Massachusetts Labor Relations Reporter
Management Commentary
By
Leo J. Peloquin, Esq. and Joshua R. Coleman, Esq.
Collins, Loughran & Peloquin, P.C.
Employers must bargain over decision to install GPS in vehicles
In what seems to be a departure from prior DLR decisions, the Hearing Officer in City of Springfield v. AFSCME, Local 93, 41 MLC 130 (H.O., Nov. 25, 2014) ruled that the City had to bargain over the decision and impact of the decision to install Global Positioning Systems tracking devices (GPS) in City vehicles. The City has appealed this decision to the Commonwealth Employee Relations Board.
In 2010, the City first acquired four GPS for use in DPW vehicles. If a supervisor wanted the driver’s vehicle data, the supervisor would informally request the information from the driver. In November 2012, the City installed GPS in other vehicles for experimental purposes only. After that period elapsed, the City began electronically monitoring GPS from a remote location which allowed them to track employees’ in “real time” which included their location, idle time, distance driven, number of stops and speeding events.
Prior to the installation of GPS, the City did not have any capacity to monitor vehicle data in real time location, nor did the City require Union members to report their vehicle data.
The Hearing Officer rejected the City’s argument that it has always monitored DPW vehicles. Further, the Hearing Officer gave no weight to a pre-hearing dismissal in City of Worcester, MUP-05-4409 (Sept. 5, 2007), where the Union failed to show how requiring bargaining unit member to carry GPS phones while on duty altered their conditions of employment. The Hearing Officer also found the decision in Duxbury School Committee, 25 MLC 22 (1998) distinguishable, because the installation of surveillance cameras to monitor employee’s arrival and departure times, was determined to be simply an update in technology from punching an electronic time clock. The DLR found the surveillance cameras were simply a “more efficient and dependable means of enforcing existing work rules.”
The Hearing Officer ruled that, even if the installation of GPS devices was for experimental or temporary purposes, there was still a bargaining obligation as it affected the terms and conditions of employment and because the City was instituting a new way of evaluating productivity and performance.
The DLR ordered the City to cease and desist from implementing GPS without first satisfying its bargaining obligation and to restore the prior practice of requiring unit members to provide DPW vehicle reports via radio communication.
City not obligated to bargain when it uses an assessment center component for promotions even though an assessment center was last used 8 years earlier and not used for recent promotions.
In City of Boston and Police Superior Officers Federation (BPSOF), Boston Police Detectives Benevolent Society (“BPDBS”) and Boston Police Patrolmen’s Association (“BPPA”), 41 MLC 119 (November 7, 2014), the primary issue was whether the City had to bargain with its various police unions to re-introduce an assessment center component into promotional decisions that had last been used in 2002 and, prior to that, in 1992. In 2005 and 2008, promotions were determined based on a multiple-choice examination
(80 %) and education/experience (20%). The last time an assessment center had used was in 1992 and 2002 and the breakdown was: 40 points for the written test, 40 points for the assessment center and 20 points for education and experience.
In July, 2010, the City notified the BPPA that it intended to enter into a delegation agreement with the Commonwealth’s Human Resources Division (“HRD”) under which the City would establish a promotional process for the ranks of sergeant, lieutenant and captain. In September 2010, the BPPA demanded that the City bargain over the promotional process in successor contract bargaining. The City would not agree to bargain. The City appropriated $2.2 million for, and moved forward with, the development of a new testing process. This included the hiring of a consultant for the development and administration of Police Department promotional exams that might include a written knowledge exam, assessment center, job related problem analysis, officer interviews, in basket scenarios, oral boards and emotional intelligence evaluations.
Meanwhile, the bargaining dispute continued. Over the City’s objection that it was premature for the promotion process to be an issue in interest arbitration because the City had not yet formulated a proposal, the BPPA and the BPSOF convinced the JLMC to certify the issue. In June, 2013, the BPPA gave a promotional process presentation to the JLMC arbitration panel, including requesting that the City be ordered to conduct the standard civil service test that had been given in 2005 and 2008. The City again argued that it was premature to have the panel decide the issue. In the award issued in September 2013, the BPPA’s proposal for the promotional process was denied.
