B. Definitions

Summary of law for public employee collective bargaining

1. Employer

Section 1 of the Law defines “employer” and “public employer” as the Commonwealth, acting through the commissioner of administration, or any county, city, town, district, or other political subdivision acting through its chief executive officer. Section 1 excludes authorities created pursuant to M.G.L. c. 161A (Massachusetts Bay Transportation Authority (MBTA)), and those authorities included under the provisions of Chapter 760 of the Acts of 1962.[115]

a. State Employees

Subject to certain statutory exceptions, the Commonwealth, acting through the commissioner of administration, is the “employer” of all state employees.[116] The exceptions include:

• The Board of Higher Education is the employer of the system of public institutions of higher education employees, except that the Board of Trustees of the University of Massachusetts is the employer for University of Massachusetts employees.
   
• The Court Administrator of the Trial Court is the employer of judicial employees.
• The State Lottery Commission is the employer of State Lottery Commission employees.
• The Massachusetts Water Resources Authority is the employer of the Massachusetts Water Resources Authority employees.
• The Massachusetts Department of Transportation is the employer of Massachusetts Department of Transportation employees.
• The State Treasurer is the employer of Alcoholic Beverage Control Commission employees.
• The Department of Early Education and Care is the employer of family child care providers defined in M.G.L. c. 15D, § 17.[117]
• The PCA Quality Healthcare Council is the employer of personal care attendants defined in M.G.L. c. 118E, § 70.[118]
• Each county sheriff is the employer of the respective county sheriff office employees.[119]

b. County Employees

With certain exceptions, referenced below, the county is the employer for all county employees. When two independently elected county officials (or boards) exercise control over the terms and conditions of employment, those officials (or boards) are “joint chief executive officers.”[120] The exceptions include:

• The Secretary of the Commonwealth is the employer of the employees in the abolished counties of Franklin, Middlesex, Suffolk, Hampden, Worcester, Hampshire, Essex, and Berkshire. [121]
• The county sheriff is the employer of each county sheriff office’s employees.[122]

c. School Departments

Pursuant to Section 1 of the Law, the municipal employer of school employees is represented by the school committee. Therefore, a municipality and a school committee are a single entity and share responsibility for making and fulfilling contractual obligations.[123]

 

A regional school committee is the public employer of the regional school district’s employees. In school districts comprised of more than one school committee, the district may function as a “single” employer for the purposes of collective bargaining.[124] Members of a collaborative, through their respective school committees, have a single-employer relationship with employees of the collaborative.[125]

d. Housing Authorities

Housing authorities are the public employers of their employees.[126]

e. Chapter 150A

Chapter 150A, which generally covers private sector employees, covers employees of certain public authorities.

• Section 5 of Chapter 150A applies to Massachusetts Bay Transportation Authority employees.[127]
• Certain sections of Chapter 150A apply to the Massachusetts Port Authority; Massachusetts Parking Authority; and the Woods Hole, Martha’s Vineyard, and Nantucket Steamship Authority.[128]

f. Other Employers

With regard to employers not referenced above, the DLR generally defers action until the NLRB specifically declines jurisdiction. The DLR will then decide whether to apply Chapter 150A or 150E by analyzing whether the employer is a public or private employer. To determine whether an enterprise is a “public employer,” and subject to Chapter 150E, the DLR considers the following factors:

• The identity and control of the enterprise’s board of managers;
• The nature of the employer’s corporate structure; and
• The identity of the titleholder to the enterprise’s real property.[129]

The DLR also determines whether the particular entity is the actual “employer” of the employees at issue by considering whether the entity:

• Hired the employees;
• Had authority to unilaterally discipline, transfer and/or discharge the employees;
• Set the wage rates;
• Determined job assignments;
• Paid the employees; and
• Was liable for reporting and remitting tax deductions.[130]

Using a similar analysis, the CERB has concluded that certain retirement boards that operate with complete fiscal and administrative autonomy from the city in which they are located are separate employers of their own employees.[131]

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[115] For further information on the applicability of Chapter 150A to these authorities, see Section III(B)(1)(e) below.

[116] Massachusetts Probation Ass’n v. Commissioner of Administration, 370 Mass. 651 (1976); Commonwealth of Massachusetts, 23 MLC 117 (1996).

[117] Family child care providers are considered public employees for limited purposes, as further detailed in M.G.L. c. 15D, § 17.

[118] Personal care attendants are considered public employees for limited purposes, as further detailed in M.G.L. c. 118E, § 70.

[119] Chapter 48, Section 14 of the Acts of 1997, as amended by Chapter 300 of the Acts of 1998.

[120] Essex County, 22 MLC 1556 (1996) (county commissioners and county sheriffs are joint chief executive officers); Essex Agricultural and Technical Institute, 4 MLC 1755 (1978) (county commissioners and trustees of county agricultural and technical school are joint chief executive officers).

[121] Chapter 48 of the Acts of 1997, as amended by Chapter 300 of the Acts of 1998; M.G.L. c. 35B, § 1.

