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City of Worcester
vs.
Labor Relations Commission n1
SJC-08712
438 Mass. 177, 779 N.E.2d 630, 2002 Mass. Lexis 857
September 5, 2002, Argued
November 27, 2002, Decided
[*177]
SOSMAN, J. The Labor Relations Commission (commission) determined
that the city of Worcester had engaged in a prohibited labor practice when it
failed to bargain about the impacts of its order requiring that police officers
take certain measures to combat school truancy. Both the city and the
International Brotherhood of Police Officers, Local 378 (union) appealed from
that determination. The Appeals Court held that the commission's decision and
order were insufficient, in that it [*178] required the city to bargain only
over the impacts of the decision, whereas the city also had a duty to bargain
over the decision itself. Worcester v. Labor Relations Comm'n, 53 Mass.
App. Ct. 106, 756 N.E.2d 1220 (2001). We granted the city's application for
further appellate review. For
the following reasons, we hold that the city is not required to bargain over
the decision to assign truancy enforcement duties to its police officers and
affirm the commission's order.
1. Facts and commission proceedings. The
commission found the following facts. The union is the exclusive bargaining
representative of a unit consisting of all full-time officers below the rank of
sergeant employed by the city's police department. The union and the city were
parties to a collective bargaining agreement at all relevant times. On
September 16, 1996, the chief of police advised all commanding officers of a
special order to be implemented immediately. The union was not given notice and an opportunity to
bargain concerning that special order, its impact, or its implementation.
The special order recited that, on August 26, 1996, the city manager
had designated all police officers as "supervisors of attendance with the
authority to exercise the duties specified in G. L. c. 76, §§19 and 20, which
include the power to apprehend and take to school without a warrant any truant
or absentee found wandering in the streets or public places." The special
order proceeded to announce certain mandatory procedures for officer
interactions with truants. Whenever an officer encountered a student outside
school premises during school hours, the officer was to inquire whether the
student was in fact truant, obtaining the student's name and school. The
officer was then to contact the dispatcher, who would in turn contact the
school to ascertain the student's status. n2
If the school confirmed the truancy, the officer was to offer the student
transportation to a student attendance center (or, in the case of a vocational
school student, to a specified administrative office). If the student accepted
the offer of transportation, the student was to be transported by cruiser (not
patrol wagon) and without restraints. A pat-frisk was to be performed if there
was reasonable [*179] suspicion that the student was armed, and items in the
student's possession were to be kept on the front passenger seat. After
transporting the student, the officer was to file an incident report, including
the student's name, address, age and date of birth, location of the contact,
and the name of the person to whom the student was delivered.
These procedures applied only to those students who voluntarily
accepted the offer of transportation. If the student declined the offer, or
otherwise resisted or fled, the officer was to discontinue the contact, unless
the officer had some lawful basis for an arrest or reasonable suspicion that
the student was committing or was about to commit an unlawful act. n3 If the officer broke off the encounter with
a truant student, the officer was to supply the center or administrative office
with the student's name and a report of the circumstances surrounding the
contact.
Prior to the issuance of this special
order, officers had discretion to investigate whether youths they encountered
were truant from school. If the officer chose to investigate, the normal
practice was to identify the potential truant, confirm the youth's status
through the dispatcher's contact with the school, and, if the truant agreed, to
transport the truant to the school. Thus, while the steps were similar (the
only difference being that formerly a truant student was transported to school
whereas under the special order such students would be transported to a center
or administrative office), the officer's discretion to investigate a suspected
truancy was transformed into a requirement to investigate all cases of
suspected truancy.
The contacts with truants required by the
special order could last from forty-five minutes to one and one-half hours, and
the process of transporting a truant might require an officer to leave that
officer's normal patrol route. In such instances, there would be no coverage on
the patrol route, as only one patrol car was ordinarily assigned to a patrol
route.
The union filed a complaint alleging that the city had engaged in a
prohibited practice by requiring the officers to perform these truancy
investigation and transportation duties without giving the union notice and an
opportunity to bargain. See G. L. c. 150E, §10 (a) (5). [*180] Based on the above facts, the
commission determined that the decision to require police investigation of
suspected truants was a core managerial decision concerning where to deploy
public services. That decision was not subject to mandatory bargaining
under G. L. c. 150E, §6, and, therefore, the city's failure to bargain over
that decision was not a violation of G. L. c. 150E, §10 (a) (5). However, the commission held
that there remained an obligation to bargain over the impact of such management
decisions, and the special order had an impact on the "workload" of
officers when it required them to take measures that had previously been left
up to an officer's discretion. Thus, the city had violated G. L. c.
