DLR Hearing Officer, CERB & Arbitration Decisions

Recent DLR Hearing Officer Decisions, Commonwealth Employment Relations Board (CERB) Decisions and Arbitration Decisions summaries are listed below in chronological order with a link to the full decision.

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October 2018

MUP-06-4699 CERB DECISION October 30, 2018  City of Boston and Boston Police Superior Officer's Federation, MUP-06-4699 CERB Decision. The City of Boston and Boston Police Superior Officers Federation filed cross-appeals appeals from a Hearing Officer decision ordering the City of Boston to comply with a 2012 CERB make-whole order, as affirmed by the Appeals Court in 2015.  The CERB concluded that the Hearing Officer properly ordered the City to pay bargaining unit members a proportionate amount of the stipend they would have earned overseeing City Hall security during three discrete periods between April 12 2006 and September 24, 2016 when the City, in repudiation of a 2005 agreement, failed to assign bargaining unit members to this position.  Among other things, the City of Boston argued that the Hearing Officer had improperly failed to consider its argument that the 2005 agreement infringed on the Boston Police Commissioner’s non-delegable rights of assignment.  The City made this argument to the Hearing Officer in the first hearing, but because it did not make it to the CERB in its first appeal, the Appeals Court declined to consider it.  On compliance, the Hearing Officer held that the City could not raise it anew.  The CERB agreed, holding that a compliance hearing does not provide a second chance to raise matters that had not been appealed in the underlying decision.

 

ARB-17-5949 ARBITRATION AWARD October 5, 2018 Town of Holden and Regional Emergency Communication Center Assn. L.450 MCOP, ARB-17-5949, Arbitration Award. The issues in this case are: Is the grievance procedurally arbitrable?  If so, did the Town violate the collective bargaining agreement when it scheduled a part-time dispatcher for an open shift on February 3, 2017, without offering the shift to full-time dispatchers first?  If so, what shall be the remedy? The arbitrator found that the grievance was procedurally arbitrable, but that the Town did not violate the collective bargaining agreement when it scheduled a part-time dispatcher for a shift on February 3, 2017 without offering it to a full-time bargaining unit dispatcher first. 

MUP-17-5762 HEARING OFFICER DECISION October 2, 2018 Stoughton School Committee and Stoughton Teachers Association, MUP-17-5762, Hearing Officer Decision.  The issue in this case is whether the Stoughton School Committee violated Section 10(a)(1) of the Law when it ordered unit members to stop wearing buttons which stated, “I Support Stoughton Teachers.”  The School Committee argued that special circumstances permitted it to prohibit the conduct, which it admitted would otherwise be protected.  However, the Hearing Officer determined that the School Committee did not establish the special circumstances at hearing, and held that it violated the Law as alleged.

September 2018

MUPL-16-5526 HEARING OFFICER DECISION September 20, 2018 Seekonk Firefighters Association, Local 1931, IAFF and Town of Seekonk, MUPL-16-5526, Hearing Officer Decision.  The issue in this case is whether the Union violated Section 10(b)(2), and, derivatively, Section 10(b)(1) of M.G.L. c. 150E (the Law) by engaging in surface bargaining during successor contract negotiations when it addressed the issue of twenty-four hour shifts with the Town. Based on the evidence presented at hearing, the Hearing Officer found that the totality of the Union’s conduct, which included discussing the Town’s proposal on the issue of twenty-four hour shifts during a bargaining session and filing a petition with the Joint Labor Management Committee before scheduling additional bargaining sessions, amounted to hard bargaining in good faith and did not violate the Law as alleged.

SUP-16-5246 HEARING OFFICER DECISION September 6, 2018 Board of Higher Education and APA, Hearing Officer Decision. The issue in this case was whether the Employer violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Law by discharging an employee in retaliation for engaging in concerted, protected activity.  The Hearing Officer dismissed the Complaint, finding that that the Employer did not violate the law because the Employer produced evidence of lawful reasons, including insubordination and unprofessional conduct, to support the discharge; and the Union did not prove that but for the employee’s protected activity the Employer would not have discharged the employee.

August 2018

MUP-16-5315 & MUP-16-5350 CERB DECISION August 30, 2018 City of Boston and Boston Police Patrolmen's Association and Boston Police Superior Officers Federation, MUP-16-5315 & MUP-16-5350, CERB Decision on Appeal of Hearing Officers Decision. The CERB affirmed a Hearing Officer decision holding that the City of Boston violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by implementing a mediation program for certain citizen complaints against officers without first giving the Unionss notice and an opportunity to bargain to resolution or impasse about the impacts of this program. As a remedy, the Hearing Officer ordered the City to rescind the mediation program for new citizen complaints filed against bargaining unit members until the City complied with the order to offer to bargain with the charging party unions (Unions). In affirming the decision, the CERB rejected the City’s argument that the Police Commissioners’ statute precluded the City from engaging in impact bargaining.  The CERB also rejected the City’s claim that mediation program had no actual impacts on police officers.  Rather, it agreed with the Hearing Officer that the mediation program impacted the Department’s disciplinary rules and mandatory subjects. The CERB also rejected the City’s contention that it bargained to impasse with the Unions because the evidence did not reflect that the parties had exhausted all potential for compromise.  Finally, the CERB affirmed the rescission remedy because at least two of the impact bargaining issues, the identity of the mediators and officer eligibility, could not be separated from the decision to implement a mediation program. The CERB further found that these aspects of the program did not inevitably result from the managerial decision.

CAS-16-5404 CERB DECISION August 30, 2018 Board of Trustees, University of Massachusetts, Darmouth and AFSCME, Council 93, AFL-CIO, CAS-16-5404 CERB Decision. The CERB dismissed a petition filed by AFSCME, Council 93, AFL-CIO, Local 507 (AFSCME), seeking to accrete the newly-created position of Student Loan Manager (SLM) into its bargaining unit of clerical and technical employees who work at the Dartmouth campus of the University of Massachusetts.  After an AFSCME Administrative Assistant I (Admin I) retired from the Financial Aid office, the University decided not to replace her, but to create the SLM position.  The SLM performed some of the duties that the Admin I had performed, but also performed new and modified duties, including educational and counseling duties, which the University believed were necessary to comply with various student loan statutes and regulations.  The University placed the SLM into the bargaining unit of employees represented by the American Federation of Teachers, Education Services Unit (ESU).  Because the SLM performed some of the duties that the Admin I performed, AFSCME contended that the SLM belonged to its bargaining unit.  The CERB disagreed, concluding that the SLM shared a greater community of interest with members of ESU's bargaining unit based on their similar duties, level of discretion exercised, work contact, and requisite training and experience.

SUP-17-5896 HEARING OFFICER DECISION August 24, 2018 Comm. of MA/Sec. of Admin. and Finance/Dept. of Children & Families and SEIU, Local 509, Hearing Officer Decision. The issue in the case was whether the Employer violated Sections 10(a)(5) and, derivatively, 10(a)(1) of M.G.L. c. 150E by failing to provide the Union with information that was relevant and reasonably necessary for the Union to execute its duties as the exclusive collective bargaining representative. Based on the evidence presented at hearing, the Hearing Officer found that the Employer’s legitimate and substantial concerns did not outweigh the Union’s need for the information and, as such, the Employer violated the Law as alleged.

ASF-16-5586 & ASF-18-6576 HEARING OFFICER DECISION August 24, 2018 Massachusetts Correction Officers Federated Union and Brian V. Jansen, Hearing Officer Decision. The issue in these two cases was whether the Union violated Section 10(b)(1) of M.G.L. c. 150E by demanding an agency service fee from Jansen in 2016 and 2017, despite expelling him from the Union. In light of the United States Supreme Court decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, Docket No. 16-1466, which held, in part, that the extraction of agency service fees from nonconsenting public sector employees violates the First Amendment, the Union withdrew its demands for agency service fees. After issuing a show cause order to Jansen, the Hearing Officer dismissed the cases since the dispute over the demand for agency service fees was resolved.

ARB-18-6517 ARBITRATION AWARD August 23, 2018 City of Lowell and Lowell Police Association, Arbitration Award. The issue in this arbitration matter was whether the City violated a provision of the parties’ collective bargaining agreement when it removed a police patrol officer from M.G.L. c. 41, Section 111F and Section 100 status and maintained the removal of that status until his reinstatement to Section 111F status. In denying the Association’s grievance, the arbitrator found that the Association did not establish that a past practice existed. The arbitrator also found that nothing in the collective bargaining agreement prohibited the City from relying on a PERAC medical panel report in its decision to remove the officer from Section 111F status, or from continuing to rely on that report’s findings while the officer challenged the report and PERAC convened a new medical panel.

SUP-14-3576 & SUP-14-3640 CERB DECISION August 21, 2018 Massachusetts Department of Transportation  and United Steelworkers, Local 5696, CERB Decision on Appeal of Hearing Officer's Compliance Decision. Massachusetts Department of Transportation and United Steelworkers, Local 5696, SUP-14-3576, SUP-14-3640.  The CERB affirmed a Hearing Officer decision on compliance holding that, as of May 11, 2018, the Massachusetts Department of Transportation (MassDOT) had not complied with a CERB order requiring it, among other things, to post a notice at two MassDOT locations.  MassDOT appealed, claiming that it properly posted the notices.  However, because MassDOT’s appeal was based on new information submitted to the CERB that the Hearing Officer did not have before her when she decided the case, the CERB dismissed the appeal.

July 2018

ARB-18-6474 ARBITRATION AWARD July 20, 2018 Town of Williamstown and IUE-CWA, Local 81256 Arbitration Award. The issue in this arbitration was whether the Town had just cause to discharge a DPW employee in the wake of a motor vehicle accident. The Town alleged that the employee failed to exercise reasonable care in the operation of a motor vehicle; was insubordinate to a police officer; and that a prior unrelated incident, for which the employee received no discipline, supported discharge after the accident.  The arbitrator held that the Town did not have just cause to discharge the employee because the employee had no record of prior discipline and the Town’s personnel policy provided for progressive discipline; the Town did not prove that the employee was insubordinate; and the Town improperly relied on the prior incident, for which it had not disciplined the employee.  The arbitrator ordered the Town to reinstate the employee, reduced the discharge to a written warning in accordance with the Town’s personnel policy, and ordered the Town to make the employee whole for lost wages and benefits.

June 2018

SUP-16-5203 HEARING OFFICER DECISION June 29, 2018 Board of Higher Education and Massachusetts Community College Council, SUP-16-5203. Hearing Officer Decision. The issue in this case is whether the Board of Higher Education (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it transferred bargaining unit duties from the Coordinator of Tutoring position to non-unit personnel at Bristol Community College without first providing the Massachusetts Community College Counsel (Union) with notice and an opportunity to bargain over the transfer and its impacts.  Based on the evidence, the Hearing Officer found that the Employer violated the Law by transferring ten duties outside of the unit; but, did not violate the Law when it transferred budgetary duties because the Union knew about that transfer more than six months prior to filing the Charge.  The Hearing Officer also found that the Employer did not violate the Law when it transferred the duty of producing qualitative data analyses because that duty was not shared work and had been performed exclusively by non-unit personnel at all relevant times.

