employment.[4]
A hearing officer of the DLR, and on the
city's appeal from the DLR decision, the Commonwealth Employment Relations
Board (board), concluded that the city failed to meet its obligation to engage
in impact bargaining over the criteria and procedure for the fitness for duty
examinations to which Doe was required to submit as a condition of his
continued employment -- including, specifically, the selection of the examiner,
the information to be transmitted to the examiner, the testing protocol to be
used by the examiner, the results to be generated by the examiner, and to whom
the results of the examinations were to be communicated -- and "when it
imposed the fitness for duty policy as a condition of [Doe's] continued
employment without providing notice and an opportunity to bargain to resolution
or impasse about the decision and [its] impacts . . . on employees'
terms and conditions of employment."[5]
The board also rejected the city's argument that the union had waived
its right to bargain over these issues.
We affirm.
Background. We summarize the undisputed facts as found by
the board, supplementing with additional undisputed facts in the record as
needed. In 2016, the chief noted that
Doe had recently taken an unusually high number of personal days following recent
deaths in his family and a personal injury not related to his work, and the
chief believed that Doe "seemed to be a different person than he had
been."[6] Citing these reasons, on
September 27, 2016, the chief presented Doe with a letter that placed him on
paid administrative leave pending the results of physical and psychological
fitness for duty examinations. The
physical examination was to take place that day, and the letter informed Doe
that the city's human resources department would shortly advise him of the date
of the appointment for the psychological examination. Following receipt of the letter, Doe
requested union representation.
During a meeting at which the chief, Doe,
and Doe's union representative were present, the chief stated that he had
"just cause" under the city police department's "Code of Conduct
[and] Appearance" (code of conduct) to order Doe to undergo the
examinations, citing, in addition, his authority to order the examinations
under city ordinance § 2-46(c).[7],[8]
The result of the meeting was an agreement that Doe would comply with
the order. Doe attended the physical
examination, provided samples for drug testing, and submitted to a breathalyzer
test. Later that day, Doe was cleared by
the first examiner to return to work pending the results of the drug test. Doe ultimately passed all drug and alcohol
tests.
The following day, September 28, 2016, the
union sent a letter to the chief seeking certain information regarding the
completed physical and impending psychological examinations,[9] and relying on
DLR case law, demanded that the city bargain over "(1) [t]he selection of
the [examiner]; (2) [t]he information [to be] transmitted to the [examiner];
(3) [t]he testing protocol to be used by the [examiner]; (4) [w]hat results are
to be generated by the [examiner] and to whom [the results] are to be
communicated." The city did not
bargain with the union as requested. Doe
attended the appointment for the psychological examination, was cleared for
duty, and was ordered back to work on October 7, 2016. The union then filed a charge of prohibited
practice with the DLR.
Following a hearing, the DLR hearing
officer determined that the city had violated G. L. c. 150E,
§ 10 (a) (5), and, derivatively, § 10 (a) (1), when it failed to
bargain upon demand about the criteria and procedure for fitness for duty
examinations (count III), and "when it imposed a fitness for duty policy
as a condition of continued employment without providing notice and an
opportunity to bargain to resolution or impasse about the decision and the impacts
of the decision on employees' terms and conditions of employment" (count
IV).[10] On appeal from the hearing
officer's decision, the board affirmed and declined to find that the union had
waived the right to demand to bargain with the city.[11]
Discussion. We begin by clarifying the scope of this
appeal. The only issues as to which the
union demanded bargaining were the criteria and procedures for fitness for duty
examinations. Accordingly, we need not
and do not decide whether the decision to impose fitness for duty examinations,
or to place Doe on administrative leave pending the completion of a fitness for
duty examination, or to order him to undergo such an examination, was subject
to bargaining. The board concluded,
based on what it treated as "well-established precedent," that those
actions were part of the city's nonbargainable prerogative, and at oral
argument before this court, the union agreed that those issues were not before
us.[12] See, e.g., Nolan v. Police
Comm'r of Boston, 383 Mass. 625, 625-626 (1981). Accordingly, our consideration is limited to
review of the board's conclusion that the city was required to engage in impact
bargaining over the means for implementation of the department's decision; that
is, the criteria and procedures for the fitness for duty examinations. Like the board, we determine that the city is
required to bargain.
1.
