Summary of Law

Summary of law for public employee collective bargaining

A. Jurisdiction

1. Federal Preemption

The National Labor Relations Act, 29 U.S.C. § 151, et se

q. (NLRA), covers employers engaged in interstate commerce and, therefore, generally preempts any state labor relations law. However, Section 2(2) of the NLRA specifically excludes states and other “political subdivisions” from coverage. Federal law determines whether an entity is a political subdivision.[108]

Section 14(c)(1) of the NLRA permits the National Labor Relations Board (NLRB) to decline to assert jurisdiction over any class or category of employers "where, in the opinion of the [NLRB], the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction." In these cases, the DLR may assert jurisdiction under Chapter 150A.[109] Examples of this include:

• Horse and dog racing industries.[110]
• Day care centers with less than $250,000 in gross annual revenues.[111]

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[108] NLRB v. Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600 (1971).

[109] M.G.L. c. 150A, § 10(b); Operations and Maintenance Service Westover Jobs Corps. Center/G.E. v. Labor Relations Commission, 405 Mass. 214 (1989).

[110] NLRB Rules and Regulations, Part 103.3; Plainridge Race Course, 28 MLC 185 (2001).

[111] Salt & Pepper Nursery School & Kindergarten No. 2, 222 NLRB 1295, 91 LRRM 1338 (1976); Greater New Bedford Infant Toddler Center, 12 MLC 1131 (H.O. 1985), aff’d, 13 MLC 1620 (1987)

2. Parallel Jurisdiction

The DLR has parallel jurisdiction with the Civil Service Commission (CSC) in certain limited areas. For example, the Supreme Judicial Court has held that the CSC vindicates a private right of a complaining employee, while the DLR acts as a public prosecutor to test a public right [112]. Therefore, even if the CSC had previously found that a public employer had just cause for disciplining an employee, the DLR may examine the facts to determine whether the discipline was imposed in retaliation for the employee's participation in protected activities.[113]

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[112] Town of Dedham v. Labor Relations Commission, 365 Mass. 392 (1974).

[113] Board of Selectmen of Natick v. Labor Relations Commission, 16 Mass. App. Ct. 972 (1983).

3. Primary Jurisdiction/Exhaustion of Administrative Remedies

Generally, courts defer action on cases in which the subject matter is within the jurisdiction and expertise of an administrative agency, such as the DLR, to permit the agency to first decide the case.[114]

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[114] Leahy v. Local 1526, American Federation of State, County and Municipal Employees, 399 Mass. 341 (1987) (duty of fair representation cases should ordinarily be decided by the DLR in the first instance); School Committee of Greenfield v. Greenfield Education Association, 385 Mass. 70 (1982) (challenges to a union’s assessment of an agency service fee are within the DLR’s primary jurisdiction).

B. Definitions

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 58, 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).

C. Employee Rights to Organize and Bargain Collectively

Section 2 of the Law provides that employees have the following rights:

• The right of self-organization and the right to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing;
• The right to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection, free from interference, restraint or coercion; and
• The right to refrain from such activities.

1. Concerted, Protected Activities

The following sections provide further detail on situations in which the CERB has found that employees were engaged in concerted, protected activity:

a. Union Activities

• Being an active union president, member of executive board and negotiating committee, and filing/processing/participating in grievances.[167]
• Sending an email to encourage picketing, attending a school committee meeting, and voting to abstain on reports relative to a core subject of the ongoing contract dispute.[168]
• Discussing union activities during work time when an employer permitted discussion of other non-work topics during work.[169]
• Writing a letter to supervisors to complain about terms and conditions of employment and working conditions.[170]
• Publicly protesting working conditions.[171]
• Asking a union vice president about using vacation time.[172]
• Soliciting union authorization cards.[173]
• Non-disruptive picketing of school committee meetings, homes and businesses of school committee members, and distributing leaflets to parents in support of union organizational or bargaining objectives.[174]
• Wearing union insignia during work hours.[175]
• Conducting a vote of no-confidence in a supervisor by mail ballot among union membership and membership of interested union, where the vote was clearly directed at improving terms and conditions of employment.[176]

b. Grievances or Complaints

• Initiating a grievance under the collective bargaining agreement.[177]
• Filing grievances and publicly criticizing how the school committee handled employee complaints.[178]
• Meeting with and asking a union for help with a grievance.[179]
• Prosecuting a grievance outside of the context contractual grievance procedure.[180]
• Acting in an intemperate manner while presenting a grievance if provoked by employer.[181]
• Appealing a disciplinary action to the Civil Service Commission.[182]
• Voicing an individual complaint about working conditions which have an impact on the bargaining unit as a whole.[183]
• Joining together to investigate wages through the Department of Labor and Industries.[184]

c. The Right to Representation at an Investigatory Interview

An employee is engaged in protected activity when requesting union representation at an investigatory interview that the employee reasonably believes will lead to discipline.[185] For further information on an employee’s Weingarten rights, see Section III(F)(1)(a)(2).

d. Other Concerted, Protected Activities

• Testifying at a DLR proceeding.[186]
• Speaking out at a town meeting against the town’s proposed budget.[187]

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[167] Sheriff’s Office of Plymouth County, 39 MLC 41 (2012).

[168] Andover School Committee, 40 MLC 1 (July 2, 2013).

[169] Bristol County Sheriff’s Department, 31 MLC 1 (2004).

[170] Suffolk County Sheriff’s Department, 27 MLC 155 (2001).

[171] Town of Bolton, 32 MLC 20 (2005).

[172] Commonwealth of Massachusetts, 24 MLC 106 (1998).

[173] Town of Wareham, 3 MLC 1334 (1976).

[174] Southern Worcester County Regional Vocational School District, 2 MLC 1488 (1976), aff’d sub nom. Southern Worcester County Regional Vocational School District v. Labor Relations Commission, 377 Mass 897 (1979).

[175] Dighton School Committee, 8 MLC 1303 (1981).

[176] City of Lawrence, 15 MLC 1162 (1988).

[177] Newton School Committee, 35 MLC 9 (2008).

[178] Athol-Royalston Regional School Committee, 28 MLC 204 (2002).

[179] Quincy School Committee, 27 MLC 83 (2000).

[180] Harwich School Committee, 2 MLC 1095 (1975).

[181] Town of Westborough, 5 MLC 1116 (1979); compare City of Boston, 6 MLC 1096 (1979) (egregious and offensive conduct can lose its protected status).

[182] City of Newton, 32 MLC 37 (2005).

[183] Id.

[184] Luana’s Mexican Hat Restaurant, 8 MLC 1207 (1981) (CERB found violation under Chapter 150A).

[185] Town of Hudson, 29 MLC 52 (2002), aff’d sub nom. Town of Hudson v. Labor Relations Commission, 69 Mass. App. Ct. 549 (2007).

[186] City of Boston, 4 MLC 1033 (1977).

[187] Town of Tewksbury, 19 MLC 1808 (1993).

2. Unprotected Activities

The following are examples of conduct which the CERB has determined is not protected under the Law:

• Discussions with employer about working conditions absent evidence that the employee was acting on the authority of, or in concert with, other employees.[188]
• Improper tactics intended to coerce the employer into accepting the union’s position, or illegal activities, such as vandalism.[189]
• Conduct which is physically intimidating, egregious, or disruptive of the employer’s business.[190]
• Threatening behavior toward a union member who speaks out against a union.[191]

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[188] Massachusetts Port Authority, 35 MLC 61 (2008); Town of Southborough, 21 MLC 1242 (1994).

[189] City of Fitchburg, 2 MLC 1123 (1975).

[190] City of Boston, 6 MLC 1096 (1979) (CERB will balance the rights of employees to engage in concerted activities, and the rights of employers not to be subjected to egregious, insubordinate, or profane remarks that disrupt the employer's business or demean workers or supervisors).

[191] Town of Bolton, 32 MLC 13 (2005).

D. Appropriate Bargaining Units [192]

1. Statutory Criteria

Section 3 of the Law requires that the DLR proscribe rules and regulations and establish procedures for appropriate bargaining unit determinations, which must be consistent with the purpose of providing for stable and continuing labor relations.

Voluntary recognition and a stipulation of the parties as to the appropriate unit are not dispositive.[193] Rather, the DLR makes its appropriate bargaining unit determinations based upon the following statutory criteria.[194] 

a. Community of Interest

The employees in a bargaining unit must share a “community of interest,” which is common working conditions and interests that would be involved in collective bargaining.[195] The touchstone of community of interest is a demonstration that the employees who seek representation requested comprise a coherent group with employee interests sufficiently distinct from those of excluded employees to warrant separate representation.[196] The factors to consider include:

• Common supervision.
• Similar pay and work conditions.
• Job requirements.
• Similar skills and functions.
• Education.
• Training and experience.
• Job interchange and work contact.[197]

The DLR does not rely solely on an employee’s job title in determining unit placement. Evidence of actual duties is required.[198] Generally, job descriptions alone are not sufficient evidence unless the parties stipulate that the description accurately and completely describes the position.[199]

Community of interest does not require an identity of interest. Represented employees need only to be similarly situated with no inherent conflict among consolidated employees.[200] Differences in work locations, hours worked or supervision do not necessarily destroy community of interest.[201]

b. Efficiency of Operations and Effective Dealings

The DLR’s policy is to place employees in the largest practicable bargaining unit.[202] It considers whether separate units fragment the work force and adversely impact the employer’s efficiency of operations.[203] The DLR also analyzes the employer’s:

• Structure.
• Delivery of services.
• Fiscal administration.[204]

c. Safeguarding Employee Rights to Effective Representation

Chapter 150E prohibits the creation of a unit structure which would impair employees’ statutory rights.[205] Therefore, the DLR avoids establishing units with a diversity of employment interests so marked as to produce inevitable conflicts in negotiation and administering collective bargaining agreements.[206] Most importantly, the DLR avoids creating units in which conflict is inherent because of a lack of community of interest among the employees.[207]

1. Policy Considerations

a) DLR’s Broad Discretion

• The DLR has broad discretion to determine appropriate bargaining units.[208]
• Where the union’s petition describes an appropriate unit, the DLR does not reject that unit because it is not the most appropriate unit, or because there is an alternative unit that is more appropriate.[209]

b) Comprehensive Units Favored

• The DLR favors broad, comprehensive units over small, fragmented, diverse units.[210]
• The DLR declines to certify small, separate units when there are other employees who share a community of interest with the employees seeking the separate unit.[211]
• Bargaining units limited to departments or other administrative divisions are too narrow to be appropriate if the employees share a community of interest with a larger group of employees sufficient to create a broad, comprehensive bargaining unit. [212]
• The DLR rejects a one-person unit when there is a larger appropriate unit.[213]

c) Stipulated Units

When the employer and employee organization agree on the positions to include in a bargaining unit, the DLR adopts their agreement if it does not conflict with either the Law or established policy.[214]

2. Supervisory Units

Generally, the DLR establishes separate bargaining units for supervisors and the employees whom they supervise since individuals who possess significant  supervisory authority often owe their allegiance to their employer, particularly in the areas of discipline and productivity.[215] However, separate supervisory unit  placement is a policy determination and is not always required.[216] To be considered supervisory, an employee must possess:

• Independent authority to make personnel decisions like hiring, transfers, promotion, discipline and discharge;
• Effective ability to recommend such personnel decisions; or
• Independent authority to assign and direct the work of their subordinates.[217]

The DLR also considers whether the employee has the authority to:

• Adjust grievances.
• Take charge in emergency situations.
• Assign off-duty employees to work overtime.
• Command a department in the absence of higher ranking  supervisory  authority.[218]

3. Professional Employees

A “professional employee” is engaged in work that meets all of the following criteria:

• Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work.
• Involving the consistent exercise of discretion and judgment in its performance.
• Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
• Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes.[219]

In cases involving groups of employees where some, but not all, possess the stated educational requirements, the DLR looks at whether a majority of the employees in the title possess the requisite education. If they do, the DLR presumes that this level of education is actually needed to perform the job and confers professional status even on those employees who do not possess the requirements. Conversely, if a majority of employees do not have the level of education stated, the DLR concludes that the work does not require the use of advanced knowledge.[220]

Section 3 of the Law specifies that professional employees may not be included in a bargaining unit with non-professional employees unless the majority of the professional employees vote for inclusion in the unit.

4. Technical Employees

Although technical employees have some of the characteristics of professional employees, they do not meet the specific requirements for qualification as a professional employee.[221] To determine whether an employee is technical, the DLR considers the following factors:

• Specialized training and knowledge.
• Performing work of a predominantly intellectual character requiring the use of independent judgment.
• Higher levels of skill and pay.
• In most cases, licensing or certification by a state or private agency.[222]

5. Statewide Units

DLR regulations identify the appropriate bargaining unit standards for Commonwealth employees as follows:[223]

Non-professional Employees

• Unit 1: Administrative and Clerical, including all non-professional employees whose work involves the keeping or examination of records and accounts or general office work.
• Unit 2: Service, Maintenance and Institutional, excluding building trades and crafts and institutional security.
• Unit 3: Building Trades and Crafts.
• Unit 4: Institutional Security, including the correctional officers and other employees whose primary function is the protection of the property of the employer, protection of persons on the employer’s premises, and enforcement of rules and regulations of the employer against other employees.
• Unit 4A: Supervisory employees of the Department of Correction in the title of Captain.
• Unit 5: Law Enforcement, including all employees with power to arrest, whose work involves primarily the enforcement of statutes, ordinances, and regulations, and the preservation of public order.
• Unit 5A: Sergeants and Troopers. [224]

Professional Employees

• Unit 6: Administrative, including legal, fiscal, research, statistical, analytical and staff services.
• Unit 7: Health Care.
• Unit 8: Social and Rehabilitative.
• Unit 9: Engineering and Science.
• Unit 10: Education.

6. Statutorily Mandated Units

In addition to defining the appropriate state police bargaining unit, Section 3 of the Law defines other “appropriate bargaining units” as follows:

• State Lottery Commission employees below the rank of assistant director.
• For judicial employees covered by Chapter 150E, there is a public safety professional unit composed of all probation officers and court officers, and a unit composed of all non-managerial or non-confidential staff and clerical personnel.
• Court officers in the superior court department for Suffolk and Middlesex counties are represented by such other bargaining units as they may elect.

7. Employees Other Than Regular Full-Time Employees

a) Part-Time Employees

• It is the DLR’s well-established policy to include all regular part-time employees in the same bargaining unit as full-time employees with whom they share a community of interest.[225]
• The DLR excludes from coverage those employees who lack a sufficient interest in their wages, hours and other terms and condition of employment to warrant collective bargaining.[226]

b) Seasonal Employees

• Seasonal employees may be included in a bargaining unit with regular employees if the seasonal employees have a community of interest with the other employees, and there is substantial stability in the seasonal work force from year to year.[227]
• In determining the appropriateness of including seasonal employees in a bargaining unit with regular employees, the DLR considers the seasonal employees’ expectation of continuing employment.[228]

c) Casual Employees

• Casual employees are excluded from coverage under the Law because they lack a sufficient interest in their wages, hours, and other terms and conditions of employment to warrant collective bargaining.[229]
• To determine if an employee is casual, the DLR considers factors such as:
  • Continuity of employment.
  • Regularity of work.
  • The relationship of the work performed to the needs of the employer.
  • The amount of work performed by the employee.[230]

d) Police and Fire

• Generally, call firefighters are entitled to collective bargaining rights where they are a municipality's sole source of fire protection, and the scope of the unit is otherwise easily identifiable because the municipality imposes certain requirements upon them.[231]
• The DLR has also found mixed units of call and regular firefighters appropriate, where, even though the call firefighters were not a municipality’s sole source of fire protection, the municipality exerted some control over their employment.[232]
• In cases where a municipality does not assign call firefighters to specific shifts or exert some quantifiable measure of control over their employment, the DLR has granted bargaining rights to at least some of these employees, where there was a clear and close relationship between the employees' work and the employers’ firefighting needs.[233]
• The DLR has found that special police officers are not regular part-time employees when there is an absence of regular assignment to shift work, coupled with a minimal number of total shift hours worked over a 12-month period.[234]

8. Modification of Existing Bargaining Units

A CAS, or unit clarification, petition is a petition for clarification or amendment of the bargaining unit, which only the employer or the employee organization may file. In general, it is the appropriate vehicle to determine whether newly-created positions should be included (accretion) or excluded (severance) from a bargaining unit, and to determine whether substantial changes in the job duties of existing positions warrant either their inclusion or exclusion from a bargaining unit.[235] A unit clarification petition is also appropriate if the outcome sought by the petition is clearly supported by an apparent deficiency in the scope of the existing unit and must be, at least arguably, within the realm of what the parties intended when the unit was first formulated.[236]

a) Severance

Traditionally, the DLR has not looked favorably upon severance petitions and has declined to use them to fix imperfectly constructed bargaining units.[237] In rare cases, a unit clarification petition may be used to exclude positions from a certified bargaining unit if:

• The original description of the unit lacked specificity; or
• The duties of the position at issue have changed since the certification.[238]

Under certain rare circumstances, the DLR has entertained a severance  petition on its merits, even where the duties of the position(s) at issue have not changed since recognition or certification, to determine whether the unit remained appropriate in light of certain significant operational changes, and where the disputed positions are held to be either managerial or confidential employees.[239] The DLR modifies a bargaining unit structure under these circumstances only where it determines that the existing unit is inappropriate as a matter of law.[240]

b) Accretion

When determining whether an employee should be accreted into an existing bargaining unit, the DLR uses a three-part test:

• First, the DLR determines whether the position was originally included in the certification or recognition of the bargaining unit. Absent a material change in job duties and responsibilities, the DLR does not accrete a position into a bargaining unit if it existed at the time of the original certification.
• If the above inquiry produces an inconclusive result, the DLR next examines whether the parties’ subsequent conduct, including their bargaining history, indicates that they considered the position to be included in the same bargaining unit.
• If this inquiry is also inconclusive, the DLR then considers whether the position sought to be accreted shares a community of interest with the existing positions. [241]

c) Stipulation by the Parties

The DLR adopts the parties' stipulation  where the issues raised by a petition are resolved by agreement of the parties, and the stipulation  does not appear to conflict with the Law or with established DLR precedent or policy.[242] If both parties have agreed to include a position, one party generally may not subsequently seek to exclude the position absent changed circumstances.[243]

d) Self-Determination or Add-On Election

In cases where accretion is not permitted, the DLR may, under special circumstances, permit a self-determination or add-on election among employees holding the disputed titles. A self-determination election may be ordered where:

• The union files a petition and a sufficient showing of interest;
• There is sufficient community of interest between the employees in disputed titles and employees in the existing unit;
• The petition seeks to include all such employees; and
• The reasons for the original exclusion no longer exist.[244]

If the DLR directs that such an election be held, the employees in the disputed titles have a choice of being represented by the incumbent representative of the existing unit or no employee organization. If a majority of the employees vote for no representative, they are not added to the unit.[245]

9. Judicial Review

The courts do not review the DLR’s certification of a bargaining unit until the CERB has issued a decision based upon an unfair labor practice charge, absent extraordinary circumstances.[246]

____________________

[192] Both the DLR and the 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, as further described below. For efficiency, the references to the DLR in this section will include the CERB.