ARB-16-5684 ARBITRATION DECISION June 22, 2018 Franklin County Sheriff’s Office and National Correctional Employees Union, ARB-16-5684, Arbitration Decision. The issue in this case is: Did the employer violate the parties’ collective bargaining agreement when it failed to promote Gary Gagnon to the position of correctional caseworker in October of 2016? If so, what shall be the remedy? The arbitrator found that the Employer demonstrated that it considered all the factors as required by the collective bargaining agreement, and that the conclusions drawn by the Employer, as to the relative qualifications of the candidates, were not so unreasonable as to warrant intervention to overturn the decision.

MUP-15-5004 HEARING OFFICER DEICISION June 21, 2018 City of Boston and SEIU, Local 888, MUP-16-5004, Hearing Officer Decision. The issue in the case was whether the City violated M.G.L. c. 150E, Sections 10(a)(5) and, derivatively, 10(a)(1) by: (1) failing to credit certain employees who received an upgrade through the compensation grade appeal (CGA) process with back pay to the filing date of their CGA, and (2) changing the job description and/or duties of the Administrative Assistant position in the Disability Unit without providing the Union with prior notice and an opportunity to bargain to resolution or impasse over the decisions and the impacts of those decisions on employees’ terms and conditions of employment. Based on the evidence presented at hearing, the Hearing Officer found that the employees did not receive an upgrade through the CGA process and, thus, were not entitled to back pay. Additionally, the Hearing Officer found that, since there was no evidence that job duties actually changed and the change in job description alone did not affect a mandatory subject of bargaining, the City did not violate the Law as alleged.

May 2018

MUP-16-5202 HEARING OFFICER DECISION May 29, 2018 City of Boston and Boston Public Library Professional Staff Association, MUP-16-5202, Hearing Officer Decision. The issue in this case is whether the City of Boston violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it rescinded an award of 7.5 days of sick leave to unit members in January 2015.The Hearing Officer dismissed the complaint because the evidence showed that the City and Association did not have an oral agreement for the City to award the time. Rather, the City erroneously awarded the sick leave. In addition, the City’s recoupment of the erroneously-awarded time did not constitute an unlawful unilateral change for which it was obligated to bargain.

SUP-14-3576 & SUP-14-3640 HEARING OFFICER DECISION May 25, 2018 MASSACHUSETTS DEPARTMENT OF TRANSPORTATION AND UNITED STEELWORKERS LOCAL 5696, SUP-14-3576 and SUP-14-3640, HEARING OFFICER DECISION ON COMPLIANCE. The issue in this case was whether the Employer complied with the CERB’s July 2017 remedy as set forth in its decision and Order (Order). The Hearing Officer found that, despite a long delay, the Employer complied with all aspects of the Order except for the notice posting in two locations. She ordered that the Employer post the Notice to Employees attached to the CERB’s July 2017 Order in those two locations, and also ordered that it post the Notice to Employees attached to the compliance decision in all locations. 

MUP-16-5525 HEARING OFFICER DECISION May 9, 2018 City of Boston and AFSCME Council 93, MUP-16-5525, Hearing Officer Decision. The issue in the case was whether the City violated Sections 10(a)(5) and, derivatively, 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by transferring animal quarantining duties to non-bargaining unit personnel without providing the Union with prior notice and an opportunity to bargain to resolution or impasse over the decision and the impacts of that decision on employees’ terms and conditions of employment. Based on the evidence presented at hearing, the Hearing Officer found animal quarantine duties to be the exclusive work of the bargaining unit and the City’s transfer to have an adverse impact on the bargaining unit. In addressing the City’s arguments regarding its non-delegable authority and public health considerations, the Hearing Officer distinguished Chief Justice for Administration and Management of the Trial Court v. Commonwealth Employment Relations Board, 79 Mass. App. Ct. 374, 946 N.E.2d 704 (Mass. App. 2011) and concluded that the City violated the Law as alleged.

April 2018

SUP-16-5168 HEARING OFFICER DECISION April 12, 2018 COMMONWEALTH OF MASSACHUSETTS AND SEIU, LOCAL 509, SUP-16-5168 HEARING OFFICER DECISION. The issue in this case was whether the Commonwealth of Massachusetts/Commissioner of Administration and Finance, acting through MassHealth, interfered with, restrained or coerced its employees in the exercise of their rights guaranteed under Section 2 of Massachusetts General Laws, Chapter 150E in violation of Section 10(a)(1) of the Law by: interrogating employees concerning their union activities, threatening employees with unspecified reprisals because they engaged in union activities, and surveilling employees while they conducted union meetings. The hearing officer found that the Commonwealth did not violate the law by interrogating employees about their union activities. The Commonwealth did, however, violate the Law when the Director of the Taunton MassHealth Enrollment Center threatened to investigate employee behavior during a union meeting, and surveilled employees by closely monitoring the conduct of union meetings. The hearing officer ordered the Commonwealth to cease and desist from interfering with, restraining or coercing employees in the exercise of their Section 2 rights, and to post a Notice to Employees.

MUP-14-3729 HEARING OFFICER DECISION April 6, 2018 CITY OF WORCESTER AND NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL 495, MUP-14-3729 HEARING OFFICER DECISION. The issue in this case is whether the City of Worcester (City or Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by hiring a new employee to work in the Department of Public Work’s (DPW) Reservoir Division as a motor equipment repairman (MER) without first offering the position to MERs already working in the DPW. For the reasons explained below, I find that the City did not violate the Law in the manner alleged in the complaint.

March 2018

CAS-16-5027 & CAS-16-5211 CERB DECISION March 29, 2018 BOARD OF HIGHER EDUCATION AND AFSCME, COUNCIL 93, AFL-CIO AND MASSACHUSETTS COMMUNITY COLLEGE COUNCIL., CAS-16-5027 & CAS-16-5211, CERB DECISION. The issue before the CERB was whether the position of Help Desk Technician/User Services Technician (HDT) at Roxbury Community College (RCC) should be accreted into the bargaining unit represented by AFSCME Council 93’s (AFSCME) or remain in the bargaining unit represented by the Massachusetts Community College Council (MCCC) AFSCME bargaining unit members had performed similar duties as the HDT until 2016, when RCC decided to reorganize its Information Technology Department, lay off the AFSCME help desk employees and replace them with HDTs. The CERB concluded that the HDT position at RCC was performing the same duties as the HDT classification that had been expressly included in the MCCC’s bargaining unit since 1999. Thus, where the HDT title was neither newly-created nor changed, and where the CERB determined that its continued inclusion of the HDT in MCCC’s unit did not render that unit inappropriate as a matter of Law, the CERB concluded that a CAS petition was not the appropriate vehicle for AFSCME to accrete the position. 

ARB-16-5480 ARBITRATION DECISION March 23, 2018 CITY OF METHUEN AND NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, LOCAL 117 (NEPBA), ARB-16-5480 ARBITRATION DECISION. The issue in this arbitration was whether the City had just cause to impose a five-day suspension on the grievant, a police dispatcher. The City alleged that the grievant violated various rules and regulations by violating two provisions of the Dispatch Operations Manual during her handling of a call for service, one pertaining to advising callers of a delayed response in non-emergency situations, and one pertaining to providing officers with all pertinent information during an emergency. The grievant violated the former provision, but not the latter provision, and the discipline that the CIty imposed was therefore excessive. Accordingly, the Arbitrator reduced the suspension from five days to two days.

SUPL-14-3628 CERB DECISION March 21, 2018 OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 6, AFL-CIO AND JOHN F. MURPHY, SUPL-14-35628 CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. The Union filed an appeal with the CERB challenging a Hearing Officer’s decision holding that it breached its duty of fair representation (DFR) to the charging party when it failed to submit a timely request for arbitration that resulted in the arbitrator dismissing the grievance as procedurally inarbitrable. Applying the shifting burdens of proof set forth in Quincy City Employees Union, H.L.P.E., 15 MLC 1340, 1355, MUPL-2883, MUP-6037 (January 24, 1982) (Quincy City), aff'd sub. nom., Pattison v. Labor Relations Commission, 30 Mass. App. Ct. 9 (1991), further rev. den'd, 409 Mass. 1104 (1991) (Pattison), and cases following Pattison, the Hearing Officer also concluded that the charging party had met his burden of proving that his grievance was not clearly frivolous. Because the Union elected to present evidence on the merits of the underlying grievance at the hearing, rather than bifurcate that issue, the Hearing Officer also analyzed whether the Union had met its burden of demonstrating that the grievance clearly lacked merit, i.e., that it would have “been lost for reasons not attributable to the union’s misconduct.” Berkley Employees Association, 19 MLC 1647, 1650 MUPL-3724 (January 28, 1993). She concluded that the Union had not met this burden and thus ordered the Union to, among other things, make the charging party whole for the loss of compensation he suffered as a direct result of his termination.

On appeal, the CERB agreed the Union had violated its DFR to the charging party, concluding that under well-established precedent, the Union’s conduct was perfunctory and inexcusably negligent. The CERB also declined the Union’s invitation to abandon the Pattison analysis in favor of one in which the burden of proving that the grievance had merit remained with the charging party. Where, as here, the opportunity for an employee to bring a grievance before an arbitrator has been lost due to a union’s conduct, the CERB has made a judicially-approved policy determination that it is the union and not the employee who must bear the ultimate risk of any uncertainty regarding the merits of the grievance. The CERB finally agreed that the Union had not met its burden of proving the grievance lacked merit because it had failed to demonstrate that the charging party had actually engaged in most of the conduct that formed the basis of his termination, or that there was just cause to terminate him based on the remaining conduct .

MUP-16-5186 & MUP-16-5542 HEARING OFFICER DECISION March 14, 2018 NEWTON SCHOOL COMMITTEE AND NEWTON PUBLIC SCHOOLS CUSTODIANS ASSOCIATION, MUP-16-5186 & MUP-16-5542, HEARING OFFICER DECISION. The issues in this case were whether the Newton School Committee (Employer or School Committee) violated Sections 10(a)(1), 10(a)(3), and 10(a)(5) of Massachusetts General Laws Chapter 150E (the Law) by 1) failing to bargain in good faith by conditioning its willingness to make economic proposals upon the Newton Public Schools Custodians Association’s (Association or Union) acceptance of its outsourcing proposal; 2) bargaining in bad faith by its conduct during successor negotiations; 3) failing to timely provide information to the Union; 4) proposing outsourcing in retaliation for the Union’s protected, concerted activities; and 5) disciplining unit members in retaliation for the Union’s protected, concerted activities. The Hearing Officer concluded that the School Committee failed to bargain in good faith with the Union by: 1) conditioning its willingness to make economic proposals upon the Union’s acceptance of its outsourcing proposal; 2) engaging in bad faith and surface bargaining during contract negotiations; and 3) failing to timely provide information. She also concluded that the School Committee disciplined unit members in retaliation for the Union’s protected, concerted activity. She dismissed the allegations that the School Committee’s outsourcing proposal was part of its bad faith and surface bargaining conduct, that it made the outsourcing proposal in retaliation for the Union’s protected, concerted activity, and that it bargained in bad faith by making the proposal in retaliation for the Union’s protected activity

MUPL-16-5167 HEARING OFFICER DECISION March 1, 2018 BOSTON TEACHERS UNION, LOCAL 66, AFT/AFL-CIO AND ANN MARIE O’KEEFFE MUPL-16-5167, HEARING OFFICER DECISION. This case addressed whether the Boston Teachers Union violated the duty of fair representation that it owed the charging party by filing an untimely demand for arbitration, and if so, whether the charging party would have succeeded at arbitration if the demand had been timely filed. The hearing officer found that the Union violated its duty of fair representation, thereby violating Section 10(b)(1) of M.G.L. c.150E. She also found that the arbitrator would have overturned the charging party’s discharge if the Union had made a timely demand for arbitration. The hearing officer ordered the Union to make the charging party whole for any wages and contractual benefits that she lost between the date of her termination from employment and the date that her requested leave of absence would have ended.

