Commentary on Massachusetts Department of Labor Relations Decisions (Apr – Dec, 2015)

[parties] did bargain over the City’s right not to fill the 20-hour Senior Clerk positions and to create the 18.5-hour positions, they bargained over the impact of the creation of these positions, i.e., the compensation and benefits the 18.5-hour Senior Clerks should receive.”

CERB Upholds Hearing Officer Decision Requiring Bargaining To Install GPS Tracking Devices; Decision On Appeal.

In City of Springfield v. American Federation of State County and Municipal Employees,  41 MLC 130, aff’d 41 MLC 383 (June 30, 2015), CERB upheld a prior decision requiring an Employer to bargain before installing GPS tracking devices and indicated a change of course by the DLR on this issue.  The City has filed an appeal in the Appeals Court.  The City argued to CERB that the Hearing Officer ignored DLR precedent, first pointing to City of Worcester and Local 495, National Association of Government Employees, 34 MLC 15 (2007), where the DLR dismissed a union charge on the basis that the City could, without bargaining, adopt a GPS system to monitor employees because it was not altering standards of productivity and performance and did not change any terms and conditions of employment.  The City also cited the DLR’s 1998 decision in Duxbury School Committee, 25 MLC 22 (1998), where it upheld the Employer’s unilateral right to install surveillance cameras to monitor discrepancies between employees’ departure times and the times recorded on their timecards.

The CERB responded that it has not abandoned the longstanding principle that an Employer can alter a procedural mechanism for enforcing existing work rules without bargaining provided that the Employer’s actions do not change underlying conditions of employment.  But it said that City of Worcester had “no precedential value” because the charge that was dismissed at the investigation stage and, was insufficient to establish probable cause that there had been a violation of c. 150E.  CERB found that Duxbury School Committee was distinguishable because the Duxbury employees had always been required to accurately report their time on an electronic time clock.  In contrast, according to CERB, there had been no formal vehicle data collection of the Springfield employees and the GPS devices were installed surreptitiously: “The clandestine installation of devices that enable an employer, for the first time, to engage in constant, remote electronic monitoring of aspects of employee performance that had not been previously routinely reported or observed plainly constitutes the institution of a new practice.”

CERB wrote that, even if no new work standards were created, the devices greatly increased the amount of data that the City had access to in order to evaluate work performance and productivity. It noted that, within four days of the installation of GPS devices, the City notified a union official that it had monitored and recorded two unauthorized trips to conduct union business.  “The increased monitoring of, and information about, employee job performance and productivity affected employees’ underlying terms and conditions of employment such that the City was required to bargain over whether to install the devices and whether and how it intended to use the constant stream of information before installing them.”

When the City pointed to a favorable 2002 Advice Memo in an NLRB case, the CERB distinguished that advisory from the NLRB’s 2005 decision in BP Exploration.  The 2002 case involved the Employer’s installation of computer tracking devices in vehicles to monitor driver location where the employees were already required to radio their locations to dispatchers as they moved from destination to destination.  CERB said the only difference was whether the computer, or the employee, generated the information.  CERB contrasted BP Exploration, where bargaining was ordered, because the City installed vehicle data recorders (VDR) that provided far more information about employee driving behaviors than it had previously been able to obtain by radio or personal observations. Substituting the constant electronic observation of the VDRs for intermittent occasional personal observations and radar readings greatly increased the chances of an employee being disciplined, creating a “material, substantial and significant impact on employee working conditions.”

We continue to question the logic of the DLR’s decision.  The 2007 City of Worcester decision found by CERB to have “no precedential value” was not only a dismissal by the full Commission back then but issued under a probable cause standard, which is highly favorable to the charging party.  Further, the facts in Springfield included that the City had always required DPW workers to report to work at their assigned location and perform their assigned job.  The act of installing and monitoring a GPS device did not impose a reporting requirement on its employees, as employees were not required to make a “report” regarding their daily tasks.  Finally, even in cases where employees were unaware of the GPS device’s presence, working conditions were not changed because in years prior to GPS, supervisors could randomly check on an employee’s work without providing the employee with prior notice.