Standard of review. An appeal
from a decision of the board is governed by G. L. c. 30A,
§ 14. See G. L. c. 150E,
§ 11 (i). Although we "accord
deference to the [board's] specialized knowledge and expertise, and to its
interpretation of the applicable statutory provisions," Worcester v. Labor
Relations Comm'n, 438 Mass. 177, 180 (2002), we will nevertheless set aside a
decision if it is "[a]rbitrary or capricious, an abuse of discretion, or
otherwise not in accordance with law."
Somerville v. Commonwealth Employment Relations Bd., 470 Mass. 563, 568
(2015), quoting G. L. c. 30A, § 14 (7) (g). See Commonwealth v. Labor Relations Comm'n,
404 Mass. 124, 127 (1989), citing G. L. c. 30A,
§ 14 (7). "A commission's
decision must be based on substantial evidence, i.e., such evidence as 'a
reasonable mind might accept as adequate to support a conclusion.'" North Attleboro v. Labor Relations Comm'n, 56
Mass. App. Ct. 635, 638 (2002), quoting G. L. c. 30A, § 1 (6).
2.
City's obligation to bargain.
Public employers are required to "negotiate in good faith with
respect to wages, hours, standards or productivity and performance, and any
other terms and conditions of employment," and are "prohibited"
from "[r]efus[ing] to bargain collectively in good faith with the
exclusive representative."
G. L. c. 150E, §§ 6, 10 (a) (5). "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 . . . ."
School Comm. of Newton v. Labor Relations Comm'n, 388 Mass. 557, 572
(1983). "[S]hort of impasse, [the
public employer] may not unilaterally implement changes to a mandatory subject
of bargaining without negotiation."
Commonwealth, 404 Mass. at 127.
Accordingly, a public employer violates G. L. c. 150E when it
unilaterally changes an existing condition of employment or implements a new
condition of employment concerning a mandatory subject of bargaining without
first providing the union with notice and an opportunity to bargain to
resolution or impasse. See School Comm.
of Newton, supra; Lee v. Labor Relations Comm'n, 21 Mass. App. Ct. 166, 167
(1985).
We discern no error in the board's
determination that the impact and the means of implementing the city's
requirement that Doe undergo fitness for duty examinations were mandatory
subjects of bargaining. Although
"certain types of managerial decisions that must, as a matter of policy,
be reserved to the public employer's discretion" are exempted from the
duty to bargain, Worcester, 438 Mass. at 180, "the means of implementing
such a nondelegable decision may properly be the subject of an enforceable
collective bargaining agreement" (emphasis added). School Comm. of Newton, 388 Mass. at
564. The employer's obligation to
bargain is particularly clear where the decision touches on the terms and
conditions of employment. See Lynn v.
Labor Relations Bd., 43 Mass. App. Ct. 172, 179-180 (1997) ("if the
exclusive prerogative decision may be implemented in various ways, some
touching on terms and conditions of employment, the public employer may be
required to bargain about the impact of such decisions"). See, e.g., Worcester, supra at 185 (reduction
in size of work force managerial prerogative but implementation affected terms
and conditions and required negotiation); Burlington v. Labor Relations Comm'n,
390 Mass. 157, 165-166 (1983) (assignment of duties not subject to bargaining,
but impact of decision, including loss of pay and opportunity, is); School
Comm. of Newton, supra at 563 (termination of employment by layoff is
"[c]ertainly . . . one of the 'terms and conditions of
employment'" [citation omitted]); Framingham v. Framingham Police Officers
Union, 93 Mass. App. Ct. 537, 544 (2018) (same).
The question how the city determines that
employees are fit for duty plainly impacted the terms and conditions of Doe's
employment -- he was suspended from work, albeit with pay, until the
examinations were completed and the results indicated that he had met the
examinations' criteria and was "cleared" to work. See School Comm. of Newton, 388 Mass. at 564;
Lynn, 43 Mass. App. Ct. at 176, 178 ("terms and conditions of
employment" construed broadly). The
fact that mere completion of the examinations did not result in Doe's
reinstatement, and that he remained suspended until he had met whatever fitness
criteria applied to the examinations, makes the point that the "methods
and means" of the decision were critical to the terms of Doe's continued
employment. We are satisfied that the
board did not err in concluding that the examination results had a direct
impact on job security and the city's managerial decisions with respect to employment,
and that the methods by which the examinations were conducted were the
mandatory subjects of bargaining. Cf.
