D. Appropriate Bargaining Units [192]

Summary of law for public employee collective bargaining

1. Statutory Criteria

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

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

a. Community of Interest

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

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

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

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

b. Efficiency of Operations and Effective Dealings

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

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

c. Safeguarding Employee Rights to Effective Representation

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

1. Policy Considerations

a) DLR’s Broad Discretion

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

b) Comprehensive Units Favored

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

c) Stipulated Units

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

2. Supervisory Units

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

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

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

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

3. Professional Employees

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

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

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

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

4. Technical Employees

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

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

5. Statewide Units

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

Nonprofessional Employees

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

Professional Employees

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

6. Statutorily Mandated Units

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

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

7. Employees Other Than Regular Full-Time Employees

a) Part-Time Employees

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

b) Seasonal Employees

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

c) Casual Employees

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

d) Police and Fire

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

8. Modification of Existing Bargaining Units

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

a) Severance

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

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

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

b) Accretion

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

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

c) Stipulation by the Parties

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

d) Self-Determination or Add-On Election

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

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

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

9. Judicial Review

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

____________________

[192] Both the DLR and the CERB, depending on the posture of the case, are authorized to determine appropriate bargaining units giving due regard to such criteria as community of interest, efficiency of operations, and safeguarding effective representation, as further described below. For efficiency, the references to the DLR in this section will include the CERB.

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

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

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

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

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

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

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

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

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

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

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

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

[205] Statement in Support of Adoption of Amendment to Rules and Regulations of the Commission Creating Statewide Occupational Units, 1 MLC 1318 (1975).

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

[207] Statement in Support of Adoption of Amendment to Rules and Regulations of the Commission Creating Statewide Occupational Units, 1 MLC 1318 (1975).

[208] Town of Wakefield , 28 MLC 290 (2009).

[209] Id.

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

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

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

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

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

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

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

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

[218] Id.

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

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

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

[222] Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

[236] Id.

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

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

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

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

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

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

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

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

[245] Id.

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