Paying Extra for Sobriety: Why Massachusetts Needs a Management Rights Law

I have proposed a management rights law for Massachusetts state and local governments:  http://danwinslow.com/manageme…  We already have one of limited scope, enacted when the MBTA was nearly bankrupted by unsustainable economics and handcuffed management. The MBTA law was championed by none other than acclaimed union basher Barney Frank. So it’s not an attack on workers–instead, it’s an opportunity to get public sector management into the position of actually managing. And its time has come to expand to all state and local government. Or we can just get used to the idea of paying extra for attributes that any private sector employee would know is presumed.  

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  1. Here's the link to the position paper fyi

    http://danwinslow.com/manageme...

    dan-winslow   @   Tue 4 Dec 7:00 PM
    • How common are random drug tests in the private sector?

      Quite honestly, I don't know. Are they becoming more common?

      • Requirement for a CDL

        http://www.fmcsa.dot.gov/safet...

        Why the %$## would firefighters not be required to met the requirements of a CDL license.

         

      • Pretty common.

        • I'm among the lucky few, I guess.

          I suppose it's only a matter of time before all of us non-management folks have to pee on demand. Is this "progressive", though?  

          • The more relevant question is whether drug testing is effective

            Most drug testing doesn't test whether you're unfit to perform your duties (a fine thing to test, especially for public safety employees) but whether you've taken drugs recently.  

            • And if you HAVE taken certain drugs recently...

              ...you are pretty much unfit to perform duties of some jobs by definition.  It absolutely blew my mind to find out that firefighters were not already tested before the incident that prompted this discussion.  This particular item shouldn't be negotiable.  As a resident of a community who might need their services I don't want to have to worry about the fitness of a firefighter.  There should just be a policy enacted by Council that says if you want this job you submit to testing.  If you don't like it you can find another job.

              • Depends on what you mean by recently

                I'm not arguing that there shouldn't be non-random, evidence based drug testing (such as breathalyzer or blood tests) - for public safety officials or folks operating machinery, there should be.  But random urine based drug testing doesn't check whether you're currently fit to perform your job, it looks at your past behavior.  

                I'm okay with a firefighter getting drunk or doing recreational drugs off duty, so long as it doesn't impact their job performance, just because you say "by definition" it does, doesn't make it true.  Look at alcohol, a widely used urine test for alcohol can test whether you've had a drink in the last 80 hours, yet the body can completely metabolize 4 alcoholic drinks within 4 hours.  

                With regard to pot, anything more than 24 hours has no measurable affect on job performance.  

                Duration of Effects: Effects from smoking cannabis products are felt within minutes and reach their peak in 10-30 minutes. Typical marijuana smokers experience a high that lasts approximately 2 hours. Most behavioral and physiological effects return to baseline levels within 3-5 hours after drug use, although some investigators have demonstrated residual effects in specific behaviors up to 24 hours, such as complex divided attention tasks.

                What are we looking to test here? The ability to perform one's job, or the morality of firefighters?  As to whether it should be negotiable?  The fact that so many well reasoned, intelligent people are so grossly misinformed about the reality of drug testing, argues that the bargaining table, where these types of issues and concerns can be worked out in a mutually agreeable fashion, is exactly the right place for this discussion.  

                Both the mayor and the firefighters union screwed this up, although the union is more to blame.  They should have known many of their members had drug problems and worked proactively to come up with a program that balanced personal privacy with job safety - they made it about a raise, which makes them look (or demonstrates that they are) shallow, callous and greedy.  

                • I absolutely cannot agree with...

                  ...the first sentence of your second paragraph.  Isn't there always a chance that a firefighter be called back on duty at a moment's notice in the case of a large-scale emergency?  Then there's also the case that "recreational drugs" are also often ILLEGAL.  Maybe we need to design tests where the duration of detectability matches the duration of danger.  This is public safety we're talking about here.  I'd much rather err on the side of the public welfare than firefighters' privacy.

                  • So cops shouldn't be allowed to drink at all?

                    We can deal with all of this without getting into the illegality issue, so let's put that to the side for the moment.  By your reasoning, cops and firefighters should not be allowed to drink at all, ever.  

                    One drink can impair driving, so a cop who's just had one beer and wouldn't pass a breathalyzer test, because they might have to be called to a large scale emergency at a moments notice, presents a danger to society and someone with a higher moral fortitude should get that job, right?  

                    This is a crazy standard.  As to your point about designing a valid test, I agree completely.  

                    • That's not what you said

                      You said, "I'm OK with firefighters getting drunk..."  I am not OK with that.  Having a drink or two does not constitute getting drunk.

                • Live by the sword`

                  dhammer,

                  firefighers are perceived to be very well compensated for their work, especially given the educational requirements of the jobs. I think that their overall package of wages, benefits, pensions, disability packages, etc. is very enviable indeed, or, at least it is seen that way.

