CITY OF BOSTON/DEER ISLAND HOUSE OF CORRECTION --

CITY OF BOSTON/DEER ISLAND HOUSE OF CORRECTION and AFSCME, COUNCIL 93, LOCAL 419, Case No. MUP-7322, December 24, 1992, 19 MLC 1613.

Driscoll,[1] Acting Chairperson, and Hayward and Dalton, Commissioners

Statement of the Case

On February 23, 1989, the American Federation of State, County and Municipal Employees, Council 93, Local 419 (Union) filed a charge with the Labor Relations Commission (Commission) alleging that the City of Boston/Deer Island House of Corrections (City or Employer) had engaged in prohibited practices within the meaning of Sections 10(a)(1), (2), (3), (4) and (5) of Massachusetts General Laws, Chapter 150E (the Law). Following an investigation, at which the Union withdrew its allegation that the City had violated Section 10(a)(4) of the Law, the Commission issued a Complaint of Prohibited Practice on January 26, 1990. In its Complaint, the Commission alleged that the City had violated Sections 10(a)(2), (5) and, derivatively 10(a)(1), of the Law in five separate circumstances. The Commission dismissed all remaining allegations in the Union's charge.

At a pre-hearing settlement conference, the parties resolved without hearing three of the five counts alleged in the Complaint, as a result of which Counts I, II and III of the Complaint were dismissed. An evidentiary hearing was conducted on May 30, May 31 and December 19, 1990, before hearing officer Anne M. DeSouza, Esq. on the remaining allegations in the Complaint that the City had violated the Law by unilaterally terminating the past practices of: (a) allowing the Union president to address new unit employees during their first week of training; and (b) allowing the Union president to be released from work to chair Union membership meetings. At the hearing, both parties had full opportunity to present evidence and to cross examine witnesses.

Subsequent to the hearing, the parties reached resolution on the issue concerning release time for the Union president to attend Union meetings and requested that Count V of the Complaint be dismissed. The hearing officer therefore dismissed Count V.

Pursuant to 456 CMR 13.02(1) the Commission re-designated the case for decision by the Commission in the first instance. The hearing officer therefore issued recommended findings of fact on November 5, 1992. Neither the City nor the Union filed objections to the recommended findings of fact and we therefore adopt them in their entirety.

The City is a public employer within the meaning of Section 1 of the Law and the Union is an employee organization within the meaning of Section 1 of the Law. The Commission's jurisdiction is not in dispute.

The Union represents a bargaining unit of security guards employed by the City at the Deer Island House of Corrections.[2] Since at least 1975 newly hired security guards at Deer Island receive an on-the-job orientation when they begin their employment. In the late seventies and early eighties, the orientation lasted a few days. Beginning around 1985 and continuing to date, the orientation course for new recruits is held for one to two weeks, 8 a.m to 4 p.m. The course is scheduled and conducted by a training officer who is a member of the security guard bargaining unit, but the program is reviewed and approved by non-unit administrative personnel. The recruits are paid during the orientation course.

Between 1979 and 1988[3], a Union representative was regularly allowed between 30 minutes and 1 hour during the orientation program in which to address the new recruits and explain the Union's role, identify its personnel and describe its procedures, such as the grievance process. New recruits were given an opportunity to join the Union at this time if they so desired. The Union president or vice president usually addressed the new recruits at this time, although the training officer conducted this portion of the orientation on occasion when a Union representative was unavailable. This Union component of the orientation program was held during work hours and the speaker was paid during his presentation.

During or about October 1988, the Employer refused to allow a Union representative to address an orientation class of new recruits. The Union has not been allowed to address new recruits during orientation since that time. The Union protested and demanded to bargain over the change by letter dated October 27, 1988. The Employer did not respond to the Union's demand and did not provide the Union with an opportunity to bargain over the matter. The Employer denies that Union access to new unit employees is a mandatory subject of bargaining. The Union filed the instant charge of prohibited practice on February 23, 1989.

A public employer violates Sections 10(a)(1) and (5) of the Law when it unilaterally changes a condition of employment involving a mandatory subject of bargaining without giving the exclusive bargaining representative notice and an opportunity to bargain about the change. Commonwealth of Massachusetts v. Labor Relations Commission, 404 Mass. 124, 127 (1989).

A unilateral change in a condition of employment constitutes a failure to bargain in good faith in violation of Section 10 (a)(5) of the Law. Derivatively, it interferes with the employees' rights in violation of Section 10(a)(1). See Town of Billerica, 8 MLC 1957, 1963 (1982), and Boston School Committee, 3 MLC 1603, 1611 (1977). An employer wishing to make a change in a mandatory subject of bargaining must first discuss the matter with the exclusive bargaining representative and either an agreement or impasse must be reached prior to implementing the change. Town of Marblehead, 1 MLC 1140, 1145 (1974).

Beginning with the decision in Town of North Andover, 1 MLC 1103, 1106 (1974), the Commission has held that the legal standard by which it determines whether Section 10(a)(5) has been violated contains three elements: 1) unilateral action by the employer, 2) which causes a change in the pre-existing practice or condition of employment, and 3) which affects a mandatory subject of bargaining.

