1. Make Whole
The CERB may order make whole remedies to compensate employees who suffer economic losses due to a party’s unlawful action.[711] Economic losses must be actual and not speculative, so as not to give employees a windfall or place them in a better position than they would have been in but for the wrongdoer’s unlawful conduct.[712] In addition to lost wages, a make whole remedy may include benefits such as sick and vacation pay.[713]
a. Back Pay
Back pay is determined by using the following formula:
Net pay = gross back pay – [interim earnings – expenses][714]
- Gross Pay
Gross pay includes such items as:
- Overtime.
- Bonuses.
- Vacation pay.
- Holiday pay.
- Retirement benefits.
- Insurance benefits.
- Tips.
- Clothing allowance.[715]
The CERB orders a broad make whole remedy, therefore, the charging party may need to file a request for a compliance hearing to calculate any specific dollar amount owed.[716]
- Interim Earnings
Interim earnings include only income earned as a result of the unlawful discharge or other adverse action, such as unemployment compensation.[717]
- Expenses
Expenses are generally those incurred while receiving interim earnings.[718]
- Mitigation
Employees discharged in violation of Chapter 150E have an obligation to mitigate back pay liability by seeking appropriate interim employment. However, the burden of proof on the issue of mitigation is on the employer.[719] To meet that burden, an employer must demonstrate the following:
- One or more discoverable opportunities for comparable employment were available in a location as convenient as, or more convenient than, the place of former employment.
- The employee unreasonably made no attempt to apply for the comparable jobs.
- It was reasonably likely that the employee would have obtained one of those jobs.[720]
- Interest
The CERB has the authority to order interest on a back pay award.[721] Make whole remedies generally include an interest award to ensure that the respondent is not rewarded for its use of the injured party’s finances.[722] The interest rate is the statutory floating rate found in M.G.L. Chapter 231, Section 6I.[723]
In an agency service fee challenge, the interest on amounts that the union must refund to the employee from a joint-interest bearing escrow account should include all applicable interest at the rate paid upon sums in the joint escrow account.[724]
b. Reinstatement
The CERB may order that the employer reinstate an employee. The following cases address reinstatement:
- Where an unlawfully discharged employee’s former job is no longer available, the employer must offer reemployment to a substantially equivalent position.[725]
- Reinstatement is appropriate even if it results in a teacher obtaining tenure,[726] or an employee being reinstated to a managerial position.[727]
- Where an employee retires after an unlawful job loss, whether the make whole remedy will include reinstatement depends on whether the employee would have retired even if the employee had not lost his or her job.[728]
c. Bargaining Orders
In cases where the employer has unilaterally altered wages, hours or other terms or conditions of employment, the CERB typically orders the employer to restore the status quo ante until it fulfills its bargaining obligation.[729] If the bargaining obligation involves only the impacts of a decision to alter a mandatory subject of bargaining, the CERB typically limits its bargaining order, restoring the economic equivalent of the status quo ante for a period of time sufficient to permit good faith bargaining to take place.[730]
In cases where the CERB had determined that the employer has committed independent and substantial unfair labor practices which undermine majority strength and impede the election process, the CERB may issue a “Gissel bargaining order,” which requires that the employer bargain with the union as the exclusive bargaining representative without the need for an election.[731]
d. Front Pay
Front pay compensates a party for the loss of future earnings resulting from the respondent’s unlawful conduct in situations when reinstatement is not appropriate. Front pay cases raise questions of how long the payment should continue, and whether the amount owed should be reduced to its present value.[732]
e. Other Affirmative Action
- In cases involving the repudiation of a collectively bargained agreement, the CERB gives the injured party the benefit of the bargain.[733]
- In a challenge to an agency service fee, a union must cease and desist from attempting to collect a fee based on an invalid fee demand.[734]
- In unlawful parity cases, the employer must cease and desist from implementing the unlawful clause.[735] In the absence of evidence that any employee suffered any monetary loss, the employer is not ordered to pay the “profits” realized by the bargaining unit that enjoyed the benefits of the clause, as such an order would, in effect, impose punitive damages.[736]
- In cases where an employer has unlawfully granted an economic benefit to an employee, the employee does not need to return the benefit. Rather, the employer must prospectively rescind the economic benefit.[737]
- Where a charging party’s loss is compensable and quantifiable, but there are multiple ways to make employees whole, the CERB may suggest other options to allow the parties to choose the option that they want.[738]
f. Independent Section 10(a)(1) Violations
The traditional remedy for an employer’s independent violation of Section 10(a)(1) of the Law is a cease and desist order; however, the CERB may broaden that remedy under certain circumstances.[739]
g. Duty of Fair Representation Violations
In cases where a union has breached its duty of fair representation by failing to pursue a grievance, the union must take any and all steps necessary to have the grievance resolved, including requesting arbitration or making the employee whole for damage sustained as a result of the union’s unlawful conduct.[740] However, if the union can show that the individual employee would have lost the underlying grievance regardless of the union’s misconduct,[741] the CERB only orders the union to post a notice to employees.[742]
h. Notice Posting
The requirement that a respondent post a notice to employees of its violation(s), including electronic posting, constitutes a means of effectuating the purposes and policies of Chapter 150E.[743] A posting that takes place during a time when most employees are not working is ineffective. For example, in cases involving school employees, the CERB has ordered that remedial orders be posted during the school year.[744]
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[709] Labor Relations Commission v. City of Everett, 7 Mass. App. Ct. 826 (1979).
