See Board of Regents of Higher Education, 19 MLC City of Gardner, 10 MLC 1739 (1990). Thus, 1218, 1219 (1983). a public hearing 1485, 1488 (1992); See also City of New Bedford, 15 MLC and remedies beyond make whole pay remedies 1732, are appropriate. c. The third condition for deferral has not been satisfied. As to the third condition, a determination of what work belongs to the bargaining unit is most appropriate for DLR.

Lowell School Committee, 28 MLC 29, 31 (2001); City of Gardner, 10 MLC 1218, 1219 (1983). When bargaining unit members and non-unit employees share work, the Commission has determined that the work will not be recognized as belonging exclusively to the bargaining unit.

(citing Lowell School Committee, 28 MLC 29, 31, MUP-2074 (June 22, 2001); City of Gardner, 10 MLC 1216, 1219, MUP-4917 (September 14, 1983)). When work is shared by bargaining unit members and non-unit employees, the Commission has determined that the work will not be recognized as exclusively bargaining unit work.

(emphasis added) Town of Andover, 18 MLC 1311, 1313 (1992); citing Town of Shrewsbury, 15 MLC 1230, 1232-33 (1988); City of Gardner, 12 MLC 1682, 1686 (1986). The provision at issue in the instant case is neither a wage nor a benefit; it is an administrative matter. As such, it not a "parity" clause as alleged by the Union.

City of Gardner, 26 MLC 72, 77 (2000) citing Town of Randolph, 8 MLC 2244, 2052 (1982). Thus, the [Unions] decision not to contest previous actions concerning health insurance neither extinguishes the Respondents bargaining obligation, nor bars the [Union] from objecting to the unilateral change in this case. Town of Brookline, 20 MLC at 1598.

City of Gardner, 26 MLC 72, 77 (2000) citing Town of Randolph, 8 MLC 2244, 2052 (1982). Thus, the [Unions] decision not to contest previous actions concerning health insurance neither extinguishes the Respondents bargaining obligation, nor bars the [Union] from objecting to the unilateral change in this case. Town of Brookline, 20 MLC at 1598.

Commonwealth of Massachusetts, 24 MLC 116, 119 (1998);.Board of Regents of Higher Education, 19 MLC 1485, 1488 (1992); City of Gardner, 10 MLC 1218, 1219 (1983). The Union contends that it has proven all three elements occurred in the case at hand. a. The Town transferred unit work to outside contractors. By its own admission, the Town transferred bargaining unit work to non bargaining unit personnel.

City of Gardner, 10 MLC 1218, 1219 (1983). cases The Boards analysis in subcontracting consists of a three-pronged inquiry that examines the following issues: 1) whether the employer subcontracted or transfer bargaining unit work to non-bargaining unit personnel; 2) whether the employer's subcontracting decision had an adverse effect on individual employees or the bargaining unit itself; and 3) whether the employer gave the bargaining representative

City of Gardner, 10 MLC 1218, 1219 (1983).

City of Gardner, 26 MLC 72, 77 (2000) citing Town of Randolph, 8 MLC 2244, 2052 (1982). Thus, the [Unions] decision not to contest previous actions concerning health insurance neither extinguishes the Respondents bargaining obligation, nor bars the [Union] from objecting to the unilateral change in this case. Town of Brookline, 20 MLC at 1598.

Assistant City Solicitor Law Department of the City of Fitchburg 144 Central Street Gardner, MA 01440 Commissioner: Cynthia Ittleman DECISION ON MOTION TO DISMISS The Appellant, Joaquin Kilson (Appellant or Mr.

Belmont, 388 Mass 632, 634 (1983) (municipality could legitimately choose not to tap into reserve fund); City of Gardner v. Bisbee, 34 Mass.App.Ct. 721, 723 (1993) (pretext established when mayor improperly injected himself and dictated to appointing authority who should be laid-off); Cambridge Housing Auth..v.