Commentary on Massachusetts Labor Relations Reporter (Jul-Sep, 2016)

Massachusetts Labor Relations Reporter (April – June 2016 Decisions)
Management Commentary
By
Leo J. Peloquin, Esq. & Joshua R. Coleman, Esq.
Collins Loughran & Peloquin, P.C.

MANAGEMENT RIGHTS

Management Rights Language Gives Employer Right To Assign Overtime.
Arbitrator Timothy Hatfiled held in City of Worcester and NAGE, Local 495, 43 MLC 8 (2016) that the City’s assignment of overtime is not arbitrable based on the explicit contract language. The Management Rights clause of the collective bargaining Agreement includes, “The determination of whether employees in a classification are to be called in for work at times other than their regularly scheduled hours and the determination of the classification to be so called.” The Arbitrator held that the Employer’s right to decide whether or not to assign a working foreman to an emergency shift, is a right the parties have agreed to exclude from the grievance and arbitration procedure.

Union Attorney Cannot Attend Fitness For Duty Medical Exam

In City of Boston and Boston Police Patrolmen’s Association, 43 MLC 14 (2016), the DLR rejected a failure to bargain charge, when the City denied the Union counsel’s request to go into the exam room with a police officer undergoing a fitness for duty exam. There was evidence that counsel was allowed to be at the pre-examination interview in the Medically Incapacitated Section of the Police Department, but there was only one instance—an exception allowed by the physician—where the Attorney was allowed in the actual examination with the officer. The Union went to great lengths to attempt to establish a past practice, and identified 17 instances where the Union’s attorney attend the pre-examination. The Hearing Officer determined that the Union cannot establish that the City’s doctor permitted exceptions on a “consistently sporadic or infrequent basis to establish a bargainable condition of employment.”

The DLR carefully analyzed the circumstances in distinguishing between the pre-exam and actual physical examination, in dismissing the charge.

City Finds Creative Way To Deal With Arbitration Setback Over Seniority Preference

In City of Taunton and Massachusetts and Northern New England Laborer’s District Council, 43 MLC 90 (2016), the Union challenged the City’s implementation of the Arbitrator’s prior award regarding the selecting of an external candidate for the Water Treatment Plant Pond Caretaker position. The City selected the external candidate (“A”) over the internal candidate (“B”) twice, after the Arbitrator ordered the City to re-do the selection process.

The collective bargaining agreement had the following seniority provision: “To the extent permitted by applicable law, seniority shall govern for all purposes….the City reserves the right to promote and/or transfer qualified employees, however, it also agrees to give preference to the three most senior applicants who have the required qualifications for the position into which they are to be transferred and/or promoted.”
In the first dispute, the Arbitrator Timothy Hatfield decided that the City violated the contract in the selection process and ordered it to re-do the interviews because it did not give a preference to the internal candidate. In complying with this award, the City re-interviewed the 2 candidates and utilized a 13 category matrix, with a 0, 5, or 10 point system for each category. In addition, the internal candidate B was awarded 15 additional points based on his internal seniority.
Still, external candidate A earned 100 points, 10 points more than Candidate B. The Union then filed a grievance alleging the employer’s creation of a matrix chart was an attempt to “stack” the results against B. Arbitrator Hatfield rejected the Union’s claim and held that the scope of his authority was limited to determining whether B was afforded received the contractual preference based on his seniority and, since the City gave him extra points for seniority, the City had complied with the prior arbitration decision.

DISCIPLINE

Employee Loses 30 Days After Losing Keys And Failing To Report It.

In Worcester Housing Authority and Mass. Northern New England Laborer’s District Council, 43 MLC 1 (2016), Arbitrator Tim Hatfield upheld the employer’s 30 day suspension of an employee who not only lost his work keys, but failed to report it for at least a week in violation of an established policy. Arbitrator Hatfield found that the grievant’s conduct compromised the safety of co-workers and Worcester Housing Authority residents.

PROCEDURAL DISPUTES

Arbitrator Rejects Union’s Argument That Town Administrator’s Threat That Grievance Presentation Would Be Televised, Excused Union From Filing Grievance With the Board Of Selectmen.

