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MARCH 2024
ARB-21-8856 Arbitration Award March 1, 2024 Teamsters #170 and Town of Lancaster The issue in this case is: Did the Town violate Article 12 of the Collective Bargaining Agreement when it denied the Grievant, Courtney Manning, the base wage increase? The arbitrator found that the Town did violate the Collective Bargaining Agreement by failing to provide the grievant the base wage increase as the applicable contract language did not distinguish between full-time and part-time bargaining unit employees.
ARB-22-9609 Arbitration Award March 15, 2024 City of Lowell and Lowell Firefighters #853 The issue in this case is: Is the matter procedurally and substantively arbitrable? If so, did the City of Lowell violate the parties’ collective bargaining agreement when it calculated employees’ Emergency Medical Technician and Education Incentive stipends using the Deputy Chief weekly base pay? If so, what shall be the remedy? The arbitrator found the matter was procedurally and substantively arbitrable, and that the City did not violate the parties’ collective bargaining agreement when it calculated employees’ Emergency Medical Technician and Education stipends using the Deputy Chief weekly base pay. The grievance is denied.
CAS-23-9758 CERB Decision March 19, 2024. City of Somerville and SMEA The CERB granted the Somerville Municipal Employee’s (SMEA) petition to accrete the newly-created position of Inspectional Services Department (ISD) Liaison to Unit D, a bargaining unit of specialized employees in the City of Somerville. In the absence of evidence or argument that the position was managerial, supervisory or confidential, the CERB found that the position shared a community of interest with other ISD Unit D employees in terms of duties, hours, training, and experience and educational; requirements. The CERB found that the employer’s expectation that this person would be the point person for addressing complex permitting issues with business developers and the mayor did not affect this community of interest.
CAS-23-10146 CERB Decision March 3, 2024 Gloucester Teachers Association and Gloucester School Committee The CERB accreted a new position, Science Center Coordinator, into Unit A, the teachers and other professional employees’ bargaining unit. The CERB (Wittner, Strong with Member Caldwell concurring) found that the SCC shared a sufficient community of interest with that unit in terms of teaching, curriculum development, professional development and administrative duties with other Unit A employees and that placing her in that unit would not create any inherent conflicts of interest because the position was not supervisory. Member Caldwell concurred but only because there was no existing bargaining unit for administrative employees in which to place the SCC.
MUP-20-7795 Hearing Officer Decision March 15, 2024 Andover Education Association and Andover School Committee. The issue in this case is whether the employer unilaterally removed case management time from the work schedules of special education teachers in violation of Sections 10(a)(5) and, derivatively, Section 10(a)(1) of the Law. The hearing officer concluded that the employer had violated the Law in the manner alleged.
MUP-20-7866 CERB Decision March 13, 2024. Boston School Committee and Boston Teachers Union CERB Decision on Appeal of Hearing Officer Decision. The CERB partly affirmed and partly reversed a Hearing Officer decision concerning transfer of bargaining unit work outside of the unit. The CERB reversed the Hearing Officer’s determination that one of the transfer allegations was untimely. Some bargaining unit members were members of a School Site Council (SSC) and present at a meeting where a school principal announced that he intended to eliminate a bargaining unit position and replace it with the non-unit position of Climate and Control Manager. Based on contract language and case law, the CERB disagreed with the Hearing Officer that the bargaining unit members were the Union’s representatives on the SSC and thus, the Union knew or should have known of the facts that formed the basis of its charge when they were announced and voted on at the SSC meeting. The CERB instead found that the period of limitations began to run several months later, when a Union official became aware that a bargaining unit position had been eliminated. The CERB remanded this aspect of the complaint back to the Hearing Officer to make subsidiary findings of fact and to render a decision on the merits of the transfer allegation.The CERB affirmed the Hearing Officer’s conclusion that the Union had not met its burden of providing evidence that the School Committee unlawfully transferred bargaining unit work to the non-unit position of Transportation Operational Leader.
MUPL-22-9378 CERB Decision March 4, 2024 Andover Education Association and Andover School Committee.The CERB held in the first instance that the Andover Education Association failed to bargain in good faith and violated Section 10(b)(2) of M.G.L. c. 150E (the Law) when it bypassed the School Committee by advocating for a warrant article at a Special Town Meeting that provided for a “one-time pandemic stipend and retention premium for educational support professionals” to be funded out of Federal Coronavirus State and Local Fiscal Recovery Funds authorized under the American Recovery Plan Act (ARPA). The CERB found that the AEA’s efforts to seek wage increases through the Town Meeting process, outside of collective bargaining, violated the Law as alleged.
SUP-23-9892 & SUP-23-9893 Ruling March 28 , 2024 Board of Trustees of UMASS and Professional Staff Union and University Staff Association Association MTA/NEA
FEBRUARY 2024
MUP-21-8528 Hearing Officer Decision February 1, 2024, Town of Harvard and AFSCME. The issues in this case were whether the Town I) violated the Law by hiring an applicant for hire at Step 3 of the pay scale instead of Step 1; and II) violated the Law by promoting a bargaining unit member to Step 2 of the pay scale instead of the lowest step that resulted in a raise. The Hearing Officer found that the Town did not violate the Law as to Count I but did violate the Law as to Count II. He determined that applicants for hire are not members of the bargaining unit and therefore the Town did not change a mandatory subject of bargaining. The standards or procedures for promotion, however, are a mandatory subject of bargaining, and the Town changed the parties’ practice without bargaining with the Union. He ordered the Town to bargain to resolution or impasse with the Union regarding the changed procedures for promotion.
CR-22-9430 CERB RULING ON MOTION February 26, 2024 CERB Ruling on Motion to Dismiss. Berkshire Roots, Inc. and Logan Eichelser and United Food and Commercial Workers Union, Local 1459. After an incumbent union (Union) and the employer entered into an agreement in which they settled two unfair labor practice “blocking” charges by agreeing to extend the certification year for approximately two months beyond the date of the settlement and to continue bargaining for a first contact during that period, the Union filed a motion with the DLR seeking to dismiss a decertification petition that had been blocked by the unfair labor practice charges. The CERB granted the motion over the petitioner’s and employer’s opposition based on Commonwealth of Massachusetts, 17 MLC 1650, 1651, SCR-22-1 (April 9, 1991)), in which the CERB held that if a prohibited practice complaint results in issuance of a remedial order or settlement that requires the employer to bargain with the incumbent, the petition will be dismissed but following the remedial bargaining period and expiration of the extended certification year, but that a new petition, supported by appropriate and sufficient showing of interest, may be timely filed.
JANUARY 2024
SI-23-10203 Amended CERB Ruling on Supplemental Strike Petition January 24, 2024 Newton Teachers Association and Michael Zilles, in his capacity as President of the NTA, and Newton School Committee. Newton Teachers Association and Michael Zilles, in his capacity as President of the NTA, and Newton School Committee. CERB Supplemental Ruling on Strike Investigation. After holding a strike investigation in which the School Committee offered unrefuted evidence that the Newton Teachers Association (NTA) was going to hold a strike vote on January 18, 2024 to commence a strike on January 19, 2024, the Commonwealth Employment Relations Board (CERB) issued a ruling that concluded that a strike was about to occur and that the NTA and its officers and Michael Zilles in his capacity as President of the MTA was inducing, encouraging or condoning the strike in violation of Section 9A(a) of M.G.L. c. 150E. The CERB issued an Order that, among other things, ordered the Respondents to cease and desist from engaging in or threatening to engage in a strike or work stoppage and from inducing, encouraging and condoning any strike or work stoppage
NOVEMBER 2023
SUP-20-8314 CERB Decision November 6, 2023. Commonwealth of Massachusetts & NAGE. The CERB affirmed a Hearing Officer decision holding that the Commonwealth of Massachusetts, acting through the Massachusetts Emergency Management Agency, violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it 1) eliminated a bargaining unit member’s stand-by pay during such time that it required the employee to be available for work, without giving the National Association of Government Employees (NAGE or the Union) prior notice and an opportunity to bargain to resolution or impasse over that decision and its impacts on the employee’s terms and conditions of employment; and 2) repudiated an agreement to pay that bargaining unit member stand-by pay pursuant to Article 7.6 of the parties’ collective bargaining agreement (CBA).
SI-23-10320 Strike Ruling November 9, 2023 Andover Education Association & Andover School Committee. After holding a strike investigation in which the School Committee offered uncontested evidence that the Andover Education Association was planning a strike and had held a strike vote the afternoon of the strike investigation to go on strike “immediately,” the Commonwealth Employment Relations Board found that a strike was about to occur and that the AEA and its officers had induced, encouraged and condoned the strike in violation of Section 9A of the Law.
SUP-21-8687 H.O. Decision November 27, 2023. Commonwealth of Massachusetts (DDS) & AFSCME Council 93. Hearing Officer Decision issued 11-27-2023 The Hearing Officer found that the Commonwealth of Massachusetts did not violate Section 10(a)(1) of the Law as alleged. Based on her credibility determinations, the Hearing Officer found that management officials did not make comments to bargaining unit employees to the effect that they should stay out of an on-going grievance proceeding. Accordingly the Hearing Officer dismissed the case.
OCTOBER 2023
MUP-20-8359 HEARING OFFICER DECISION October 5, 2023 City of Methuen and New England Police Benevolent Association, Local 117. The issue in this case was whether the City of Methuen (City) violated Section 10 (a)(5), and derivatively, 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by failing to bargain in good faith by repudiating the parties’ Memorandum of Understanding (MOU) and by rescinding the scheduling and compensation time provisions of the MOU without giving the New England Police Benevolent Association, Local 117 (Union) prior notice and an opportunity to bargain to impasse or resolution over the decision and the impacts of that decision on employee terms and conditions of employment. The Hearing Officer held that the City did not violate the Law as alleged.
MUP-20-8072 CERB DECISION ON APPEAL October 20, 2023. Essex North Shore Agricultural & Technical School District & AFSCME. Essex North Shore Agricultural & Technical School District and AFSCME Council 93. The CERB affirmed a Hearing Officer decision holding that the employer failed to bargain in good faith by changing employees’ summer work schedules by reducing their hours and by requiring them to use personal leave, vacation leave or unpaid leave on certain Fridays without first bargaining to resolution or impasse with the union over the change. In so holding, the CERB rejected the employer’s contention that the decision to reduce employees’ hours on Fridays as a means of implementing its level of services decision was a non-bargainable level of services decision. The CERB also rejected the employer’s affirmative defenses of waiver by contract and waiver by inaction
MUP-22-9252 HEARING OFFICER DECISION. October 27, 2023. Everett Firefighters #143 & City of Everett. On September 28, 2022 the DLR issued a Complaint of Prohibited Practice alleging that the City of Everett (City) had engaged in prohibited practices within the meaning of Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law). On October 20, 2023, the City filed an Answer and Waiver of Hearing pursuant to DLR Regulation 456 CMR 13.18. The Hearing Officer issued an order and notice to employees in accordance with DLR Regulation 456 CMR 13.18.
MUP-18-6667 HEARING OFFICER DECISION October 28, 2023 Springfield Education Association & Springfield School Committee. There are two issues in this case. The first is whether the Springfield School Committee (School Committee) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by unilaterally changing, in five schools, the manner and location in which Springfield Education Association (SEA or Association) representatives may meet with teachers. The second issue is whether the School Committee independently interfered with, restrained and coerced its employees in the exercise of their rights guaranteed under Section 2 of the Law in violation of Section 10(a)(1) of the Law by the Superintendent’s and various school principals’ conduct in directing Association representatives not to walk around schools seeking impromptu meetings with teachers during the day, but rather to meet with teachers in the teachers’ room/lounge/lunchroom. The hearing officer found that the School Committee had not violated the Law as alleged, and dismissed the Complaint in its entirety.
SEPTEMBER 2023
ARB-22-9161 ARBITRATION AWARD September 28, 2023 City of Revere and Massachusetts Laborers District Council #22. The issue in this case is: Did the City have just cause to terminate the grievant, Joseph Scoppettuolo? If not, what shall the remedy be? The arbitrator found that the City had just cause to terminate the grievant for his repeated dishonest and fraudulent conduct. The grievance was denied.
MUP-21-8535 HEARING OFFICER DECISION September 7, 2023 Greater Lowell Regional Technical School District and Greater Lowell Regional Technical Teachers Association. The issue in this case is whether the School District violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Massachusetts General Laws, Chapter 150E by retaliating against Robert Jones (Jones) for engaging in concerted activity protected by Section 2 of the Law when it declined to offer him the position of golf head coach in September of 2020. The Hearing Officer found that the Union had failed to establish a prima facie case of retaliation or discrimination because it could not show that the District relied on Jones’ 2018 and 2019 grievances when it made the decision in 2020. Nor could the Union show that the District deviated from its established practice of preferring incumbent coaches/internal candidates over external candidates. Last, the Union failed to demonstrate that the District treated Jones disparately during the interview process because it asked all candidates the same questions and allowed each candidate to speak freely and to volunteer additional information.
SCR-23-10200 CERB JURISDICTIONAL RULING September 29, 2023 SUFFOLK COUNTY DISTRICT ATTORNEY OFFICE AND AFSCME COUNCIL 93. AFSCME, Council 93 filed a representation petition seeking to represent a bargaining unit of Assistant District Attorneys who work at the Suffolk County District Attorney’s Office. The CERB dismissed the petition for lack of jurisdiction based on M.G.L c. 12, §16, which states that M.G.L. c. 150E “shall not apply” to the ADAs.
SI-23-10203 RULING ON STRIKE PETITION & INTERIM ORDER September 26, 2023 Newton Teachers Association and Newton School Committee. After investigating a strike petition filed by the Newton School Committee, the CERB concluded that the Newton Teachers Association, its officers and membership engaged in an unlawful strike when they boycotted a district-wide meeting on the educators’ first workday of the 2023-2024 school year, and that the NTA, its officers, and its president unlawfully induced, encouraged and condoned that strike. The CERB further concluded that the NTA and its membership did not engage in, and are not currently engaged in, a strike, work stoppage, slowdown or other withholding of services by remaining silent during certain staff meetings.
UP-22-9404 RULING ON MOTION TO QUASH September 20, 2023.
AUGUST 2023
MUPL-19-7698 & MUPL-19-7699 CERB DECISION August 15, 2023 Malden Police Patrolmen's and Malden Superior Officers and City of Malden. The City of Malden alleged that the respondent police unions violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by failing to provide any information in response to its request for information pertaining to the City’s Detail Board setting and modifying detail rates. Pursuant to the unions’ CBAs, the Detail Board controlled all matters relating to police details and was composed of the police unions’ presidents’ designees and elected bargaining unit members. The hearing officer dismissed the charges on grounds that the CBAs, not the Detail Board, set and modified the detail rate and therefore there were no responsive documents. The hearing officer further held that any information the unions may have had in their possession were City records that the unions did not have to provide. The CERB affirmed that portion of the decision holding that the unions were not obligated to provide the employer that the City already maintained in its records. However, the CERB reversed the hearing officer’s conclusion that the unions did not violate the Law because the requested information did not exist. The CERB found that while the CBAs set the base rate, they did not provide a mechanism by which the contractual increases were automatically implemented, nor did they include the figures needed to calculate the detail rates increases. Rather, the record showed that the Detail Board either made or approved the calculations and then sent memos to bargaining unit members and contractors announcing the rate increases and when they would go into effect. Because the record showed that Detail Board members periodically communicated amongst themselves via text and personal email regarding Detail Board business, the CERB concluded that the Unions violated the Law when they failed to search their texts or private emails about these aspects of setting or modifying the detail rate.
MCR-23-9789 CERB DECISION August 28, 2023 City of Somerville & Somerville Municipal Employees. Somerville Municipal Employees Union and City of Somerville CERB Decision issued 8-28-2023, The CERB found that contract language in a previous CBA did not bar the Union from seeking to add 311 representatives to its bargaining unit of clerical, administrative and other employees. Finding that the 311 representatives shared a community of interest with that unit, the CERB ordered the add-on election.
ARB-21-8582 ARBITRATION AWARD August 8, 2023 Leicester Public Schools and IUPE #4. The issue in this case is: Did the Leicester Public Schools violate the parties’ collective bargaining agreement by not providing light duty work to Lisa Johnson? If so, what shall be the remedy? The arbitrator found that the Leicester Public Schools did not violate the collective bargaining agreement by not providing light duty work to Lisa Johnson. The Union was also unable to show a binding past practice between the parties of allowing light duty work.
JUNE 2023
MUP-20-8332 HEARING OFFICER DECISION June 23, 2023 Tewksbury School Committee and Tewksbury Teachers Association. The issue in this case is whether the Tewksbury School Committee (School Committee or Employer) violated Section 10 (a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by assigning an administrator to attend afterschool training sessions for the Mentor Program without providing the Union with prior notice and an opportunity to bargain to resolution or impasse over the decision and the impacts of decision to assign an administrator to the afterschool training sessions for the Mentor Program. The Hearing Officer held that the School Committee violated the Law as alleged.
SUPL-14-3628 AMENDED COMPLIANCE DECISION June 30, 2023 Office and Professional Employees International Union, Local 6 and John F. Murphy. The issue in this case is whether the Union failed to comply with an order of the Commonwealth Employment Relations Board (CERB) to make Murphy whole for the loss of compensation he suffered as a direct result of his termination from the Massachusetts Trial Court, and as a result of the Union’s subsequent unlawful conduct. The hearing officer found that the Union failed to show by a preponderance of the evidence that it had complied with the CERB’s order because it never paid Murphy any back pay for lost wages and benefits, including lost retirement contributions. She also found that the Union was unable to prove that Murphy had failed to mitigate his damages by finding comparable employment during his termination period and found no evidence to support the Union’s contention that the Trial Court should share liability with the Union to make Murphy whole.
SUP-20-8269 HEARING OFFICER DECISION June 16, 2023. Bristol County Commissioners and OPEIU, Local 6. The issues were whether the Employer I) implemented a last best offer during successor negotiations when the parties were not at impasse in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law; II) refused to participate in DLR mediation in violation of Section 10(a)(6) and, derivatively, Section 10(a)(1) of the Law; and III) refused to bargain at a November 2020 meeting in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law. The Hearing Officer found that the Employer violated the Law on all counts. Based upon the totality of the circumstances, he concluded that the parties were not at impasse where the Union sought to continue bargaining and the record indicated that further movement was possible. He rejected the Employer’s contention that the Union’s request for mediation freed it declare bargaining finished and implement its last offer. The Employer’s refusal to mediate and bargain also violated the Law. He ordered the Employer to restore the status quo ante and resume bargaining and mediation upon demand. He ordered the Employer to maintain the economic benefits contained resulting from its unlawful implementation pending the conclusion of bargaining, and he also ordered the Employer to make a bargaining unit member whole for lost wages that resulted from the unlawful implementation.
MUP-15-4572 HEARING OFFICER DECISION June 30, 2023. AFSCME, Council 93, Boston Public Library Staff Association & City of Boston. The case involves allegations that the City of Boston, acting through the Boston Public Library, violated Sections 10(a)(5) and (1) of M.G.L. c.150E (the Law) by: a) transferring bargaining unit work, and b) failing to bargain on demand over the disputed duties. The Hearing Officer dismissed the allegations.
MCR-23-9937 CERB DECISION June 30, 2023 Jane Meyrick, UAW#2322 & PAULO FREIRE SOCIAL JUSTICE PUBLIC CHARTER SCHOOL. The CERB dismissed a decertification petition on grounds that the school would imminently cease to exist due to its decision to surrender its charter. The CERB found that no purpose would be served by directing an election amongst individuals whose collective bargaining rights have already or will cease shortly after an election or certification
ARB-21-8841 ARBITRATION AWARD June 29, 2023 Everett Teachers Association & Everett School Committee. The issue before me is: Did the Employer have just cause to terminate Kimberly Colantuoni? If not, what shall the remedy be? The arbitrator found that the Everett School Committee did not have just cause to terminate Kimberly Colantuoni and ordered that she be made whole for all loses of pay and benefits sustained back to the first day of the school year in September 2021.
MAY 2023
CR-22-9430 CERB RULING May 3, 2023 Berkshire Roots, LLC & UFCW CR-22-9430 CERB Ruling. Berkshire Roots & UFCW #1459 CERB Ruling 5-3-2023. The CERB granted an incumbent union’s motions to have the complaints that issued in two prohibited practice charges block further processing of a decertification petition. In granting the motions, the CERB first rejected the petitioner’s arguments that the DLR’s blocking charge procedures are invalid and without statutory authorization. On the merits, the CERB found that based on the timing of the charges, the character and scope of the allegations, and the number of employees affected, the conduct alleged in the complaints could interfere with the conduct of a valid election.