ARB-16-5396 ARBITRATION DECISION March 1, 2018 CITY OF WORCESTER AND N.A.G.E., LOCAL 495, ARB-16-5396, ARBITRATION DECISION. The City and the Union arbitrated whether the City had just cause to terminate the grievant. The arbitrator found that the City had just cause to terminate the grievant for falsely reporting a work place injury in order to receive worker’s compensation benefits for which he was not entitled.

February 2018

MUP-16-5329 HEARING OFFICER DECISION February 23, 2018 BLACKSTONE POLICE UNION LOCAL 442 MCOP AND TOWN OF BLACKSTONE MUP-16-5329 HEARING OFFICER DECISION. The issue in this case is whether the Town of Blackstone (Town or Employer) violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by discriminating against Blackstone Police Union, MCOP, Local 442, AFL-CIO (Union or MCOP) unit member Maxwell Hurwitz (Hurwitz) for engaging in concerted, protected activities. I find that the Town violated the Law in the manner alleged.

MUP-15-4815 HEARING OFFICER DECISION February 16, 2018 SPRINGFIELD SCHOOL COMMITTEE AND SPRINGFIELD EDUCATION ASSOCIATION, LOCAL 2023, MUP-15-4815 HEARING OFFICER DECISION. The issues in the case are whether the Springfield School Committee (Committee) violated Section 10(a)( 1) of the Law when it issued two notices of intent to terminate two employees, and instructed another employee not to speak to other unit members, moved her workspace away from her colleagues, and directed her to leave school precisely at dismissal. Based on the evidence, the Hearing Officer found that the Committee did not violate the Law on all counts. The first allegation was untimely. The remaining two allegations failed to show how the Committee’s actions demonstrated intent to chill employees in the exercise of their rights under Section 2 of the Law. 

ARB-17-6102 ARBITRATION DECISION February 16, 2018 WORCESTER HOUSING AUTHORITY AND MASSACHUSETTS LABORERS’ DISTRICT COUNCIL, LOCAL 367, ARB-17-6102 ARBITRATION DECISION. The issues in this case were: (1) whether the Worcester Housing Authority (WHA) had just cause to suspend the Grievant for one day without pay; and, (2) if so, what shall be the remedy? The Arbitrator determined that the WHA had just cause to suspend the Grievant for one day without pay based on the Grievant’s 12 previous disciplines. WHA also had just cause based on the Grievant’s inability to explain why he moved a certain item to his private office without prior authorization from WHA management, and why he failed to answer his cellular phone after WHA management tried to contact him several times about the item.

January 2018

MUP-16-5023 CERB DECISION January 30, 2018 CITY OF SOMERVILLE AND SOMERVILLE POLICE EMPLOYEES ASSOCIATION. MUP-16-5023, CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. This case involved a grievance that was presented twice to the City of Somerville’s Police Chief: first, by an individual, and second by the Somerville Police Employees Association (Association), who presented the individual’s grievance along with a written explanation of why it did not agree with the grievance and requesting to meet. The Association also requested that it be present at any meeting to discuss the grievance. A Deputy Chief wrote back to the Union granting the grievance and stating that because the Association’s grievance had been resolved at Step 1 of the grievance procedure, there would be no need to meet.

At hearing, the Association argued that the City’s conduct violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. c. 150E by unilaterally altering the parties’ past practice of bypassing Step 1 of the grievance procedure for Association grievances filed in writing with the Police Chief. The DLR Hearing Officer agreed. As a remedy, the Hearing Officer ordered the City to restore the past practice.

On appeal, the City argued that the Hearing Officer had nullified explicit contract language requiring “mutual agreement” to bypass Step 1 The City claimed that because there was no evidence of mutual agreement, the contract permitted it to resolve the Association’s grievance at Step 1. The CERB agreed, generally, that past practice could not override explicit contract terms. It nevertheless found that the City had unilaterally altered other aspects of the grievance procedure by allowing the Deputy Chief to process and resolve the Association’s grievance at Step 1, where the contract only permitted senior captains designated by the Chief to handle such grievances. The CERB further held that because the contract required the City to give the Union the opportunity to confer with it relative to grievances filed directly by individuals with the Police Chief, the City altered the grievance procedure when it failed to afford the Union that opportunity. 

Because the CERB decided this case on different grounds, it did not adopt the Hearing Officer’s Order that the City restore the past practice of bypassing Step 1 of the grievance procedure for grievances filed by the Association in writing with the Police Chief. Rather, it ordered the City to cease and desist from engaging in the unilateral conduct at issue here.

MUP-15-4450 HEARING OFFICER DECISION January 22, 2018 TOWN OF BRAINTREE AND BRAINTREE POLICE OFFICER'S ASSOCIATION, MCOP, LOCAL 365, MUP-15-4450 HEARING OFFICER DECISION. The issue in this case is whether the Town of Braintree (Town) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it failed to bargain to resolution or impasse with the Braintree Police Officer’s Association, MCOP, Local 365 (Union) over the impacts of the decision to reduce the minimum number of patrol officers assigned to the weekend day shift on the employees’ workloads. Based on the entire record, the Hearing Officer found that the Town did not violate the Law because the Union failed to show: (1) an established a practice of bargaining over the impacts of staff reductions on the weekend day shift; (2) a regular practice of receiving personnel orders accompanied by explanatory memoranda; or (3) workload impacts on unit members’ abilities to respond to calls and complete reports. 

December 2017

ARB-17-5805 ARBITRATION DECISION December 1, 2017 TOWN OF MILLBURY AND MILLBURY POLICE ASSOCIATION, LOCAL 128, MASSCOP, AFL-CIO, ARB-17-5805, ARBITRATION DECISION. The issues in this case were: 1) whether the Union’s grievance was arbitrable; 2) whether the Town violated Article XV of the parties’ collective bargaining agreement when it refused to place the grievant on Occupational Injury Leave in accordance with G.L. c. 41, § 111F; and, 3) if so, what shall be the remedy? The Arbitrator determined that the grievance was not arbitrable because it was related to, and incident to the grievant’s December 20, 2015 conduct, and the Union and the grievant had signed a settlement agreement expressly waiving their right to bring a grievance related to, and incident to that conduct.

MUP-15-4847 CERB DECISION December 5, 2017 SPENCER-EAST BROOKFIELD REGIONAL SCHOOL DISTRICT AND SPENCER-EAST BROOKFIELD TEACHERS ASSOCIATION, MUP-15-4847, CERB DECISION ON APPEAL OF HEARING OFFICER'S DECISION.

A majority of the CERB affirmed a Hearing Officer’s decision holding that the Spencer-East Brookfield Regional School District (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it: 1) hired only one Before and After-School Director (Director) without first bargaining with the Spencer-East Brookfield Teachers Association about the impacts of that decision on bargaining unit members; and 2) changed the method of paying the Director without bargaining over the decision and the impacts of that decision on bargaining unit members. The Hearing Officer first determined, as a threshold question, that the Director was a bargaining unit position because bargaining unit members filled the position, which was listed as an extra-duty position in the parties’ collective bargaining agreement along with its compensation. The Employer challenged that determination on review and the CERB held that it did not have to reach the Director’s bargaining unit status because the changes at issue impacted bargaining unit members’ terms and conditions of employment, thereby triggering the employer’s bargaining obligation. The majority affirmed the decision on those grounds. 

Concurring/Dissenting CERB Member Lev concurred that a bargaining obligation arose when the changes at issue affected bargaining unit members’ terms and conditions of employment. She disagreed, however, that the Director position was included the bargaining unit and therefore dissented from that portion of the Order requiring the Employer to cease and desist from hiring only one Director without first bargaining with the Union over the impacts of the decision.

MCR-17-5712 CERB DECISION December 5, 2017 TOWN OF AUBURN AND TEAMSTERS UNION, LOCAL 170, MCR-17-5712, CERB DECISION & DIRECTION OF ELECTION. Teamsters, Local 170 (Union) filed a petition with the DLR seeking to represent one full-time and two part-time custodians employed by the Town of Auburn (Town). The custodians had been Town employees since 2012 The Town opposed the petition on grounds that a small custodial unit would be counter to the DLR’s policy favoring broad, comprehensive units instead of small, fragmented ones. The custodians were supervised by the superintendent of the Highway Department and the Town argued that the custodians were more appropriately placed in an existing Highway Department unit that was represented by a different union. That union did not intervene in the proceedings, however, and had never sought to include the custodians in its unit or bargain with the Town over their unit placement.

Based on the record adduced at hearing, the CERB concluded that the unit was appropriate under the three criteria set forth in Section 3 of the Law: community of interest, efficient of employer operations and effective dealings and safeguarding employee rights to effective representation. The CERB concluded that the custodians shared a community of interest amongst themselves and held that because the Highway Department unit was not a party to the proceedings and had not otherwise sought to include the custodians in its unit via bargaining or accretion, the public policy interest of ensuring effective representation for the three custodians (versus no representation at all) outweighs concerns over small, fragmented units.

MUP-14-4235 CERB DECISION December 26, 2017 TOWN OF BILLERICA AND BILLERICA MUNICIPAL EMPLOYEES ASSOCIATION, MUP-14-4234, CERB DECISION ON REVIEW OF HEARING OFFICER’S DECISION. The CERB affirmed a hearing officer decision dismissing a complaint alleging that the Town of Billerica (Town) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by failing to give the Billerica Municipal Employees Association (Union) notice and an opportunity to bargain to resolution or impasse over its decision to eliminate the second, third and weekend shifts at its Wastewater Treatment Plant. The hearing officer found that the Town had given the Union proper notice and an opportunity to bargain, but that the parties had bargained to impasse. The CERB agreed that the Town had given the union notice and an opportunity to bargain, but disagreed that the parties had bargained to impasse. Rather, because the record showed that the Union did not make any proposals or counterproposals after the fourth bargaining session or otherwise protested the Town’s announced implementation date the following month, it had waived its right to bargain. 

 

November 2017

ARB-17-5744 ARBITRATION DECISION November 15, 2017 CITY OF TAUNTON AND MASSACHUSETTS LABORERS' DISTRICT COUNCIL, ARB-17-5744 ARBITRATION DECISION. The issue in this case was whether the Grievant, who had exhausted her previously earned leave credits and remained out of work on workers compensation for total incapacity, was deprived of accrued sick and vacation time in violation of the contract. The Arbitrator determined that the contract required employees to “earn” sick and vacation time “in the service of the City.” Furthermore, since vacation credits are earned on a pro-rata basis, an employee who renders no service to the City is entitled to no vacation credits under the contract. Finally, in giving the contractual terms lawful meaning, the Arbitrator found persuasive the City’s argument that G.L. c. 152, s. 69 and relevant case law prohibit the accrual of new vacation benefits while receiving workers compensation for total incapacity. Accordingly, the Arbitrator denied the grievance.

