Ruling on Motion for Summary Judgment

Statement of the Case

On December 17, 1980, the Labor Relations Commission (the Commission) in Case No. MCR-3121 certified the International Brotherhood of Correction Officers (the IBCO) as the exclusive bargaining representative for all Worcester County correctional officers, including the correctional social worker, but excluding the Sheriff, the Master, the deputy masters, the assistant deputy masters, administrative assistants, clerical employees and all other employees.

On August 7, 1995, the Massachusetts Correction Officers Federated Union (MCOFU) filed a representation petition with the Labor Relations Commission (the Commission) in Case No. MCR-4413 seeking to become the exclusive bargaining representative for the above-described unit. On August 10, 1995, the Worcester County Sheriff’s Office Superior Officers Association (WCSOSOA) filed a representation petition with the Commission in Case No. MCR-4414 seeking to represent the captains and lieutenants who were employed at the Worcester County Jail (the Jail) and House of Correction in a separate bargaining unit. The cases were consolidated for a hearing before Administrative Law Judge Robert B. McCormack on December 18, 1995.

On January 10, 1997, the Commission issued a decision in Case Nos. MCR-4413 and MCR-4414 in which it defined the appropriate bargaining units as follows:

Unit A: All full-time and regular part-time captains and lieutenants employed by Worcester County in the Sheriff’s Department at the Jail and House of Correction, excluding all managerial, confidential and casual employees and all other employees of Worcester County.[1][1]

Unit B: All full-time and regular part-time sergeants and corrections officers (privates) employed by Worcester County in the Sheriff’s Department at the Jail and House of Correction, excluding all managerial, confidential and casual employees and all other employees of Worcester County.[2][2]

On January 27, 2003, the Sheriff of Worcester County (the Sheriff) filed a unit clarification petition with the Commission in Case No. CAS-03-3543 seeking to sever/exclude the sergeants from bargaining unit B. MCOFU filed a motion to dismiss the unit clarification petition on March 19, 2003, and the Sheriff filed its opposition to MCOFU’s motion on April 24, 2003. On May 23, 2003, the Union filed a response to the Sheriff’s opposition to its motion, and the Sheriff responded to the information filed by MCOFU on June 20, 2003. On July 1, 2003, the Commission provided the parties with a summary of the information adduced during the investigation of the unit clarification petition and directed the parties to show cause why the Commission should not resolve the unit placement issue based on the factual summary. MCOFU responded to the Commission’s show cause letter on July 10, 2003 and supplemented its response on July 16, 2003. The Sheriff filed its response with the Commission on July 17, 2003. On April 7, 2004, the Commission granted MCOFU’s motion to dismiss and denied the Sheriff’s unit clarification petition in Case No. CAS-03-3543.

On August 29, 2003, MCOFU filed a prohibited practice charge with the Commission in Case No. MUP-03-3884 alleging that the Sheriff had violated Sections 10(a)(5), and, Section 10(a)(1) of M.G.L. c.150E (the Law). On April 8, 2004, following an investigation of Case No. MUP-03-3884, the Commission issued a complaint of prohibited practice alleging that the Sheriff had violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law by refusing to bargain in good faith with MCOFU over the terms and conditions of employment of the sergeants. On April 20, 2004, the Sheriff filed an answer to the complaint. MCOFU filed a motion for summary judgment on April 30, 2004, and the Sheriff filed an opposition to the motion for summary judgment on June 14, 2004.

Discussion

It is well established that when an employer seeks to test the certification of an employee organization by refusing to bargain, the representation proceeding and the prohibited practice are treated as one case. Town of Wenham, 23 MLC 82, 83 (1996); City of Lawrence, 13 MLC 1087, 1092 (1986). Additionally, we take administrative notice of the Commission’s decision in Case No. CAS-03-3543 whereby the Commission dismissed the Sheriff’s unit clarification petition seeking to exclude the sergeants from MCOFU’s existing bargaining unit. See Sheriff of Worcester County, 30 MLC 132 (2004). In Case No. CAS-03-3543, the Commission dismissed the unit clarification petition on the grounds that the sergeant’s job duties had not substantially changed since the bargaining unit’s certification and that the Sheriff had not objected to the inclusion of the sergeants and the line officers in the same bargaining unit during the prior representation proceeding. Id. at 137.

