Evolution of Public Employee Collective Bargaining
1935
The Wagner Act (National Labor Relations Act) is enacted, granting collective bargaining rights to private sector employees in companies engaged in interstate commerce.
1937
M.G.L. c. 150A, a so-called "Baby Wagner Act," is enacted, extending bargaining rights to private sector employees within the Commonwealth. The Labor Relations Commission (LRC) is established to administer the new law. M.G.L. c. 23, § 90, et seq.
1958
All public employees (except police officers) in Massachusetts are granted the right to join unions and to "present proposals" to public employers. M.G.L. c. 149, § 178D.
1960
M.G.L. c. 40, § 4C is enacted, giving city and town employees the right to bargain, provided that the local city or town adopts the law. However, there are no specific procedures for elections and no provisions covering the subject matter or method of bargaining.
1962
The Massachusetts Turnpike Authority, the Massachusetts Port Authority, the Massachusetts Parking Authority, and the Woods Hole, Martha's Vineyard and Nantucket Steamship Authority become subject to the representation and unfair labor practice provisions of M.G.L. c. 150A. Section 760 of the Acts of 1962.
1964
State employees are granted the right to bargain with respect to working conditions (but not wages). M.G.L. c. 149, § 178F.
Chapter 150A is amended to include private health care facilities as "employers" and nurses as "employees."
1965
Municipal employees are granted the right to bargain about wages, hours, and terms and conditions of employment. M.G.L. c. 149, §§ 178G-N (repealing Chapter 40, § 4C).
1968
M.G.L. c. 150A is amended to expressly include private nonprofit institutions as "employers" and nonprofessional employees of a health care facility or of private nonprofit institutions (except members of religious orders) as "employees."
1969
The Legislature establishes the Mendonca Commission to revise the public employee bargaining laws.
1973
M.G.L. c. 150E is enacted, granting full collective bargaining rights to most state and municipal employees.
Binding arbitration of interest disputes is established for police and fire employees. Chapter 1078 of the Acts of 1973.
1974
M.G.L. c. 150E is amended to: 1) strengthen the enforcement powers of the Labor Relations Commission; 2) modify union unfair labor practices; and 3) modify the standards for the exclusion of managerial employees.
1975
The Labor Relations Commission issues standards for appropriate bargaining units affecting 55,000 state employees in more than 2,000 job classifications. Ten statewide units are created—five non-professional and five professional.
M.G.L. c. 150E is amended to provide for a separate bargaining unit for state police. Chapter 591 of the Acts of 1975.
1977
M.G.L. c. 150E is extended to court employees in the judicial branch; two state-wide units are established for judicial branch employees (except court officers in Middlesex and Suffolk Counties). Chapter 278, § 3 of the Acts of 1977.
The Representation and prohibited practice provisions of M.G.L. c.150E are extended to housing authorities and their employees.
The Joint Labor-Management Committee is established to oversee collective bargaining negotiations and impasses involving municipal police officers or firefighters. Chapter 730 of the Acts and Resolves of 1977.
Agency service fee provisions are clarified to require that employee organizations provide a rebate procedure and to indicate which expenditures may be rebated to employees.
1980
"Proposition 2 1/2" is enacted, repealing final and binding arbitration for police and firefighter contract negotiations.
1982
The LRC issues comprehensive regulations setting forth agency service fee procedures, including requirements for unions to collect a fee pursuant to M.G.L. c. 150E, § 12 and for employees to challenge the amount or validity of the fee.
1983
M.G.L. c. 150A is amended to specifically cover private vendors who contract with the state or its political subdivisions to provide certain social and other services.
1986
M.G.L. c. 150E is amended to forbid employers from unilaterally changing employees' wages, hours and working conditions until the collective bargaining process (including mediation, fact-finding, and arbitration, if applicable) has been completed.
1987
Interest arbitration is reinstituted for police and firefighter contract negotiations, with arbitration awards subject to funding by the legislative body.
1990
LRC Revises Regulations.
1993
The Education Reform Act of 1993 (Chapter 71 of the Acts of 1993) impacts public employees by making major changes concerning the demotion and dismissal of teachers and principals.
1996
For cases in which the LRC issues a complaint of prohibited practice and orders a hearing, Chapter 151, § 577 of the Acts of 1996 allows the parties to elect to submit the case to arbitration at any time up to thirty days prior to the commencement of the hearing ordered by the Commission.
