Massachusetts Labor Relations Reporter
Management Commentary
by
Leo Peloquin, Esq., Joshua Coleman, Esq., and Stephanie Merabet, Esq.
Collins, Loughran & Peloquin, P.C.

Discipline

CERB Reverses Hearing Officer’s Decision, Which Did Not Award Back Pay, And Holds Employees Are Entitled to Back Pay When Disciplined for Concerted Protected Activity.

In Commonwealth of Massachusetts Secretary of Administration and Finance SEIU, Local 509, 41 MLC 186 (Jan. 16, 2015), the CERB modified a Hearing Officer’s remedy, but upheld the underlying decision that the Department of Children and Families (DCF) unlawfully suspended an employee for three days for statements he made during a grievance hearing, which constituted concerted protected activity.  While the Hearing Officer Hatfield held the employer’s conduct “chilled” the exercise of protected rights, he did not award back pay.

On appeal, the CERB reversed the Hearing Officer’s decision with respect to remedy, and found that a “make-whole” remedy included back pay.  The CERB noted that while the traditional remedy in a Section 10(a)(1) case is a cease and desist order and notice of posting, the DLR is not limited in its authority.  The CERB held that a “disciplinary suspension . . . occurs in the context of protected activity,” which may consist of disparaging or threatening statements, may justify back pay as an appropriate remedy.

Arbitrator Upholds Dismissal Of A Long-Term Employee For Pattern Of Poor Performance.

In Franklin County Sheriff’s Office v. IBCO/NAGE, 41 MLC 253 (Mar. 5, 2015), Arbitrator Hatfield upheld the dismissal of a seventeen-year employee for failure to perform critical aspects of her job.  In April 2013, the employee was issued a written reprimand for unprofessional and sarcastic comments, including that her goal was to “get through the day without being critical or sarcastic with the people I meet.”

Later that month, after a case management review, the Franklin County Sheriff’s Office (FCSO) determined that the grievant had failed to properly asses the risk of an inmate who had served a twelve-year sentence in another state for a felony.  The grievant failed to obtain police records necessary to verify the inmate’s past, and relied solely on the inmate’s version of the story.  As a result of the employee’s failure to follow protocols, a serious sex offender avoided treatment and participation in education classes.  Furthermore, the employer argued that as a result of the grievant’s conduct, the prisoner could have been re-released into the general population without proper assessment.

The arbitrator credited the employer’s many attempts to allow the employee to improve, including by transferring her to different positions twice in the two years prior to the conduct resulting in her dismissal.  First, the Sheriff was unhappy with her performance at the Community Corrections Center, and then when she was transferred to a management position at the Kimball House, the grievant failed to follow security protocols by giving her keys to an inmate who used them to access a restricted area on the property.  The grievant was subsequently demoted to a case worker position at the county jail, the position she held at the time of her termination.

In arguing that the FCSO lacked just cause for the discipline, the Union noted that during her lengthy employment with the FCSO, the grievant only received two instances of formal discipline—a written warning and her termination, both in April 2013.  The arbitrator rejected this argument, noting that although the employee did not have a significant formal discipline history, the employee was repeatedly counseled regarding inappropriate comments and safety concerns, including after she attempted to bring a steak knife into a secured facility.

This case offers employers a glimmer of hope and demonstrates that under the right circumstances, arbitrators may uphold the dismissal of long-term employees for performance issues, even if they lack formal discipline, when the employer has provided multiple opportunities to learn from their mistakes.

Unfair Labor Practice Decisions

Impasse Reached When Union Fails to Respond to Employer’s Offer Regarding Transfer of Bargaining Unit Work.

The recent case City of Boston and SEIU Local 888, 41 MLC 190 (Jan. 26, 2015), presented the question of whether the City had bargained to impasse about a transfer of bargaining unit work (crime scene lighting trucks) from the SEIU to Boston Police Detectives.  The City gave the Union four weeks’ notice of its proposed change, met with the Union twice, extended the deadline twice for the proposed transfer or work, offered other overtime to replace lost overtime, and offered to meet again. The Union rejected the City’s counterproposal, simply insisting that the work in question should remain in its unit, and did not seek further bargaining.  The Union failed to present proposals to address the impacts of the transfer on unit members’ terms and conditions or make proposals concerning the City’s decision to transfer bargaining unit work.

Given these circumstances, the City was within its rights because it had negotiated to the point of impasse on both the decision to transfer work and the impact of that decision.

The Hearing Officer reached this issue only by the dubious conclusion that the City’s economic motivation to have on-duty night detectives perform the work trumped its motivation to get the lighting truck to the scene of a major crime quicker by on duty employees rather than waiting for an off duty response.

Arbitrator Upholds Employer’s Right To Assign Overtime To The Most Qualified Employee.

In School Committee of City of Medford and AFSCME, Council 93, Local 3338, 41 MLC 196 (Jan. 26, 2015), Arbitrator Hatfield upheld the employer’s assignment of overtime based on the contract language, which gave the employer the right to assign a specific person or office to an overtime assignment.

