Massachusetts Labor Relations Reporter

Management Commentary

By

Leo J. Peloquin, Esq. and Joshua R. Coleman, Esq.

Collins, Loughran & Peloquin, P.C.

 

Employer Must Bargain Over Reduction Of Hours When It Means A Loss Of Health Insurance Benefits.

In City of Springfield and Springfield Organization of Library Employees , 41 MLC 9 (July 18, 2014), the Hearing Officer held that the City unilaterally reduced the hours of work and, therefore, eliminated health insurance benefits, for two employees who had been working twenty hours per week.

All employees who worked at least twenty hours a week were entitled to benefits (e.g. benefitted position). In 2008, the City reduced the hours of two employees from 20 hours to 18.5 hours without bargaining with the Union. The Union filed a prohibited practice charge alleging a unilateral change and direct dealing.

The Hearing Officer rejected the City’s argument that Union waived its bargaining right, even though the contract provide the City with the right to employ part-time employees. The Hearing Officer held that the City did not have the unilateral right “to convert a pre-existing fully benefited position into a position without health insurance or retirement benefits by reducing the hours of work below the level at which the City is contractually required to provide health insurance and retirement benefits.” The Hearing Officer also held the City engaged in direct dealing by negotiating with two employees directly regarding reduction of their hours and benefits.

The City was ordered to restore the two employee to twenty hours per week with retirement and health insurance benefits and bargain with the Union over the reduction in hours. The City was ordered to make the employees whole for any lost wages and health insurance benefits as a result of the loss of benefits, including payment of any costs incurred to maintain their health insurance and reimbursement for out-of-pocket medical expenses. The DLR also ordered the City to petition the Retirement Board to restore any lost retirement credit because the two employees became ineligible for membership when their hours were reduced.

Employers Successful In Keeping Administrative Assistants To Confidential And Managerial Employees Out Of Bargaining Unit.

Employers and Unions often dispute whether an administrative assistant to a confidential or managerial employee already excluded from a bargaining unit under c. 150E should also be excluded. Under the statute, such employees shall be designated as confidential employees “only if they directly assist and act in a confidential capacity to a person or persons otherwise excluded from coverage under

[c.150E].’ Two recent decisions favored Employers and provide a refresher course in what duties are most important to consider.

In Town of Longmeadow and Longmeadow Association of Clerical Employees, 41 MLC 45 (August 22, 2014), the Union sought to accrete three job titles into a bargaining unit of clerical employees by filing a unit clarification petition. Two of the positions were combined positions.. The three positions were Benefits Coordinator, Human Resources Specialist/Fire Department Administrative Assistant (“HRS-FDAA”) and Human Resources Assistant/Assessors Clerk.(“HRA-AC”)

HRS-FDAA Ray Miller did different tasks depending on the hat being worn. When working for Human Resources, Miller reported to the Human Resources Manager. Miller’s work included costing out possible and actual collective bargaining proposals, alternative bargaining packages and economic scenarios for various Town bargaining units, including the clerical unit. Therefore, he had advance notice of the Town’s bargaining parameters and proposals. Miller also did cost analyses of personnel actions such as reducing hours and eliminating positions.

In the Fire Department, Miler reported directly to the Fire Chief. His duties included processing and monitoring department payroll and processing invoices. For more than 10 years, he had costed out Town and Union potential, and actual, economic bargaining proposals. He was privy to to the Town’s upper limits on wage offers.

Audra Staples served as the HRA-AC. Her duties as Assessors Clerk included filing field cards, deeds and abatement applications and monthly reports related to motor vehicle excise tax payments and commitments. They were distinct from her duties as the Human Resource Assistant. In that capacity, she reported directly to the Human Resource Manager. She conducted comparative wage and benefit research for the Town’s use in collective bargaining. But she did not see the Town’s collective bargaining proposals before they were given to the Union. Although she compiled information from other communities that the Town intended to use to reorganize its Council on Aging, including laying off some position holders, she was not notified about the actual decisions before the Town told the employees affected by them. She did draft correspondence for her supervisors including disciplinary letters and layoff notices, meaning that she was aware of the personnel actions before the employees or the bargaining unit representing the employee.