1999
LRC Revises Regulations.
2000
LRC Revises Regulations.
2006
Chapter 268 of the Acts of 2006 defines personal care attendants (PCA) as public employees, employed by the PCA Quality Home Care Workforce Council, for certain limited purposes, including the right to organize and bargain under M.G.L. c. 150E.
2007
Chapter 120 of the Acts of 2007 allows a majority of employees in an appropriate bargaining unit to designate an employee organization as its representative for the purpose of collective bargaining through written majority authorization.
Chapter 145 of the Acts of 2007 reorganizes the Commonwealth’s neutral labor relations agencies under the Division of Labor Relations (Division). The Division has all of the legal powers, authorities, responsibilities, duties, rights, and obligations previously conferred on the LRC, JLMC and BCA.
2010
DLR revises regulations to implement M.G.L. c. 120 and M.G.L. c.145 of the Acts of 2007.
2011
Chapter 3 of the Acts of 2011 changes the Division of Labor Relations’ name to the DLR.
M.G.L. c. 150E , § 7(a) is amended to allow an employer and exclusive representative to agree to extend a collective bargaining agreement beyond three years until a successor agreement is negotiated.
2012
Chapter 189 of the Acts of 2012 defines qualified family child care providers who offer subsidized early education and child care services to children in the Commonwealth as public employees, giving them the right to organize and bargain with the state over subsidy rates, reimbursement and payment procedures, recruitment and retention of providers and professional development opportunities under M.G.L. c. 150E.
2013
DLR revises Regulations.
FAQ - General Information
What does the law do?
The Massachusetts public employee collective bargaining law gives most public employees at the state, county, and municipal levels the right to: (1) form, join, or participate in unions; (2) bargain collectively over terms and conditions of employment; (3) engage in other concerted activities for mutual aid and protection; and (4) refrain from participating in any or all of these activities.
When did the law take effect?
The law was signed on November 26, 1973, and became effective on July 1,1974.
Who administers the law?
The Massachusetts Department of Labor Relations (DLR), which has offices at 19 Staniford Street, 1st Floor, Boston, Massachusetts 02114 and 436 Dwight Street, Room 206, Springfield, Massachusetts 01103.
Who is covered by the law?
State, county and municipal employees in the executive and judicial branches of government and employees of certain Authorities. Managerial and confidential employees are specifically excluded from coverage. Employees may be designated as managerial only if they participate to a substantial degree in the formulation of policy; assist to a substantial degree in collective bargaining; or have a substantial, independent, appellate role in personnel or contract administration. Employees may be designated as confidential only if they directly assist and act in a confidential capacity to a person excluded from the Law's coverage.
What is the Commonwealth Employment Relations Board?
The Commonwealth Employment Relations Board (CERB) is the three-member appellate body within the DLR that was created as part of the 2007 reorganization of the Commonwealth’s labor relations agencies. The CERB consists of one full-time Chair and two per-diem members appointed by the governor from names submitted to the governor by the Advisory Council. The CERB is responsible for issuing decisions and final orders on appeal of dismissals of prohibited practice charges and hearing officer decisions. Depending on the posture of the case, the CERB also determines appropriate bargaining units in representation, written majority and CAS matters. M.G.L. c. 23, Section 9R.
What is the Advisory Council?
The Advisory Council advises the DLR concerning policies, practices and specific actions that the DLR might implement to better discharge its labor relations duties. It consists of 13 members appointed by the governor, five of whom shall be members or representatives of public sector labor unions, five of whom shall be representatives of public sector managers, including the director of employee relations for the Commonwealth, and three of whom shall be at-large members. M.G.L. c. 23, Section 9Q.
FAQ - Representation Rights
How do employees select an exclusive bargaining agent?
By majority action. The procedures for doing so include: a) through the DLR’s written majority process (card-check) a majority of employees in a petitioned-for, appropriate bargaining unit may designate an employee organization as their exclusive representative by signing authorization cards, petitions, or other suitable written evidence; b) an employer may voluntarily recognize an employee organization designated by the majority of all the employees in an appropriate bargaining unit; and c) the DLR is authorized to direct an election by secret ballot to determine the exclusive representative whenever:
- one or more employee organizations claim to represent a substantial number of employees in an appropriate unit;
- an employee organization petitions the DLR alleging that a substantial number of employees wish to be represented by the petitioner; or
- a substantial number of employees in a bargaining unit allege that the exclusive representative no longer represents a majority of the employees.
