Opinion
14-P-245
03-25-2015
TOWN OF STONEHAM v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
This case involves an appeal by the town of Stoneham (town) from a Commonwealth Employment Relations Board (board) decision that the town committed an unfair labor practice in violation of G. L. c. 150E, § 10(a)(5) & (1), when without bargaining it transferred dispatching duties formerly held by uniformed union members, who are members of the bargaining unit represented by the Stoneham Police Association, MCOP Local 266 (union) to civilian employees, who are not part of the bargaining unit. The matter was submitted to the board on stipulated facts and record and on the papers. The board found that while the town had "no obligation to bargain over every incidental variation in job assignments between unit and non-unit personnel," the change at issue here represented a "significant reduction in the portion of work performed by unit employees with a corresponding increase in the work performed by non-unit employees" and, thus, the town had a duty to bargain to agreement or impasse over the proposed change. The board ordered the town to cease and desist, bargain, and make whole any union members adversely affected. The town now appeals.
The division of labor relations, after considering a complaint filed by the union, had determined that there was probable cause to believe the town had engaged in a prohibited practice within the meaning of G. L. c. 150E, § 10(a)(5) & (1). The division of labor relations is now the Department of Labor Relations. See St. 2011, c. 3, § 36.
The union filed an assented to motion to intervene, which was allowed by this court.
Background. The board found that before 1996 the town's police dispatching work was performed, pursuant to the collective bargaining agreement (CBA) then in effect, solely by uniformed police officers. In 1996, the CBA was amended, eliminating the provision requiring that police officers be used to perform dispatching services, and leaving CBA art. XXVIII to read as follows:
"The parties have bargained about and acknowledge the Town's right to employ civilian employees for the purpose of public safety (Police, Fire, EMT, etc.) dispatching, including the right to centralize or combine police and fire dispatching and its right to regionalize dispatching by joining together with one or more other towns."Accordingly, since 1996 and through 2009, the town's police dispatching duties have been shared between uniformed police officers and civilian dispatchers. More particularly, between 2003 and 2009, the town employed one civilian and one uniformed dispatcher on the first half shift (among other shifts, but the first half shift is what is relevant here).
The parties stipulated to the following facts: "There are three shifts in the Police Department. The day shift runs from 7:00 am -- 3:00 pm. The 'first half' or 'early half' shift runs from 3:00 pm -- 11:00 pm. The 'second half' or 'late half' shift runs from 11:00 pm -- 7:00 am. Prior to August 2009 and since 1966, the Stoneham Police Department dispatching work has been shared between patrol officers and civilian dispatchers. The 7:00 am to 3:00 pm day shift seven (7) days a week has had two (2) civilian dispatchers and no patrol officers on dispatch. The first half shift 3:00 pm -- 11:00 pm has been staffed with either one civilian dispatcher and one patrol officer, or two civilian dispatchers and one patrol officer seven (7) days a week until 2003. Between 1996 and 2003, when there were two civilian dispatchers and one patrol officer working, they performed both dispatching and administrative functions. Occasionally, on any given shift, one of those individuals might not have performed any dispatching duties. As a result of a civilian schedule change, between 2003 and 2009, there was one dispatcher and one patrol officer on the first half shift 3:00 pm -- 11:00 pm on dispatch."
In 2009, the town informed the union that it intended to hire an additional full-time civilian dispatcher. The purpose of this hire was to have two civilian dispatchers, rather than one police dispatcher and one civilian, staff the first half shift. The town's stated rationale for this change was that "[b]y adding one additional civilian dispatcher/Enhanced 911 Telecommunicator, the police officer normally assigned to the dispatch center would be reassigned to proactive patrol and responding to emergency calls for service. This reassignment is a more cost effective and productive use of a sworn police officer."
Discussion. We review the board's decision in accordance with the standards set forth in G. L. c. 30A, § 14(7), governing appeals from final administrative agency decisions. See G. L. c. 150E, § 11(i). See also Worcester v. Labor Relations Commn., 438 Mass. 177, 180 (2002). The board's decision must be based on substantial evidence, i.e., "such evidence as a reasonable mind might accept as adequate to support a conclusion." G. L. c. 30A, § 1(6). See Brookfield v. Labor Relations Commn., 443 Mass. 315, 321 (2005). "The board's decision will be set aside only if it is '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.' G. L. c. 30A, § 14(7)(g). We defer to the board's specialized knowledge and expertise. See Worcester v. Labor Relations Commn., supra." Somerville v. Commonwealth Employment Relations Bd., 470 Mass. 563, 568 (2015).