City Must Bargain Over Changes In Vacation Accrual Method

In City of Lynn and AFSCME, Local 1736, 41 MLC 297 (April 2, 2015), the DLR Hearing Officer held that the City failed to bargain over the decision to not permit unit members who worked past either February 1^st, or July 1^st in their retirement year to earn vacation time for the following fiscal year.

The School Committee had a practice for twenty years of allowing employees to earn vacation time for the following year if they worked past February 1^st in their retirement year, provided they retire before July 1^st..  In 2011, two employees who retired after February 1^st, but before July 1^st had been denied this benefit of accruing additional vacation time.

Prior to June 2006, the School Committee employed all civil service employees.  After June 2006, pursuant to Chapter 117 of the Acts of 2006, the maintenance employees previously employed by the School Committee were transferred to the Inspectional Services Department.  After the passage of Chapter 117, employees who stayed with Local 193 and were employed by the School Department continued to receive this benefit.  However, employees who were transferred to the City did not received this benefit.

The City claimed the School Committee’s practice did not apply to retiring unit members employed at the Inspectional Services Department (ISD).  The Hearing Officer rejected this argument based on a practice which was “substantially unvaried and with regularity for over 20 years.”  The Hearing Officer held that a “condition of employment may be found despite sporadic or infrequent activity where a consistent practice that applies to rare circumstances is followed each time that the circumstances preceding the practice recurs.”

The Hearing Officer rejected the argument that the City and School Committee were separate entities and requires both to “share responsibility when bargaining obligations have not been fulfilled- even when one party did not participate in, or endorse the actions of the other.”  While the City was not a party to the School Committee’s decision to establish the vacation-retirement benefit, it was obligated to bargain over the decision to eliminate the practice.  The Hearing Officer held that the City should have been aware of the school’s respective practices before implementing changes to the extent there is a bargaining obligation.

The City was ordered to return the status quo and make any affected unit members whole for the vacation-retirement payout.

Town Must Bargain Over Changes in Past Practices That Happened Over 20 Years Ago

In Town of Shrewsbury and Shrewsbury Firefighters Association, 41 MLC 347 (June 1, 2015), the Hearing Officer held the Town violated the law by unilaterally discontinuing the practice of converting vacation to sick leave when a firefighter became ill during a vacation in the winter of 2013 and provided medical documentation verifying their illness.

The Union alleged a past practice, based on two prior examples in 1992 where employees were allowed to convert vacation to sick leave.  The issue is whether a two occasions, 21 years prior to the current case is sufficient to establish a binding practice.  The Hearing Officer held there was no specific time frame required to establish a practice and considered several prior DLR cases based on sporadic practices over a prolonged period of time.

The Hearing Officer rejected the argument that the Town Manger is the final decision maker and cannot be bound by a former Fire Chief’s “practice” 21 years prior.  The Fire Chief had apparent authority to make decisions and act on behalf of the employer.  The DLR ordered a return to the status quo.

PROCEDURAL ISSUES AT THE DLR

CERB Reverses Union Victory On Retaliation Charge Because Of Union’s Pleading Flaw.

In Commonwealth of Massachusetts Secretary of Administration and Finance and AFSCME Council 93, AFL-CIO, the Commonwealth Employee Relations Board (“CERB”) reversed a Hearing Officer’s decision finding that the Employer had retaliated against an employee, Peter Horsman (“Horsman”), in two separate instances in which it issued him written reprimands because the Union had failed to allege the reprimands as separate c. 150E violations.  Rather, the Union’s charge, and the complaint issued as a result of an August, 2010 layoff as the sole adverse action. 40 MLC 366 (2014), rev’d 42 MLC 49 (July 31, 2015).  The reprimands had occurred in September 2009 and April 2010.