[193] City of Springfield, 24 MLC 50 (1998).

[194] City of Worcester, 5 MLC 1332 (1978).

[195] Board of Trustees, University of Massachusetts (Lowell), 23 MLC 273 (1997); City of Malden, 9 MLC 1073 (1982).

[196] Greater Lawrence Sanitary District, 34 MLC 87 (2008); Massachusetts Board of Regional Community Colleges, 1 MLC 1426 (1975).

[197] University of Massachusetts (Boston), 40 MLC 315 (2014); Boston School Committee, 2 MLC 1557 (1976).

[198] Massachusetts Water Resources Authority, 37 MLC 29 (2010).

[199] Id.; Town of Tisbury, 30 MLC 77 (2003).

[200] Cambridge Health Alliance, 38 MLC 234 (2012); Franklin Institute of Boston, 12 MLC 1091 (1985).

[201] Boston School Committee, 25 MLC 160 (1999); Mass. Board of Regents, 14 MLC 1589 (1988) (department chairpersons, part-time faculty, and librarians were found to share a community of interest with full-time faculty); Mass. Board of Community Colleges, 1 MLC 1426 (1975) (professional faculty of the statewide network of community colleges placed in one overall unit).

[202] Greater Lawrence Sanitary District, 34 MLC 87 (2008).

[203] Greater Lawrence Sanitary District, 34 MLC 87 (2008); Mass. Board of Regional Community Colleges, 1 MLC 1426 (1975).

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

[205] Statement in Support of Adoption of Amendment to Rules and Regulations of the Commission Creating Statewide Occupational Units, 1 MLC 1319 (1975).

[206] Town of South Hadley, 35 MLC 122 (2008); University of Massachusetts, Union of Student Employees, 4 MLC 1384 (1977).

[207] Statement in Support of Adoption of Amendment to Rules and Regulations of the Commission Creating Statewide Occupational Units, 1 MLC 1319 (1975).

[208] City of Lowell, 35 MLC 300 (2009).

[209] Id.

[210] City of Worcester, 36 MLC 151 (2010).

[211] Greater Lawrence Sanitary District, 34 MLC 87 (2008).

[212] Town of Dartmouth, 29 MLC 204 (2003).

[213] Town of Berkley, 35 MLC 266 (2009).

[214] Town of Manchester-By-The-Sea, 24 MLC 76 (1998); Cf. Barnstable County, 26 MLC 183 (2000) (DLR rejected parties’ stipulation that the switchboard operator should be included in the proposed bargaining unit because of established policy to not place clerical employees in the same unit as maintenance employees).

[215] Town of Falmouth, 39 MLC 376 (2013); Burlington Educators Association, 33 MLC 31 (2006) (department heads and team leaders excluded from bargaining unit of teachers); Town of Provincetown, 31 MLC 55 (2004) (rule applies with no less force to unit determinations involving police departments).

[216] Town of Wareham, 36 MLC 76 (2009) (DLR declines to create a single person bargaining unit for supervisor).

[217] Bristol County Sheriff’s Office, 35 MLC 149 (2009).

[218] Id.

[219] M.G.L. c. 150E, § 1; City of Boston, 36 MLC 29 (2009).

[220] City of Boston, 38 MLC 157 (2011).

[221] Massachusetts Turnpike Authority, 31 MLC 87 (2004).

[222] Id.

[223] The statewide units do not apply to community and state college and university employees. 456 CMR 14.07.

[224] Unit 5A is not included in the DLR regulations, but was certified in Case No. SCR-2090 (1976). The state police ranks of lieutenant and above are prohibited from bargaining collectively under the Law. M.G.L. c. 150E, § 3; Commonwealth of Massachusetts, Secretary of Administration and Finance, 36 MLC 108 (2009).

[225] Town of Grafton, 28 MLC 399 (2002).

[226] Town of Lee, 34 MLC 39 (2007).

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

[228] Id.; Compare County of Dukes County Martha’s Vineyard Airport Commission, 25 MLC 153 (1999) (seasonal employees not included in bargaining unit) with City of Gloucester, 1 MLC 1170 (1974) (season summer employees returning year after year had collective bargaining rights, and it would be inappropriate for them to constitute a separate bargaining unit).

[229] Town of Lee, 34 MLC 39 (2007).

[230] Town of Wenham, 22 MLC 1237 (1995), aff’d sub nom., Town of Wenham v. Labor Relations Commission, 44 Mass. App. Ct. 195 (1998).

[231] Town of Leicester, 9 MLC 1014  (1982).

[232] Town of Sturbridge (Sturbridge I), 18 MLC 1416 (1992) (DLR included call officers, but not call firefighters, in a unit of full-time firefighters because town required two out of four officers to work weekend shifts); Town of Sturbridge (Sturbridge II), 29 MLC 156, 161 (2002) (call firefighters had a sufficient interest in their employment relationship where town regularly assigned them to work weekend shifts and required them to perform monthly drills).

[233] Town of Wenham, 22 MLC 1237, aff’d sub nom., Town of Wenham v. Labor Relations Commission, 44 Mass. App. Ct. 195 (1998) (unit of call firefighters appropriate for collective bargaining where there was a stable demand for the call firefighters and the town depended on them entirely to fight fires); Town of Boxford, 35 MLC 113 (2008) (following Town of Wenham, held that call firefighters who had responded to at least 33% of all alarms sounded in a year had a sufficient continuity of employment to entitle them to collective bargaining rights).

[234] Town of Lee, 34 MLC 39 (2007).

[235] City of Gloucester, 40 MLC 359 (2014).

[236] Id.

[237] Town of Marblehead, 27 MLC 142, 145 (2001).

[238] Weston School Committee, 37 MLC 224 (2011).

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

[240] Id.; See also Massachusetts Bay Transportation Authority, 37 MLC 146 (2011) (DLR finds that licensed plumbers are craft employees subject to Chapter 150A, § 5(b) and orders election to determine if they desire to be included in a bargaining unit of craft and non-craft employees); City of Boston, 36 MLC 29 (2009) (professionals included in a mixed unit who have not previously had an opportunity to vote over inclusion in unit with non-professionals were permitted self-determination election to determine whether they wished to remain in mixed unit or be represented in a stand-alone unit of professionals).

[241] Hull Teachers Association, 37 MLC 144 (2011); but see City of Gloucester, 40 MLC 359 (2014) (without determining whether the disputed position shared a community of interest with the unit positions, the DLR held that it is inappropriate to accrete a school committee position into a unit of municipal employees because the employees have different employers).

[242] Onset Water Department, 36 MLC 25 (2009) (DLR removed Superintendent position from unit pursuant to parties’ stipulation that the position was managerial).

[243] Sheriff of Worcester County, 30 MLC 132 (2004).

[244] Town of Falmouth, 27 MLC 27 (2000); City of Quincy Library Department, 3 MLC 1517 (1977).

[245] Id.

[246] Collective Bargaining Reform Association v. Labor Relations Commission, 436 Mass. 197 (2002); Sullivan v. Labor Relations Commission, 5 Mass. App. Ct. 532 (1977).

E. Determining Bargaining Representatives [247]

1. Voluntary Recognition

Section 4 of the Law allows a public employer to recognize an employee organization designated by a majority of the employees in the bargaining unit as the exclusive bargaining representative without the DLR conducting an election.

If an employer and an employee organization have accomplished a voluntary recognition according to DLR Regulation 456 CMR14.06(5), it bars an election (except for good cause shown) in that bargaining unit or a portion of it for 12 months. For further information, see Section III(E)(4)(e).

An employer may voluntarily recognize an employee organization that represents a majority of employees without following DLR regulations, but such voluntary recognition does not bar an election within 12 months after the voluntary recognition.[248]

____________________

[247] For more information on the DLR’s procedures in determining bargaining representatives, see Section II(B).

[248] Franklin County Sheriff’s Office, 36 MLC 125 (2010); Town of East Longmeadow, 14 MLC 1555 (1988).

2. Representation Petition and Hearing

a. Notice

The DLR requires that all interested parties be given notice of representation proceedings. The petitioner must provide the DLR with information regarding other organizations that may represent any employees affected by the petition.[249]

b. Showing of Interest

In Union Representation Petitions, the following showing of interest is required:

• A petitioner seeking to represent a proposed bargaining unit of employees who are not currently represented must submit a showing of interest of 30%.[250]
• A petitioner seeking to represent a bargaining unit of employees who are currently represented must submit a showing of interest of 50%.[251]
• If an additional union, other than the petitioning union or incumbent, wishes to intervene, it must submit a showing of interest of 10%.[252]

The sufficiency of the showing of interest is a DLR administrative determination and the parties to a representation petition cannot litigate it.[253] Once the DLR has made its showing of interest determination, it does not allow bargaining unit members to revoke their authorization.[254]

c. Status as “Employee Organization”

The definition of “employee organization” in Section 1 of the Law is purposely broad and does not require any specific type of organizational structure.[255] Instead, the CERB analyzes whether the organization:

• Assists 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.[256]

The CERB has found that the following do not undermine an organization’s status as an employee organization:

• The organization does not have by-laws, constitution, officers, dues, or any prior history of bargaining.[257]
• The organization has not complied with Sections 13 and 14 of the Law (although compliance is required before the DLR allows it to appear on the ballot).[258]
• The petitioning organization is financially supported, or dominated, by another employee organization.[259]

d. Employer’s Duty of Neutrality

When an employer receives the DLR’s Notice of Hearing in a representation case, it is on notice that there is a question of representation. The employer must then maintain strict neutrality, which includes not bargaining with the incumbent union during the pendency of the representation petition.[260] The failure to comply with this duty is a violation of Section 10(a)(2) of the Law.[261]

e. Employer-Initiated Representation Petitions

An employer may file a representation petition when one or more unions claim to represent a substantial number of employees in a bargaining unit.[262]

f. Decertification Petition

Employees who wish to decertify the incumbent union may file a petition requesting that the DLR conduct a decertification election.[263] The DLR requires:

• A petitioner seeking to decertify the incumbent collective bargaining representative must submit a showing of interest of 50%.[264]
• The appropriate unit in cases involving employee petitions to decertify an existing bargaining unit must correspond with either the unit previously certified by the DLR or the one recognized by the parties.[265]

g. Intervention and Disclaimer of Interest

If an employee organization wishes to intervene, the following showing of interest is required:

• An incumbent employee organization may intervene without filing a showing of interest.[266]
• Any other intervenor employee organization must file a 10% showing of interest.[267]

The failure of an incumbent employee organization to timely file a motion to intervene is treated as a disclaimer of interest in representing the petitioned-for employees, and the incumbent organization will not be on any ballot or be considered a necessary party to a consent agreement for election.[268]

h. Consent Election Agreement

The parties to a representation petition may waive a hearing and stipulate to a bargaining unit by executing a Consent Election Agreement, which must be approved by the DLR.[269] The DLR generally accepts the Consent Election Agreement unless the stipulated unit conflicts with the Law or established policy.[270]

i. Deferral to AFL-CIO “No Raiding” Procedure

If an employee organization affiliated with the AFL-CIO petitions to represent a bargaining unit currently represented by another employee organization affiliated with the AFL-CIO, any party may request the DLR to defer processing of the petition for 30 days to permit the employee organizations to pursue the settlement provisions of the AFL-CIO procedures.[271]

____________________

[249] 456 CMR 14.02(1)(f)-(g); 14.02(2)(e).

[250] 456 CMR 14.05(2).

[251] 456 CMR 14.05(3).

[252] 456 CMR 14.05(4).

[253] Bristol County Retirement Board, 27 MLC 124 (2001).

[254] City of Cambridge, 29 MLC 134 (2003) (if bargaining unit members have changed their minds, they will have the opportunity to vote for the representative of their choice in the election).

[255] Commonwealth of Massachusetts (Unit 6), 10 MLC 1557 (1984).

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

[257] Id.

[258] 456 CMR 14.12(1); West Barnstable Fire District, 17 MLC 1076 (1990).

[259] Commonwealth of Massachusetts (Unit 6), 10 MLC 1557 (1984).

[260] Quincy School Committee, 20 MLC 1306 (1993); Commonwealth of Massachusetts (Alliance), 7 MLC 1228 (1980).

[261] Id.

[262] M.G.L. c. 150E, § 4; University of Lowell, 3 MLC 1468 (1977).

[263] M.G.L. c. 150E, § 4.

[264] 456 CMR 14.05(3).

[265] Hingham Municipal Lighting Plant, 29 MLC 175 (2003); Town of Acton, 36 MLC 99 (2009) (may not decertify portion of existing unit).

[266] 456 CMR 14.05(4).

[267] Id.

[268] 456 CMR 14.18(1).

[269] 456 CMR 14.11.

[270]Town of Manchester-By-The-Sea, 24 MLC 76 (1998); Cf. Barnstable County, 26 MLC 183 (2000) (DLR rejected parties’ stipulation that the switchboard operator should be included in the proposed bargaining unit because of established DLR practice to not place clerical employees in the same unit as maintenance employees).

[271] 456 CMR 14.17.

3. Written Majority Authorization

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.[272]

____________________

[272] M.G.L. c. 150E, § 4; 456 CMR 14.19.

4. Bars to Processing Petition

a. Certification Bar

Except for good cause shown, the DLR does not process a petition for an election in any bargaining unit represented by a certified bargaining representative when the DLR has issued a certification of representative within the preceding 12 months.[273] The certification year begins on the date of initial certification.[274]

The principle purpose of the one-year certification bar is to insulate a newly-certified union from the disruptive pressure of outside organizing or petitions for decertification, giving the certified union time to establish a new bargaining relationship with the employer.[275] In cases applying the certification year bar, the DLR balances the right of the newly-certified bargaining representative to a reasonable period of good faith negotiations, with the right of employees to freely choose their representative.[276]

b. Contract Bar

1. Open Period

The contract bar doctrine prohibits the DLR from entertaining an election petition if a valid collective bargaining agreement is in effect, except for good cause, unless the petition is filed during the “open period” of no more than 180 days and no fewer than 150 days prior to the expiration date of the collective bargaining agreement.[277] The purpose of the contract bar rule is to establish and promote the stability of labor relations and to avoid instability of labor agreements.[278]

The following are guidelines regarding the open period:

• A successor contract that is negotiated and ratified prior to the open period for filing petitions under the existing valid collective bargaining agreement does not operate as a bar to a petition that is timely filed under the existing contract.[279] 
• A petition must actually be received at the DLR’s office within the 180-to-150 day open period.[280] A petition filed on the 150th day is considered timely.[281]
• Petitions filed during the open period may be amended after the end of the open period if the amendment does not claim a unit larger or substantially different from the unit originally sought.[282]
• The petition is not considered filed until it is accompanied by an adequate showing of interest.[283]
• Generally, the DLR allows a petitioner to amend its petition to correct any defects, but such amendments do not enlarge the open period for contract bar purposes.[284]

A CAS petition that was filed at a time when no contract was in effect is not barred by the subsequent execution of a collective bargaining agreement that retroactively covers the time period when the petition was filed.[285] The DLR entertains a CAS petition filed outside of the 180-to-150 day open period when it seeks to alter the composition or scope of an existing unit by adding or deleting job classifications that have been created or whose duties have been substantially changed since the effective date of the collective bargaining agreement.[286]

2. Complete and Final Agreement

For a collective bargaining agreement to bar the processing of a petition, the evidence must establish the existence of a complete and final agreement signed by all parties prior to the filing date of a rival petition.[287] Specifically:

• To be complete, an agreement must contain substantial terms and conditions of employment and may not be conditioned upon further negotiations.[288]
• If an agreement is contingent upon ratification, it must be ratified before the rival petition is filed for the DLR to determine that the agreement is final.[289]
• Informal memoranda may suffice to show the contractual terms, so long as the evidence establishes the existence of a complete and final agreement to which all parties have acquiesced by their written signatures or initials.[290]
• A contract need not have been funded by the legislative body in order to constitute a bar.[291]

3. Appropriate Unit

A contract must cover an appropriate unit in order to serve as a bar to a petition. However, the DLR does not test the appropriateness of the unit by the same community of interest standards it considers initially to determine an appropriate bargaining unit.[292]

If the petition seeks an appropriate unit, the DLR does not dismiss it merely because some of the petitioned-for employees also share a community of interest with other employees (not petitioned-for) who are covered by an existing contract.[293]

4. Contract Filing

A copy of any executed written collective bargaining agreement or Memorandum of Agreement (MOA) must be electronically filed with the DLR within 30 days of its execution by the employer, exclusive bargaining representatives or any other person. The copy of any MOA must include an electronic copy of the agreement it amends. For more information about contract filing, please see 456 CMR 12.12 (7).

5. Good Cause Exception

The DLR’s application of the contract bar doctrine is discretionary.[294] Exceptions to the contract bar rule are rarely found and generally require evidence of substantial disruption in bargaining relationships and threats to labor stability.[295]

A party may waive the contract bar doctrine, and the DLR decides whether to apply it or waive it depending on the facts of each case with a view toward fairness for the parties and the stability of bargaining agreements.[296]

The contract bar will not apply unless the parties have complied with the DLR rules requiring that they file an electronic copy of the contract with the DLR and the employee organization has properly filed its Forms 1 and 2. For more information on Employee Organization Information Reports (Form 1) and Employee Organization Financial Reports (Form 2), see 456 CMR 16.05 (1), 456 CMR 16.05 (2) and 456 CMR 14.06 (1)(c).

There is a good cause exception that allows the incumbent employee organization and/or the employer, after notification by DLR, 30 days to cure the failure to comply with these requirements. 456 CMR 14.06 (1)(e).