The parties agree that the board "has long used a three-part test to determine whether a transfer of unit work is a mandatory subject of collective bargaining. In order to trigger the employer's obligation to engage in impact bargaining, the union must establish that (1) the employer transferred bargaining unit work to nonbargaining unit personnel; (2) the transfer of work had an adverse impact on either individual employees or on the bargaining unit itself; and (3) the employer did not provide the exclusive bargaining representative with prior notice and an opportunity to bargain over the decision to transfer the work." Commonwealth v. Labor Relations Commn., 60 Mass. App. Ct. 831, 833 (2004). Furthermore, because the "work [was] shared," there is an additional burden to show there is a calculated displacement of work or a significant reduction in an ascertainable portion of the work performed. Town of Bridgewater, 25 M.L.C. 103, 104 (1998).
Contending that there was an adverse impact on individual bargaining unit members or the unit itself, the board argues that the bargaining unit "lost a position in the dispatch unit." We are not persuaded by this characterization. The assignment to dispatch/desk duties is just that -- an assignment -- and not a position. The union did not lose a position or an officer on the first shift, as there is no evidence that the number of police officers working that shift was ever reduced; rather, the town merely redeployed an officer to patrol. The decision to redeploy a police officer, where there is no reduction in staffing, cannot be equated to the loss of a position on the first shift.
The board observes that until 2009, there was always a patrol officer on the first half shift, either working with one civilian dispatcher or two civilian dispatchers. While this is not in dispute, the board ignores the fact that the town was not contractually obligated to maintain an officer on dispatch, and thus the change in and of itself cannot constitute the requisite adverse impact. The board's finding that the union did not waive by contract the right to bargain over the town's use of civilian dispatchers is not supported by the plain language of the contract as embodied in art. XXVIII of the CBA, noted above. In fact, prior to 1996, this same provision included a sentence stating "that on all shifts there shall be a member of the . . . bargaining unit." In 1996, an arbitrator deleted this sentence in its entirety. The arbitrator agreed with the town's position that the civilianization of dispatching did not implicate safety, and the town would no longer be required to maintain a bargaining unit member on dispatch. In short, it is clear from the plain language of art. XXVIII (reinforced by the bargaining history) that (1) the town has the right to hire civilian dispatchers and (2) the town is not required to have a member of the bargaining unit on dispatch duty on all shifts. Had the union intended to reserve the union's right to maintain an officer on each shift, such language would have been expressly included. While "[c]onstruction of a labor contract may be based on previous practices under prior bargaining agreements," Massachusetts Correction Officers Federated Union v. Sheriff of Bristol County, 55 Mass. App. Ct. 285, 290 (2002), and while "a collective bargaining agreement is not an ordinary contract," Watertown v. Watertown Municipal Employees Assn., 63 Mass. App. Ct. 285, 289 (2005) (quotation omitted), the town here has met its burden under the contract waiver doctrine of showing "that the contract clearly, unequivocally and specifically authorizes its actions." Boston v. Labor Relations Commn., 48 Mass. App. Ct. 169, 174 (1999). In short, the board erred as a matter of law when it determined that the union had not waived by contract the right to bargain over the town's use of civilian dispatchers.
Furthermore, we note that the town's decision to reassign a patrol officer from dispatch to street duty is a core managerial decision implicating public safety that does not require bargaining. See Worcester v. Labor Relations Commn., 438 Mass. at 182. We do not find merit in the board's rejection of the argument that the town's decision to transfer dispatch work away from its patrol officers was an insulated policy decision that affected the town's level of services and public safety.
Finally, the town argues that the board erroneously concluded that the town's decision to reassign a limited number of dispatcher shifts -- the early half shift -- to two civilian dispatchers (rather than one civilian dispatcher and one police dispatcher) constituted a "calculated displacement of the work performed by bargaining unit employees." In essence, the town points out that it is undisputed that the dispatching work, since at least 1996, has been shared between civilian and police dispatchers, that at least on occasion the early half shift had been staffed by two civilian employees, and that, therefore, the change on that half shift is effectively de minimus and there exists no evidence to support the board's conclusion. We agree.
In sum, we conclude that the decision of the board was not based on substantial evidence and was not in accordance with law. The decision of the board is reversed.
So ordered.
By the Court (Kantrowitz, Graham & Katzmann, JJ.,),
The panelists are listed in order of seniority.
Justice Graham participated in the deliberation on this case prior to his retirement.
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Clerk Entered: March 25, 2015.