October 2017

ARB-17-5830 ARBITRATION DECISION October 3, 2017 TOWN OF ATHOL AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 888, ARB-17-5830 ARBITRATION DECISION. The issue in this case was whether the Town violated the CBA by the manner in which the grievant was separated from employment. Grievant sought to rescind her letter of resignation prior to the effective date, but Employer refused. The Arbitrator determined that resignation letter was voluntarily tendered, and received and accepted by the Town. Although the Town had the discretion to permit rescission, nothing in the parties’ CBA required the Town to do so. Accordingly, the Town did not violate the CBA and the grievance is denied.

ARB-16-5658 ARBITRATION DECISION October 10, 2017 CITY OF LOWELL AND AFSCME, COUNCIL 93, ARB-16-5658, ARBITRATION DECISION. The issue in this case is: Was bargaining unit work performed by non-bargaining unit members in violation of the parties’ collective bargaining agreement? If so, what shall be the remedy?

The arbitrator found that painting work completed by non-bargaining unit members was in violation of the collective bargaining agreement, but HVAC work, which was performed in an emergency situation by a non-bargaining unit member, was not a violation of the collective bargaining agreement.

September 2017

MUP-06-4699 HEARING OFFICER DECISION September 28, 2017 CITY OF BOSTON AND BOSTON POLICE SUPERIOR OFFICERS FEDERATION, MUP-06-4699 HEARING OFFICER DECISION ON COMPLIANCE. The issue in this case is whether the City of Boston (City) has complied with the make whole remedy that the Commonwealth Employment Relations Board (CERB) ordered in its March 30, 2012 decision in this case, and if not, to determine the sum of money that it is required to pay. The hearing officer concluded that the City did not comply with the CERB’s March 2012 order, and required the City to pay $125,618.00 (plus interest as described in the order) proportionally divided between the individuals who held a sergeant position that was in the Boston Police Superior Officers Federation’s bargaining unit from April 12, 2006 to January 22, 2011, and July 23, 2011 to June 16, 2012, based on their tenure in a sergeant position during those time periods; and $12,628.57 (plus interest as described in the order), proportionally divided between the individuals who held a sergeant position that was in the Federation’s bargaining unit between February 29, 2016 and September 24, 2016, based on their tenure in a sergeant position during that time period. 

 

August 2017

CAS-16-5059 CERB DECISION August 1, 2017 SPRINGFIELD SCHOOL COMMITTEE AND SPRINGFIELD FEDERATION OF PARAPROFESSIONALS, LOCAL 498 AFT, AFL-CIO CAS-16-5059 CERB DECISION. The issue before the CERB was whether to grant a petition filed by the Springfield Federation of Paraprofessionals, Local 4098 seeking to accrete a number of different tutor titles to its bargaining unit of paraprofessionals, licensed practical nurses, health assistants and other non-professional employees. The tutors, who became Springfield Public School Employees in the 2015-2016 academic year, provided academic assistance to individual students and to small groups of students mostly outside of the classroom based on a centralized curriculum. The School Committee opposed accretion on grounds that the tutors did not share a community of interest with the other members of the unit and argued that because the tutors had not expressed an interest in union representation, they should not be accrete to the unit without an election. The CERB rejected these arguments. It concluded that the tutors shared a community of interest with the other members of the paraprofessionals bargaining unit, all of whom were non-professional employees who worked directly with students in a school setting to provide a mix of instructional, physical and other types of adaptive, social or behavioral assistance and support to the student’s education program. The CERB also determined that the tutors shared a community of interest with the paraprofessionals in educational requirements, rate of pay, hours, work location and work contacts. Further finding that the petition raised no question concerning representation, the CERB accreted the tutors into the bargaining unit. 

MUP-16-5315 & MUP-16-5350 HEARING OFFICER DECISION August 16, 2017 CITY OF BOSTON AND BOSTON POLICE PATROLMEN’S ASSOCIATION AND BOSTON POLICE SUPERIOR OFFICERS FEDERATION, MUP-16-5315, MUP-16-5350 HEARING OFFICER DECISION. The issue in this case is whether the City violated Sections 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by implementing a new Mediation Program for citizen complaints without first bargaining to impasse or resolution over the decision to implement the program and the impacts of the decision. The Hearing Officer concluded that the City violated the Law by failing to bargain with the unions over the impacts of the decision to implement the program, but she dismissed the decisional bargaining obligation. 

MUP-16-5023 HEARING OFFICER DECISION August 21, 2017 CITY OF SOMERVILLE AND SOMERVILLE POLICE EMPLOYEES ASSOCIATION, MUP-16-5023, HEARING OFFICER DECISION. The issue in this case is whether the City violated Sections 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by unilaterally changing the parties’ practice of bypassing Step 1 of the grievance procedure for Association grievances filed in writing with the Police Chief. The Hearing Officer concluded that the City violated the Law as alleged by processing and deciding the Association’s December 29, 2015 grievance at Step 1, rather than at Step 2.

SUPL-14-3628 HEARING OFFICER DECISION August 25, 2017 OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 6, AFL-CIO AND JOHN F. MURPHY, SUPL-14-3628, HEARING OFFICER DECISION. The issue is whether the Union breached its duty of fair representation owed to Murphy in violation Section 10(b)(1) of Massachusetts General Laws Chapter 150E (the Law) when it filed an untimely demand for arbitration 20 days after the contractual filing deadline. Based on the record, the Hearing Officer concluded that the Union had breached its duty of fair representation to Murphy based on its perfunctory handling of the grievance. She also concluded that the grievance was not clearly frivolous and that an arbitrator would have upheld the grievance because it clearly had merit. 

MUP-10-5895 CERB DECISION August 30, 2017 CITY OF BOSTON AND BOSTON POLICE SUPERIOR OFFICERS FEDERATION, MUP-10-5895, CERB DECISION ON APPEAL OF HEARING OFFICER’S DECISION ON COMPLIANCE. The CERB affirmed a Hearing Officer decision on compliance holding that the City of Boston complied with a CERB order requiring it to bargain with the Union to resolution or impasse over the impacts of its decision to eliminate a Street Sweeping Initiative (SSI) supervisor and discontinue the practice of assigning unit members to that position on a regularly-scheduled overtime basis. The Hearing Officer found that the City eliminated the position without first bargaining to resolution or impasse, but that the Union had waived its right to bargain by inaction. The Union appealed that decision to the CERB, claiming errors of fact and law. The CERB agreed that the City had met its burden of proving by a preponderance of the evidence that it gave the Union notice and a reasonable opportunity to bargain over the impacts of its decision to eliminate the supervisor position and that the Union had inexplicably and unreasonably failed to make any bargaining proposals. The Union’s argument that it was precluded from making bargaining proposals due to the City’s untimely and insufficient responses to its information requests did not persuade the CERB otherwise, where: 1) the Union failed to inform the City that this was the reason it did not make a proposal in December 2014, after the City informed it that it had responded to its requests in full and before the position was due to be eliminated four months later; 2) the Union did not make a proposal or an updated information request based on these responses at a bargaining session in September 2015 because it claimed it needed more time to review the information that the City had provided it in December 2014; and 3) after the September 2015 session, the Union did not respond to the Employer’s requests to schedule further bargaining sessions until after the October 1 implementation date.

 

July 2017

SUP-14-3576 & SUP-16-3640, CERB DECISION July 31, 2017 MASSACHUSETTS DEPARTMENT OF TRANSPORTATION AND UNITED STEELWORKERS, LOCAL 5696, SUP-14-3576 & SUP-16-3640, CERB DECISION ON APPEAL OF HEARING OFFICER’S DECISION. The CERB affirmed a Hearing Officer decision holding that MassDOT violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of M.G.L. c. 150E (the Law) by retaliating against two employees because they engaged in protected, concerted activity. The Hearing Officer concluded that the Union had established a prima facie case of retaliation and that MassDOT had failed to meet its burden of producing evidence stating a lawful reason for its decision not to promote either employee. At the hearing, MassDOT defended its decision not to promote the two employees on grounds that they did not have the highest interview scores in their respective districts. MassDOT reiterated this defense on appeal, and claimed that the Hearing Officer erred in two ways. First, when she concluded that the Union had established the knowledge element of its prima facie case with respect to one of the employees, and second, when she concluded that MassDOT’s decision was unlawfully motivated. The CERB rejected both arguments. The CERB agreed with the Hearing Officer that the Union had shown by both direct and circumstantial evidence that the individuals involved in the non-selection process were aware of the employees’ protected, concerted activity. The CERB also affirmed the Hearing Officer’s conclusion that the Union had established a prima facie case of unlawful motivation based on the shifting and inconsistent reasons that MassDOT gave for not selecting the two employees. It further affirmed that MassDOT did not meet its burden of producing evidence stating a lawful reason for its decision by presenting evidence at hearing that the two employees did not receive the highest interview scores in their respective districts. The CERB agreed that this evidence was not sufficient to meet MassDOT’s burden because MassDOT failed to provide any witness testimony at hearing supporting its reasons and failed to show that its stated reasons were actually a motive in the decision.

June 2017

MUP-16-5663 HEARING OFFICER DECISION June 7, 2017 CITY OF LEOMINISTER AND LEOMINSTER PATROLMEN’S UNION, MUP-16-5663, HEARING OFFICER DECISION. The issue in this case is whether the City of Leominster violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Chapter 150E by repudiating an October 13, 2015 Memorandum of Agreement that it had entered into with the Leominster Patrolmen’s Union. Based on the plain meaning of the October 13, 2015 MOA, the hearing officer found that the City violated the Law by refusing to allocate $35,000 in a separate line item in the budget for supplementary overtime as required in the Agreement. In so doing, the City repudiated the Agreement.

ARB-16-5515 ARBITRATION DECISION June 9, 2017 CITY OF WORCESTER AND NAGE, LOCAL 495, ARB-16-5515, ARBITRATION DECISION. The issue in this case is: Whether the City violated the parties’ collective bargaining agreement when it did not pay employees for four hours of work for trainings they attended on or about 2/16/16 and 2/22/16? If so, what shall the remedy be?

The arbitrator found that the disputed overtime provision was clear and unambiguous and thus the employees were entitled to receive the four-hour minimum payment under Article 21.

ARB-16-5609 ARBITRATION DECISION June 27, 2017 TOWN OF MILLBURY AND MILLBURY POLICE ASSOCIATION, LOCAL 128 MASS COP, AFL-CIO, ARB-16-5609 ARBITRATION DECISION. The issue in this case is whether the grievance is arbitrable, and, if so, did the Town violate Article XVII of the parties’ Collective Bargaining Agreement, and, if so, what shall be the remedy? The Union sought to recover the grievant’s loss of vacation time resulting from his placement on administrative leave pending an investigation into his conduct. The Arbitrator determined that the grievance was not arbitrable because the Union and the grievant had signed a settlement agreement expressly waiving their right to bring a grievance related to, arising out of and/or incident to the grievant’s conduct.