The Hearing Officer acknowledged that the charges based on the reprimands were not timely, but relied on the principle in Town of Norwell, 18 MLC 1263, 1274 (1992) that the DLR may consider and decide unpled allegations if the conduct relates to the general subject matter of the complaint and the issue is fully litigated.  CERB pointed out that, in Norwell, there was no need for the CERB to consider timeliness because the unpled allegation — a unilateral change in the employer’s promotion practices — occurred on the same day as the timely allegation contained in the complaint, which CERB ruled, “[a]s a policy matter, to find a violation based on these untimely and unpled [reprimand] violations would be inconsistent with the purpose of 15.03’s period of limitations, which extinguishes liability for unfair labor practices committed more than six months after the filing of a claim in order to avoid stale claims.”

Untimely complaints can be litigated where the opposing party has expressly agreed to waive the statute of limitations.  The Union argued that the Commonwealth had done so by failing to object to the Union’s submission of the reprimands as evidence.  But CERB responded that the reprimands were never introduced as the basis for separate violations, nor was there a motion to amend the complaint to include them.  They were not in the parties’ joint pre-hearing memorandum and not referenced in opening or closing arguments, or post-hearing briefs as independent grounds for the 10(a)(4) charge that was litigated.  In short, the Commonwealth had no notice that that the two reprimands were going to be treated as separate violations until the Hearing Officer issued the decision.  Further, mere acceptance of one of the reprimands into the record did not establish that the issues related to the reprimands were fully litigated or could serve as a separate violation because that did not sufficiently put the Commonwealth on notice that it could serve as a separate violation.

CONCERTED PROTECTED ACTIVITY

Telling A Bargaining Unit Member Not To Talk To The Union About The Resolution Of A Dispute Over A Term Of Employment Is Coercive Even When The Member Ignores The Directive.

A supervisor who told a Union employee to whom he had provided relief in a dispute over the employee’s eligibility for call back pay, “I do not want you to speak to anybody outside of this office” interfered and restrained the employee in the exercise of Section 2 rights under c. 150E. Commonwealth of Massachusetts/Commissioner of Administration and Alliance, AFSCME-SEIU, Local 509, 42 MLC 55 (2015).

The Employer argued that the instruction to the Employee was meaningless because 1) other bargaining unit members knew that the employee was seeking call back pay; and 2) the employee disobeyed the instruction and spoke to other bargaining unit members as soon as the meeting ended.

However, the Hearing Officer noted the test is the impact the Employer’s conduct would have on a reasonable employee.  “Reasonable employees would conclude that the when a supervisor gives them a clear directive, they must obey the directive, even if the directive impacts upon the employee’s Section 2 rights.”  The Hearing Officer also noted that giving the employee the call back pay she wanted did not mitigate the violation because an employee could have reasonably concluded that following the directive to remain silent was a quid pro quo for receiving the call back pay, i.e., even the promise of a benefit for not exercising Section 2 rights is considered coercive.

ARBITRATION AWARDS

Arbitrator Rejects Transparent Attempt Of Employee Who Was Adopting A Child To Get The Paid Sick Leave Benefit Provided To Teachers Disabled By Their Pregnancy.

Most employers have had the frustrating experience of an employee trying to get sick leave by enlisting the aid of a doctor who seems willing to write most anything to get his “patient” the paid time off.  Kudos to Arbitrator Timothy Hatfield, who would have none of it in Spencer-East Brookfield Regional School District and Spencer-East Brookfield Teachers Association, 42 MLC 91 (September 4, 2015).  In this case, a teacher who was adopting a child pressed a claim for the eight week paid sick leave benefit in the CBA for teachers who were legitimately incapacitated by a pregnancy.  The operative language for childbearing leave read: “The member who is pregnant and physically unable to work due to disability connected to pregnancy, may use her accumulated sick leave to cover those days when she is disabled and unable to work.  Said time may be confirmed by her physician.”  The CBA included provisions for unpaid childrearing leave based on state and federal statutes.  The teacher notified the Superintendent just prior to the 2013-2014 school year that she would be adopting a child during that year.  She requested eight weeks of paid child-bearing leave and four additional weeks of FMLA.  The Superintendent explained that she was not eligible for childbearing leave because it was only for mothers who gave birth and had a physician’s note confirming a medical inability to work.  The Union interceded and the Superintendent reiterated the requirement of a physician documented disability due to birthing/post-partum, etc.  The Superintendent also cautioned that it would look “suspect” if the teacher produced a physician’s note after the child was placed with her in support of a request for childbearing leave.

