Commentary on Massachusetts Labor Relations Reporter (Apr-Jun, 2016)

[but I] do not agree with the Committee’s contention that the statutory mandate also exempted it from bargaining with the Association over the impacts of that decision.” As a remedy, the DLR ordered that the Committee stop requiring guidance counselors to perform the additional duties until the parties bargained to resolution or impasse.

Union Cannot Insist On Bargaining Over a Permissive Subject.

The DLR found the Union violated the law in Malden Police Patrolmen’s Association and City of Malden, 42 MLC 313 (June 14, 2016), when they insisted to impasse that the Town bargain over its statutory detail pay obligations set forth in M.G.L. c. 44, § 53C.
In March 2014, the JLMC exercised jurisdiction over negotiations between both parties. In June 2014, the Union submitted a detail pay proposal, which the City objected to. The Union continued to submit the proposal, and the City filed a charge of prohibited practice claiming the Union’s proposal constituted a permissive subject of bargaining.

The DLR agreed with the City that the Union’s detail proposal constituted a permissive subject because it materially conflicted with the Town’s statutory detail pay obligations under M.G.L. c. 44, § 53C. Had the Union not insisted to impasse on the issue, an agreement could have been made during the course of the JLMC proceedings. The DLR found the Union’s conduct was bargaining in bad faith and ordered the Union to withdraw its detail pay proposal.

Arbitrator Rejects Town’s Unilateral Attempt To Change Payroll System.

In Town of Millbury and Millbury Police Association MCOP, Local 128 , 42 MLC 319 (June 14, 2016), the Arbitrator upheld a Union grievance protesting a change from weekly to biweekly pay. The CBA stated that “When other municipal unions agree the Town may at its sole discretion move to a bi-weekly payroll cycle.”

The Town believed this gave it the right to unilaterally change to a biweekly payroll system, as long as all other municipal Unions were in agreement. In September 2014, the Town sought to implement the new payroll system even without the necessary agreements. The Arbitrator agreed with the Union that the Town had not satisfied the condition precedent prior to changing to bi-weekly payroll. According to the Arbitrator based on the negotiated language, “no bargaining unit has affirmatively agreed to be the first to begin biweekly pay.” The Town was ordered to revert to weekly pay.

School Required To Unconditionally Support Funding For Grievance Settlement.

Following a DLR decision finding the Committee failed to offer unconditional support of a grievance settlement, the Committee appealed to the CERB for reconsideration in Franklin County Technical Regional School Committee and Franklin County Technical Teachers Association , 42 MLC 278 (May 31, 2016).

An employer’s obligation to seek funding for bargaining agreements and grievances goes beyond submitting a request to the funding authority. The employer is required to take all necessary steps to fund it, including clearly conveying unconditional support even in the face of expressed opposition. See generally City of Chelsea , 40 MLC 353 (2014); Town of Rockland , 16 MLC 1001 (1989); Worcester School Committee , 5 MLC 1080 (1978). The DLR previously held that the Committee violated this obligation when the Superintendent made a formal recommendation to the Finance Subcommittee to fund a grievance, and then allowed his subordinate, a Principal, to make a non-funding recommendation.

The Committee argued that the subordinate had no obligation to offer unconditional support. But the CERB ruled that, as an agent for the Committee, the subordinate had an obligation to offer unconditional support and rejected the appeal.

School Required To Grant Union Access To Facility To Conduct Environmental Testing.

In Worcester School Committee and Educational Association of Worcester, Inc. , 42 MLC 283 (June 8, 2016), the Hearing Officer found the Committee violated the law by failing to provide the Union with information that was relevant and reasonably necessary to its duties as exclusive bargaining representative. Specifically, the Committee failed to provide the Union with access to schools for polychlorinated biphenyl (“PCB”) testing to ascertain whether the workplace actually contained caulking that would need to be removed, and whether to request bargaining over the impacts of the caulking removal on bargaining unit members’ terms and conditions of employment, including their health and safety.

In November 2008, the Union requested permission from the Committee to enter upon school grounds at three (3) different schools during unoccupied times to conduct PCB sampling. The Union was concerned about the presence of PCBs in the buildings’ exterior caulking upon learning that some of the school buildings constructed between 1950 and 1978 used caulking that contained PCBs, which studies had linked to cancer. Over the next two (2) years, the Committee failed to cooperate with or allow the Association’s request, arguing there was no sufficient evidence linking PCBs to cancer. In September 2010, the Association filed a charge of prohibited practice.

