COMMONWEALTH OF MASSACHUSETTS

BEFORE THE LABOR RELATIONS COMMISSION

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In the Matter of

TOWN OF SOMERSET Case No. MUP-01-2957

and Date Issued: August 12, 2004

INTERNATIONAL BROTHERHOOD

OF POLICE OFFICERS, LOCAL 518

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Commissioners Participating:

Allan W. Drachman, Chairman

Helen A. Moreschi, Commissioner

Hugh L. Reilly, Commissioner

DECISION

Statement of the Case [1]

On March 29, 2001, the International Brotherhood of Police Officers, Local 518 (the Union) filed a charge with the Labor Relations Commission (the Commission) alleging that the Town of Somerset (the Town) had violated Sections 10(a)(1), (2) and (5) of the Massachusetts General Laws, Chapter 150E (the Law). Following an investigation, the Commission issued a complaint of prohibited practice on November 16, 2001, alleging that the Town had violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by refusing to bargain in good faith with the Union over the impacts of using defibrillators in the Town’s Police Department on the terms and conditions of employment of bargaining unit members. [2] The City filed an answer on November 26, 2001.

On March 1, 2002, the City and the Union agreed to waive an evidentiary hearing before Hearing Officer Margaret M. Sullivan, Esq., and submitted the matter for decision by the Commission on a stipulated record. The parties filed briefs on the matter on April 16, 2002.

Stipulated Facts [3]

The Town and the Union stipulated to the following facts:

1. The International Brotherhood of Police Officers, Local 518 (the Union) is a public employer as defined in M.G.L. c. 150E, §1.

2. The Town of Somerset (the Town) is a public employer as defined in M.G.L. c.150E, §1.

3. The Union is the exclusive bargaining representative for the Town’s patrol officers and sergeants.

4. James M. Smith (Chief Smith) has been the Town’s Chief of Police since 1991 and has served as a Somerset police officer since 1974.

5. John D. O’Neill (O’Neill) is a Somerset police officer who served as the Union president during the years from 1975 through 1990 and again from 1995 through 1999.

6. Todd Costa (Costa) is a Somerset police officer who presently serves as the Union president and has served in that position since February 2000.

7. At all pertinent times, there was a valid collective bargaining agreement in effect between the parties.

8. In September 1999, Chief Smith began making plans to obtain two or three defibrillator units for the Police Department, and, on his behalf, the Somerset Fire Chief Stephen Rivard began the application process to obtain the necessary licensing and certification required for the Police Department to use the units.

9. On September 30, 1999, Chief Smith sent a memorandum to the then Union president O’Neil informing him of the Police Department’s Plans for training and use of the defibrillators.

10. O’Neill received this memorandum, but did not respond to it.

11. In or about September 2000, Chief Smith received confirmation that the Police Department would receive three defibrillators in the near future. Those three defibrillators were donated to the Police Department free-of-charge by Pacific Gas & Electric Department, the Somerset Lions Club, and the Somerset Fire Department.

12. On November 11, 2000, Chief Smith posted a schedule for defibrillator training for all members of the Police Department, to be conducted pursuant to M.G.L. c.111, §201, by members of the Somerset Fire Department.

13. At a staff meeting on November 16, 2000, Chief Smith discussed the training sessions and the Police Department’s use of the defibrillators. John Ferreira, the Union Vice-President at the time, attended this meeting along with three other union members, including O’Neil.

14. The defibrillator training was held on December 6, 13, and 20, 2000, and officers were paid overtime to attend. The training was completed on December 20, 2000.

15. From the time of Chief Smith’s September 29, 1999 notice to O’Neil until December 27, 2000, no one from the Union made any verbal or written request to bargain over or discuss the defibrillators.

16. On or about December 27, 2000, Chief Smith received a “Demand to Bargain” from Union president Costa.

17. Chief Smith responded to Costa’s demand by a memorandum dated January 3, 2001.

18. On January 3, 2001, Chief Smith had Captain Peter Cabral issue a General Order (#01-10) concerning use of the defibrillators and shortly thereafter implemented use of the defibrillators.