May 2017

ARB-16-5373 ARBITRATION DECISION May 11, 2017 CITY OF QUINCY & MASS. PUBLIC EMPLOYEE COUNCIL, ARB-16-5373, ARBITRATION DECISION. The issue in this case is: Whether the City of Quincy violated Article XXIV of the collective bargaining agreement by bypassing Michael Moody for the position of Working Foreman – Heavy MEO in May 2016? The arbitrator found that the City did not violate the CBA by not selecting Moody, the most senior candidate, because Moody did not possess a CDL, which was a requirement of the position. Further, there was no contract language that would require the City to wait for a candidate to meet the job requirements before making its promotional decision. 

MUP-15-4374 CERB DECISION May 25, 2017 CITY OF BOSTON AND BOSTON POLICE PATROLMEN’S ASSOCIATION, MUP-15-4374 CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. The CERB affirmed a Hearing Officer’s decision dismissing a complaint alleging that the City of Boston unlawfully changed a past practice of permitting union representatives to accompany bargaining unit members to fitness-for-duty physical examination. The CERB agreed with the Hearing officer that the Union had failed to meet its burden of proving that there was a binding past practice of allowing the union representatives to attend such examinations.

ARB-16-5605 ARBITRATION DECISION May 26, 2017 TOWN OF MILLBURY AND MASSACHUSETTS LABORERS’ PUBLIC EMPLOYEE COUNCIL, LOCAL 272, ARB-16-5605 ARBITRATION DECISION. The issue in this case is whether the Union’s grievance is arbitrable? The Arbitrator found the grievance arbitrable because the Town agreed to place a prior grievance on the same matter in abeyance pending the outcome of an arbitration brought by a different union in the Town. When the Town did not comply with its agreement to dispose of the prior grievance according to the outcome of the arbitration brought by the different union, the Union filed a new grievance reactivating the prior grievance. The new grievance was therefore timely. 

MUP-14-3753 CERB DECISION May 26, 2017 CITY OF LAWRENCE AND FIREMAN & OILERS, LOCAL 3, MUP-14-3753 CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. The CERB affirmed a hearing officer’s decision holding that the City of Lawrence (City) had violated the Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by implementing a new dress code and eliminating free parking without giving the Firemen and Oiler’s Local 3, SEIU (Union) prior notice and an opportunity to bargain. The hearing officer’s decision was based on a recent decision the CERB issued that arose out of the same material facts and circumstances but with respect to a different bargaining unit. City of Lawrence, 43 MLC 96, MUP-14-3666 (September 21, 2016) (Lawrence I). Because the arguments raised by the City on appeal of this case were the same as those it had raised in Lawrence I, the CERB summarily affirmed the hearing officer’s decision in this case on the same grounds that it affirmed Lawrence I.

April 2017

MUP-14-3596 CERB DECISION April 25, 2017 CITY OF WORCESTER AND N.A.G.E., MUP-14-3596, CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. The CERB affirmed a Hearing Officer decision holding that the City violated Section 10(a)(5) of the Law when it transferred bargaining unit work, specifically cleaning duties at the City’s Main Library, to a private janitorial service. The CERB agreed with the Hearing Officer that the parties’ different interpretations of the term “supplement” resulted in their not reaching a meeting of the minds with respect to the transfer issue. The CERB also declined to disturb the Hearing Officer’s order to bargain over the transfer of bargaining unit work. It rejected the City’s request to expand the remedy to include an order to bargain over the terms of a separate Memorandum of Agreement, which the City argued was premised on the Union’s agreeing to the transfer. The CERB found that the City consistently had treated the transfer and reorganization as two separate issues.

March 2017

ARB-12-2135 ARBITRATION DECISION March 7, 2017 CITY OF WORCESTER AND NAGE, LOCAL 495, ARB-12-2135 ARBITRATION DECISION. The issue in this case is: Did the City fail to call Joseph LeBeau for an overtime opportunity on December 12, 2010? If so, what shall be the remedy? The arbitrator found that the City failed to call LeBeau for an overtime opportunity on December 12, 2010 in violation of the collective bargaining agreement. The City is ordered to make LeBeau whole for his losses consistent with the arbitration decision.

ARB-041-2011 ARBITRATION DECISION March 12, 2017 CITY OF WORCESTER AND NAGE, LOCAL 495, ARB-041-2011, ARBITRATION DECISION. The issue in this case is: Whether Messrs. LeBeau and Sweeney were entitled to an overtime opportunity that arose on the afternoon of December 9, 2009? If so what shall the remedy be? The arbitrator found that the manner in which the City assigned overtime on December 9, 2009 was not a violation of the collective bargaining agreement. The overtime list was used correctly, and LeBeau and Sweeney were simply not reached on the list prior to the City fulfilling its needs. The grievance was denied.

MUP-10-6005 CERB DECISION March 30, 2017 WORCESTER SCHOOL COMMITTEE AND EDUCATIONAL ASSOCIATION OF WORCESTER, INC., MUP-10-6005, CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. The CERB affirmed a Hearing Officer decision holding that the Worcester School Committee (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by denying a request made by the Educational Association of Worcester, Inc. (EAW ) in February 2010 for access to three schools in the Worcester Public School System to have its environmental expert conduct sampling for the presence of PCBs in the schools’ exterior caulking. As a matter of first impression, the CERB ruled that an employer’s duty to furnish relevant and reasonably necessary information encompasses providing access to the worksite to obtain that information. The CERB rejected the Employer’s argument that the Hearing Officer erred by concluding that the Union’s access request was relevant and reasonably necessary without having first determined that PCBs posed a safety and health risk to EAW members. The CERB found that relevancy and reasonable necessity was demonstrated by other factors, certain EPA regulations and because EAW members’ concerns over cancer rates at one of the schools the EAW sought to test. That the Union may have already obtained its own caulking samples did not change this result because the School Committee did not accept the validity of those samples, nor did the Union’s conduct demonstrate that it had “unclean hands.”

ARB-16-5128 & ARB-16-5129 ARBITRATION DECISION March 31, 2017 CITY OF ATTLEBORO AND MASSACHUSTTS LABORERS DISTRICT COUNCIL, ARB-16-5128, ARB-16-5129, ARBITRATION DECISION. The issue in this case is: Did the City violate the collective bargaining agreement when it used the grievants’ net creditable service dates, rather than their initial City service date (Date of Hire), to determine their entitlement to longevity payments? If so, what shall be the remedy? The arbitrator found that the City properly used the grievants’ net credible service dates to determine entitlement to longevity payments. As such, the grievances were denied.

February 2017

MUP-15-4877 HEARING OFFICER DECISION February 17, 2017 CITY OF BOSTON AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 888, MUP-15-4877 HEARING OFFICER DECISION. There issue was whether the City of Boston (City) violated Section 10(a)(1) of the Law when it denied a bargaining unit member Weingarten representation by Service Employees International Union, Local 888 (Union) at two investigatory interviews in October of 2015. The Hearing Officer found that the City did not violate the Law because the unit member did not possess a reasonable belief that she would be disciplined as a result of the interviews. The evidence showed that the City interviewed the unit member as a witness, not as a target of the investigation, and it made repeated assurances that she was neither the target of the investigation nor the subject of any discipline. The evidence also showed that the unit member had not committed any prior misconduct that would lead her to believe that the City could discipline her for participating in the interviews. As a result, the Hearing Officer held that the unit member’s belief about possible discipline was unreasonable; and, thus, was not entitled to Weingarten representation. 

MUP-15-4244 HEARING OFFICER DECISION February 17, 2017 TOWN OF NATICK AND NATICK PATROL OFFICERS ASSOCIATION, MUP-15-4244, HEARING OFFICER DECISION. The issues in this case were whether the Town of Natick (Town) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by failing to bargain in good faith with the Natick Patrol Officers Association (Union or NPOA) by: 1) implementing a Narcan policy in July of 2015 without bargaining to resolution or impasse about the impacts of the policy on bargaining unit members’ terms and conditions of employment; and 2) by delaying providing the Narcan-related Fire Department run sheets that the Union requested in December of 2014 until January of 2016. The Hearing Officer found that the Town violated the Law as alleged. As a threshold matter, the Hearing Officer determined that the Narcan policy impacted the patrol officers’ terms and conditions of employment, including job duties, workload, and safety. The Hearing Officer also found the Town’s one year delay in providing requested information to the Union was unlawful. Finally, the Hearing Officer concluded that the parties had not bargained to impasse about the impacts of the Narcan policy on patrol officers’ terms and conditions of employment and that the Town unlawfully implemented the Narcan policy in July of 2015.

MUP-14-4234 HEARING OFFICER DECISION February 23, 2017 TOWN OF BILLERICA AND BILLERICA MUNICIPAL EMPLOYEES ASSOCIATION, MUP-14-4234, HEARING OFFICER'S DECISION and ORDER OF SUMMARY. The issues in this matter are whether the Town of Billerica (Town) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter150E (the Law) by failing to bargain in good faith by deciding to eliminate the second, third and weekend shifts in its Waste Water Treatment Plant (Plant) without bargaining to resolution or impasse about the impacts of the decision on employees’ hours of work, workweek schedule and shift differential pay. Based on the record and for the reasons explained below, I conclude that the Town did not fail to bargain in good faith with the Billerica Municipal Employees Association (Union) by failing to bargain to resolution or impasse about the impacts of the decision to eliminate the second, third and weekend shifts on employees’ hours of work, workweek schedule and shift differential pay. Thus, the Town did not violate Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law in the manner alleged.

MUP-15-4847 HEARING OFFICER DECISION February 27, 2017 SPENCER-EAST BROOKFIELD REGIONAL SCHOOL DISTRICT AND SPENCER-EAST BROOKFIELD TEACHERS ASSOCIATION, MUP-15-4847 HEARING OFFICER DECISION. The issues in this case are whether the Spencer-East Brookfield Regional School District (Employer or School District) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by failing to bargain in good faith over: 1) the impacts of the decision to hire only one Before and After School Director in August 2015; 2) the decision and impacts of the decision to pay the Before and After School Director a fixed stipend instead of an hourly wage; 3) the decision and impacts of the decision to open the Before and After School Program on certain holidays; and 4) the decision and impacts of the decision to change the job duties of the Before and After School Co-Director. The Hearing Officer concluded that the Employer failed to bargain in good faith with the Spencer-East Brookfield Teachers Association (Association) when it hired only one Director in August 2015 without providing the Association with prior notice and an opportunity to bargain over the impacts of the decision in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law. She also found that the Employer failed to bargain in good faith with the Association when it changed the method of payment for Co-Directors without providing the Association with prior notice and an opportunity to bargain over the decision and the impacts of the decision in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law. However, she also found that the Employer did not violate the Law when it changed the holiday schedule, or when it required the Director to perform certain additional job duties.

ASF-3675 & MUPL-14-3671 CERB DECISION February 28, 2017 MAHAR TEACHERS ASSOCIATION AND MICHAEL MAGEE, ASF-3675 & MUPL-14-3671, CERB DECISION ON APPEAL OF HEARING OFFICER DECISION. The CERB upheld a Hearing Officer decision holding that the Mahar Teachers Association (Association) did not violate Section 12 and Section 10(b)(1) of M.G.L. c. 150E (the Law) when it demanded an agency service fee (ASF) from fee payer Michael Magee (Magee) that sought only its pro rata share of expenses incurred by its parent/affiliate unions, but not for its own expenses and did not provide an audited expense report of its own expenses with its demand. On appeal, Magee argued that, in holding that the Law permitted the Association to demand an ASF, but did not compel it to do so or dictate how the fee should be apportioned, the Hearing Officer ignored the plain language of Section 12 of the Law, as well as the CBA’s agency service provision Magee argues that these provisions did not permit the union to seek less than the full amount of the agency service fee or membership dues to which it was entitled. The CERB declined to interpret Section 12 in this manner, due to constitutional requirements that prohibit an employee organization from assessing an ASF in excess of an employee’s proportional share of collective bargaining, contract administration and grievance expenses. Further, because that not every imperfection in the administration of an ASF provision constitutes a prohibited practice the CERB considered first whether the Association’s demand was invalid under the Law and second, whether its administration of the ASF contract clause was arbitrary, capricious or unlawfully motivated in violation of Section 10(b)(1) of the Law. The CERB answered both questions in the negative and dismissed the Complaint.

