DLR Decisions June 2009 to July 2009

MUPL-03-4449 The Charging Party filed a charge alleging that AFSCME, Council 93, AFL-CIO (Union) violated its duty of fair representation when it failed to investigate, evaluate or process a grievance concerning his layoff from his provisional position as a code inspector for the City of Lynn (City). The Board concluded that the Union had not failed to investigate the grievance, acted in a hostile, arbitrary or cursory manner, where it had filed 30 separate grievances on behalf of all laid off union members; engaged in impact bargaining at Step 3 of the grievance procedure regarding the layoffs and ultimately decided not submit any of the grievances to arbitration because the City had demonstrated to its satisfaction that it acted for budgetary reasons. The Board also held that the fact that the Union did not communicate with the Charging Party for a three-month period did not violate the Union’s duty of fair representation, where the Union made a reasoned judgment that the grievance lacked merit and the decision did not otherwise impair or prejudice the Charging Party’s contractual rights.

CAS-04-3600 The Boston Teachers Union, Local 66, MFT/AFT/AFL-CIO (Union), filed a unit clarification petition seeking to accrete the position of instructional technician into its existing bargaining unit of paraprofessionals in the Boston schools. The Board dismissed the petition pursuant to the Division’s contract bar rule, which, absent good cause shown, requires unit clarification petitions to be filed within 150-180 days prior to the expiration date of a collective bargaining agreement, or where a position is newly-created or has changed since the effective date of the most recent agreement. The Board concluded the petition was untimely because the Union did not file the petition during the open period and the instructional technician position existed at the time the parties entered into their most recent agreement. The Board rejected the Union’s argument that good cause existed to waive the contract bar rule because it waited to file the petition until it received a related arbitration award. The Board noted that the contract bar rule did not require the Union to choose between the grievance procedure and filing a unit clarification petition, or forever preclude the Union from filing a petition.

CAS-06-3637 AFSCME, Council 93 (Union) represents a bargaining unit of clerical employees at the University of Massachusetts (Employer). In 2006, the Employer created and filled two new positions, Internal Budget Analyst and External Budget Analyst, and placed them in the educational services bargaining unit represented by another union. The Union filed a unit clarification petition seeking to accrete the two positions to its unit, arguing that both positions shared a community of interest with titles in its unit. The Board disagreed and dismissed the petition, holding that while the incumbents in both analyst positions performed some duties that were performed by members of the Union’s bargaining unit, the budget analysts shared a greater community of interest with individuals in the educational services bargaining unit, in terms of supervision, interaction with other unit members, compensation and duties

MUPL-06-4542 The Hearing Officer considered whether AFSCME, Council 93 (Union) had violated its duty of fair representation to the Charging Party, a former Union president, when it: 1) settled a two-count complaint that alleged in Count II that the Town of Plymouth (Town) had removed overtime opportunities for bargaining unit members in retaliation for the Charging Party’s protected activities, without informing the Charging Party of the terms of the agreement; and 2) failed to explain to the Charging Party its decision to withdraw certain grievances from arbitration. With respect to the first count of the instant charge, the Hearing Officer concluded that the Union had not violated its duty of fair representation to the Charging Party because the terms of the settlement of the prohibited practice charge took Count II into account even though it did not specifically reference it, and because unions have the statutory right to determine whether to settle or litigate a particular grievance and no concomitant obligation to inform individual unit members of that decision. The Hearing Officer similarly held that the Union had no obligation to discuss its decision to withdraw four grievances from arbitration that involved him because, in the absence of evidence of deliberate bad faith or personal hostility, a union’s failure to communicate or explain its decisions to bargaining union members does not

CAS-06-3637 AFSCME, Council 93 (Union) represents a bargaining unit of clerical employees at the University of Massachusetts (Employer). In 2006, the Employer created and filled two new positions, Internal Budget Analyst and External Budget Analyst, and placed them in the educational services bargaining unit represented by another union. The Union filed a unit clarification petition seeking to accrete the two positions to its unit, arguing that both positions shared a community of interest with titles in its unit. The Board disagreed and dismissed the petition, holding that while the incumbents in both analyst positions performed some duties that were performed by members of the Union’s bargaining unit, the budget analysts shared a greater community of interest with individuals in the educational services bargaining unit, in terms of supervision, interaction with other unit members, compensation and duties.