Chief Justice for Admin. & Mgt. of the Trial Court v. Commonwealth
Employment Relations Bd., 79 Mass. App. Ct. 374, 386-387 (2011) (no bargaining
required where no impact of decision on union employees).
The criteria the union sought to bargain
were distinct from the city's order for the examinations themselves. As we have emphasized, supra, the union did
not dispute that the fitness for duty examinations could or should take place,
whether the results of the examinations could be shared with the city, or what
disciplinary steps the city could take based on the results of the
examinations; rather, the union demanded the ability to bargain over the
process of requesting the examinations and the procedures for administering the
examinations, as well as the subsequent use of information obtained in the
course of the examinations. We agree
with the board that there is a distinction between ordering an examination and
the procedures for implementation, e.g., choosing an examiner, and the method
and means by which the examination will be carried out. Cf. Local 346, Int'l Bhd. of Police Officers
v. Labor Relations Comm'n, 391 Mass. 429, 441-442 (1984) (no distinction
perceived between decision to require officer to undergo polygraph testing or
face discharge and means or impact of decision).
We are not persuaded that the city's
policy arguments mandate a different result than that reached by the
board. The city argues that it had a
compelling interest in ensuring the safety and fitness for duty of officers,
particularly where officers are engaged in activities that implicate public
safety. See Nolan, 383 Mass. at
630. We do not disagree, but conclude
that the city's interest in public safety is not undercut by the requirement
that it engage in impact bargaining with the union over the procedures and
criteria for the fitness for duty examinations.
Cf. Local 346, Int'l Bhd. Of Police Officers, 391 Mass. at 437-438
("the police department's overriding interest in the integrity of its
police officers exempted the town from negotiating with the union over the use
of polygraph examinations to investigate criminal activity by police officers").[13]
Similarly, we disagree with the city that
a negotiation requirement would "unduly impinge on [its] freedom to
perform its public functions" -- such a requirement would have no effect
on the city's prerogative to require that its superior officers be fit for duty,
or on its ability to continue to order fitness for duty examinations. Local 346, Int'l Bhd. Of Police Officers, 391
Mass. at 437. Engaging in impact
bargaining over the fitness for duty examinations does not suggest that the
examinations would be eliminated, nor does it hinder the effectiveness of the
examinations or render the city unable to confidently rely on the results. Likewise, in arguing that by requiring it to
bargain over the method, means, and impact of fitness for duty examinations in
this instance the board opened the floodgates to protracted negotiations with
every union on every case, the city overstates the practical difficulties of
the duty to bargain over the impact of its decision-making, a duty which has
been the law of the Commonwealth since the adoption of G. L. c. 150E
in 1973.[14] See St. 1973, c. 1078,
§ 2.
We also are not persuaded by the city's
argument that it was insulated from its duty to bargain the terms and impact of
the fitness for duty examinations order by the interplay between the provisions
of G. L. c. 150E and G. L. c. 31, § 61A (civil service
law). Essentially, the city argues that
because the civil service law allows "the administrator" to
promulgate "health and physical fitness standards" applicable to all
police officers,[15] and because the civil service law is not part of the
limited list of laws set forth in G. L. c. 150E, § 7 (d),
as subordinated to conflicting provisions in collective bargaining agreements,
the civil service law, and not the CBA, should control here. We do not agree.
General Laws c. 150E,
§ 7 (d), provides that where "a collective bargaining agreement
. . . contains a conflict between matters which are within the scope
of negotiations pursuant to section six [and] any municipal personnel
ordinance, by-law, rule or regulation . . . the terms of the
collective bargaining agreement shall prevail." Conversely, "[s]tatutes not specifically
enumerated in [G. L. c. 150E,] § 7 (d)[,] will prevail over
contrary terms in collective bargaining agreements." School Comm. of Natick v. Educational Ass'n
of Natick, 423 Mass. 34, 39 (1996), quoting National Ass'n of Gov't Employees
v. Commonwealth, 419 Mass. 448, 452, cert. denied, 515 U.S. 1161 (1995). See National Ass'n of Gov't Employees, Local
R1-162 v. Labor Relations Comm'n, 17 Mass. App. Ct. 542, 544 (1984). In other words, "a collective bargaining
agreement may not require a result that conflicts with a mandate of State law,
unless the law is listed in § 7 (d)." Dedham v. Dedham Police Ass'n (Lieutenants
& Sergeants), 46 Mass. App. Ct. 418, 419 (1999).