                  This compensation has been justified by people's sense of the work firefighters do which is based on a carefully orchestrated campaign by firefighters to present themselves as heroes who risk their lives constantly doing the most daring and difficult work.

                  In other words, firefighters are entitled to very generous compsenstion because they are special people doing special work.

                  I think that is why people are inclined to hold them to special standards, including unrealistic higher standards.

                  It is based on the somewhat unrealistic impression of what firefighters jobs are like, an impression created by firefighters in the first place partially to justify their quite generous compensation.

                  The truth is that there is nothing about being a firefighter that should preclude enjoying a few drinks or even smoking weed from time to time. But this realistic understanding flies in the face of firefighters' own description of their own jobs.

                  People think firefighters are already being compensated for sobriety given that their higher than typical compensation should assume sobriety.

                  At least it looks that way to me.

                  • Well, firefighting is actually

                    pretty dangerous, as jobs go (number 13 on this Bureau of Labor Statistics-based survey of dangerous jobs) Maybe you're a commercial fisherman, though? That's number 1 on the list.

                    • Firefighting is undoubtedly dangerous

                      relative to almost all jobs.

                      How does the compensation of a Boston Firefighter compare to a commercial fisherman? Pretty decently, I suspect.

                      My job entails no danger. That is why I never refer to the danger of my job as part of my demand for compensation.

                      If the job is dangerous, then only the reliably sober should be allowed to do it.

                      So sobriety should be an absolute requirement of the job, not "an extra" as it were.

                      Again, I am outlining the argument of people who expect more from firefighters and saying it is based on firefighters' longstanding claims of offering more.

  2. Tax breaks aren't enough!

    More rights for our betters!

    sabutai   @   Tue 4 Dec 7:00 PM
  3. What IS a $quot;management rights law$quot; - I don't remember that from law school

    How about a summary, in plain English, with an outline format?  Currently I am working 60-80 hour weeks and my tired brain would prefer not to wade through somewhat jumbled paragraphs; outlines please!

    Rule #1:  If you want someone to read something, or do something, make it as easy to read or do as possible.

  4. Sorry, many of these positions are very anti-worker

    On your list, the following are outrageous notions to remove from collective bargaining, anything that fundamentally removes the ability to negotiate over the 'terms and conditions' of employment is anti-worker, even if Barney Frank supports it.  

    Appoint and employ employees and to determine the standards for employment, including confirming fitness for duty;

    By this you mean employers should be able to hire who they want?  Okay, except when you get into determining standards of employment, you get into the realm of allowing an employer establish a job description without any input from the union.  Negotiating job descriptions is a core element of collective bargaining - when you get into terms and conditions of employment, job description and wage rate are pretty fundamental.  

    Fire employees for good cause, subject only to grievance arbitration, or no cause in the event of insufficient appropriation;

     firing for good cause, or no cause and you want us to think this isn't anti-worker?  Just cause means the firing met these seven test, if a manager can't meet these, they should be fired.  

    1. Was the employee adequately warned of the consequences of his conduct? 2. Was the employer's rule or order reasonably related to efficient and safe operations? 3. Did management investigate before administering the discipline? 4. Was the investigation fair and objective? 5. Did the investigation produce substantial evidence or proof of guilt? 6. Were the rules, orders, and penalties applied evenhandedly and without discrimination? 7. Was the penalty reasonably related to the seriousness of the offense and the past record?

    Plan and determine the level of service required to be provided by the agency; Direct, supervise, plan, control and evaluate the agency's programs;

    These seem pretty standard mgt. rights rules.  

    To create job classifications and determine the duties and standards of productivity for each classification;

     A fundamental part of workplace democracy means determining duties and standards of productivity through negotiations.  I've worked with unions many times that brought in their own work flow professionals to counter the findings of mgt. - you'd remove this right from unions, no thanks.  

    To determine and develop levels of staffing and training, subject only to grievances based on employee safety;

     So now you're getting into the realm of "okay, but you're shooting yourself in the foot."  This is exactly the kind of thing that undermines cooperation and labor management partnership - getting input on necessary staffing from the rank and file can improve the quality of services - take this away and I'd say you're in for trouble.  

    Determine whether goods and services should be purchased or leased, on a temporary or permanent basis; Assign and apportion overtime;

    So no overtime by seniority, huh?  

    Hire part-time employees;

    You really think this isn't anti-union?

    Exclude overtime pay from pension calculations; Excluding automatic cost of living indexes.

    look, I don't know who you are, but you're now in the realm of "I'm not anti union, I just don't think workers should be able to negotiate over wages..."  

    What a joke...  This isn't about drug testing, this is about gutting public employee rights, anyone who supports this is an enemy of working people.  

    • So Barney Frank is Anti-Worker?

