TOWN OF DEDHAM --

TOWN OF DEDHAM and DEDHAM POLICE PATROLMEN'S ASSOCIATION, Case No. MUP-8091, June 15, 1994, 21 MLC 1014.

The Dedham Police Patrolmen's Association (Union) filed a Charge of Prohibited Practice with the Labor Relations Commission (Commission) on September 17, 1990, alleging that the Town of Dedham (Town) had engaged in prohibited practices within the meaning of Section 10(a)(5) of Massachusetts General Laws, Chapter 150E (the Law).

The Commission investigated the Union's charge and issued a Complaint of Prohibited Practice on June 21, 1991, alleging that the Town had violated Sections 10(a)(5) and (1) of the Law by failing to bargain in good faith with the Union before entering into a Massachusetts Commission Against Discrimination (MCAD) Consent Order providing that the Town would seek a Civil Service appointment date for Cathy Doherty (Doherty) retroactive to September 3, 1987, and then implementing the terms of the Consent Order.

On January 28, 1992, Doherty filed a Motion to Intervene with the Commission. At the February 3, 1992 hearing, there being no objection from the Town or the Union, the Hearing Officer allowed Doherty's Motion to Intervene. At the outset of the hearing, Doherty filed a Motion to Dismiss the Complaint for lack of jurisdiction. The Town assented to the Motion, and the Union opposed it. In lieu of testimony, the parties submitted Stipulated Facts and agreed to several Joint Exhibits, which, along with the Charge, Complaint, Answer and Motions, constitute the entire record in this matter. The Town, Doherty and the Union each submitted briefs on March 2, 3, and 4, 1992, respectively.

On March 2, 1992, the MCAD filed a motion for leave to file written arguments in this case, along with a written brief as amicus curiae. The Union indicated at the hearing that it would object to the MCAD's filing a brief. However, since March 2, 1992, when the MCAD served its motion and brief upon Union counsel, the Union has not filed any objections to that effect. Consistent with our policy of encouraging analysis and debate of legal issues from both parties and amici, we allow the MCAD's motion, and will consider its written arguments.

The following facts are those to which the parties stipulated. The parties also stipulated to the introduction into evidence of certain relevant documents that are referenced in the factual stipulations.[2]

1.	The Town is a public employer within the meaning of Section 1 of the Law.
2.	The Union is an employee organization within the meaning of Section 1 of the Law.
3.	The Union is the exclusive collective bargaining representative for a bargaining unit of police officers employed by the Town.
4.	Doherty is a public employee within the meaning of Section 1 of the Law and is a member of the bargaining unit referred to in Paragraph 3, above.
5.	Doherty was the first of five applicants whose names were certified by the DPA as eligible for appointment as police officers in the Town under Requisition No. 871240 dated July 6, 1987, as amended by letters dated July 14 and July 20, 1987, who had indicated a willingness to accept appointment and appeared for interview with the Town's Board of Selectmen in filling two vacancies. On September 3, 1987, the Board of Selectmen selected two other applicants to fill the vacancies.
6.	On March 2, 1988, Doherty filed a Complaint with the MCAD alleging that the Town had failed to appoint her as a police officer on September 3, 1987, because she is handicapped.
7.	Doherty also filed an appeal with the Civil Service Commission relative to the Board of Selectmen's action in bypassing her for appointment. That appeal was stayed by the Civil Service Commission pending outcome of a decision by the MCAD.
8.	On May 2, 1990, the Town's Board of Selectmen voted to agree to a Consent Order by the MCAD pursuant to which the Town agreed to hire Doherty as a police officer, to pay Doherty the same rate of pay that she would be earning had she been hired on September 3, 1987 and to jointly seek permission of the Civil Service Commission pursuant to Chapter 534 of the Acts of 1976 for a retroactive appointment date for Doherty of September 3, 1987.
9.	The Town and Doherty requested that the Civil Service Commission approve her retroactive appointment date of September 3, 1987, which was voted by the Civil Service Commission on July 16, 1990. Such request included withdrawal of Doherty's appeal before the Civil Service Commission.
10.	The Town has appointed approximately seven police officers since September 3, 1987 and prior to the Town's agreement to the Consent Order and hiring of Doherty on May 2, 1990.
11.	Without an adjudication of the merits of the case, the Town and Doherty entered into the Consent Order and agreed under that order that the settlement was the compromise of disputed claims and is not, and should not be, construed as an admission by the Town that it discriminated against Doherty in violation of M.G.L. 151B, s.4, and there had been no adjudication.
12.	The seniority of bargaining unit members affects the benefits a bargaining unit member receives under the collective bargaining agreement between the Town and the Union.
13.	Doherty did not receive all of the benefits that she might have received had there been an adjudication that the Town violated the law in failing to select Doherty on September 3, 1987.