January 2017

ARB-16-5199 ARBITRATION DECISION January 13, 2017 SPENCER-EAST BROOKFIELD REGIONAL SCHOOL DISTRICT AND SPENCER-EAST BROOKFIELD TEACHERS ASSOCIATION, ARB-16-5199, ARBITRATION DECISION. The issue in this case is: Did the School District violate Article XIII of the Collective Bargaining Agreement when the Superintendent did not approve Robin Milaszewski’s request to take three consecutive personal days on March 14, March 15, and March 16, 2016? If so, what shall be the remedy? The arbitrator found that the Superintendent’s denial of the grievant’s request for three consecutive personal days was arbitrary and in violation of the language in Article XIII. The arbitrator ordered the School District to make the grievant whole for the three days lost pay.

MUP-14-3753 HEARING OFFICER DECISION January 20, 2017 CITY OF LAWRENCE AND FIREMEN AND OILERS LOCAL 3 UNION/SEIU, MUP-14-3753 HEARING OFFICER DECISION. The issues in this matter are whether the City of Lawrence (City) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by implementing a dress code and changing the City’s parking policy for City employees without first giving the Firemen & Oilers, Local 3/SEIU (Union) prior notice and opportunity to bargain to resolution or impasse about the decision to change the City’s parking policy and implement a dress code and the impact of those decisions on employees’ terms and conditions of employment. Based on the record and for the reasons explained below. I conclude that the City did fail to bargain in good faith with the Union by implementing a dress code and changing the City’s parking policy for City employees without providing the Union with notice and an opportunity to bargain over the changes and thus, did violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law in the manner alleged.

December 2016

MUP-10-5895 HEARING OFFICER DECISION December 22, 2016 City of Boston and Boston Police Superior Officer Federation, MUP-10-5895 Hearing Officer Decision on Compliance. The issue in this case is whether the City of Boston (City) complied with an order rendered by the Commonwealth Employment Relations Board (Board), instructing the City to bargain with the Union over the impacts of the decisions to eliminate a supervisor position and the overtime assignment associated with that position. Based on the evidence presented at the compliance proceeding, the Hearing Officer found that the City established by preponderance of the evidence that it had complied with the Board’s order after successfully raising the affirmative defense of waiver by inaction.

November 2016

SUP-14-3771 CERB DECISION November 30, 2016 Board of Higher Education/Bridgewater State University and Jon L. Bryan, SUP-14-3771 CERB Decision. The issue in this case was whether the Board of Higher Education/Bridgewater State University’s (Employer or University) acts or omissions in connection with Professor Jon Bryan’s (Bryan) attempts to be reimbursed for $77.75 in hotel expenses incurred during an academic conference that he attended in the fall of 2013 and to get the teaching schedule of his choice in the fall of 2014 were part of an overall scheme to retaliate against him for engaging in concerted activities protected under Section 2 of M.G.L. c. 150E (the Law) in violation of Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Law. The Hearing Officer concluded that Bryan had failed to establish that the delay in the reimbursement was unlawfully motivated. On that record, he further found that the assigned teaching schedule did not constitute an adverse action and that Bryan had failed to establish an unlawful motivation in making that assignment. Bryan filed an appeal and a supplementary statement with the CERB arguing numerous errors of fact and law. The CERB affirmed the dismissal of the Complaint. The fact that the University’s conduct could be fairly characterized as flawed in some way constituted neither direct nor circumstantial evidence of unlawful motivation, where there was no other evidence showing that Bryan was treated differently than other similarly-situated employees or that the University’s higher levels of administration and/or any of the personnel directly involved bore any hostility towards Bryan’s protected, concerted activity or towards union activity in general. 

ARB-16-5155 ARBITRATION DECISION November 29, 2016 Town of Acushnet and Massachusetts Laborers’ District Council, ARB-16-5155 Decision. The issue in this case is: Did the Town violate the provisions of Article VII, Section (b) of the parties’ collective bargaining agreement when it failed to pay the four-hour call back minimum to employees who were called in prior to the beginning of their shifts during February 2016? If so, what shall be the remedy? The arbitrator found that the language of Article VII, Section (b) clearly and unambiguously required employees to be called back on the same day to be eligible for the call back minimum. In this case, because employees were required to begin their shift thirty minutes early during a snow emergency, they were not called back to work on the same day, and thus, the grievance was denied.

ARB-15-4818 ARBITRATION DECISION November 10, 2016 City of Malden and New England Police Benevolent Association, Local 78, ARB-15-4818 Arbitration Decision. The issue in this case is: Did the City violate Article 6 of the collective bargaining agreement by failing to properly compensate superior officers during their week of mandatory NERPI training? If so, what shall be the remedy? The arbitrator found that the City did not violate Article 6, when it assigned superior officers who attended the new four-day NERPI training, a new schedule for the week when the training took place. Because the new schedule no longer required officers to attend training on their days off, they were not entitled to overtime pursuant to Article 6. As such, the grievance was denied.

ARB-15-4725 ARBITRATION DECISION November 4, 2016 Town of Hull and Fraternal Order of Police Lodge 66, ARB-15-4725 Arbitration Decision. The issues in this case are: 1.Is the grievance arbitral? 2. Did the Town violate the collective bargaining agreement by reducing the complement of the bargaining unit command staff (lieutenant/sergeant) to less than six (6) positions in violation of the collective bargaining agreement? 3. If so, what shall be the remedy? The arbitrator found that the grievance was procedurally non-arbitral because the Union: a) did not timely file the initial grievance, b) filed for arbitration at the incorrect agency, and c) submitted an untimely demand for arbitration with the DLR.

October 2016

MUP-14-3596 HEARING OFFICER DECISION October 17, 2016 City of Worcester and National Association of Government Employees, MUP-14-3596, Hearing Officer Decision. The issue in this case is whether the City of Worcester (City) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) by transferring work from the National Association of Government Employees’ bargaining unit to a private vendor. Based on the record and for the reasons explained below, the Hearing Officer found a transfer of cleaning duties at the City’s Main Library and rejected the City’s defenses that the Union had waived by contract its right to bargain and/or that the parties had bargained to resolution over the issue. Thus, the City was found to have violated the Law in the manner alleged.

MUP-14-4083 HEARING OFFICER DECISION October 12,2016 City of Somerville and Somerville Police Employees Association, MUP-14-4083 Hearing Officer Decision. The issue in this case is whether the City of Somerville (City) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by failing to provide the Somerville Police Employees Association (Association) with prior notice and an opportunity to bargain to resolution or impasse over: 1) the impacts of its decision not to allow officers to park at the Dilboy Post parking lot (Dilboy Post); and 2) its decision to require officers to park at the Kennedy School, the Brown School and the West Somerville Neighborhood School and the impacts of that decision on bargaining unit members’ terms and conditions of employment. Based on the evidence, the Hearing Officer concluded that the change did not affect a mandatory subject of bargaining and, therefore, the City did not violate the Law.

September 2016

MUP-15-4617 HEARING OFFICER DECISION September 30, 2016 Stoughton School Committee and Stoughton Teachers Association, MUP-15-4617 Hearing Officer Decision. There are two issues in the case. The first is whether the Stoughton School Committee (Committee) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when, at the January 14, 2015 staff meeting, it discussed with unit members when to schedule a Spirit Day event. The second issue is whether the Committee violated Section 10(a)(1) of the Law by denying unit members’ requests to consult the collective bargaining agreement (CBA) during the January 14, 2015 staff meeting. Based on the evidence presented at the hearing, the Hearing Officer found that the Committee had violated the Law on both counts because: 1) when to schedule Spirit Day was a mandatory subject of bargaining, and 2) denying unit members’ requests to check the CBA amounted to chilling conduct. 

MUP-15-4657 HEARING OFFICER DECISION September 28, 2016 City of Somerville and Somerville Police Employees Association, MUP-15-4657, Hearing Officer Decision. The issue in this case is whether the City of Somerville (City) violated Sections 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by repudiating an oral agreement with the Somerville Police Employees Association (Association). Based on the evidence, the Hearing Officer concluded that the City and Association did not reach an agreement and, therefore, the City did not violate the Law.

MUP-14-3666 CERB DECISION September 21, 2016 City of Lawrence and Massachusetts Nurses Association, MUP-14-3666, CERB Decision on Review of Hearing Officer’s Decision. The CERB upheld a Hearing Officer decision holding that the City’s unilateral implementation of a dress code policy and changes to parking policies change violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law because both changes change involved mandatory subjects of bargaining. The CERB rejected the City’s arguments that the changes were de minimis, where, among other things, it required the public health nurse to wear a tie and eliminated the ability to park for free on days when the nurse was in the field.

SUP-14-4030 HEARING OFFICER DECISION September 13, 2016 Board of Higher Education/Massasoit Community College and AFSCME Council 93, AFL-CIO, SUP-14-4030, Hearing Officer Decision. The issue in the case was whether the College violated Sections 10(a)(5) and, derivatively, 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by implementing written guidelines for staff members in the registrar’s office without first providing AFSCME with notice and an opportunity to bargain to resolution or impasse over the impacts of the decision on employees’ terms and conditions of employment. Based on the presented evidence at hearing, the Hearing Officer found that the Union’s charge was time-barred and dismissed the matter without deciding whether the College’s conduct substantively violated the Law.

ARB-16-5084 ARBITRATION DECISION September 12, 2016 ARB-16-5084 City of Taunton and Massachusetts & Northern New England Laborers’ District Council, Arbitration Decision. The issue in this case is: Did the City comply with the arbitration award dated November 4, 2015 (ARB 15-4237)? If not, what shall be the remedy? The arbitrator found that the City complied with the prior arbitration award, when it re-interviewed the grievant and the previously successful candidate for the Water Treatment Plant Pond Caretaker position. As such, the grievance was denied.

SUP-14-3576 & SUP-14-3640 HEARING OFFICER DECISION September 8, 2016 Commonwealth of Massachusetts and United Steelworkers Local 5696, SUP-14-3576 and SUP-14-3640 Hearing Officer Decision. The issues in this case are whether the Massachusetts Department of Transportation (Employer or MassDOT) violated Sections 10(a)(3), 10(a)(4), 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by 1) retaliating against Peter Fimognari (Fimognari), Douglas Haskins (Haskins), and Greg Campbell (Campbell) for their protected, concerted activity and 2) unilaterally transferring bargaining unit work outside of the unit. Based on the record and for the reasons explained below, the Hearing Officer concluded that the Employer 1) transferred unit work to non-unit employees in violation of Section 10(a)(5) of the Law and 2) retaliated against Fimognari and Haskins for their protected activity in violation of Section 10(a)(3) of the Law. In addition, the Hearing Officer found that the Employer did not retaliate against Campbell for his protected activity, and did not retaliate against Haskins in violation of Section 10(a)(4) of the Law. 