150E, §10 (a) (5), and, derivatively, §10(a) (1), when it issued the special
order without giving the union notice and an opportunity to bargain concerning
the impact of the decision to require officers to investigate suspected
truancies.
2. Discussion. Judicial review of
commission decisions is to be conducted in accordance with G. L. c. 30A,
§14. G. L. c. 150E, §11. We therefore
must accord deference to the commission's specialized knowledge and expertise,
and to its interpretation of the applicable statutory provisions. See MCI
Telecommunications Corp. v. Department of Telecommunications & Energy, 435
Mass. 144, 150-151, 755 N.E.2d 730 (2001), and cases cited.
Pursuant to G. L. c. 150E, §6, public
employers must "negotiate in good faith with respect to wages, hours,
standards or productivity and performance, and any other terms and conditions
of employment." However, from that expansively defined category of
mandatory bargaining subjects, we have exempted certain types of managerial
decisions that must, as a matter of policy, be reserved to the public
employer's discretion. "In instances where a negotiation requirement would
unduly impinge on a public employer's freedom to perform its public functions,
G. L. c. 150E, §6, does not mandate bargaining over a decision directly
affecting the employment relationship." Local 346, Int'l Bhd. of Police
Officers v. Labor Relations Comm'n, 391 Mass. 429, 437, 462 N.E.2d 96 (1984).
See Boston v. Boston Police Patrolmen's Ass'n, 403 Mass. 680, 684, 532 N.E.2d
640 (1989); Burlington v. Labor Relations Comm'n, 390 Mass. 157, 164, 454
N.E.2d 465 (1983); City of Lynn v. [*181] Labor Relations Comm'n, 43 Mass. App.
Ct. 172, 178-179, 681 N.E.2d 1234 (1997). "The inquiry has been directed
towards defining the boundary between subjects that by statute, by tradition,
or by common sense must be reserved to the sole discretion of the public
employer so as to preserve the intended role of the governmental agency and its
accountability in the political process." Id. 43 Mass. App. Ct. at 178.
"The crucial factor in determining whether a given issue is a mandatory
subject of bargaining is whether resolution of the issue at the bargaining
table is deemed to conflict with perceived requirements of public policy."
Greenbaum, The Scope of Mandatory Bargaining Under Massachusetts Public Sector
Labor Relations Law, 72 Mass. L. Rev. 102, 103 (1987).
Thus, for example, a school committee may
decide to reduce its level of custodial staffing, School Comm. of Newton v.
Labor Relations Comm'n, 388 Mass. 557, 561-562, 447 N.E.2d 1201 (1983), or a
police commissioner may decide that only one officer, not two, is to be
assigned to each marked cruiser, Boston v. Boston Police Patrolmen's Ass'n,
supra at 684, or a police chief may require officers suspected of criminal
conduct to take a polygraph examination, Local 346, Int'l Bhd. of Police
Officers v. Labor Relations Comm'n, supra at 439-440, without bargaining over
such decisions. "The list of factors so fundamental to the effective
operation of an enterprise as to be exempt from mandatory bargaining
requirements will of necessity vary with the nature of the employer," id.
at 438, and the inquiry as to whether a particular decision falls within that
sphere of core managerial prerogatives must therefore be made on a case-by-case
basis, Burlington v. Labor Relations Comm'n, supra at 164.
The present case implicates the city's ability to set its law
enforcement priorities. Children between certain ages are required to attend
school, and parents may be prosecuted and fined for failing to cause their
child to attend school. G. L. c.
76, §§1, 2. See Commonwealth v. Renfrew, 332 Mass. 492, 126 N.E.2d 109 (1955).
See also G. L. c. 76, §4 (crime of inducing or attempting to induce minor to
absent himself from school, or employing or harboring minor who is unlawfully
absent from school). That other mechanisms for addressing truancy may also
exist, see, e.g., G. L. c. 76, §§19, 20 (school committees shall appoint [*182]
"supervisors of attendance" who shall "inquire into"
truancy cases), does not eliminate truancy as a valid subject of attention by
traditional law enforcement agencies. Nor does past practice relegating a
certain problem to other forms of intervention deprive a municipality of its
prerogative to change its practice and make that problem a priority of law
enforcement. For example, while it may in the past have been common practice
for police officers to ignore cases of domestic violence, preferring to treat
the subject as a private dispute to be resolved by social service agencies,
municipal authorities retained the discretion to adopt a policy of active
police intervention in domestic violence cases.
