Recent Decisions From The Massachusetts Labor Relations Commision
The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released a batch of decisions from February 15 and March 15, 2007. For your consideration, we provide the following brief summary of the key decisions.
Board of Higher Education & AFCSME Council 93 (CAS-06-3631)
In this case, the Labor Relations Commission classifies Administrative Assistants to the Vice President of Student Affairs and the Vice President as "confidential employees" who are excluded from a bargaining unit of clerical employees. One assistant has access to the executive’s correspondence and phone calls regarding personnel decisions, including promotions, warning letters, requests for resignations, and the performance evaluations of department directors. She also examines personnel files and conducts research into personnel matters at executive’s request.
The other assistant is "involved in monthly budget meetings and directly handles the entry of budget numbers for the College’s operations and its budgetary planning," and has access to bank statements and documents. This involvement makes her "aware of the College’s budgetary discussions before final decisions or recommendations are publicized, including plans for layoffs or retrenchment of positions, assessment of departmental budget requests, funding for collective bargaining agreements, and the feasibility of proposed new positions." As a result, the Commission decides that this assistant, too, has significant access and exposure to confidential information concerning the impact of budgetary issues on labor relations matters.
In this case, a laid off employee charged a union, NAGE, with violating its duty of fair representation for the manner in which she was bypassed during two recalls in 2002 and 2003. The Commission dismissed the DFR charge as untimely because the primary allegations concern activity in 2002 which was beyond six-month statute of limitations period. The Commission indicates that it would consider these allegations if they were connected to activity that occurred six months prior to the filing of the charge. It suggests evidence that might have saved the charge: 1) when the second recall occurred; 2) the date on which the charging party learned about that recall; 3) when charging party’s representative contacted the Union to ascertain why DOR had not recalled charging party for the second time; 4) to whom the representative spoke at the Union; and 5) the details of his discussions with the Union.
Town of Weymouth/IAFF (MUP-05-4403 & MUPL-05-4516):
In these related cases, the Commission dismisses charges by a firefighter against town and union. The Commission found no evidence that involuntary transfer of firefighter over less senior employees constituted unlawful retaliation and intimidation as there was no evidence the employee engaged in protected, concerted activity, the town was aware of this activity, or the transfer was motivated by a desire to penalize or discourage protected activity.
The Commission also found that the union’s refusal to process the firefighter’s grievance did not violate its duty of fair representation. In the decision, the Commission added language that should serve as guidance for union decisionmaking and as boilerplate defense against baseless DFR charges:
"Rather, the information demonstrates that the Union considered and evaluated the merits of the Charging Party’s grievance, decided not to process the grievance on the Charging Party’s behalf, notified the Charging Party of its decision, and informed the Charging Party that he could process the grievance on his own up to the point of arbitration. Further, the Union considered the seniority argument proffered by the Charging Party and based its conclusion on its interpretation of the Agreement."
State Police & SPAM (SUP-04-5104)
Here, the Commission refused to reconsider its earlier dismissal of an unfair labor practice concerning a charge of illegal transfer of shared bargaining unit work. The Commission held that its decision in a related case did not entitle the union to victory here. A previous ruling that the state police department illegally withheld information concerning shared work does not, without more, mean that employer committed an unfair labor practice on unilaterally changing a condition of employment.
Mass Turnpike Authority & USWA (UPL-05-169):
In another victory for unions, the Commission affirmed its previous dismissal of a charge against union which concerned its behavior during bargaining about part of the bargaining unit while the parties awaited a decision on the unit’s appropriateness.
BHE & AFSCME Council 93 (SUP-05-5177)
In this case, the Commission found that the Union failed to show that the parties reached an oral agreement about an inclement weather policy for non-essential personnel. As part of its ruling about the absence of an oral agreement, the Commission noted that there was no evidence that the Union informed its members about the existence of an alleged oral agreement.
Worcester & NAGE (MUP-05-4542).
Here, the Commission concludes that the employer lawfully bargained to impasse on dredger reorganization and therefore was entitled to unilaterally change a condition of employment. The decision notes that the union failed to act aggressively enough to indicate that further bargaining could be productive
"Even though the Union asserts that it was ‘prepared to engage in further negotiations,’ it did not request that the Employer reopen negotiations at any point following the exchange of final offers on April 5, 2005. Additionally, there was no appreciable lapse in time between the last negotiation and the Employer’s declaration of impasse on April 7, 2005. Finally, the Employer’s letter dated April 7, 2005 was a ‘clearly defined and communicated position on impasse,’ and the Union’s failure to rebut that position indicates that the parties had reached ‘a contemporaneous understanding of the state of negotiations.’ HECC, 23 MLC 16, 19 (1996). This ‘state of negotiations’ in the instant case was an impasse."