[122] Chapter 48, Section 14 of the Acts of 1997, as amended by Chapter 300 of the Acts of 1998.

[123] City of Malden, 23 MLC 181 (1997).

[124] Freetown-Lakeville School Committee, 11 MLC 1508 (1985); Nauset Regional School District, 5 MLC 1453 (1978).

[125] Shore Collaborative, 7 MLC 1351 (1980).

[126] M.G.L. c. 121B § 29; Springfield Housing Authority v. Labor Relations Commission, 16 Mass. App. Ct. 653 (1983).

[127] M.G.L. c. 161A § 26.

[128] Chapter 760 of the Act of 1962.

[129] Bourne Recreation Authority, 28 MLC 98 (2001); Franklin Institute of Boston, 12 MLC 1063 (1985).

[130] Higher Education Coordinating Council, 23 MLC 194 (1997) (council exercises sufficient control over certain individuals to establish that it is employer); Commonwealth of Massachusetts, 23 MLC 117 (1996) (Commonwealth not the employer of security and law enforcement personnel assigned to certain military installations jointly operated by the United States government and Commonwealth); Hudson Bus Lines, 4 MLC 1630 (1977) (private bus company was employer of bus drivers who transport school children).

[131] City of Malden, 28 MLC 130 (2001); City of Brockton, 19 MLC 1139 (1992).

2. Employee

Section 1 of the Law defines “employee” or “public employee” as “any person in the executive or judicial branch of a government unit employed by a public employer,” with certain exceptions, discussed below. The CERB has broadly interpreted the terms “employee” and “public employee” to include all individuals employed by a public employer, except those specifically excluded.[132] For example, the CERB has defined “employee” to include:

• Regular part-time employees.[133]
• Part-time reserve police officers.[134]
• Per diem substitute teachers.[135]
• Call fire fighters.[136]
• Visiting lecturers.[137]
• Full-time students who perform part-time work for an employer separate and apart from their educational responsibilities.[138]
• Graduate teaching and research assistants.[139]
• Undergraduate resident assistants and community development assistants.[140]
• Probationary and provisional employees.[141]
• Employees classified as temporary or provisional under civil service law.[142]
• Seasonal employees.[143]

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[132] City of Gloucester, 26 MLC 128 (2000); City of Fitchburg, 2 MLC 1123 (1975).

[133] Board of Regents, 14 MLC 1123 (1988).

[134] Town of Newbury, 14 MLC 1660 (1988).

[135] Boston School Committee, 7 MLC 1947 (1981).

[136] Town of Wenham, 23 MLC 82 (1996), aff’d sub nom. Town of Wenham v. Labor Relations Commission, 44 Mass. App. Ct. 195 (1998).

[137] Board of Regents, 11 MLC 1486 (1985).

[138] Quincy Library Department, 3 MLC 1517 (1977).

[139] Board of Trustees, University of Massachusetts, 20 MLC 1453 (1994).

[140] Board of Trustees of the University of Massachusetts, 28 MLC 225 (2002).

[141] School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983).

[142] Boston School Committee, MUP-9067 (March 2, 1994), aff’d sub nom. School Committee of Boston v. Labor Relations Commission, 40 Mass. App. Ct. 327 (1996).

[143] Town of Wellfleet, 11 MLC 1238 (1984); Cf. County of Dukes County/Martha’s Vineyard Airport Commission, 25 MLC 153 (1999) (certain seasonal employees do not have sufficient continuing expectation of employment).

3. Employee - Exceptions

a. Explicit Exceptions

Section 1 of the Law specifically excludes the following from the definition of “employee:”

• Elected officials.
• Appointed officials.[144]
• Members of any board or commission.
• Representatives of any public employer, including the heads, directors and executive and administrative officers of departments and agencies of any public employer.
• Militia or National Guard members.[145]
• DLR employees.
• Departments of the State Secretary, State Treasurer, State Auditor, and Attorney General officers and employees.[146]

The Law also specifically excludes managerial and confidential employees from the definition of “employee.”

b. Managerial Employees

Employees are designated as managerial only if they satisfy any of the following criteria:

“Participate to a substantial degree in formulating or determining policy.” In interpreting this, the CERB has held that:

• The employee must make policy decisions and determines the objectives, unlike supervisory personnel who transmit policy directives to lower level staff and, within certain areas of discretion, implement the policies.[147]
• Participation in the decision-making process and attending or participating in policy-making discussions is not sufficient to consider an employee managerial if the input is merely informational or advisory.[148]
• A managerial employee’s authority includes not only the authority to select and implement a policy alternative, but also regular participation in the policy decision-making process.[149]
• The policy decision must be of major importance to the mission and objectives of the public employer.[150]
   

“Assist to a substantial degree in the preparation for or the conduct of collective bargaining on behalf of a public employer.” In this regard, the CERB has held that a managerial employee:

• Must have a voice in determining bargaining strategy or the conditions for settlement.[151]
• Be directly involved in preparing and formulating proposals or positions in collective bargaining.[152]
   