SUP-20-7856 & SUP-20-7945 CERB DECISION May 3, 2023 Commonwealth of Massachusetts and NAGE SUP-20-7856 & SUP-20-7945 CERB Decision. SUP-20-7856 & SUP-20-7945 Commonwealth of Massachusetts & NAGE CERB Decision on review of Hearing Officers Decision 5-2-2023. The Commonwealth Employment Relations Board (CERB) affirmed a Hearing Officer decision holding that the Commonwealth of Massachusetts, acting through the Division of Banks, did not violate Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. c 150E (the Law) when, pursuant to an unambiguous contract provision, it ceased reimbursing bank examiners for mileage incurred for travel between their home to regularly designated offices and began applying the CBA’s “lesser rule,” which reimbursed examiners only for distances traveled between their home and a temporary work site, or their designated office and the temporary work site, whichever was less. The CERB held that past practice could not overcome unambiguous contract language and that the Union had waived by contract its right to bargain over the change. The CERB also affirmed that aspect of the Hearing Officer’s decision holding that the Commonwealth made an unlawful unilateral change when it unilaterally implemented the “shortest distance” rule as a means of reimbursing field examiners for travel expenses incurred when traveling from their home to a temporary site, instead of maintaining its prior practice of relying on odometer readings and web-based maps provided by the examiners, subject only to a reasonableness standard. The CERB reversed that aspect of the decision concluding that the Commonwealth repudiated the CBA when it adopted the “shortest distance” rule. The CERB held that the CBA was ambiguous, and the parties had never had a meeting of minds, as to how to reimburse employees for travel expenses when the “lesser rule” applied. . The CERB thus concluded that, even though the Commonwealth had made an unlawful unilateral change, its implementation of the “shortest distance method” was not a deliberate effort to avoid reimbursing examiners for employment-related travel expenses.
APRIL 2023
MUP-21-8485 HEARING OFFICER DECISION April 20, 2023 Northeast Metropolitan Regional Vocational School Committee and Northeast Teachers Association, MUP-21-8485, Hearing Officer Decision. The issues were 1) whether the Committee violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by determining eligibility for remote work without bargaining with the Union over the impacts of the decision on employees safety and workload; and 2) whether the Committee violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by refusing to respond to an information request. The Hearing Officer found that the Committee did not violate the Law on Count I because the Committee bargained the safety and workload impacts of re-opening the school building prior to the return of students to the building. The Hearing Officer further found that the Committee did violate the Law on Count II by refusing to provide information that was relevant and reasonably necessary; and by refusing to engage the Union in a discussion to explore alternatives regarding aspects of the request that may have implicated confidentiality concerns.
MARCH 2023
SUP-20-8208 HEARING OFFICER DECISION March 16, 2023 University of Massachusetts Boston and Joint Coordinating Committee/Faculty Staff Union/MTA/NEA, SUP-20-8208, Hearing Officer Decision. The issue in this case was whether the University of Massachusetts Boston (University) violated Section 10(a)(3), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by notifying Maria Mellone (Mellone), a bargaining unit member, that she would not be re-appointed as an associate lecturer nor assigned any classes for the fall 2020 semester. The Hearing Officer held that the University did not violate the Law as alleged.
ARB-21-8617 ARBITRATION AWARD March 9, 2023 City of Lowell and AFSCME, Council 93, ARB-21-8617, Arbitration Award. The issues in this case are: (1) Did the City violate the collective bargaining agreement and/or past practice by paying an overtime rate of 1.5 base hourly rate for the clinical nurse managers and nurse coordinator? If so, what shall be the remedy? (2) Did the City violate the collective bargaining agreement and/or past practice when it denied the nurse coordinator’s request to switch from a fifty-two week pay schedule to a forty-four week pay schedule? If so, what shall be the remedy?The arbitrator found that the City did not violate the collective bargaining agreement when it: (1) paid an overtime rate of 1.5 base hourly rate for the clinical nurse managers and nurse coordinator, and (2) when it denied the nurse coordinator’s request to switch from a fifty-two week pay schedule to a forty-four week pay schedule. The grievance was denied.
February 2023
MUP-21-8668 CERB RULING February 24, 2023 Andover School Committee and Andover Education Association, MUP-21-8668, CERB Ruling. The CERB found that the Hearing Officer did not abuse her discretion by refusing to amend a complaint to add general allegations regarding use of paid union leave that were not alleged in the complaint.
MUP-18-6946 AND MUP-19-7379 CERB DECISION February 22, 2023 City of Newton and Newton Police Superior Officers Association, MassCOP Local 401, MUP-18-6946 and MUP-19-7379, CERB Decision. The Hearing Officer dismissed a consolidated complaint that alleged that the City violated Section 10(a)(3) and, derivatively Section 10(a)(1) of M.G. L. c. 150E when it took three separate adverse actions against the Union President in retaliation for his protected concerted activity, including involuntarily transferring him from a sergeant specialist position on the day shift to a night shift position in the patrol bureau. .The Union appealed this dismissal of all three counts to the CERB and the City cross-appealed from certain findings. The CERB reversed the Hearing Officer’s dismissal of the involuntary transfer but affirmed the dismissal of the remaining two counts. With respect to the transfer, the CERB found that the City had not met its burden of producing evidence demonstrating that the legitimate reason it provided for the involuntary transfer was actually a motive in its decision. Having failed to dispel the presumption of discrimination established by the prima facie case, the CERB concluded that the transfer was unlawfully motivated. In so holding, the CERB rejected the City’s cross-appeal that the involuntary transfer did not constitute an adverse action for purposes of establishing a prima facie case of unlawful retaliation. The CERB found that a reasonable person in the Union president’s shoes would view a sudden involuntary transfer from six years of working on a day shift with weekends and holidays off, to a night shift position with a schedule that could routinely include working weekends and holidays, to be a material and objective change sufficient to constitute an adverse action.
MCR-22-9558 CERB DECISION February 14, 2023 Somerset Public School District, Somerset Berkley Regional School District and AFSCME, Council 93, MCR-22-9558, CERB Decision. The Union filed a petition seeking to add part-time cafeteria workers who worked fewer than twenty-hours per week to its existing unit of full-time and regular part-time cafeteria workers who worked twenty hours a week or more. The CERB asked the parties to show cause why it should not dismiss the petition as contract-barred because the Union filed it more than 180 days before the expiration of the collective bargaining agreement. The Union contended that good cause existed to waive the contract bar. It alleged that the employer was hiring part-time employees to work fewer than twenty hours per week to avoid including them in the bargaining unit, thereby repudiating the CBA, eroding the unit, disrupting the parties’ bargaining relationship and creating labor instability. The CERB dismissed the petition on grounds that the alleged conduct did not rise to the level of good cause found in previous CERB decisions. The CERB found that dismissing the petition at this time did not preclude the Union from filing a timely petition at a later date or from pursuing its allegations through other avenues such as a prohibited practice proceeding.
January 2023
SI-23-9811 SECOND CERB RULING January 31, 2023 Woburn School Committee, Massachusetts Teachers Association, Woburn Teachers Association, and Barbara Locke, SI-23-9811, Second CERB Ruling. After a strike investigation, the CERB determined that the MTA was inducing, encouraging, or condoning a strike in violation of Section 9A of the Law. The CERB ordered the MTA to cease and desist from its unlawful conduct and to publicly state that any strike that has resulted from the strike vote that was scheduled to take place on January 27, 2022, as well as any other work stoppage, slowdown, or other withholding of services is illegal and must therefore cease; and that the WTA’s members must immediately return to work.
SI-23-9811 CERB RULING January 27, 2023 Woburn School Committee, Massachusetts Teachers Association, Woburn Teachers Association, and Barbara Locke, SI-23-9811, CERB Ruling. After a strike investigation, the CERB determined that the WTA and WTA President Barbara Locke, in her official capacity, were inducing, encouraging or condoning a strike in violation of Section 9A of the Law by organizing a strike vote on a Friday afternoon, which, unless the parties settled the contract dispute over the weekend, would result in a strike the following Monday. The CERB ordered the parties to, among other things, cease and desist from engaging in or threatening to engage in a strike or work stoppage, and from inducing, encouraging or condoning any strike and to cancel any strike vote or subsequent strike. The CERB also ordered the parties to bargain in good faith for a successor agreement and to participate in mediation before a mediator assigned by the DLR to bargain over the issues that separate them.
SUP-20-8314 HEARING OFFICER DECISION January 19, 2023 Commonwealth of Massachusetts (Massachusetts Emergency Management Agency) and NAGE, Unit 6, Local 207, SUP-20-8314, Hearing Officer Decision. The issues were whether the Commonwealth violated the Law by: I) rescinding bargaining unit member Christopher Besse’s stand-by pay for performing stand-by duty pursuant to Article 7.6 of the Unit 6 CBA without giving the Union prior notice and an opportunity to bargain to resolution or impasse; and 2) repudiated an agreement to pay Besse stand-by pay pursuant to Article 7.6 of the Unit 6 CBA by requiring to perform stand-by duty without receiving stand-by pay pursuant to Article 7.6 of the Unit 6 CBA. The hearing officer held that the Commonwealth violated the Law as to both counts, and ordered the Commonwealth to make Besse whole for every stand-by period he held himself available without receiving compensation.
SUP-20-8162 HEARING OFFICER DECISION January 17, 2023 Commonwealth of Massachusetts (Department of Corrections) and Service Employees International Union, Local 509, SUP-20-8162, Hearing Officer Decision. The Hearing Officer found that the Massachusetts Department of Corrections (DOC) violated Section (10)(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by repudiating a settlement agreement when it refused to execute a settlement agreement it reached with the Service Employees International Union, Local 509 (Union) regarding a class grievance. The DOC asserted that valid reasons permitted it to decline to go forward with the settlement agreement. The Hearing Officer rejected the DOC’s defense, holding that a party may not refuse to reduce to writing, execute, or implement a settlement agreement after there has been a meeting of minds on all issues, even when there may be valid reasons for doing so.
December 2022
WMAM-22-9067 CERB DECISION December 19, 2022 City of Medford and Teamsters, Local 25, WMAM-22-9067, CERB Decision. The parties entered into stipulations in connection with a motion that the City of Medford (City) filed pursuant to 456 CMR 14.15 to reinvestigate the DLR’s certification of a unit of certain City employees, including the City Clerk. Finding that the stipulations did not conflict with M.G.L. c. 150E or established CERB policy or precedent, the CERB issued a stipulated decision and order that amended the certification in WMAM-22-9067 to exclude the City Clerk on grounds that the incumbent is a legislative employee not entitled to collective bargaining rights under M.G.L. c. 150E.
ARB-21-8661 ARBITRATION AWARD December 9, 2022 Town of Lynnfield and AFSCME, Council 93, ARB-21-8661, Arbitration Award. The issue in this case is: Did the Town of Lynnfield violate Article 6 of the Collective Bargaining Agreement when it non-selected Mr. Daniel Harvey for the position of Head Custodian at Lynnfield Middle School? If so, what shall be the remedy? The arbitrator found that the Town had not violated Article 6 of the Collective Bargaining Agreement when failed to select the grievant for the position of Head Custodian.
SUP-20-7984 HEARING OFFICER DECISION December 8, 2022 Suffolk County Sheriff's Department and AFSCME, Council 93, Local 419, SUP-20-7984, Hearing Officer Decision. The issue in this case is whether the Employer violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Massachusetts General Laws, Chapter 150E by failing to bargain in good faith with the Union to resolution or impasse over the decision to eliminate in-service training on the 3:00 p.m. – 11:00 p.m. shift, and the impacts of that decision on employees’ terms and conditions of employment. The Hearing Officer found that the Union had successfully established its prima facie case of showing that the Employer had unilaterally eliminated the practice of scheduling in-service training on the 3:00 p.m. – 11:00 p.m. shift, which affected a mandatory subject of bargaining, and which it implemented without prior notice or an opportunity to bargain to resolution or impasse. However, the Employer raised a successful affirmative defense, showing that the Union had waived by contract its right to bargain over the change based on the parties’ bargaining history which permitted the Employer to make the change pursuant to the terms of the collective bargaining agreement. The Hearing Officer also found that the Employer was not obligated to bargain over the impacts of the change because there was no evidence of identifiable workload or safety issues resulting from the change, or that unit members had lost opportunities to work regularly-scheduled overtime.
November 2022
MUP-20-7886 HEARING OFFICER DECISION November 28, 2022 Boston School Committee and Boston Teachers Union, Local 66, MUP-20-7886, Hearing Officer Decision. The issue in this case is whether the Boston School Committee (School Committee) violated Section 10(a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by eliminating Union positions and transferring their job duties to non-union positions without providing the Boston Teachers Union, Local 66 (Union) with prior notice and an opportunity to bargain to resolution or impasse over the decision and the impacts of the decision on bargaining unit members’ terms and conditions of employment. The Hearing Officer found allegations of the Complaint to be untimely filed and dismissed other allegations because the Union had not met its evidentiary burden to prove that a transfer of bargaining unit work had occurred.
ARB-21-8690 ARBITRATION AWARD November 22, 2022 Town of Seekonk and AFSCME, Council 93, Local 1701, ARB-21-8690, Arbitration Award. The two issue in this case are: Is the grievance procedurally arbitrable? If so, did the Town of Seekonk violate the collective bargaining agreement by the manner in which it calculated the step raises of Jim Halpin, Kevin Hearst, Paul Proulx, and Wayne Young? If so, what shall be the remedy? The arbitrator found that the grievance was procedurally arbitrable, because the grievance timelines were ambiguous and the Town did not previously raise timeliness. However, the arbitrator found the Town did not violate the clear and unambiguous language of the collective bargaining agreement when it calculated the step raises. The grievance was denied.
SUP-19-7421 HEARING OFFICER DECISION November 18, 2022 Commonwealth of Massachusetts and Coalition of Public Safety, SUP-19-7421, Hearing Officer Decision. The issue was whether the Commonwealth violated the Law when the Massachusetts Environmental Police installed GPS in officers’ vehicles without giving the union prior notice and an opportunity to bargain to resolution or impasse over the decision and the impacts of that decision. The hearing officer held that the Union had waived bargaining over the decision to install GPS because the parties had previously executed a memorandum of understanding that allowed the Environmental Police to use and install GPS in vehicles. The Commonwealth violated the Law, however, because the installation deviated from the memorandum and impacted officer safety, which impact the Commonwealth refused to bargain. The hearing officer ordered the Commonwealth to bargain with the Union over the safety impacts of the GPS program.
MUP-20-8189 HEARING OFFICER DECISION November 18, 2022 City of Somerville and Somerville Firefighters Local 76, MUP-20-8189, Hearing Officer Decision. The Hearing Officer determined that the City of Somerville (City) did not violate Section 10(a)(5), and derivatively, Section 10(a)(1) of the Massachusetts General Law Chapter 150E by failing to provide the Somerville Firefighters, Local 76, IAFF (Union) with information that was relevant and reasonably necessary for the Union to exercise its duties as collective bargaining agent. The Hearing Officer found that the City did not have possession or control of the psychological test data obtained by a psychologist during a fitness for duty evaluation of a bargaining unit member and did not violate the Law by failing to provide the data to the Union.
MUP-20-7800, 7807, 7808, 7809 CERB DECISION November 18, 2022 City of Westfield, Westfield Firefighters Local 1111, Rebecca Boutin, David Kennedy and Kyle Miltimore, MUP-20-7800, 7807, 7808 and 7809, CERB Decision. The CERB affirmed a Hearing Officer’s decision holding that the City of Westfield unlawfully terminated the three individual charging parties in retaliation for engaging in protected, concerted activity that included meeting as a group and speaking to the State Police about allegations that the Deputy Chief had engaged in sexual misconduct while in uniform during a St. Patrick’s Day parade at a neighboring town, and additional complaints that they had about the Deputy Chief’s workplace conduct.
SUP-20-7876 HEARING OFFICER DECISION November 16, 2022 Commonwealth of Massachusetts and National Association of Government Employees, SUP-20-7876, Hearing Officer Decision. In this case, the Hearing Officer decided that the Commonwealth of Massachusetts acting through the Secretary of Administration & Finance (Commonwealth) did not violate Section 10(a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) when it electronically recorded interviews of bargaining unit members participating in workplace investigations. The Hearing Officer dismissed as untimely the allegation that the Commonwealth violated the Law by recording bargaining unit members participating in internal investigation interviews as respondents. The Hearing Officer further found that the Commonwealth’s decision to record complainants, unless they objected, and witnesses regardless of their objection was a change in the procedural mechanism for notetaking that did change an underlying condition of employment.
MUP-20-8072 HEARING OFFICER DECISION November 9, 2022 Essex North Shore Agricultural and Technical School District and AFSCME, Local 245, MUP-20-8072, Hearing Officer Decision. The two issues in this case are whether the Employer violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Massachusetts General Laws, Chapter 150E: (1) by changing bargaining unit members’ summer work schedules and requiring that they use personal leave or vacation leave on certain Fridays or take unpaid days, without bargaining to impasse or resolution with the Union; and (2) by failing to meet with the Union to continue bargaining over these changes. The Hearing Officer found that while the Employer gave the Union prior notice of its planned changes, it failed to satisfy its statutory bargaining obligation because the parties had only engaged in one bargaining session and were still in the process of exchanging proposals when the Employer unilaterally implemented the changes. The Hearing Officer also rejected the Employer’s affirmative defenses of contractual waiver, impasse, and core managerial prerogative because the parties’ prior agreements were silent concerning the subject matter of the changes, the Union communicated its desire to continue bargaining with the Employer over the changes, and the proposed staffing arrangement which sought to reduce the Employer’s level of services during the summer of 2020 and the impacts of that arrangement on employees’ terms and conditions of employment was a mandatory subject that was not exempt from bargaining, respectively.
MUP-20-8053 & 8059 HEARING OFFICER DECISION November 8, 2022 City of Newton and International Association of Firefighters Local 863, MUP-20-8053 and 8059, Hearing Officer Decision. The issue in this case was whether the City of Newton (City) violated Section 10(a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law). The Hearing Officer held that the City did not violate the Law by unilaterally prohibiting the display of the “thin red line” flag and changing its policy regarding the posting of flags and banners.
October 2022
ARB-21-8749 ARBITRATION AWARD October 27, 2022 Town of Norwood and Norwood Firefighters Union, Local 1631, ARB-21-8749, Arbitration Award. The issue in this case is: Did the Town of Norwood violate Article XV, Section 1 of the Agreement between the Town of Norwood and Local 1631, International Association of Firefighters, AFL-CIO by refusing to reimburse Firefighter Adam Kewriga for the cost of paramedic school tuition, registration and books? If so, what shall be the remedy? The arbitrator found that the Town had not violated Article XV, Section 1 when it refused to directly reimburse the cost of paramedic school tuition, registration and books to Firefighter Kewriga.
MUP-21-8387 HEARING OFFICER DECISION October 24, 2022 City of Attleboro and Attleboro Firefighters, Local 848, IAFF, MUP-21-8387, Hearing Officer Decision. The Hearing Officer decided that the City of Attleboro interfered with, restrained, or coerced its employees in violation of Section 10(a)(1) of the Law when Mayor Paul Heroux responded to critical Facebook comments by: 1) accusing the Union President of spreading lies; and 2) reminding the spouse of a firefighter that he, as mayor, could have fired her husband previously and stating “[b]efore you go on attacking me, try to remember everything.” The Hearing Officer further decided that the City of Attleboro did not discriminate against Union President Paul Jacques by issuing him a written reprimand in violation of Section 10(a)(3), and derivatively, Section 10(a)(1) of the Law.
CAS-21-8441 CERB DECISION October 18, 2022 Town of Deerfield and United Public Services Employees Union, Local 424, CAS-21-8441, CERB Decision. The Union sought to accrete the newly-created position of Assistant Highway/Public Works Superintendent to a bargaining unit of highway employees. The Union contended that the Assistant Superintendent shared a community of interest with members of its bargaining unit, especially foremen, in terms of duties and other working conditions. The Town contended that accretion was not appropriate because the Assistant Superintendent is a managerial and/or supervisory employee. The CERB determined that the Assistant Superintendent is not a managerial employee but that he is a supervisor. The CERB therefore declined to accrete him into the same unit with the employees he supervises.