There is no dispute in the present case that the City unilaterally, without bargaining, discontinued the pre-existing practice. The only issue for the Commission to decide is whether the practice of having a paid Union representative address recruits during working hours is a mandatory subject of bargaining.

Whether a matter is mandatory or not is analyzed through the application of a balancing test first set out in Town of Danvers, 3 MLC 1559, 1577 (1977):

[T]he Commission balances the interest of employees in bargaining over a particular subject with the interest of the public employer in maintaining its managerial prerogatives...We will consider such factors as the degree to which the topic has direct impact on terms and conditions of employment; whether the issue concerns a core governmental decision or whether it is far removed from terms and conditions of employment.

See also, Wakefield School Committee, 19 MLC 1355, 1358 (1992), citing City of Haverhill, 8 MLC 1690, 1695-96 (1981), Boston Housing Authority, 11 MLC 1189, 1195 (1984), and Town of Marblehead, supra, where the Commission found that the Town violated the law when it unilaterally, without prior notice or discussion with the union, discontinued the past practice of allowing union materials to be in the fire station and disallowed the past practice of holding union meetings at the fire station.

Applying the balancing test to the present case, we begin with the statutory right of public employees to organize and bargain collectively. M.G.L. c.150E Section 2. To exercise this right, employees have an interest in insuring that a strong, healthy bargaining representative exists. Recruitment of new members is important to the health of any employee organization. The practice of allowing the Union's representative to address new recruits during their orientation program and allowing new recruits to join the Union at that time was not only a benefit to the Union but also constituted a benefit to employees who were provided an opportunity to learn about the Union's internal procedures and their contractual rights. Therefore, the practice had a direct impact on employees' terms or conditions of employment as well. By prohibiting the Union from addressing new recruits, the City has negatively affected the Union's ability to recruit new members and the employees' ability to exercise their right of self- organization.

The City advanced no argument concerning its managerial interest in prohibiting a Union representative from addressing the new recruits. It did not argue that this issue involved a core governmental decision. It did not demonstrate some substantive matter which should be weighed on the City's side of the balancing test.

Therefore, we find that the City's unilateral cessation of the past practice of allowing a Union representative to address new employees during their training program affected a mandatory subject of bargaining and violated Section 10(a)(5)and (1) of the Law.

The Commission orders that the City of Boston shall:

1.	Cease and desist from:
	a.	Unilaterally changing either wages, hours or terms and conditions of employment without giving the union adequate notice and an opportunity to bargain concerning the proposed change
	b.	Otherwise interfering with, restraining or coercing any employee in the exercise of any right guaranteed under the Law.
2.	Take the following affirmative action to effectuate the purposes of the Law:
	a.	Immediately restore the past practice of allowing a Union representative to address new recruits during the recruits' training program, said address to be during work hours with the union representative being paid.
	b.	Post immediately in conspicuous places where notices are usually posted for employees, and maintain for thirty days thereafter the attached Notice to Employees.
	c.	Notify the Commission within thirty (30) days from receipt of this Decision and Order of the steps taken to comply herewith

SO ORDERED.

After a hearing, the Massachusetts Labor Relations Commission has decided that the City of Boston /Deer Island House of Correction has violated Sections 10(a)(5) and (1) of General Laws Chapter 150E (the Law) by unilaterally changing conditions of employment by discontinuing the past practice of allowing a representative of AFSCME Council 93, Local 419 (Union) to address new recruits at the recruits' training program.

The Law gives public employees the right of self-organization, the right to form, join or assist any employee organization for collective bargaining purposes, and the right to act in concert for collective bargaining or mutual aid or protection.

We will allow a representative from the Union to address recruits at the recruits' training program.

We will not unilaterally change the wages, hours, or terms and conditions of employment without giving the union adequate notice and an opportunity to bargain about the proposed change.

We will not interfere, restrain or coerce employees in their exercise of rights guaranteed by Law.

______________________________

for Deer Island House of Correction

[1] Acting Chairperson Driscoll has been designated to act by Chairperson Walsh pursuant to the provisions of M.G.L.c.30, Section 6, with the approval of the Governor while Chairperson Walsh takes a temporary leave of absence.

[2] Since the date of the hearing, the administration of the Deer Island House of Corrections has been changed and the City is no longer the employer of the bargaining unit employees. The hearing officer determined the facts as demonstrated at the hearing in 1990.

[3] The earliest evidence of this practice was the testimony of ex-training officer Tony Paige who remembered being addressed by a Union representative during his orientation in 1979. It was undisputed that Union representatives were regularly part of the orientation program until 1987. The City contended at the hearing that a new orientation program was put into effect in late 1986 or early 1987 and that Union representatives were no longer allowed to be part of the program as of that date. The Union contended that the practice continued until 1988. The hearing officer found that the Union was allowed to address new recruits during orientation until sometime in 1988. That finding has not been challenged and we adopt it.