1. Section 9

Section 9 of the Law establishes a mechanism for the resolution of bargaining impasse through mediation, fact-finding, and voluntary interest arbitration. Section 9 impasse resolution procedures may be used for initial and successor collective bargaining agreement impasse, but not for deadlocks that occur during the term of an agreement.[638]

If the parties are unable to reach agreement and break their impasse after participating in the Section 9 impasse resolution procedures, the Director may certify that the parties have completed the collective bargaining process. It is only at this time that the employer may implement its last best final offer. The last best final offer is the offer that was proposed by the employer before the Section 9 proceedings were initiated.[639]

It is a violation of Sections 10(a)(6) and 10(b)(3) of the Law to refuse to participate in good faith in the Section 9 impasse procedures.[640] The good faith requirement contemplates compliance with the DLR’s rules, as well as reasonableness, integrity, honesty of purpose and a desire to seek a resolution of the impasse consistent with the respective rights of the parties.[641] Where one or both parties have filed a Section 9 petition, an employer may not make unilateral changes to any matters encompassed by contract negotiations until the Section 9 process is complete.[642]

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[638] Massachusetts Board of Regents of Higher Education, 13 MLC 1540 (1987), aff’d sub nom. Massachusetts Community College Council MTA/NEA v. Labor Relations Commission, 402 Mass. 352 (1988); Cambridge Health Alliance, 37 MLC 168 (2011).

[639] Cambridge Health Alliance, 40 MLC 320 (2014).

[640] NAGE, 8 MLC 1484 (1981); Worcester Housing Authority, 5 MLC 1459 (1978).

[641] Framingham School Committee, 4 MLC 1809 (1978).

[642] Cambridge Health Alliance, 37 MLC 39 (2010).

2. JLMC

Chapter 489 of the Acts of 1987 (JLMC statute) provides for impasse resolution procedures in municipal police and fire cases.[643] An employer who refuses to participate in good faith in the impasse procedures invoked by the JLMC violates Section 10(a)(6) of the Law.[644]

Unlike the situation where one or both parties have filed a Section 9 petition, as described above, it is not a per se violation of Chapter 150E for a municipal police or fire employer to implement a bargaining proposal prior to exhaustion of JLMC procedures.[645] Rather, the union must provide additional evidence showing that the employer otherwise refused to participate in good faith in the JLMC’s procedures.[646]

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[643] Town of Bellingham v. Local 2071, IAFF, 64 Mass. App. Ct. 446 (2005), mandate vacated on other grounds, 67 Mass. App. Ct. 502 (2006).

[644] City of Boston, 41 MLC 119, MUP-13-3371 et al. (November 7, 2014); City of Melrose, 28 MLC 53 (2001).

[645] City of Boston, 41 MLC 119, MUP-13-3371 et al. (November 7, 2014); Town of Stoughton , 19 MLC 1149 (1992).

[646] Id.

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