In February, 2014, an 18-month old girl was placed with the teacher.  The teacher notified the Superintendent and her 8-week period of unpaid childrearing leave commenced.  Over the next several weeks, the teacher contended that she was overwhelmed by the adjustment of caring for the baby—experiencing sleep deprivation, anxiety, mental and physical exhaustion and not eating properly.  She went to see her primary care physician (“PCP”) who wrote the following letter for her: (dates?) “This letter is to inform you that as [teacher’s] PCP, I have recommended that she take a leave of absence from work for 8 weeks commencing on February 24, 2014 for medical reasons related to the fostering and adoption of a child.”

Citing the physician’s note, the teacher re-submitted a request for paid sick leave and the Committee again rejected it “…based upon the reason that her request for use of sick days is not permitted under the collective bargaining agreement for leaves related to adoption.”  The Superintendent and the Union President discussed whether a more detailed note from her primary care physician might change the Committee’s mind, so the teacher obtained a revised note which added the following paragraph: “[The teacher] was given custody of this child on a very short notice and needed time to form an emotional attachment to this child.  She experienced all of the symptoms I would expect from a new mother including adjustment and adjustment reaction.  As with any new mother, I recommended a medical leave so that she could take the time she needed to overcome the stressors associated with her new role.”  The teacher returned to work after eight weeks on unpaid childrearing leave.

The Union argued that, although the Employer denied the sick leave request based on a comparison of the CBA provisions addressing childbearing and childrearing leave, the proper analysis was whether she was entitled to sick leave under the CBA’s sick leave provisions, i.e., the teacher had requested sick leave based on a physician’s note and it had to be granted under the CBA.  The Union pointed out that the Employer had never challenged the validity of the note.  The Committee argued that a request for sick leave accompanied by a physician’s note is no guarantee that an employee will get paid sick leave.  It pointed out that the teacher had told the Superintendent months before the adopted child arrived that she wanted paid sick leave, she was told no and further told that any subsequent physician’s note would be suspect.  The Committee also argued that the PCP’s notes did not qualify her for sick leave because sick leave was not available for “new mother” symptoms and a need to “bond” with the child.

Arbitrator Hatfield sided with the Committee for the following reasons:

• There was no dispute that the teacher was not eligible for childbearing leave.

• The arbitrator noted that, while the Union argued the issue as a sick leave case, he was convinced that the sick leave request was simply an attempt to get paid leave while [the teacher] took time to be with her new child because:

• She produced a sick leave note after she was told she would not get paid sick leave under the CBA’s childbearing provision.

• Both the first and second PCP’s notes sought paid sick leave for her for the exact same period—8-weeks—as it was available for a teacher incapacitated from working under the childbearing provision in the CBA.

• The doctor’s note described the symptoms as first time motherhood and “[t]here was no suggestion from her doctor that she would need a follow up appointment or any other medical treatment to address any health related concerns.”

• There was no evidence to support the Union’s argument that a physician’s note is all that it took to get sick leave or that the school was even required to allow sick leave, with or without a physician’s note. In fact, there was no language in the Contract that set forth the criteria under which the Committee granted or denied sick leave.

• While the Arbitrator was not persuaded that there would never be a circumstance under which are entitled to use sick leave while on childrearing leave, this was not the circumstance because of the evidence presented.

Discharge Upheld for Employee’s Repeated Failure to Perform Public Safety Duties

Arbitrator Hatfield held in Town of Barnstable and AFSCME Council 93 (41 MLC 355) (year) that the Town had just cause to discharge an employee, who repeatedly failed to respond to after hours’ calls regarding snow and ice, which were part of his job description.  The Arbitrator credited that the Town had advised the employee tried on five occasions over thirteen months to advise the employee that he was required as an essential employee to work beyond his normal work hours, in responding to snow and ice events.

The arbitrator noted that “the safety of the public during snow and ice events if of paramount importance to the Town” and the employee repeatedly refused to perform this work, despite multiple warnings including a verbal warning and suspension and “repeated efforts” to correct the employee’s behavior.