19. The Town drafted and implemented the General Order described in Paragraph 18 without bargaining over its terms.

20. The Union filed this charge of prohibited practice with the Commission on March 29, 2001.

Relevant Provisions of the Parties’ 2000-2003 Collective Bargaining Agreement

Article 2-Management Rights

Section 1-The Town is a corporation established under and with powers provided by the laws of the Commonwealth of Massachusetts, and nothing in this Agreement shall be deemed to derogate form or impair any power or right conferred upon the Town by law.

Section 2-The Town retains all the powers and rights that it has by law to manage and control the Police Department and it shall, subject to the provisions of this Agreement, exercise such rights at its discretion through its Selectmen and Chief of Police. Such rights shall include, but not be limited to, the right to direct said employees in the performance of their duties, to hire, promote, transfer and assign employees, to suspend, demote, discharge or take other disciplinary action against employees, to lay off employees because of lack of work, to prescribe a uniform dress to be worn by such employees, to establish and require employees to observe rules and regulations not inconsistent with the provisions of this Agreement, to maintain the efficiency of the operations of said Department, to determine the methods, means and personnel by which such operations are to be conducted, and to take whatever actions may be necessary to carry out its mission in emergency situations.

Article 28-Scope of the Agreement

Section 1-The Town and the Union agree that during the term of this Agreement all matters and issues pertaining to the wages, hours and conditions of employment of the employees governed by this Agreement shall be governed exclusively by and limited to the terms and provisions of this Agreement.

Section 2-All terms and conditions of employment not covered by this Agreement shall continue to be subject to the Town’s direction and control and shall not be the subject of negotiation until the commencement of negotiations for a successor agreement.

Opinion

The issue in the present case is whether the Town failed to bargain on demand over the impacts of the use of defibrillators on the terms and conditions of employment of bargaining unit members in violation of Sections 10(a)(5) and (1) of the Law. Section 6 of the Law requires public employers and employees representatives to meet at reasonable times to negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment. Refusing to meet and bargain on demand concerning mandatory subjects of bargaining is a violation of Section 10(a)(5) of the Law. See New Bedford Housing Authority, 27 MLC 21, 27 (2000); Boston School Committee, 11 M LC 1219, 1225 (1984). The Commission has previously held that any increase or change in an employees’ job duties, safety, or workload is a mandatory subject of bargaining, including the impacts of the implementation of a defibrillation program. See City of Taunton, 26 MLC 225, 226 (2000); Town of Arlington, 21 MLC 1125, 1130 (1994). Here, the record reveals that Chief Smith received a demand to bargain from the Union on or about December 27, 2000, that the Town subsequently refused to bargain with the Union, and that the Union timely filed its prohibited practice charge on March 29, 2001 within six months of the Town’s refusal to bargain as required by 456 CMR 15.03.

However, the Town contends that no statutory bargaining obligation attached because the Union did not make a timely demand to bargain when the Union received notice of the proposed defibrillator policy on or about September 30, 1999 and that the Union could not revive its right to bargain by making a later demand. To bolster its argument, the Town points out that the Commission previously had dismissed the portions of the Union’s prohibited practice charge alleging that the Town unilaterally implemented a policy requiring unit members to attend training and to use defibrillators because of the Union’s failure to timely demand bargaining. [4] Nevertheless, we do not find the Town’s argument to be persuasive because the Commission’s dismissal of the unilateral change allegation did not dispose of the Town’s obligation to bargain once the Union made its demand to bargain. See City of Boston, 6 MLC 2035, 2039 (1980). It is well established that absent a zipper clause, [5] the parties must bargain upon demand over mandatory subjects not covered by a collective bargaining agreement. See e.g. New Bedford Housing Authority, 27 MLC at 24; Town of Watertown, 8 MLC 1376, 1378 (1981); City of Boston, 7 MLC 2005, 2012 (1981); City of Boston, 6 MLC at 2039.