Here, the Sheriff admits that in or about May 2003 it refused to bargain with MCOFU during successor contract negotiations over the terms and conditions of employment of the sergeants. However, the Sheriff contends that the existing bargaining unit, which contains both sergeants and line officers, is an inappropriate unit under the Law and, therefore, that it had no obligation to bargain. In support of its position, the Sheriff argues that the sergeants perform supervisory duties causing an inherent conflict between the sergeants and the line officers whom they supervise. Additionally, the Sheriff asserts that pursuant to the Commission’s own case law, supervisors in paramilitary organizations are not to be placed in the same bargaining unit as subordinate officers.

The Commission has a long-standing policy that a party may not relitigate issues in an unfair labor practice case that have been litigated or could have been litigated in prior Commission proceedings. Town of Wenham, 23 MLC at 8; City of Worcester, 4 MLC 1373, 1374 (1977); City of Cambridge, 4 MLC 1044, 1046 (1977). We discern no reason to depart from that policy in the present case. Upon review of the Sheriff’s arguments, and for the reasons enunciated below, we conclude that the Sheriff has raised no new issues that would cause us to reconsider or reverse our prior inclusion of sergeants and line officers in the same bargaining unit. Accordingly, we allow MCOFU’s motion for summary judgment because we have determined that there are no issues of material fact in dispute that warrant a hearing. See City of Cambridge, 4 MLC at 1050. (Administrative economy dictates that a hearing not be held when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law).

First, we turn to the Sheriff’s argument that an inherent conflict exists between the sergeants and the line officers because the sergeants allegedly supervise the line officers. The Sheriff cites to M.G.L. c.268A, §23(b)(3), which states that:

b) No current officer or employee of a state, county or municipal agency shall knowingly, or with reason to know:

(3) act in a manner which should cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.

However, the record in the representation proceeding reveals that none of the parties disputed that the sergeants and the line officers belonged in the same bargaining unit or presented any evidence that the placement of the sergeants and the line officers was contrary to the Law or Commission policy. See Worcester County (Jail and House of Correction), MCR-4413, MCR-4414, slip op., p. 5 (January 10, 1997). Moreover, the Sheriff does not point to any new circumstances that were outside of the parties’ contemplation during the representation procedure. Cf. Needham School Committee, 4 MLC 1120, 1122 (1977) (New circumstances outside the parties’ contemplation could be an exception to the normal rule precluding relitigation of issues). Rather, the parties’ acknowledge that the job duties of the sergeants have not materially changed since prior to when the representation proceeding took place. Because the Sheriff’s argument is predicated on facts which were known or could have been known to the employer at the time of the representation proceeding and at the time MCOFU was certified as the bargaining agent, the Sheriff is precluded from relitigating the unit determination in this proceeding. [3][3] See City of Lawrence, 13 MLC at 1094-1095; City of Worcester, 4 MLC at 1374 (1997).

Additionally, the Sheriff argues that under Commission precedent supervisors in paramilitary organizations are not to be placed in the same bargaining unit as subordinate officers.[4][4] However, the Commission in Case No. MCR-4414 has already certified a supervisory unit of lieutenants and captains at the Jail and the House of Correction. The Sheriff currently seeks only to remove the sergeants from the non-supervisory bargaining unit rather than to transfer the sergeants from the non-supervisory bargaining unit to the existing supervisory unit. The desired outcome would result in the creation of a new supervisory bargaining unit of sergeants, which would be in addition to, and separate from, the existing supervisory unit of sergeants and captains. The Commission previously has expressed strong reservations about adopting an approach to bargaining unit determination that creates more than one supervisory bargaining unit in a particular workforce. Lowell School Committee, 8 MLC 1010, 1014 (1981). (Commission declines to sever principals and headmasters from a bargaining unit of administrators).