Setting the priorities for the deployment of law enforcement resources
is purely a matter of policy. See Burlington v. Labor Relations Comm'n,
supra at 164 (decision to assign prosecutorial duties to town counsel instead
of to police prosecutors "is an exclusive managerial prerogative, and not
a proper subject for collective bargaining"). A city should not have to bargain over which types
of infractions merit more attention from law enforcement than others. If the
city of Worcester has decided that aggressive enforcement of the law mandating
school attendance will reduce juvenile crime, or deter the formation of youth
gangs, or otherwise contribute to the safety and well-being of the city, that
is a policy decision for the city to make. The allocation of resources
among competing law enforcement priorities "must be reserved to the sole
discretion of the public employer so as to preserve the intended role of the
governmental agency and its accountability in the political process." City
of Lynn v. Labor Relations Comm'n, supra 43 Mass. App. Ct. at 178. Those
priorities are not a proper subject of bargaining.
The Appeals Court was apparently of the
view that the city needed to support its truancy enforcement policy with
evidence before it could claim the policy as a management prerogative.
Worcester v. Labor Relations Comm'n, 53 Mass. App. Ct. 106, 113-114, 756 N.E.2d
1220 (2001) (recognizing that all public institutions "have some
responsibility for ensuring that the young are adequately educated," but
declining to treat decision as core managerial prerogative where "the
record in this case is completely devoid of any suggestion whatsoever that
public safety was implicated [*183] by whatever truancy problems afflicted
Worcester" or "that police officers by nature, training, disposition
or outlook, are or would be any better or any worse at supervising school
attendance than, say, firefighters or employees of the recreation
department"). A public employer need not defend the wisdom of a policy
choice that it has made in order to have that choice recognized as a core
managerial prerogative. It is the fact that the public employer's choice is one
of policy, not the merits of the choice the employer makes, that renders the
choice an inappropriate subject of mandatory bargaining. As such, the city did
not have to present evidence explaining or justifying its decision to engage
police officers in enforcing laws pertaining to school attendance, and its
failure to produce such evidence has no bearing on whether the adoption of the
special order was a subject of mandatory bargaining.
In an attempt to diminish the otherwise
unfettered discretion that the city would have to set its law enforcement
priorities without bargaining over them, the union posits that the designation
of police officers as statutory "supervisors of attendance" requires
them to perform duties that are not law enforcement functions. n4 The union misperceives the nature and
purpose of that ostensible designation referenced in the special order. The
special order lists the precise tasks that police officers are to undertake
with respect to truants. Those specified tasks, not the complete duties of a
"supervisor of attendance," are what the special order requires them
to do. The city has disclaimed any [*184]misinterpretation of the special order
that would confer such duties on them. n5
We look therefore to the substance of what
the special order now requires police officers to do. That special order
requires them to take certain specific steps to enforce the laws pertaining to
school attendance -- make inquiry of the youth pertaining to the youth's status
as a truant, confirm that status through inquiry to the dispatcher, and, if the
youth is in fact truant and is willing, transport the truant to the appropriate
center or office. These are steps that police officers previously took, in
their discretion, when they came upon truants. The city's decision that such
steps should be taken in all cases of suspected truancy is the product of the
city's unfettered discretion to decide how its law enforcement resources are to
be used to address what it perceives to be an appropriate law enforcement
priority. The commission correctly determined that this was a decision
concerning "where to deploy public services" that came "within
the penumbra of managerial rights" that was not subject to mandatory
bargaining under G. L. c. 150E, §6.
[*185]
Notwithstanding a public employer's
prerogative to make certain types of core managerial decisions without prior
bargaining, we have recognized that such decisions may also have impacts or
effects that would themselves be the subject of mandatory bargaining. "If
a managerial decision has impact upon or affects a mandatory topic of
bargaining, negotiation over the impact is required." Boston v. Boston
Police Patrolmen's Ass'n, 403 Mass. 680, 685, 532 N.E.2d 640 (1989). For
example, while a public employer may decide to reduce the size of some
component of its work force, the implementation of that decision -- whether
reduction will be accomplished by layoffs or by some other means, on what basis
employees will be selected for involuntary layoff, and the timing and terms of
such layoffs -- affects "wages, hours, standards or productivity and
performance, and any other terms and conditions of employment" over which
public employers must bargain. G. L. c. 150E, §6. See School Comm. of Newton v.