The Benefits Coordinator reported to the Human Resources Manager. The position holder was responsible for administering and maintaining records for all town and school employee retirement benefit programs. She scheduled and attended Insurance Advisory Council and Public Employee Committee (“PEC”) health insurance meetings and had access to employee, health, personnel and disciplinary records to perform her duties. As part of the PEC team, she provided information to assist in responding to Union concerns and knew about the settlement recommendations from the Town’s Finance Director and Town Manager before the Town’s final position was presented to PEC members.

The Commonwealth Employee Retirement Board (“CERB”) ruled that the HRS-FDAA and HRA-AC were exempt from bargaining but the Benefits Coordinator was not.

CERB noted that, “regular exposure to confidential material directly related to labor relations policy or other equally sensitive policy information” while directly assisting an excluded confidential employee provides the basis for excluding an employee. “In particular, the Board has excluded employees who have significant access or exposure to confidential information concerning labor relations matters, management’s position on personnel matters or advance knowledge of the employer’s collective bargaining proposals.”

HRS-FDAA Miller met the test because he reported to two excluded employees-the Human Resources Director and that Fire Chief—and, in both titles, he regularly assisted the Town during collective bargaining by costing out proposals and had advance notice of the Town’s actual bargaining proposals and parameters. In addition, Miller did cost forecasts for a variety of contemplated personnel actions, including hours reductions and layoffs.

The HRA-AC was deemed exempt as a confidential employee for similar reasons. The CERB noted that the position holder was required to draft correspondence related to personnel actions for the two confidential positions she served, meaning that she had advance knowledge of the actions before the affected employee or the employee’s union. She also conducted comparative wage and benefit research for the Town’s use in collective bargaining and to consider the reorganization of its Council on Aging. While the Assessors Clerk position that she also held was not a confidential position, the CERB noted that, “including a combined position in the unit for purposes of one title but excluding it for another would create an “unworkable situation.”

In contrast, the Benefits Coordinator duties did not include regular advance access to management’s position on confidential labor relations on personnel matters. Rather, administering and maintaining school and Town benefits records was a non-confidential duty. The position holder did not routinely have access to the Town’s health insurance proposals in advance of their presentation to the Union. CERB noted that the Benefits Coordinator had access on one occasion to the Town’s settlement recommendations on a health insurance issue but, “[i]f and employee is to be excluded from a unit based on any single activity, that activity should be a regular and significant part of the employee’s job.” While the Benefits Coordinator did have access to sensitive financial and personnel records and other non-labor relations material, mere access did not make the position confidential.

In City of Newburyport and AFSCME Council 93, 41 MLC 71 (September 12, 2014), the Board excluded from bargaining a newly created position titled Executive Assistant to the Fire Chief. It was the first administrative position in the Fire Department and the only non-bargaining unit position in the Department.. Previously, the Chief had done all of the administrative duties himself.

The Chief was fully involved in bargaining with the firefighters union. When a new Chief came on board, he had the Executive Assistant organize, maintain and access the Department’s personnel, medical, collective bargaining and other confidential files. He gave the Executive Assistant a key to the confidential files. He also had the Executive Assistant open his mail and email, some of which contained confidential information related to labor and personnel matters. The Executive Assistant also received and updated a document circulated among members of the City’s bargaining team that contained notes and comments about the status of negotiations. She also was involved in making salary and budget projections and analyzing the impact of those projections on the overall Department budget as well as calculating potential wage scales.

The Union argued that when the City interviewed applicants for the position, it did not emphasize the confidential nature of the position, the City changed the job description during the hiring process and the job description had much in common with other unit position. Therefore, the position shared a community of interest with the other 135 positions in the AFSCME bargaining unit. But the CERB rejected the argument, noting, “A position that performs confidential duties is statutorily excluded from bargaining notwithstanding any interests it otherwise shares with bargaining unit employees.”

Employers Escape Liability After Contracting Out Bargaining Unit Work Because Impact On Bargaining Unit Is Either Too Speculative Or Not A Mandatory Subject Of Bargaining.

The case of Town of Stoneham and Stoneham Police Association, 41 MLC 16 (July 18, 2014) shows that even when a change causes a relatively small impact, the Employer still has an impact bargaining obligation, but the Employer won the war when the change stuck without any liability to the Town. It was even better news for the Employer in Department of Higher Education, Massachusetts College of Art and Design and AFSCME, (August 25, 2014) because the only impact identified by the Union was a loss in unscheduled overtime, which is not a mandatory subject of bargaining.