Because, as the city points out, the civil
service law is not among the statutory provisions listed in G. L.
c. 150E, § 7 (d), in the event of a conflict between the CBA
here and the civil service law, the civil service law's terms would
prevail. Dedham, 46 Mass. App. Ct. at
420-421 (where "nothing in the civil service law or in any other law that
has been called to [the court's] attention" relates to those
"mandatory subjects of collective bargaining," "[t]he parties to
the collective bargaining agreement were free to agree to any principle they
wished . . . [because] nothing in the law or in the commission's
order constrained their choice"); National Ass'n of Gov't Employees, Local
R1-162, 17 Mass. App. Ct. at 545. See
Burlington, 390 Mass. at 163 (no "direct conflict" between collective
bargaining agreement and terms of statute).
Here, however, the city has not only failed to demonstrate any conflict
between the statute and the CBA, it has failed to demonstrate that "the
administrator" has ever actually issued the standards referred to in
G. L. c. 31, § 61A. See
Rodrigues v. Public Employee Retirement Admin. Comm'n, 98 Mass. App. Ct. 514,
523 n.13 (2020) ("It is undisputed that [the Commonwealth's human
resources division] has never actually promulgated a set of in-service
[fitness] standards" under G. L. c. 31, § 61A). In the absence of such standards, there can
be no actual conflict between the CBA and the civil service law.[16] Cf. Adams v. Boston, 461 Mass. 602, 608
(2012) ("To determine if a CBA provision is contrary to a statute not
listed in § 7 [d], we ask whether the provision materially conflicts
with the statute"). As general
grants of legislative authority in statutes not listed in § 7 (d) do
not automatically supersede the statutory bargaining obligation, see School
Comm. of Newton, 388 Mass. at 566, the city's obligation to bargain was not
suspended by operation of these statutes.
Accordingly, the city is not relieved of its duty to bargain.
3.
Waiver. We decline to disturb the
board's conclusion that the union did not waive its right to bargain.
a.
Waiver by contract. "In
order to assert contractual waiver as an affirmative defense . . . an
employer has the burden of proving that the contract clearly, unequivocally and
specifically authorizes its actions."
Boston v. Labor Relations Comm'n, 48 Mass. App. Ct. 169, 174 (1999),
quoting Commonwealth of Massachusetts, 18 M.L.C. 1403, 1405 (1992). See School Comm. of Newton, 388 Mass. at 569
("waiver must be shown clearly, unmistakably, and
unequivoca[lly]"). "The
evidence must be clear and unmistakable.
Even a broad but general management rights clause does not constitute
such a waiver." Boston, supra at
175, citing School Comm. of Newton, supra.
The city argues that article VI
("Medical Examination") and article XV ("Management
Rights") of the CBA constitute waiver.[17]
Article VI recognizes the importance of "maintenance of good health
and physical fitness" and permits the city to require "Superior
Officers"[18] to complete "an annual medical examination conducted by
the City Physician's Office."
Despite the article's obvious relation to the city's interest in
advancing the physical health of its police force, nothing in either of these
provisions suggests that the union had (and forwent) the opportunity to
negotiate over the type of fitness for duty examinations at issue in Doe's
case. We see a clear distinction between
the agreement to an annual physical examination by a specified examiner and
fitness for duty examinations, including a psychological examination, performed
entirely at the discretion of the city.
The CBA is silent on the latter.
Article XV vests in the police department
the authority to, inter alia, "establish or continue polices, practices
and procedures for the conduct of the City business and, from time to time, to
change or abolish such policies, practices or procedures." The city argues the board's decision renders
this provision superfluous. We disagree. A broadly framed "managements rights
clause" does not "provide a basis for inferring a clear and
unmistakable waiver." School Comm.
of Newton, 388 Mass. at 569, and cases cited.
We agree with the board that as a matter
of law neither article VI nor article XV of the CBA evidences the union's
waiver of mandatory bargaining over the manner and means of fitness for duty
examinations.[19]
b.
Waiver by inaction. Waiver by
inaction must be supported by evidence that the union had actual knowledge and
a reasonable opportunity to negotiate over the proposed change, but
unreasonably or inexplicably failed to bargain or request to bargain. School Comm. of Newton, 388 Mass. at 570
("A party may show that the other party clearly and unmistakably waived
its right to bargain over an unlawful unilateral change where the other party
had actual notice of the proposed change, a reasonable opportunity to negotiate
over it, and unreasonably or inexplicably failed to bargain or to request
bargaining"). See Commonwealth, 404
Mass. at 127; Commonwealth of Massachusetts, 28 M.L.C. 239, 242 (2002); Town of
Milford, 15 M.L.C. 1247, 1252-1254 (1988).