In addition to these stipulated facts, we find that the Town failed to give the Union prior notice and an opportunity to bargain about either the decision to enter into the Consent Order, or the impacts of that decision on bargaining unit members' terms and conditions of employment. We make this finding based on the Town's response to Paragraph 10 of the Complaint, which alleged that the Town entered into the MCAD Consent Order without giving the Union prior notice and an opportunity to bargain about that decision or its impact. The Town responded that it denied "each and every allegation and item contained in Paragraph 10 to the extent that they imply that the Town was obligated to give the Union prior notice and an opportunity to bargain about that decision or its impact." From this response, as well as the arguments made by the Town in its brief, it is clear that the Town is not asserting that it gave the Union notice and an opportunity to bargain, but, rather, is arguing that it was not required to do so under the circumstances.

Disposition of the Motion to Dismiss

The Town, joined by the Intervenor and the MCAD, asserts that we should dismiss the complaint in this case on the basis that we lack jurisdiction over the implementation of a Consent Order endorsed by the MCAD. The Town, the Intervenor, and the MCAD (referred to collectively hereinafter as "Respondents") assert that the MCAD has exclusive jurisdiction over matters involving employment discrimination, and, for that reason, a Consent Order of the MCAD is not subject to collective bargaining. They claim that, because the MCAD has the remedial power to order a retroactive seniority date as the result of an adjudicatory proceeding, we should defer to the MCAD Consent Order without examining its effects on the parties' rights under G.L. c. 150E.

The Town's arguments in support of the Motion to Dismiss are essentially the same as its arguments on the merits of the case. The Town does not deny that it entered into the Consent Order without giving the Union notice and an opportunity to bargain over the Town's decision to do so, or the impacts of that decision. The Town's entire argument is that it had no obligation to bargain with the Union over any aspect of the Consent Order because the Consent Order was not subject to the terms of G.L. c. 150E. Therefore, we will address the Motion To Dismiss before we address the alleged violation of G.L. c. 150E. For the reasons set out below, we deny the Motion to Dismiss.

The Supreme Judicial Court (SJC) of Massachusetts addressed this issue in Dedham v. Labor Relations Commission, 365 Mass. 392 (1974), holding that we had jurisdiction over a claim filed at both the Labor Relations Commission and the Civil Service Commission, and that we had the authority to reverse the employee's discipline on the ground that the employer had retaliated against the employee for his protected activity, even though the Civil Service Commission had decided that the employer had just cause to discipline the employee for insubordination. Rejecting the employer's argument that we should have refused jurisdiction in deference to the Civil Service Commission's ruling, the court stated,

"... the idea of using the Civil Service Commission to act as a substitute for the Labor Relations Commission ... would turn out to be quite unsatisfactory. It must, after all, have been a prime legislative purpose in creating the Labor Relations Commission to promote uniformity rather than disuniformity of interpretation and application of the labor law ... [i]n our view, the statutes [G.L. c. 31 Section 43, the Civil Service Commission's statute; and c. 149 Section 178D, the precursor to c. 150E, our statute] can be read "so as to constitute a harmonious whole ... neither agency should be oblivious to the actions of the other." 365 Mass. at 392, 402.