MUP-15-4575 HEARING OFFICER DECISION September 8, 2016 Woburn School Committee and Woburn Teachers Association, MUP-15-4575 Hearing Officer Decision. The issues in this case are whether the Woburn School Committee (School Committee) violated Sections 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law) by 1) repudiating the ground rules for negotiations with the Woburn Teachers Association (Association) and 2) imposing a condition on the negotiation of a successor contract. Based on the record and for the reasons explained below, the Hearing Officer concluded that the School Committee repudiated the parties’ ground rules in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law. The Hearing Officer also found that the School Committee did not unlawfully impose a condition on the negotiation of a successor contract and dismissed this allegation.

ARB-14-3760 ARBITRATION DECISION September 7, 2016 City of Worcester and NAGE, Local 495, ARB-14-3760 Arbitration Decision. The issues in this case are: 1. Is the matter arbitral? 2. Did the City violate the collective bargaining agreement when Ms. Coles was not called for overtime opportunities on November 25, 2013, November 27, 2013, and November 30, 2013? 3. If so, what shall the remedy be? The arbitrator found that the grievance was substantively arbitral as it presented a question of the interpretation of the interplay between Articles 19 and 23 of the collective bargaining agreement, and the inherent rights that the City has reserved upon itself. On the merits of the case, having previously found that the Department’s policy that restricted overtime opportunities for employees who utilized sick leave was a permissible restriction, the arbitrator concluded that the City did not violate the collective bargaining agreement when it did not offer the grievant overtime opportunities on certain dates. Additionally, the arbitrator was not persuaded by the Union’s arguments that the policy violated Article 23 of the collective bargaining agreement, or that one instance of the City not following the policy entitled the grievant to be called for overtime opportunities.

AUGUST 2016

MUP-09-5665 CERB DECISION August 31, 2016 Everett School Committee and Everett Teachers Association, MUP-09-5665 CERB Decision. The CERB affirmed a Hearing Officer decision, reported at 42 MLC 206 (2016), holding that the Everett School Committee did not violate Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it laid off ten clinical therapists. The Hearing Officer concluded that the School Committee had a duty to bargain over both the decision and the impacts of its decision to lay off the therapists and to transfer their work to an outside contract However, because the found that the parties had negotiated to impasse over these issues, she dismissed the Complaint. The Union appealed to the CERB, arguing that the School Committee bargained in bad faith, and thus the parties could not have bargained to a good faith impasse. The Union claimed that the facts showed that by the time it offered to bargain, the School Committee had already made up its mind to lay off the therapists and outsource their duties. The Union also argued that the School Committee engaged in surface bargaining and unlawfully limited its bargaining to impacts only. The CERB rejected all arguments. In light of the School Committee’s ability to move monies around within its budget even after it voted to eliminate the therapist positions from the School Committee budget, its acknowledgement that the matter needed to be bargained, and its repeated requests to the Union for a suggestion or counterproposal for cost-saving alternatives to eliminating the positions, the CERB concluded that the Employer had not presented the Union with a fait accompli and otherwise bargained in good faith with the Union. It therefore affirmed the Hearing Officer’s conclusion that the Employer did not violate the Law because the parties negotiated to a good faith impasse.

ARB-14-3759 ARBITRATION DECISION August, 12, 2016 City of Worcester and NAGE, Local 495, ARB-14-3759 Arbitration Decision. The issues in this case are: 1. Is the matter arbitrable? 2. Did the City violate the collective bargaining agreement when it did not call Robert Odgren on March 16, 2012 for an overtime opportunity on March 17, 2012? 3. If so, what shall the remedy be? The arbitrator found that the grievance was substantively arbitrable as it presented a question of the interpretation of the interplay between Article 19 of the collective bargaining agreement, a 1995 Memorandum of Agreement, and the inherent rights that the City has reserved upon itself. On the merits of the case, the arbitrator found that because the Department’s policy restricting overtime for employees utilizing sick leave is a permissible restriction, the City did not violate the collective bargaining agreement when it did not call the grievant for an overtime opportunity.

MUP-13-3067 HEARING OFFICER DECISION August 11, 2016 Boston School Committee and Boston Teachers Union, Local 66, AFT, AFL-CIO, MUP-13-3067, Hearing Officer’s Decision. The issue in this case is whether the Boston School Committee (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E by: a) failing to provide or failing to timely provide certain information that the Boston Teachers Union, Local 66, AFT, AFL-CIO requested concerning nine different topics (Count I); b) repudiating Article IX(C)(7) of the parties’ 2013-2016 collective bargaining agreement (CBA) (Count II); and c) repudiating Article V(K) of the 2013-2016 CBA (Count III). 

ARB-15-4509 & ARB-15-4510 ARBITRATION DECISION August 3, 2016 Town of Acushnet and AFSCME, Council 93, ARB-15-4509, ARB-15-4510, Arbitration Decision. The issues in this case are: 1. Are the Union’s grievances procedurally arbitrable? 2. If so, did the Town violate Article 27 (Storm Closing) of the collective bargaining agreement when it docked Joann DeMello and Wanda Hamer for fifteen (15) minutes of pay for leaving early on January 26, 2015? 3. If so what shall be the remedy? The arbitrator found that the grievances were procedurally non-arbitrable because the Union bypassed Step 2 of the grievance procedure. The arbitrator found that the collective bargaining agreement conditioned the submission of a grievance to arbitration at Step 3, on the submission of a written grievance to the Board of Selectmen at Step 2. The arbitrator also found that the parties had no past practice of bypassing Step 2 of the grievance-arbitration process and proceeding directly from Step 1 to Step 3.

JULY 2016

SUP-14-3771 HEARING OFFICER DECISION July 22, 2016 Jon L. Bryan and Board of Higher Education/Bridgewater State University, SUP-14-3771, Hearing Officer Decision. The issue is whether the Board of Higher Education/Bridgewater State University (University or BSU), delayed payment of travel expenses to Dr. Jon L. Bryan (Dr. Bryan) and gave him an unfavorable teaching schedule by restricting his ability to teach on consecutive days and at his preferred times in retaliation for engaging in protected, concerted activity in violation of Section 10(a)(3) and derivatively Section 10(a)(1) of Massachusetts General Laws Chapter 150E (the Law).

MUP-15-4374 HEARING OFFICER DECISION July 15, 2016 City of Boston and Boston Police Patrolmen’s Association, MUP-15-4374, Hearing Officer Decision. The issue is whether the City of Boston (City) failed to bargain in good faith with the Boston Police Patrolmen’s Association (Union) by not providing the Union with prior notice and an opportunity to bargain to resolution or impasse over the decision to deny bargaining unit members the right to have a union representative accompany them at fitness-for-duty physical examinations and the impacts of that decision on employees’ terms and conditions of employment in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law).

ARB-13-3268 ARBITRATION DECISION July 14, 2016 City of Worcester and NAGE, Local 495, ARB-13-3268, Arbitration Decision. The issues in this case are: 1. Is the grievance arbitrable? 2. If so, did the City of Worcester violate the terms of the collective bargaining agreement when it did not offer an overtime assignment to Kenneth Webster on March 26, 2012 when a laborer was assigned? 3. If so, what shall be the remedy? The arbitrator found that the grievance was not substantively arbitrable as the parties have agreed to exclude from the grievance and arbitration procedure the City’s right to decide whether or not to assign a working foreman to an emergency overtime shift. The arbitrator was not persuaded by the Union’s argument that the parties’ dispute instead was over the assignment of overtime, as the parties’ stipulated that the issue concerned the City’s right to assign a laborer and stipulated that Webster had not been offered the overtime assignment in question. 

ARB-106-2009 ARBITRATION DECISION July 14, 2016 City of Worcester and NAGE, Local 495, ARB-106-2009, Arbitration Decision. The issues in this case are: 1. Is the matter arbitrable? 2. If so, was Mr. Sweeney entitled to be called for a one-hour overtime shift prior to his regular shifts on August 21, 2008 and August 26, 2008? 3. If so, what shall be the remedy? The arbitrator found that the grievance was not substantively arbitrable as the parties have agreed to exclude from the grievance and arbitration procedure the City’s right to assign employees and the right to schedule and enforce work hours. The arbitrator was not persuaded by the Union’s argument that the parties’ dispute was instead over the assignment of overtime, as there was no overtime offered on the dates in question. 

ARB-15-4666 ARBITRATION DECISION July 8, 2016 Worcester Housing Authority and Massachusetts & Northern New England Laborers’ District Council, ARB-15-4666, Arbitration Decision. The issue in this case is: Did the Worcester Housing Authority (WHA) have just cause to suspend Jerry Santiago for a period of thirty days? If not what shall be the remedy? The arbitrator found that the WHA had just cause to suspend the grievant, because of his violation of the Key Protocol and his extensive disciplinary history.

ARB-15-4929 ARBITRATION DECISION July 8, 2016 Worcester Housing Authority and Massachusetts & Northern New England Laborers’ District Council, ARB-15-4929, Arbitration Decision. The issue in this case is: Did the Worcester Housing Authority (WHA) violate the collective bargaining agreement by denying Jerry Santiago unsupervised overtime opportunities between May 22, 2015 and January 16, 2016? If so, what shall the remedy be? The arbitrator found that the WHA did not violate the collective bargaining agreement by continuing the grievant’s unsupervised overtime restriction for an additional six months, because it was based on the WHA’s previously uncontested right to perform a performance review prior to removing the restriction, and not further discipline of the grievant for a prior infraction.

June 2016

ASF-14-3675 & MUPL-14-3671 HEARING OFFICER DECISION June 29, 2016 Mahar Teachers Association and Michael Magee, ASF-14-3675 and MUPL-14-3671, Hearing Officer Decision. The issue in this case is whether the Maher Teachers Association (Employer) violated Sections 12 and 10(b(1) of Massachusetts General Laws, Chapter 150E by demanding an invalid agency service fee from Michael Magee.

WMAM-16-5045 CERB DECISION June 28, 2016 Framingham Housing Authority and Mass. Public Employee Council, WMAM-16-5045 CERB Decision.The DLR reinvestigated a certification of written majority authorization (WMA) that it issued in January 2016 due to a number of errors in the WMA process including the Neutral’s failure to investigate and resolve outcome-determinative challenges; the omission of standard DLR exclusionary language; and the parties’ ongoing disagreement about the inclusion of certain titles in the bargaining unit. On reinvestigation, the CERB rejected the employer’s challenges to the managerial status of two employees and the casual status of one employee and concluded that a majority of employees in the appropriate bargaining unit had signed valid written majority authorizations. The CERB therefore held that the January 2016 certification should remain intact but should be technically amended to include the proper exclusionary language. 