6. Three-Year Limit

No collective bargaining agreement may operate as a bar to a petition for a period of more than three years.[297] The three-year limit serves both to protect a public employer and the incumbent employee organization from too-frequent challenges and to preserve the opportunity for employees to re-examine their choice of bargaining representative at least every three years.[298] The following are guidelines in considering the three year limitation:

• A successor contract that is negotiated and ratified prior to the open period under the existing valid collective bargaining agreement does not bar a petition that is timely filed under the existing contract.[299]
• An incumbent employee organization's expressed desire to negotiate changes and revisions in the existing contract, which is received by the employer immediately preceding the  automatic renewal  date provided for in the contract, prevents that contract's renewal for contract bar purposes.[300]
• An expired contract does not bar a representation petition even though the parties agree to continue its terms during negotiations.[301]

c. Withdrawal/Disclaimer Bar

For information regarding the Withdrawal/Disclaimer Bar, please see 456 CMR 14.06(2) and Section II(B)(1)(d)(2). There is no case law that further clarifies this regulation.

d. Election Year Bar

For information regarding the Election Year Bar, please see 456 CMR 14.06(3) and Section II(B)(1)(d)(2).

e. Recognition Year Bar

The DLR does not process a petition for an election in any bargaining unit where a recognition agreement that complies with the requirements set forth in 456 CMR 14.06(5) has been executed in the preceding 12-month period, except for good cause shown.[302]

Because the recognition year bar rule places some limitations on employee free choice, there must be some evidence that the employer has recognized the employee organization as the exclusive representative of an appropriate bargaining unit of employees.[303] Specifically, the DLR requires that the employer:

• Have a good faith belief that the employee organization has been designated as the freely chosen representative of a majority of the employees in an appropriate bargaining unit;
• Conspicuously post a notice on bulletin boards where notices to employees are normally posted for a period of at least 20 consecutive days advising all persons that it intends to grant such exclusive recognition without an election to a named employee organization in a specified bargaining unit. If the employer usually communicates to its employees by intranet or email, the employer should forward a copy of the notice to all affected employees using those methods;
• Not extend recognition to an employee organization if another employee organization has within the 20-day period notified the employer of a claim to represent such employees and has prior to or within the 20-day period filed a valid petition for certification that is pending before the DLR; and
• Set forth in writing the recognition and a description of the bargaining unit, which is to be signed and dated by the employer’s representative and the employee organization’s representative.

The employee organization also must be in compliance with the applicable filing requirements set forth in Sections 13 and 14 of the Law and the employer must verify compliance with the DLR.[304]

Once the employer and union have negotiated and executed a recognition agreement, a copy of that agreement must be filed with the DLR no later than seven days after its execution.

If a petition is filed challenging the recognition bar because of a failure to comply with these requirements, the Department will notify the voluntarily recognized employee organization and the employer of the pending petition and of the non-compliance. The employer will have a period of no more than 30 days to cure this failure to comply. If the employer cures its failure to comply within the 30 period, the recognition bar will then attach as if there had been compliance.

There is a good cause exception to the above requirements.[305]

f. Blocking Charges

Any party to a representation petition may file a motion requesting that a pending prohibited practice charge block the conduct of an election.[306] The moving party must show:

• The conduct alleged in the prohibited practice charge has occurred;
• The alleged conduct violates the Law; and
• The alleged conduct may interfere with the conduct of a valid election.[307]

In determining whether a prohibited practice charge should block an election, the DLR considers the following factors:

• The character and scope of the charge and its tendency to impair the employees' free choice;
• The size of the working force and the number of employees involved in the events on which the charge is based;
• The entitlement and interest of the employees in an expeditious expression of their preference for representation;
• The relationship of the charging parties to the labor organizations involved in the representation case;
• The showing of interest, if any, presented in the representation case by the charging party; and
• The timing of the charge.[308]

If the DLR decides that a prohibited practice charge blocks a representation petition, the following occurs:

• The pending representation petition is "inactive" until resolution of the underlying prohibited practice complaint.
   
• While inactive, the petition is not considered to raise a question concerning representation and does not bar the employer and the incumbent union from fulfilling their statutory obligation to bargain in good faith.
   
• If the prohibited practice complaint is dismissed or withdrawn without issuance of a remedial bargaining order or settlement agreement requiring bargaining, the petitioner may file a motion requesting that the representation petition be reactivated.

If the prohibited practice complaint results in issuance of a remedial order or settlement agreement that requires the employer to bargain with the incumbent, the petition is dismissed.[309]

____________________

[273] 456 CMR 14.06(4).

[274] Springfield Housing Authority, 37 MLC 106 (2010).

[275] Commonwealth of Massachusetts, 19 MLC 1069 (1992).

[276] Springfield School Committee, 27 MLC 20 (2000).

[277] 456 CMR 14.06(1)(a). For petitions filed under Chapter 150A, the open period is no more than 90 days and no less than 60 days prior to the contract’s expiration. Hudson Bus Lines, 4 MLC 1630 (1977).

[278] City of Springfield, 35 MLC 56 (2008).

[279] City of Springfield, 35 MLC 56 (2008).

[280] City of Boston, 35 MLC 53 (2008); City of Springfield, 1 MLC 1446 (1975).

[281] Town of North Reading, 5 MLC 1209 (1978).

[282] Commonwealth of Massachusetts (Unit 4), SCR-2100 (1977) (unpublished).

[283] Chief Administrative Justice of the Trial Court, 6 MLC 1195 (1979).

[284] Commonwealth of Massachusetts (Trial Court), 10 MLC 1162 (1983).

[285] Massachusetts Organization of State Engineers and Scientists, 19 MLC 1778 (1993).

[286] 456 CMR 14.06(1)(b).

[287] City of Boston, 35 MLC 53 (2008).

[288] Id.; Cf. Town of Burlington, 14 MLC 1632 (1988) (side letter negotiations that were tangential, rather than integral, to the main contract need not necessarily have been completed for a contract to be a bar).

[289] Id.; Commonwealth of Massachusetts, 7 MLC 1825 (1981).

[290] City of Boston, 36 MLC 194 (2010).

[291] Bristol County Sheriff, 37 MLC 132 (2010).

[292] Boston Water and Sewer Commission, 6 MLC 1601 (1979).

[293] University of Massachusetts Medical Center, 12 MLC 1643 (1986).

[294] Chief Justice of the Administration and Management of the Trial Court, 29 MLC 10 (2002).

[295] Town of Saugus, 28 MLC 80, 83 (2001).

[296] Easton School Committee, 2 MLC 1111 (1975); Compare Chief Administrative Justice of the Trial Court 6 MLC 1195 (1979) (the initiation of reorganization during the certification year did not lead to such a massive frustration of the collective bargaining processes that would justify waiver of the usual contract bar rules) with Chief Justice of the Administration and Management of the Trial Court, 29 MLC 10 (2002) (good cause to waive the contract bar rule where a different party had previously filed a CAS petition over the same position, and that petition was pending during the term of the contracts affected by resolution of the unit placement issue).

[297] 456 CMR 14.06(1); City of Springfield, 35 MLC 56 (2008) (if a valid contract exceeds a fixed term of three years, the DLR treats that contract as one that is fixed for a term of three years).

[298] City of Springfield, 35 MLC 56 (2008).

[299] Id.

[300] Town of Agawam, 31 MLC 61 (2004); City of Somerville, 1 MLC 1312 (1975).

[301] University of Massachusetts, Boston, 2 MLC 1001 (1975).

[302] 456 CMR 14.06(5).

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

[304] 456 CMR 14.06(5).

[305] Id.

[306] 456 CMR 15, 11.

[307] New England Police Benevolent Association, 37 MLC 27 (2010).

[308] Id.

[309] Id.

5. Elections: Procedures, Challenges, and Objections

a. Type of Election

The DLR directs that a secret ballot election take place either in person or by mail.[310]

b. Eligibility to Vote

An employee who has a reasonable expectation of continued employment on the eligibility cutoff date specified in the DLR’s order directing an election and on the date of the election is eligible to vote.[311]

To determine whether an employee is a regular employee and eligible to vote, the CERB examines the employee’s work history for the 13 weeks preceding the eligibility date.[312]

c. Challenges to Eligibility List

Any party may challenge, for good cause, the eligibility of any person to vote in the election. The following guidelines apply:

• The DLR impounds the ballots of the challenged voters.
• If the number of challenged ballots is sufficient to determine the outcome of the election, then within seven days after the tally of ballots has been furnished, each party must file a short statement of its position concerning the eligibility of each challenged voter. Such statement shall include a recitation of the facts alleged by the party to be determinative of the challenged voter's eligibility.
• The DLR may require the parties to submit further evidence or argument, in order to determine whether a hearing is warranted.[313]

d. Objections to the Conduct of an Election

Within seven days after the DLR furnishes the tally of the ballots, any party to an election may file objections to the conduct of the election or to conduct affecting the result of the election.[314] A party cannot avoid the seven day time limit by amending previously filed objections more than seven days after the tally of ballots to add allegations that could have been timely raised.[315] Absent extraordinary circumstances, a party may not subsequently raise objections in a collateral proceeding at the DLR.[316]

Upon receipt of a party’s objections, the DLR takes the following steps:

• Determines if any of the objections merit further proceedings.
• Dismisses some or all of the objections if there is not probable cause to believe either that the alleged conduct occurred, or that the alleged conduct materially interfered with the conduct of the election or election results.[317]
• If the DLR does find probable cause, conducts further investigation and/or hearing as appropriate.[318]

The following are specific examples of election objections:

1. Misrepresentation

• The DLR does not set aside an election on the ground of misrepresentation unless a party has substantially misrepresented a highly material fact, the truth of which lies within the special knowledge of the party making the misrepresentation.[319]
• Even if there is misrepresentation, the DLR does not set aside an election if it finds that the voters have independent knowledge with which to evaluate the misrepresentation, or if there was no substantial impact on the election.[320]
• The DLR overturns an election because of misrepresentation if either the timing or nature of the statement precludes an effective response by another party, and the statement is likely to have interfered with the outcome of the election.[321]

2. Access to Campaign Literature; No Solicitation/Distribution Rules

• Employees have the right to distribute union literature and the right to observe and read that material.[322]
• Although an employer may promulgate rules regulating the distribution of union literature , the rules must be neutral and non-discriminatory so that employee access to union information is not improperly restricted.[323]
• Although employers are not required to grant union access to the employer’s premises for union meetings, objections based upon the employer’s denial of access is evaluated to determine whether the employer’s policy unduly restricted union access to employees and thereby interfered with the election.[324]

3. Circumstances Surrounding the Conduct of the Election

• DLR does not permit campaigning in the polling areas.[325] However, the presence of non-observers at an election site is objectionable only when there is evidence that their conduct could have affected the employees’ votes.[326]
• The DLR dismisses objections where there is no substantial evidence of sustained conversation and campaigning with prospective voters in the polling area.[327]

4. Eligibility List Inaccuracies

• An inaccurate voter eligibility list  may constitute cause for setting aside an election.[328]
• The DLR examines the potential harm to employees, and not the prejudice to competing unions.[329]

5. Altered/Reproduced Ballots

• The DLR may sustain objections to an election that was preceded by the distribution of an altered ballot that could have suggested to voters that the DLR endorsed one ballot choice in preference to another.[330]
• On a case-by-case basis, the DLR examines whether the reproduced ballot could have reasonably misled employees to believe that the DLR favored a particular election choice.[331]

____________________

[310] 456 CMR 14.12.

[311] Town of Tisbury, 6 MLC 1673 (1979); Franklin Institute of Boston, 12 MLC 1568 (1986) (employee on approved medical leave with an expectation of reemployment is eligible to vote).

[312] Town of Sturbridge, 29 MLC 156 (2003); Town of Millville, 11 MLC 1641 (1985).

[313] 456 CMR 14.12(2).

[314] 456 CMR 14.12(3).

[315] Commonwealth of Massachusetts, 16 MLC 1293 (1989).

[316] Labor Relations Commission v. The Clover Leaf Corporation, 372 Mass. 73 (1977).

[317] 456 CMR 14.12(3).

[318] Id.

[319] Quincy School Committee, 20 MLC 1306 (1993).

[320] Id.

[321] Commonwealth of Massachusetts, 22 MLC 1569 (1996).

[322] Salem School Committee, 35 MLC 225 (2009).

[323] Id.

[324] Hampshire Educational Collaborative, 36 MLC 25 (2009); Commonwealth of Massachusetts (Unit 7), 9 MLC 1842 (1983).

[325] City of Boston, 2 MLC 1275 (1976).

[326] Vinfen Corp., 11 MLC 1484 (1985).

[327] City of Methuen, 35 MLC 295 (2009).

[328] Compare City of Springfield, 24 MLC 109 (1998) (DLR finds that 12% error rate in voters’ addresses is not so substantial as to set aside election where there is no evidence of bad faith) with City of Springfield, 14 MLC 1010 (1987) (DLR set aside election where 14% of eligible voters’ names were omitted from list reasoning that omissions are more serious than incorrect addresses).

[329] City of Springfield, 24 MLC 109 (1998).

[330] Town of Barnstable, 15 MLC 1069 (1988); Commonwealth of Massachusetts (Unit 7), 10 MLC 1053 (1983).

[331] Town of Barnstable, 15 MLC 1069; Boston Water and Sewer Commission, 13 MLC 1071 (1986).

6. Affiliations

An employer is required to bargain with a union that has affiliated or disaffiliated with another organization when the following conditions are met:

a. Continuity

The affiliation or disaffiliation does not significantly disrupt the existing bargaining relationship. The DLR examines whether changes have occurred in the rights and obligations of the union’s leadership and membership, and in the relationships between the bargaining agent, its affiliates, and the employer.[332]

b. Due Process

The affiliation was undertaken with safeguards to ensure that the employees freely chose to affiliate or disaffiliate. In so determining, the DLR considers the procedures the union used, such as proper notice to all bargaining unit members, ample time for discussion, an orderly balloting process, and reasonable precautions taken to ensure the secrecy of the ballot.[333]

____________________

[332] Belmont School Committee, 9 MLC 1343 (1982); See also Town of Randolph, 33 MLC 143 (2007) (CERB considers same factors in determining that change in affiliation does not constitute good cause to waive the contract bar rule in representation case).

[333] Id.

F. Prohibited Practices

1. Employer Prohibited Practices

a. Section 10(a)(1)

1) In General

Generally, Section 10(a)(1) violations are most commonly found as derivative violations of other Section 10(a) violations because violations of other subsections of the Law also interfere with, restrain and coerce employees in the exercise of their rights under the Law. However, independent of other subsections, an employer violates Section 10(a)(1) of the Law when it engages in conduct that may reasonably be said to tend to interfere with, restrain, or coerce employees in the free exercise of their rights under Section 2 of the Law.[334]

The focus of an independent Section 10(a)(1) violation analysis is the effect of the employer’s conduct on reasonable employees exercising their Section 2 rights.[335] In analyzing a case:

• The CERB does not consider the motivation behind the conduct.[336]
• The CERB does not consider whether the coercion succeeded or failed.[337]
• The CERB considers the objective impact that the employer’s conduct would have on a reasonable employee under the circumstances.[338]
• The subjective impact of the employer’s conduct is not determinative.[339]

Expressions of anger, criticism or ridicule directed to employees’ protected activities have been recognized to constitute interference, restraint and/or coercion of employees.[340] Even without a direct threat of adverse consequences, the CERB has found a violation when an employer makes disparaging remarks about an employee’s exercise of protected activities.[341] However, the prohibition against making statements that would tend to interfere with employees in the exercise of their rights under the Law does not impose a broad “gag rule” that restricts employers from publicly expressing their opinion about matters of public opinion.[342]

Examples of independent Section 10(a)(1) violations include:

• Admonishment of an employee for choosing not to discuss the merits of a grievance with the employer or tell the employer before moving it to Level 3 of the grievance procedure.[343]
• Administrative inquiry coupled with threatening remarks.[344]
• Announcement of intent to promulgate a restrictive policy aimed at union communications.[345]
• Application of a different manner and method of interrogation for union president.[346]
• Coercive interrogation regarding union activities.[347]
• Criticism of an employee for alleged misconduct in the course of engaging in protected activity where the employee is innocent.[348]
• Demeaning and disparaging remarks.[349]
• Direct and indirect statements indicating the employer’s willingness to have bargaining unit members arrested for publicly airing their views about collective bargaining matters.[350]
• Implementation of a discriminatory rule.[351]
• Non-explicit threats where the language used can be reasonably construed as threatening.[352]
• Overbroad directive to bargaining unit members regarding performance of duties that employer issued in response to teachers work-to-rule action.[353]
• Removal of union literature posted on the employer’s bulletin board based solely upon the content of the literature.[354]
• Surveillance of union activities.[355]
• Threat of layoffs if grievances or prohibited practice charges are filed.[356]
• Threat of suspension for bringing union representation to meeting.[357]
• Threats regarding a grievance, even though employees continued to file grievances after the threat.[358]
• Threat to lower budget appropriations and implement layoffs if the union failed to support the budget committee’s strategy and sought an increase in a department’s appropriation.[359]

The following are examples of employer conduct that did not violate Section 10(a)(1):

• Critical expression of opinion without anger either in tone or language that did not demean employees.[360]
• Letter criticizing police officers for conduct following a sexual harassment incident referred to matters outside or beyond the protection of the Law.[361]
• Letter does not disparage, ridicule, or criticize the union or employees’ exercise of protected rights.[362]
• Providing compensation for employer witnesses at a CERB proceeding but not union witnesses.[363]
• Statement about “swimming with piranhas” where, in the context of the entire conversation, did not “chill employees from exercising their Section 2 rights.[364]

2) Weingarten

A public employer that denies an employee the right to union representation at an investigatory interview that the employee reasonably believes will result in discipline interferes with the employee’s Section 2 rights, in violation of Section 10(a)(1) of the Law.[365] In determining whether an employer has unlawfully denied union representation to an employee during an investigatory interview, the CERB has been guided by the general principles set forth in NLRB v. Weingarten, 420 U.S. 251 (1975).[366]

Investigatory Interview

• A meeting is investigatory in nature if the employer’s purpose is to investigate the conduct of an employee and the interview is convened to elicit information from the employee or to support a further decision to impose discipline.[367]
• If the employer’s sole purpose of the meeting is to inform an employee of, or to impose previously determined discipline and no investigation is involved, then the employee does not have a right to union representation.[368]
• The test for whether an employee reasonably believes that an investigation will result in discipline is whether a reasonable person in the employee’s situation would have believed that adverse action would follow.[369]