Accordingly, when a claim under G.L. c. 150E and a claim under another agency's statute arise from the same factual circumstances, we can properly take the other agency's ruling into account as support for our determination regarding the prohibited practice claim, if that agency has fully explored and decided the issue under applicable labor relations principles. However, if we are not satisfied that the question arising under c. 150E has been sufficiently explored by that other agency, we can decide the issue on our own. See 365 Mass. at 404.

Indeed, we have never relinquished our responsibility to decide questions arising under c. 150E simply because another state agency also had jurisdiction over some aspects of the case if we believed that the questions arising under c. 150E were not adequately addressed by the other agency. For example, in Town of Natick, 7 MLC 1048 (1980), we modified a Civil Service Commission remedy to include reinstatement and a make whole remedy, because we found that the employer had disciplined the employee for his protected activities. 7 MLC at 1062. As in Dedham v. Labor Relations Commission, above, the Civil Service Commission in Town of Natick had not addressed whether the disciplinary actions were in retaliation for the employee's protected activities, but confined its examination to whether there was just cause for the disciplinary action under Civil Service law. "We cannot defer to the Civil Service Commission when its review ... [does] not encompass the question we must examine under collective bargaining law." 7 MLC at 1063.

Similarly, in Commonwealth of Massachusetts (M.D.C.), 16 MLC 1519 (1990), an employee had filed a charge of race discrimination at the MCAD, as well as a 10(a)(3) charge at the Labor Relations Commission. Although the employer in that case urged us to defer to the MCAD's ruling, we did not decline jurisdiction, because, just as the Hearing Officer in our case had not considered whether the employee was terminated in retaliation for filing the MCAD charge, the MCAD had not considered whether the employee had been terminated in retaliation for filing a grievance and complaining about working conditions. When there is no indication that the MCAD has even considered the facts or the issues necessary to decide whether a violation of c. 150E has occurred, we are required to adjudicate the allegations of c. 150E violations. 16 MLC at 1526 (n.10).

Also, in Lexington Taxi, 4 MLC 1677 (1978), where an employee charged that the employer discharged him in retaliation for his union activities, we declined to give "controlling weight" to the Department of Employment and Training's decision that the employee was fired solely because he was continually late, on the ground that the Department of Employment and Training had not taken any testimony regarding the employee's union activities, and therefore could not have taken those activities into account in making its decision. While we believe it is proper to consider the ruling of another agency, if there is no indication that the other agency paid any attention whether our statute was violated, we are still required to examine independently whether the employer's action violated c. 150E. 4 MLC at 1688 (n.4).

In light of both the SJC's decision in Dedham v. Labor Relations Commission and our own case law, we reject the Respondents' assertion that we lack jurisdiction over this case. To accept the Respondents' argument to that effect would require us to ignore our responsibility under G.L. c. 150E to adjudicate alleged violations of public employee labor law, an action that we are both unwilling and unable to take.[3] For these reasons, we accept jurisdiction over the dispute presented to us in this case, and decide as follows.

The Town's Duty To Bargain In Good Faith

It is well-settled that a public employer violates Section 10(a)(5) of the Law when it takes an action affecting a condition of employment that constitutes a mandatory subject of bargaining, without first bargaining to resolution or impasse. School Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 572 (1983); Town of Tewksbury, 19 MLC 1189, 1191 (1992). The seniority of bargaining unit members is a mandatory subject of bargaining, Saugus School Committee, 7 MLC 1849 (1981); Medford School Committee, 1 MLC 1250 (1975), a proposition that the parties do not dispute.

Neither do the parties dispute whether the Town gave the Union notice and an opportunity to bargain over either its decision to enter into the Consent Order, or the impacts of that decision on mandatory subjects of bargaining. As noted above in our Finding of Facts, we have found that it did not. The issue we must decide here is whether the Town had an obligation to bargain collectively with the Union over any aspect of its agreement to enter into the Consent Order. We hold that, although the Town was not obligated to bargain over its decision to enter into the Consent Order, it had the obligation to bargain collectively with the Union regarding any impacts that the Consent Order would have on bargaining unit members' terms and conditions of employment. Because the Town implemented the Consent Order, which had impacts on mandatory subjects of bargaining, without giving the Union notice or an opportunity to bargain regarding those impacts, the Town violated c. 150E, Section 10(a)(5).

