An Employer May Refuse To Bargain Where There Is Ambiguity As To The Identity Of Bargaining Representatives
As we continue to see a trend of Unions calling for Union observers to come in and pack the bargaining sessions, Employers should know that, absent ground rules to indicate otherwise, Unions cannot insist on having silent observers or guests during bargaining sessions. DLR precedent has been clear that bargaining under Chapter 150E is deemed closed unless the parties agree otherwise. In this way, Unions are limited to having their bargaining team present at bargaining sessions. It is the Employer’s right to refuse to bargain where the Union brings observers that are not members of the Union’s bargaining team. In Town of Norton, 3 MLC 1140 (September 21, 1976), the DLR stated the following:
Through the collective bargaining process, the negotiators for both the Public Employer and the Union seek to reach an agreement that reflects the common interests of their respective constituency. Many of the people represented by either party, however, have diverse personal concerns in the issues discussed at the bargaining table. The presence of members of the town’s and union officials’ constituencies distract those officials from concentrating their efforts toward a solution of the issues before them and dampen their willingness to make compromises that affect the personal interests of some of the people they represent.
While the Law guarantees to employees the right to bargain collectively through representatives of their own choosing and prohibits Employers from insisting on the names of the representatives, the Union is obligated to notify the Employer about all representatives it intends to designate as part of its bargaining team and the role they would play in bargaining. This could be done by simply informing the Employer at the start of the bargaining session – prior notice to the Employer is not required. Yet, in Belmont School Committee, 45 MLC 185 (June 7, 2019), the Union failed to do this. During successor contract bargaining, the Union brought in unannounced “silent” representatives and the School Committee’s negotiation team objected to their presence. Although the Union intended those representatives to act as part of its bargaining team, this was not made clear to the School Committee which had rejected the Union’s proposal to have open bargaining sessions which would have allowed for observers. When the School Committee inquired about the status of the bargaining unit members sitting at the back of the room and informed the Union that it was surprised and disappointed that the Union had decided to bring observers, the Union responded, “we never stated we would not bring them.” The Union never clarified the status of those individuals and, soon after, the School Committee’s negotiation team walked out of the bargaining session.
At the DLR, the Union argued that the School Committee violated the law by refusing to bargain with the Union. It pointed to its December 8 email to the School Committee which stated that the Union “may” bring “other representatives” to bargaining who may not be consistent, to observe only during negotiations, and to consult with core representatives during caucuses. However, the CERB found that the email did not say with certainty that the Union would actually bring them and did not clarify what was meant by the term “other representatives.” While the Union intended to have those representatives act as part of its negotiation team, the School Committee had no idea. For those reasons, the Commonwealth Employment Relations Board (CERB) concluded that the School Committee did not violate the Law by walking out of a bargaining session where the identity of the silent representatives remained ambiguous to the Employer. A copy of the CERB’s decision is available here. If you have questions regarding this decision or the use of silent observers you should content your NMP attorney.
