‘Pecking Order’ For Special Details Subject To Negotiations

The Town of Burlington, Massachusetts unilaterally changed the “pecking order” for assignment to paid police detail work. The Burlington Municipal Employees Association, which represents supervisors in the Police Department, filed an unfair labor practice charge against the Town, contending that the method of assignment to paid details was subject to mid-term negotiations.

The Appeals Court of Massachusetts agreed with the Association. The Court first rejected the Town’s contention that the “pecking order” for details fell within the exclusive managerial prerogative of the Police Chief based on public safety or public policy concerns. The Court observed that it could “discern no public safety or public policy concerns that render the pecking order for details a management prerogative. The Chief of Police determines who is eligible to be appointed a special police officer, and the Chief has determined that regular police officers and special police officers are the only individuals qualified for assignment to details. Where special police officers are designated by the Chief himself, and only regular police officers and special police officers can be assigned to details, it cannot rightly be maintained that public safety or public policy concerns underlie placement of retired police officers above special police officers in the pecking order when both are qualified to do the job. Indeed, the Town’s police chiefs have long seen fit to assign special police officers to work details.

“Similarly misplaced is the Town’s contention that police details are not Association bargaining unit work. Substantial evidence supports the Labor Board’s determination that Association members are entitled to bargaining unit rights because of their status as Police Department employees, not because of their status as special police officers. While civilians must first qualify as special police officers to be eligible to perform police details, Association member employees have consistently been treated differently, and more favorably, than mere special police officers. The opportunity to work those details…is clearly a benefit offered to those employees solely by virtue of their status as Department employees and not merely because they have qualified as special police officers.

“Substantial evidence also supports the Board’s determination that a longstanding past practice of placing Association-member employees near the top of the detail pecking order (after active duty police officers) and above retired police officers, created a negotiable condition of employment. Unilateral change to that practice effected a change in the opportunity to work paid details, the method by which those details were distributed, and the hours and wages of the Association-member employees, such that the Board was justified in concluding that the Town was required to provide the Association notice and an opportunity to bargain before making such changes.”

Town of Burlington v. Commonwealth Employment Relations Board, 9 N.E.3d 348 (Mass. App. 2014).