Here, the Town asserts that pursuant to the Article 2 (the management rights clause), the Union waived its right to request bargaining. Where an employer raises the affirmative defense of waiver by contract, it bears the burden of demonstrating that the parties consciously considered the situation that has arisen and that the exclusive representative knowingly waived its bargaining rights. Massachusetts Board of Regents, 15 MLC 1265, 1269 (1988); Town of Marblehead, 12 MLC 1667, 1670 (1986). The initial inquiry focuses upon the language of the contract. Town of Mansfield, 25 MLC 14, 15 (1998). If the language clearly, unequivocally and specifically permits the public employer to make the change, no further inquiry is necessary. City of Worcester, 16 MLC 1327, 1333 (1989). If the language is ambiguous, the Commission will review the parties’ bargaining history to determine their intent. Peabody School Committee, 28 MLC 19, 21 (2001); Town of Marblehead, 12 MLC at 1670. Upon review of the management rights clause, we conclude that this provision does not constitute a waiver of the Union’s statutory right to demand bargaining.

The management rights clause states in relevant part that the Town retains the right “to determine the methods, means and personnel by which such operations are to be conducted,” language which the Town contends is clear on its face. Assuming arguendo that the clause is as unambiguous as the City contends, we must consider the specificity of the clause and determine whether a waiver of the Union’s right to seek bargaining is encompassed within its scope. City of Newton, 29 MLC 135, 138 (2003). A plain reading of the clause shows that it contains no language that limits the Union’s right to seek bargaining over the impacts of the implementation of the defibrillator program on unit members’ terms and conditions of employment. See Massachusetts Board of Higher Education, 15 MLC 1265, 1270-1271 (1988). Alternatively, even if the disputed clause were found to be ambiguous, the stipulated record contains no evidence about the parties’ bargaining history, which could potentially clarify the ambiguous language. See Town of Marblehead, 12 MLC at 1670.

Turning next to Article 28, the scope of the agreement, we must consider whether that potential zipper clause also waives the Union’s right to seek bargaining. [6] However, like the management rights clause, the general language of Article 28 is insufficient on its face to establish a contractual waiver. Furthermore, the stipulated record is devoid of any information about bargaining or practice that could help clarify the language. Board of Trustees of the University of Massachusetts/University of Massachusetts Medical Center, 21 MLC 1795, 1803 (1995). Thus, the Town fails to demonstrate affirmatively that Article 28 was intended to operate as a waiver over the impacts of the use of defibrillators on the terms and conditions of employment of unit members.

Remedy

Section 11 of the Law grants the Commission broad authority to fashion appropriate orders to remedy unlawful conduct. Labor Relations Commission v. City of Everett, 7 Mass.App.Ct. 826 (1979); Millis School Committee, 23 MLC 99 (1996). Here, the Commission fashions a remedy directed to the Town’s unlawful refusal to bargain.
Because the Commission dismissed the Union’s unilateral change allegation during the investigatory process, the Commission’s remedy does not require the Town to restore the status quo ante during bargaining. See City of Boston, 7 MLC at 2014. (Commission ruled that the employer had unlawfully refused to bargain but declined to order a restoration of the status quo because the union had waived its right to seek bargaining over the unilateral change). Further, the Commission does not require the parties to negotiate over the impacts of defibrillator use on mandatory subjects of bargaining that the Town fully instituted prior to the Union’s December 27, 2000 request to bargain, including the compulsory defibrillator training that took place on December 16, 17 and 20, 2000. See generally, Town of Watertown, 8 MLC at 1378. (Commission issued a prospective bargaining order where it found an unlawful refusal to bargain but dismissed as unsubstantiated a transfer of unit work allegation). Instead, the Commission concludes that the appropriate remedy is to require the Town, upon request from the Union, to bargain to resolution or impasse over the impacts of the use of defibrillators on terms and conditions of employment that arose or recurred after the Union made its demand to bargain on December 27, 2000.