Have a substantial responsibility involving the exercise of independent judgment of an appellate responsibility not initially in effect in the administration of a collective bargaining agreement or in personnel administration. Considering this, the CERB has decided:

• Judgment is independent when it lies within the employee’s sole discretion, without consultation or approval.[153]
• The judgment exercised must be significant.[154]
• Appellate authority must be exercised beyond first step in a grievance and arbitration procedure. Exercise of supervisory authority to ensure compliance with the provisions of a collective bargaining agreement is insufficient standing alone to satisfy this criterion.[155]

c. Confidential Employees

Employees are designated as confidential employees only if they “directly assist and act in a confidential capacity to a person or persons otherwise excluded from coverage” under the Law. The exclusion is narrowly interpreted to exclude as few employees as possible, while not unduly hindering the employer’s operations.[156] An employee who has significant access or exposure to confidential information concerning labor relations matters or management’s position on personnel matters, or advance notice of the employer’s collective bargaining proposals will be excluded as confidential.[157]

In determining that an employee is not confidential, the CERB has found:

• A managerial employee’s reliance upon another employee for policy advice and personnel recommendations does not, standing alone, render the employee confidential.[158]
• Access to sensitive information, such as financial data, personnel records, or medical records and audits, without more, does not necessarily make an employee confidential.[159]
• Occasionally substituting for an absent employee and performing confidential functions does not make the employee confidential.[160]

d. Independent Contractors

Independent contractors are not employees. However, there is a rebuttable presumption that individuals are employees where they perform a service for a public employer for compensation.[161] The presumption can be rebutted by evidence that the employer does not retain control over the worker. [162] The CERB looks at:

• Duties of the worker;
• The type of supervision the worker receives;
• The method in which the worker is paid; and
• The manner in which they are treated by the employer.[163]

The CERB considers individuals compensated from the Commonwealth’s “03” account on a case-by-case basis.[164]

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[144] Cf. Bristol County Sheriff’s Office, 35 MLC 149 (2009) (Sheriff’s appointment of canine officers as deputy chiefs did not preclude them from coverage under the Law).

[145] Cf. Commonwealth of Massachusetts, 7 MLC 1740 (1981) (CERB concludes that “armorers,” which are essentially civilian janitors and custodians, are employees within the meaning of the Law because M.G.L. c. 33, § 4 defines “militia” as enlisted personnel).

[146] Cf. Chapter 110, Section 269(b) of the Acts of 1993 (certain employees transferred from the Department of Labor and Industries to the Office of the Attorney General are considered public employees within the meaning of Section 1 of the Law); Commonwealth of Massachusetts/Office of the Attorney General, 26 MLC 139 (2000).

[147] Wellesley School Committee, 1 MLC 1389 (1975), aff’d sub nom., School Committee of Wellesley v. Labor Relations Commission, 376 Mass. 112 (1978); In the Matter of the Board of Trustees of the University of Massachusetts, 37 MLC 67 (2010).

[148] Id.

[149] Local 888, Service Employees International Union, 33 MLC 47 (2006); Town of Plainville, 18 MLC 1001 (1991).

[150] Wellesley School Committee, 1 MLC 1389 (1975), aff’d sub nom., School Committee of Wellesley v. Labor Relations Commission, 376 Mass. 112 (1978); 33 MLC 47 (2006).

[151] Town of Easton, 31 MLC 132 (2005).

[152] Town of Agawam, 13 MLC 1364 (1986).

[153] Barnstable County, 26 MLC 183 (2000).

[154] Id.

[155] Board of Trustees (UMass Dartmouth), 39 MLC 275 (2013).

[156] Town of Greenfield, 32 MLC 133 (2006).

[157] Town of Tyngsborough, 38 MLC 140 (2011).

[158] University of Massachusetts, 3 MLC 1179 (1976).

[159] Wellesley School Committee, 1 MLC 1389 (1975), aff’d sub nom., School Committee of Wellesley v. Labor Relations Commission, 376 Mass. 112 (1978); Springfield Housing Authority, 36 MLC 61 (2009) (Computer IT technicians non-routine access to sensitive labor materials did not make them confidential employees).

[160] Town of Wellfleet, 11 MLC 1238 (1984).

[161] University of Massachusetts, 32 MLC 58 (2005).

[162] Id.

[163] Board of Regents, 11 MLC 1486 (1985).

[164] Id.

4. Employee Organization

The Law defines an employee organization as “any lawful association, organization, federation, council, or labor union, the membership of which includes public employees, and assists its members to improve their wages, hours, and conditions of employment.” The definition is purposely broad and does not require any specific kind of organizational structure.[165] The DLR considers whether the organization:

• Assists the public employees in improving their wages, hours, and conditions of employment;
• Is able to adequately and independently represent employees in those concerns; and
• Is not the product of employer domination or control.[166]

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[165] Commonwealth of Massachusetts (Unit 6), 10 MLC 1554 (1984).

[166] Franklin County Sheriff’s Office, 36 MLC 125 (2010).