The City selected the consultant to develop the promotional process. As part of the development of a new process, the consultant did a job analysis that consisted of surveys, individual interviews and panel discussions. The City asked or ordered participation from police officers. The Unions asked for a copy of the consultant report, which the City declined to provide until after HRD approved the promotional process. In January, 2014, about two months after it received the consultant’s report, the City gave it to the Unions, with redactions by the consultant to preserve the integrity of the promotional exam. The Union also asked for information about any allegations of, and investigations into allegations of, misconduct or improprieties pertaining to exam processes from 2000 on as well as some specific information about some 2013 promotions. The City did not respond.
On December 26. 2013, the City announced that HRD had approved the new promotional process, which included an assessment center. In the new process, officers were ranked based on an exam score, assessment center and education/experience. The percentages for each part varied depending on the rank being filled; for example, for sergeant applicants, it was 40% for the written exam, 40 % for the assessment center(16% by written work sample and 24% by oral board) and 20% for education and experience.
The City never acknowledged a bargaining obligation with respect to the new promotional process and it did not provide the Unions with notice and an opportunity to bargain about it.
The Unions filed a complaint alleging that the City had unilaterally changed the promotional process. The Unions’ argument was that the City had changed a “past practice,” dating back to 2005, of basing promotions only on a multiple-choice examination (80 %) and education/experiences (20%), the so called “80/20” model. The Union cited DLR decisions that had found seven years was long enough to establish a practice. But the CERB rejected the argument, pointing out that the cases cited did not involve infrequent or sporadic activity like promotions. The CERB also noted that neither the DLR or the NLRB has ever endorsed an artificial or arbitrary length of time for a practice to become a binding term or condition of employment. Rather, past practice was determined on a case by case basis:
“Ignoring the exams prior to 2005 would impose an arbitrary time frame on our analysis and would require that relevant evidence regarding those earlier exams be ignored. Accordingly, we must consider the exams that occurred prior to 2005. Further, it is evident that in cases where there was a sporadic action, the action had to be consistently followed, and without any deviance, in order for it to be considered a binding past practice….Given the consistent body of precedent….it would be inappropriate for us to only consider the years in which the City used the 80/20 practice and find that it constitutes a condition of employment…Therefore, because the City used an assessment center, in addition to the written exam, in 2002 and 1992, the Unions have failed to establish a binding 80/20 practice.”
The CERB did find a 10(a)(5) violation by the City because it had failed to provide some of the information requested and/or unreasonably delayed giving the Unions other information. The CERB rejected the City’s argument that it did not have to provide the information because it did not have to bargain over the promotional process. The CERB noted that information must be provided if it is relevant and reasonably necessary for a Union to perform its duties, including information that may explain an employer’s proposals or course of action and assist a Union in formulating its own proposals and counterproposals.
The BPSOF contended that the City had failing to participate in good faith in the mediation and fact finding procedures in c. 150E sections 8 and 9 – a 10(a))(6) violation—because it implemented the new promotional procedure while the issue was pending at the JLMC after being certified for arbitration. The CERB rejected the charge, citing Town of Stoughton, 19 MLC 1149, 1156-1157 (1992), where the Town had implemented a light duty proposal while the parties were engaged in successor Contract negotiations and a petition was pending at the JLMC. The CERB noted that the rules are different between the JLMC statute and Section 9 proceedings and that there was no evidence that the City had refused to participate in any mediation or arbitration sessions.
