In Landmark Decision, State Labor Agency Rules That Impacts and Means of Implementing Chief Promotional Process Must be Bargained. Everett Fire Chief Promotion Rescinded

In a case involving a controversial promotion of the current Everett Fire Chief, the Commonwealth Employment Relations Board (CERB) confirmed for the first time that public employers have a duty to bargain about certain decisions prior to administering a promotion for public safety executives. Attorney Patrick N. Bryant represented Everett Firefighters Local 143, IAFF in this proceeding. This is the first major decision to set forth bargaining obligations related to Chief promotions. Unions can cite this decision anytime a Massachusetts public employer seeks to change the promotional process for a police or fire chief, or any other managerial position in the same line of work as the bargaining unit.

In January 2019, the City of Everett abruptly announced it planned to use an assessment center, scheduled for March 2019, to select the next Fire Chief. This process was unprecedented, as the City always used the statewide written examination of Civil Service, commonly known as 80/20 (i.e., eighty percent of the candidate's score is determined by examination and the remaining 20 percent is determined by education and experience).

The timing of Everett's first-ever Fire Chief assessment center just happened to coincide with the long-scheduled annual vacation of a prime candidate (who was not the Acting Chief). Unbeknownst to Local 143, the City had already executed several agreements with the state Human Resources Division (HRD) over the past year about an assessment center. Also unknown to Local 143, Acting Chief Anthony Carli, who was a candidate to fill the Chief vacancy, had long been involved in key discussions and decisions about the promotional process that ultimately selected him. The only notice to the Union had been a May 2018 letter from the City indicating it was merely "contemplating" using an assessment center instead of an exam. The City did not disclose that it had, in fact, already signed an agreement with HRD to use an assessment center. The Union responded to the May 2018 letter by encouraging the City to speak with HRD about a written examination and then report back if the City still planned to continue with an assessment center. The City never did. The City even stipulated that it made this decision "without bargaining to impasse or resolution over the impacts of the decision to use an assessment center."

The CERB has never ruled on the scope of an employer's bargaining obligations in changing the process for selecting public safety chief. When a public employer seeks to change promotional procedures, such as using an assessment center for the first time, it must bargain about the decision, so long as the position is not a manager. This obligation applies even if the position is not in the bargaining unit. For instance, in the Town of Arlington case, MUP-14-3750 (2015), the CERB held that the town unlawfully failed to bargain with the patrol officer association prior to using an assessment center to make sergeant promotions, a position represented by another union. It has long been understood that employers do not have the same bargaining obligation when the promotion concerns a position that is managerial in nature (i.e., Chief). Stated another way, it has been understood that an employer can decide to use an assessment center to select a Chief, without ever consulting the union representing potential candidates.

Some had read the previous CERB cases as suggesting that the employer's power to switch to an assessment center for Chief meant that cities and towns have no bargaining obligation whatsoever, including about the impacts of the decision or the means of implementing the decision.

In the new City of Everett case, the CERB set the record straight, affirming that there are bargaining obligations that apply.

The CERB first affirmed that employers have NO bargaining obligations about the following decisions related to Chief promotion:

• Selecting the assessment center as the sole basis for scoring and ranking candidates on an eligible list,
• the exercises used in the assessment center,
• the weight given for education or experience,
• the criteria or standards measured,
• how the assessment center is scored, or
• who the City ultimately selects as Chief.

While public employers have significant decisionmaking authority to act unilaterally for changing process for Chief promotions, such authority is not unlimited: public employers must bargain, when requested, about decisions that do not interfere with their managerial (or policy-making) authority, such as

• the scheduling or timing of the assessment center,
• the orientation or preparation process for the assessment center,
• distribution of materials related to promotion,
• leave or paid work time to prepare for the examination,
• the security of the assessment process, including the presence of a Union observer,
• the individual’s cost to participate in the assessment center, and
• the rights of unsuccessful participant to receive feedback.

To remedy the City of Everett's violation of the law, the CERB basically ruled that the Chief selected from this process (Carli) must be restored to Acting Chief status, that he not receive any credit (or benefit) for time spent as Chief or Acting Chief since March 2019 when the Assessment Center occurred. Plus, the City must bargain to resolution or impasse on certain aspects of the promotional process prior to implementing the assessment center.