The arbitrator rejected the Union’s claim that “to hold out efficiency as a qualification is inappropriate.”  The arbitrator credited the Superintendent’s testimony that to have bargaining unit members from outside a department come in to work overtime and then spend a considerable amount of time to bring them up to speed is inefficient.   The Arbitrator noted that the only contractual restriction was that the School Committee may not purposely assign overtime to avoid fair distribution.  Therefore, the grievance was denied.

The Circumstances of Employee’s Resignation Did Not Constitute Constructive Discharge.

The CERB affirmed the DLR Hearing Officer’s decision in Southbridge School Committee and Southbridge Education Association, 41 MLC 199 (Jan. 30, 2015), which alleged that the School Committee eliminated the Early Childhood Coordinator (ECC) position because of the employee’s concerted protected activity.  The DLR Hearing Officer dismissed all allegations that the action was done in retaliation for concerted protected activity, including the filing of grievances and participating in DLR proceedings.

The Hearing Officer found the elimination of the ECC position in June 2006 was not in retaliation for the employee’s act of filing of a grievance six months prior in December 2005.  The District had previously planned to decrease administrative costs by eliminating certain positions based on a shortfall in the budget.  Further, after the elimination of the position, the District reassigned the employee to a different school.

The Hearing Officer rejected outright the Union’s claim that the totality of the District’s conduct showed a pattern of conduct that would have caused the employee to resign.  The Hearing Officer also rejected all of the Union’s claims that certain actions by the district were the cause of her resigning, including:  criticism of the employee’s lesson plans, schedule changes, requesting medical documentation because of her use of sick/personal time, and not including the employee on planning team meetings.  The Hearing Officer found the District’s responses to be appropriate based on the teacher’s conduct.  Moreover, the timing of the employee’s resignation is significant, as she did not resign until just one day before accepting a job in another school system.

Based on the circumstances of the employee’s resignation, the CERB affirmed the Hearing Officer’s decision that the change in her work schedule and her placement on administrative leave was not in retaliation for engaging in concerted activity.

CERB Carefully Scrutinizes Past Practice in Finding Transfer of Bargaining Unit Work

In Town of Cohasset and Cohasset Permanent Firefighters, 41 MLC 206 (Jan. 30, 2015), the CERB upheld Hearing Officer’s decision that the employer unlawfully transferred bargaining unit work and fire prevention duties based on an analysis of past practice in assigning the work.

The Hearing Officer rejected the Town’s contention that for 26 years the Union and the Assistant Fire Chief and/or Fire Chief shared bargaining unit work.  The Hearing Officer noted that the six year period when the Fire Chief (a non-unit member) performed certain discrete duties was insufficient to prove shared work.

The Hearing Officer scrutinized the Department’s history and found that the prior Fire Chiefs performed the following percentages of fire prevention duties:  Lincoln (10-12 years) performed 25% of fire prevention duties; Brock (6 years) performed 70% of fire prevention duties and Silva (6+ years) performed only one fire prevention duty, Dooley (3 years) performed no fire prevention duties.

The shared work standard is whether the “practice has occurred with regularity over a sufficient period of time, so that it is reasonable to expect that the practice will continue.”  The DLR found a consistent practice of six years of fire prevention duties being exclusively assigned to the Union.  Furthermore, the DLR would not consider a new argument raised for the first time on appeal that the Chief’s duties, which include fire prevention, are not subject to bargaining.

The CERB ordered the Town to cease and desist, restore bargaining unit work, make unit members whole for any losses, and bargain to resolution or impasse over the decision to transfer bargaining unit work.

Not Every Change Constitutes a Transfer of Bargaining Unit Work.

In Town of Plymouth and Plymouth Police Brotherhood, 41 MLC 211 (Feb. 5, 2015) the DLR Hearing Officer dismissed a complaint that the Town failed to bargain over the reorganization of the Harbormaster and Environmental Management Departments.

First, the Union failed to identify any “actual impacts of the reorganization on the bargaining unit’s terms and conditions of employment.”  Second, the DLR held that there was no transfer of bargaining unit work with respect to non-unit members clearing people off the break wall in response to a July 4th call from a fishing vessel.  In addition, the fact that a Department official activated his blue lights in response to an aggressive turn from a motorist, does not establish that the Department official was performing a traffic stop or ask for identification.  The DLR held there was no transfer of bargaining unit work.

Health Insurance Opt Out is a Mandatory Subject of Bargaining.

In an unsurprising decision, In the Matter of: Town of Douglas, et al. and Douglas Teachers’ Association, 41 MLC 243 (Feb. 24, 2015), the DLR held that implementing a waiver of health insurance opt-out program, without first bargaining with the union, violates Chapter 150E.

The parties’ 2011-2013 CBA contained a provision that “The Town agrees to meet with the Association to develop an ‘opt-out’ plan.”

The Town’s affirmative defense of waiver by inaction failed due to the teachers’ lack of knowledge of the program and lack of reasonable opportunity to negotiate.  While the Town argued that its Appendix clearly established that the Association had notice of the health insurance buyout program and failed to demand bargaining, the Hearing Officer disagreed, as the document expressly stated “the Town agrees to meet with the Association to develop an opt-out plan . . . and to make recommendations on a plan to be implemented on or before September 1, 2011.”  As such, by implementing the plan without giving the Association notice and an opportunity to bargain, the Town unlawfully presented the plan as a fait accompli.