However, the CERB found a 10(a)(6) violation on the separate basis that the City had delayed providing relevant and reasonably necessary information to the BPSOF regarding promotion procedures. “
Employer can transfer bargaining unit work outside of the bargaining unit at one facility without bargaining where it does not result in measurable change in how work was shared across all facilities
In Commonwealth of Massachusetts Department of Correction and Massachusetts Correction Officers Federated Union, 41 MLC 136, (HO November 25, 2014), the dispute was whether the Employer had to bargain when it decided to have an employee from the correctional program officers bargaining unit (“AFSCME Unit 8”) perform the duties of Assistant Assignment Officer at Souza-Baranowski Correctional Center (“SBCC”). For many years, a member of the statewide bargaining unit of correction officers, sergeants and lieutenants (“MCOU Unit 4”) had been assigned to perform those duties, but only on an as needed basis. There was a long history of assigning MCOFU members to the position of Assignment Officer. MCOFU argued that, given this history, it was an illegal transfer of bargaining unit work.
The Hearing Officer decided the case by considering the pattern of assignment of the disputed work at all of the Department of Corrections (DOC) 14 facilities, not just what had happened at the SBCC. At three of the correctional facilities, the Assignment Officer and Assistant Assignment Officer, if needed, came from the ranks of AFSCME Unit 8. At 14 other facilities, MCOFU members were performing the duties of Assignment Officer. Using this analysis, the Hearing Officer found that there was no change in the pattern based on having an AFSCME member do the assistant assignment officer work at the SBCC and, therefore, no bargaining obligation:
“This is because while the Employer only assigned [MCOFU] unit members to exclusively perform the duties of the Assistant Assignment Officer position at the SBCC, on an as needed basis, it contemporaneously and exclusively assigned non-unit members to perform those same duties at the Pondville Correctional Center and South Middlesex Correctional Center. Based on the record, I find that the Union failed to show that the Employer’s change [at the SBCC] amounted to anything more than an incidental variation in job assignments between unit and non-unit employees because the disputed work is shared with non-unit members in other facilities at the DOC; thus obviating the Employer’s need to bargain.”
The Hearing Officer also rejected the Union’s argument that the change was a calculated displacement of unit work, because the transfer at the SBCC meant a decrease there in the disputed work performed by MCOFU (1 to 0 members performing the work) and doubled the amount of the work assigned to the AFSCME unit (0 to 1). To make a calculated displacement case, the Union had to show that there was an ascertainable percentage of that work performed by MCOFU on a system wide basis. The Hearing Officer ruled that the Union had not done so, because all of the assignment officer work had been assigned on an “as needed” basis.
Union told there is no binding “past practice” where practice conflicts with plain contract language
Every Employer has been confronted with a Union arguing that the Employer must continue to provide some type of benefit or working condition that is more generous than called for by the parties’ CBA.
A recent example of this occurred in Town of Athol and New England Police Benevolent Association, 41 MLC 141 (December 12, 2014), where the Union argued that the Town was obligated to include Quinn Bill education incentive payments as part of the pay called for under M.G.L. c. 41, section 111F (“leave without loss of pay”), the injured leave statute. While this demand conflicted with a provision in the parties’ CBA that expressly excluded “education incentive pay” from the 111F wage indemnity calculation, the Town had consistently done the opposite.
The Union argued that the language was ambiguous and, therefore, past practice should determine its meaning. According to the Union, “education incentive pay” was different from Quinn Bill payments under c. 41, section 108L in that Quinn Bill payments were a statutory mandate. The Union contended that if the parties had intended to exclude “Quinn Bill” payments from 41-111F wage indemnity, they would have included “Quinn Bill” in the list of exclusionary language. The Town argued that the language was plain and clear and noted that c. 41 section 111F is a statute that can be modified in collective bargaining pursuant to the provisions of c. 150E, section 7d, i.e., the parties had agreed to define “leave without loss of pay” under 111F to exclude educational incentive pay.
The Arbitrator rejected the Union’s argument, noting that there was no reference in the CBA to any other type of educational incentive pay, so the parties had to be referring to the Quinn Bill payments, particularly where the words “education” and “incentive” are found in the Quinn Bill statute, M.G.L. c. 41, section 108L.
To the Union’s argument that not including Quinn Bill payments conflicted with 41-108L, which is not a statute that could be modified in bargaining under section 7d, the Arbitrator responded that there was no material conflict with 41-108L, because the statute was silent with respect to requiring a Town to pay educational incentive while an officer was on injured leave.