The city seemingly does not argue on
appeal that it directly notified the union of Doe's or any past examination
orders. We find support in the record
for the board's rejection of the city's argument for waiver by inaction based
on its conclusion that the city had no mutually known and agreed-upon past
practice of sending officers for examination, or for unilaterally imposing the
procedure related to the examinations, and thus, that the union did not have
actual knowledge of the city's actions.
Even if, as the city argues, it historically had sent other officers for
fitness for duty examinations with parameters defined at the city's discretion
before it imposed that requirement on Doe, the city offers no evidence that it
provided the union with notice of any of those prior examinations. At issue is the method by which the
examinations are conducted. To the
extent that the city contends that it was foreclosed from notifying the union
of other superior officers' examinations because to do so would have been a
violation of the subject officers' privacy, its argument is not developed on
appeal. See Atwater v. Commissioner of Educ.,
460 Mass. 844, 853 n.8 (2011). The lack
of notice is dispositive. Conditioning
Doe's continued employment on examinations with parameters established solely
by the city was not part of a known or agreed-upon practice with the union and
was therefore "a unilateral change."
Lynn, 43 Mass. App. Ct. at 177.
See Massachusetts Port Auth., 36 M.L.C. 5, 11-12 (2009).
We are not persuaded by the city's
argument that either city ordinance § 2-46(c)[20] or the code of conduct[21]
put the union on notice of the fact that the city was conducting fitness for
duty examinations. As the board noted,
even if the code of conduct or city ordinance empowered the city to order
fitness for duty examinations like the ones at issue in this case, the union
could not have waived by inaction its right to bargain unless it had actual
notice that the examinations were being performed in reliance on the code or
ordinance.[22]
We agree with the board's conclusion that
the union did not waive its right to negotiate the means and impact of the
fitness for duty examination requirement.
4.
Conclusion. For the reasons
stated above, the decision and order of the board is affirmed.
So ordered.
footnotes
[1] Newton Police Superior Officers
Association, MassCOP Local 401.
[2] A pseudonym.
[3] General Laws c. 150E,
§ 10 (a), provides, in relevant part, that "[i]t shall be a
prohibited practice for a public employer or its designated representative
to: (1) Interfere, restrain, or coerce
any employee in the exercise of any right guaranteed under this chapter;
. . . (5) Refuse to bargain collectively in good faith with the
exclusive representative as required in section six."
[4] As we note, infra, the union does not
dispute the board's determination that the decision to order a fitness for duty
examination is within the city's managerial prerogative and is not subject to
mandatory bargaining.
[5] The focus of the union's argument, and
the decisions of the DLR and the board, was on the requirement that the city
bargain the means of the fitness for duty determination. Because the results of any fitness for duty
examination bore directly on the subject officer's employment status and on his
expectation of privacy in the results of any such examination, the union's
argument also implicated the consequences of those examinations. We are not called on, however, to determine
what disciplinary steps the city could properly take based on the results of
the examinations.
[6] The human resources employment manager
testified that the chief told her that Doe had not "seemed like
himself," had been "dozing off at work and [was] not as responsive or
proactive as he had been in the past," and that "there was a definite
change in his work performance and personality."
[7] The code of conduct provided: "Physical or Psychological Exam –- An
employee shall submit to a physical, mental or psychological examination, at
the expense of the Newton Police Department, when so ordered for just cause as
determined by the Chief of Police."
[8] City ordinance § 2-46(c) stated:
"Upon
determination by a department head, the director of human resources or the
mayor that an employee while engaged in the performance of their duty, appears
to be suffering from sickness or injury so as to constitute a hazard to their
health or the health of other persons, the director of human resources may
order such employee to discontinue their duties for such time as the director
deems desirable and may require such employee to undergo an examination by a
qualified health care provider(s) without charge to the employee."
[9] For each appointment, the union
requested to know the following:
"[u]nder what authority" the chief ordered Doe to be examined;
the "just cause" for the order or "any other authority" the
chief relied on; "[w]hat tests or other diagnostics were requested by the
Newton Police Department/City of Newton to be performed"; and "[w]hat
information was communicated to [the examiners]." The union also requested copies of all
communications between the city police department or the city and the examiners
concerning Doe.