Request for Representation

• The right to union representation arises when the employee reasonably believes that the investigation will result in discipline, and the employee makes a valid request for union representation.[370]
• Nothing in the Law requires that an employee use certain specific words to invoke Weingarten rights; the determination must be contextual and fact-specific.[371]

Union Representative’s Role

• If an employee invokes his or her right to have a union representative present at an investigatory interview, the representative’s role is to “clarify the facts,” “elicit favorable facts,” and to otherwise assist an employee “who may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors.”[372]
• In examining the role of a union representative during the course of an investigatory interview and the extent to which an employer may lawfully regulate that role, the CERB balances the right of an employer to investigate alleged employee misconduct and the right of an employee to union assistance.[373]
• The ultimate issue is whether an employer’s conduct unlawfully interfered with, restrained or coerced an employee in the exercise of rights guaranteed under Section 2 of the Law.[374]
• Although an employer has no duty to bargain with a union representative at an investigatory interview, an employer may not relegate a union representative to the role of a passive observer, nor may the employer preclude the representative from assisting the employee or clarifying the facts.[375]
• An employer may not inform a union representative during an investigatory interview that he cannot speak because he is only present as a witness.[376]

b. Section 10(a)(2)

Section 10(a)(2) of the Law makes it a prohibited practice to dominate, interfere or assist in the formation, existence or administration of any employee organization. To establish a violation of Section 10(a )( 2 ), the evidence must demonstrate that the employer's conduct significantly interfered with the existence and administration of the Union.[377] Situations in which the CERB has found that the employer violated the Law include:

• Refusing to implement authorized union dues deduction increases absent a written confirmation from the union that the dues would not be used for dental insurance premiums.[378]
• Unilaterally determining the amount of a union’s agency service fee coupled with refusing to fulfill the terms of the contract with respect to service fees.[379]
• Failing to remit dues payments to a union deducted pursuant to written authorization.[380]
• Bargaining with an incumbent union after a question of representation has been raised by a rival union.[381]
• Establishing a “house union.”[382]

c. Section 10(a)(3)

Section 10(a)(3) of the Law states that an employer may not discriminate in regard to hiring, tenure, or any term or condition of employment to encourage or discourage membership in any employee organization. To establish a prima facie case of discrimination, a charging party must establish the following:

• An employee was engaged in activity protected by Section 2 of the Law;
• The employer knew of that conduct;
• The employer took adverse action against the employee; and
• The employer took the adverse action to discourage the protected activity.[383]

1. Concerted, Protected Activity

Section 2 of the Law requires that the employee demonstrate he or she is engaged in “concerted” activity for the activity to be protected. An employee’s activity is protected if it focuses on generally applicable terms and conditions of employment that impact the collective bargaining unit as a whole.[384] To be concerted, the evidence must demonstrate that the employee is acting with other employees, or on the authority of other employees, rather than acting out of self-interest.[385] Examples of concerted, protected activity may also include an individual seeking to enforce rights in a collective bargaining agreement, such as:[386]

• Filing and processing of a grievance.[387]
• Filing a contract-based civil service classification appeal.[388]

2. Employer Knowledge

A charging party may prove an employer’s knowledge of an employee’s union activities by direct or circumstantial evidence.[389] Factors that the CERB consider in determining whether circumstantial evidence of knowledge exists include the following:

• Timing of the alleged discriminatory actions.
• The employer’s general knowledge of its employee’s union activities.
• The employer’s animus against the union.
• The pretextual reasons given for the adverse personnel actions.[390]
   

Employer knowledge of protected activity also may be inferred in a “small plant” where union activities were carried on in a manner which made it likely that the employer had an opportunity to observe them.[391]

3. Adverse Action

Adverse action has been defined as an adverse personnel action, such as the following:

• Suspension.
• Discharge.
• Involuntary transfer.
• Reduction in supervisory authority.[392]

The mere assignment of additional responsibilities, though possibly inconvenient or even undesirable, does not constitute an adverse employment action unless it materially disadvantages the affected employee in some way.[393] Because there must be real harm, subjective feelings of disappointment and disillusionment will not suffice.[394] Other examples of adverse action include:

• An engineering professor’s assignment to teach all math courses and no engineering course.[395]
• A police sergeant’s permanent assignment to desk duty.[396]
• An involuntary transfer to a less preferable position.[397]

4. Motivation

A charging party may proffer direct or indirect evidence to establish improper employer motivation.[398]

Direct Evidence Defined

Direct evidence is evidence that, if believed, results in an inescapable, or at least highly probable, inference that a forbidden bias was present in the workplace.[399] Stray remarks in the workplace, statements by people without the power to make employment decisions, and statements made by decision makers unrelated to the decisional process itself are not sufficient to establish direct evidence.[400]

Direct Evidence: Two-Step Analysis   

Where a charging party proffers direct evidence of discrimination as part of its prima facie case, the CERB applies the following two-step analysis to determine if an employer has retaliated against an employee for concerted, protected activity:[401]

• The charging party must first prove by a preponderance of the evidence that a proscribed factor played a motivating factor in the challenged employment decision.
• The burden of persuasion then shifts to the employer who may prevail by proving that it would have made the same decision even without the illegitimate motive.[402]

Indirect Evidence Defined

Absent direct evidence of improper motivation, unlawful motivation may be established through circumstantial evidence and reasonable inferences drawn from that evidence.[403] Factors considered in determining the existence of improper motivation include:

• The timing of the adverse action in relation to the protected activity.[404]
• The employer’s general hostility toward the union or toward concerted activity.[405]
• Inconsistent or shifting reasons for the adverse action.[406]
• Sudden resurrection of previously condoned transgressions.[407]
• Departure from longstanding practices.[408]
• The insubstantiality of the reasons given for the adverse action.[409]

Indirect Evidence: Three-Step Analysis

In cases where the charging party proffers indirect evidence of discrimination, the CERB applies the following three-step analysis to determine if an employer has retaliated against an employee for concerted, protected activity:[410]

• A charging party must first establish a prima facie case of retaliation.
• The employer may rebut the prima facie case by producing evidence that it had a legitimate, non-discriminatory motive for taking the adverse action.[411]
• The charging party must then prove by a preponderance of the evidence that “but for” the protected activity, the employer would not have taken the adverse action.[412]

d. Section 10(a)(4)

It is a prohibited practice for a public employer to discharge or otherwise discriminate against an employee for engaging in concerted, protected activity that specifically includes signing or filing an affidavit, petition or complaint, or giving testimony as part of a DLR proceeding; or forming, joining, or choosing to be represented by an employee organization.[413] Otherwise, the same elements of proof apply to alleged violations of both Sections 10(a)(3) and 10(a)(4) of the Law.[414]

The DLR considers the protection of Section 10(a)(4) so critical to its ability to investigate complaints and keep channels of information open that its protection has been interpreted to extend to employees not covered by Section 1.[415]

e. Section 10(a)(5)

It is a violation of Section 10(a)(5) of the Law for an employer to refuse to bargain in good faith as required by Section 6. Section 6 of the Law obligates employees and employee organizations to “negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment…. but such obligation shall not compel either party to agree to a proposal or make a concession.''[416]

1. Scope of Bargaining

Either party commits a prohibited practice when it refuses a demand to negotiate over a mandatory subject of bargaining. Section 7(d) of the Law provides that the terms of a collective bargaining agreement supersede the conflicting terms of municipal personnel ordinances, by-laws, rules or regulations, and any of the enumerated statutes, rules, and regulations; therefore, an employer is not excused from the obligation to bargain collectively concerning a mandatory subject of bargaining.[417]

Mandatory Subjects

Generally, mandatory subjects of bargaining are those which directly impact terms and conditions of employment. The following are examples of mandatory subjects of bargaining:

• Ability of union to address members during roll call.[418]
• Ability to take a work vehicle home.[419]
• Adding an unpaid block of time during the workday.[420]
• Administration of a grievance procedure.[421]
• Agency service fee.[422]
• Allocation of costs for copying information reasonably relevant to a union's role as a bargaining agent.[423]
• Block scheduling.[424]
• Catastrophic illness leave bank.[425]
• Class size.[426]
• Compensation for added duties.[427]
• Conducting union business during work hours.[428]
• Decision to achieve a reduction in force by layoffs, and the means and method of implementing layoffs.[429]
• Domestic violence policy.[430]
• Dress code, appearance and grooming standards.[431]
• Drug testing.[432]
• Eligibility for paid injured-on-duty leave.[433]
• Eliminating a split shift.[434]
• Employee and employee exchange of tours.[435]
• Employee use of non-active working time.[436]
• Employer contributions to health and welfare trust funds.[437]
• Employer-imposed restrictions upon the right of employees to accept outside employment.[438]
• Granting of leave.[439]
• Free employee parking.[440]
• Health insurance benefits.[441]
• Health insurance buyout.[442]
• Initial wages for new positions.[443]
• Involuntary deductions from employees' paychecks.[444]
• Job duties.[445]
• Length of school day.[446]
• Method for payback of early retirement incentive.[447]
• Method of calculating seniority.[448]
• Number of employees on a piece of firefighting apparatus while responding to an alarm to the extent that a question of safety is raised.[449]
• On-premise access to employees for union business.[450]
• Paid details.[451]
• Payday schedules.[452]
• Percentage of employer contribution to group insurance.[453]
• Performance evaluation systems.[454]
• Physical examination by an employer-designated physician in order to qualify for disability leave.[455]
• Promotional procedures.[456]
• Policies that provide for the discipline and/or discharge of employees who violate them.[457]
• Recoupment of workers compensation payments.[458]
• Regularly scheduled overtime.[459]
• Residency requirements for continued employment and promotion of unit members.[460]
• Return to work after leave.[461]
• Smoking policies.[462]
• Teaching load.[463]
• Time clocks and surveillance systems.[464]
• Union dues check-off.[465]
• Wage reopener provisions.[466]
• Work load.[467]

Permissive Subjects

Permissive subjects of bargaining involve core governmental decisions.[468] Either the employer or union may refuse to negotiate over a permissive subject. If the parties do bargain, neither party may insist on bargaining to impasse.[469] However, once the parties agree on permissive subject, neither party may unilaterally alter its terms during the life of the collective bargaining agreement.[470] Examples of permissive subjects of bargaining include:

• Abolishing or creating positions.[471]
• Addition of a third party as a condition precedent to a collective bargaining agreement.[472]
• Conforming the method of calculating retirement benefits to the requirements of M.G.L. c.32.[473]
• Description and scope of the bargaining unit.[474]
• Hiring additional employees to perform unit work.[475]
• Holding grievance hearings in open session.[476]
• Level of services decisions.[477]
• Limiting the number unit members who appear at arraignments.[478]
• Loss of ad hoc or unscheduled overtime opportunities.[479]
• Matters of educational policy.[480]
• Method of prioritizing paid details.[481]
• Minimum manning per apparatus while responding to mutual aid cases where there is no safety issue.[482]
• Minimum manning per shift.[483]
• Placing an article on the town warrant seeking to rescind a local option law not enumerated in Section 7(d) of M.G.L. c.150E.[484]
• Reassigning district court prosecutor's duties from police officers to town counsel.[485]
• Reorganization of an employer’s operations.[486]
• Using a polygraph examination in the investigation of criminal activity by police officers.[487]

Impact Bargaining

In cases where the employer is not required to bargain over a core governmental decision, it may still have an obligation to bargain over the impacts of its decision on employees' wages, hours, and other terms and conditions of employment.[488] For example, the CERB has found that employers must bargain about the impacts of the following decisions:

• A reduction in force.[489]
• Assigning non-unit employees to perform auxiliary services.[490]
• Discontinuing the prior practice of allowing employees to choose the effective date of their retirement and to receive a lump sum payment upon retirement instead of accrued unused vacation even though the decision was made by an independent third party.[491]
• Implementing a new tax withholding requirement for parking fringe benefits.[492]
• Implementing a policy that changes the level of services offered.[493]
• Reassigning prosecution duties from police prosecutors to town counsel.[494]
• Requiring unit members to use specialized shotguns and ammunition as part of a less lethal force policy.[495]
• Good Faith

In General

The "good faith" requirement of bargaining concerns the parties’ behavior. Parties to negotiations must bargain with an open and fair mind , have a sincere purpose to find a basis of agreement, and make reasonable efforts to compromise their differences.[496] In assessing the good faith requirement, the CERB does not look merely to isolated, specific instances of bad faith, but to the totality of the parties' conduct, including acts away from the bargaining table.[497]

Refusal to Negotiate

The CERB has determined that the following conduct violates the duty to bargain in good faith:

• Refusing to meet with the union when it has requested a negotiating session.[498]
• Refusing to negotiate a new contract with a newly-created unit when the legislature enacts emergency legislation severing part of a unit covered by a contract [499]
• Failing or refusing to process grievances that arose out of a collective bargaining agreement with a predecessor union.[500]
• Imposing unilateral conditions on a pilot school conversion vote beyond those contained in collective bargaining agreement.[501]

Attempts to Bypass Union/Direct Dealing

An employer may not deal directly with employees in the bargaining unit on matters that are properly the subject of negotiations with the bargaining unit's exclusive representative.[502] Surveys of employees regarding mandatory subjects of bargaining constitute direct dealing if bargaining discussions have begun or are imminent.[503]

Section 5 of the Law permits an employee to meet with the employer to resolve a grievance as long as the union has the opportunity to be present.[504]

Effect of Pending Litigation

A party cannot refuse to bargain because a prohibited practice charge has been brought against it. Similarly, bargaining may not be contingent upon the withdrawal or resolution of pending prohibited practice charges or any other pending litigation.[505]

Employer Negotiator

The CERB considers the powers of the employer's bargaining representative in determining whether it has bargained in good faith. The employer must appoint a bargaining representative that possesses sufficient authority to make commitments on substantive provisions of a proposed agreement.[506]

Open Meetings and Disclosure

The CERB has determined the following with regard to bargaining and grievance meetings:

• The open meeting law does not require open sessions for collective bargaining.[507] However, the parties may agree to negotiate in public.[508]
• No party may insist to impasse that grievance hearings be conducted in open session.[509]
• Neither party may require disclosure of the composition of the other side's bargaining team as a condition precedent to negotiations or coerce the other party in its choice of a bargaining representative.[510]

Process of Negotiations

The following are guidelines regarding the process of negotiations:

• Refusing to meet is a per se violation of the Law and does not require an affirmative demonstration of bad faith.[511]
• Withdrawing an offer made in earlier bargaining sessions may constitute unlawful regressive bargaining.[512]
• Merely attending a prescribed number of meetings without engaging in meaningful discussions is not good faith bargaining.[513]
• The CERB views with disfavor a party that causes long lapses between bargaining sessions.[514]
• An employer may lawfully propose a 0% wage increase for economic or philosophical reasons, but may not refuse to discuss wages.[515]
• Failing to correct misrepresentations of material facts made during negotiations after learning such statements were false is unlawful.[516]
• After an alleged impasse, the duty to bargain is revived when either party indicates a desire to negotiate in good faith over previously deadlocked issues.[517]
• Neither party may establish an artificial or unreasonable deadline for completing negotiations in an effort to foreshorten bargaining.[518]

Finalizing the Agreement

The duty to bargain in good faith extends to finalizing the negotiated agreement:

• When the parties have reached agreement on all substantive issues to a contract, the agreement must be reduced to writing.[519]
• Neither party may refuse to execute an agreed-upon collective bargaining agreement.[520]
• Where the employer has bargained and reached an agreement incorporating permissive and mandatory subjects of bargaining, the employer is obligated to reduce to writing and execute the entire agreement.[521]
• An employer may not go to the end in negotiating the terms of an agreement, and then confront the union with a condition of third party approval which could frustrate any bargain or set off a new round of negotiations.[522]
• A party may not enter negotiations with the declaration that it would decline to agree to any contract unless it contained a term making its binding effect contingent upon third-party approval.[523]
• Both parties may lawfully agree, as part of the negotiations, that the agreement between them include a third-party approval provision.[524]
• Oral modifications of a written contract are effective and such orally modified terms may supersede the provisions of statutes listed in Section 7(d) of the Law.[525]
• Ground rules that require parties to reduce all tentative agreements to writing may preclude oral agreements.[526]

Duty to Submit the Agreement for Funding

Pursuant to Section 7(b) of the Law an employer must submit a request for appropriations necessary to fund the cost items of the agreement to the appropriate legislative body. If the employer does not receive the required action from the legislature, the parties return to the bargaining table.[527]

• State contract funding requires appropriation approved by both the Legislature and the Governor. Thus, even after submitting a request for funding to the Legislature that is in accord with the negotiated agreement, the Governor may exercise his constitutional veto power and return an appropriation bill to the Legislature unsigned.
• Elected successor public officials must submit a request for funding of a predecessor’s negotiated collective bargaining agreement, but may not be compelled to publicly support it.[528]
• Requests for funding may not be conditioned on the occurrence of another event.[529] However, a contingent request or other violation of Section 7(b) of the Law, does not, in and of itself, constitute a failure of the duty to bargain in good faith under Section 10(a)(5) of the Law. [530]
• Employers are obligated to submit an appropriation request to fund a JLMC award regardless of their concerns about the sufficiency of the funding sources.[531]
• Employers and exclusive employee representatives are required to support JLMC interest arbitrations awards in the same way and to the same extent as they are required to support any other decision or determination that they agree to pursuant to the Law.[532]
• An employer does not violate the Law if its appropriation request includes pertinent information concerning fiscal and public policy matters.[533]
• Under certain circumstances, the form, contents or legality of a Section 7(b) request may indicate that the employer has violated its duty to bargain in good faith.[534] For example, a particularly negative letter requesting an appropriation but recommending rejection sent shortly after negotiations concluded would be probative of a lack of good faith bargaining during negotiations.[535]
• School committees in cities and towns in which the provisions of M.G.L. c. 71, Section 34 are operative are not required to submit requests for appropriations to fund collective bargaining agreements to their legislative bodies.[536] Accordingly, school committees may not refuse to execute or implement a negotiated agreement merely because the legislative body has not funded it.[537]

 Duty to Provide Information

The duty to bargain encompasses the duty of an employer to disclose to a union information that is relevant and reasonably necessary to the union’s execution of its duties as exclusive bargaining representative.[538] Once a union has shown that the requested information is relevant and reasonably necessary to its duties as bargaining agent, the employer has the burden of demonstrating that its concerns about disclosure of the information are legitimate and substantial.[539] In addition, the following guidelines are instructive in such cases:

• The standard for determining relevancy is a liberal one, similar to the standard for determining relevancy in discovery proceedings in civil litigation.[540]
• The employer must establish that it has made reasonable efforts to provide the union with as much of the requested information as possible, consistent with the employer's expressed concerns.[541]
• The employer must discuss (but the union is not required to negotiate) alternative methods of providing the union access to the information.[542]
• The fact that information is available from another source, e.g., information that is a matter of public record, is not a sufficient defense to a request for information.[543]
• Where the employer raises statutory defenses to its failure to produce information, such as the protections of the Fair Information Practices Act (FIPA) or the Commonwealth’s privacy laws, the CERB must read Chapter 150E and those laws together to protect legitimate interests under the statutes.[544]
• The CERB may order an in camera review of the information at issue to determine whether the employer has a legitimate and substantial need for non-disclosure. If the CERB orders the employer to disclose the information, it may require certain safeguards.[545]

An employer also may not unreasonably delay providing requested information that is relevant and reasonably necessary to the employee organization’s responsibilities as the exclusive collective bargaining representative.[546] The CERB considers a variety of factors in determining whether an employer’s delay is unreasonable, including:

• Whether the delay diminishes the employee organization’s ability to fulfill its role as the exclusive representative.[547]
• The extensive nature of the request.[548]
• The difficulty of gathering the information.[549]
• The period of time between the request and the receipt of information.[550]
• Whether the employee organization was forced to file a prohibited practice charge to retrieve the information.[551]

Transfer of Bargaining Unit Work

The Law requires a public employer to give the exclusive collective bargaining representative of its employees prior notice and an opportunity to bargain before transferring bargaining unit work to non-bargaining unit personnel.[552] To determine whether an employer has unlawfully transferred bargaining unit work, the CERB considers the following factors:

• Whether the employer transferred bargaining unit work to non-unit personnel.
• Whether the transfer of unit work to non-unit employees has an adverse impact on individual employees or the unit itself.
• Whether the employer gave the bargaining representative prior notice and an opportunity to bargain over the decision to transfer the work.[553]

In situations where the work is considered shared work that is traditionally performed by both bargaining unit and non-bargaining unit personnel, the work in question is not recognized as exclusively bargaining unit work.[554] In these shared work situations, the employer must bargain only when there is a calculated displacement of bargaining unit work.[555]

Contract Repudiation

Section 6 of the Law requires public employers and unions to meet at reasonable times to negotiate in good faith regarding wages, hours, standards of productivity and performance, and any other terms and conditions of employment. Repudiating a collectively-bargained agreement by deliberately refusing to abide by or to implement an agreement's unambiguous terms violates the duty to bargain in good faith.[556] Specifically:

• In order for the parties to have an agreement, there must be a meeting of the minds on the actual terms of the agreement.[557]
• To achieve a meeting of the minds, the parties must manifest assent to the terms of the agreement.[558]
• If the evidence is insufficient to find an agreement or if the parties hold differing good faith interpretations of the language at issue, the CERB concludes that no repudiation has occurred.[559]
• If the language is ambiguous, the CERB examines applicable bargaining history to determine whether the parties reached an agreement.[560]
• There is no repudiation of an agreement if the language of the agreement is ambiguous, and there is no evidence of bargaining history to resolve the ambiguity.[561]

Unilateral Change

An employer is obligated to provide the exclusive representative an opportunity to negotiate before changing an existing condition of employment or implementing a new condition of employment involving a mandatory subject of bargaining.[562] The employer’s obligation to bargain extends to working conditions established through past practice as well as those specified in a collective bargaining agreement.[563] To establish a violation, a union must demonstrate the following:

• The employer altered an existing practice or instituted a new one.
• The change affected a mandatory subject of bargaining.
• The change was established without prior notice and an opportunity to bargain.[564]

Change to an Existing Practice or Instituting a New Practice

To determine whether a practice exists, the CERB analyzes the combination of facts upon which the alleged practice is predicated, including whether the practice has occurred with regularity over a sufficient period of time so that it is reasonable to expect that the practice will continue.[565] The CERB also analyzes whether the practice:

• Is unequivocal.
• Existed substantially unvaried for a reasonable period of time.
• Is known and accepted by both parties.[566]

In addition, a condition of employment may be found despite sporadic or infrequent activity only where a consistent practice that applies to rare circumstances is followed each time that the circumstances preceding the practice recur.[567]

In determining whether there has been a change in a practice or condition of employment, the CERB has held:

• A mere change in the procedure for administering a condition of employment where the actual condition remains intact does not amount to a unilateral change.[568]
• When an employer develops a new method for measuring existing performance criteria, no duty to bargain attaches unless the actual evaluation criteria are changed.[569]
• The fact that the CERB finds that no existing practice has been altered does not foreclose the possibility of finding that a new practice has been unilaterally instituted by an employer.[570]

Mandatory Subject of Bargaining

The change must impact a mandatory subject of bargaining.[571] See above for examples of mandatory subjects of bargaining.

Notice and Opportunity to Bargain

The employer must notify the union of potential changes before they are implemented. Specifically:

• The information conveyed to the union must be sufficiently clear to make a judgment as to an appropriate response, and far enough in advance of implementation to allow for effective bargaining.[572]
• The employer’s duty is not satisfied by presenting the change as a fait accompli, where the employer’s conduct has progressed to a point that a demand to bargain would be fruitless, and then offering to bargain.[573]

Impasse

After good faith negotiations have exhausted the prospects of concluding an agreement, an employer may implement changes in terms and conditions of employment that are reasonably comprehended within its pre-impasse proposals.[574] The factors that the CERB weighs to determine whether an impasse exists include:

• Bargaining history.
• The good faith of the parties in negotiations.
• The length of the negotiations.
• The importance of the issue or issues as to which there is disagreement.
• The contemporaneous understanding of the parties as to the state of the negotiations.[575]

The CERB also assess the likelihood of further movement by either party, and whether they have exhausted all possibility of compromise.[576] Where one side indicates that their position is not fixed, but rather is flexible, the declaration of impasse by the other is premature.[577]

Section 9 of Chapter 150E prohibits public employers from implementing unilateral changes during successor negotiations after a Section 9 petition for mediation has been filed with the DLR until those procedures have been completed.[578] However, participation in Section 9 proceedings may not preclude an employer from making unilateral changes before completing the collective bargaining process if the employer is able to demonstrate that externally imposed circumstances required unilateral action by a date certain.[579]

Waiver of the Right to Bargain by Contract

An employer may argue that the union waived its right to bargain by contract. The following guidelines are relevant:

• A waiver must be knowing, conscious, and unequivocal.[580]
• The matter waived was fully explored and consciously yielded.[581]
• A broad management rights clause is not an effective waiver.[582]
• Specific language in a management rights clause that relates to a disputed issue is sufficient to constitute a waiver.[583]
• While a "zipper clause" (a provision making the contract the exclusive statement of the parties' rights) may support a finding of a waiver, a broadly formed clause is too vague to infer a clear and unmistakable waiver.[584]
• The absence of a provision does not prove waiver.[585]
• If the questioned language is ambiguous, the CERB looks to the bargaining history between the parties to determine whether a contractual waiver has taken place.[586]

Waiver of the Right to Bargain By Inaction

An employer may also assert that the union waived its right to bargain by its inaction. To do so, an employer must establish that the union:

• Had actual knowledge or notice of the proposed change.
• Had a reasonable opportunity to negotiate over the subject.
• Unreasonably or inexplicably failed to bargain or request bargaining.[587]

In addition, in cases involving the affirmative defense of waiver by inaction, the CERB has held:

• The filing of a charge, after protesting a unilateral change, does not constitute a waiver even though there has been no formal request to bargain.[588]
• It will not apply the waiver by inaction doctrine in cases where a union refuses to bargain about a mandatory subject of bargaining apart from impending or ongoing successor negotiations.[589]
• The doctrine of waiver by inaction should not be applied where the union is presented with a fait accompli. In such cases, the union is not required to make a demand to bargain in order to preserve its rights.[590]

Defense of Economic or Other Exigency

When an employer raises the affirmative defense of exigency, which would permit it to unilaterally implement changes in certain circumstances, the CERB employs a three-part test:

• Circumstances beyond the employer’s control must require the imposition of a deadline for negotiations.
• The union must be notified of these circumstances.
• The deadline imposed must be reasonable and necessary.[591]

f. Section 10(a)(6)

Section 10(a)(6) of the Law requires that employers participate in good faith in the mediation, fact-finding, and arbitration procedures set forth in Sections 8 and 9 of the Law.[592] An individual does not have standing to attempt to enforce an employer’s duty to bargain under Section 10(a)(6) of the Law.[593]

____________________

[334] Town of Bolton, 32 MLC 13 (2005).

[335] Id.

[336] Town of Chelmsford, 8 MLC 1913 (1982), aff’d sub nom. Town of Chelmsford v. Labor Relations Commission, 15 Mass. App. Ct. 1107 (1983).

[337] Groton-Dunstable Regional School Committee, 15 MLC 1551 (1989).

[338] Quincy School Committee, 27 MLC 83 (2000).

[339] City of Fitchburg, 22 MLC 1286 (1995).

[340] Groton-Dunstable Regional School Committee, 15 MLC 1551 (1989).

[341] Athol-Royalston School Committee, 26 MLC 55 (1999).

[342] City of Lowell, 29 MLC 30 (2002).

[343] Groton-Dunstable Regional School Committee, 15 MLC 1551 (1989).

[344] City of Lawrence, 15 MLC 1162 (1988).

[345] Board of Regents, 14 MLC 1397 (1987).

[346] City of Boston, 21 MLC 1154 (1994).

[347] Lawrence School Committee, 33 MLC 90 (2006); Plymouth County House of Correction, 4 MLC 1555 (1977).

[348] Board of Regents, 13 MLC 1697 (1987).

[349] Boston School Committee, 39 MLC 366 (2013).

[350] Salem School Committee, 35 MLC 199 (2009).

[351] Id.

[352] Board of Regents, 14 MLC 1397 (1987).

[353] Lenox School Committee, 7 MLC 1761 (1980).

[354] Board of Regents, 14 MLC 1397 (1987).

[355] Plymouth County House of Correction, 4 MLC 1555 (1977).

[356] Town of Chelmsford, 8 MLC 1913 (1982).

[357] City of Peabody, 25 MLC 191 (1999).

[358] Bristol County House of Correction, 6 MLC 1582 (1979).

[359] Town of Tewksbury, 19 MLC 1808 (1993).

[360] Town of Winchester, 19 MLC 1591 (1992).

[361] City of Lowell, 29 MLC 30 (2002).

[362] Town of Bolton, 32 MLC 13 (2005).

[363] Board of Regents, 11 MLC 1532 (1985).

[364] Commonwealth of Massachusetts, 28 MLC 250 (2002).

[365] Town of Hudson, 29 MLC 52 (2002), aff’d sub nom. Town of Hudson v. Labor Relations Commission, 69 Mass. App. Ct. 549 (2007).

[366] Suffolk County Sheriff’s Department, 28 MLC 253 (2002).

[367] Commonwealth of Massachusetts, 26 MLC 139 (2000).

[368] Id.

[369] Commonwealth of Massachusetts, 8 MLC 1287 (1981).

[370] Town of Hudson, 29 MLC 52 (2002), aff’d sub nom. Town of Hudson v. Labor Relations Commission, 69 Mass. App. Ct. 549 (2007).

[371] Suffolk County Sheriff’s Department, 39 MLC 143 (2012).

[372] Commonwealth of Massachusetts, 9 MLC 1567 (1983).

[373] Commonwealth of Massachusetts, 21 MLC 1198 (1994) aff’d sub nom. Massachusetts Correction Officers Federated Union v. Labor Relations Commission, 424 Mass. 191 (1997).

[374] Id.

[375] Massachusetts Correction Officers Federated Union v. Labor Relations Commission, 424 Mass. 191 (1997); Suffolk County Sheriff’s Department, 28 MLC 253 (2002) (a union representative at an investigatory interview is not a potted plant).

[376] Suffolk County Sheriff’s Department, 28 MLC 253 (2002); Suffolk County Sheriff’s Department, 39 MLC 143 (2012) (an employer may not prevent a union representative from immediately clarifying a question during an investigatory interview, even where the employer permits the union representative to speak later in the meeting).

[377] Commonwealth of Massachusetts Commissioner of Administration and Finance, 27 MLC 11 (2000) (the employer’s solicitation of volunteers for a parking committee does not violate Section 10(a)(2) of the Law).

[378] Town of North Attleboro, 26 MLC 84 (2000).

[379] Whittier Regional School Committee, 13 MLC 1325 (1987).

[380] City of Boston, 14 MLC 1606 (1988).

[381] Springfield School Committee, 27 MLC 15 (2000) (the obligation of strict employer neutrality arises when an employer has notice that the DLR has made its initial determination that a rival union’s petition and showing of interest are adequate to raise a question of representation); Town of Wakefield, 10 MLC 1016 (1983).

[382] Blue Hills Regional Technical School District, 9 MLC 1271 (1982).

[383] Town of Mashpee, 36 MLC 163 (2010); Quincy School Committee, 27 MLC 83 (2000).

[384] City of Boston, 8 MLC 1872 (1982); Town of Shrewsbury, 5 MLC 1519 (1978).

[385] Town of Southborough, 21 MLC 1242 (1994); Compare Commonwealth of Massachusetts, 14 MLC 1743 (1988) (probationary employee’s complaints with other employees about unhealthy working conditions constituted concerted activity) with Town of Athol, 25 MLC 208 (1999) (employee’s safety and work complaints did not constitute concerted activity because the employee was acting alone and without the authority of other employees).

[386] For additional examples of concerted, protected activity, as well as examples of activity that is not protected, please see Section III(C).

[387] Boston City Hospital, 11 MLC 1065 (1984).

[388] Commonwealth of Massachusetts, 24 MLC 116 (1998).

[389] Richard Fowler v. Labor Relations Commission et al. (Fowler), 56 Mass. App. Ct. 96 (2002); Bristol County, 26 MLC 105 (2000).

[390] Fowler, 56 Mass. App. Ct. 96 (2002).

[391] Plymouth County House of Correction and Jail, 4 MLC 1555 (1977).

[392] City of Boston, 35 MLC 289 (2009); Town of Dracut, 25 MLC 131 (1999).

[393] City of Boston, 35 MLC 289 (2009).

[394] City of Holyoke, 35 MLC 153 (2009).

[395] Board of Higher Education, 32 MLC 181 (2006).

[396] Town of Holbrook, 15 MLC 1221 (1988).

[397] Boston City Hospital, 11 MLC 1065 (1984); Cf. City of Holyoke, 35 MLC 153 (2009) (subjective opinions of co-workers expressed in casual office banter do not demonstrate that the transfer was adverse within the meaning of the Law).

[398] Town of Brookfield, 28 MLC 320 (2002), aff’d sub nom. Town of Brookfield v. Labor Relations Commission, 443 Mass. 315 (2005).

[399] Town of Andover, 40 MLC 1 (20130 (School Committee admitted that employee’s termination was for activity that CERB determined was protected); City of Easthampton, 35 MLC 257 (2009) (supervisor’s statements to employee who filed grievance, and act of tearing up and throwing away grievance, was direct evidence of anti-union animus).

[400] Town of Brookfield, 28 MLC 320 (2002).

[401] Town of Dennis, 29 MLC 79 (2002).

[402] Andover School Committee, 40 MLC 1 (2013).

[403] Suffolk County Sheriff’s Department, 27 MLC 152 (2001), 27 MLC 153 (2001).

[404] Labor Relations Commission v. Blue Hills Spring Water, 11 Mass. App. Ct. 50 (1980); Town of Somerset, 15 MLC 1523 (1989); Bristol County, 26 MLC 105 (2000) (timing alone is insufficient to establish unlawful employer motivation).

[405] Town of Halifax, 1 MLC 1486 (1975).

[406] Lawrence School Committee, 33 MLC 90 (2006).

[407] Board of Trustees, University of Massachusetts Medical Center, 5 MLC 1272 (1978).

[408] Town of Mashpee, 36 MLC 163 (2010).

[409] Commonwealth of Massachusetts, 14 MLC 143 (1988).

[410] Southern Worcester County Regional Vocational School District v. Labor Relations Commission, 386 Mass. 414 (1982); Trustees of Forbes Library v. Labor Relations Commission (Trustees of Forbes Library), 384 Mass. 559 (1981).

[411] Higher Education Coordinating Council, 23 MLC 90 (1996); Town of Clinton, 12 MLC 1361 (1985); cf. Trustees of Forbes Library, 364 Mass. 559 (1996).

[412] Athol-Royalston Regional School Committee, 28 MLC 204 (2002); Town of Athol, 25 MLC 208 (1999).

[413] Commonwealth of Massachusetts, 25 MLC 44 (1998); Metropolitan District Commission, 14 MLC 1001 (1987) (employer violated Law by taking certain actions against employee for attending DLR proceeding).

[414] Commonwealth of Massachusetts, 25 MLC 44 (1998).

[415] Michael J. Curley, 4 MLC 1124 (1977).

[416] But 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) (an individual employee has no standing to pursue a refusal to bargain charge against his or her employer under Section 10(a)(5)).

[417] Town of Lee, 11 MLC 1274 (1984), aff'd sub nom. Town of Lee v. Labor Relations Commission, 21 Mass. App. Ct. 166 (1985); Weymouth School Committee, 9 MLC 1092 (1982) aff'd sub nom. National Association of Government Employees v. Labor Relations Commission, 17 Mass. App. Ct. 542 (1984).

[418] Bristol County Sheriff’s Department, 31 MLC 6 (2004).

[419] Town of Dedham, 16 MLC 1275 (1989).

[420] Peabody School Committee, 28 MLC 19 (2001).

[421] City of Boston, 15 MLC 1191 (1988); City of Boston, 3 MLC 1450 (1977).

[422] Board of Regents, 10 MLC 1048 (1983); Leominster School Secretaries Association, 7 MLC 1953 (1981).

[423] Bristol County Sheriff’s Department, 31 MLC 6 (2004); Commonwealth of Massachusetts, 9 MLC 1824 (1983).

[424] Taunton School Committee, 28 MLC 378 (2002).

[425] Commonwealth of Massachusetts, 22 MLC 1459 (1996).

[426] Peabody School Committee, 13 MLC 1313 (1986), aff’d sub nom. Peabody Federation of Teachers, Local 1289, AFT, AFL-CIO v. Peabody School Committee, 26 Mass. App. Ct. 1107 (1988).