It is well established that matters affecting the safety and health of bargaining unit members are mandatory subjects of bargaining and inherent to a Union’s representation duties. See e.g. Town of Bridgewater , 12 MLC 1612, 1615-17 (1986). The Union argued it was relevant and reasonably necessary for the Union to seek access to school buildings and assess the possible impact of the caulking on their unit members. The DLR was not persuaded by the Committee’s contention that the request was unduly burdensome and, if showing PCB levels were greater than acceptable limits, may result in costly intervention from the Environmental Protection Agency (“EPA”). The Committee’s argument, the DLR reasoned: “fails to draw a distinction between providing access to the [Union]’s environmental expert to conduct tests and various speculative scenarios that might arise as a result of the testing.” Accordingly, the DLR ordered the Committee to provide the Union with the requested access to conduct independent inspections.

DISCIPLINE.

Arbitrator Upholds Suspension Of Police Officer Who Used Police Database For Personal Reasons To Investigate Girlfriend’s Ex-Husband.

In Town of Sutton and Sutton Police Sergeants and Patrolmen’s Association, Local 159, 42 MLC 239 (April 12, 2016), Arbitrator Tim Hatfield held the Town had just cause to issue an eight (8) day suspension to a Sergeant for improperly using the Criminal Justice Information Services (“CJIS”) system.

In November 2013, Sergeant Kevin Richard (“Richard”) began a romantic relationship with Ms. Smith, who had two (2) minor children from a previous marriage.  Throughout the relationship, Ms. Smith (pseudonym) expressed concerns to Richard that her ex-husband Mr. Smith (pseudonym) previously convicted and jailed for federal drug charges, was actively using and selling cocaine and jeopardizing the safety of their children.  Richard then took it upon himself more than once to search Smith’s criminal record, driver’s license status, and vehicle information on the CJIS system.

In August 2014, Smith complained to Police Chief Dennis Towle that Richard violated a probate order to not be in the presence of his children, for which he received a three (3) day suspension.  In October 2014, Smith filed another complaint against Richard alleging that he anonymously e-mailed his child’s school about his child.  Richard admitted to sending the e-mail, and also searching Smith twice on CJIS.  Richard alleged that he ran the CJIS checks for legitimate police purposes and not personal reasons.

The Arbitrator was not convinced – deciding that Richard’s actions were “not the actions of police officer using CJIS for a legitimate criminal justice purpose, rather these are the actions of a police officer using resources at his disposal for personal reasons in violation of both Town policy and state regulations.”  Additionally, Richard’s failure to take proper protective measures for the Smith children, such as notifying other members of his Police Department or DCF, further support his suspension, where he ignored his statutory obligation to report suspected child abuse.

Town Had Just Cause To Terminate Employee Despite Mitigating Circumstances.

The Town had just cause to terminate a serially absent employee in the wake of his son’s tragic death.  Town of Sudbury and Massachusetts Laborers’ District Council, 42 MLC 270 (May 12, 2016).  In March 2014, the teenage son of light equipment operator, Anthony Zanco (“Zanco”), was murdered.  As a result of the mental stress following the loss of his son, Zanco exhausted all contractually entitled time off, and was granted a leave of absence.  When Zanco returned to work in June 2014, he began a pattern of failing to report to work and failing to notify supervisors of his absences.  The Town issued Zanco warnings about his absenteeism in January 2015 and February 2015; however, Zanco’s attendance did not improve.  Consequently, the Town terminated Zanco in March, 2015.

The Union alleged that per the Employee Handbook, employees do not have to work if they have a legitimate reason for their absence.  While sympathetic to Zanco’s predicament, the Arbitrator held that Zanco exhausted his legitimate reason to the point the Town lost productivity trying to accommodate him.  Where the Town could no longer depend on Zanco’s attendance, and Zanco admitted he was unlikely to return to work full-time any time soon, the DLR ruled the Town had just cause to terminate him.

Employer Not Required To Allow Union Representation During Non-Investigatory Meeting.

