Opinion
21-P-1051
10-04-2022
BOSTON PUBLIC HEALTH COMMISSION v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Boston Public Health Commission (the Commission) appeals from a Commonwealth Employment Relations Board (CERB or board) decision affirming the dismissal of its prohibited practice charge against the American Federation of State, County, and Municipal Employees, Council 93 (Union). On appeal, the Commission claims CERB erroneously ruled that the Union did not act in bad faith when it filed a prohibited practice charge against the Commission. According to the Commission, the Union's charge was knowingly baseless and amounted to a repudiation of a collectively bargained agreement. We affirm.
Discussion.
We may set aside the final decision of an administrative agency, including CERB, if it is (1) based on an error of law, (2) unsupported by substantial evidence, or (3) arbitrary, capricious, or an abuse of discretion, among other grounds. G. L. c. 30A, § 14 (7). We give deference to the board's specialized expertise and interpretation of relevant statutes. See Anderson v. Commonwealth Employment Relations Bd., 73 Mass.App.Ct. 908, 910 (2009).
This dispute relates to the hiring process for sergeants in the Commission's Public Safety Department. When the Commission created several new sergeant positions in 2006, the Union sought to limit eligibility to existing officers, but the Commission wanted to be able to consider external candidates, as well. In an August 2006 letter to the Union, the Commission's Director of Labor Relations wrote that the parties had orally agreed to allow external applicants. From 2006 to 2020, the Commission posted sergeant positions publicly with no indication that only existing officers could apply. Although open to external candidates, the Commission hired existing officers into all sergeant positions during that time.
The Union is the exclusive bargaining representative for both Campus Police Officers and Sergeants within the Public Safety Department.
The letter also confirms the minimum number of years of experience for the position, the terms and conditions of overtime, and that the position would be posted in accordance with the collective bargaining agreement.
There were at least eight rounds of hiring for sergeant positions between 2006 and 2020. For one round in 2018, the job posting stated that only internal candidates may apply, but the Commission later clarified this statement was included in error.
In October 2020, the Commission held a promotional exam for a sergeant position, with external candidates taking the exam.The Union filed a prohibited practice charge with the Department of Labor Relations (DLR) a few months later, alleging that the presence of external candidates violated the Commission's statutory obligation to bargain in good faith. In response, the Commission filed its own prohibited practice charge in May 2021, claiming the Union failed to bargain in good faith by refusing to abide by the 2006 agreement on external candidates.
The dispute flared up previously in July 2019, when the Union filed a grievance with the Commission, claiming the posting of a sergeant position that month violated "a past agreement / past practice of internal candidates." The Commission rejected the grievance because, among other reasons, its past practice was to permit external candidates.
The DLR investigator dismissed both charges, and CERB upheld the dismissal. With respect to the Commission's charge, CERB and DLR both reasoned that, assuming an oral agreement existed, the agreement "neither required nor prevented the Union from taking a particular action." CERB also reiterated DLR's observation that "the Law permits both public employers and unions to file prohibited practices charges and that filing such a charge is a protected activity."
DLR dismissed the Union's charge because the Union failed to show probable cause to believe the Commission unilaterally changed past practice and because the charge was untimely filed.
On appeal, the Commission claims CERB erred as a matter of law because (1) repudiation of a collectively bargained agreement violates the collective bargaining statute, and (2) CERB should have found the Union's filing of a prohibited practice charge was a repudiation.
The Commission also claims there is sufficient evidence in the record to show that an unambiguous agreement existed. The Commission notes that DLR and CERB assumed the agreement's existence. The DLR investigator noted that, for a repudiation claim, the Commission needed to show the Union deliberately refused to abide by an unambiguous agreement. See City of Boston, 44 MLC 238, 243 (2018). The investigator found ambiguity because the parties disputed the existence of an agreement. Both DLR and CERB reached their conclusions "even assuming without deciding that there was an oral agreement in place." The Commission does not claim any error in CERB's approach on this point.
The Massachusetts collective bargaining statute, G. L. c. 150E, § 10 (a) (5), makes it a prohibited practice for a public employer to "[r]efuse to bargain collectively in good faith with the exclusive representative [of a bargaining unit]." The statute places the exclusive representative under a reciprocal obligation to bargain in good faith. G. L. c. 150E, § 10 (b) (2). DLR interprets the statutory obligation of good faith as encompassing a duty to implement fully the terms of a collectively bargained agreement. See Board of Higher Education, 33 MLC 156, 158 (2007). However, the statute also lays out a grievance procedure for either party to a collective bargaining agreement to follow if they believe a prohibited act of bad faith has occurred. G. L. c. 150E, § 11. Because the statute specifically protects a party's right to file a prohibited practice charge, CERB and DLR reasoned that any such filing cannot itself be a prohibited practice. CERB determined that even if the parties had an agreement on external candidates, the Commission could not premise a prohibited practice charge solely on the Union's prior charge. In light of the deference we owe to CERB with respect to interpreting the statutes it administers, there was no error in this reasoning. See Anderson, 73 Mass.App.Ct. at 910.
Either party may submit a complaint to DLR that a prohibited practice under § 10 has been committed. G. L. c. 150E, § 11 (a). A party may request review of a DLR investigator's decision by CERB. G. L. c. 150E, § 11 (e) .
CERB further noted that the Commission could have raised a waiver-by-contract defense to the Union's charge. "A party may show that the other party clearly and unmistakably waived its right to bargain over an unlawful unilateral change where the other party had actual notice of the proposed change, a reasonable opportunity to negotiate over it, and unreasonably or inexplicably failed to bargain or to request bargaining." School Comm. of Newton v. Labor Relations Comm'n, 388 Mass. 557, 570 (1983). The Commission had the opportunity to assert this or other relevant defenses during the grievance process.
Both parties rely on the DLR's decision in City of Worcester, 39 MLC 247 (2013), to support their claims. In that case, the city agreed not to terminate an employee in return for the employee agreeing to either retire or resign. See id. at 249. The union signed off on the agreement, which included a release of all claims against the city. See id. When the employee later rescinded the agreement and the union filed a grievance, DLR found the Union repudiated an unambiguous agreement in bad faith. See id. at 250. Contrary to the Commission's view, however, this case is not directly analogous to City of Worcester. There, the employee and the union released all related claims against the city: the agreement specifically barred the filing of a grievance. Id. at 249. Here, the statutory complaint procedure remained open to the Union. For these reasons, CERB did not err in dismissing the Commission's charge.
Conclusion.
The decision of the board is affirmed.
So ordered.
The panelists are listed in order of seniority.