SI-22-9605 CERB STRIKE RULING October 15, 2022 Haverhill School Committee, Massachusetts Teachers Association, Haverhill Education Association, Tim Briggs and Christine Hickey, SI-22-9605, CERB Strike Ruling. The Haverhill School Committee filed a petition with the Department of Labor relations for strike investigation on Wednesday October 12, 2022. The petition alleged that a strike was about to occur and that the Massachusetts Teachers Association (MTA), the Haverhill Education Association (HEA), and two members of HEA’s bargaining unit in both their individual and official capacities, were inducing, encouraging, or condoning that strike in violation of section 9A of the law. After a strike investigation, the CERB issued a ruling that the HEA and the employees that it represents were about to engage in a strike and that the MTA, the HEA, the HEA’s officers and the two bargaining unit members, in their official capacities only, were inducing, encouraging and condoning such action in violation of Section 9A of the Law. The CERB ordered the parties to, among other things, cancel a scheduled strike vote and planned strike and to cease inducing, encouraging and condoning the strike.
ARB-21-8643 ARBITRATION AWARD October 13, 2022 City of Lowell and AFSCME, Council 93, ARB-21-8643, Arbitration Award. The issue in this case is: Did the City of Lowell have just cause to suspend Lori Neville for a period of ninety days in light of her involvement in the events that took place on June 23, 2020? If not, what shall be the remedy? The arbitrator found that the City did not have just cause to suspend Lori Neville for ninety days. The City did have just cause to suspend Lori Neville for thirty-five workdays. The City was ordered to make Neville whole for all losses above the level of a thirty-five-workday suspension.
September 2022
MUP-19-7148 HEARING OFFICER DECISION September 30, 2022 Sharon School Committee and Sharon Teachers Association, MUP-19-7148, Hearing Officer Decision. The issue was whether the Committee violated the Law by failing to provide information, and failing to provide information in a timely manner, that was relevant and reasonably necessary to the Union’s execution of its duties as the exclusive representative. The Hearing Officer found that the Committee’s refusal to provide information related to the suspension and discharge of a bargaining unit member, and its refusal to engage in a discussion with the Union regarding its concerns about providing that information violated the Law. The Committee’s delay in producing information also violated the Law. The Hearing officer ordered the Committee to provide the outstanding materials, which included unredacted witness statements and a statement from a bargaining unit member that the Committee refused to disclose.
MUP-20-8167 HEARING OFFICER DECISION September 29, 2022 Town of Brookline and Brookline Firefighters Association, Local 950, IAFF, MUP-20-8167, Hearing Officer Decision. The case involves allegations that the Town of Brookline violated Sections 10(a)(5) and (1) of M.G.L. c.150E (the Law) by: a) unilaterally changing a revised FMLA policy that allowed members of the Brookline Fire Fighters Association, Local 950, I.A.F.F., AFL-CIO (Union’s) bargaining unit to use accrued sick leave for bonding time after the birth or adoption of a child; and b) repudiating a December 12, 2019 oral agreement with the Union when it failed to adhere to the revised FMLA Policy. The Hearing Officer found that the City violated the Law in the manner alleged.
MUP-19-7681 HEARING OFFICER DECISION September 27, 2022 City of Boston and Boston Public Library Professional Staff, MUP-19-7681,Hearing Officer Decision. The issue in this case was whether the city of Boston (City) violated Section 10(a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law). The Hearing Officer held that the City violated the Law by: 1) failing and refusing to bargain in good faith by refusing to bargain upon demand with the Boston Public Library Professional Staff Association (Union) over the impacts of the renovation project at the Chinatown Trade Center on the bargaining unit members’ (unit members) terms and conditions of employment; and 2) closing the Chinatown Boston Public Library branch without providing the Union with prior notice and an opportunity to bargain to resolution or impasse over the impacts of the Chinatown branch closure on unit members’ terms and conditions of employment.
MUP-20-7998 AND MUP-20-8280 HEARING OFFICER DECISION September 26, 2022 City of New Bedford and International Association of Firefighters, Local 841, MUP-20-7998 and MUP-20-8280, Hearing Officer Decision. The issue in this case is whether the City of New Bedford (City) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of G.L. c. 150E (the Law) by unilaterally transferring the bargaining unit duty of responding to emergency, “priority 1” medical calls to non-unit personnel in March and October of 2020. The hearing officer found that the City violated the Law when, in March of 2020, it transferred to non-unit personnel the duty of responding to priority 1 calls involving cardiac care to persons under 60 years old, public intoxication, and suicide attempts. The hearing officer also found that the City violated the Law when, in October of 2020, it transferred the duty of responding to priority 1 calls involving cardiac care to persons under 50 years of age, allergic reactions not involving asthma attacks or anaphylaxis, pregnancy not involving active childbirth, non-severe trauma, and mutual aid. However, because the Union failed to demonstrate a calculated displacement and an ascertainable percentage of certain other priority 1 calls not dispatched to bargaining unit members in March and October of 2020, the hearing officer found that the City did not violate the Law, as alleged, when it transferred to non-unit personnel the duty of responding to priority 1 calls involving trash fires, motor vehicle accidents with minor injuries, requests to gain entry to a building, motor vehicle accidents except those involving known entrapment, burn from fireworks, certain fire alarm activations, smoke in the building/area, explosions, and overdoses.
SUP-20-7917 CERB DECISION September 22, 2022 Commonwealth of Massachusetts and National Association of Government Employees, SUP-20-7917, CERB Decision. The CERB affirmed a Hearing Officer’s decision holding that the Commonwealth of Massachusetts, acting through the Massachusetts Emergency Management Agency (MEMA), violated Section 10(a)(5) of the Law when it transferred eight public information duties formerly performed by NAGE members outside of the bargaining unit without giving NAGE notice and an opportunity to bargain over the transfer. Rejecting all but one of the Commonwealth’s factual challenges, the CERB found that the record supported the Hearing Officer’s conclusion that bargaining unit members had exclusively performed the transferred duties. The CERB found no merit to the Commonwealth’s arguments that the Civil Defense Act and/or the CBA’s management rights clause permitted it to transfer bargaining unit work without first giving NAGE notice and an opportunity to bargain. Finally, the CERB upheld the Hearing Officer’s make-whole remedy because the record sufficiently demonstrated that the affected bargaining unit member had suffered financial harm as a result of the transfer of bargaining unit work that he previously performed on an overtime basis.
ARB-21-8534 ARBITRATION AWARD September 16, 2022 Worcester Housing Authority and AFSCME, Council 93, ARB-21-8534, Arbitration Award. The issue in this case is: Is the grievance procedurally arbitrable? If so, did the Worcester Housing Authority have just cause to issue a two-day suspension to Paul Mathieson? If not, what shall be the remedy? The arbitrator found that the grievance was not filed within the timelines of the collective bargaining agreement and as such was not procedurally arbitrable.
ARB-21-8533 ARBITRATION AWARD September 16, 2022 Worcester Housing Authority and AFSCME, Council 93, ARB-21-8533, Arbitration Award. The issue in this case is: Is the grievance procedurally arbitrable? If so, did the Worcester Housing Authority have just cause to issue a one-day suspension to Jessica Santiago? If not, what shall be the remedy? The arbitrator found that the grievance was not filed within the timelines of the collective bargaining agreement and as such was not procedurally arbitrable.
MUP-19-7227, MUP-19-7313 AND MUP-19-7361 HEARING OFFICER DECISION September 6, 2022 Town of Chelmsford and New England Police Benevolent Association, Local 20, MUP-19-7227, MUP-19-7313 and MUP-19-7361, Hearing Officer Decision. In this case, the Hearing Officer decided that the Town of Chelmsford (Town) violated Section 10(a)(5) and 10(a)(6), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) when Town Counsel engaged in ex-parte communications with a Joint Labor Management Committee Member serving on a tripartite arbitration panel during the panel’s deliberation period, drafted a dissenting opinion on behalf of the Committee Member that was included in the Arbitration Award, and by misleading the Town Finance Committee and Town Meeting when the Town submitted a request to fund the Arbitration Award without disclosing the Award had been influenced by the Town’s misconduct. The Hearing Officer also determined that the Town violated Section 10(a)(5), and derivatively, Section 10(a)(1) of the Law by failing to provide the New England Police Benevolent Association, Local 20 (Union) with Board of Selectmen executive session meeting minutes from several years prior that were relevant and reasonably necessary for the Union to assess the merits of a grievance or unfair labor practice charge.
CAS-22-9370 CERB DECISION September 1, 2022 Board of Higher Education and AFSCME, Council 93, Local 1067, CAS-22-9370, CERB Decision. The parties filed stipulations in support of a joint CAS petition seeking to transfer the job titles of Communication Dispatcher I and II from a subunit of clerical and technical employees (Unit I) to a subunit of maintenance/custodial and security employees (Unit II). Finding that the stipulations did not appear to conflict with CERB policy or precedent, the CERB adopted those stipulations and ordered that the Communication Dispatchers titles be transferred from Unit I to Unit II.
August 2022
ARB-21-8641 ARBITRATION AWARD August 23, 2022 City of Lowell and AFSCME, Council 93, AFL-CIO, ARB-21-8641, Arbitration Award. The issue in this case is: Did the City of Lowell have just cause to suspend Therese Cooper for a period of ninety days in light of her involvement in the events that took place on June 23, 2020? If not, what shall be the remedy? The arbitrator found that the City did not have just cause to suspend Therese Cooper for ninety days. The City did have just cause to suspend Therese Cooper for fifteen workdays days. The City was ordered to make Cooper whole for all losses above the level of a fifteen-workday suspension.
MUPL-19-7698 & MUPL-19-7699 HEARING OFFICER DECISION August 19, 2022 City of Malden, Malden Police Patrolmen's Association and Malden Police Superior Officers Association, MUPL-19-7698 & MUPL-19-7699, Hearing Officer Decision. The Malden Police Patrolmen’s Association and the Malden Police Superior Officers Association did not violate Sections 10(b)(1) and 10(b)(2) by failing to provide documentary information that the City of Malden requested regarding the Police Detail Board.
MUP-19-7730 & MUP-19-7736 CERB DECISION August 16, 2022 Andover School Committee and Andover Education Association, MUP-19-7730 & MUP-19-7736, CERB Decision. After a hearing officer held that the principal interfered with, coerced, and restrained employees in the exercise of their Section 2 rights when she expressed displeasure at and criticized employees for discussing concerns about her, the issue on appeal before the CERB was whether the Andover School Committee (School Committee) also independently violated Section 10(a)(1) of the Law when, shortly after the principal’s statements, during an investigation into whether six bargaining unit members had created a hostile work environment by making derogatory, demeaning and discriminatory remarks about administrators, staff members and students, the investigator instructed employees not to discuss the investigation with anyone other than their union representative. The CERB applied the traditional balancing test it uses to analyze the lawfulness of employer’s rules that interfere with Section 2 activities to the facts of the case. It concluded that where the confidentiality instruction was not narrowly tailored to address the employer’s legitimate concerns in avoiding witness collaboration and retaliation, those concerns did not outweigh the employees’ rights to engage in protected Section 2 activity, including discussing workplace concerns caused by administrators’ conduct and the investigation itself. The CERB therefore reversed this aspect of the Hearing Officer’s decision and held the School Committee’s confidentiality instruction independently violated Section 10(a)(1).
July 2022
SI-22-9294 CERB FINAL ORDER July 28, 2022 Brookline Educators Union and Jessica Wender-Shubow, SI-22-9294, CERB Final Order. In the aftermath of the Union’s unlawful one-day strike on May 16, 2022, the CERB issued a Stipulated Final Order in which the BEU agreed to post and distribute a notice to its members in lieu of having to participate in compliance proceedings or further enforcement proceedings in Superior Court.
MCR-22-9034 CERB RULING July 28, 2022 Town of Palmer, United Public Service Employees Union, Local 424M and United Food and Commercial Workers, Local 1459, MCR-22-9034, CERB Ruling. The UFCW, which represents a bargaining unit of employees in the Town of Palmer, including employees who work at the Town’s Wastewater Treatment Facility, filed a motion to have the prohibited practice charge in Case No. MUP-22-9152 block further processing of a representation petition filed by a rival union. A DLR Investigator issued a complaint in MUP-22-9152 that alleged, among other things, that the Town limited the UFCW’s access to bargaining unit members, verbally objected to the representative’s presence in the Wastewater Treatment Facility and changed its procedure for contacting employees in violation of Section 10(a)(1) and 10(a)(5) of the Law. The CERB found that because the alleged conduct occurred close in time to when the UFCW intervened in the representation petition, affected the entire bargaining unit and demonstrated a bias against the UFCW, such conduct could reasonably tend to impair employees’ freedom to choose a representative. The CERB therefore granted the blocking motion and placed the petition in inactive status.
MUP-20-8232 HEARING OFFICER RULING July 8, 2022 City of Boston and Boston Police Superior Officers Federation, MUP-20-8232, Hearing Officer Ruling. The issue before the Hearing Officer was whether to allow the Respondent’s motion to defer the prohibited practice complaint to an arbitrator’s award and to dismiss the case. The Hearing Officer denied the motion because the arbitrator’s award did not dispose of substantially identical issues that were present in the complaint.
ARB-21-8644 ARBITRATION AWARD July 6, 2022 City of Lowell and AFSCME, Council 93, AFL-CIO, ARB-21-8644, Arbitration Award. The issue in this case is: Did the City of Lowell have just cause to suspend Jacqueline Fernandez for sixty days? If not, what shall be the remedy? The arbitrator found that the City did not have just cause to suspend Jacqueline Fernandez for sixty days. The City did have just cause to suspend Jacqueline Fernandez for five days. The City was ordered to make Fernandez whole for all losses above the level of a five-day suspension.
MCR-21-8931 CERB DECISION & DIRECTION OF ELECTION July 5, 2022 Medford School Committee and Teamsters, Local 25, MCR-21-8931, CERB Decision and Direction of Election. Where the CERB found that there was a community of interest between the three different job groups that comprised a longstanding bargaining unit of school administrators, the CERB ordered an election in the single unit instead of the three separate units that the School Committee sought. Where there was no evidence of conflicts between the three groups, the CERB saw no basis to deviate from its well-established policy of ordering elections in the largest practicable bargaining unit within which employees share a community of interest.
June 2022
SUP-20-7856 & SUP-20-7945 HEARING OFFICER DECISION June 29, 2022 Commonwealth of Massachusetts and National Association of Government Employees, Local 207, SUP-20-7856 & SUP-20-7945, Hearing Officer Decision. The issues in this case are whether the Commonwealth of Massachusetts, Division of Banks (DOB) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of G.L. c. 150E (the Law) by unilaterally changing its calculation of mileage reimbursement for bank examiners based on the “lesser” rule and the “shortest distance” rule, and by repudiating Article 11 of the collective bargaining agreement (CBA) as it pertained to the lesser rule and shortest distance rule. The hearing officer found that the Employer did not violate the Law as it pertained to the lesser rule based on the explicit language of Article 11 of the CBA which permitted the change, and based on prior precedent established by the Commonwealth Employment Relations Board which held that a past employment practice cannot overcome explicit contract language. However, the hearing officer found that the Employer violated the Law as it pertained to the shortest distance rule because the prior practice had existed for over 40 years and the language of Article 11 of the CBA was silent on that issue.
MUP-17-6374 HEARING OFFICER DECISION June 29, 2022 Chelmsford School Committee and Chelmsford Federation of Teachers, AFT Local 3569, MUP-17-6374, Hearing Officer Decision. In this case, the Hearing Officer decided the Chelmsford School Committee (School Committee) independently violated Section 10(a)(1) of the Law when it: requested police escort a union representative and union president from the building, Jay Lang (Lang), School Superintendent criticized a bargaining unit member’s engagement in protected, concerted activities on several occasions, the School Committee decided to preclude a union representative from attending investigatory interviews and another union representative from communicating with unit members about an investigation, the School Committee engaged in coercive questioning of an employee in an investigative interview, School Committee member made threatening comments in his Facebook post, and Harrington School principal criticized a union member’s engagement in protected activity. Additionally, the Hearing Officer found that the School Committee violated Section 10(a)(3) of the Law, and derivatively violated Section 10(a)(1) of the Law when it issued Jennifer Salmon a written warning and placed her on administrative leave in retaliation for her protected, concerted activity.
MUP-19-7133 CERB RULING June 10, 2022 City of Everett and Everett Firefighters IAFF, Local 143, MUP-19-7133, CERB Ruling. The Everett Firefighters Local 143 (Union) filed an amended petition for enforcement of an order that the CERB issued when it held that the City of Everett had unlawfully decided to use an Assessment Center as the sole basis for scoring and ranking candidates on an eligible list for promotion to Fire Chief without first bargaining to impasse or resolution with the Union over the impacts of that decision and the means and methods of implementing that decision. The Union asserted that the City had failed to comply with the CERB’s order in four ways. The CERB partly granted and partly denied the petition. It found that the City failed to comply with the part of the Order that required the City to rescind the eligibility list that resulted from the Assessment Center when despite clear language in the decision stating otherwise. the City insisted that it was not required to rescind the promotion that resulted from the eligibility list. The CERB also found that the City failed to comply with its order to post the notice in places where all bargaining unit members usually congregate because the City only posted the notice at City Hall. The CERB denied the petition with respect to the Union’s assertion that the City had failed to bargain in good faith over a future assessment center for lack of sufficient evidence. The CERB also clarified that restoring the status quo in this case meant placing all bargaining unit members who chose to participate in a second Assessment Center in the same position they would have been in had the first Assessment Center never occurred and not, as the Union contended, by limiting applicants for a second Assessment Center only to those who would have been qualified for the first one.
May 2022
ARB-21-8570 ARBITRATION AWARD May 19, 2022 Grafton School District and Grafton Teachers Association, ARB-21-8570, Arbitration Award. The issue in this case is: Did the Grafton School District have just cause to issue the reprimand dated March 3, 2021 to Michael Dowdle? If not, what shall be the remedy? The arbitrator found that the District failed to meet its burden to prove by a preponderance of the evidence that it had just cause to issue Dowdle a reprimand.
SUP-20-8334 CERB RULING May 13, 2022 Commonwealth of Massachusetts and Alliance, AFSCME-SEIU, Local 509, SUP-20-8334, CERB Ruling. The CERB partially granted and partially denied a union’s interlocutory appeal of a hearing officer’s ruling declining to amend two paragraphs in a complaint of prohibited practice. Although the CERB found that the requested amendments fell within the scope of the original complaint, the CERB concluded that the hearing officer did not abuse her discretion by denying the motion with respect to one of the paragraphs because the union failed to present any evidence that the exhibits it relied upon to support its motion were part of the record before her. The CERB reversed the hearing officer’s denial of the motion to amend the other paragraph where the supporting document had already been entered as a joint hearing exhibit when the union made an oral motion to amend on the first day of hearing. The CERB also considered that the union, but not the employer, who still had time to prepare for a second day of hearing, would be prejudiced by failing to amend this aspect of the complaint.
ARB-21-8857 ARBITRATION AWARD May 13, 2022 City of Quincy and Massachusetts Laborers District Council, ARB-21-8857, Arbitration Award. The issue in this case is: Did the City violate Article 28 of the Agreement when it denied the grievant’s request for compensation for her appearance as a witness in Quincy District Court? If so, what shall be the remedy? The arbitrator found that the City did not violate the clear and unambiguous language of the collective bargaining agreement when it denied the grievant’s request. The grievance was denied.
SI-22-9294 CERB RULING May 12, 2022 Brookline School Committee and Brookline Educators Union, SI-22-9294, CERB Ruling. After a strike investigation, the CERB found that a strike was about to occur and that the Union, its officers and the Union president, acting in her capacity as Union president violated Section 9A(a) and (b) of the Law by inducing, encouraging and condoning the action in violation of Section 9A of the Law.
ARB-21-8855 ARBITRATION AWARD May 9, 2022 Town of Dennis and Massachusetts Laborers District Council, ARB-21-8855, Arbitration Award. The issue in this arbitration is: Is the grievance procedurally arbitrable? The arbitrator found that the grievance was deficient and lacked the contractually required information. This deficiency made the grievance ineligible for arbitration under the express provisions of the collective bargaining agreement.
