Municipalities & Police/Fire Chiefs Must Bargain With Unions Prior to Implementing Assessment Center

A public employer is required to bargain with the employees' representative prior to changing conditions at work. For decades, the entity now known as the Commonwealth Employment Relations Board has held that this obligation extends to the process for promotions. The attached case, arising out of the Town of Arlington and decided a few weeks ago, applies this analysis to the Town's decision to use an assessment center for promotions instead of typical written examination.

This case is the first known decision to apply bargaining obligations to a change Civil Service promotions. Civil Service law requires public employers to promote based upon a fair and objective process revolving around basic merit principles. Civil Service employers must promote from one of the top three ranked applicants. The process for Civil Service promotions is typically most contested in fire and police departments.

Usually, ranking of candidates is based upon scores on a written examination, in combination with the education and experience of candidates. Civil Service law allows alternatives to this model, namely an assessment center.

There is no single type or use of an assessment center available to Civil Service employers. It can take one of several forms - including alternative examinations, interviews, essays, oral boards, simulations of scenarios, or a combination of two or more methods. Additionally, Employers can use an assessment center to determine the ranking of candidates (on its own or in combination with a written examination), or to help decide which of the top three candidates should be selected

This decision affirms that an employer must provide unions with notice and an opportunity to bargain prior to changing the promotional process, including whether to use an assessment center, the type(s) of assessment center to be used, and how it will be used.

The case also affirmed that an Employer must bargain about changes to promotional process even if the promotion is to a position outside of the bargaining unit, so long as the position is not managerial or confidential. For example, an employer must bargain with a patrol union about changes to the process for sergeant, but not necessarily for changes to selection of the Chief. The Employer would have an obligation to bargain with a superior officers union prior to changing process for lieutenant and captain selection, but not necessarily Deputy or Chief.

In most Massachusetts fire departments, where the union represents all ranks below Chief, an Employer has the obligation to bargain prior to changing process for promotion to Lieutenant, Captain and Deputy Chief.