Town of Stoneham involved a mandate by the Commonwealth’s 911 Department that went into effect July 1, 2012 that required a municipality to have either all public safety dispatchers certified in Emergency Medical Dispatch (“EMD”) or to provide EMD by contracting out to a certified EMD resource. The Town decided to contract out the EMD function to a company called Action Ambulance.

Prior to June 29, 2012, patrol officers were assigned to be Desk Officers and, along with Civilian Dispatchers, answer incoming calls, including 911 emergency calls. The Desk Officer dispatched Police and the Civilian Dispatcher dispatched Fire Department personnel. When the Desk Officer or Civilian Dispatcher determined that that a 911 call was a medical emergency, they elicited the basic information about the gender, age and medical history of the affected person and then did a conference call with Action Ambulance. Both the Department Dispatcher and Action Ambulance then dispatched the ambulance. While not required to do so, a Desk Officer who had the knowledge to give medical advice also provided first aid and other medical advice to the 911 caller after the ambulance was dispatched but before first responder arrival at the scene (“pre-arrival medical advice”). The pre-arrival medical advice included instruction in CPR or the Heimlich Maneuver.

Prior to June 28, 2012, the Town decided to appoint Action Ambulance as the certified EMD Resource and not to train Desk Officers as certified medical dispatchers, but it did not directly notify the Union of its plans. On June 29, the Department issued the new protocol to Desk Officers and Civilian Dispatchers, including that Action Ambulance taking over the role of providing pre-arrival medical advice. Other than the pre-arrival medical advice, the role of the Desk Officer did not change.

The Union protested the transfer of the Emergency Medical Dispatch calls to Action Ambulance and demanded that the status quo be restored until the Town had bargained. At the Town Administrator’s invitation, the Union President met with him to have a discussion over the matter, but the matter was not resolved.

At the DLR, the Union argued that it lost training opportunities and training-related overtime and other compensation. The Town argued that the Chief’s right of assignment should prevail and, even if there had been a transfer of bargaining unit work, the bargaining unit did not suffer any adverse effects.

The DLR agreed that the Town’s decision to designated Action Ambulance as the certified EMD Resource, including the transfer of pre-medical advice duties, did not have to be bargained because it was a public safety policy decision concerning police officer deployment and it involved the nature and level of services that the Town provided to 911 callers. But the DLR found a there was a violation of 10(a)(5) and, derivatively, 10(a)(1), because the Town had failed to meet its obligation to bargain the impact of the change, which included stopping Desk Officers from offering impromptu voluntary medical advice to 911 callers and depriving them of the opportunity to participate in the statutorily mandated EMD training. The Hearing Officer neither ordered a return to the status quo or money damages, finding that the evidence of economic harm was speculative. She simply ordered that the Town bargain about the impacts of the decision, which may include future training opportunities lost to the bargaining unit.

In Department of Higher Education, Massachusetts College of Art and Design and AFSCME, (August 25, 2014), a bargaining unit consisting of tradespersons protested the Employer’s decision to contract out some remodeling work for a project. But the Contract had a iron clad management rights provision that allowed contracting out as long as it did not involve layoffs. That left the Union with the argument that the Employer failed to bargain over the impacts of the decision. However, the Hearing Officer found that the only impact cited by the Union was unscheduled overtime. Citing Appeals Court precedent that a reduction in employee’s ability to perform unscheduled overtime is not a mandatory subject of bargaining, the Hearing Officer found that the Employer had no impact bargaining obligation.

Employer Required To Impact Bargain Over Elimination Of A Position When It Results In The Loss Of Regularly Scheduled Overtime.

The City did not fare as well in City of Boston and Boston Police Superior Officers Federation, 41 MLC 31 (2014) because it involved regularly scheduled overtime. In May 2010, the City of Boston eliminated the position of Street Sweeping Initiative Supervisor and discontinued the practice of assigning members of the Boston Police Superior Officers Federation overtime during Street Sweeping Initiative season. The Hearing Officer held that theCity did not have to bargain over the decision to eliminate the position, citing to the Supreme Judicial Court decision in City of Boston v. Boston Police Superior Officer Federation that “an assignment or deployment cannot be irrevocable or managers would have no ability to react to changing conditions in arranging the police force into necessary bureaus, units and divisions.” 466 Mass. 2010 (2013).