April 2022
ARB-20-8374 ARBITRATION AWARD April 12, 2022 Town of Hull and Hull Firefighters, Local 1657, ARB-20-8374, Arbitration Award. The issues in this case are: Is the grievance substantively arbitrable? If so, did the Town violate the collective bargaining agreement when it removed the grievant from §111F benefits in September 2020? If so, what shall be the remedy? The arbitrator found that the grievance was substantively arbitrable based on the incorporation of Chapter 41 Section 111F into the collective bargaining agreement, but the Town did not violate the collective bargaining agreement when it removed the grievant from §111F benefits in September 2020. The grievance was denied.
MCR-21-8734 CERB DECISION IN FIRST INSTANCE April 1, 2022 Town of Middleborough and New England Police Benevolent Association, MCR-21-8734, CERB Decision in First Instance. The CERB dismissed a petition filed by the NEPBA seeking to represent civilian dispatchers and a dispatcher/E-911 coordinator who were part of a Town-wide bargaining unit in a separate bargaining unit. The CERB rejected the NEPBA’s argument that the dispatchers retained separate bargaining unit status based solely on a 1988 certification. The CERB therefore applied its two-prong severance test and determined that although the petitioned-for employees constituted a functionally distinct appropriate unit, the NEPBA had failed to show that negotiating concerns resulting from those differences had caused or were likely to cause conflicts and divisions within the bargaining unit.
March 2022
SCR-21-8964 CERB DECISION IN FIRST INSTANCE March 30, 2022 Mental Health Legal Advisors Committee and OPEIU, Local 6, SCR-21-8964, CERB Decision in First Instance. The CERB held that the Mental Health Legal Advisors Committee (Committee) an entity within the judicial branch whose members are appointed and may be removed by the Supreme Judicial Court, and which provides legal and other services to individuals with mental health challenges, was not an employer within the meaning of Section 1 of the Law, and dismissed a petition seeking to represent its employees for lack of jurisdiction.
MUP-18-6943 CERB DECISION March 28, 2022 Town of Scituate and Scituate Firefighters Union, Local 1464, IAFF, MUP-18-6943, CERB Decision. The CERB affirmed a Hearing Officer’s decision holding that the Town violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by reducing the minimum number of firefighters responding to an alarm from one of the Town’s fire stations without giving the Scituate Firefighters Union (Union) prior notice and an opportunity to bargain to resolution or impasse over the decision and the impacts of the decision on bargaining unit members’ terms and conditions of employment.
ARB-21-8395 ARBITRATION AWARD March 17, 2022 Massachusetts Development Finance Agency and Devens Professional Firefighters, Local S-19, IAFF, ARB-21-8395, Arbitration Award. The issue in this case is: Did the employer violate the collective bargaining agreement by not allowing a firefighter to accrue more than 48 hours of compensatory time in a fiscal year? If so, what shall be the remedy? The arbitrator found that the MDFA did not violate the collective bargaining agreement when it did not allow a firefighter to accrue more than 48 hours of compensatory time in a fiscal year. The grievance was denied.
ARB-20-8378 ARBITRATION AWARD March 3, 2022 Town of Longmeadow and Longmeadow Association of Municipal Employees, ARB-20-8378, Arbitration Award. The issues in this case are: Is the grievance procedurally arbitrable? If so, whether the Town violated the collective bargaining agreement when it invoiced and collected from Mr. Von Hollander the full amount of his health insurance premium cost during an unpaid leave of absence for medical reasons that followed the expiration of his FMLA leave in 2020? If so, what shall be the remedy? The arbitrator found that the grievance was not filed within the timelines of the collective bargaining agreement and as such was not procedurally arbitrable.
February 2022
MUP-20-7800, 7807, 7808, 7809 HEARING OFFICER DECISION February 16, 2022 City of Westfield, Westfield Firefighters Local 1111 IAFF, Rebecca Boutin, David Kennedy and Kyle Miltimore, MUP-20-7800, 7807, 7808, 7809, Hearing Officer Decision. The issue in this case was whether the City of Westfield (City) violated Section 10(a)(3), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by terminating Rebecca Boutin, David Kennedy, and Kyle Miltimore. The Hearing Officer held that the City did violate the Law.
SUP-20-7851 HEARING OFFICER DECISION February 15, 2022 Commonwealth of Massachusetts and Alliance AFSCME-SEIU, Local 509, SUP-20-7851, Hearing Officer Decision. The issue was whether the Commonwealth violated the Law by changing the procedures for new employee orientation without giving the union prior notice and an opportunity to bargain to resolution or impasse. The hearing officer found that the Commonwealth did not violate the Law because the Union did not carry its burden of proving that the Commonwealth changed a practice regarding new employee orientation for certain Department of Youth Services employees. The hearing officer additionally declined to draw an adverse inference against the Commonwealth for its failure to call an announced witness because he concluded that the Commonwealth was within its discretion not to call the witness, and drawing an adverse inference based upon the record evidence would have shifted the burden of proof in the matter from the union to the Commonwealth. He dismissed the Complaint.
MCR-21-8905 CERB DECISION February 14, 2022 City of Springfield, NAGE and UPSEU, MCR-21-8905, CERB Decision. NAGE filed a petition seeking to represent certain Code Enforcement Inspectors who were already members of a city-wide bargaining unit represented by UPSEU. After hearing, the CERB concluded that NAGE had failed to meet the well-established severance standard, i.e., that the petitioned-for employees constitute a functionally distinct appropriate unit with special interests sufficiently distinguishable from those of the other employees in the UPSEU unit, and that serious divisions and conflicts exist within the UPSEU unit, and dismissed the petition.
ARB-20-8251 ARBITRATION AWARD February 14, 2022 Town of Auburn and Auburn Patrolmen's Union, MCOP, Local 388A, ARB-20-8251, Arbitration Award. The issue in this case was: Did the Town violate Article 4 of the collective bargaining agreement when it failed to pay officers the holiday rate of pay when the officers were working overtime shifts on a holiday? If so, what shall be the remedy? The arbitrator found that The Town did not violate the collective bargaining agreement when it failed to pay officers the holiday rate of pay when the officers were working overtime shifts on a holiday. The grievance was denied.
SUP-21-8836 CERB DECISION February 10, 2022 Commonwealth of Massachusetts and State Police Association of Massachusetts, SUP-21-8836, CERB Decision. The CERB affirmed the dismissal of a prohibited practice charge filed by the State Police of Massachusetts (SPAM) alleging that the Commonwealth of Massachusetts had unlawfully implemented a policy mandating, with limited exceptions, that all Executive Department employees be fully vaccinated against COVID-19 by October 17, 2021 without bargaining with SPAM to resolution or impasse over the impacts of that decision on bargaining unit members’ terms and conditions of employment. The CERB agreed with the Investigator that the Commonwealth had established that exigent circumstances beyond its control pertaining to the ongoing COVID-19 pandemic justified the Commonwealth imposing an October 17th deadline to complete bargaining and to continue bargaining in good faith over the impacts of that policy with SPAM after implementation.
UPL-18-6690 HEARING OFFICER DECISION February 9, 2022 David Turley and International Longshoremen's Association, Local 809, UPL-18-6690, Hearing Officer Decision. The four issues in this case are whether the International Longshoremen’s Association, Local 809 (Union) violated Section 4A(4) of G.L. c. 150A (the Law) by breaching its duty of fair representation to David C. Turley (Turley) when Philip McGee (McGee): (1) used his position as Union President to bid ahead of Turley in February of 2018; (2) withdrew Turley’s grievance on or around February 13, 2018; (3) held a Union meeting and amended its bylaws to place McGee permanently above Turley on the seniority list; and, (4) withdrew Turley’s May of 2018 grievance. The hearing officer found that the Union did not violate the Law when McGee bid ahead of Turley in February of 2018 because McGee reasonably believed that he had more seniority than Turley based on his earlier date of hire with the Employer. However, the hearing officer found that the Union breached its duty of fair representation by withdrawing Turley’s grievances in February and May of 2018 because the withdrawals were unlawfully motivated by McGee’s personal interest in the outcome of those grievances. The hearing officer also found that while a union’s right to regulate its bylaws is generally an internal union matter that falls outside the scope of the Law, the Union’s decision to amend its bylaws to include new seniority language removed that matter from the Union’s legitimate domain because it violated the Policy of the Law by restricting Turley’s statutorily protected right to file grievances.
MCR-20-8361 CERB DECISION February 8, 2022 Town of Boxford and Boxford Professional Firefighters, Local 5305, IAFF, MCR-20-8361, CERB Decision. The issue before the Commonwealth Employment Relations Board (CERB) was what formula to use to determine which, if any, call firefighters in the Town of Boxford (Town) should be included in a proposed bargaining unit of all full-time and regular part-time firefighters. The CERB applied the formula that it used in Town of Monson, 42 MLC 75, MCR-14-3997 (August 28, 2015). Under that formula, call firefighters who had, in the fiscal year preceding the date of this decision, worked at least 33% of the hours that full-time employees are regularly scheduled to work, i.e., in Boxford, 686 of 2080 hours, by performing work for which the Fire Department pays call firefighters at their hourly rate, including responding to alarms, providing shift coverage for full-time firefighters, attending trainings and working details, were deemed regular, part-time employees.
January 2022
ARB-20-8358 ARBITRATION AWARD January 24, 2022 Town of Sheffield and Sheffield Police Officer's Association, Local 474, MassCOP, ARB-20-8358, Arbitration Award. The issue in this case was: Did the Town violate Article XV of the parties’ collective bargaining agreement when it denied the grievant injured on-duty benefits in accordance with Massachusetts General Laws Chapter 41, §111F from July 2, 2020, to the present? If so, what shall be the remedy? The arbitrator found that the Town’s denial of injured on-duty benefits was arbitrary, capricious, and unreasonable in violation of Article XV of the parties’ collective bargaining agreement. The Town was ordered to make the grievant whole for his losses.
SUP-20-7917 HEARING OFFICER DECISION January 24, 2022 Commonwealth of Massachusetts (MEMA) and National Association of Government Employees, SUP-20-7917, Hearing Officer Decision. A hearing officer determined that the Commonwealth of Massachusetts, Massachusetts Emergency Management Agency (MEMA) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by transferring certain National Association of Government Employees (NAGE) work without providing NAGE with notice and an opportunity to bargain to resolution or impasse. More specifically, the hearing officer determined that MEMA did not unlawfully transfer the duty of teaching a public information officer (PIO) course because both bargaining unit and non-bargaining unit employees had taught that course previously, but MEMA did unlawfully transfer the following NAGE duties to non-unit personnel: serving as the PIO when a State Emergency Operations Center was activated, responding to after-hours media calls, writing press releases, updating MEMA’s website, posting on social media after hours, leading preparedness campaigns, serving as the primary contact for other PIOs, and coordinating public information with outside organizations for large scale events.
CAS-19-7105 CERB DECISION January 21, 2022 City of Chelsea, SEIU Local 888 and USW Local 9427, CAS-19-7105, CERB Decision. The CERB dismissed a unit clarification petition filed by SEIU, Local 888 seeking to accrete three newly-created titles that the City of Chelsea had placed in a bargaining unit of administrative employees represented by the United Steelworkers, Local 9427 (USW). The CERB held that all three titles held a greater community of interest with the USW’s unit. Two of the three employees were performing work nearly identical to that performed by existing USW bargaining unit positions and the third position’s educational requirements and advanced analysis rendered it more similar to USW positions than to SEIU’s.
MUP-20-7869 HEARING OFFICER DECISION January 21, 2022 City of Fall River and AFSCME Council 93, Local 3177, MUP-20-7869, Hearing Officer Decision. The case involves an allegation that the City of Fall River (City) violated Section 10(a)(5), and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by unilaterally changing a past practice of granting paid leave to certain members of the American Federation of State, County and Municipal Employees, Council 93, Local 3177, AFL-CIO’s bargaining unit to conduct internal union elections. The Hearing Officer has found that the City did not violate the Law in the manner alleged.
December 2021
MUP-19-7198 HEARING OFFICER DECISION December 16, 2021 City of Marlborough and Marlborough Municipal Employees Association, MUP-19-7198, Hearing Officer Decision. The issue in this case is whether the City of Marlborough (City) 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 Marlborough Municipal Employees Association (Association) by its actions in unilaterally implementing new bereavement leave eligibility requirements. The Hearing Officer found that in denying Jennifer DiBuono’s (DiBuono’s) December 11, 2018, bereavement leave request for the death of her father, the City violated Section 10(a)(5), and derivatively, Section 10(a)(1) of the Law by unilaterally adding a step in the bereavement leave approval process considering the specific nature of the relationship between an employee and the deceased person that the employee identified as their parent, and limiting eligibility to biological parents.
ARB-20-8117 ARBITRATION AWARD December 16, 2021 City of Worcester and NAGE, Local 495, ARB-20-8117, Arbitration Award. The issue in this case is: Did the City violate the collective bargaining agreement when it declined to accept the grievant’s bid to go from a Senior Regional Dispatcher on the 11 p.m. to 7 a.m. shift to a Regional Dispatcher III on the 7 a.m. to 3 p.m. shift. If so, what shall be the remedy? The arbitrator found that the City’s denial of the grievant’s bid was not a violation of the collective bargaining agreement. The grievance was denied.
ARB-21-8772 ARBITRATION AWARD December 10, 2021 Town of Swansea and Swansea Superior Officers Association, ARB-21-8772, Arbitration Award. The issues in this case are: Is the grievance arbitrable under the CBA with regard to timeliness? Whether or not the Town violated Article II of the CBA by assigning work (including overtime) to a temporary sergeant that the Union argues is exclusively assigned to members of the bargaining unit? And if so, what shall be the remedy? The arbitrator found that the grievance was timely filed. Further, the arbitrator denied the grievance finding that Article II of the CBA did not preclude the Town from assigning work, including overtime, to a temporary sergeant.
ARB-20-8270 ARBITRATION AWARD December 3, 2021 City of Lowell and Merrimack Valley Employees Association, ARB-20-8270, Arbitration Award. The issue in this case is: Did the City’s termination of Health/Sanitary Code Inspector Lisa Sam on August 24, 2020, violate Article V (Management Rights of Employer) or Article VI, Section 5 (Progressive Discipline) of the Association’s Collective Bargaining Agreement with the City? If so, what shall be the remedy? The arbitrator found that the City did not violate Article V or Article VI, Section 5 of the collective bargaining agreement when it terminated Lisa Sam on August 24, 2020, and the grievance was denied.
MUP-19-7532 HEARING OFFICER DECISION December 3, 2021 City of Boston and S.E.N.A., Local 9158, MUP-19-7532, Hearing Officer Decision. The issue in this case is whether the City of Boston unlawfully transferred SENA bargaining unit duties to an AFSCME bargaining unit member when it created, posted and filled the position of Parking Meter Technology Specialist. The evidence demonstrated that there was no transfer of work regarding the budget preparation and management duties or the process of shipping certain parking meters. Further, there was no calculated displacement of unit work or adverse unit impact involving the supervisory duties at issue. Consequently, the City did not violate the Law as alleged.
November 2021
SUP-19-7599 CERB RULING November 22, 2021 Commonwealth of Massachusetts and NAGE, SUP-19-7599, CERB Ruling. After the employer filed an assented-to motion for voluntary dismissal of its appeal with the Appeals Court, the parties jointly filed a motion to vacate the CERB’s decision on grounds that they had reached agreement as to all underlying issues pending resolution of he appeal. The CERB denied the motion to vacate. The CERB held that the advantages of preserving the CERB’s decision as guidance to future litigants outweighed any perceived disadvantages to the parties to this case or to other matters pending before the DLR that raised similar legal issues.
MUP-20-7911 HEARING OFFICER DECISION November 18, 2021 Town of Northborough and Massachusetts Coalition of Police, Local 165, MUP-20-7911, Hearing Officer Decision. The issues in this case are whether the Town violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it: 1) ordered a bargaining unit member to participate in a fitness for duty evaluation without providing the Union with prior notice and an opportunity to bargain to resolution or impasse over that decision and its impacts; 2) refused to bargain with the Union over the criteria and procedures for fitness for duty evaluations; and 3) failed to timely provide the Union with relevant information that was reasonably necessary for the Union to execute its duty as the collective bargaining representative. The Hearing Officer found that while the Town had requested fitness for duty evaluations since 2010, the Union never knew about the requests prior to September 6, 2019. Thus, the Hearing Officer concluded that there was no binding practice of requesting officer evaluations. She also concluded that the Town had failed to bargain in good faith with the Union over ordering the September 2019 evaluation and over the criteria and procedure for evaluations because it failed to provide the Union with prior notice and an opportunity to bargain to resolution or impasse over those decisions and its impacts. The Hearing Officer also found that the Town had failed to timely provide the Union with relevant and reasonably necessary information related to the evaluation because the Union had to first file the instant charge to force the Town to provide the requested information. Thus, she concluded that the Town’s delay was unreasonable because it diminished the Union’s ability to fulfill its role as the exclusive bargaining representative.
MUPL-19-7565 CERB DECISION November 15, 2021 Town of Hudson and International Association of Firefighters, Local 1713, MUPL-19-7565, CERB Decision. The CERB upheld a hearing officer decision holding that the Union violated its duty to bargain in good faith in violation of Section 10(b)(2) and derivatively, Section 10(b)(1) of the Law when it placed an article on a warrant in a Special Town Meeting to increase firefighter staffing from the six personnel per shift set forth in Article 30 of the parties’ CBA, to seven personnel per shift. In so holding, the CERB rejected the Union’s contention that it could bypass of the Town’s bargaining representatives because minimum staffing is not a mandatory subject of bargaining. The CERB reasoned that just as employer must abide by the terms of its agreement by seeking funding for the staffing provisions for each year the contract is in effect, a union is obligated to live by the terms of its agreement. The CERB thus held that the Union its duty to bargain in good faith when sought to alter contractual staffing level by directly petitioning Town Meeting, instead of through collective bargaining.
MUP-18-6946 and MUP-19-7379 HEARING OFFICER DECISION November 2, 2021 City of Newton and Newton Police Superior Officers Association, MassCOP, Local 401, MUP-18-6946 and MUP-19-7379, Hearing Officer Decision. The issue in this case was whether the City of Newton (City) violated Section 10(a)(3), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by: 1) transferring Sergeant John Babcock (Babcock) from the Traffic Bureau to the Patrol Division; 2) denying Babcock’s request to attend a specialized Search Warrant training course; and 3) not selecting Babcock for the Sergeant Specialist position and awarding the position to Sergeant Dan Valente (Valente). The Hearing Officer held the City did not violate the Law.
October 2021
ARB-19-7378 ARBITRATION AWARD October 28, 2021 Town of Athol and International Union of Public Employees, Local 6, ARB-19-7378, Arbitration Award. The issue in this case is: Did the Town violate the parties’ collective bargaining agreement as described in the May 2019 grievance when it failed to promote the grievant to the position of Working Foreman? If so, what shall be the remedy? The arbitrator found that the Union did not meet its burden to prove that the grievant was more qualified than the successful applicant. The grievance was denied.
ARB-20-8068 ARBITRATION AWARD October 8, 2021 Town of Wareham and Massachusetts Laborers' District Council, ARB-20-8068, Arbitration Award. The issue was whether the Town discharged the grievant with just cause. The Town discharged the grievant for violating its sexual harassment policy. The Town alleged that the grievant violated the policy by sending a sexually offensive photograph, and by his ongoing conduct prior to the sending of the photograph. The arbitrator concluded that the Town proved that the grievant sent a sexually suggestive photograph, but it did not prove the remainder of its allegations. The sending of the photograph was not summarily dischargeable. Accordingly, the arbitrator converted the grievant’s discharge to a 30-day suspension and ordered the Town to make him whole for all lost wages and benefits.
MUP-20-7867 HEARING OFFICER DECISION October 8, 2021 Belmont School Committee and Belmont Education Association, MUP-20-7867, Hearing Officer Decision. The issue in this case is whether the Belmont School Committee violated Section 10(a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E by refusing to bargain with the Belmont Education Association when the Union included silent representatives from outside the bargaining unit of its negotiation team. Based on the record, and finding there was no ambiguity about the status or the role of the silent representatives as duly designated members of the Belmont Education Association’s bargaining team, the Hearing Officer found that the School Committee violated the Law when it refused to bargain due to the presence of a non-unit silent representative on two occasions.
