Taking a page from the NLRB’s playbook, the Massachusetts Department of Labor Relations (DLR) recently added another technique to their skill set: the “Unilateral Settlement.”  In a case involving the City of Newton and the Newton Municipal Employees Association, MUP-09-5694 (June 26, 2012) (here), the DLR, in the first known instance of which we are aware, approved a ‘settlement’ without the express approval on the record of one of the parties.  (It is not clear whether or to what extent the ‘non-approving’ party may have informally agreed behind the scenes.)

The settlement includes a financial award and a posting.  The posting does not acknowledge liability, but sets out the affirmative action the employer will take and contains a statement by the employer agreeing not to violate Chapter 150E.

According to the Commission’s decision, the Unilateral Settlement procedure was as follows:  (1) after a Complaint issued, the City and the Union attempted to mediate the Union’s unfair labor practice charge, to no avail; (2) the City then presented the DLR with the last offer it had given the Union and asked the DLR to accept the proposal and dismiss the case; (3) the DLR then reviewed the proposal and determined that it “remedie[d] the allegations in the Complaint” and therefore “further proceedings … would not effectuate the purposes of the Law; and (4) the DLR then withdrew the Complaint.

The DLR found support for this procedure in M.G.L. c. 150E, s. 11(b), which permits the DLR to dismiss charges when further proceedings would not effectuate the purposes of the Law, and 456 CMR 15.04(1), which allows the DLR to withdraw Complaints previously issued when a charging party does not make reasonable efforts to resolve a matter.

It is not clear to what extent the DLR will be utilizing this new procedure, but it appears to be a sign that the Department’s already-intensive focus on mediation is not reducing the caseload as much as DLR officials would like.  The new practice raises a couple of questions: (1) How different may the settlement proposal be from what the charging party would obtain if it went forward and won?  It is not clear from the Newton case materials whether the financial figure, for example, was discounted in any way.  (2) Also, as mentioned above, how much input, if any, do charging parties have into these settlements?  Are these settlements to be imposed on unwilling participants, or will there be ‘behind the scenes’ discussions to assure at least a modicum of acquiescence?  (3) What are the appeal rights of charging parties, if any, after the DLR withdraws a complaint pursuant to a “Unilateral Settlement”?

These and other issues will surely be answered in the coming months and years.  We will try to keep you informed of new developments as they arise.

A judge of the Plymouth Superior Court has upheld an arbitration award in a matter involving the Marshfield Education Association, MTA/NEA, and the Marshfield School Committee, which ordered the School Committee to reinstate a teacher who had been terminated for lacking a proper license. (A copy of the decision is here.) The case was briefed and argued at Superior Court by John M. Becker, an attorney with Sandulli Grace, P.C.

The case involves special education teacher Gerard O’Sullivan, who struggled for several years to obtain the proper approvals that would allow him to obtain licensure. At the final stages, he was thwarted by school administration officials, whose misunderstanding of the requirements caused delays that ultimately caused him his job. Most frustrating was the School Department’s insistence that classroom experience could not count for any of the credits required for the license, a stance that was directly contradicted by the state’s regulations. Once Mr. O’Sullivan realized he was not going to have his license in time for the new school year, and the School Department’s attempt to obtain a waiver had failed, he asked for a leave of absence so he could get his license, but even that request was denied, and he lost his job.

The arbitrator saw through the Department’s failures and determined that Mr. O’Sullivan should not have been fired, that he should be reinstated and granted the one-year leave of absence to obtain his license. (The arbitrator pointed out that the School Department had actually employed Mr. Sullivan without a license for a full year when a waiver request had been delayed, so it rejected the idea that he was ‘automatically’ fired once his waiver expired.)

Despite the courts’ deference to labor arbitrators, the School Committee challenged the arbitration award in court, alleging that it forced the School Committee to violate state law and public policy by requiring it to employ a teacher without a license. In a 17-page decision issued on September 18, 2012, Judge Robert C. Cosgrove ruled in the Union’s favor on all the School Committee’s arguments. He found that by reinstating Mr. O’Sullivan to a non-teaching, leave of absence position, the arbitrator was not violating any law requiring teachers to be licensed. He also found that, even though there is a public policy requiring teachers to be licensed, this arbitration award did not violate the policy because it was designed to help the teacher obtain his license without requiring him to teach any students while unlicensed.

The School Committee filed a notice of appeal of the Superior Court’s decision last week, so the matter is not over yet. As usual, employers seem to have a problem with the concept of “final and binding” arbitration. Stay tuned to this site for further developments.