17 Mass. App. Ct. 542 | Mass. App. Ct. | 1984
The plaintiff (union) filed a charge of a prohibited practice with the Labor Relations Commission (commission), alleging that the Weymouth school committee (committee) had violated G. L. c. 150E, § 10(a) (1) and (5), when it caused to be placed on a ballot during a referendum election a question which, if affirmed, would rescind the town’s acceptance of civil service coverage for certain future employees of the town.
This appeal concerns a final decision of the commission which determined that the committee had not violated its duty to bargain in good faith by placing the referendum before the voters without first bargaining with the union, but had violated c. 150E, § 6, by its refusal to bargain over the impact of the voters’ decision.
In December, 1980, the union notified the committee that the union wished to commence negotiations to revise the terms and conditions of the existing collective bargaining agreement. In its response, the committee indicated a willingness to commence negotiations as soon as the union was ready to do so. However, about two weeks later, on January 16, 1981, the committee, without notification to the union, requested the board of selectmen to certify a question on the ballot for a referendum election to be held on May 18, 1981. In essence, the question asked the voters of the town whether they wished to retain civil service status for certain employees of the committee who would be employed in the union’s bargaining unit. The parties met and negotiated, agreeing in substance to a new collective bargaining agreement. To this point there had been no discussion of the subject of the ballot question. Upon learning of the existence of the question on the ballot, the union immediately made a written demand upon the committee: (1) to bargain with the union regarding the decision to revoke civil service rights of school custodians, the impact and implementation of such a decision, and any plan to replace civil service rights; and (2) to take the necessary action to remove this ballot question pending completion of the negotiations. Having received no response to its demands, the union filed a charge of a prohibited practice. An investigation was conducted by the commission, and, after a complaint had been issued, a formal hearing was scheduled, and the decision referred to above ensued. In the interim a majority of the voters of the town answered the question regarding revocation of civil service status in the affirmative. We affirm the commission’s ruling, although on somewhat different grounds.
If a statute specifically mandating certain terms and conditions of employment is not listed in § 7 (d), the statute cannot be superseded by a bargaining agreement. See School Comm. of Holyoke v. Duprey, 8 Mass. App. Ct. 58, 64 (1979) (statute not listed in § 7[d] held to preempt a provision in bargaining agreement). Compare Burlington v. Labor Relations Commn., 390 Mass. 157, 163 (1983). Where such a statute is in place, therefore, the public employer and union are incapable of amending the statute’s requirements through bargaining. Consequently, neither party has a duty to bargain as to the subject matter of the statute, notwithstanding that this subject matter refers to what otherwise would be mandatory issues of bargaining. See School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557, 566 (1983) (“[a] school committee need not bargain concerning specific statutory requirements or limitations not listed in § 7[d]”).
In the instant case, the town had previously voted to accept the provisions of the general civil service statute to cover certain town employees. See G. L. c. 31, §§ 52, 53.
In School Comm. of Medford v. Labor Relations Commn., 8 Mass. App. Ct. 139, 142 n.6 (1979), S.C., 380 Mass. 932 (1980), we discussed the role of the school committee in the local legislative process. In stating that a school committee can agree to “use its best efforts to secure adoption of [the applicable local option law],” we recognized that initiation and support of local legislative action bearing on the terms and conditions of public employment is a permissible subject of collective bargaining. The question before us is whether, in the circumstances of this case, a committee’s efforts to effect such local legislative change rose to a mandatory — and not simply a permissive — subject of bargaining.
In initiating the referendum question to rescind local adoption of the civil service statute, the committee obviously was seeking to alter the terms and conditions of employment covered by the law, many of which the commission concedes have been recognized as mandatory bargaining issues. The union argues that it must follow that the committee’s efforts amounted to prohibited “unilateral action” affecting mandatory issues of bargaining. We decline to accept this reasoning.
The committee could not rescind local adoption of the civil service statute. That act was — and could only be — accomplished by the vote of the local electorate. Generally, the local legislative body has an extremely limited role in the process of determining terms and conditions of employment of public employees. Under § 7(d), all municipal ordinances,
We think that the current statutory framework reveals a clear intention to commit the decision whether to offer the benefits provided by local option laws, such as the civil service statute, to the local legislative body. Certainly, it was to the committee’s advantage to take this action, but that gave the committee no unfair advantage.
Decision affirmed.
As only the union has taken an appeal to this court, we have no occasion to review this aspect of the commission’s decision.
Until recently, a municipality was generally powerless to revoke acceptance of a local option law. See, e.g., Chief of Police of Dracut v. Dracut, 357 Mass. 492, 496-497 (1970). With the passage of St. 1979, c. 151, § 14, and the advent of Proposition 2½ (St. 1980, c. 580, § 5), municipalities are now empowered to rescind the adoption of local option laws as easily as they may adopt such laws.
Contrast situations where an employer unilaterally exercised its power to change mandatory bargaining issues without properly first submitting those changes to bargaining. See generally National Labor Relations Bd. v. Katz, 369 U.S. 736, 743 (1962).
Many municipalities have not accepted the provisions of the civil service statute. Had we reached a contrary result in the case at hand, it would follow that unions could not move for local acceptance of the civil service statute in those municipalities without first submitting a decision to do so to collective bargaining.