September 2021
MUPL-16-5167 CERB RULING September 30, 2021 Ann Marie O'Keeffe and Boston Teachers Union, Local 66, MUPL-16-5167, CERB Ruling. The DLR cancelled a compliance hearing that had been scheduled at both the Union’s and the Charging Party’s request after the Charging Party withdrew her compliance request. The DLR reasoned that once the Charging Party withdrew her request for a compliance hearing, she had effectively acquiesced to the amount that the Union had already paid to her and there was no longer a genuine dispute as to compliance that would warrant a hearing. The Union appealed the cancellation, claiming that it had overpaid the Charging Party and that the DLR’s decision to cancel the hearing based on the Charging Party’s unilateral request violated its due process rights and its rights to a final declaration of the parties rights under the CERB’s order. The CERB denied the appeal. Under the DLR’s regulations, the decision to hold a compliance hearing lies with the DLR’s discretion and serves as a means of determining whether the DLR should seek judicial enforcement of a final agency order pursuant to M.G.L. c. 150E, Section 11. The CERB agreed with the DLR that there was no longer a genuine dispute as to compliance with the CERB’s order and thus, closing the case with prejudice to the Charging Party reopening it provided the Union with the finality it sought.
MUP-19-7730 and MUP-19-7736 HEARING OFFICER DECISION September 27, 2021 Andover School Committee and Andover Education Association, MUP-19-7730 and MUP-19-7736, Hearing Officer Decision. The issues in this case are whether the Andover School Committee 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 creating an unlawful impression of surveillance and surveilling the Andover Education Association’s meetings and an Association rally, instructing bargaining unit members during a workplace investigation not to discuss the content of interviews except with their Association representatives, and interrogating bargaining unit members during a workplace investigation; and whether the School Committee violated Section 10(a)(3), and derivatively Section 10(a)(1), of the Law by rescinding its decision to remove a letter of reprimand from a bargaining unit member’s personnel file in retaliation for engaging in concerted, protected activity. The Hearing Officer found that the School Committee created an unlawful impression of surveillance in violation of Section 10(a)(1) of the Law when a Principal told bargaining unit members that she knew they were talking about her at their meeting and told a bargaining unit member that she knew the member had said negative things about her at a union meeting. The Hearing Officer further found that the School Committee violated Section 10(a)(3), and derivatively Section 10(a)(1), of the Law when a Principal rescinded her decision to remove a letter of reprimand from a bargaining unit member’s file in retaliation for engaging in concerted, protected activity. The Hearing Officer dismissed the remaining allegations of surveillance as well as the allegation that the School Committee interrogated employees during a workplace investigation and prohibited employees from engaging in mutual aid and protection when it told employees not to discuss the investigation with others except with their Association representative. As a remedy, the Hearing Officer ordered the School Committee cease and desist from interfering with, restraining or coercing employees in the exercise of their Section 2 rights, remove the letter of reprimand from the bargaining unit member’s personnel file, and to post a Notice to Employees.
MUP-19-7408 HEARING OFFICER DECISION September 23, 2021 City of Cambridge and Cambridge Police Patrol Officers Association, MUP-19-7408, Hearing Officer Decision. The issue was whether the City violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by refusing to provide information that was relevant and reasonably necessary to the Union. Specifically, the City refused to provide the Union with a detailed statement of the reasons for transferring and reassigning two police officers from the Criminal Investigation Division to Patrol. The City argued, inter alia, that it did not need to provide the information because the Commissioner’s decision to transfer and assign is a non-delegable decision not subject to collective bargaining. The Hearing Officer disagreed. The parties’ CBA incorporates prohibitions on statutory discrimination that are subject to the grievance procedure. Because the doctrine of non-delegability does not extend to statutory discrimination, the information was relevant and reasonably necessary for the Union to decide whether to pursue a grievance and/or to ensure compliance with the CBA. Because the City did not establish legitimate and substantial concerns about disclosure, or demonstrate that harm would flow from any disclosure, he ordered the City to provide the requested information.
MUP-19-7645 HEARING OFFICER DECISION September 20, 2021 Weymouth School Committee and Weymouth Educators Association, MUP-19-7645, Hearing Officer Decision. The issue in this case is whether the Weymouth School Committee violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E by failing to provide the Weymouth Educators Union with notice and an opportunity to bargain to resolution or impasse over the impacts of the implementation of the Advisory Program at the Abigail Adams Middle School on the workload and job duties of its bargaining unit of paraprofessionals. Based on the entire record, the Hearing Officer found that the School Committee did not violate the Law in the manner alleged.
ARB-20-8363 ARBITRATION AWARD September 13, 2021 City of Lowell and AFSCME, Council 93, Local 1705, ARB-20-8363, Arbitration Award. The issue in this case is: Was there just cause to issue the grievant a three-day suspension? If not, what shall be the remedy? The arbitrator found that the City did not have just cause to issue the grievant a three-day suspension and reduced the discipline to a one-day suspension.
MUP-18-6943 HEARING OFFICER DECISION September 10, 2021 Town of Scituate and Scituate Firefighters Union, Local 1464 IAFF, MUP-18-6943, Hearing Officer Decision. The issue was whether the Town violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by reducing the number of firefighters on an engine when it responded to an alarm without giving the Union notice and an opportunity to bargain to resolution or impasse. The Town redeployed its staff and apparatus, reducing the minimum staffing in response to an alarm to one firefighter on a single engine. Accordingly, the hearing officer held that the Town violated the law. The hearing officer ordered the Town to return to the prior scheme of a minimum of two firefighters responding to an alarm pending bargaining.
ARB-20-8043 ARBITRATION AWARD September 8, 2021 Town of Hopkinton and Massachusetts Laborers' District Council, ARB-20-8043, Arbitration Award. The issue in this case is: Was the Town arbitrary, capricious, or did it abuse its discretion when it terminated the grievant in February of 2020 in violation of Article 6 and Article 7 of the collective bargaining agreement? If so, what shall be the remedy? The arbitrator found that the Town did not act arbitrary or capricious and did not abuse its discretion when it terminated the grievant. The grievance was denied.
August 2021
MUP-19-7133 CERB DECISION August 27, 2021 City of Everett and Everett Firefighters, IAFF, Local 143, MUP-19-7133, CERB Decision. Where all of the potential applicants for promotion to Fire Chief were members of the Union’s bargaining unit, and where participating in an assessment center was the only way that eligible Deputy Chiefs could avail themselves of this promotional opportunity, the CERB reversed a Hearing Officer decision and held that the City violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by failing to bargain in good faith with its firefighters union by implementing a decision to use an assessment center as the sole basis for scoring and ranking candidates on an eligible list for promotion to Fire Chief without bargaining to resolution or impasse with the Union over the impacts of the decision and the means and methods of implementing it. The CERB held that the City could have bargained over such issues as the timing of the assessment center or training sessions and other issues affecting bargaining unit members’ participation in the process without impinging on the City’s managerial prerogatives (subject to Civil Service law and procedure) to select the assessment center, the exercises to be used, the weight given for education or experience, the criteria or standards measured, how the assessment center is scored or who the City ultimately selected based on those considerations.
MUP-19-7746 CERB DECISION August 24, 2021 Medford School Committee and Medford Teachers Association, MUP-19-7746, CERB Decision. The CERB affirmed a Hearing Officer’s decision holding that the employer violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G. L c. 150E when it unilaterally began designating paid sick leave that employees took due to their own medical condition or to care for a family member as federal Family and Medical Leave Act (FMLA) leave that ran concurrently, rather than consecutively, with the employee’s paid sick leave. The employer argued that the FMLA statute and regulations, as interpreted in two Opinion Letters issued by the Wage and Hour Administrator of federal Department of Labor in 2019, justified its unilateral action. The CERB disagreed, finding no clear statutory mandate for the employer’s action, and conflicting DOL, state labor agency and judicial opinions regarding this issue. Given the FMLA’s statutory policy allowing for “greater and “more generous benefits to bargaining unit members, the CERB declined to construe the FMLA as a third-party authority or a narrow statutory mandate that diminished the amount of job-protected leave available to employees without first giving the employees’ exclusive representative an opportunity to bargain over the decision and the impacts of the decision.
MUP-20-7875 HEARING OFFICER DECISION August 9, 2021 City of New Bedford and New Bedford Firefighters, Local 841, MUP-20-7875, Hearing Officer Decision. The case involves allegations that the City of New Bedford (City) a) failed to bargain to resolution or impasse with the New Bedford Fire Fighters, I.A.F.F., AFL-CIO-CLC (Union) over the impacts of the City’s decision to end a practice of rolling blackouts and to decommission fire apparatus Engine 11 on unit members’ workload and safety in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law; b) failed to provide the Union with requested information that was relevant and reasonably necessary to the Union’s role as exclusive bargaining representative in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law; and, c) discriminated against bargaining unit members for engaging in concerted, protected activities by failing to bargain over the impacts of its decision to end the rolling blackouts and to shutdown Engine 11 in violation of Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Law. The Hearing Officer found that the City violated the Law as alleged when it failed to: a) bargain to resolution or impasse with the Union over the impact of the City’s decision to end the rolling blackouts and to decommission Engine 11 on unit members’ workloads; and b) timely notify the Union that the requested documentation did not exist. However, the Hearing Officer dismissed the allegations that the City: a) failed to bargain resolution or impasse with the Union over the impact of the City’s decision to end the rolling blackouts and to decommission Engine 11 on unit members’ safety; and b) discriminated against unit members for engaging in concerted, protected activities.
July 2021
MUPL-19-7314 HEARING OFFICER DECISION July 30, 2021 Melissa C. Pelletier and Attleboro Paraprofessional Association, MUPL-19-7314, Hearing Officer Decision. The issue in this case was whether the Attleboro Paraprofessional Association (Union) violated Section 10 (b)(1) of Massachusetts General Law Chapter 150E (the Law) by 1) holding a meeting for the purpose of voting on a Memorandum of Agreement (MOA) for a successor collective bargaining agreement (CBA) without attaching the revised contract to the MOA or providing a copy to the meeting attendees; and, 2) Union president James Scott (Scott) informing bargaining unit member Melissa Pelletier (Pelletier) at the meeting that there were no other changes to the contract that were not referenced in the MOA. The Union argued that the allegations in this case pertain to the ratification process which is an internal union affair therefore the Commonwealth Employment Relations Board (CERB) lacked jurisdiction in this matter. The Hearing Officer held that the allegations in this case suggested that the Union materially misrepresented changes in the revised contract prior to the ratification vote, and such alleged conduct conflicted with a policy implicit in the Law. As such, the Hearing Officer found that the CERB had jurisdiction over this matter because public interest in prohibiting unions from materially mispresenting the terms of a CBA to the membership during the ratification process outweighs a union’s freedom to regulate its own ratification process. On the merits of the case, the Hearing Officer found that the Union did not materially misrepresent to the membership bargained for terms and conditions of employment during the ratification process. Therefore, the Hearing Officer found that the Union did not violate the Law and dismissed the Complaint.
MUP-20-8310 HEARING OFFICER DECISION July 26, 2021 City of Everett, International Brotherhood of Teamsters Local 25 and New England Police Benevolent Association, MUP-20-8310, Hearing Officer Decision. The City of Everett waived its right to a hearing, thereby admitting to both allegations in the complaint. Given that admission, the Hearing Officer found that the City violated Sections 10(a)(1) and 10(a)(2) of the Law by dominating and interfering with the administration of the exclusive representative when it permitted its agents to encourage bargaining unit employees to petition for a different Union and allowed the challenging union to have unauthorized access to bargaining unit employees in the secure area in order to solicit their support. By these actions, the City also independently interfered with, restrained and coerced its employees in the exercise of their rights guaranteed under Section 2 of the Law.
ARB-19-7303 ARBITRATION AWARD July 19, 2021 City of Worcester and NAGE Local 495, ARB-19-7303, Arbitration Award. The issue in this arbitration is: whether the Streets’ Department policy requiring Collins to provide a doctor’s note for sick leave on October 25 and 26, 2018 violates the collective bargaining agreement? If so, what shall the remedy be? The arbitrator found that the Employer did not violate the collective bargaining agreement when it required Collins to provide a doctor’s note for sick leave as the rule is not abridged by the collective bargaining agreement.
June 2021
MCR-20-8331 CERB RULING June 30, 2021 City of Everett, Teamsters Local Union 25 and New England Police Benevolent Association, Inc., MCR-20-8331, CERB Ruling. Where a DLR investigator issued a complaint finding probable cause to believe that the City of Everett had engaged in prohibited practices within the meaning of Section 10(a)(2) and 10(a)(1) of the Law when an acting supervisor urged dispatchers who were represented by Teamsters Local 25 (Teamsters) to select the NEPBA as their exclusive representative instead, and when the City failed to discipline employees who had granted NEPBA representatives unauthorized access to the secure dispatch center on several occasions to solicit on-duty support for the NEPBA, the CERB granted the Teamsters motion to allow the unfair labor practice charge to block further processing of the NEPBA’s representation petition. The CERB concluded that viewed together, the acts that formed the basis of the complaint would reasonably tend to impair the dispatchers’ freedom of choice in the election.
ARB-21-8601 EXPEDITED ARBITRATION AWARD June 11, 2021 Town of Swansea and National Fraternal Order of Police, ARB-21-8601, Expedited Arbitration Award. The issue in this case is: Is the temporary court officer position mandated by the contract to be posted and bid on as a shift? If so, what shall be the remedy? The parties’ contract defines temporary positions as openings lasting no more than 90 days. Additionally, the contract states that the Employer may fill any temporary job vacancy with any employee who, in the judgment of the employer, has the skill, ability and experience best suited to the performance of the job. In this case, the Arbitrator found that the temporary court officer position was open for less than 90 days. As such, the contract did not mandate that the temporary court officer position be posted and bid on as a shift and the grievance was denied.
MUP-19-7325 HEARING OFFICER DECISION June 11, 2021 City of Lawrence and Lawrence Firefighters Union, Local 146, MUP-19-7325, Hearing Officer Decision. This case addresses whether the City of Lawrence (City) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. Chapter 150E (the Law) by: 1) failing to bargain in good faith by allowing a bargaining unit employee to simultaneously hold a bargaining unit position, Captain of Building Safety, and a non-unit position, Director of the lnspectional Services Department, without providing the Lawrence Firefighters Union, Local 146 (Union) with prior notice and an opportunity to bargain over the decision and the impacts of that decision; (2) failing to bargain in good faith with the Union by creating a new bargaining unit position, Captain of Building Safety, without providing the Union with prior notice and an opportunity to bargain over the terms and conditions of employment of the new position, and (3) failing to bargain in good faith by dealing directly with an employee regarding him simultaneously holding a unit and non-unit position. The Hearing Officer decided that the City had the managerial right to assign a bargaining unit employees to a unit position and a non-unit position simultaneously, and therefore did not violate the Law by failing to bargain over that decision; however, the City did violate the Law by failing to bargain over the impacts of the decision. The City also violated the Law by failing to bargain over the terms and conditions of a newly created bargaining unit position. Lastly, the Hearing officer determined that the allegation about direct dealing was untimely filed, and therefore did not find that the City violated the Law with respect to that allegation.
May 2021
MUP-19-7713 HEARING OFFICER DECISION May 27, 2021 Martha Vazquez and Worcester School Committee, MUP-19-7713, Hearing Officer Decision. The issue in this case was whether the Worcester School Committee (School Committee) violated Section 10(a)(3), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by 1) relocating Vazquez out of her designated classroom and instructing her to alternate between shared classrooms and to meet with students individually at their desks or in groups for the remainder of the 2018-2019 school year; 2) failing to notify Vazquez about ESL-ILT meetings; 3) not permitting Vazquez to participate in MCAS testing as an exam proctor; 4) instructing Vazquez not to attend the Kindergarten Training; 5) instructing Vazquez not to attend the 2019 Kindergarten Open House; 6) refusing to request an additional year waiver for Vazquez to teach during the 2019-2020 school year; or 7) issuing Vazquez a non-renewal letter. The Hearing Officer held the School Committee did not violate the Law.
CAS-19-7093 CERB DECISION IN FIRST INSTANCE May 27, 2021 City of Boston/Boston Public Library and Professional Staff Association, CAS-19-7093, CERB Decision in First Instance. The issue was whether unrepresented Metadata and Imaging Assistants (Assistants) should be accreted to a bargaining unit of librarians and other employees represented by the Professional Staff Association (PSA). The CERB concluded that a unit clarification petition was not the appropriate proceeding to add these positions to the PSA’s bargaining unit where the parties’ CBA contained a provision granting the employer the right to contract out work provided no bargaining members were laid off in the exercise of that right, and where the union was aware when it entered into successor agreements that the Library was using contractors to perform bargaining unit work similar to that performed by the Assistants.
CAS-18-7037 CERB DECISION IN FIRST INSTANCE May 26, 2021 Methuen School Committee and Methuen Education Association (Secretaries), CAS-18-7037, CERB Decision in First Instance. The CERB granted a unit clarification petition to accrete the position of Family Resource Center Enrollment Specialist (FRCES) to the union’s clerical bargaining unit. The CERB held that the FRCES was not a managerial employee within the meaning of Section 1 of M.G.L. c. 150E, and that the two FRCESs shared community of interest with other bargaining unit members in terms of similarity of skills, functions, pay, working conditions, work contact and training.
SUP-19-7394 HEARING OFFICER DECISION May 21, 2021 Commonwealth of Massachusetts and AFSCME, Local 3485/SEIU, SUP-19-7394, Hearing Officer Decision. The issue in this case is whether the Commonwealth of Massachusetts, Secretary of Administration and Finance via the Department of Conservation and Recreation (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by unilaterally changing meal breaks and work hours for certain bargaining unit employees. Based on the entire record, the Hearing Officer found that the Employer did not violate the Law because its practice of scheduling employees to work 8.5-hour shifts with an unpaid, 30-minute meal break had remained unchanged at all relevant times. Consequently, the Union is unable to satisfy the first element of its prima facie case because it cannot show how the Employer altered an existing practice or instituted a new one.
ARB-19-7505 ARBITRATION AWARD May 17, 2021 Franklin County Sheriff's Office and National Correctional Employees Union, ARB-19-7505, Arbitration Award. The issue in this case is: Was there just cause to discharge [Grievant]? If not, what shall be the remedy? The arbitrator found that the Employer did have just cause to terminate the grievant for his actions on May 17th and June 28, 2019. The grievance was denied.
MUP-19-7544 and MUP-19-7545 HEARING OFFICER DECISION May 11, 2021 Walter L. Barris and Brockton Housing Authority, MUP-19-7544 and MUP-19-7545, Hearing Officer Decision. The case involves allegations that the Brockton Housing Authority (Housing Authority) violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by discriminating against Walter L. Barris for engaging in concerted, protected activities when it twice bypassed him for promotion. The Hearing Officer found that the Housing Authority did not violate the Law in the manner alleged.
April 2021
ARB-21-8398 ARBITRATION AWARD April 30, 2021 City of Westfield and International Brotherhood of Police Officers, Local S574, ARB-21-8398, Arbitration Award. The Arbitrator found that the Chief of Police had good cause to issue a two-day suspension of a Sergeant who injured a subordinate while discharging an air horn in a small room. Although the Sergeant was engaging in a prank and intended no harm, the
Arbitrator determined his actions were reckless, resulted in harm, and therefore the discipline was justified.
WMAP-21-8450 CERB RULING April 29, 2021 Green Thumb Industries and United Food and Commercial Workers, Local 1459, WMAP-21-8450, CERB Ruling. The CERB denied an employer’s request to reinvestigate a certification by written majority authorization. The employer sought review of the DLR’s neutral dismissal of forty-eight outcome determinative challenges, which were based on the employer’s assertion that it intended to hire forty-eight additional agricultural employees once it completed plans to expand its operations across the street. The CERB dismissed the request for reinvestigation based on Southeastern Massachusetts Regional 911 District (SEMRECC), 47 MLC 66, 67, WMAM-20-8054 (October 14, 2020), which held that the Legislature did not intend there to be any right of administrative review of a Neutral’s dismissal of outcome determinative challenges in the WMA context, and that seeking a second opportunity to have its challenges heard does not constitute good cause to reinvestigate a certification under the DLR’s WMA regulations. From a policy standpoint, the CERB found that the employer’s expansion and hiring plans lacked sufficient definiteness to warrant revoking the certification, especially given the quick timeline that the Legislature imposed upon the DLR to complete the WMA verification process.