 The Department did not violate the law when it denied an employee’s request for Union representation where the meeting was not in regard to disciplinary action or an investigation, the DLR held in Commonwealth of Massachusetts, Department of Public Health and Massachusetts Nurses Association, 42 MLC 266 (May 12, 2016).

In February 2015, Deborah Bethel (“Bethel”), a wound care nurse at the Shattuck Hospital, was called into a meeting with her direct supervisor Sukhyune Hong (“Hong”) and the Hospital’s Executive Vice President of Patient Care Services Maria Tricarico (“Tricarico”).  In this meeting, Hong and Tricarico informed Bethel that she was going to have to share her office with respiratory therapists on her floor.  Bethel immediately asked for Union representation, which Hong and Tricarico denied, where the decision was not a form of disciplinary action.  They did not bring up any other issues during the meeting.  The Union then filed a charge of prohibited practice arguing Bethel was unlawfully denied union representation during the meeting.

For an employee to be entitled to union representation, the employee must have a reasonable belief that an investigatory meeting will result in discipline.  The DLR found the nature of the meeting was not disciplinary.  Accordingly, Bethel was not entitled to Union representation and the Hearing Officer dismissed the charge.

FAILURE TO MEET BARGAINING OBLIGATION.

Employers Must Bargain Over Change In Location Of State Ethics Training.

In City of Haverhill and Haverhill Firefighters Union, Local 1011, IAFF, 42 MLC 273 (May 24, 2016), the CERB upheld a Hearing Officer’s decision that the City must bargain over the conditions under which employees must complete the Massachusetts Ethics Reform Law online training program.

In April 2010, the Commonwealth began requiring that all public employees complete online training on the state ethics laws.  At that time, the City allowed employees to complete this training on or off duty, and without supervision.  However, in March 2013, Fire Chief Richard Borden (“Chief Borden”), ordered all firefighters complete the training on duty and in the presence of the Fire Department Training Officer.  This directive not only contradicted the City’s instructions, but guidelines from the State Ethics Commission that employees could complete the training without supervision and off duty.  The Hearing Officer found that the directive was a unilateral change to employee’s working conditions and the City had a bargaining obligation.

On appeal, the CERB rejected the City’s argument that the Hearing Officer improperly concluded that there was a change in how City firefighters completed their online ethics training.

School’s Compliance With New Law Did Not Negate Obligation To Impact Bargain Over Changes in Workload

In Stoughton School Committee and Stoughton Teachers Association, MTA/NEA, 42 MLC 243 (April 22, 2016), the Hearing Officer held that the School Committee had to impact bargain over the implementation of a new law which required school districts to create a pupil absence notification program.

Prior to this amendment, guidance counselors working for the School Committee would monitor student attendance and had to take certain steps if a student had poor attendance.  Additionally, guidance counselors gave student seminars in class blocks, where the decision to take attendance was left to their discretion.  In 2014, the Committee expanded the job duties to require counselors to create more assignments, take attendance, and evaluate and grade students.  While the counselors received compensation for curriculum preparation, the Committee did not notify the Union about this change in guidance counselor duties until after requiring the new duties.

The Hearing Officer wrote in pertinent part that: “the Committee’s decision to comply with the legislative mandate to implement a new attendance policy was not a bargainable subject, [but I]  do not agree with the Committee’s contention that the statutory mandate also exempted it from bargaining with the Association over the impacts of that decision.”  As a remedy, the DLR ordered that the Committee stop requiring guidance counselors to perform the additional duties until the parties bargained to resolution or impasse.

Union Cannot Insist On Bargaining Over a Permissive Subject.

The DLR found the Union violated the law in Malden Police Patrolmen’s Association and City of Malden, 42 MLC 313 (June 14, 2016), when they insisted to impasse that the Town bargain over its statutory detail pay obligations set forth in M.G.L. c. 44, § 53C.

In March 2014, the JLMC exercised jurisdiction over negotiations between both parties.  In June 2014, the Union submitted a detail pay proposal, which the City objected to.  The Union continued to submit the proposal, and the City filed a charge of prohibited practice claiming the Union’s proposal constituted a permissive subject of bargaining.