Who determines an appropriate bargaining unit and on what basis is the decision made?
The DLR and the Commonwealth Employment Relations Board (CERB), depending on the posture of the case, are authorized to determine appropriate bargaining units giving due regard to such criteria as community of interest, efficiency of operations, and safeguarding effective representation.
What rights and obligations does a recognized or certified employee organization have?
The exclusive representative is authorized to negotiate agreements covering all employees in a bargaining unit and must represent all such employees fairly in contract negotiation and administration.
Under what circumstances may an employee organization seek an election?
Generally, an employee organization filing a petition for certification must show the DLR that at least 30% (50% if the employees are currently represented by another employee organization) of the affected employees desire to be represented by that organization.
How will representation disputes be resolved?
An appropriate petition must be filed with the DLR asking that it direct an election to be held. All employees vote in secret and the choice is made by a majority of valid votes cast.
May employees decide to terminate representation by an employee organization or change representatives?
Yes. A petition may be filed with the DLR by or on behalf of a substantial number of employees in a unit alleging that the exclusive representative no longer represents a majority of the employees within the unit and asking the DLR to hold an election to determine the exclusive representative.
Are there specific times during which a representation petition may be filed?
Yes. Generally, the DLR will not entertain a petition during the term of a valid collective bargaining agreement, unless the petition is filed no more than 180 days and no fewer than 150 days (no more than 90 days and no fewer than 60 days for petitions filed pursuant to M.G.L. c. 150A) prior to the expiration of the agreement. The DLR also will not entertain petitions filed during the first twelve months after an election, certification, and certain voluntary recognition agreements. It also will not entertain petitions filed by employee organizations within the first six months following the withdrawal of a petition or a disclaimer of interest in the employees.
What is an "agency service fee" and how does it work?
An "agency service fee" is a monetary amount that an employee organization may charge employees in its bargaining unit who are not members of the organization for their proportionate share of the costs of collective bargaining and contract administration. A nonmember who believes the amount of the service fee demanded by the employee organization exceeds that "proportionate share" may file a prohibited practice charge with the DLR. The fee payer may also challenge the validity of the demand on certain grounds set forth in DLR regulations or case law.
FAQ - The Collective Bargaining Process
What is collective bargaining?
Collective bargaining is the mutual obligation of employers and employees' representatives to meet at reasonable times and confer in good faith with respect to wages, hours, standards of productivity and performance, and other terms and conditions of employment. This includes the mutual obligation to negotiate an agreement and bargain over questions arising under an agreement.
Who may represent the respective parties in the actual bargaining process?
The parties may be represented by a person or persons of their own choosing at the bargaining table.
What if the provisions of the collective bargaining agreement conflict with applicable law?
If there is a conflict between the provisions of a collective bargaining agreement and certain statutes enumerated in Section 7(d) of the Law, the terms of the agreement prevail. The enumerated statutes deal essentially with wages and/or "working conditions." If there is a conflict between the provisions of a collective bargaining agreement and a statute not enumerated in Section 7(d) of the Law, the statute prevails, but an employer generally must still bargain over the impacts of the statute on any mandatory subjects of bargaining.
Must an employer negotiate with the bargaining unit’s representatives?
Yes. The employer and exclusive bargaining representative must, upon demand, negotiate in good faith with respect to wages, hours, standards of productivity and performance, and other terms and conditions of employment. No public employer may exempt itself from the operative provisions of the law. However, if a term or condition of employment is addressed in a collective bargaining agreement, generally the employer is not obligated to bargain over that topic during the life of the agreement.
Is either side required to agree?
No, but both sides must bargain in good faith to agreement or impasse. If an agreement is reached, it should be reduced to writing and executed by the parties.
FAQ - Impasse
What if the public employer and labor organization fail to reach an agreement on a new or successor collective bargaining agreement?
The Law prohibits public employees from striking. It also prohibits public employers from unilaterally changing terms and conditions of employment. The DLR administers procedures for resolving collective bargaining impasses under the public employee collective bargaining law. These procedures comprise mediation, fact-finding, and interest arbitration. Impasse resolution services for police and firefighters are provided by the DLR through the Joint Labor-Management Committee (JLMC).
How does the mediation process work?