MUP-19-7340 HEARING OFFICER DECISION April 23, 2021 City of Attleboro and International Association of Firefighters, Local 848, MUP-19-7340, Hearing Officer Decision. The issue in this case is whether the City violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it transferred dispatching duties to non-unit personnel without bargaining with the Union to resolution or impasse over the impacts of that decision on issues such as the safety of employees and the duties of the displaced 15th firefighter. The Hearing Officer found no violation of the Law because the City had satisfied its bargaining obligation by attempting to negotiate the impacts of the decision on job duties and safety despite the Union’s insistence on first bargaining over minimum staffing levels which was a permissive subject that concerned the nature and level of services and involved a core managerial prerogative. In the alternative, the Hearing Officer found no obligation to impact bargain where evidence failed to show how the decision affected employees’ safety or workload or changed any job duties.
March 2021
SUP-19-7599 CERB DECISION FIRST INSTANCE March 30, 2021 Commonwealth of Massachusetts and National Association of Government Employees, SUP-19-7599, CERB Decision in the First Instance. The Commonwealth Employment Relations Board (CERB) concluded that the Commonwealth of Massachusetts made an unlawful unilateral change in October 2019 when it began deducting the maximum amount of employee contributions permitted under the Paid Family and Medical Leave Act (PFMLA) from the paychecks of state employees represented by the National Association of Government Employees (NAGE) without first bargaining with NAGE to resolution or impasse. In so holding, the CERB rejected the Commonwealth’s defenses that the parties were at an impasse when it implemented the payroll deductions or that circumstances beyond its control justified unilateral implementation.
MUP-19-7322 HEARING OFFICER DECISION March 24, 2021 Boston School Committee and Boston Teachers Union, MUP-19-7322, Hearing Officer Decision. The issue in this case is whether the Boston School Committee (School Committee) violated Sections 10(a)(1) and (5) of Massachusetts General Laws Chapter 150E (the Law) by failing to comply with two arbitration awards. The arbitrators found that the past practice was that bargaining unit employees need only submit a request for extended sick leave supported by a doctor’s note and therefore the School Committee could not require that employees apply for FMLA leave or submit an FMLA form in order to be granted extended sick leave without first bargaining with the Union over this change. Thereafter, the School Committee directed certain employees seeking extended sick leave to apply for FMLA or complete an FMLA form. By these actions, the School Committee failed to abide by the arbitration awards.
MUP-18-6704 HEARING OFFICER DECISION March 16, 2021 City of Framingham and Framingham Police Officers Union, MUP-18-6704, Hearing Officer Decision. The issue in this case was whether the City of Framingham (City) violated Section 10(a)(3), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by denying Matthew Gutwill’s (Gutwill) request for assignment to the positions of School Resource Officer, Detective, or Forensic Investigator. The Hearing Officer held the City did not violate the Law.
MUP-19-7746 HEARING OFFICER DECISION March 15, 2021 Medford School Committee and Medford Teachers Association, MUP-19-7746, Hearing Officer Decision. The issue in this case is whether the School Committee violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it designated employees’ leaves of absence as Family and Medical Leave Act (FMLA) leave to run concurrently with employees’ paid sick leave without bargaining to resolution or impasse with the Union over the decision and its impacts on employees’ terms and conditions of employment. The United States Department of Labor (DOL) issued two opinion letters in 2019 which interpreted the FMLA, and the Committee relied on those letters when it made the change to employees’ leaves of absence. The Hearing Officer found that: (1) the DOL opinions did not constitute binding law; (2) the DOL opinions did not constitute third-party authority, over which the Committee had no control, to compel the change; and, (3) the plain language of the FMLA did not expressly prohibit the Committee or its employees from substituting FMLA-qualifying paid leave to run concurrently with FMLA unpaid leave. Thus, she concluded that the Committee had violated the Law because it was obligated to bargain with the Union over the change but failed to satisfy those obligations before implementing the change.
MUPL-19-7565 HEARING OFFICER DECISION March 11, 2021 Town of Hudson and International Association of Firefighters, Local 1713, MUPL-19-7565, Hearing Officer Decision. The issue was whether the Union bypassed the Town’s designated bargaining representative in violation of Section 10(b)(2) and, derivatively, Section 10(b)(1) of the Law when it petitioned the Town Meeting to increase firefighter minimum staffing, which was a subject covered by the parties collective bargaining agreement. The hearing officer held that the Union violated the law when it petitioned the Town Meeting on a proper subject of collective bargaining.
SUP-19-7686 HEARING OFFICER DECISION March 9, 2021 Suffolk County Sheriff's Department and Jail Officers and Employees Association of Suffolk County, SUP-19-7686, Hearing Officer Decision. The case involves allegations that the Suffolk County Sheriff’s Department (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by: a) repudiating a provision of the collective bargaining agreement between the Employer and the Jail Officers and Employees Association of Suffolk County (JOEASC) when it made promotions to lieutenant at the Suffolk County Jail (Jail) in October 2019; and b) changing the promotional procedure for lieutenant when it did not post the promotional list with the applicants’ rankings and total scores before it notified the successful applicants of their promotions. The Hearing Officer found that the Employer violated the Law in the manner alleged.
SUP-19-7352 CERB DECISION IN FIRST INSTANCE March 8, 2021 Commonwealth of Massachusetts and SEIU, Local 509, SUP-19-7352, CERB Decision in the First Instance. A majority of the CERB (Chair Wittner and Member Ackerstein) concluded that the Commonwealth of Massachusetts made an unlawful unilateral change to bargaining unit members’ terms and conditions of employment when managers at MassHealth began using a previously-unused feature of MassHealth’s computer-based phone system to surreptitiously listen in on phone calls that MassHealth Benefits Eligibility and Referral Social Workers A/B (BERS A/B) had with members of the public, without first giving the BERS A/B’s exclusive representative prior notice or an opportunity to bargain. The CERB held that this was a bargainable change to the BERS A/B’s terms and conditions of employment because this type of telephone monitoring increased the nature and type of information available to managers and the likelihood of BERS A/Bs being disciplined. Member Strong dissented on grounds that the electronic surveillance was done in the course of an investigation into specific employees’ high-volume, short duration phone calls and was therefore merely a more efficient way of enforcing existing work rules that required no bargaining.
ARB-19-7525 ARBITRATION AWARD March 3, 2021 Town of Billerica and Billerica Firefighters Association, Local 1495, ARB-19-7525, Arbitration Award. The issues in this case are: 1. Is the grievance arbitrable? 2. Did the Town violate the parties’ collective bargaining agreement by failing to promote a Lieutenant to Captain since July 1, 2019? If so, what shall be the remedy? The arbitrator found that the grievance is arbitrable, and the Town violated the collective bargaining agreement when it failed to promote a Lieutenant to Captain since July 1, 2019. The Town is hereby ordered to promote a Lieutenant to Captain, following all lawful procedures as required by M.G.L. c.31. The successful candidate will be made whole for all wages and benefits retroactively to July 1, 2019.
February 2021
ARB-19-7709 ARBITRATION AWARD February 9, 2021 City of Pittsfield and Pittsfield Supervisory and Professional Employees Association, ARB-19-7709, Arbitration Award. The issue in this case is: Did the City have the right to instruct the grievant to stop bringing home a City vehicle? If not, what shall be remedy? The arbitrator found that the City did not have the right to instruct the grievant to stop using a City vehicle for commuting to and from work. The City was ordered to restore the benefit to the grievant so long as the past practice remains binding.
MCR-20-8220 CERB RULING February 8, 2021 Town of Seekonk, Seekonk Public Safety Dispatch and Police Clerical and AFSCME, Council 93, Local 1701, AFL-CIO, MCR-20-8220 CERB Ruling. The CERB denied a motion filed by the incumbent union AFSCME seeking to have its prohibited practice charge alleging that the Town of Seekonk violated Sections 10(a)(5), 10(a)(2) and, derivatively, Section 10(a)(1) of the Law by refusing to engage in successor contract negotiations block a representation petition filed by an independent union. The CERB held that the conduct alleged in the prohibited practice complaint would not tend to interfere with employee free choice where the allegations in the complaint and emails in the investigation record demonstrated that the employees’ desire for different representation occurred before the employer allegedly refused to bargain and continued even after the town resumed bargaining.
WMAP-20-8074 CERB RULING February 1, 2021 New England Treatment Access LLP and United Food and Commercial Workers, Local 1445, WMAP-20-8074 CERB Ruling. The CERB denied the employer’s request to reinvestigate a certification by written majority authorization (WMA). The employer argued that due to a typographical error, it had made a mistake in the hire date of an employee that resulted in the employee being mistakenly excluded from the list that the neutral used to determine the union’s majority status. The CERB held that under the DLR’s WMA regulations, 456 CMR 14.19 et seq., NETA’s typographical error was not properly raised post-certification nor did it constitute good cause to reinvestigate the certification under 456 CMR 14.15.
January 2021
SUP-19-7487 HEARING OFFICER DECISION January 28, 2021 Commonwealth of Massachusetts, Secretary of Administration and Finance and Alliance, AFSCME-SEIU, AFL-CIO, SUP-19-7487 Hearing Officer Decision. The issue in this case is whether the Commonwealth of Massachusetts, Secretary of Administration and Finance via the Department of Youth Services (Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by repudiating a memorandum of understanding (MOU) with the Alliance, AFSCME-SEIU, AFL-CIO (Union) by filling staff shortages using a rotation method. Based on the entire record, the Hearing Officer found that the Employer did not repudiate the MOU because the parties held differing good faith interpretations of its terms and did not reach a meeting of the minds on the issue of rotation.
ARB-19-7403 ARBITRATION AWARD January 6, 2021 Essex County Sheriff's Department and International Brotherhood of Correctional Officers, Local R1-071, ARB-19-7403, Arbitration Award. The issue in this case is: Is the grievance arbitrable? If so, did Sheriff Coppinger violate the collective bargaining agreement by making Captain Peter Cignetti the Scheduling Captain? If so, what shall be the remedy? The arbitrator found that the grievance was filed beyond the contractually agreed upon time limits and was not procedurally arbitrable.
December 2020
MUPL-19-7246 HEARING OFFICER DECISION December 18, 2020 Cambridge Health Alliance and Massachusetts Nurses Association, MUPL-19-7246, Hearing Officer Decision. The issue in this case is whether the Massachusetts Nurses Association violated Section 10(b)(2) and, derivatively, 10(b)(1) of Massachusetts General Laws Chapter 150E by failing to bargain with the Cambridge Health Alliance over the cost sharing of a dental plan, pursuant to the parties’ collective bargaining agreement, separately from successor contract negotiations. The hearing officer determined that because the parties agreed to bargain over the cost sharing of a dental plan in their collective bargaining agreement when those cost exceeded a certain threshold, once that threshold was met and once the Employer requested to bargain, the Union was not free to require that bargaining only take place during successor negotiations.
SCR-20-8199 CERB RULING December 16, 2020 Commonwealth of Massachusetts, NEPBA and SEIU, Local 509, SCR-20-8199, CERB Ruling. The CERB granted the Commonwealth’s motion to dismiss a petition filed by the New England Police Benevolent Association to sever seven job titles, Correctional Program Officer A/B/C/D; Youth Services Program Officer A/B/C; Youth Services Program Officer C; Transitional Parole Officer; and Clinical Director/Social Worker D. from statewide bargaining unit 8 and represent them in a separate bargaining unit. The CERB found that extraordinary circumstances did not exist to create a new, statewide bargaining unit comprised of members of the “COPS” Chapter of SEIU, Local 509.
MUP-18-6686 HEARING OFFICER DECISION December 10, 2020 Town of North Reading and North Reading Firefighters Union, IAFF, Local 1857, MUP-18-6686, Hearing Officer Decision. The issue in this case is whether the Town of North Reading (Town) interfered with, restrained or coerced its employees in violation of Section 10(a)(1) of Massachusetts General Laws, Chapter 150E by asking the Union’s president to attend a meeting with Town representatives – while he was a candidate for promotion - to discuss comments that the president had made during a recent Union meeting; making a statement during the meeting that threatened adverse consequences for the firefighters and Fire Department; telling the president that the Union should not interfere with policies that the Fire Chief was attempting to implement, and subsequently telling the president that he had received the promotion because he attended the meeting. The Town violated the Law when the Fire Chief pressured the Union’s president to attend the meeting with Town representatives, and when the Public Safety Director told the president during the meeting that the Union (and the Town) needed to support the Fire Chief as part of a team effort. Because Town representatives did not make the other statements alleged in the Complaint of Prohibited Practice, the Town did not violate the Law with respect to those allegations.
ARB-19-7632 ARBITRATION AWARD December 10, 2020 Town of Dighton and Massachusetts Laborer's District Council, ARB-19-7632, Arbitration Award. The issue in this case is: Did the Town of Dighton have just cause in accordance with the collective bargaining agreement to terminate the employment of police dispatcher Adam Foss? If not, what shall be the remedy? The arbitrator found that the Town did have just cause to terminate the grievant for his unauthorized release of confidential information and other actions. The grievance was denied.
SUP-19-7297 HEARING OFFICER DECISION December 1, 2020 Commonwealth of Massachusetts and Coalition of Public Safety, SUP-19-7297, Hearing Officer Decision. The issue in this case was whether the Commonwealth of Massachusetts (Commonwealth) violated Section 10 (a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by failing and refusing to provide the Coalition of Public Safety (Union) with information that was relevant and reasonably necessary to the Union’s performance of its duties as the exclusive bargaining representative. The Hearing Officer held that the Commonwealth violated the Law.
November 2020
SI-20-8287 CERB STRIKE RULING November 3, 2020 Brookline School Committee, Brookline Educators Union, Jessica Wender-Shubow and Robert Miller, SI-20-8287, CERB Strike Ruling. The CERB inferred the existence of an unlawful strike where, on November 1, 2020, in the context of negotiating a memorandum of agreement (MOA) regarding COVID-19 protocols, 90% of the Union’s membership voted to strike on November 3, 2020 as a result of their dissatisfaction with the School Committee’s proposal regarding future changes to social distancing protocols and where roughly 77% of teachers and 46% of paraprofessional required to show up for professional development duties on November 3, 2020 called in sick or took a personal day. The CERB further concluded that the Union and the Union president, in her official capacity, had encouraged and condoned the strike in violation of the Law when the Union president reported the results of the strike vote to the School Committee without repudiating it or taking any affirmative steps to discourage any future withholding of services. Because, at the time of the strike investigation, the Union had not otherwise denounced the action or provided assurance that the teachers and paraprofessionals would return to work on November 4, 2020, the CERB ordered the Union and its officers to, among other things, cease and desist from engaging in an unlawful strike and to inform their members of their obligation not to participate in any unlawful work stoppages. The CERB also ordered both parties to bargain in good faith over the MOA.
MUP-18-6822 and MUP-19-7061 HEARING OFFICER DECISION November 3, 2020 City of Marlborough and Marlborough Municipal Employees Association, MUP-18-6822 and MUP-19-7061, Hearing Officer Decision. The case involves allegations that the employer terminated a past practice of permitting members of the union’s bargaining unit to wear jeans on Fridays; and unilaterally implemented a dress code in July 2018 in violation of Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law), as well as whether the employer interfered, restrained or coerced the Union president in violation of Section 10(a)(1) of the Law. The Hearing Officer found that the employer had violated the Law by unilaterally terminating the past practice of permitting unit members to wear jeans on Fridays, and by its statements to the Union president. However, the Hearing Officer dismissed the allegation that the City implemented a new dress code in July 2018.
October 2020
MUP-19-7473 HEARING OFFICER DECISION October 27, 2020 Town of Plymouth and the Collective Bargaining Relief Association, MUP-19-7473, Hearing Officer Decision. The issue in this case was whether the Town of Plymouth (Town) violated Section 10 (a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by failing to bargain in good faith when it created a job description for a new bargaining unit position, and posted that position, without bargaining to resolution or impasse with the Union about that decision and the impacts of that decision on employees’ terms and conditions of employment. The Hearing Officer held that the Town violated the Law. The Hearing Officer held that the Town violated the Law when it created a job description for a HVAC Technician Position, new bargaining unit position, and posted that position, without bargaining to resolution or impasse with the Union.
ARB-19-7255 ARBITRATION AWARD October 16, 2020 City of Quincy and Massachusetts Laborers' District Council, Local 1139, ARB-19-7255, Arbitration Award. The issue in this case is: Whether the City had just cause to suspend [grievant] for three days for an incident on November 20, 2018? If not, what shall be the remedy? The arbitrator found that the City did have just cause to suspend the grievant for his actions on the day in question and for lying to his supervisor. The grievance was denied.
WMAM-20-8054 CERB RULING October 14, 2020 Southeastern Massachusetts Regional 911 District and Massachusetts Coalition of Police, WMAM-20-8054, CERB Ruling. Where nothing in Chapter 150E or the DLR’s regulations provides for a right of reinvestigation, reconsideration or appeal of a neutral’s dismissal of outcome determinative challenges during the written majority authorization verification process, the CERB held that an employer must do more than disagree with the grounds for the dismissal and/or seek a second opportunity to establish the validity of its challenges to establish good cause pursuant to 456 CMR 1415 to reinvestigate the certification.
UPL-18-6690 CERB RULING October 6, 2020 David C. Turley and International Longshoremen’s Association, Local 809, UPL-18-6690, CERB Ruling. The CERB denied an interlocutory appeal filed by the Respondent union challenging two rulings that resulted in the Hearing Officer scheduling a sixth day of hearing notwithstanding the Charging Party’s last minute request for a postponement and its failure to comply with the Hearing Officer’s to submit alternative hearing dates by a date certain. Although the CERB did not condone the Charging Party’s failure to comply with DLR rules or Hearing Officer deadlines, where there was uncertainty as to whether the sixth day would go forward, where the Hearing Officer found there was a need to present rebuttal evidence, and where the Respondent union had not shown that it has been prejudiced by the postponement, the CERB held that the Hearing Officer did not abuse her discretion by granting the postponement and declining to close the record.
MUP-17-5980 CERB DECISION October 2, 2020 City of Somerville and Somerville Police Employees Association, MUP-17-5980, CERB Decision. The CERB affirmed a Hearing Officer decision holding that the employer violated the Law by: a) requiring a former union vice-president to disclose certain internal communications with the union president; b) issuing an order prohibiting the president and former vice-president from communicating with most other employees about an internal affairs investigation; and c) questioning the former vice-president and president about those union communications during internal affairs interviews. The CERB found that discussions between the two union officers about an upcoming maritime training over which the union had demanded to bargain and was contemplating fling a grievance were concerted activities that did not lose their protected status when the union president unsuccessfully asked the then union vice president to withdraw from the training at the last minute. The CERB agreed with the hearing officer that this conduct neither disrupted employer operations nor was indefensibly disloyal to the employer and thus, the employer’s conduct would tend to interfere with, restrain and coerce employees in the exercise of their rights protected under Section 2 of the Law.
September 2020
WMAP-20-8085 CERB RULING September 24, 2020 Cultivate Holdings and United Food & Commercial Workers, Local 1445, WMAP-20-8085, CERB Ruling. Cultivate Holdings, LLC, a private sector company that grows and dispenses medical and adult-use cannabis products, filed a motion to reinvestigate a certification by written majority authorization the DLR issued. Cultivate’s main argument was that the employees in the unit were not agricultural employees within the meaning of Chapter 150A and thus the DLR lacked jurisdiction to issue the certification. After reviewing the applicable statutory and regulatory scheme, the CERB determined that jurisdictional questions were for the DLR and not the CERB to decide in the first instance and remanded the request to the DLR for further processing.
MUP-19-7133 HEARING OFFICER DECISION September 21, 2020 City of Everett and Everett Firefighters, IAFF, Local 143, MUP-19-7133, Hearing Officer Decision. The issue was whether the City violated the law by deciding to use an assessment center for promotion to the City’s Fire Chief position without bargaining to resolution or impasse with the union about the impacts of the decision to use an assessment center. Assuming, without deciding, that impact bargaining was applicable to the situation, the hearing officer nevertheless concluded that the decision did not impact a mandatory subject of bargaining. Accordingly, he dismissed the Complaint.