Conclusion

Based on the record and for the reasons stated above, the Town has violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by failing and refusing to bargain on demand over the impacts of the use of defibrillators on the terms and conditions of employment of bargaining unit members.

Order

WHEREFORE, based upon the foregoing, IT IS HEREBY ORDERED that the Town of Somerset shall:

1. Cease and desist from:

a) Failing and refusing to bargain on demand with the Union over the impacts of the use of defibrillators on the terms and conditions of employment of bargaining unit members that arose or recurred after the Union’s made its demand to bargain on December 27, 2000.

b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights guaranteed under the Law.

2. Take the following affirmative action that will effectuate the purposes of the Law:

a) Upon request, meet and bargain in good faith with the Union over the impacts of the use of defibrillators on the terms and conditions of employment of bargaining unit members that arose or recurred after the Union made its demand to bargain on December 27, 2000.

b) Post in all conspicuous places where its employees represented by the Union usually congregate, or where notices are usually posted, and display for a period of thirty days thereafter, signed copies of the attached Notice to Employees.

c) Notify the Commission in writing of the steps taken to comply with this decision within ten days of receipt of the decision.

SO ORDERED.

COMMONWEALTH OF MASSACHUSETTS

LABOR RELATIONS COMMISSION

ALLAN W. DRACHMAN, COMMISSIONER

HELEN A. MORESCHI, COMMISSIONER

HUGH L. REILLY, COMMISSIONER

Notes:

1. Pursuant to 456 CMR 13.02(1), the Commission has designated this case as one in which the Commission shall issue a decision in the first instance.

2. The Commission dismissed those portion of the Union’s charge alleging that the Town had violated Sections 10(a)(5), (2), and, derivatively, Section 10(a)(1) of the Law by unilaterally implementing a policy requiring the training and use of defibrillators, and the Union did not seek reconsideration pursuant to 456 CMR 15.03.

3.The Commission’s jurisdiction in this matter is uncontested.

4.The Commission in its dismissal of the unilateral change allegation noted that:

As of September 30, 1999, the Union had actual knowledge that the Respondent intended to implement the defibrillator policy. It is undisputed that, on or about September 30, 1999, the Respondent issued a memorandum advising the Union that some time in the future, the officers would be required to carry defibrillators in their cruisers when they went on patrol. The Union failed to make a timely demand to bargain over the Respondent’s intended change, and has not stated any reasons to justify its inaction. Therefore, the Commission does not have probable cause to believe that the Respondent violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by unilaterally implementing a policy that required the training and use of defibrillators. Accordingly, the Commission declines to issue a complaint, and this portion of the Union’s charge is dismissed.

5. A zipper clause preserves the terms of the collective bargaining agreement by relieving the parties of their obligation to bargain prospectively about certain matters during the effective term of the agreement. See City of Westfield, 25 MLC 163, 166 (1999). However, although it is possible for a zipper clause to relieve the parties of their obligation to bargain prospectively about new subjects during the term of the contract, that waiver does not authorize an employer to unilaterally implement changes in working conditions. See Commonwealth of Massachusetts, 18 MLC 1220, 1227, n.10 (1991), citing; Jacobs Mfg. Co., 91 NLRB 1214 (1951), aff’d, 196 F.2d 680 (2d Cir. 1952); ACF Industries, Inc. v. NLRB, 592 F.2d 422, 100 LRRM 2710 (8th Cir. 1979).

6. The Town in its post-hearing brief does not claim that Article 28 is a zipper clause that would preclude bargaining. Conversely, the Union in its post-hearing brief describes Article 28 as a zipper clause but insists that the provision does not constitute a waiver of the Union’s right to bargain.

*Pursuant to M.G.L c.150E, §11, decisions of the Labor Relations Commission are appealable to the Appeals Court of the Commonwealth of Massachusetts. To claim such an appeal, the appealing party must file a Notice of Appeal with the Labor Relations Commission within thirty (30) days of receipt of this decision. No Notice of Appeal need be filed with the Appeals Court.