404 Mass. 124 | Mass. | 1989
The Commonwealth, acting through the Commissioner of Administration, appeals from a final order of the Labor Relations Commission (Commission), as provided in G. L. c. 150E, § 11. We transferred the case from the Appeals Court on our own motion. We now affirm the Commission’s decision that the Commonwealth had a duty to bargain with the National Association of Government Employees (union), and that the union did not waive its right to bargain.
1. Facts. In August of 1984, the union filed charges with the Commission against the Commonwealth, alleging violations of two prohibited practices provisions of G. L. c. 150E, § 10(a)(1) and (5). The dispute arose over the implementation of St. 1983, c. 717, §§ 1 & 2 (c. 717), which amended G. L.
The Commonwealth implemented the proposed salary plan. The union, in its two meetings with the Commonwealth’s representatives, had objected to it. In response to the Commonwealth’s implementation of the plan without further negotiation, the union filed charges of prohibited practices with the Commission. The Commission issued a complaint and held a formal hearing on February 1, 1985. In November, 1987, the Commission found in favor of the union.
The Commonwealth presents a two-fold argument: (1) that the Commission erred in determining that it had a duty to bargain with the union concerning implementation of c. 717; and (2) that even if such a duty existed, the union waived its right to bargain by neglecting to respond to the Commonwealth’s letter proposing alternative meetings.
2. Duty to bargain. General Laws c. 150E, § 6, as inserted by St. 1973, § 1078, § 2, provides with respect to public employees that “[t]he employer and the exclusive representative shall meet . . . and . . . negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment ....’’ Statute 1983, c. 717, provides for a new class of positions called “Professional data processing positions” and permits the Commissioner of Administration, after recommendation by the Personnel Administrator, to determine salaries for those positions annually. According to the preamble to c. 717, the legis
General Laws c. 150E, § 7(d), provides in part that, with respect to matters that are within the scope of negotiations under § 6, such as salaries, the terms of a collective bargaining agreement will prevail over certain enumerated statutes dealing with the same matters. Those enumerated statutes, generally, are “specific mandates to do or not to do something in connection with the terms and conditions of employment of public employees.” School Comm. of Newton v. Labor Relations Comm’n, 388 Mass. 557, 566 (1983). Conversely, statutes not specifically enumerated in § 7(d) will prevail over contrary terms in collective bargaining agreements. See Burlington v. Labor Relations Comm’n, 390 Mass. 157, 163 (1983). There is no duty to bargain over the specific requirements of such statutes. Newton, supra at 566.
Statute 1983, c. 717, expressly amended G. L. c. 30, §§ 45 and 46, two sections which are listed in § 7(d) as giving way to the terms of a collective bargaining ageement. See G. L. c. 150E, § 7(d)(k).
3. Waiver by neglect. We turn now to the issue whether the Commission properly determined, on the basis of substantial evidence in the record, that the union had not waived its right to bargain. See School Comm. of Newton, supra at 573.
A public employer has a duty to bargain in good faith and, short of impasse, it may not unilaterally implement changes to a mandatory subject of bargaining without negotiation. See Southern Worcester County Regional Vocational School Dist. v. Labor Relations Comm’n, 377 Mass. 897, 904 (1979); G. L. c. 150E, § 6. Indeed, implementation of changes without negotiation where there is a duty to do so may constitute a violation of G. L. c. 150E, § (10)(a)(5). School Comm. of Newton, supra at 572. The Commonwealth argues that, even if it acted unilaterally with respect to implementing the c. 717 changes, the union, through its own neglect, waived its right to bargain.
The Commission found that the Commonwealth and union officials met on June 26, 1984, to discuss implementation of c. 717. Each party presented its position relative to the matter,
As to this issue, the Commission determined that the union had not, by virtue of inaction, waived its right to bargain. The Commonwealth’s August 3 letter stated that it would suspend such implementation until further discussion with the union. Despite scheduling problems between the parties, “the Commonwealth was fully aware that the Union had never accepted the Commonwealth’s proposals.” Substantial evidence in the record supports that the Commission properly concluded that the Commonwealth violated G. L. c. 150E, § 10(a)(1) and § 10(a)(5). Even if the evidence of record might have warranted a contrary conclusion, we decline to substitute our judgment for that of the Commission. School Comm. of Newton, supra at 573.
Order affirmed.
General Laws c. 30, § 45, addresses the office and position classification plan and pay plan for certain employees of the Commonwealth, and § 46 establishes rules and regulations for administration of such classification. Statute 1983, c. 717, by § 1, amended par. (9) of § 45, and, by § 2, added par. (5B) to § 46.
Appearing in St. 1977, c. 278, § 4.