MUP-11-1318 CERB DECISION June 27, 2016 City of Lynn and AFSCME Council 93, Local 1736, MUP-11-1318 CERB Decision on Appeal of Hearing Officer Decision. In a case involving former school department custodial employees who were transferred to the City of Lynn’s (City) inspectional services department via home rule amendment, the CERB affirmed a hearing officer decision holding that the City violated its duty to bargain in good faith when it unilaterally changed the vacation retirement benefit past practice in effect when the employees were employed by the school department. The CERB relied on longstanding precedent grounded in Section 1 of the Law holding that a municipality and a school committee jointly share responsibility when bargaining obligations are unfulfilled. The CERB rejected the employer’s argument on appeal that the union waived by contract it rights to bargain over the change in past practice by rejecting the City’s proposal to provide a list of all past practices and by agreeing to a zipper clause. The facts showed that the City and the Union did not address the vacation retirement benefit during bargaining and their final agreement was silent on this issue. Thus, notwithstanding a zipper clause, the statutory duty to bargain over mandatory subject of bargaining continues during the term of the contract as to all subjects that have not been resolved during negotiations.

ARB-16-5033 ARBITRATION DECISION June 24, 2016 Aubuchon Distributing, Inc. and Teamsters Local 170, ARB-16-5033 Arbitration Decision. The issue in this case is did the company terminate Mark Knoll for just cause? If not, what shall be the remedy?

MUP-13-3289 CERB DECISION June 20, 2016 Town of Winchester and SEIU, Local 888, MUP-13-3289, CERB Decision. The CERB affirmed a Hearing Officer decision holding that, because the Union had failed to demonstrate that the Town’s decision to re-hire a recently retired employee on a part-time temporary basis had an impact on bargaining unit employees’ terms and conditions of employment, the Town did not violate Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it implemented the decision without engaging in impact bargaining. On review, the CERB rejected the Union’s argument that the decision impacted bargaining unit members’ contractual bidding and posting rights because the issue of whether the Town had violated its contractual obligations in this regard had not been pleaded, litigated or decided.

CAS-14-4040 CERB DECISION June 20, 2016 City of Boston and AFSCME and PSA, CAS-14-4040, CERB Decision. The Petition AFSCME sought to accrete the newly-created title of Cash Management Auditor (CMA) into its bargaining unit of non-professional employees at the Boston Public Library (Library). When first created the Library had placed the title in the bargaining unit represented by the Boston Public Library Professional Staff Association (PSA). The CERB dismissed the petition. It was persuaded that the CMA position shares a greater community of interest with the PSA bargaining unit than with AFSCME’s, based on the level of education required, supervision, job interchange with other PSA titles, and duties performed, including having exclusive and comprehensive control over all aspects of the new Pay 4 Print system, ultimate responsibility for resolving discrepancies in Library fines, and performing Library-wide six-figure cash and credit reconciliations.

MUPL-14-3993 HEARING OFFICER DECISION June 14, 2016 City of Malden and Malden Police Patrolmen’s Association, Hearing Officer Decision MUPL-14-3993. The issue in this case is whether the Malden Police Patrolmen’s Association (Union) insisted to impasse on a permissive subject of bargaining in violation of M.G.L. c.150E, Sections 10(b)(1) and (2) of the Law (the Law), and thereby failed to participate in good faith in the mediation, fact-finding and arbitration procedures of the Joint Labor Management Committee (JLMC) in violation of Section 10(b)(3).

ARB-15-4265 ARBITRATION DECISION June 14, 2016 Town of Millbury and Millbury Police Association, MCOP, Local 128, ARB-15-4265 Arbitration Decision. The issues in this case are: (1) Is the grievance procedurally arbitrable? (2) Did the Town violate any of the following articles of the collective bargaining agreement when it changed from weekly to biweekly payroll? (3) If so what shall be the remedy? The arbitrator found that the grievance was procedurally arbitrable based on an oral agreement between the parties to extend the timeline for the Step 1 response. The arbitrator also found that the Town’s implementation of a bi-weekly payroll system violated the collective bargaining agreement and ordered the Town to return to a weekly payroll system for this bargaining unit.

MUP-14-3666 HEARING OFFICER DECISION June 10, 2016 City of Lawrence and Massachusetts Nurses Association, Hearing Officer Decision MUP-14-3666. The Complaint alleged that the City violated Section 10(a)(5) and derivatively 10(a)(1) by implementing a dress code and changing a parking policy without first bargaining with the Union over the decision and impacts of the decision on employee terms and conditions of employment. The parties submitted stipulated facts and exhibits in lieu of an evidentiary hearing. The City argued that the implemented dress code required only modest changes in the standard of dress in a professional workplace, and that it did not enforce the entire dress code on the bargaining unit. The City also argued that it had restored free parking benefits to the bargaining unit. Nonetheless, there was no dispute that the City made the unilateral changes alleged. The Hearing Officer found that dress codes and free parking policies were mandatory subjects of bargaining, and therefore the City violated the M.G.L. ch. 150E by unilaterally implanting a dress code and changing a parking policy. The Hearing Officer ordered the City to rescind the dress code and restore the free parking policy benefit that applies to the bargaining unit, and bargain in good faith upon request of the Union prior to implementing a dress code and changing the parking policy. 

MUP-10-6005 HEARING OFFICER DECISION June 8, 2016 City of Worcester and Educational Association of Worcester, INC., MUP-10-6005, Hearing Officer Decision. The issue in this case is whether the Worcester School Committee (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by failing to give the Educational Association of Worcester, Inc.’s (EAW) environmental expert access to certain schools in the Worcester Public School system.

May 2016

MUP-14-3867 CERB DECISION May 31, 2016 Franklin County Technical Teachers Association and Franklin County Technical Regional School Committee, MUP-14-3867 CERB Decision on Appeal of Hearing Officer Decision. The CERB affirmed a hearing officer decision holding that the school committee failed to offer unconditional support of a grievance settlement in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law. The violation occurred when, following a grievance settlement that the school superintendent entered into with the teacher’s union to recommend funding of an additional teacher to the school committee’s finance subcommittee, the superintendent knowingly and immediately allowed the school principal to make a non-funding recommendation. The CERB affirmed the Hearing Officer’s order to resubmit the funding request, but clarified it to differentiate between the school committee’s role as the statutory employer, and its role as the funding body for the second position. 

MUP-13-3066 CERB DECISION May 24, 2016 City of Haverhill and Haverhill Firefighters Union, Local 1011, IAFF, MUP-13-3066 CERB Decision on Appeal of Hearing Officer Decision. The CERB affirmed a Hearing Officer decision holding that the City of Haverhill (City) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. c 150E by unilaterally changing the conditions under the City’s firefighters completed online training mandated by the Massachusetts Ethic Reform Law, M.G.L. c. 268A, §28 but modified his reasoning. Although the City had only conducted the training program once before, in 2010, the Hearing Officer held that it had a past practice of allowing employees to complete it on or off work time and without supervision. The CERB disagreed that the way in which the training was offered in 2010 gave rise to an established past practice but held that when the fire chief ordered bargaining unit members to complete the online training while on duty and in the presence of the training officer, he instituted a new condition of employment that affected mandatory subjects of bargaining. The CERB also agreed with the Hearing Officer’s rejection of the City’s various defenses, including that all matters concerning training mandated by the Ethics Reform Law were outside the scope of mandatory bargaining. The CERB found no conflict between the requirements of the Ethics Reform Law and the choice of the procedure the public employer must follow in administering it. Thus, the fact that c. 268A, §28 was not specifically enumerated in c. 150E, §7(d) did not preclude the requirement that the City bargain over the institution of the newly-instituted requirements for completing the Online Training Program. Because there was no dispute that the City implemented the 2013 order without first giving the Union notice and an opportunity to bargain, the CERB held that the Hearing Officer properly found that the City was obligated to bargain over the institution of the newly-instituted requirements.

ARB-15-4564 ARBITRATION DECISION May 12, 2016 Town of Sudbury and Massachusetts Laborers’ District Council, ARB-15-4564 Arbitration Decision.The issue in this case is: Under the collective bargaining agreement, did the Town have cause to terminate Mr. Zanco from his employment? If not what shall be the remedy? The arbitrator found that the Town had cause for Zanco’s termination for excessive absenteeism because of the significant length of time that the Town allowed to pass before commencing disciplinary proceedings against Zanco, combined with his lack of progress in fulfilling his obligation to report to work, and the uncertainty of when or even if he could return to full-time work.

SUP-15-4331 HEARING OFFICER DECISION May 12, 2016 Commonwealth of Massachusetts/Department of Public Health and Massachusetts Nurses Association, SUP-15-4331, Hearing Officer Decision. The issue in this case is whether the Commonwealth of Massachusetts, Department of Public Health (Employer) violated Section 10(a)(1) of the Law by failing to honor Deborah Bethel’s (Bethel) request for union representation at an investigatory meeting that she reasonably believed might result in discipline.

MUP-14-3989 HEARING OFFICER DECISION May 4, 2016 Town of Plymouth and Collective Bargaining Relief Association, MUP-14-3989, Hearing Officer Decision.The issue is whether the Town of Plymouth (Town or Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by unilaterally transferring bargaining unit work to non-unit personnel.

April 2016

MUP-13-3006 CERB DECISION April 29, 2016 City of Everett and New England Police Benevolent Association MUP-13-3006, CERB Decision on Appeal of Hearing Officer’s Decision. The CERB affirmed a Hearing Officer decision holding that the City of Everett did not violate the Law when it reduced the number of captains in its police department but that it did violate Section 10(a)(5) and, derivatively Section 10(a)(1) of the Law when it indefinitely assigned a lieutenant to perform all of the duties that a captain formerly performed without first giving the union that represented the captains and lieutenants notice and an opportunity to bargain over the decision and its impacts to resolution or impasse. 

MUP-14-4099 HEARING OFFICER DECISION April 22, 2016 Stoughton School Committee and Stoughton Teachers Assoc. MTA/NEA, MUP-14-4099, Hearing Officer Decision. The issue is whether the Stoughton School Committee (Committee) failed to bargain in good faith with the Stoughton Teachers Association, MTA/NEA (Association) by requiring high school guidance counselors to teach expanded guidance seminar classes and perform attendance duties without providing the Association with prior notice and an opportunity to bargain to resolution or impasse over the decisions and the impacts of those decisions on employees’ terms and conditions of employment in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law). 

ARB-15-4457 ARBITRATION DECISION April 12, 2016 Town of Sutton and Sutton Police Sergeants and Patrolman’s Association, Local 159, ARB-15-4457, Arbitration Decision. The issue in this case is: Was there just cause for the eight-day suspension of Sergeant Kevin Richard dated March 2, 2015? If not what shall be the remedy? The arbitrator found that the Town had just cause for the suspension, finding that the two searches that Sergeant Richard ran in the CJIS were for personal reasons not related to his role as a Sutton police officer. The arbitrator also was not persuaded by the Union’s claim that the searches were for a legitimate criminal justice purpose.

March 2016

ARB-12-2137 ARBITRATION DECISION March 11, 2016 City of Worcester and NAGE, Local 495, ARB-12-2137, Arbitration Decision. The issue in this case is: Did the City violate the collective bargaining agreement when it assigned eight Street Department employees to work overtime on December 22, 2009 and six Street Department employees to work overtime on December 23, 2009? If so, what shall be the remedy? The arbitrator found that the manner in which the City assigned overtime on December 22 and 23, 2009 was not a violation of the collective bargaining agreement. The City’s procedure for offering overtime opportunities was agreed to by the parties, has remained unchanged for years, and was readily ascertainable to both bargaining unit members being called for overtime and bargaining unit members making the overtime calls.

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