The Hearing Officer ordered a prospective remedy to any employee who participated in the opt-out plan:  pay them the difference with interest if any additional future stipend is negotiated.

Requiring Probationary Employees To Get Their Firefighter I and II Certifications Is A Mandatory Subject of Bargaining.

In City of Newton v. Newton Firefighters Association, 41 MLC 262 (Mar. 16, 2015), the DLR concluded that the City of Newton violated the law by ordering firefighters on probation (FFOP) to attain Firefighter I and II certification as a condition of continued employment without providing the union with prior notice and an opportunity to bargain.

In 2011, FFOPs were issued a letter from the Fire Chief requiring them to become Firefighter I and II certified by the end of their first year of employment—their Civil Service probationary period.  Prior to 2011, only some firefighters hold Firefighter I and II certification, and only some executed letters (which were not sent to the union) stating that they agreed to obtain this certification during their probationary period.

The City argued that there was no change in past practice because since 2003, it has required FFOPs to become Firefighter I and II certified by the end of their probationary periods as a condition of hire.  The DLR rejected the City’s reasoning, citing the distinction between a condition of hire, which the City did not apply uniformly, and a condition of continued employment.

A condition of continued employment is a mandatory subject of bargaining.  In contrast, a condition of hire is not subject to bargaining because job applicants are not employees of the City or bargaining unit members.

“An employer may not unilaterally establish terms and conditions of employment under the guise of establishing conditions for hire, merely by telling employees at the time of their hire that their employment would continue to be subject to certain conditions.” The DLR further concluded that requiring the City to bargain over a condition of continued employment does not override the City’s authority to enforce hiring qualifications by discharging FFOPs during their probationary periods.  As such, where the City changed a mandatory subject of bargaining without first bargaining with the Union, the City violated the law.

Use Of Assessment Center In Promotional Decisions Is A Mandatory Subject Of Bargaining.

In a case of first impression, the DLR held that a change in the criteria for promotion from a position in one bargaining unit to a position in another unit requires bargaining.

In Town of Arlington v. Arlington Police Patrolmen’s Association, 41 MLC 272 (Mar. 18, 2015), the DLR found that the Town of Arlington refused to bargain with the union over the Town’s proposed use of an assessment center as a criteria for promotion from the bargaining unit position of patrol officer to the non-bargaining unit position of sergeant.  The past practice was undisputed: the Town had always made such promotions by considering the candidate’s rank on the civil service list and his or her employment history with the Town.

The DLR concluded that use of the assessment center did not concern a core governmental decision because bargaining over the decision does not undermine police department policy.  The Town did not demonstrate that the criteria to consider in granting promotions from patrol officer to sergeant is so fundamental to the basic direction of a police department, or will so implicate public safety, that it should be a managerial prerogative.  As such, the Town was obligated to bargain with the patrol officers’ union over its decision to use an assessment center for promotions from patrol officer to sergeant.

Other

Contract Bar Requires Open Period Every Three Years, Regardless of Duration of Contract.

In Berkshire County Sheriff’s Department and National Correctional Employees Union and NAGE, 41 MLC 261 (Mar. 13, 2015), the DLR ordered an election after it refused to find a contract bar.  After the National Correctional Employees Union (NCEU) filed a petition with the DLR seeking to represent the employees of the Berkshire County Sheriff’s Department (Department), who were already represented by NAGE, NAGE filed a motion to dismiss alleging that a contract bar existed.

The duration of the current contract between NAGE and the Berkshire County Sherriff’s Department (BCSD) was from July 1, 2014 to June 30, 2017, while the prior contract’s duration spanned from July 1, 2012 to June 30, 2015 with a wage reopener in the third year.  During the spring of 2014, NAGE and the BCSD agreed to repeal the third year of the 2012-2015 contract and enter into the 2014-2017 contract.

NAGE argued that because the 2012-2015 contract had a wage reopener, the contract was subject to further negotiations and was not a complete contract.  It argued the open period for NCEU to file its petition was in January 2014.  NCEU opposed NAGE’s motion because Mass. Gen. Laws c. 150E states that there must be an open period every three years, and the fact that the 2012-2015 contract includes a wage reopener does not render the contract ineffective.  Also, if the DLR granted NAGE’s motion, the overlap of contracts would have resulted in a period of five years without an open period—well over the three years permitted by law.

Section 7(a) and 456 CMR 14.06(1)(a) make clear that no contract will act as a bar to petitions for representation for more than three years to protect both the employer and the incumbent union from too-frequent challenges and to protect the employee’s right to choose their bargaining representative.  A successor contract negotiated and ratified before the open period for filing a petition will not operate as a bar to a petition that is timely filed under the existing contract.  As such, regardless of the parties’ entering into a successor contract prior to the expiration of the former contract and prior to the January 2015 open period for the 2012-2015 contract, NCEU’s petition was timely under the 2012-2015 contract.