[10] The DLR dismissed the union's claims
that the city repudiated article 32.04 of the CBA (count I) and failed to
timely provide information (count II).
Additionally, the DLR ordered the city to desist from its refusal to
bargain with the union and from imposing a fitness for duty examination policy
without notice to the union and an opportunity to bargain. The city was further ordered to bargain with
the union on demand about criteria and procedure for imposing fitness for duty
examinations, to rescind the unilateral imposition of a fitness for duty examination
until the city had bargained with the union over the criteria and procedure for
those examinations, to post the DLR's notice of its decision in a place
conspicuous to members of the union's bargaining unit, and to notify the DLR of
corrective action within ten days of receipt of the decision.
[11] The board issued additional orders
that paralleled those in the DLR's decision.
See note 10, supra.
[12] The union, on these facts, did not
challenge the order placing Doe on paid administrative leave and accepted that
the decision to place Doe on leave and to seek an examination regarding his
fitness was within the city's managerial rights. Likewise, there is no challenge to the
board's conclusion that "a public employer has a nonbargainable
prerogative to decide that it will employ only physically and psychologically
healthy persons."
[13] The city did not argue below, as it
does on appeal, that bargaining with the union would be costly, and we decline
to reach the argument.
[14] Indeed, the city and the union
successfully negotiated an article of the CBA entitled "Drug and Alcohol
Abuse Policy" that included, inter alia, standards for initiating testing,
testing administration, and the consequences of testing outcomes. No argument was made that the negotiation of
this policy resulted in catastrophic delays or occasioned other safety risks.
[15] General Laws c. 31, § 61A,
fourth par., provides, in relevant part:
"The
administrator[] shall establish in-service health and physical fitness
standards which shall be applicable to all police officers . . . in
permanent, temporary, intermittent, and reserve positions in cities and
towns. Such standards shall be
established by regulations promulgated by the administrator after consultation
with representatives of police . . . unions, and the Massachusetts
Municipal Association. Notwithstanding
the provisions of this paragraph, any municipality may adopt, subject to
collective bargaining, stricter in-service health and physical fitness
standards. Such in-service health and
physical fitness standards shall be rationally related to the duties of such
positions and shall have the purpose of minimizing health and safety risks to
the public, fellow workers, and the police officers . . .
themselves. Such standards shall take
into account the age of the police officer . . . ."
[16] We acknowledge the city's citation to
cases from other jurisdictions and past arbitrations. To the extent that any of those decisions are
not materially distinguishable from the instant case (and we do not imply that
any of those cases is similar), we decline to follow as an example this
nonbinding precedent.
[17] Article VI, "Medical Examinations,"
provides in relevant part:
"b. The City and the Association agree that the
maintenance of good health and physical fitness is important to the successful
performance of all of the duties of a Superior Officer.
"c. Superior Officers may be required to complete
an annual medical examination conducted by the City Physician's
Office. . . [I]f the
City Physician continues to require that additional testing be carried out,
then the Superior Officer will cooperate in any recommended program to manage
responsibly his/her medical condition . . . ."
Article XV,
"Management Rights," provides in relevant part:
"[The city]
shall have the sole and unquestioned right, responsibility and prerogative of
management of the affairs of the City and direction of the working forces
including . . .
". . .
"B. To establish or continue policies, practices
and procedures for the conduct of the City business and, from time to time, to
change or abolish such policies, practices or procedures.
". . .
"F. To prescribe and enforce reasonable rules and
regulations for the maintenance of discipline and for the performance of work
in accordance with the requirement of the City, provided such rules and
regulations are made known in a reasonable manner to the Superior Officers
affected by them."
[18] This classification would have
included Doe.
[19] We note, as the union aptly points
out, that the city did not invoke these provisions when ordering Doe to undergo
the examinations. Furthermore, the board
has consistently determined that the means of determining an employee's fitness
for duty is, indeed, a mandatory bargaining subject. See City of Haverhill, 16 M.L.C. 1077, 1081
(1989). Cf. Boston Sch. Comm., 3 M.L.C.
1603, 1607 (1977).
[20] See note 8, supra.
[21] See note 7, supra.
[22] We are not persuaded that the board
erred in rejecting the city's argument that privacy concerns precluded the city
from communicating with the union about past fitness for duty
examinations. See Usen v. Usen, 359
Mass. 453, 457 (1971).