Finally, the duty to bargain collectively imposed by Section 6 of the Law requires the employer and the exclusive bargaining representative to meet at reasonable times to negotiate in good faith about wages, hours, standards of productivity and performance, and any other terms and conditions of employment. This obligation is
enforced through Section 10(a)(5) of the Law, which provides that it shall be a prohibited practice for a public employer to refuse to bargain collectively in good faith with the exclusive representative. City of Beverly, 20 MLC 1166, 1170 (1993). Here, it is undisputed that in or about May 2003, the City declined MCOFU’s demand to bargain over the wages, hours and other terms and conditions of employment of the sergeants who are members of MCOFU’s bargaining unit.

Conclusion

For the reasons stated above, the Sheriff has raised defenses that are insufficient as a matter of law to excuse its current refusal to bargain with MCOFU. Accordingly, a hearing before the Commission is not required, and MCOFU’s motion for summary judgment is allowed. We hold that the Sheriff has violated Section 10(a)(5), and, derivatively, Section 10(a)(1) of the Law by refusing to bargain in good faith with MCOFU over the wages, hours, and working conditions of the sergeants as part of Unit B during successor contract negotiations.

Order

WHEREFORE, based upon the foregoing, IT IS HEREBY ORDERED that the Sheriff of Worcester County shall:

1. Cease and desist from:

a) Failing and refusing to bargain collectively in good faith with MCOFU over the terms and conditions of employment of the sergeants as part of Unit B.

b) In any like or related manner, interfering with, restraining or coercing its 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, bargain collectively in good faith with MCOFU over the terms and conditions of employment of the sergeants as part of bargaining unit B.

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

c) Notify the Commission in writing of 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, Chairman

Helen A. Moreschi, Commissioner

Hugh L. Reilly, Commissioner

Pursuant to the Supreme Judicial Court’s decision in Quincy City Hospital v. Labor Relations Commission, 400 Mass. 745 (1987), this determination is a final order within the meaning of M.G.L. c.150E, §11. To claim such an appeal, the appealing party must file a Notice of Appeal with the Labor Relations Commission within (30) days of receipt of this decision. No Notice of Appeal need be filed with the Appeals Court.

[1][1] On March 14, 1997, the Commission in Case No. MCR-4414 certified the WCSOSOA as the exclusive bargaining representative for Unit A.

[2][2] On March 14, 1997, the Commission in Case No. MCR-4413 certified MCOFU as the exclusive bargaining representative for Unit B.

[3][3] On June 28, 2004, the Sheriff filed a motion to supplement the record in the present case to include the prohibited practice charge, written submissions and supporting memoranda in Case No. SUP-03-5029, which MCOFU filed on October 30, 2003. MCOFU filed an opposition to the Sheriff’s motion on July 6, 2004. Here, because the facts that the Sheriff relies upon to defend against the failure to bargain allegation were known or could have been known to the Sheriff at the time of the representation proceeding and at the time of MCOFU’s certification, any events that took place subsequent to that time are not material to the issues before us, including the allegations that form the basis of Case No. SUP-03-5029. Therefore, we deny the Sheriff’s motion to supplement the record with materials from that case.

[4][4] In cases involving certain municipal police departments, the Commission has held that the mere existence of significant supervisory authority causes an inherent conflict within the bargaining unit to warrant the severance of the supervisors but noting that there may be municipalities so small the division of bargaining units may be impractical. See Town of North Attleboro, 5 MLC 1145, 1146 (1978); Cambridge Police Department, 2 MLC 1027, 1031 (1975). The issue in such cases is not whether to create a separate supervisory unit but where the division should be made. See City of Cambridge, 2 MLC at 1031.