In Town of Acushnet and AFSCME Council 93, 43 MLC 31, Arbitrator Kathleen Goodberlet denied a grievance on procedural grounds when the Union failed to comply with Step 2 of the Grievance Procedure. The contract read, “If the grievance has not been settled, it shall be presented in writing, to the Selectmen within three working days after the supervisor’s response is due.”
The grievance centered on employees who were docked for the time they left work early after the Governor declared a state of emergency due to a winter storm. The Union contended that it would have filed the grievance at Step 2, if not for the Town Administrator’s statement that the Union would have to present the grievance during a televised Selectmen’s meeting. Arbitrator Goodberlet found that Step 2 grievances are the “exclusive domain” of the Selectmen, there was no past practice of televised meetings and the Union should have taken up the Town Administrator’s “baseless” assertion about television with the Board directly. Even though there was no specific provision requiring the grievance to be denied for failing to comply with Step 2, the Arbitrator ruled that “shall be presented” made the Union’s omission fatal.

BARGAINING OBLIGATIONS

Employer Must Bargain Over Transfer of Bargaining Unit Work.

The Hearing Officer held in Mass. Department of Transportation v. United Steelworkers, 43 MLC 65, that the employer transferred bargaining unit work to non-unit employees and retaliated against an employee for engaging in protected activity.

In March 2013, the employer hired six non-unit employees as Program Coordinators, even though several union members applied for the positions. First, the employer knew that Peter Fimognari, was engaged in protected activity based on filing grievances, being a Union officer and interacting with management statewide. The Union established indirect evidence of improper motivation for selecting a non-unit candidate, even though the employer chose the employees with the highest scores for the position. The non-selection form did not list the employee “Interview” as the reason for not selecting the candidate, even though this was a choice on the form. The Hearing Officer also noted that the employer failed to call any member of the interview member to testify, or any explanation for why the candidate selected was better qualified.

However, the Hearing Officer also did not order the employer to promote Fimognari because there was insufficient information about the candidates who scored higher than him. The employer was directed to conduct another round of interviews, based on circumstances that existed at the time of the application.

Second, the Union did not establish that the employer had knowledge of Greg Campbell, another candidate’s alleged protected activities. While he engaged in one “discrete” protected activity, this was insufficient to establish the employer’s knowledge of protected activity.

Third, the Union established that at least two of interview committee members knew of Haskin’s protected activity, including grieving his demotion and an overtime issue. Again, the employer listed inconsistent reasons for not selecting Haskins, by not listing the “interview” as the reason for his non-selection. The employer did not offer any explanation for why it chose the non-unit employee over Haskins.

The DLR ordered the Town to rescind the selection of the non-unit employee and offer Haskins the position with a make whole remedy, because there was sufficient information that he would have been promoted based on his interview score. This decision is an important reminder of the potential consequences when an employer retaliates against an employee because of protected Union activity and to document the reasons for non-selection of candidates.

The Hearing Officer also held some bargaining unit work related to the supervisory duties of foreman had been diminished. The DLR ordered the return of “bargaining unit work” to the garage pending fulfillment of all bargaining duties. However, the Hearing Officer did not grant the Union’s requested remedy of loss overtime opportunities resulting from the transfer of bargaining unit work.

Employer Right To Implement Reduction In Force Where Union Failed To Make Proposal To Save Jobs.

The DLR generally frowns upon an Employer who claims impasse to implement a change, but a Union’s intransigence often helps the cause. The Commonwealth Employee Relations Board (CERB) upheld the Hearing Officer’s decision in Everett School Committee and Everett Teachers Association, 43 MLC 55, dismissing the charge that the employer laid off 10 clinical therapists without giving notice and an opportunity to bargain over the decision and impact.

The Hearing Officer held that the parties had reached impasse based on the Union’s failure, after five bargaining sessions, to change its proposal or make any counterproposals about alternative means to save money rather than laying off therapists. The Hearing Officer soundly rejected the Union’s claim that the employer’s decision was a fait accompli.