After a reasonable period of negotiation, the parties acting individually or jointly may petition the DLR for an impasse determination and the initiation of mediation. The DLR will investigate whether the parties have negotiated for a reasonable period of time and if an impasse exists.
Once an impasse is found, the DLR appoints a mediator to assist the parties in reaching agreement. In some instances, the parties themselves agree upon a mediator.
Suppose the parties still cannot agree? Will a neutral third party be brought in to make findings of fact?
If, despite the best efforts of the mediator, the impasse continues, the mediator will recommend to the DLR Director that the case be certified to fact-finding.
A fact-finder will generally be selected from a list sent to the parties by the DLR. If the parties cannot agree, the DLR will appoint the fact-finder. The fact-finder's primary responsibility is to preside at fact-finding hearings and issue a written report with recommendations for resolving all issues in dispute. The fact-finder has the authority to mediate the dispute at the request of both parties.
At the conclusion of fact-finding, the fact-finder must submit his or her report to the parties and the DLR. The recommendations contained in the report are advisory and do not bind the parties. If the impasse remains unresolved ten days after the receipt of the findings, the DLR is required to make them public.
If the fact-finding procedure fails to resolve the dispute, what can the parties do?
Normally, if the impasse continues after the publication of the fact-finder's report, the issues in dispute go back to the parties for further mediation. If, after further mediation the parties are still at impasse, either or both parties may request the DLR to certify to the parties that the collective bargaining process, including mediation, fact-finding, or arbitration, if applicable, has been completed. If the DLR determines that the dispute resolution mechanisms provided for in Section 9 of the Law have been exhausted, it will certify to the parties that the collective bargaining process has been completed.
Once an agreement is reached, may the parties specify procedures to be used to settle disputes concerning its interpretation?
Yes. The parties may include in any written agreement a grievance procedure culminating in final and binding arbitration to be invoked in the event of any dispute concerning the interpretation of the agreement. The parties may include in the contract the name of the arbitrator and/or the organization from which they will select an arbitrator. The parties may agree to provide for arbitration through the DLR. The DLR charges a fee for arbitration and grievance mediation services.
If a collective bargaining agreement does not include final and binding grievance arbitration, the DLR may order binding arbitration of any grievance arising under the terms of the agreement upon the request of either party to the agreement.
FAQ - Joint Labor Management Committee (JLMC)
What is the Joint Labor Management Committee?
The JLMC is composed of twelve members, plus a chairperson. The twelve members are appointed by the governor: three from nominations by firefighter unions; three from nominations by police unions; and six from nominations by the governor's Local Government Advisory Committee. The JLMC nominates the chair. In addition to overseeing police and firefighter negotiations, the JLMC may, at its discretion, take jurisdiction in any dispute over the negotiation of the terms of a collective bargaining agreement involving municipal firefighters or police officers.
The JLMC, or its representatives, may meet with the parties to a dispute, conduct formal and informal conferences, and take other steps to encourage the parties to agree on the terms of a contract or procedures to resolve the dispute. Some of these procedures include mediating, monitoring negotiations, conducting hearings, and ordering arbitration.
What happens if impasse exists with police and firefighters?
Chapter 589 of the Acts of 1987 gives the JLMC the power to resolve collective bargaining impasses through interest arbitration award.
What happens at Interest arbitration in a JLMC case?
There are different formats for interest arbitration, but the JLMC’s cases are usually decided by a tripartite panel (though there are instances when the parties choose to have a single arbitrator). The JLMC tells the arbitration panel what issues they are authorized to decide. The issues normally consist of wages, duration of the contract, and up to five separate issues for each party. The parties will appear before the arbitration panel and present evidence through witnesses and/or exhibits. The law creating the JLMC lists the criteria the arbitration panel/arbitrator should consider in reaching a decision, including: 1. What can the employer afford to pay, given its demographics? 2. How does the employer pay other employees, especially police (in a fire case) and fire (in a police case), both historically and in the present? 3. How do communities demographically comparable to this community pay? The parties will generally submit post-hearing briefs about a month after the arbitration hearing, and the arbitration panel generally will issue its decision about a month after that.
Is a JLMC Interest Award binding?
After the interest arbitration award is issued, the arbitration panel's award is binding upon the union and the executive branch of the employer. However, to the extent that the contract needs to be funded, it is binding only if and when the legislative branch of the government (i.e., the Council or Town Meeting) votes to appropriate such funding.