[427] Id.

[428] Athol-Royalston Regional School Committee, 28 MLC 204 (2002).

[429] School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983); Revere School Committee, 10 MLC 1245 (1983).

[430] City of Lowell, 28 MLC 126 (2002).

[431] Sheriff of Worcester County, 27 MLC 103 (2001); Town of Dracut, 7 MLC 1342 (1980).

[432] Town of Plymouth, 26 MLC 220 (2000).

[433] Town of Harwich, 32 MLC 27 (2005).                                                                 

[434] Town of Mansfield, 25 MLC 14 (1998).

[435] M.G.L. c. 150E, § 7.

[436] City of Taunton, 11 MLC 1334 (1985); City of Everett, 2 MLC 1471 (1976).

[437] Commonwealth of Massachusetts, 19 MLC 1069 (1992).

[438] Board of Trustees, University of Massachusetts, 7 MLC 1553 (1980); Town of Pittsfield, 4 MLC 1905 (1978).

[439] Commonwealth of Massachusetts, 21 MLC 1637 (1995); Town of Hull, 19 MLC 1780 (1993).

[440] Commonwealth of Massachusetts,27 MLC 11 (2000).

[441] Medford School Committee, 4 MLC 1450 (1977); aff’d sub nom. School Committee of Medford v. Labor Relations Commission, 380 Mass. 932 (1980); Town of Dennis, 28 MLC 297 (2002).

[442] Commonwealth of Massachusetts, 24 MLC 113 (1998).

[443] Melrose School Committee, 3 MLC 1302 (1976).

[444] Suffolk County Sheriff’s Department, 28 MLC 253 (2002); Millis School Committee, 23 MLC 99 (1996).

[445] Commonwealth of Massachusetts, 28 MLC 36 (2001).

[446] Holliston School Committee, 23 MLC 211 (1997).

[447] Millis School Committee, 23 MLC 99 (1996); Brockton School Committee, 23 MLC 43 (1996).

[448] Brockton School Committee, 23 MLC 43 (1996).

[449] Town of Bridgewater, 12 MLC 1612 (1986); City of Newton, 4 MLC 1282 (1977).

[450] Bristol County Sheriff’s Department, 31 MLC 6 (2004).

[451] Town of Winthrop, 28 MLC 200 (2002).

[452] Lawrence School Committee, 3 MLC 1304 (1976).

[453] Medford School Committee, 4 MLC 1450 (1977), aff’d sub nom. School Committee of Medford v. Labor Relations Commission, 380 Mass. 932 (1980).

[454] Commonwealth of Massachusetts, 18 MLC 1161 (1991).

[455] City of Medford, 28 MLC 136 (2002); Town of Avon, 6 MLC 1290 (1979).

[456] Town of Danvers, 3 MLC 1559 (1977).

[457] City of Lowell, 28 MLC 126 (2001); City of Peabody, 9 MLC 1447 (1982).

[458] Suffolk County Sheriff’s Department, 28 MLC 253 (2002).

[459] City of Peabody, 9 MLC 1447 (1982); but see Town of West Bridgewater, 10 MLC 1040 (1983), aff’d sub nom. West Bridgewater Police Association v. Labor Relations Commission, 18 Mass. App. Ct. 550 (1984) (unscheduled overtime not a mandatory subject of bargaining); City of Boston, 32 MLC 4 (2005).

[460] Boston School Committee, 3 MLC 1603 (1977).

[461] City of Newton, 35 MLC 296 (2009).

[462] Town of Lexington, 22 MLC 1676 (1996); Abington School Committee, 21 MLC 1630 (1995).

[463] Andover School Committee, 40 MLC 1 (2013).

[464] University of Massachusetts, 7 MLC 2090 (1981).

City of Taunton, 38 MLC 96 (2011); but see Duxbury School Committee, 25 MLC 22 (1998)(CERB held that use of video surveillance  in this case was merely a more efficient and dependable means of enforcing existing work rules and did not affect an underlying term or condition of employment).

[465] Town of North Attleboro, 26 MLC 84 (2000).

[466] Medford School Committee, 3 MLC 1413 (1977).

[467] Commonwealth of Massachusetts, 28 MLC 36 (2001).

[468] Town of Danvers, 3 MLC 1559 (1977).

[469] IAFF, Local 1009, 2 MLC 1238 (1975).

[470] City of Chelsea, 13 MLC 1144 (1986); but see City of Boston v. Boston Police Superiors Federation, 466 Mass. 210 (2013) (assignment and transfer are non-delegable police commissioner statutory powers and cannot be subject of valid collective bargaining provision). In addition, Chapter 589 of the Acts of 1987 outlines specific non-arbitrable subjects for police and fire unions and employers because they are inherent management rights, e.g., the right to appoint and promote

[471] School Committee of Braintree v. Raymond, 369 Mass. 689 (1976); School Committee of Hanover v. Curry, 369 Mass. 683 (1976).

[472] Fall River Housing Authority, 8 MLC 2038 (1982).

[473] City of Springfield, 12 MLC 1021 (1985).

[474] Boston Police Patrolmen's Association, 8 MLC 1993 (1982), aff'd sub nom. Boston Police Patrolmen's Association, 16 Mass. App. Ct. 953 (1983).

[475] Town of Plymouth, 34 MLC 13 (2007); Town of Andover, 3 MLC 1710 (1977).

[476] Falmouth School Committee, 12 MLC 1383 (1985).

[477] Commonwealth of Massachusetts, 25 MLC 201 (1999); Town of Danvers, 3 MLC 1546 (1977).

[478] Town of West Bridgewater, 10 MLC 1040 (1983), aff'd sub nom. West Bridgewater Police Association v. Labor Relations Commission, 18 Mass. App. Ct. 550 (1984).

[479] Town of West Bridgewater, 10 MLC 1040 (1983), aff’d sub nom. West Bridgewater Police Association v. Labor Relations Commission, 18 Mass. App. Ct. 550 (1984); cf. City of Peabody, 9 MLC 1447 (1982) (regularly scheduled overtime equivalent to a wage item, and therefore a mandatory subject of bargaining).

[480] Lowell School Committee, 26 MLC 111 (2000).

[481] City of Boston, 31 MLC 25 (2004).

[482] Town of Reading, 9 MLC 1730  (1983).

[483] Town of Danvers, 3 MLC 1559 (1977).

[484] Weymouth School Committee, 9 MLC 1092 (1982), aff'd sub nom. National Association of Government Employees v. Labor Relations Commission, 17 Mass. App. Ct. 542 (1984).

[485] Town of Burlington v. Labor Relations Commission, 390 Mass. 157 (1983).

[486] Cambridge School Committee, 7 MLC 1026 (1980).

[487] Town of Ayer, 9 MLC 1376 (1982), aff'd sub nom. Local 346, IBPO v. Labor Relations Commission, 391 Mass. 429 (1984).

[488] City of Worcester v. Labor Relations Commission, 434 Mass. 177 (2002); Newton School Committee, 5 MLC 1016 (1978), aff’d sub nom. School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983); Board of Regents of Higher Education, 19 MLC 1248 (1992); but see Chief Justice for Administration and Management of the Trial Court v. Commonwealth Employment Relations Board, 79 Mass. App. Ct. 374 (2011) (there must be evidence of actual impacts to the bargaining unit to support a bargaining obligation).

[489] Newton School Committee, 5 MLC 1016 (1978), aff'd sub nom. School Committee of Newton v. Labor Relations Commission, 388 Mass. 557 (1983).

[490] City of Boston, 16 MLC 143 (1989).

[491] City of Malden, 20 MLC 1400 (1994).

[492] Secretary of Administration and Finance v. Commonwealth Employment Relations Board, 74 Mass. App. Ct. 91 (2009).

[493] Commonwealth of Massachusetts Commissioner of Administration and Finance/Department of Social Services, 25 MLC 201 (1999).

[494] Town of Burlington v. Labor Relations Commission, 390 Mass. 157 (1983).

[495] City of Boston, 30 MLC 23 (2003).

[496] Massachusetts Correction Officers Federated Union, 31 MLC 1 (2004).

[497] King Phillip Regional School Committee, 2 MLC 1393 (1976); cf. Boston Teachers Union, 37 MLC 214 (2011) (union’s obligation to bargain mirrors the employer’s obligation).

[498] City of Chelsea, 3 MLC 1169 (1976).

[499] Commonwealth of Massachusetts, 5 MLC 1405 (1978).

[500] Commonwealth of Massachusetts, 20 MLC 1087 (1993).

[501] Boston Teachers Union, 37 MLC 214 (2011).

[502] Service Employees International Union, 431 Mass. 710 (2000); cf. City of Marlborough, 34 MLC 72 (2008) (there is no direct dealing violation if the parties’ contract contains a provision that allows direct discussions with employees over the matter at issue).

[503] Service Employees International Union, 431 Mass. 710 (2000).

[504] Avon School Committee, 7 MLC 2106 (1981).

[505] Town of Dracut, 14 MLC 1127 (1987); Town of Hopedale, 11 MLC 1413 (1985).

[506] Boston School Committee, 25 MLC 181 (1999).

[507] Ghiglione v. School Committee of Southbridge, 376 Mass. 70 (1978).

[508] City of Attleboro, 3 MLC 1408 (1977).

[509] City of Marlborough, 34 MLC 72 (2008); Bristol County Sheriff’s Department, 32 MLC 159 (2003).

[510] Southern Worcester County, 2 MLC 1488 (1976), aff’d sub nom. Southern Worcester County v. Labor Relations Commission, 377 Mass. 897 (1979).

[511] Springfield School Committee, 27 MLC 15 (2000).

[512] County of Norfolk, 12 MLC 1005 (1985); but see Chief Justice for Administration and Finance of the Trial Court, 37 MLC 181 (2011) (employer may withdraw economic offer due to changed economic circumstances).

[513] Southern Worcester County, 2 MLC 1488 (1976).

[514] Middlesex County, 3 MLC 1594 (1977).

[515] Brockton School Committee, 19 MLC 1120 (1992).

[516] Woods Hole, Martha’s Vineyard & Nantucket Steamship Authority, 12 MLC 1531 (1986) (violation of Chapter 150A).

[517] City of Boston, 21 MLC 1350 (1994).

[518] Town of Natick, 19 MLC 1753 (1993).

[519] M.G.L. c. 150E, Section 7.

[520] City of Cambridge, 35 MLC 183 (2009).

[521] Town of Ipswich, 11 MLC 1403 (1985), aff'd sub nom. Town of Ipswich v. Labor Relations Commission, 21 Mass. App. Ct. 1113 (1986).

[522] Springfield Housing Authority, 9 MLC 1068  (1982), aff'd sub nom. Springfield Housing Authority v. Labor Relations Commission, 16 Mass. App. Ct. 653 (1983).

[523] Id.

[524] Id.

[525] Service Employees International Union, Local 509 v. Labor Relations Commission, 410 Mass. 141 (1991); Chief Justice for Administration and Management of the Trial Court, 35 MLC 171 (2009).

[526] Town of Hanson, 39 MLC 158 (2012).

[527] Commonwealth of Massachusetts, 4 MLC 1869 (1978).

[528] Labor Relations Commission v. Selectmen of Dracut, 374 Mass. 619, 625 (1978).

[529] Commissioner of Administration and Finance v. CERB, 477 Mass. 92, 97 (2017) (citing Local 1652, International Association of Firefighters v. Framingham, 442 Mass. 463, 469 (2002)).

[530] Commissioner of Administration and Finance v. CERB, 477 Mass. at 100.

[531]City of Melrose, 28 MLC 53 (2001).

[532] Id.

[533] Commissioner of Administration and Finance v. Commonwealth Employment Relations Board & another, 477 Mass. 92 (2017)

[534] Commissioner of Administration and Finance v. CERB, 477 Mass. at 100-101.

[535] Id.

[536] M.G.L. c. 150E, Section 7.

[537] Lawrence School Committee, 19 MLC 1167 (1992).

[538] Board of Higher Education, 26 MLC 91 (2000).

[539] Adrian Advertising, 13 MLC 1233 (1986), aff'd sub nom. Despres v. Labor Relations Commission, 25 Mass. App. Ct. 430 (1988).

[540] Board of Higher Education, 26 MLC 91 (2000).

[541] Boston School Committee, 37 MLC 140 (2011).

[542] Boston Public Health Commission, 38 MLC 6 (2011).

[543] Commonwealth of Massachusetts, 12 MLC 1590 (1986).

[544] Bristol County Sheriff’s Office, 28 MLC 113 (2001), aff’d sub nom. Sheriff of Bristol County v. Labor Relations Commission, 62 Mass. App. Ct. 665 (2004) (CERB ordered employer to provide information exempt from disclosure to union with certain restrictions); Sheriff’s Office of Middlesex County, 30 MLC 91 (2003); but see Plymouth County Sheriff’s Department, 34 MLC 58 (2007) (it is unlikely that the CERB or its agents will conduct an in camera review where a party that has the requested information fails to set forth adequately its justifications for non-disclosure).

[545] City of Boston v. Labor Relations Commission, 61 Mass. App. Ct. 397 (2004).

[546] Boston Public School Committee, 24 MLC 8 (1997).

[547] Id.

[548] University of Massachusetts Medical Center, 26 MLC 149 (2000).

[549] Id.

[550] Higher Education Coordinating Council, 23 MLC 266 (1997).

[551] Board of Higher Education, 26 MLC 91 (2000).

[552] Commonwealth of Massachusetts v. Labor Relations Commission, 60 Mass. App. Ct. 831 (2004).

[553] Id.

[554] City of Boston, 26 MLC 144 (2000); Higher Education Coordinating Council, 23 MLC 90 (1996).

[555] Id.

[556] Town of Falmouth, 20 MLC 1555 (1994), aff'd sub nom. Town of Falmouth v. Labor Relations Commission, 42 Mass. App. Ct. 1113 (1997); Commonwealth of Massachusetts, 36 MLC 65 (2009).

[557] Town of Ipswich, 11 MLC 1403 (1985), aff’d sub nom. Town of Ipswich v. Labor Relations Commission, 21 Mass. App. Ct. 1113 (1986).

[558] Suffolk County Sheriff’s Department, 30 MLC 1 (2003).

[559] City of  Boston, 26 MLC 215  (2000).

[560] Commonwealth of Massachusetts, 16 MLC 1143 (1989).

[561] Commonwealth of Massachusetts, 28 MLC 8 (2001); Town of Belchertown, 27 MLC 73 (2000).

[562] Commonwealth of Massachusetts v. Labor Relations Commission, 404 Mass. 124 (1989); Commonwealth of Massachusetts, 30 MLC 63 (2003), aff’d sub nom. Secretary of Administration and Finance v. Commonwealth Employment Relations Board, 74 Mass. App. Ct. 91 (2009).

[563] Town of Burlington, 35 MLC 18 (2008), aff’d sub nom. Town of Burlington v. Commonwealth Employment Relations Board, 85 Mass. App. Ct. 1120 (2014); Commonwealth of Massachusetts, 27 MLC 1 (2000).

[564] Town of Shrewsbury, 28 MLC 44 (2001).

[565] Commonwealth of Massachusetts, 23 MLC 171 (1997).

[566] City of Newton 32 MLC 37 (2005).

[567] City of Boston, 41 MLC19, MUP-13-3371 et al., (November 7, 2014); Town of Winthrop, 28 MLC 200 (2002).

[568] City of Boston, 8 MLC 1001 (1981).

[569] Commonwealth of Massachusetts 13 MLC 1717 (1987).

[570] City of Boston, 26 MLC 177 (2000).

[571] City of Boston, 20 MLC 1603 (1994).

[572] Taunton School Committee, 28 MLC 378 (2002).

[573] Town of East Bridgewater, 38 MLC 164 (2012); Town of Hudson, 25 MLC 143 (1999).

[574] City of Leominster, 23 MLC 62 (1996).

[575] New Bedford School Committee, 8 MLC 1472 (1981), aff'd sub nom. School Committee of New Bedford v. Labor Relations Commission, 15 Mass. App. Ct. 172 (1983); Ashburnham-Westminster Regional School District, 29 MLC 191 (2003).

[576] City of Worcester, 39 MLC 271 (2012).

[577] Id.

[578] Cambridge Public Health Commission d/b/a Cambridge Health Alliance, 37 MLC 39 (2010) (Ruling on Motion for Summary Decision) (ruling leaves open question of whether or not  Section 9  bans unilateral action in the context of  successor  negotiations absent a petition); but see Town of Stoughton, 19 MLC 1149 (1992) (Section 9 is inapplicable to police and fire negotiations, which are under the jurisdiction of the JLMC. In such cases, the CERB will evaluate whether the parties were at impasse at the time of the unilateral change).

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

[580] Commonwealth of Massachusetts, 28 MLC 308 (2002); Melrose School Committee, 3 MLC 1299 (1976).

[581] City of Newton, 29 MLC 135 (2003).

[582] Massachusetts Port Authority, 36 MLC 5 (2009); City of Boston, 3 MLC 1450 (1977).

[583] City of Newton, 35 MLC 142 (2008).

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

[585] Bristol County Sheriff’s Office, 31 MLC 6 (2004).

[586] Central Berkshire Regional School Committee, 31 MLC 191 (2005).

[587] Town of Watertown, 32 MLC 54 (2005); Commonwealth of Massachusetts, 28 MLC 239 (2002).

[588] City of Everett, 2 MLC 1471 (1976).

[589] City of Boston, 31 MLC 25 (2004).

[590] Ashburnham-Westminster Regional School District, 29 MLC 191 (2003); Town of Hudson, 25 MLC 143 (1999).

[591] Cambridge Public Health Commission, 37 MLC 47 (2010) (employer may also raise exigency defense where Section 9 petition has been filed); Holliston School Committee, 23 MLC 211 (1996).

[592] City of Boston, MUP-13-3371 et al., 41 MLC 19 (November 7, 2014) (employer violated Section 10(a)(6) of the Law by failing to provide requested information while JLMC proceedings were pending); City of Melrose, 28 MLC 53 (2001) (employer violated the Law by failing to comply with the legal obligation to submit an appropriation request to fund a JLMC-ordered arbitration award); cf. Chief Justice for the Administration and Management of the Trial Court, 37 MLC 181 (2011) (employer did not violate the Law when it withdrew economic proposals it made to a fact-finder because changed economic circumstances negatively impacted its ability to fund the proposals).

[593] 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).