The obligation under c. 150E that a public employer bargain collectively does not require the public employer to bargain about decisions that are within its "exclusive managerial prerogative." School Committee of Boston v. Boston Teachers Union, Local 66, 395 Mass. 232, 236-37 (1985); Town of Andover, 3 MLC 1710, 1714 (1977). We have consistently exempted managerial prerogatives from the obligation to bargain collectively, pursuant to our view, announced in Town of Danvers, 3 MLC 1559, 1571 (1977), that public employers must have "the flexibility to manage their enterprises." In our decision in Town of Danvers, we adopted the reasoning applied by the U.S. Supreme Court in Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 57 LRRM 2609 (1964), where the Court declined to impose a duty to bargain collectively regarding decisions which "lie at the core of entrepreneurial control." 3 MLC at 1571. We stated in Town of Danvers that the "[e]fficiency of governmental operations cannot be sacrificed by compelling the public employer to submit to the negotiation process those core governmental decisions which have only a marginal impact on employees' terms and conditions of employment." Id.

Beginning with our Town of Danvers decision, we have endeavored to strike a balance between the employer's interest in maintaining its prerogative to manage its enterprise, and the employees' interest in bargaining over terms and conditions of employment. In deciding whether a subject is a managerial prerogative exempted from the collective bargaining obligation, we consider factors like "the degree to which the topic has direct impact on terms and conditions of employment; whether the issue involves a core governmental decision or whether it is far removed from terms and conditions of employment." 3 MLC at 1577.

We believe that the Town's decision to bind itself to the MCAD Consent Order was a managerial prerogative, not subject to the obligation to bargain. Applying to the present case the factors that our decision in Town of Danvers requires us to consider, whether to agree to be bound by the Consent Order must be exempted from the bargaining obligation because it clearly involved a core governmental decision. Because the Consent Order has the same force and effect as an order entered by the MCAD "after a full public hearing pursuant to Chapter 151B and Chapter 30A" (Joint Exhibit 2), the MCAD has the power to enforce it in court if the Town fails to comply, and, therefore, by agreeing to be bound by the Consent Order, the Town gave up the opportunity to prove itself innocent of discrimination. It is immaterial whether the Town's decision to enter into the Consent Order was motivated by a belief in its own culpability, or whether, even if the Town considered itself blameless, its expectation that proving its innocence before the MCAD and possibly a court would cost the taxpayers far more than the Town would gain by a public decision in its favor. Our stated policy of encouraging the "efficiency of government operations" by requiring public employers to act in "the overall public interest," 3 MLC at 1571, requires us to find that the Town is free to enter into MCAD Consent Orders without bargaining.

However, even when a public employer is excused from the obligation to bargain over a decision that is a management prerogative, that employer still has the obligation to bargain with the union regarding any impacts its decision will have on mandatory subjects of bargaining, before it implements that decision. School Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 566-67 (1983); Town of Dennis, 12 MLC 1027, 1031. In this case, the facts demonstrate that the Town entered into the Consent Order, applied to the Civil Service Commission for a retroactive seniority date for Doherty, and assigned Doherty that retroactive date of September 3, 1987, without giving the Union notice or an opportunity to bargain regarding the effects those actions were going to have on terms and conditions of employment within the bargaining unit. We find that, by failing to do so, the Town violated its obligation to bargain collectively under Section 10(a)(5) of the Law. Additionally, we find that the Town's failure to bargain derivatively interfered with, restrained, and coerced employees in the exercise of their collective bargaining rights, in violation of Section 10(a)(1) of the Law.

