Massachusetts Court Concludes Fire Chief Selection Process Not Bargainable

The Massachusetts Court of Appeals has ruled that the promotional process for fire chief is not a mandatory subject for bargaining, meaning that the city is under no obligation to bargain with the union over the process. That ruling came is an appeal from a ruling by the Massachusetts Employment Relations Board.

The case involved an unfair labor practice filed by Everett Firefighters, IAFF Local 143, when the city of Everett sought to change the selection process for fire chief in 2019. As explained in the ruling:

  • Prior to 2019, the city used the “80/20” scoring method to establish eligibility lists for all promotions in the department, pursuant to which eighty percent of the candidate’s score was based on a written examination and twenty percent on education and experience.
  • 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 center would comprise “100% of the final score.”
  • The union immediately filed a prohibited practice charge at the Department of Labor Relations.
  • After an investigation into the union charge, a DLR investigator issued a complaint of prohibited practice.
  • Following a public hearing, a DLR hearing officer concluded that the union failed to prove that the city’s decision directly impacted a mandatory subject of bargaining, and therefore, the city did not violate G. L. c. 150E.
  • On further appeal, the board reversed that decision, holding that “an employer has a statutory duty to bargain over aspects of the promotional process affecting bargaining unit members’ participation in that process that do not implicate the employer’s managerial right[s including]…  [the right] to select the assessment center as the sole basis for scoring and ranking candidates on an eligible list for promotion to Fire Chief.”

The court of appeals reversed the Employment Relations Board ruling concluding that the selection process for managerial employees is not a mandatory subject of bargaining, despite the fact that all of the applicants for the position may be bargaining unit members. Quoting from the decision:

  • No one disputes that the city’s decision to use the assessment center fell within the sphere of its core managerial prerogative.
  • The question presented is whether the board erred by ruling that the city nevertheless had a duty to bargain over other “aspects of the promotional process” for fire chief that supposedly would not impinge on the city’s core managerial prerogatives.
  • We conclude that the board erred as a matter of law and misapplied established precedent, as the processes for selecting the managerial position of fire chief are not subject to the collective bargaining process.
  • Therefore, notwithstanding the deferential standard of review, the board’s decision cannot stand.
  • [I]t 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.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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