MCR-20-7978 CERB DECISION September 15, 2020 Town of Erving and New England Police Benevolent Association, MCR-20-7978, CERB Decision. The issue in this case was whether the position of sergeant should be excluded from the petitioned-for bargaining unit because he is a managerial employee within the meaning of Section 1 of M.G.L. c 150E because he is a supervisor, or because his inclusion would present a conflict of interest. After hearing, the CERB concluded that the sergeant was not a managerial employee or a true supervisor whose presence in the unit would create irreconcilable conflicts. The CERB further concluded that even if it had concluded that the sergeant were a true supervisor, it would include him in the bargaining unit anyway, because there was only one sergeant and the CERB disfavors creates one-person bargaining units when there is a larger unit in which the employee can be placed. Finally, the CERB rejected the Town’s argument that including the sergeant in the unit would violate M.G.L. c. 268A, the Commonwealth’s Conflict of Interest Law, as speculative and unsupported.
SI-20-8176 CERB RULING ON STRIKE PETITION September 8, 2020 Andover School Committee and Andover Education Association, SI-20-8176, CERB Decision. The CERB determined that the Andover Education Association (Union) engaged in an unlawful strike when its members refused to enter school buildings to engage in professional development activities on August 31, 2020. The CERB rejected the Union’s argument that because their members performed their job duties outside, the decision not to enter school buildings was a concerted, protected protest over the Andover School Committee’s decision to require teachers to physically report to work during the ongoing COVID-19 pandemic before the parties had reached an agreement on return-to-work issues. The statutory definition of a strike includes a public employee’s refusal “in concerted action with others, to report for duty,” and the CERB unanimously held that the phrase “report for duty” means reporting not just when but where the employer has ordered its employees to report and therefore, teachers were required to enter school buildings for professional development as directed by the employer. The CERB determined that there was a practice of teachers participating in back to school professional development duties that was not unique to individual employees, new activities that had to be performed inside the classroom were part of the overall mandatory professional development program, and were intrinsic to teachers’ duties. The CERB also found that the Union induced, encouraged and condoned the unlawful strike as evidenced by a Union press release that stated that the Union “overwhelmingly voted to begin the school year by only working remotely,” and included statements in support of the action by Union officers; steps the Union’s Action Committee took to support participating members on the day of strike; and the Union’s officers’ participation in the strike. The CERB declined to find that a strike was imminent or about to occur or that the Union continued to induce and encourage a strike because the Union voted to suspend the workplace safety action on the evening of August 31 and its members worked inside school buildings on September 1 and September 3; however, the CERB found that the petition was not moot because the Union “suspended” but did not disavow the workplace safety action, and the Union and the School Committee had yet to reach an agreement on return-to-work issues.
August 2020
ARB-19-7506 ARBITRATION AWARD August 28, 2020 Town of Norfolk and Norfolk Municipal Employees Association, IFPTE, Local 310, ARB-19-7506, Arbitration Award. The issue in this arbitration was: Is the grievance procedurally arbitrable? The arbitrator found the initial grievance filing to be untimely under the terms of the collective bargaining agreement making the grievance procedurally not arbitrable.
ARB-19-7231 ARBITRATION AWARD August 21, 2020 City of Worcester and NAGE, Local 495, ARB-19-7231, Arbitration Award. The issue in this arbitration is: Did the City violate the parties’ collective bargaining agreement when it did not call Todd Wader for overtime opportunities on April 15, 2018 and April 16, 2018? If so, what shall the remedy be? The arbitrator found that the Employer did not violate the collective bargaining agreement when it did not call the grievant for the overtime opportunities based on a valid internal policy, effective as a past practice between the parties.
July 2020
MUP-18-6853 HEARING OFFICER DECISION July 31, 2020 City of Lawrence and Firemen & Oilers Local Union 3, MUP-18-6853, Hearing Officer Decision. The issue was whether the City violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by denying the Union access to the DPW Yard for an expert to conduct sampling for the presence of hazardous contaminants. The hearing officer found that the Union’s request was relevant and reasonably necessary based upon the conditions in the Yard, and found that the City violated the Law as alleged. He ordered the City to grant the Union access to the Yard for an expert to conduct sampling.
ARB-19-7653 ARBITRATION AWARD July 31, 2020 Board of Higher Education and AFSCME, Council 93, AFL-CIO, ARB-19-7653, Arbitration Award. The issue in this expedited arbitration is: Did the employer violate the October 2, 2019 Memorandum of Agreement when it denied Kevin Hanley participation in the October 4, 2019 Early Retirement Incentive Program and when it failed to reimburse him for two months of COBRA Health Insurance payments? If so, what shall be the remedy? The arbitrator found that the Employer did not violate the MOA when it denied the application for the Early Retirement Incentive Program, citing the terms of the MOA. The arbitrator also found that the Employer was not additionally responsible for the two COBRA Health Insurance payments in question.
MUP-17-6231 HEARING OFFICER DECISION July 29, 2020 City of Somerville and Somerville Police Employees Association, MUP-17-6231, Hearing Officer Decision. The issue was whether the City violated the Law by implementing the selection process and criteria for voluntary maritime trainings that led to overtime opportunities without bargaining to resolution or impasse with the Union. The hearing officer held that the City violated the Law as alleged because the selection process and criteria for trainings that lead to overtime opportunities are mandatory subjects of bargaining and the Union’s failure to demand bargaining over prior voluntary trainings did not waive the Union’s right to bargain over the selection process and criteria for maritime trainings. The hearing officer ordered the City to bargain with the Union on demand and to post a notice to employees.
CAS-19-7235 CERB DECISION July 21, 2020 Littleton School Committee and Littleton Educators’ Association, CAS-19-7235, CERB Decision. The CERB granted a unit clarification petition filed by the Littleton Educators’ Association to accrete the title of Therapeutic Mental Health Counselor(TMHC) to a unit of teaching and non-teaching professionals in the Littleton Public Schools. The bargaining unit included school adjustment counselors and school psychologists, who, like the TMHC, provided direct therapeutic and counseling services to students with emotional and mental health needs. The CERB concluded that, notwithstanding a number of differences between the positions, including lack of required DESE licensure, the TMHC shared a sufficient community of interest with other bargaining unit members in terms of similar skills, duties, educational qualifications, work location, hours, wages, benefits and regular interaction with other bargaining unit members to warrant accretion to the unit.
ARB-19-7216 ARBITRATION AWARD July 16, 2020 City of Lowell and Lowell Police Association, ARB-19-7216, Arbitration Award. The issue in this case is: Whether the City exceeded the number of specialty positions as set by the collective bargaining agreement, following the enactment of M.G.L. c. 71, §37P in the appointment of school resource officers? If so, what shall be the remedy? The arbitrator found that the City had exceeded the number of specialty positions as set by the collective bargaining agreement, following the enactment of M.G.L. c. 71, §37P in the appointment of school resource officers. The City was ordered to abide by the language of Article III, Section 8.
MUP-19-7180 HEARING OFFICER DECISION July 8, 2020 Town of Amherst and Amherst Police League, MassCOP 431, MUP-19-7180, Hearing Officer Decision. The issue in this case was whether the Town of Amherst (Town) violated Section 10 (a)(5), and derivatively, Section 10(a)(1) of Massachusetts General Law Chapter 150E (the Law) by implementing a decision to require members of the bargaining unit to respond to all calls for service at the Hampshire College campus requiring sworn police personnel and/or an investigation without providing the Amherst Police League, MASSCOP Local 431 (Union) with prior notice and an opportunity to bargain over the workload impacts of that decision. The Hearing Officer held that the Town did not violate the Law. The Hearing Officer held that the Town did not violate the Law because the increase in calls for service at the College did not impact the bargaining unit members’ workloads.
ARB-19-7241 ARBITRATION AWARD July 7, 2020 Town of Millbury and Millbury Police Association, Local 128, ARB-19-7241, Arbitration Award. The issue in this case is: Did the Town violate Article XI of the collective bargaining agreement when it failed to compensate bargaining unit members with Holiday Pay for December 24, 2018. The arbitrator found that the bargaining unit members were not entitled to holiday pay for December 24, 2018. The grievance was denied.
June 2020
WMAM-19-7700 CERB DECISION June 26, 2020 New Bedford School Committee and Massachusetts Teachers Association, WMAM-19-7700, CERB Decision.On the New Bedford School Committee’s motion to reinvestigate a certification by written majority authorization for a bargaining of “Support Specialists” in the New Bedford Public Schools, a majority of the CERB (Member Lev, dissenting) found that the Wraparound Coordinators shared a community of interest with the other bargaining unit members, based on their similar schedule, pay, work location, regular interaction with other bargaining unit members and common interests and goals. The CERB therefore declined to remove these titles from the certified unit. All three CERB members determined that the position of Culinary Assistant should be added to the unit because the position shared a community of interest with other bargaining unit members, particularly Student Mentors, in terms of duties, pay work location, schedule, and interaction.
CAS-19-7239 CERB DECISION June 26, 2020 Town of Natick and Mass. Laborers’ District Council, CAS-19-7239, CERB Decision. The CERB accreted the position of Library Bookkeeper to a bargaining unit comprised of all full-time and regular part-time employees employed by the Town of Natick at the Morse Institute Library. The CERB found that this position was not confidential and otherwise shared a community of interest with the other bargaining unit members in terms of similar pay, working conditions, work contact and training and experience.
May 2020
ARB-17-6342 ARBITRATION AWARD May 12, 2020 Town of Auburn and Auburn Dispatchers Union, MCOP L. 388A, ARB-17-6342, Arbitration Award. The issue in this case is: Did the Town have just cause to terminate [Grievant]? If not, what shall the remedy be? The arbitrator found that the Town did have just cause to terminate [Grievant] for her inability to properly communicate with fire department personnel over the dispatch radio. The grievance was denied.
MUP-17-5980 HEARING OFFICER DECISION May 4, 2020 City of Somerville and Somerville Police Employees Association, MUP-17-5980, Hearing Officer Decision.The case involves four allegations that the employer independently violated Section 10(a)(1) of M.G.L. c.150E (the Law). The Hearing Officer found that the employer violated the Law by: a) requiring a former union vice-president to disclose certain internal communications with the union president; b) issuing an overly broad order prohibiting the president and former vice-president from communicating with most other employees about an internal affairs investigation; and c) questioning the former vice-president and president about those union communications during internal affairs interviews. However, the Hearing Officer dismissed the allegation that the City prohibited the president and vice-president from discussing and engaging in other activities.
SUP-16-5594 CERB DECISION May 1, 2020 Commonwealth of Massachusetts and Massachusetts Organization of State Engineers and Scientists, SUP-16-5594, CERB Decision.Where the hearing record established that certain state inspectors who used their own personal vehicle to travel to inspections had assigned offices, the CERB affirmed a Hearing Officer’s decision holding that collective bargaining agreement provisions governing mileage reimbursement to and from bargaining unit members’ homes to their first assignment or assigned office pertained to the inspectors and was clear and unambiguous. The CERB thus affirmed that portion of the decision holding that Employer’s practice of compensating the inspectors for the mileage they incurred from the moment they left home until they returned did not constitute a binding past practice because it was inconsistent with the pertinent contract language.
April 2020
ARB-19-7232 ARBITRATION AWARD April 10, 2020 Town of Billerica and Billerica Firefighters, Local 1495, ARB-19-7232, Arbitration Award. The issue in this case is: Whether the Town violated Article 3, Section 3 by failing to make a temporary Lieutenant promotion for the Lieutenant vacancy at issue. If so, what shall be the remedy? The arbitrator found that the Town did violate Article 3, Section 3 when it failed to make a temporary promotion and ordered the aggrieved employee to be made whole.
March 2020
MUP-17-6211 and MUP-18-6679 CERB DECISION March 31, 2020 City of Boston and SENA, Local 9158, MUP-17-6211 and MUP-18-6679, CERB Decision. The CERB affirmed a Hearing Officer decision holding that the City of Boston did not unlawfully retaliate against a bargaining unit employee in its property management department (PMD) for filing grievances or participating in DLR proceedings when it reduced the amount of overtime she earned coordinating special events and assigned her tasks to other employees. The CERB found that, even assuming the Union had established a prima facie case of discrimination, the City had provided legitimate reasons for its conduct, including the need to monitor and reduce overtime at PMD, and that the Union had not demonstrated that, but for the employee’s protected conduct, the City would not have taken the same action. The CERB also affirmed the Hearing Officer’s conclusion that the City had not unlawfully transferred bargaining unit work outside of the bargaining unit where the CERB found that, in two separate allegations, the work performed by supervisors was necessary supervision and not a transfer. Because the City also reassigned the work to other bargaining unit employees, the CERB further concluded that the Union had not demonstrated an adverse impact on the unit. The CERB also denied the Union’s motion to amend the complaint to change two Section 10(a)(5) allegations to Section 10(a)(3) allegations, finding that the Hearing Officer had not abused her discretion by denying the motion at hearing. Where the Union made the motion as to two different counts for the first time in its post-hearing brief, the CERB denied it on grounds that the issues had not been fully litigated.
February 2020
MUPL-17-5778 HEARING OFFICER DECISION February 13, 2020 Steven Vigneault and International Brotherhood of Police Officers, Local 364, MUPL-17-5778, Hearing Officer Decision. The issues in this case were whether the International Brotherhood of Police Officers, Local 364 (Union) violated Section 10(b)(1) of Massachusetts General Laws, Chapter 150E (the Law) by interfering, restraining and coercing Steven Vigneault (Vigneault) in the exercise of his rights guaranteed under Section 5 of the Law by providing him with false information on August 10, 2016, and failing to properly represent him after the City of Springfield (City) charged him on June 16, 2016 with the use of excessive force during the February 27, 2016 arrest of a juvenile. The hearing officer found that the Union did not violate the Law as alleged.
SUP-17-6294 HEARING OFFICER DECISION February 13, 2020 Commonwealth of Massachusetts and SEIU, Local 509, SUP-17-6294, Hearing Officer Decision. The issue in this case was whether the Commonwealth of Massachusetts / Secretary 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 investigating and interrogating union members about an email distributed by the union steward complaining about working conditions and requesting bargaining unit members wear the color purple in support. The hearing officer found that the Commonwealth violated the law by investigating and coercively interrogating union members about the email. 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-18-6821 HEARING OFFICER DECISION February 12, 2020 Town of Ashland and Ashland Police Union, MCOP, MUP-18-6821, Hearing Officer Decision. The issue was whether the Town of Ashland (Town) violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Law by placing Erik Fay (Fay) on administrative leave with pay and discharging him. The hearing officer held that the Town did not violate the Law and he dismissed the Complaint. The Union did not establish a prima facie case of retaliation because the evidence did not prove that the Town’s adverse actions against Fay were unlawfully motivated. The hearing officer further held that even if the Union had established a prima facie case of retaliation, the Town demonstrated that legitimate reasons motivated the adverse actions, and the Union could not prove that but for Fay’s protected activity the Town would not have discharged him.
January 2020
ARB-18-6849 ARBITRATION AWARD January 29, 2020 Leicester School Committee and International Union of Public Employees, Local 2, ARB-18-6849, Arbitration Award. The issue in this case is: Whether the grievants were entitled to vacation and longevity payments upon their lay off on June 30, 2018? The arbitrator found that the grievants were not entitled to any additional vacation or longevity payments upon their separation from employment. The grievances were denied.
SUP-16-5594 HEARING OFFICER DECISION January 16, 2020 Commonwealth of Massachusetts and Massachusetts Organization of State Engineers and Scientists, SUP-16-5594, Hearing Officer Decision. The issue was whether the Commonwealth, acting through the Department of Public Safety, violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by unilaterally changing employee mileage reimbursement for transportation expenses. The hearing officer held that the Commonwealth violated the Law. Upon discovering that some DPS employees were not claiming mileage in accordance with the formula contained in the parties’ collective bargaining agreement, the Commonwealth implemented a new formula for calculating mileage reimbursement that deviated from and conflicted with the parties’ contract. The hearing officer ordered the Commonwealth to rescind the unilateral implementation of a mileage reimbursement policy and to make all affected employees whole for reimbursement they lost as a result of the change.
MUP-17-5924 CERB DECISION January 7, 2020 City of Boston and SENA, MUP-17-5924, CERB Decision. The CERB affirmed a Hearing Officer’s decision holding that the City of Boston violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. c. 150E by implementing a Vacation Leave Policy that counted all types of leave that bargaining unit members took in a given calendar when it calculated when those bargaining unit members would receive their “vacation drop” for the following year The Hearing Officer held, and the CERB affirmed, that counting all types of leave constituted a change from the vacation eligibility provision that the parties agreed to in their most recent CBA, which, by its plain language, delayed accrual of vacation leave only if parties exceeded 12 weeks of leave taken pursuant to the City’s Medical Leave Policy.
December 2019
CAS-17-6267 CERB DECISION December 27, 2019 University of Massachusetts and Boston and Professional Staff Union, CAS-17-6267, CERB Decision. The CERB granted a unit clarification petition filed by the Professional Staff Union seeking to add the title of Assistant Vice Provost, Research Compliance and Financial Accounting to its bargaining unit. The CERB concluded that the incumbent shared a community of interest with other bargaining unit members in terms of salary, duties, work contact and supervision. In so holding, the CERB rejected the University’s arguments that the disputed title should be excluded as a managerial/supervisory employee. It also rejected the argument that the newly-created disputed title should be excluded based on the CBA’s recognition clause, which excluded certain provost titles, but not “Assistant Vice” provost titles.
November 2019
MUP-17-5940 HEARING OFFICER DECISION November 25, 2019 Town of Blackstone and Blackstone Union, Local 442, MUP-17-5940 Hearing Officer Decision. The issue in this case is whether the Town of Blackstone (Town) violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Law when it notified the District Attorney’s (DA) office about an internal affairs (IA) investigation report that found Town Police Department employee and Union member Maxwell Hurwitz was untruthful and had engaged in conduct unbecoming an officer. Based on the entire record, the Hearing Officer found that the Town did not violate the Law because the Union could not demonstrate that the Town was motivated by a desire to penalize Hurwitz for engaging in concerted, protected activity when it contacted the DA’s office based on the findings of untruthfulness and conduct unbecoming an officer in the IA report.
ARB-18-6662 ARBITRATION DECISION November 18, 2019 City of Amesbury and Amesbury Firefighters, Local 1783, IAFF, ARB-18-6662, Arbitration Decision. The issues in this case are: Whether the City’s failure to pay working out of grade pay to a fire fighter assigned to the 55 position violates the collective bargaining agreement? Whether the City’s assignment of fire fighters, rather than permanent lieutenants, to the 55 position violates Article 2? If so, what shall be the remedy? The arbitrator found that the City did not violate the collective bargaining agreement when it assigned fire fighters rather than permanent lieutenants to the 55 position nor when it failed to pay out of grade pay to a fire fighter assigned to the 55 position.
SUP-16-5643 HEARING OFFICER DECISION November 5, 2019 Commonwealth of Massachusetts/Department of Mental Health and Massachusetts Nurses Association, SUP-16-5643, Hearing Officer Decision. The issue in the case was whether the Employer violated Sections 10(a)(5) and, derivatively, 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by requiring a registered nurse in statewide bargaining unit 7 employed at Taunton State Hospital to provide nursing services to patients of the on-grounds programs outside the Hospital without giving the Union 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 that the Employer implemented a new condition of employment when it required a Hospital nurse to provide coverage to the on-grounds program, which was short-staffed on November 5, 2016. After addressing each of the Employer’s arguments, including that any change was de minimis and the result of an emergency, the Hearing Officer concluded that the Employer violated the Law as alleged, and ordered the Employer to restore the status quo ante until it fulfilled its bargaining obligations.