[710] Commonwealth of Massachusetts, 29 MLC 132 (2003); but see Commonwealth of Massachusetts, 27 MLC 70 (2000) (CERB will not order payment for increased workload) and City of Boston v. Labor Relations Commission, 15 Mass. App. Ct. 122 (1983) (CERB not authorized to award attorney’s fees).
[711] Town of Shrewsbury, 15 MLC 1230 (1988).
[712] Town of Marion, 30 MLC 11 (2003).
[713] City of Malden, 20 MLC 1400 (1994); Adrian Advertising a/k/a Advanced Advertising, 13 MLC 1233 (1986).
[714] Greater New Bedford Infant Toddler Center, 15 MLC 1653 (1989).
[715] Newton School Committee, 8 MLC 1538 (1981), aff’d sub nom. School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983); Greater New Bedford Infant Toddler Center, 15 MLC 1653 (1989); Plymouth County House of Correction, 6 MLC 1523 (1979).
[716] City of New Bedford, 39 MLC 126 (2012).
[717] Boston School Committee, 29 MLC 143 (2003).
[718] Greater New Bedford Infant Toddler Center, 15 MLC 1653 (1989).
[719] School Committee of Newton vs. Labor Relations Commission, 388 Mass. 557 (1982); City of Lawrence, 39 MLC 400 (2013).
[720] Boston School Committee, 29 MLC 143 (2003); Commonwealth of Massachusetts, 16 MLC 1455 (1989).
[721] Town of Brookfield v. Labor Relations Commission, 443 Mass 315 (2005); Newton School Committee, 8 MLC 1538 (1981), aff’d sub nom. School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983).
[722] Worcester County Sheriff’s Department, 28 MLC 1 (2001), aff’d sub nom. Worcester County Sheriff’s Department v. Labor Relations Commission, 61 Mass. App. Ct. 1105 (Rule 1:28 decision) (2004); but see City of Boston, 8 MLC 2111 (1982), aff’d sub nom. Boston Public Library Professional Staff Association v. Labor Relations Commission, 15 Mass. App. Ct. 1110 (Rule 1:28 Decision) (1983) (the CERB will not order interest where it is too speculative, such as when there is no evidence of a sum certain or a definite period of time).
[723] Ashburnham-Westminster Regional School District, 29 MLC 191 (2003).
[724] Melvin A. Brown, 15 MLC 1206 (1988).
[725] Greater New Bedford Infant Toddler Center, 15 MLC 1653 (1989).
[726] Southern Worcester County Regional Vocational School District v. Labor Relations Commission, 386 Mass 414 (1982).
[727] Town of Burlington, 9 MLC 1139 (1982), aff’d sub nom. Town of Burlington v. Labor Relations Commission, 17 Mass. App. Ct. 402 (1984).
[728] City of Lawrence, 39 MLC 400 (2013).
[729] City of Boston, 38 MLC 201 (2012); Town of Weymouth, 23 MLC 70 (1996).
[730] Lowell School Committee, 26 MLC 111 (2000); City of Malden, 20 MLC 1400 (1994).
[731] Plainridge Race Course, Inc., 28 MLC 185 (2001) (citing NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)); Sulrain, Inc., 2 MLC 1358 (1976).
[732] Commonwealth of Massachusetts, 36 MLC 65 (2009).
[733] Commonwealth of Massachusetts, 26 MLC 212 (2000).
[734] Malden Education Association, 15 MLC 1429 (1989).
[735] Medford School Committee, 3 MLC 1413 (1977).
[736] Town of Shrewsbury, 15 MLC 1230 (1988).
[737] Millis School Committee, 23 MLC 99 (1996).
[738] Woods Hole, Martha’s Vineyard and Nantucket Steamship Authority, 14 MLC 1518 (1988), (CERB suggested options for restoring a lost pension plan, which included reinstatement of the pension plan, creation of a comparable annuity benefit package, or paying the full value of all pension benefits).
[739] Salem School Committee, 35 MLC 199 (2009); cf. Bristol County Sheriff’s Department, 33 MLC 107 (2007) (CERB ordered employer to revoke employee discipline it issued in violation of Section 10(a)(1) of the Law); Commonwealth of Massachusetts/Commissioner of Administration and Finance, 18 MLC 1020 (1991) (CERB ordered reinstatement of employee where termination was linked to information received during interview that violated employee’s Weingarten rights).
[740] United Steelworkers of America, 31 MLC 122 (2005), aff’d sub nom. United Steelworkers of America v. Commonwealth Employment Relations Board, 74 Mass. App. Ct. 656 (2009); Quincy City Employee’s Union, H.L.P.E., 15 MLC 1340 (1989).
[741] The union may request to bifurcate the hearing to allow it to present evidence regarding the merits of the underlying grievance at a subsequent proceeding, if necessary. See Quincy City Employees Union, H.L.P.E., 15 MLC 1340 (1989), aff’d sub nom. Pattison v. Labor Relations Commission, 30 Mass. App. Ct. 9 (1991).
[742] United Steelworkers of America, 31 MLC 122 (2005), aff’d sub nom. United Steelworkers of America v. Commonwealth Employment Relations Board, 74 Mass. App. Ct. 656 (2009).
[743] Commonwealth of Massachusetts, 26 MLC 218 (2000); Billerica School Committee, 6 MLC 1824 (1980).
[744] Hudson Education Association, 15 MLC 1126 (1988).