However, the Hearing Officer found that the City failed to bargain over the impacts of the decision which resulted in the elimination of regularly scheduled overtime prior to implementation. See Town of Tewksbury, 19 MLC 1189 (1992).

With respect to remedy, the Commonwealth Employee Relations Board (CERB) affirmed the Hearing Officer’s decision, ordering the City to restore the economic equivalent of status quo from the date the Union prospectively demanded impact bargaining until the issue is resolved or impasse is reached. The City was required to “pay employees affected by the decision to an amount equivalent to the additional overtime compensation they formerly received as SSI Supervisor.” The CERB rejected the Union’s argument for a make-whole remedy, stating that “impact bargaining could only ameliorate but not substantially change the effects of the City’s decision to eliminate the SSI supervisor on overtime.”

Arbitrator Upholds Town’s Right to Choose Most Qualified Candidate for Supervisory Position.

In Town of Hull and AFSCME, Council 93, 41 MLC 59 (2014), the Arbitrator upheld the Town’s right to hire the most qualified candidate for the supervisory position of working foreman.

The Town appointed Gardner who was not the most senior applicant as working foreman, after considering the qualifications and experience of all applicants. The arbitrator denied the grievance based on the express contract language.

The collective bargaining agreement contained a general provision that the “employer will award the position to the most senior applicant qualified.” The contract express stated that this language “shall not apply to the Senior Clerk or Working Foreman positions, which shall be awarded solely on the basis of qualifications and experience as determined by the Town Manager and DPW Director.”

The Arbitrator noted that “it is a well-established rule of contract interpretation that general provisions are restricted by more specific provisions.” The arbitrator held that the Town Manager had the exclusive discretion to weigh qualifications and experience and “ignore seniority if they so choose.”

Arbitrator Upholds Discharge of Police Officer for Firing Weapon Recklessly.

In Town of Agawam and Agawam Police Patrolmen’s Association, 41 MLC 75 (September 18, 2014), Arbitrator Timothy Hatfield upheld the dismissal of an eleven year employee of the police department for recklessly discharging a weapon and shooting a civilian in the face.

On May 5, 2012, Police Officer Petrangelo and Officer Forgues responded to a 911 call at 4:30 a.m. from a resident (Miles) reporting that someone had broken into her apartment. Two police officers responded to the call and observed that one of the basement windows was broken and the other window open.

Upon entering the building, Petrangelo claimed she heard noises in the apartment and a possible altercation. Petrangelo knocked on Miles’ door and ordered the door opened. Petrangelo claimed that the door to Miles’ apartment opened twice in a brief amount of time before she inadvertently fired her weapon. Miles denied that the door opened more than once and Forgues, who was standing on the steps at the top of the landing, did not observe the door open. The Arbitrator found that there was no ongoing dispute when er Petrangelo knocked on the door and that the apartment door opened at the same time Petrnagelo fired the weapon. .

While the Arbitrator determined that it was an “accidental shooting”, he ruled that it did not absolve Petrangelo of the consequences because she failed to follow Town’s policies regarding the use of deadly force in a non-life threatening situation. There was no evidence of an altercation or any evidence of any injuries to Miles, other than the gunshot wound to her face. He noted her “prematurely placing her finger on the trigger and subsequently pulling the trigger” and that the officer’s admitted failure to follow basic firearm safety guidelines, which she learned in her police academy training, called into question her ability to safely perform her duties.

The Arbitrator rejected the Union’s disparate treatment argument, finding that a police officer who fired a weapon during a training incident was an accident and that incident would not have happened but for the negligence of the instructor standing in front of the firing line. The other case relied upon by the Union involved an officer who discharged his firearm while attempting to holster his new gun in the wrong holster. There is no evidence that any Town policy had been violated or that the officer acted in any manner that would warrant discipline.

The Arbitrator rejected the Union’s argument that re-training, not dismissal, was the appropriate outcome, finding that the Town has no obligation to re-train the officer as the department had lost confidence that the officer will respond in an appropriate manner to stressful situations.