Accordingly, while we encourage the voluntary entrance into MCAD Consent Orders in cases in which a public employer, in its managerial discretion, sees an opportunity to conserve resources by doing so, we admonish the Town of Dedham, as well as all public employers, that such actions must take into account the collective bargaining rights of the existing bargaining unit. The employees' exclusive bargaining representative must have the opportunity to bargain collectively over any and all impacts an MCAD Consent Order has on mandatory subjects of bargaining.[4]

We have the discretion to fashion the most satisfactory remedy possible under the facts of each case. In cases where an employer's obligation to bargain is limited to the impact of a decision within its managerial discretion, the appropriate remedy for a failure to bargain must strike a balance between management's right to carry out lawful decisions, and the union's right to engage in meaningful impact bargaining while some aspects of the status quo are maintained. Town of Burlington, 10 MLC 1287, 1388 (1984).

Where the effects of an employer's decision are certain, and the union's efforts to impact bargain cannot substantially change but only ameliorate those effects, we have followed the National Labor Relations Board's decision in Transmarine Navigation Corp., 170 NLRB 389, 67 LRRM 1419 (1968), and only required employers to make effected employees whole during the period of impact bargaining. See also Town of Burlington, supra, 10 MLC at 1388; City of Quincy, 8 MLC 1217 (1981). However, we have distinguished cases warranting Transmarine remedies from those cases in which the effect of the decision was not inevitable and, therefore, could have been changed by the union's efforts to impact bargain. In those cases, we have required employers to make effected employees whole retroactively.

For example, in Newton School Committee, 8 MLC 1538 (1981), we held that, even though the employer had the managerial right to accomplish a reduction in force, it was obligated to bargain with the union regarding the impact of that decision. Therefore, we found that the make whole remedy should be retroactive, because:

The identity and number of employees to be laid off was not an inevitable consequence of the management decision to reduce the force. Perhaps through bargaining fewer employees would have been laid off, perhaps different employees. The possibilities distinguish this case from the Transmarine line of cases, where all of the employees' terminations are certain and the union can bargain only to ameliorate the terms of the departure ... Where it is impossible to determine which, if any, of the [employees] would have been laid off, either through a smaller layoff or a different order of layoff, the costs of such uncertainty must be taxed to the wrongdoer, not the victims of the wrong. 8 MLC 1545-46.

With this distinction in mind, we believe that the most appropriate remedy in the case before us is a Transmarine remedy. We have held that the Town was within its managerial prerogative to enter into the MCAD Consent Order, and the Town did so in a manner that gave Doherty a retroactive seniority date. The impact bargaining that we order herein cannot change the fact that Doherty's seniority now dates back to September 3, 1987. Rather, as a result of our order, the Town must bargain about how best to ameliorate the effects Doherty's retroactive seniority will have on the existing bargaining unit. Because the facts of this case are more similar to those of Transmarine than to those of Newton School Committee, we will order the Town to make whole any employees who were harmed by its grant of retroactive seniority to Doherty, but only from the date the Town receives this decision until the Town has satisfied its obligation to bargain with the Union regarding the Consent Order's impact on bargaining unit members' terms and conditions of employment.

Our goal in fashioning appropriate remedies is to place the parties in the positions in which they would have been, but for the unfair labor practice. Thus, the traditional remedy for an employer's unilateral change in bargaining unit members' terms and conditions of employment is, in addition to making effected employees whole, to restore the status quo and order it maintained until the bargaining obligation has been fulfilled. Natick School Committee, 11 MLC 1387, 1400 (1985); Amesbury School Committee, 11 MLC 1049, 1058 (1984); City of Gardner, 10 MLC 1218, 1222 (1983). However, we decline to order a return to the status quo in this case, for the following reasons.

First, restoring the status quo would require us to strip Doherty of her September 3, 1987 seniority date and the benefits she received along with that date. An order of that kind would effectively punish Doherty for the Town's unfair labor practice. We have historically sought to avoid status quo remedies which punish employees for the illegal conduct of their employers. Commonwealth of Massachusetts, 13 MLC 1645, 1650 (1987). For example, in City of Boston, 9 MLC 1664 (1983), where the employer had unilaterally upgraded two employees in violation of Sections 10(a)(5) and (1) of the Law, we noted that the usual remedy would be to order a return to the status quo, which would require reducing the employees in question to the level at which they had been before the unilateral change, a remedy which would have been "both onerous and unjust" because it would punish the two employees for the illegal conduct of their employer, and would constitute a "wedge to drive the Union apart from the employees whom it represents." 9 MLC at 1669. We therefore did not order those parties to return to the status quo. Similarly, in Natick School Committee, 11 MLC 1387 (1985), the employer had unilaterally granted certain employees a "distinguished educator award," which we found constituted wages, in violation of Section 10(a)(5). We did not order a return to the status quo by requiring the employees to pay the money back, because "ordering the monies repaid would punish employees for the illegal conduct of their employers and would alienate unions from the employees they represent." 11 MLC at 1400.