October 2019
SI-19-7658 CERB RULING ON STRIKE PETITION October 24, 2019 Dedham Education Association, et al & Dedham School Committee, SI-19-7658 CERB Ruling on Strike Petition. The Dedham School Committee filed a Petition for Strike Investigation with the CERB alleging that an illegal strike within the meaning of Section 9A of Massachusetts General Laws Chapter 150E (the Law) was about to occur and that the Dedham Education Association (DEA), and other respondents who were officers of the Union and members of the Union’s bargaining team had induced, encouraged and condoned the strike. After conducting a strike investigation on October 24, 2019, the CERB concluded that the DEA and Union President Dwyer, but not the other named respondents, had violated Section 9A of the Law as alleged. The CERB’s ruling was based on evidence showing nearly two years of bargaining and unsuccessful mediation for a successor contract; the DEA’s intent to hold a general membership meeting on October 24, 2019, at which a strike vote would be taken to strike on October 25; flyers and emails admittedly authored by the Union president discussing the strike vote, making statements like “What options are left for us?” and “Enough is enough” and inviting support at rallies to take place on October 25. The CERB ordered the DEA and Dwyer to, among other things, cease and desist from engaging or threating to engage in a strike, cancel the strike vote, and publicly disavow and disclaim any future strike, work stoppage or slowdown
SUP-18-6743 HEARING OFFICER DECISION October 10, 2019 Massachusetts Convention Center Authority and National Conference of Firemen & Oilers, Local 3, SEIU, SUP-18-6743, Hearing Officer Decision. The issue in the case was whether the Employer violated Sections 10(a)(5) and, derivatively, 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by transferring loading dock 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 that loading dock duties were shared work and that the City’s transfer resulted in both a calculated displacement of bargaining unit work and an adverse impact on the bargaining unit. After addressing each of the Employer’s arguments, including contract waiver, the Hearing Officer concluded that the MCCA violated the Law as alleged, and ordered the Employer to restore the status quo ante until it fulfilled its bargaining obligations.
September 2019
MUP-16-5618 CERB DECISION September 27, 2019 City of Boston and Boston Police Superior Officers Federation, MUP-16-5618, CERB Decision.The CERB concluded that the City of Boston violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. c. 150E by not giving the Boston Police Superior Officers Federation prior notice and an opportunity to bargain before issuing a work rule that prohibited bargaining unit members from eating at their work stations and on the floor of the Police Department’s Operations unit. Although the CERB found that the City had a legitimate interest in protecting critical and expensive equipment and ensuring a rodent and pest-free environment, contrary to the Hearing Officer the CERB concluded that those interests did not outweigh the Union’s interests in bargaining over the decision and the impacts of the decision on bargaining unit members’ terms and conditions of employment, including, among other things, the availability of food in the workplace and the conditions under which it could be consumed.
ARB-18-6909 ARBITRATION DECISION September 26, 2019 Town of Longmeadow and Longmeadow Association of Municipal Employees, ARB-18-6909, Arbitration Award. The issue in this case was whether the Town violated the contract when it denied the request of an employee out on medical leave to return to work and instead required him to submit to a physical examination and drug test by the Town’s doctors. The Arbitrator determined that the contract required the grievant only to provide a doctor’s note upon his return from medical leave, which he did. Only under limited circumstances may the Town require an employee to submit to a physical examination: (1) as a condition of hire or promotion or (2) with evidence that the employee is incapable of full-time or satisfactory performance of his/her duties; or to drug testing (1) randomly, (2) post-accident or (3) based on reasonable suspicion that the employee is under the influence of controlled substances. Since the Town failed to establish that any of these conditions were satisfied, the Arbitrator concluded that the Town violated the contract and sustained the grievance. As a remedy, the Arbitrator ordered the Town to make the grievant whole for lost wages during the period of time the Town prohibited him from working.
MUP-17-5924 HEARING OFFICER DECISION September 6, 2019 City of Boston and Salaried Employees of North America, Local 9158, MUP-17-5924, Hearing Officer Decision. The issue was whether the City of Boston violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by unilaterally changing the criteria by which SENA, Local 9158 bargaining unit members accrue vacation leave without giving the union prior notice and an opportunity to bargain to resolution or impasse over the decision and the impacts of the decision. The hearing officer held that the City of Boston violated the Law as alleged. During successor bargaining, the parties incorporated a medical leave policy into their CBA. That policy provided that employees on certain types of medical leave would be ineligible for their annual vacation drop on the following January 1 if their medical leave exceeded 12 weeks, excluding two weeks of vacation. After the parties agreed to this policy, the City of Boston, relying on the medical leave policy, implemented a broad vacation accrual policy that counted any absence from work during the calendar year, excluding two weeks of vacation, toward a 12-week threshold for losing the vacation drop. The hearing officer ordered the City of Boston to rescind the unilaterally implemented vacation accrual policy as applied to the union, and to bargain upon demand with the union.
MUP-17-6211 and MUP-18-6679 HEARING OFFICER DECISION September 5, 2019 City of Boston and SENA, Local 158, MUP-7-6211, MUP-18-6679, Hearing Officer Decision. The issue in this case is whether the City of Boston violated Section 10(a)(1), (3), (4), and (5) of the Law when it reduced Lisa Menino’s overtime, made changes to her job duties, and had other employees perform certain work. The Hearing Officer found that the City unilaterally required Menino to provide details about overtime requested and transferred the preparation and preapproval of overtime sheets to a non-unit member in violation of the Law. She dismissed the remaining allegations.
MUP-17-6076 HEARING OFFICER DECISION September 5, 2019 City of Gloucester and Gloucester Police Patrolmen’s Association, MUP-17-6076, Hearing Officer Decision. The issue in this case is whether the City of Gloucester violated Section 10(a)(1) of the Law when the Chief of Police required the Association President to answer certain questions about his union activities as part of an internal investigation, and when the Chief made comments about a grievance to unit members. The Hearing Officer found that the City violated the Law as alleged.
August 2019
MUP-16-5532 CERB DECISION August 20, 2019 City of Newton and Newton Police Superior Officers Association, MASSCOP, Local 401, MUP-16-5532 CERB Decision. The City of Newton and the Union filed cross-appeals from a Department of Labor Relations (DLR) Hearing Officer decision concluding, in part, that the City violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of M.G.L. c. 150E when the City failed to bargain on demand about the criteria and procedure for fitness for duty examinations, and when it unilaterally imposed a fitness for duty policy as a condition of continued employment. The CERB affirmed the decision in its entirety. The procedure by which an employer determines that an employee is physically and mentally fit for duty, including, but not limited to the selection of the evaluator, the information provided to the evaluator, the testing protocol, the results generated, and how that information will be used, are mandatory subjects of bargaining. The CERB also affirmed the remedy. Where the City’s decision to place the police officer on paid administrative pending the results of the fitness for duty exams was not at issue, restoration of the status quo ante did not include a make-whole remedy compensating the captain as if he had never been placed on leave.
ARB-18-6894 ARBITRATION DECISION August 16, 2019 Town of Billerica and International Union of Public Employees, Local 140, ARB-18-6894 Arbitration Decision. The Issue was whether the Town violated the parties' collective bargaining agreement (CBA) by denying the Grievant's request for an upgrade after the Town increased the Grievant's workload pursuant to reorganizing its Department of Public Works. As a preliminary matter, the Arbitrator determined that the grievance was arbitrable because it concerned the interpretation and application of provisions of the parties' CBA within the meaning of the CBA's grievance procedure. The arbitrator determined, however, that the Town did not violate the CBA when it denied the upgrade request because the CBA left the decision to grant or deny the request to the Town Manager's discretion. Additionally, the Arbitrator determined that increasing the Grievant's workload without prior notice and an opportunity to bargain did not violate the CBA's management rights clause because the increase in workload did not fall within the provisions of the management rights clause that made certain management actions subject to collective bargaining.
July 2019
MCR-19-7086 CERB DECISION July 19, 2019 Town of Braintree and New England Police Benevolent Association ad AFSCME Council 93, AFL-CIO, MCR-19-7086, CERB Decision. Where, based upon bargaining history and the language of the CBA’s recognition clause, the CERB rejected NEPBA’s argument that AFSCME represented Civilian Dispatchers in a stand-alone unit, but instead found that AFSCME represented a single, merged bargaining unit that included Civilian Dispatchers and other non-professional Town employees and that, under the CERB’s severance standard, the differences in the Civilian Dispatchers’ schedule or duties had not caused and were not likely to cause conflicts or divisions within the bargaining unit, the CERB dismissed a representation petition filed by the NEPBA seeking to represent a separate bargaining unit of Civilian Dispatchers.
MUP-17-6236 HEARING OFFICER DECISION July 19, 2019 Town of Auburn and Massachusetts Coalition of Police, Local 388A, MUP-17-6236, Hearing Officer Decision. The issue in this case is whether the Town of Auburn (Town) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it failed to fully, completely, and timely provide the Union with information that is relevant and reasonably necessary for the Union to execute its duties as collective bargaining representative. Based on the entire record, the Hearing Officer found that the Town violated the Law after the Union made several requests for information that was relevant and reasonably necessary for its representation of a member at disciplinary hearings, including a pre-termination “Loudermill” proceeding, but the Town unreasonably delayed providing the requested information to the Union until after those disciplinary hearings had concluded.
June 2019
CAS-17-6266 CERB DECISION June 27, 2019 Board of Higher Education and Association of Professional Administrators, MTA/NEA, CAS-17-6266, CERB Decision. The CERB dismissed a petition filed by the Association of Professional Administrators, MTA/NEA (APA) seeking to accrete four job titles to its bargaining unit of professional administrative employees employed by the Board of Higher Education (BHE or Employer). The CERB declined to accrete the Executive Director of Development and Alumni at Framingham State University based on a provision in the parties’ CBA that expressly excluded the “position with primary responsibility for development in the University.” It declined to accrete two Staff Assistants who worked for vice-presidents based on a provision in the CBA that excluded such titles. The CERB finally dismissed the petition with respect to the Executive Director Marketing and Integrated Communications at Fitchburg State University on grounds that she was a managerial employee under the first part of the statutory definition.
ARB-17-5907 ARBITRATION AWARD June 14, 2019 City Of Attleboro and Massachusetts Laborer’s District Council, ARB-17-5907 Arbitration Award. The issue in this case is: Did the City violate the collective bargaining agreement when it implemented a shift change for the two grievants and/or when it failed to compensate the grievants for working a certain amount of consecutive shifts? If so, what shall be the remedy? The arbitrator found that the City did not violate the collective bargaining agreement when it implemented the grievants’ shift change during an emergency situation. The arbitrator also was not persuaded by the Union’s argument concerning the number of consecutive shifts worked by the grievants, as the shifts worked covered two administrative workweeks and included the correct time off in both administrative workweeks.
MUP-17-5825 CERB DECISION June 7, 2019 Belmont School Committee and Belmont Education Association, MUP-17-5825, CERB Decision. Under circumstances where the Belmont School Committee had previously rejected a ground rule proposed by the Belmont Education Association to have negotiations open to all bargaining unit members, the School Committee did not violate its duty to bargain in good faith when it walked out of the bargaining room upon seeing seven or so unannounced individuals sitting in the back of the room, in addition to the Associations’ previously-announced core bargaining team. Given the Union’s failure to inform the School Committee in advance of this bargaining session that it had taken a vote to include “silent representatives” on its bargaining team, whose role, beyond merely observing negotiations, was to communicate with the core team during caucuses and to bring information back to their building, or that the seven or so individuals were bargaining unit members who had volunteered to serve in this capacity, the ambiguity of the bargaining unit members’ role privileged the School Committee to refuse to bargain in their presence on this single occasion.
May 2019
ARB-16-5516 ARBITRATION AWARD May 6, 2019 City of Worcester and NAGE, Local 495, ARB-16-5516 Arbitration Award. The issue in this case is: Whether the City had just cause to terminate the employment of Lewis James? If not, what shall the remedy be? The arbitrator found that the City did have just cause to terminate the employment of Lewis James based on James’ unacceptable interactions with citizens while performing his work duties. The City’s used multiple levels of progressive discipline in an attempt to change James’ work behavior, but it proved unsuccessful, resulting in a justified termination.
April 2019
SUPL-18-6446 HEARING OFFICER DECISION April 24, 2019 AFSCME, Council 93 and Paul Topolski, SUPL-18-6446 Hearing Officer Decision. The issue in the case is whether AFSCME, Council 93, AFL-CIO violated Section 10(b)(1) of Massachusetts General Laws, Chapter 150E by filing an untimely demand for arbitration of Charging Party Paul Topolski’s termination grievance. The hearing evidence established that AFSCME violated Chapter 150E as alleged, and that Topolski’s grievance was not clearly frivolous. AFSCME will have an opportunity at a subsequent hearing to present evidence to show that Topolski’s grievance was not meritorious. If AFSCME is unable to do so, it must make Topolski whole for any wages and contractual benefits that he lost as the result of his termination from employment at Mount Wachusett Community College.
ARB-17-6171 ARBITRATION AWARD April 5, 2019 Aubuchon Distribution, Inc. and Teamsters Local 170, ARB-17-6171, Arbitration Award. The issues in this case are: Did the Company violate Article 15, Section 2 of its collective bargaining agreement with the Teamsters, Local 170 by outsourcing all of its work to a third party which did not assume the obligations of the Company under the collective bargaining agreement? If so, what shall be the remedy? The arbitrator found that the Company did not outsource all of its union work when it closed its distribution center and laid-off union members. As such, the grievance was denied
March 2019
SUP-15-4601 HEARING OFFICER DECISION March 19, 2019 University of Massachusetts Dartmouth and University of Massachusetts Dartmouth Faculty Federation, Local 1895, AFT, AFL-CIO, Educational Services Unit, SUP-15-4601. Hearing Officer Decision. The issue in this case is whether the University of Massachusetts Dartmouth (Employer) violated Section 10(a)(3) and, derivatively, Section 10(a)(1) of the Law when it gave bargaining unit member Donald King (King) “marginal” and “unsatisfactory” ratings in his 2013-2014 evaluation in retaliation for engaging in the concerted, protected activities of filing a grievance, and attempting to enforce his contractual rights to take family leave. The Hearing Officer found that the Employer had unlawfully retaliated against King by giving him negative evaluation ratings which disqualified him from receiving a base rate salary increase. The Hearing Officer based her finding on the following factors: (1) the timing of the Employer’s evaluation ratings in relation to King’s grievance; (2) the Employer’s deviation of established practices for conducting evaluations; and, (3) the Employer’s insubstantial reasons for the deviating from those practices. Although the Employer met its burden of presenting legitimate, non-discriminatory reasons for giving King negative ratings in his 2013-2014 evaluation, the Union was able to show that but for King’s protected, concerted activity the Employer would not have taken unlawful action against him.
MUP-16-5618 HEARING OFFICER DECISION March 15, 2019 City of Boston and Boston Police Superior Officers Federation MUP-16-5618, Hearing Officer Decision. The issue in this matter was whether the City of Boston violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law when it issued food and drink guidelines that restricted the on-duty consumption of food and drink by supervisors in the police department’s operations unit. The hearing officer determined that the guidelines did not impact a mandatory subject of bargaining and dismissed the complaint because the mere inconvenience to superior officers that the guidelines imposed did not outweigh management’s interest in maintaining a sanitary working environment where the guidelines did not prohibit officers from eating and drinking while on-duty but only restricted the manner in which they could do so.
January 2019
MUP-16-5532 HEARING OFFICER DECISION January 30, 2019 City of Newton and Newton Police Superior Officers Association MUP-16-5532, Hearing Officer Decision. The issue in this case was whether the City violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by repudiating the drug and alcohol testing policy contained in the parties’ collective bargaining agreement, delaying providing relevant and reasonably necessary information, refusing to bargain on demand about the criteria and procedures for imposing fitness for duty examinations, and imposing a fitness for duty policy without giving the union notice and an opportunity to bargain to resolution or impasse about the decision and the impacts of the decision. The hearing officer dismissed count I, finding that the City did not repudiate the contractual provision because the chief or police did not order the drug test, and the policy did not expressly apply to fitness for duty examinations. The hearing officer also dismissed count II, finding that the City’s response to the information request did not diminish the union’s ability to effectively function as the exclusive bargaining representative. The hearing officer sustained counts III and IV, finding that the City imposed a fitness for duty policy as a condition of continued employment without giving the union notice and an opportunity to bargain about the criteria and procedures for imposing fitness for duty examinations. In addition to a notice posting, the hearing officer ordered the City to bargain on demand about the criteria and procedures for imposing a fitness for duty policy and to rescind the unilateral imposition of a fitness for duty policy until it had bargained to resolution or impasse with the union.
December 2018
SUPL-17-5913 HEARING OFFICER DECISION December 31, 2018 Service Employees International Union, Local 888 and Speanilove Nelson, SUPL-17-5913, Hearing Officer Decision. The issue is whether the Union breached its duty of fair representation owed to Nelson in violation of Section 10(b)(1) of Massachusetts General Laws Chapter 150E (the Law) when it 1) posted on a Union bulletin board a negative and critical response to a petition that Nelson had circulated in an effort to remove certain Union representatives and 2) conducted a membership vote on a global shift re-bid after reaching settlement with the Commonwealth of Massachusetts/Executive Office of Health and Human Services’ Soldiers’ Home, Nelson’s employer. Based on the record, the Hearing Officer concluded that the Union’s actions were not arbitrary, perfunctory, or motivated by hostility because the Union made reasonable efforts to acknowledge Nelson’s concerns about the posting and demonstrated good faith and a lack of hostility by its continued attempts to resolve the issue. In addition, the Union had gathered sufficient information concerning the merits of its unfair labor practice charge against Nelson’s employer and made a reasoned judgment in deciding to poll its membership as a necessary part of settling the charge, and had entered into a settlement agreement that stood to benefit all members, including Nelson.
MUPL-16-5167 CERB DECISION December 28, 2018 Ann M. O’Keeffe and Boston Teachers Union Local 66, MUPL-16-5167, CERB Decision. The CERB affirmed a hearing officer decision addressing the time frame of the damages awarded to the charging party to compensate her for the damages she suffered as a result of her union’s failure to file a timely demand for arbitration. Finding that the charging party would not have received the requisite medical clearance to return to work, the hearing officer cut off the union’s backpay liability as of the date the charging party would have returned to work from the medical leave she was requesting at the time she was terminated. The charging party appealed, arguing that the backpay award was speculative and erroneous because she had returned to work at another job as of the date her leave would have ended. The record showed however that the charging party did not return to work until five months after her leave would have ended. Furthermore, tying the need for her leave to divorce proceedings, which were ongoing, the charging party testified that she did not know whether she could have returned to work as of the date her leave would have ended. The CERB thus found no basis in the record to overturn the hearing officer’s conclusion that the charging party could not have returned to work on the date her leave would have expired.
MUPL-17-6337 HEARING OFFICER DECISION December 12, 2018 International Association of Machinists and Aerospace Workers, Local Lodge 100 and Joseph E. Fitzgerald MUPL-17-6337, Hearing Officer Decision. The issue is whether the Union breached its duty of fair representation owed to Fitzgerald in violation Section 10(b)(1) of Massachusetts General Laws Chapter 150E (the Law) when it investigated whether to file a grievance on behalf of Fitzgerald challenging his termination, but subsequently decided not to file a grievance. Based on the record, the Hearing Officer concluded that the Union’s actions were not arbitrary, perfunctory, or demonstrative of inexcusable neglect because the Union conducted a full investigation into the merits of Fitzgerald’s claim by gathering sufficient information, making a reasoned judgment, and following the contractual grievance procedures.
ARB-17-6272 and ARB-18-6459 ARBITRATION AWARD December 11, 2018 Town of Woburn and New England Police Benevolent Association, ARB-17-6272 and ARB-18-6459, Arbitration Award. The issue in this case is: Did the City of Woburn violate Article X, “Paid Details” by not compensating Officer Robert Curran eight hours of pay after working his July 29, 2017 detail at Marshall’s (Detail # 17-1997) and by not compensating Officer Norm Seguin eight hours of pay after working his November 18, 2017 detail at Hilton Boston Hotel (Detail # 17-3291)? If so, what shall the remedy be? The arbitrator found that the disputed language was clear and unambiguous, and that the City did violate the collective bargaining agreement when it failed to pay Officer Curran and Officer Seguin eight hours pay for their disputed detail shifts.
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 and 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 and 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 Unions 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/Department of Children and 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 and 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 non-consenting 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 and 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 and 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 and 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 and 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. Appeals Ct. 9 (1991), further rev. denied, 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 and MUP-16-5542 HEARING OFFICER DECISION March 14, 2018 NEWTON SCHOOL COMMITTEE AND NEWTON PUBLIC SCHOOLS CUSTODIANS ASSOCIATION, MUP-16-5186 and 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 and 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 and 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 and SUP-16-3640, CERB DECISION July 31, 2017 MASSACHUSETTS DEPARTMENT OF TRANSPORTATION AND UNITED STEELWORKERS, LOCAL 5696, SUP-14-3576 and 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 and MASSACHUSETTS 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 AND 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 and MUPL-14-3671 CERB DECISION February 28, 2017 MAHAR TEACHERS ASSOCIATION AND MICHAEL MAGEE, ASF-3675 and 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 and 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 and 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 and 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.