Town Manager taken to task for “critical” comments to Union President for not meeting with him to settle dispute prior to in-person investigation.
Employers who believe that the rules differ for the employer and the Union about what can be said with impunity in a labor dispute will, unfortunately, find support for this in Town of Athol and Permanent Athol Firefighters Association, Local 1751, 41 MLC 166 (H.O. December 23, 2014).
The underlying charge was that the Town had failed to provide information to which the Union was entitled related to a meeting with a probationary employee. At the in-person investigation, the Town Manager “criticized” the Union president for not meeting with him to try and settle the matter prior to the in-person investigation and, therefore, “wasting his day off.”
The Town admitted all of this and waived the right to a hearing so it was no surprise that the Hearing Officer found a 10(a)(5) and 10(a)(1) violation on the information request part of the case. But, the Hearing Officer also then found a separate 10(a)(1) violation based on the Town Manager’s comments, stating that they had interfered, restrained or coerced the Union President in the exercise of his rights.
The Hearing Officer cited a 1989 decision, Groton-Dunstable Regional School Committee, 15 MLC 1551, MUP-6478 (March 20, 1989) for the proposition that “…expressions of anger, criticism, or ridicule directed to employees’ protected activities constitute interference, restraint and/or coercion of employees.” That case found a violation when the employer admonished an employee for choosing not to discuss the merits of a grievance with the employer before moving it to step 3 of the grievance procedure.
The Town Manager’s comment seems mild given what is often said in the back and forth of labor disputes. And, it is hard to imagine that a Union president would be taken to task by the DLR for making similar comments to a Town Manager. The record does not make clear whether the Union had tried to settle the dispute with the Town, prior to filing the charge. If not, Employers will understand the Town Manager’s frustration, particularly since the DLR “charge” forms have a box where the Union is supposed to indicate that it had tried to settle the matter. See 456 CMR 15.04(1) (“The Division may decline to issue a complaint… unless it is satisfied that the charging party has made reasonable effort to resolve the matter.”) Too often, a Union checks this box off, even where no such effort has been made, and the DLR still issues a complaint.
Arbitrator upholds discharge of fire lieutenant who not only reported to work under the influence of alcohol but then defied an order not to drive himself home.
In Town of Holden and Holden Professional Firefighters Association, 41 MLC 168 (Dec. 29, 2014), Arbitrator Hatfield upheld the discharge of a fire lieutenant for reporting to work and remaining on duty under the influence of alcohol. The Arbitrator also found that he violated an order of a superior officer to not drive his personal vehicle after being relieved from duty.
On May 9, 2013, the lieutenant (Fitzgerald; the grievant) admitted that he had three hard liquor drinks prior to reporting to work. While on duty, another lieutenant (Chapin) observed that the grievant’s words were slurred, something which no other firefighters (fellow Union members) acknowledged. Chapin implemented the Department’s reasonable suspicion procedures and conveyed to the grievant that he believed he was under the influence. In response, the grievant continued to slur his words while denying he had been drinking. Two other officers also independently observed the grievant. Chapin requested that the grievant take a breathalyzer test, which he refused. After he refused the test, Chapin ordered him not to drive his personal vehicle home, but he did so anyway. Chapin called the police, the grievant was pulled over and arrested for OUI. He was found not guilty at his criminal trial.
The Arbitrator rejected the Union’s argument that the fact the grievant was acquitted of driving under the influence demonstrated there was not just cause to dismiss him, noting that, “the standard of proof used by the District Court in a criminal proceeding is vastly different than the standard of proof dictated by the collective bargaining agreement for disciplinary actions.” The Arbitrator pointed out that the grievant was not charged solely with being arrested for OUI, he was charged with several violations of the Department’s rules and regulations. The Arbitrator found, by a preponderance of the evidence, that there was just cause to dismiss the grievant for reporting to work under the influence and insubordination.