The Committee deliberated for almost five months about outsourcing from February 2009 to July 2009 and did not execute a contract with an outside company until July 2009. The City “retained flexibility to move money around within its budget even after receiving School Committee and municipal approval.” The DLR dismissed the Union’s charge.

Ground Rules Against Negotiating In The Media Bars Even General Statements About Contract Negotiations

In Woburn School Committee v. City of Woburn, 43 MLC 84, the Mayor was found in violation of bargaining ground rules prohibiting bargaining in the media. The Mayor during his “State of the City” address, said, “Every long-term contract I sign must include concessions on health insurance.” The Hearing Officer found that the Mayor’s statement was not simply providing information about the budget, but was “discussing a negotiating position in a public address that the media covered.” The DLR noted the forum in which the statement was made is irrelevant and ordered a posting notice as a remedy.

But common sensed prevailed when the Hearing Officer rejected the Union’s charge that that the School Committee unlawfully imposed a condition on the negotiation of a successor contract by stating that the contract must contain health insurance concessions: “Finding this statement to be a violation of the Law would needlessly constrain bargaining as it is difficult to imagine contract negotiations where neither party would be permitted to state that the opposing party must make concessions on a particular subject in order to reach agreement.”

Employer Cannot Bargain Directly With Bargaining Unit Members In Scheduling A Special Event

In Stoughton School Committee and Stoughton Teachers Association, 43 MLC 102(2016), the School Committee engaged in direct dealing by discussing the hours of a special event (Spirit Day) with bargaining unit members directly. It seems the employer made problems for themselves by refusing to involve the Union in the conversations. The employer then aggravated the situation by disparaging two teachers who suggested the employer consult the contract first before implementing the change.
The DLR held that despite the “complicated nature of the discussion; the close proximity and easy accessibility of the contract; the likelihood that the contract would clarify any confusion; the need for the unit members to be properly informed before casting their vote” the employer refused to bargain over the issue. The Hearing Officer held the employer also violated the Law by preventing the bargaining unit members from consulting the contract.

Hearing Officer Upholds Police Chief’s Right to Send Employee for Drug Testing

In City of Somerville and Somerville Police Employees Association, 43 MLC 98 (2016), the Hearing Officer held that the City did not violate any agreement by not allowing an employee to participate in rehabilitation in lieu of a reasonable suspicion drug test.

The contract provided in part, “An employee’s refusal to submit to a test directed will be deemed to have tested position and will be immediately placed on leave….Additionally…such employee may be subject to serious disciplinary action, up to and including discharge.”

The Deputy Police Chief advised the Officer AC that there was reasonable suspicion to drug test him and issued him an order to immediately report to drug testing. Officer AC left the police station in an agitated state without submitting to a drug test. The Deputy then spoke with the Union President, who inquired if AC would be permitted to take a drug test if he returned to work. The Deputy Chief told the Union President that he would try to get AC to the station, but that he would need the Police Chief’s approval before allowing him to submit to a drug test. The Police Chief told the Deputy Chief to convey to the employee that he would not allow AC to take the drug test because he initially refused a direct order.

The Union filed a charge alleging that the City repudiated a “verbal” agreement between the Deputy and Union President to allow Officer AC to take the drug test. The Hearing Officer held there was no meeting of the minds, as the Deputy Chief had told the Union President to try to get AC to the station so there would be time to take him to the drug testing facility in Woburn, only if the Police Chief agreed. The DLR also noted that the Deputy Chief did not have actual or apparent authority to reach an agreement, which was “contingent on” the Chief’s approval, which never happened. The DLR dismissed the charge finding no repudiation of any agreement.

Dressing up for Work And Stopping Free Parking Must Be Bargained

In City of Lawrence and Mass. Nurses Association, 43 MLC 96 (2016), the DLR held that the benefit of free parking and requiring some employees to wear a tie are mandatory subjects of bargaining. The City had not previously adopted a dress code and the Hearing Officer found that wearing a tie is not a de minimis change. The DLR ordered the City to rescind the dress code and restore the free parking policy as well as make whole employee for any economic losses. The employer is required to bargain in good faith to resolution or impasse.