2. Union Prohibited Practices

a. Section 10(b)(1)

1. In General

Generally, the CERB does not interfere with union rules or actions that are within the legitimate domain of internal union affairs.[594] However, a union’s freedom to regulate its internal affairs must give way to certain overriding interests implicit in the Law.[595] The CERB has found overriding interests outweighing a union’s freedom to act in the following situations:

• Testimony on behalf of an employer at a CERB proceeding;[596]
• Determining appropriate bargaining units;[597] and
• Prohibiting strikes.[598]

2. Duty of Fair Representation

Pursuant to Section 5 of the Law, a union has an obligation to represent all bargaining unit members without discrimination, and without regard to employee organization membership.[599] Although unions are permitted a wide range of reasonableness in fulfilling their statutory obligations, a union breaches this duty if its actions towards an employee are:

• Unlawfully motivated;
• Arbitrary;
• Perfunctory; or
• Reflective of inexcusable neglect.[600]

The CERB reviews the circumstances of each case to determine whether a union’s investigation or inquiry was sufficient for it to make a reasoned judgment in deciding whether to pursue or abandon a grievance.[601] The CERB finds a violation under the following circumstances:

• A union ignores a grievance, inexplicably fails to take some required step, or gives the grievance merely cursory attention.[602]
• A union fails to investigate, evaluate, or pursue an arguably meritorious grievance without explanation.[603]
• There is an absence of a rational basis for a union’s decision and egregious unfairness or reckless omissions or disregard for an employee’s rights.[604]

A finding of honest mistake or ordinary or simple negligence, standing alone, does not constitute a breach of the duty of fair representation.[605]

As a remedy to an employee organization’s unlawful refusal to process a grievance to arbitration, the CERB does not order the employer to proceed to arbitration. Rather, the CERB orders the employee organization to take all affirmative steps to request that the employer waive the time limits contained in the parties’ contractual arbitration provisions. If the employer agrees to do so, the union must diligently process the grievance to arbitration. If the employer does not agree, the union remains liable for the employee’s monetary losses resulting from the union’s failure to process the grievance.[606]

3. Agency Service Fee

In General

Section 12 of the Law provides that public employees may be charged an agency fee by the exclusive bargaining representative as a condition of employment if the fee is required by a collective bargaining agreement ratified by a vote open to all members of the bargaining unit. It is a prohibited practice for a union to charge an objecting nonmember an amount in excess of the nonmember’s pro rata share of the costs of collective bargaining and contract administration.[607]

Whether a collective bargaining agreement will contain an agency service fee provision, and the substantive provisions regarding the fee, are mandatory subjects of bargaining.[608] An employer may violate Section 10(a)(5) of the Law if it refuses to impose upon a fee payer a contractually agreed-upon penalty, where the fee payer has not filed a charge with the DLR.[609]

DLR regulations detail the procedures a union must follow in order to ratify an agency service fee provision and to demand payment of the fee.[610] Failure to follow the procedures invalidates a union’s demand for a fee.[611]

Validity of Demands

Ratification

A demand for a service fee is not valid unless the contract requiring its payment has been executed and ratified by a majority tally in a vote open to all bargaining unit members.[612] The following guidelines regarding ratification apply:

• A written record of the vote must be taken, but it is not necessary that a union take an individual count of the vote or keep a written record of each individual vote or the number of votes cast.[613]
• The union must provide notice, which strictly conforms to DLR Regulation 17.03(5), to all bargaining unit members that a ratification procedure will take place.[614]
• At the time of ratification, the union must make available for inspection, upon request, a copy of its Form 2, or an equivalent statement of financial receipts and disbursements for the previous fiscal year.[615]

Content of Demand

The union seeking a fee must serve a written demand on the employees. The following guidelines apply to the written demand:

• The demand must include the amount of the fee, the period for which the fee is assessed, the method by which payment should be made, the person to whom payment should be made, and the consequences for failure to pay.[616]
• The union must also notify the fee payer of the opportunity to challenge the fee through an adequate rebate procedure and provide certain financial information.[617]
• The union must attach to the demand a copy of the entire text of the DLR’s agency service fee regulations.[618]

Service of Demand

A union violates the Law if it pursues payment or penalties for nonpayment of a service fee if the nonmember has not received the demand.[619] A union may rebut a nonmember’s evidence that it did not receive the demand by establishing that:

• The nonmember was given the demand in person;
• The nonmember or another competent adult residing with the nonmember signed a return receipt confirming delivery;
• The demand was left at the nonmember’s last and usual residence;
• A demand was mailed to a nonmember or left in the nonmember’s school mailbox; or
• The nonmember deliberately evaded receipt.[620]

Access to Union Expenditure Information

At the time of the demand, the union must have Forms 1 and 2 on file at the DLR.[621] The union also must provide nonmembers with an adequate explanation of the basis of the service fee. At a minimum, this must include for the fiscal year preceding the period for which the fee is demanded:

• A copy of an independent auditor’s financial statement of revenue and expenses;
• A list of the major categories of the union’s expenses; and
• A demonstration that none of the expenses listed in a particular category were used to subsidize nonchargeable activities, or an explanation of the share that was so used.[622]

Rebate Procedure

A union demanding a service fee must make available to nonmembers an internal procedure by which they may obtain a rebate of the fee that is in excess of the amount permitted by the Law. Unions must notify fee payers in writing of this procedure at the time the fee is demanded. The procedure must provide:

• A prompt adjudication before an arbitrator not chosen exclusively by the union; and
• An escrow or equivalent arrangement that guarantees that an objecting fee payer’s agency fee will not be used even temporarily for nonchargeable purposes.[623]

Providing Required Information

Any information that a union is required to provide as part of making a valid demand may be delivered electronically. 456 CMR 17.04 (4).

Challenges to the Amount of an Agency Service Fee

Union’s Burden of Proof

A union can meet its burden of proving that the amount of an agency service fee is equivalent to the nonmember’s pro rata share of the costs of collective bargaining and contract administration with the following evidence:

• Evidence of all the amounts the union has spent permissibly and the total number of employees represented in the bargaining unit; or
• Evidence that the membership dues for a particular year represented the members’ pro rata share of the anticipated union expenses for that year, and that particular proportion of those expenses were chargeable.[624] To qualify as a chargeable expense, the union expenditure must:
• Be germane to collective-bargaining activity;
• Be justified by the government’s vital policy interest in labor peace and avoiding “free riders;” and
• Not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.[625]

Sufficiency of the Union’s Evidence at Hearing

At a minimum, the evidence a union must proffer to meet its burden of proof in an amount challenge should include audited financial records or equally reliable evidence itemizing the union’s expenditures and demonstrating how they relate to the categories in DLR Regulation 456 CMR 17.03.[626] A union may rely on a prima facie showing that its service fee calculations are correct. Its initial burden is to produce enough credible detail to warrant a finding that identified expenditures are chargeable.[627]

Summaries of union expenditures are only admissible when they meet the following criteria:

• They are based on audited or equally reliable financial records;
• They are organized according to the categories in Regulation 17.04;
• They are introduced through witnesses who can knowledgeably testify about the nature and accuracy of the underlying expense data and who can sufficiently detail the summarized testimony to persuade the CERB that the summary is reliable; and
• The underlying financial data must be made available to an objecting employee who requests the opportunity to examine it.[628]

Generally, the CERB may presume that the following expenses are chargeable:

• Overhead expenses that are necessary to maintain the union’s existence.[629]
• Contributions to union candidates for national union office.[630]
• Certain union meetings and board of directors’ expenses.[631]
   

Other administrative costs are chargeable in proportion to the union’s over-all chargeable expenses.[632]

The fact that chargeable and nonchargeable activities are combined at a union meeting or conference does not render all the expenses nonchargeable. The evidence that the union has to produce in order to meet its burden of persuasion depends on the following factors:

• The nature and purpose of the event;
• The types of attendees at the event and their level of participation; and
• The nature and extent of political activity at the meeting.[633]

To prove the permissibility of payments to a local union’s national, state, or regional affiliates, the local union must present evidence of how those payments were spent by the affiliates.[634]

Once a union makes its prima facie showing of chargeability, the fee payer assumes a limited burden of production to probe the union’s evidence and produce some evidence to rebut the union’s prima facie showing. At all times, the union retains the ultimate burden of persuasion.[635]

b. Section 10(b)(2)

A union violates Section 10(b)(2) of the Law when it refuses to bargain in good faith. In general, a union's obligation to bargain in good faith mirrors an employer's good faith bargaining obligation under Section 10(a)(5) of the Law.[636] For additional information regarding a party’s duty to bargain in good faith, see Section III(F)(1)(e).

c. Section 10(b)(3)

Section 10(b)(3) corresponds to the employer’s Section 10(a)(6) requirement to participate in good faith in mediation, fact-finding, and arbitration.[637] For further discussion regarding good faith participation in these processes, please see Section III(F)(1)(f).

____________________

[594] Switzer v. Labor Relations Commission, 36 Mass. App. Ct. 565 (1994) (the question of whether the union violated its constitution and by-laws is a matter for the courts, not the CERB); National Association of Government Employees, 13 MLC 1525 (1987).

[595] Id.

[596] Brockton Education Association, 12 MLC 1497 (1986) (union violated Law by moving to censure members who voluntarily testified on behalf of employer).

[597] Johnson and McNulty, 8 MLC 1993 (1982), aff'd sub nom. Boston Police Patrolmen's Association v. Labor Relations Commission, 16 Mass. App. Ct. 953 (1983).

[598] Luther E. Allen, Jr., 8 MLC 1518 (1981).

[599] American Federation of State, County and Municipal Employees, 35 MLC 300 (2009).

[600] 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. 1340 (1989).

[601] American Federation of State, County, and Municipal Employees, 35 MLC 300 (2009).

[602] Independent Public Employees Association, Local 195, 12 MLC 1558 (1986).

[603] NAGE, 20 MLC 1105 (1993), aff’d sub nom. National Association of Government Employees v. Labor Relations Commission, 38 Mass. App. Ct. 611 (1995).

[604] Quincy Food Serv. Employees Ass’n & Hosp., Library & Pub. Employees Union, 407 Mass. 601 (1990).

[605] Pattison v. Labor Relations Commission, 30 Mass. App. Ct. 1340 (1989) (citations omitted); Cf. Amherst Police League, 35 MLC 239 (2009) (a union’s gross negligence is a breach of its duty of fair representation).

[606] United Steelworkers of America, 31 MLC 122 (2005), aff’d sub nom. United Steelworkers of America v. Commonwealth Employment Relations Board, 75 Mass. App. Ct. 656 (2009); Amherst Police League, 35 MLC 239 (2009).

[607] School Committee of Greenfield v. Greenfield Education Association, 385 Mass. 70 (1982); Cf. Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

[608] Massachusetts Board of Regents, 10 MLC 1048 (1983); Leominster School Secretaries Association, 7 MLC 1953 (1981).

[609] Whittier Regional School Committee v. Labor Relations Commission, 401 Mass. 560 (1988).

[610] 456 CMR 17. 02, 17.04.

[611] 456 CMR 17.05(1).

[612] 456 CMR 17.02(1) – (2).

[613] 456 CMR 17.02(3); Woburn Teachers Association, 10 MLC 1426 (1984).

[614] 456 CMR 17.02(5); United Steelworkers of America, 10 MLC 1080 (1983).

[615] 456 CMR 17.02(4); Fairhaven Educators Association, 13 MLC 1274 (1986) (requirement will be satisfied if the union makes its most current statement available, and can prove that it could not have prepared a more current one).

[616] 456 CMR 17.04(1).

[617] Malden Education Association, 15 MLC 1429 (1989).

[618] 456 CMR 17. 04(2). For additional information regarding invalid or deficient demands, please see Malden Education Association, 15 MLC 1029 (1988) and Fairhaven Educators Association, 13 MLC 1274 (1986).

[619] Massachusetts Society of Professors, 15 MLC 1683 (1989).

[620] Id.

[621] 456 CMR 17. 04(3); Malden Education Association, 11 MLC 1500 (1985) (the fee payer must show by a preponderance of the evidence that, at the time the union demanded the fee, it had not filed the required information with the DLR).

[622] Malden Education Association, 15 MLC 1429 (1989); Cf. Wareham Education Association et al. v. Labor Relations Commission, 430 Mass. 81 (1999) (no exception to the independent audit requirement for small local union affiliates).

[623] Malden Education Association, 15 MLC 1429 (1989).

[624] Woburn Education Association, 13 MLC 1555 (1987); Newton Teachers Association, 13 MLC 1589 (1987) (1987); Cf. James J. Belhumeur et al. v. Labor Relations Commission, 432 Mass. 458 (2000) (the union is not required to use the formula that results in the lowest fee).

[625] James J. Belhumeur et al. v. Labor Relations Commission, 432 Mass. 458 (2000).

[626] Woburn Education Association, 13 MLC 1555 (1987).

[627] Springfield Education Association et al., 23 MLC 233 (1997), aff’d in part, rev’d in part, sub nom. James J. Belhumeur et al. v. Labor Relations Commission, 432 Mass. 458 (2000) (unless a related expense is inherently related to collective bargaining, a union must show by evidence that a particular expense is chargeable).

[628] Milford Teachers Association, 13 MLC 1568 (1987).

[629] James J. Belhumeur v. Labor Relations Commission, 432 Mass. 458 (2000); Newton Teachers Association, 13 MLC 1589 (1987).

[630] Chicopee Fire Fighters, Local 1701, IAFF, 14 MLC 1241 (1987).

[631] James J. Belhumeur et al. v. Labor Relations Commission, 432 Mass. 458 (2000).

[632] Id.; Newton Teachers Association, 13 MLC 1589 (1987).

[633] James J. Belhumeur et al. v. Labor Relations Commission, 432 Mass. 458 (2000).

[634] Chicopee Fire Fighters, Local 1701, IAFF, 14 MLC 1241 (1987).

[635] Id.

[636] Boston School Committee, 37 MLC 214 (2011) (union violated Section 10(b)(2) by unilaterally imposing pre-conditions on a bargained-for procedure and practice); North Middlesex Regional School District Teachers Association, 28 MLC 160, 165 (2001).

[637] NAGE, 8 MLC 1484 (1981) (union refused to participate in fact-finding); Worcester Police Officials Association, 4 MLC 1366 (1977) (union violated Law by presenting improper wage and benefit proposal to fact-finder).

G. Impasse

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]

____________________

[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]

____________________

[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 19, MUP-13-3371 et al. (November 7, 2014); City of Melrose, 28 MLC 53 (2001).

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

[646] Id.

H. Final and Binding Grievance Arbitration

1. Threshold Questions

Section 8 of the Law provides that parties may include in a written agreement a grievance procedure with binding arbitration. The DLR may order binding grievance arbitration under Section 8 of the Law upon the union or employer’s request if the following criteria are met:

• There is a written collective bargaining agreement in effect at the time of the alleged event.
• There is a dispute over the interpretation or application of the written agreement.
• The agreement does not provide for final and binding arbitration.[647]

The DLR orders binding arbitration when the dispute is “arguably arbitrable.”[648]

If an employee elects to arbitrate a grievance involving a suspension, dismissal, removal, or termination, arbitration is the exclusive procedure available to the employee notwithstanding any rights the employee may have under M.G.L. c. 31 (Civil Service), M.G.L. c. 32 (Retirement Board), and M.G.L. c. 71 (Tenured Teachers).[649] Where the grievance does not involve one of these issues, the DLR may order binding arbitration even if the aggrieved employee is pursuing other remedies.[650]

____________________

[647] M.G.L. c. 150E, Section 8; Essex County Sheriff’s Department, 29 MLC 75 (2002); cf. Town of East Longmeadow, 3 MLC 1046 (1976) (an order under Section 8 of the Law is not appropriate where there is contractual binding arbitration); Swampscott Fire Fighters, Local 1459, 8 MLC 1354 (1981) (party seeking to enforce contractual arbitration should proceed in Superior Court pursuant to M.G.L. c. 150C); see also Wales School Committee, 11 MLC 1330 (1985) and Sturbridge School Committee, 11 MLC 1037 (1984) (CERB rejects employers’ arguments that it does not have statutory authority to order binding arbitration and that Section 8 is unconstitutional).

[648] Essex County Sheriff’s Department, 29 MLC 75 (2002) (the DLR’s review is limited to whether the contract arguably covers the dispute and leaves questions concerning whether the grievance is procedurally and substantively arbitrable to the arbitrator, and whether arbitration on the subject is contrary to law or public policy to the courts).

[649] M.G.L. c. 31, Section 8.

[650] Board of Trustees of State Colleges, 1 MLC 1474 (1975).

2. Refusal to Participate or Comply with Award

Under Sections 10(a)(6) and 10(b)(3) of the Law, it is a prohibited practice for employers or employee organizations to refuse to participate in good faith in the grievance procedure agreed to by the parties or ordered by the DLR. The following are examples of Section 10 violations:

• An employer’s refusal to comply with an arbitrator’s unambiguous award, forcing other employees to serially file identical grievances.[651]
• An employer’s unreasonable delay in processing grievances to arbitration.[652]

An employer’s continued refusal to comply with the procedural grievance arbitration provisions of a duly executed contract is a per se violation of the Law.[653]

____________________

[651]Suffolk County Sheriff’s Department, 28 MLC 253 (2002); City of Lynn, 9 MLC 1049 (1982).

[652] Everett Housing Authority, 8 MLC 1818 (1982) (employer’s conduct violated Section 10(a)(5) of the Law); cf. City of Peabody, 29 MLC 115 (2002) (employer’s duty to bargain in good faith does not compel it to settle the dispute underlying the grievance).

[653] City of Chelsea, 3 MLC 1384 (1977).

3. Waiver

An employee organization may expressly waive its Section 8 right to request binding arbitration for a specific and narrow class of disputes.[654] The waiver must be clear and unmistakable, and the absence of a binding arbitration provision in the contract does not constitute a waiver of the right to a Section 8 order.[655]

____________________

[654] Swampscott Firefighters Local 1459, 8 MLC 1354 (1981).

[655] Town of Athol, 4 MLC 1134 (1977).

I. Strikes

Section 9A(a) of the Law prohibits public employees and employee organizations from striking or inducing, encouraging, or condoning a work stoppage by public employees.