The DLR agreed with the City that the Union’s detail proposal constituted a permissive subject because it materially conflicted with the Town’s statutory detail pay obligations under M.G.L. c. 44, § 53C.  Had the Union not insisted to impasse on the issue, an agreement could have been made during the course of the JLMC proceedings.  The DLR found the Union’s conduct was bargaining in bad faith and ordered the Union to withdraw its detail pay proposal.

Arbitrator Rejects Town’s Unilateral Attempt To Change Payroll System.

In Town of Millbury and Millbury Police Association MCOP, Local 128, 42 MLC 319 (June 14, 2016), the Arbitrator upheld a Union grievance protesting a change from weekly to biweekly pay.  The CBA stated that “When other municipal unions agree the Town may at its sole discretion move to a bi-weekly payroll cycle.”

The Town believed this gave it the right to unilaterally change to a biweekly payroll system, as long as all other municipal Unions were in agreement.  In September 2014, the Town sought to implement the new payroll system even without the necessary agreements.   The Arbitrator agreed with the Union that the Town had not satisfied the condition precedent prior to changing to bi-weekly payroll.  According to the Arbitrator based on the negotiated language, “no bargaining unit has affirmatively agreed to be the first to begin biweekly pay.”  The Town was ordered to revert to weekly pay.

School Required To Unconditionally Support Funding For Grievance Settlement.

Following a DLR decision finding the Committee failed to offer unconditional support of a grievance settlement, the Committee appealed to the CERB for reconsideration in Franklin County Technical Regional School Committee and Franklin County Technical Teachers Association, 42 MLC 278 (May 31, 2016).

An employer’s obligation to seek funding for bargaining agreements and grievances goes beyond submitting a request to the funding authority.  The employer is required to take all necessary steps to fund it, including clearly conveying unconditional support even in the face of expressed opposition.  See generally City of Chelsea, 40 MLC 353 (2014); Town of Rockland, 16 MLC 1001 (1989); Worcester School Committee, 5 MLC 1080 (1978).  The DLR previously held that the Committee violated this obligation when the Superintendent made a formal recommendation to the Finance Subcommittee to fund a grievance, and then allowed his subordinate, a Principal, to make a non-funding recommendation.

The Committee argued that the subordinate had no obligation to offer unconditional support.  But the CERB ruled that, as an agent for the Committee, the subordinate had an obligation to offer unconditional support and rejected the appeal.

School Required To Grant Union Access To Facility To Conduct Environmental Testing.

In Worcester School Committee and Educational Association of Worcester, Inc., 42 MLC 283 (June 8, 2016), the Hearing Officer found the Committee violated the law by failing to provide the Union with information that was relevant and reasonably necessary to its duties as exclusive bargaining representative.  Specifically, the Committee failed to provide the Union with access to schools for polychlorinated biphenyl (“PCB”) testing to ascertain whether the workplace actually contained caulking that would need to be removed, and whether to request bargaining over the impacts of the caulking removal on bargaining unit members’ terms and conditions of employment, including their health and safety.

In November 2008, the Union requested permission from the Committee to enter upon school grounds at three (3) different schools during unoccupied times to conduct PCB sampling.  The Union was concerned about the presence of PCBs in the buildings’ exterior caulking upon learning that some of the school buildings constructed between 1950 and 1978 used caulking that contained PCBs, which studies had linked to cancer.  Over the next two (2) years, the Committee failed to cooperate with or allow the Association’s request, arguing there was no sufficient evidence linking PCBs to cancer.  In September 2010, the Association filed a charge of prohibited practice.

It is well established that matters affecting the safety and health of bargaining unit members are mandatory subjects of bargaining and inherent to a Union’s representation duties.  See e.g. Town of Bridgewater, 12 MLC 1612, 1615-17 (1986).  The Union argued it was relevant and reasonably necessary for the Union to seek access to school buildings and assess the possible impact of the caulking on their unit members.  The DLR was not persuaded by the Committee’s contention that the request was unduly burdensome and, if showing PCB levels were greater than acceptable limits, may result in costly intervention from the Environmental Protection Agency (“EPA”).  The Committee’s argument, the DLR reasoned: “fails to draw a distinction between providing access to the [Union]’s environmental expert to conduct tests and various speculative scenarios that might arise as a result of the testing.” Accordingly, the DLR ordered the Committee to provide the Union with the requested access to conduct independent inspections.