Labor Relations Comm'n, 388 Mass. 557, 562-564, 447 N.E.2d 1201 (1983). See
also Burlington v. Labor Relations Comm'n, 390 Mass. 157, 164-167, 454 N.E.2d
465 (1983) (town had prerogative to reassign duties formerly held by police
prosecutors to town counsel, but required to bargain over impact where transfer
had effect of loss of bonus pay detail and cost two officers loss of pay). Cf.
West Bridgewater Police Ass'n v. Labor Relations Comm'n, 18 Mass. App. Ct. 550,
554, 468 N.E.2d 659 (1984) (town's change in procedures ceasing to require
presence of arresting officers at arraignment did not require impact bargaining
where only loss was of irregular and unscheduled overtime pay, which was not
"term" of employment and "did not impinge directly on
wages").
Here, the commission determined that the
city was required to bargain over the impacts of the decision reflected in the
special order. Before the Appeals Court, the city argued that that aspect of
the commission's order was inconsistent with prior commission precedent. The
city has not argued the point before us, and we treat the argument as waived.
We therefore do not need to consider whether the impacts demonstrated here
would be sufficient to trigger mandatory impact bargaining. [*186]
The decision and order of the Labor
Relations Commission are affirmed.
So ordered.
1. Appeal
from City of Worcester v. Labor Rels. Comm'n, 53 Mass. App. Ct. 106, 756 N.E.2d 1220, 2001 Mass. App. Lexis
1006 (2001). International Brotherhood of Police Officers, Local 378, real
party in interest.
2.
The dispatcher was also required to perform a record check on any suspected
truant.
3. If
there was an outstanding warrant or any other basis for arrest, normal
procedures for handling of juveniles were to be followed.
4.
The powers and duties of supervisors of attendance are specified in G. L. c.
76, §20. Supervisors of attendance have responsibilities with respect to
maintaining and analyzing records of school enrollment and attendance. G. L. c.
72, §§2, 8. They must "inquire into" cases involving discrimination
in admission to public school (G. L. c. 76, §5), tuition payments for
nonresident children (G. L. c. 76, §§6-11), certificates of vaccination (G. L.
c. 76, §15), and unlawful child labor (G. L. c. 149, §§90, 92, 93, 95). If
assigned by the court, they may also be called on to supervise a child placed
on probation, or to supervise a child who has been granted a work permit. G. L. c. 76, §20. G. L. c. 101, §19. They
may file petitions for children in need of services, G. L. c. 119, §39E, and
they may bring complaints for unlawful admission of unaccompanied children to
places of entertainment, G. L. c. 140, §197. The panoply of duties assigned to
supervisors of attendance involve many that are far removed from the law
enforcement duties of police officers.
5.
Indeed, in context, the designation of the officers as "supervisors of
attendance" was made solely so that the officers would have the power to
take a truant youth into custody. See G. L. c. 76, §20 (supervisor of
attendance "may apprehend and take to school without a warrant any truant
or absentee found wandering in the streets or public places"). Even that
power was apparently conferred on police officers solely as a precaution
against claims of unlawful arrest -- the special order makes clear that
officers are not to detain or transport a truant youth without the youth's
cooperation and consent, unless they have some other basis for arresting or
stopping the youth, and they therefore do not need authority to
"apprehend" truants "without a warrant" in order to carry
out the duties specified in the special order. See G. L. c. 76, §20. No term of
the officers' employment has been changed by this precautionary and essentially
meaningless designation.
The designation of the officers as
"supervisors of attendance" is also ineffective. The union correctly
points out that supervisors of attendance are appointed by a school committee,
G. L. c. 76, §19, and the city manager's purported designation of police
officers as "supervisors of attendance" would therefore be invalid.
The city essentially concedes the point, acknowledging that the designation
"may have been in error." However, the special order does not
designate the officers as "supervisors of attendance" -- it merely
references the city manager's purported designation -- but instead orders the
officers to perform certain specific steps when encountering truants during the
course of regular patrol work. The city manager's improper designation of the
officers is of no consequence to the operative requirements of the special
order.
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