1. Prohibited Conduct

a. Withholding Services - In General

To determine whether public employees are engaged in a strike or withholding services the CERB considers three factors:

• Whether the service is one which employees must perform as a condition of employment.
• Whether the service was in fact withheld or is about to be withheld.
• The party responsible for the withholding of the service.[656]

1) Service as a Condition of Employment

Conditions of employment are defined as “not only those duties specifically mentioned in an existing or recently expired collective bargaining agreement (or personnel policies in effect for more than one year), but also those practices not unique to individual employees which are intrinsic to the position or which have been performed by employees as a group on a consistent basis over a sustained period of time.”[657]

The CERB has also held the following regarding conditions of employment:

• The refusal to work overtime is not a strike where an existing collective bargaining agreement or past practice specifically authorizes the refusal.[658]
• A concerted refusal to perform a task that is purely voluntary or within employees’ discretion is not a strike.[659]
• An employee's failure or refusal to maintain a current professional certification required to perform employment duties may be a strike or unlawful withholding services.[660]
• The expiration of a collective bargaining agreement specifying the reporting date for schoolteachers does not eliminate the teachers’ obligation to report to work on the first scheduled day of the school year.[661]
• Where the employer has failed to consistently enforce a written requirement that employees perform a certain task or the manner in which they perform it, the failure to perform the task does not constitute unlawful withholding of services.[662]
• Where the activity alleged by the employer to violate the Law consists of a reduction in employee productivity, the CERB does not necessarily infer from statistical data that employees are unlawfully withholding services, even if coupled with evidence that the employees were dissatisfied with the progress of negotiations.[663]

2) Evidence of Withholding Services

Where there is no direct evidence of a strike, the CERB may make its findings based upon the available facts and the reasonable inferences drawn from them.[664] Factors the CERB has considered in finding a strike include:

• The absence without excuse of virtually 100% of the employees in the context of a dispute over a collective bargaining agreement; and
• The fact that employees picketed outside their place of employment during work hours.[665]

Other facts that may lead to an inference of a strike include:

• An abnormally high rate of absenteeism.
• The similarity of employee absence excuses.
• The timing of absenteeism coincides with expressed labor relations frustration.[666]

b. Inducement, Encouragement, and Condonation

Section 9A(a) also prohibits public employees or employee organizations from inducing, encouraging, or condoning a strike. Evidence of a violation includes:

• The failure of union officers to report to work.
• Union officials’ remarks indicating the existence of a strike vote by union members.
• Picketing by union officials during work hours.[667]
• Information regarding the work action on the union’s website, including announcements or steps taken by the union’s executive board regarding an upcoming strike vote.[668]

If an employer alleges that a union's parent or affiliate organization has also violated Section 9A(a), it must introduce sufficient facts to establish such involvement.[669] In considering such cases, the CERB has held:

• An affiliated organization's representative on an informational picket line during non-work hours is alone insufficient evidence to warrant a conclusion that the affiliated organization was condoning or encouraging a subsequent strike. However, evidence of the representative's picketing during the strike may be sufficient.[670]
• The mere presence of an affiliate's representative at bargaining sessions where local union officials indicate that a strike vote will be taken by the local membership is not sufficient to impose liability on the affiliate.[671]
• Statements made by an affiliate’s representative do not amount to encouragement of a strike where the remarks referred only to an understanding that there arose a "spontaneous illness" among bargaining unit members.[672]
• A union did not induce, encourage, or condone a strike where the union did not advocate on its website that employees call in sick (unlike another job action that union was advocating for at the same time), and union president told at least one other union official that he thought a sick-out was a “bad idea.”[673]

The Supreme Judicial Court held that union officials have an affirmative duty to oppose a strike and to ensure union compliance with an injunction.[674] The CERB has further found:

• The union’s participation in picketing or demonstrations, or the distribution of leaflets announcing the cancellation of a work day during a work stoppage or explaining the reasons for the work stoppage, is evidence of inducing and encouraging a strike.[675]
• The union's establishment of a strike headquarters is evidence of a violation of the Law.[676]
• The absence of a picket line or lack of a formal union endorsement of the strike does not shield the union from liability for condoning the alleged activity.[677]
• The union is held responsible for the actions of its officers and leaders.[678]
• A union's failure to present evidence to rebut evidence of its involvement, or to show that its officials took some affirmative steps to discourage unit members from striking, allows the CERB to draw an adverse inference of union inducement, encouragement, or condonation.[679]
• The CERB may infer union inducement and condonation where the work stoppage was 90% effective, union officers failed to appear for work, and the strike started and stopped on cue, all of which occurred during a period of labor unrest.[680]
• E-bulletins and articles in a union newspaper criticizing employer’s bargaining strategy and proposals, announcing executive board’s approval to take a motion to hold a strike vote before the membership, and other preparation for “exigencies” amply supported, “if not compelled” the CERB’s conclusion that the union unlawfully induced, encouraged and condoned a strike.[681]

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[656]Town of Danvers, 31 MLC 76 (2004); Newton School Committee, 9 MLC 1611 (1983).

[657] Town of Danvers, 31 MLC 76 (2004); Lenox School Committee, 7 MLC 1761 (1980), aff’d sub nom. Lenox Education Association v. Labor Relations Commission, 393 Mass. 276 (1984).

[658] City of Newton, 13 MLC 1462 (1987); City of Beverly, 3 MLC 1229 (1976); but see Town of Arlington, 3 MLC 1276 (1976) (where overtime is required by contract or is emergency in nature, concerted refusal to work such overtime may constitute a violation).

[659] City of Boston, 35 MLC 91 (2008); Town of Danvers, 31 MLC 76 (2004).

[660] Town of Walpole, 12 MLC 1039 (1985).

[661] Peabody School Committee, 15 MLC 1147 (1988).

[662] University of Massachusetts, 28 MLC 91 (2001).

[663] Town of Danvers, 31 MLC 76 (2004) (CERB declined to infer that a strike was occurring from statistical data where evidence showed that officers were free to exercise their discretion whether to issue complaint citations, and there was no evidence that the town communicated to officers that they were expected to issue complaint citations within the 65% annual average).

[664] Town of Abington, 12 MLC 1084 (1985).

[665] Hanover School Committee, 15 MLC 1182 (1988); Tewksbury School Committee, 12 MLC 1353 (1985); but see Shrewsbury School Committee, 26 MLC 103 (2000) (the absence of picketing by employees during work hours is not fatal to a showing that a strike is occurring).

[666] Shrewsbury School Committee, 26 MLC 103 (2000) (CERB concluded that a strike existed based on the fact that over 50% of workforce was absent and that the “Crisis Team” recommended that bargaining unit members report in sick); Boston School Committee, 14 MLC 1406 (1987); Wakefield Municipal Light Dept., 13 MLC 1521 (1987); Town of Abington, 12 MLC 1084 (1987) (100% of employees absent from same shift claiming illness); cf. King Phillip Regional School Committee, 37 MLC 81 (2010) (CERB declined to infer that there had been an unlawful withholding of services with respect to teachers writing letters of recommendation where there was no clear evidence that any teachers had actually stopped writing recommendations or spent less time on them, and no mutually understood practice as to the time teachers were expected to spend writing recommendations or their content); City of Medford, 11 MLC 1042 (1984) (where a small number of employees reported to work and signed out ill, and no additional evidence was introduced from which the CERB could infer that the illnesses were feigned, or that the absences were unusual in number, the CERB dismissed a strike investigation petition).

[667] Hanover School Committee, 15 MLC 1182 (1988); Northeast Metropolitan Regional Vocational School Committee, 13 MLC 1213 (1986); but see Quincy School Committee, 12 MLC 1675 (1986); City of Medford, 11 MLC 1107 (1984).

[668] Boston Teachers Union, Local 66, 33 MLC 133 (2001), aff’d sub nom. Commonwealth Employment Relations Board v. Boston Teachers Union, Local 66, 74 Mass. App. Ct. 500 (2009); University of Massachusetts, 28 MLC 91 (2001).

[669] Lowell School Committee, 15 MLC 1151 (1988); Everett School Committee, 14 MLC 1284 (1987).

[670] Medford School Committee, 14 MLC 1213 (1987).

[671] Revere School Committee, 14 MLC 1177 (1987).

[672] Quincy School Committee, 12 MLC 1675 (1986).

[673] University of Massachusetts (Amherst), 28 MLC 91 (2001).

[674] Labor Relations Commission v. Boston Teachers Union, Local 66, 374 Mass. 79 (1977).

[675] Peabody School Committee, 15 MLC 1147 (1988); Seekonk School Committee, 14 MLC 1198 (1987).

[676] Lowell School Committee, 15 MLC 1151 (1988).

[677] City of Lawrence, 11 MLC 1284 (1984).

[678] Quincy School Committee, 12 MLC 1774 (1986).

[679] Brockton School Committee, 13 MLC 1545 (1987).

[680] City of New Bedford, 4 MLC 1001 (1977).

[681] Commonwealth Employment Relations Board v. Boston Teachers Union, 74 Mass App. Ct., 500 (2009).

2. Work to Rule

Employees are engaged in a strike in violation of Section 9A(a) of the Law if they abstain in whole or in part from the performance of duties:

• Specifically mentioned in an existing or recently expired contract.
• That are not unique to individual employees because they are either intrinsic to the position or have been performed by employees as a group on a consistent basis over a substantial period of time.[682]

When an employer fails to establish, communicate and/or enforce rules governing the duties that employees are obligated to perform, employees or unions who withhold, or urge or condone the withholding of those services have not engaged in an illegal work stoppage within the meaning of Section 9A(a).[683] The CERB also held:

• The concerted withholding of services, which are not duties as so defined, is protected activity.[684] A Section 9A(a) violation cannot be based on concerted conduct that would be permissible if done alone.[685]
• Teachers’ refusal to teach summer school classes and attend professional development program at the end of the school year was not an unlawful strike because there was no express or implied contract between the school committee and the union requiring teachers to teach classes, there was no evidence that the school committee required teachers to teach these classes, and the duties were not intrinsic to the position.[686]
• Police officers failing to issue traffic citations was not a strike where personnel manual made clear that issuing citations was within officer’s discretion and did not establish a quota.[687]
• Graduate students’ refusal to turn grades in by noon on a specific day was not an unlawful withholding of services where, although various memos and the school calendar specified the noon deadline, evidence showed that graduate students had not met the deadline in the past without being disciplined, and other graduate students who were not participating in grade “embargo” also turned in grades late.[688]
• Teachers’ alleged refusal to perform certain tasks, such as entering grades into grade database, writing recommendations, and teaching independent studies was not a violation where the evidence failed to show that teachers consistently used the grade database, were required to do so, or that they had stopped actually writing recommendations. Evidence also showed that teaching independent studies was a voluntary task that was not intrinsic to the position.[689]
• Where the contract made clear that acceptance of on-call assignments was purely voluntary, the concerted refusal of housing inspectors to perform on-call assignments did not constitute an unlawful strike or withholding of services.[690]

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[682] Lenox School Committee, 7 MLC 1761 (1980), aff'd sub nom. Lenox Education Association v. Labor Relations Commission, 393 Mass. 276 (1984).

[683] Andover School Committee, 40 MLC 1 (2013).

[684] Andover School Committee, 40 MLC 1 (2013); Southeastern Regional School Committee, 7 MLC 1801 (1981).

[685] Andover School Committee, 40 MLC 1 (2013); Town of Plymouth, 18 MLC 1191 (1991); City of Newton, 13 MLC 1462 (1987).

[686] Lawrence School Committee, 26 MLC 3 (1999).

[687] Town of Danvers, 31 MLC 76 (2004).

[688] University of Massachusetts, 28 MLC 91 (2001).

[689] King Philip Regional School Committee, 37 MLC 81 (2010).

[690] City of Boston, 35 MLC 91 (2008).

3. Threatened Strikes

Section 9A(b) permits a public employer to petition the CERB to investigate allegations that a strike is about to occur. In such cases:

• The CERB traditionally limited the application of this provision to situations where no further union action is necessary before a strike begins, e.g., when an actual strike vote has taken place.[691]
• Where waiting for an actual strike vote to take place does not leave sufficient time for the employer to meaningfully engage the process set forth in Section 9A to prevent a strike from occurring, the CERB does not require a strike vote as a per se prerequisite to its finding that a strike is about to occur. Instead, it considers evidence short of an actual strike vote demonstrating that an actual threat of strike, work stoppage or slowdown exists. Such evidence has included the bargaining unit members’ unanimous approval of a motion approved by the union’s executive board to authorize a strike vote scheduled to take place five weeks later, the fact that the union’s bylaws contained a provision stating, “A general membership meeting is the only body which may accept or reject contracts or call a work stoppage,” and other evidence that the union was advocating and preparing for a strike.[692]
• The CERB also takes into account whether the deprivation of services causes both financial and non-financial “irreparable harm” on the employer and its constituents.[693]
• Where the evidence of a threatened strike was speculative, occurred several months before the petition was filed, and there was no evidence that the strike preparations had continued, the CERB dismissed the strike petition.[694]

____________________

[691] City of Worcester, 13 MLC 1627 (1987); Boston School Committee, 10 MLC 1289 (1983).

[692] Boston School Committee, 33 MLC 133 (2007), aff’d sub nom. Commonwealth Employment Relations Board v. Boston Teachers Union, Local 66, 74 Mass. App. Ct. 500 (2009).

[693] Id.

[694] Peabody School Committee, 31 MLC 50 (2004).

4. Remedial Orders

If the CERB concludes that a union has violated Section 9A(a), the CERB issues an interim order directing the end of the work stoppage. The following situations involve interim orders:

• The interim order may also address some of the issues underlying the work stoppage, especially where related prohibited practice charges are involved and require the parties to participate in bargaining, mediation, or fact-finding.[695]
• The CERB has not excused an employer from continuing to negotiate because the union is on strike.[696]
• The CERB lacks the authority to order binding arbitration of the dispute.[697]
• The CERB also often requires a striking union to inform its members of the provisions of Section 9A(a) of the Law and of the contents of the interim order.[698]
• The CERB may require the union to take necessary action to rescind and publicly disavow votes leading up to a strike vote.[699]
• The CERB routinely retains jurisdiction to set further appropriate requirements.[700]
• The CERB may retain jurisdiction to further investigate allegations against named respondents who were not served with notice of the investigation.[701]

An unlawful work stoppage designed to affect the conduct of collective bargaining may also violate Section 10(b)(2) of the Law.[702]

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[695] Hanover School Committee, 15 MLC 1182 (1988).

[696] Hudson School Committee, 14 MLC 1403 (1987); Lexington School Committee, 14 MLC 1343 (1987).

[697] Director, Division of Employee Relations v. Labor Relations Commission, 370 Mass. 162 (1976); Labor Relations Commission v. Fall River Educators' Association, 382 Mass. 465 (1981).

[698] Boston School Committee, 33 MLC 138 (2007), aff’d sub nom. Commonwealth Employment Relations Board v. Boston Teachers Union, Local 66, AFT, AFL-CIO, 74 Mass. App. Ct. 500 (2009); Peabody School Committee, 15 MLC 1147 (1988).

[699] Boston School Committee, 33 MLC 138 (2007).

[700] Id., Shrewsbury School Committee, 26 MLC 103 (2000); Sharon School Committee, 14 MLC 1410 (1988).

[701] City of Medford, 11 MLC 1107 (1984).

[702] Local 285, SEIU, 17 MLC 1610 (1991).

5. Constitutional Issues

Public employees have no constitutional right to strike.[703] Specifically, the courts have held:

• An injunction that, among other things, ordered a union, its executive board, and its officers to disavow an executive board vote that scheduled a strike vote did not place a prior restraint upon the union to engage in public speech or debate, but rather prohibited it from engaging in actions that were properly prohibited under Section 9A of the Law.[704]
• Even assuming that public employees have a constitutional right to strike notwithstanding the limitations set forth in Section 9A, the employees cannot exercise that right until they have followed the impasse procedures set forth in Section 9 of the Law, or on a showing that the imposition of those procedures would be unconstitutional under the circumstances.[705]

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[703] Commonwealth Employment Relations Board v. Boston Teachers Union, 74 Mass. App. Ct. 500 (2009).

[704] Id. (“To the extent that the conduct regulated by Section 9A includes both “speech” and “non-speech” elements, the purpose of the statute is entirely unrelated to the suppression of free expression. The CERB has a substantial interest in preventing a strike by the union members, and ‘[a]ny incidental limitation of First Amendment freedoms’ is justified.”)

[705] Labor Relations Commission v. Chelsea Teachers’ Union, Local 1340, 400 Mass. 120 (1987).

6. Employer Responses to Alleged Strike Activity

a. Lockouts

Section 9A(b) does not require a public employer to file a strike petition with the CERB in order to implement emergency measures to protect public services threatened by illegal job actions. As long as it acts in good faith, a public employer is permitted to take emergency actions to protect essential public services when those services are threatened, including locking out employees until the employer determines that it can operate its facilities securely. However, an employer seeking administrative or judicial relief from an illegal work stoppage must follow the procedures of Section 9A(b).[706]

b. Employee Discipline

Section 15 of the Law prohibits public employers from compensating employees for any day, or part thereof, when the employees are engaged in a strike. Section 15 also permits the employer to invoke employee discipline and discharge proceedings without first petitioning the CERB under Section 9A(b) of the Law.[707] The employer's action may be reviewed by the CERB in the context of a prohibited practice charge.[708]

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[706] Town of Braintree, 8 MLC 1825 (1982), aff'd sub nom. Utility Workers of America, Local 466 v. Labor Relations Commission, 389 Mass. 500 (1983).

[707] Lenox Education Association v. Labor Relations Commission, 393 Mass. 276 (1984).

[708] Lenox School Committee, 7 MLC 1761 (1981), aff’d sub nom. Lenox Education Association v. Labor Relations Commission, 393 Mass. 276 (1984); School Committee of Leominster v. Labor Relations Commission, 21 Mass. App. Ct. 245 (1985).

J. Remedial Authority

Section 11 of the Law grants the CERB discretion in formulating remedies that will best effectuate the policies of the Law.[709] The CERB’s remedy places successful charging parties in the position they would have been in but for the unfair labor practice.[710]

The following sections detail the various remedies the CERB may order.

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]

1. 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]

2. Interim Earnings

Interim earnings include only income earned as a result of the unlawful discharge or other adverse action, such as unemployment compensation.[717]

3. Expenses

Expenses are generally those incurred while receiving interim earnings.[718]

4. 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]

5. 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. 659 (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. 659 (2009).

[743] Commonwealth of Massachusetts, 26 MLC 218 (2000); Billerica School Committee, 6 MLC 1824 (1980).

[744] Hudson Education Association, 15 MLC 1126 (1988).