Furthermore, we believe that it is only proper to encourage the voluntary settlement of MCAD litigation, and, out of deference to the MCAD's expertise in employment discrimination cases, we hesitate to impose a remedy that would effectively invalidate a Consent Order the MCAD has endorsed. In this case, the Consent Order's effect on the seniority of the bargaining unit was justifiable, because the seniority Doherty received under the Consent Order was the same seniority she would have had absent the Town's allegedly discriminatory failure to appoint her on September 3, 1987. In other words, the remedy Doherty received pursuant to the Consent Order was reasonably designed to cure the discrimination she allegedly suffered, and therefore we will not disturb it.

Having found that the Town violated the Law by implementing the Consent Order without giving the Union notice and an opportunity to bargain over the Consent Order's impacts on mandatory subjects of bargaining, we shall order the remedy set out below.

It is hereby ordered, pursuant to Section 11 of the Law, that the Town of Dedham shall:

1.	Cease and desist from:
	a.	failing and refusing to bargain in good faith regarding the Consent Order's impacts on bargaining unit members' terms and conditions of employment;
	b.	implementing MCAD Consent Orders before it has bargained to resolution or good faith impasse with the Union regarding the impacts the MCAD Consent Orders have on bargaining unit members' terms and conditions of employment; and
	c.	in any like manner, restraining, coercing, and interfering with employees in the exercise of their rights by refusing to bargain with the Union regarding the impacts MCAD Consent Orders have on bargaining unit members' terms and conditions of employment.
2.	Take the following affirmative action that will effectuate the policies of the Law:
	a.	Immediately offer to bargain with the Union about the Consent Order's impacts on bargaining unit members' terms and conditions of employment;
	b.	From the date it receives this decision until it has satisfied its duty to bargain with the Union regarding the Consent Order's impacts on bargaining unit members' terms and conditions of employment, make employees whole for any loss of wages or benefits resulting from the Town's unilateral implementation of the Consent Order;
	c.	Post in conspicuous places where its employees usually congregate, and leave posted for not less than thirty (30) days, the attached Notice to Employees; and
	d.	Notify the Commission within thirty (30) days of receipt of this decision and order, and of the steps taken to comply herewith.

The Labor Relations Commission has found that the Town of Dedham has violated Sections 10(a)(1) and (5) of M.G.L. c.150E, the Public Employee Collective Bargaining law, by failing and refusing to bargain with the Dedham Police Patrolmen's Association (Union) regarding the impacts its May 2, 1990 MCAD Consent Order (Consent Order) would have on bargaining unit members' terms and conditions of employment.

WE WILL NOT fail or refuse to bargain in good faith regarding the Consent Order's impacts on bargaining unit members' terms and conditions of employment;

WE WILL NOT implement MCAD Consent Orders before we have bargained to resolution or good faith impasse with the Union regarding the impacts those MCAD Consent Orders have on bargaining unit members' terms and conditions of employment;

WE WILL NOT, in any like manner, restrain, coerce, or interfere with employees in the exercise of their rights by refusing to bargain with the Union regarding the impacts MCAD Consent Orders have on bargaining unit members' terms and conditions of employment;

WE WILL immediately offer to bargain with the Union about the Consent Order's impacts on bargaining unit members' terms and conditions of employment; and

WE WILL, from the date we receive this decision until we have satisfied our duty to bargain with the Union regarding the Consent Order's impacts on bargaining unit members' terms and conditions of employment, make employees whole for any loss of wages or benefits resulting from our unilateral implementation of the Consent Order.