      Thank you for your thoughtful post, but don't forget that we already have this management rights statute on the books in Massachusetts, sponsored by then-State Representative Barney Frank, for the MBTA.  My proposal is to expand it statewide for municipal and state government.  I respectfully disagree with the notion that pro-good management means anti-worker.  If we don't give management the tools to manage well, we'll never escape the false choice of tax cuts vs. service cuts.  By improving the effectiveness of government, by managing our limited resources better, we can provide a high level of services at an affordable price to the taxpayer.

      There are plenty of anti-worker forces in Massachusetts. It's anti-worker, in my view, to deprive a working person of their fair earnings by excessive taxation when there is so much waste and fraud in government expenditures.  It's anti-worker to deprive diverse populations--persons of color, gay, transgendered, women-- from the opportunity for public service because of restrictions on who can get a job.  It's anti-worker in a recession to sacrifice junior employees for payraises that both destroy young families and undercut public esteem for public servants. And it's anti-worker, with unemployment levels bumping up against 10%, to fail to make the fundamental changes in our regulatory structures to encourage new private sector job creation now.

      To Amber Paw's point, the scope of collective bargaining historically was (and still is in private sector labor/management relations) wages, hours and working conditions.  Only in the public sector would a union seek a role in defining the jobs that management needs.  See, as an example, the comment above:  "By this you mean employers should be able to hire who they want?  Okay, except when you get into determining standards of employment, you get into the realm of allowing an employer establish a job description without any input from the union.  Negotiating job descriptions is a core element of collective bargaining. . ."  

      State and local management does a lousy job in Massachusetts, not because they're bad people, but because it's easier to be AWOL than effective when it comes to public sector management.  As a big believer in the value of collective bargaining, and as one who has both bargained and managed in the public sector in Massachusetts, I know that we see the best of unions when we see the best of management.  We don't have that balance in Massachusetts at the moment.  We should.  

      dan-winslow   @   Tue 4 Dec 7:00 PM
      • We don't have this clause on the books.

        You're suggesting that termination for "good cause" should be a right of management.  Nowhere does Chapter 161A: Section 25 mention "good cause."  

        Here's what the law says:

        (ii) to discharge or terminate employees subject to the provisions of clauses (a) and (b). (a) No such action to discharge or terminate shall be sustained if, in a proceeding invoked in accordance with the provisions of clause (b), the employee shall establish by a preponderance of the evidence that it was based upon race, sex, color, religion, creed, sexual orientation, age, national origin, handicapping condition, marital status, or political affiliation, or activities or union activities or union organizing of the employees; a reprisal against the employee for disclosure of information by an employee which the employee reasonably believes evidences a violation of any law, rule or regulation or mismanagement, a gross waste of funds, or abuse of authority; a reprisal against any employee for the refusal of any person to engage in political activity. (b) The parties may include in any written agreement a grievance procedure culminating in final and binding arbitration which may be invoked in the event any employee of the authority is aggrieved by any action taken to so discharge or terminate employees;

        Here's what you say:

        Fire employees for good cause, subject only to grievance arbitration, or no cause in the event of insufficient appropriation;

        What your saying here is you want the commonwealth to be able to fire employees for any reason if there's a budget shortfall or for less than just cause for any other reason.  That's a huge change from the existing law.

        • A Synopsis

          Hammer.  My bullet points were intended to be a summary of the management rights statute.  Amber Paw wanted it even shorter, but the full exposition of Section 25 is what I had in mind as a model for statewide legislation:  no firing of an employee for a legally improper purpose (i.e. race discrimination, retaliation, etc.) and use of the grievance process to challenge whether an employee actually was terminated for cause.  The Commonwealth should be able to terminate without cause if there's insufficient appropriation so that an agency can rationally downsize without losing the ability to perform its mission.

          dan-winslow   @   Tue 4 Dec 7:00 PM
          • The commonwealth already has the power to do all of this

            The only thing you even begin to approach as being new is the issue of laying off outside of seniority (it's not a termination, it's a layoff - words have specific meaning).  

            There may be units where layoff occur strictly by seniority, regardless of job title or description, but generally, the way layoff by seniority works accomplishes exactly what you want, without being able to lay off the most expensive employees first.  

    • Yikes

      The ridiculous firefighter situation aside, this is why Wagner Act unionism is a dinosaur, well designed for 1940, but ill suited to 2010.

      There should be two classifications:  management, and not management.  Thus, no: sorry, I can't restart the widget machine, because that is a job for a mechanic 3, and I am a machinist 6; we'll have to call a mechanic 3 in and pay overtime so they can do that job, and we can't call in a mechanic 3 unless we also call in Mechanic 1 and mechanic 2 to stare at mechanic 3 while mechanic 3 presses the restart button on the widget machine.  Oh, and you can't call someone in unless they get 6 hours, so mechanics 1, 2 and 3 will have to spend the other 5 hours, 59 minutes, and 45 seconds of their shift having a smoke on time 1/2.  Or, we could just wait until tomorrow to restart, but then everyone here will have nothing to do.

      The notion that the employer is not in a position to establish what positions it needs filled and when is a relic of another time.

      Ugh.

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