In this case the Labor Relations Commission (commission) decided by a divided vote that a public employer did not violate its duty pursuant to G. L. c. 150E, §§ 6, 10, to bargain in good faith with the exclusive representative of its employees when the employer surveyed the employees about their use of sick leave. Commonwealth of Mass., 25 M.L.C. 48 (1998). We vacate the order of the commission. We hold that a public employer may not survey its employees about mandatory subjects of collective bargaining if the employees belong to a bargaining unit represented by a union at a time when the union is engaged or preparing to engage in collective bargaining with the employer. We do not decide whether such a survey would be permissible at other times.
1. Facts and prior proceedings. The pertinent facts are undisputed. The survey in this case asked employees how many sick leave days they took each year; whether they took sick leave several days at a time or one day here, one day there;
A memorandum accompanied the survey. The memorandum said that the “Administration” (presumably that of then Governor Weld) was determined either to “impos[e] methods aimed at reducing excessive sick leave use” or to eliminate sick leave altogether. The memorandum described the surveyed employees’ sick leave usage as “among the worst in the entire [S]tate.” It said that the average number of days used by employees was eleven, that the “desirable” number was “5-6,” and that it was “imperative” to improve the former number “as soon as possible.” The survey appears to have been largely unsuccessful. Of the few employees who responded to it, a good many did so frivolously. See id.
Some of the surveyed employees belonged to a bargaining unit represented by the plaintiff union. At the time the survey was distributed, the union was negotiating with the Commissioner of Administration and Finance for the Commonwealth in order to arrive at a new collective bargaining agreement for the unit. Sick leave and sick leave use were major subjects of negotiation. During discussions, the union and the commissioner exchanged a number of proposals about sick leave policy. See id.
Some months after the negotiations ended, changes were announced in the procedures by which sick leave was reported and verified. Both the union and employees in the bargaining unit objected to the announced changes. The changes were not made. See id. at 50.
The union charged the commissioner with having committed a practice prohibited by G. L. c. 150E, § 10. The commission issued a complaint against the commissioner on the charge and held a hearing on the complaint. After an administrative law judge issued recommended findings of fact,
As it often does in construing G. L. c. 150E, the commission relied for guidance on decisions of the National Labor Relations Board (NLRB) construing the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq.
After examining the timing and nature of the sick leave usage survey, the commission concluded that the record did not “establish a direct connection” between the survey and “a position the Commonwealth sought to advance at the bargaining table.” Commonwealth of Mass., supra at 51. As evidence for this conclusion, the commission stated that (1) the drafters of the survey had not known what the union and the commissioner were discussing in negotiations; (2) the purpose of the survey was to obtain information as to how to reduce excessive resort to sick leave; (3) no evidence showed that the survey referred to specific bargaining proposals or “questioned employee[s] about specific issues that were the subject of the parties’ negotiations”; (4) no “direct” evidence showed that the commissioner intended to use survey results as a basis for bargaining proposals; (5) employees’ response to the survey was minimal and largely frivolous. Id.
The commission likened the survey in this case to the survey in Logemann Bros.,
The commission appears to have made its decision on two principal grounds: that the survey was unrelated to “specific” proposals or issues to be discussed in negotiations between the commissioner and the union; and that the employer did not intend to use the survey to “arm itself for negotiations.” Id. at 51. See id. (survey was “motivated by the legitimate business concern of reducing sick leave usage”). The commission did not explain how the first ground of decision was compatible with its factual finding that sick leave was a subject of discussion in the negotiations.
The dissenting commissioner was of the view that direct dealing does not merely include “specific employer intent to erode the Union’s bargaining position over a particular proposal then pending during negotiations.” Id. She would have held instead that surveys that ask about subjects of negotiation between the employer and the union constitute direct dealing if they are conducted when the parties are negotiating or preparing to negotiate. See id. at 53.
The union sought review of the commission’s decision in the Appeals Court pursuant to G. L. c. 150E, § 11. We transferred the case here sua sponte.
2. Public employers’ surreys of employees represented by a union pursuant to G. L. c. 150E. Although we give weight to the commission’s experience and authority, see G. L. c. 30A, § 14, we do not affirm commission decisions that are inconsistent with law. See G. L. c. 30A, § 14 (7) (c); Plymouth v. Civil Serv. Comm’n,
In interpreting G. L. c. 150E, the commission has often relied
Section 6 of G. L. c. 150E imposes upon the public employer the obligation to negotiate in good faith with the union that the members of a collective bargaining unit have chosen as the unit’s exclusive representative. Section 10 (a) (5) in turn makes it a prohibited practice for an employer to refuse to discharge the duty imposed on him by § 6.
Direct dealing is impermissible for at least two related reasons. First, direct dealing violates the union’s statutory right to speak exclusively for the employees who have elected it to serve as their sole representative. This right necessarily includes the power to control the flow of communication between the employer and the represented employees concerning subjects as to which the union is empowered to negotiate.
These justifications for the direct dealing prohibition also provide guidance in delineating its limits. As courts and the NLRB have repeatedly held, an employer does not violate the NLRA by merely communicating its bargaining position to its employees. See Americare Pine Lodge Nursing & Rehabilitation Ctr., supra at 875-876, and cases cited; Obie Pac., Inc.,
Surveys of employees as to mandatory subjects of negotiation are a different matter, at least if bargaining discussions have begun or are expected to begin. Exchanging information about employees’ views on these subjects is a crucial element of any negotiation between an employer and a union. Employers who solicit this information directly from employees vitiate the union’s role as the exclusive voice of employees in negotiations. They also obtain a valuable index of employees’ willingness to consider this or that combination of bargaining terms from the employer. See Obie Pac., Inc.,
The commission implicitly held that intent to erode the
The commission’s opinion cites two early commission decisions for the proposition that “the notion of direct dealing outlined in our prior decisions contemplates intentional action by an employer.” Commonwealth of Mass., 25 M.L.C. 48, 51 n.3 (1998), citing Lawrence Sch. Comm., 3 M.L.C. 1304 (1976); Blue Hills Regional Sch. Dist. Comm., 3 M.L.C. 1613 (1977). The former case, if anything, suggests the contrary of this proposition. See Lawrence Sch. Comm., supra at 1311-1312. The latter case has to do with a unilateral change in a subject of negotiation, not with direct dealing. It too contains language that suggests that the employer’s intent is irrelevant to whether the employer’s conduct is permissible. See Blue Hills Regional
Applying the principles we have articulated to the survey issued in this case, we conclude that the survey was unlawful. Paid leave generally, including sick leave, is a term or condition of employment and is thus a mandatory subject of collective bargaining under G. L. c. 150E, § 6. See City of Gloucester, 26 M.L.C. 128, 129 (2000); Town of Hull, 19 M.L.C. 1780, 1784 (1993); NLRB v. Katz,
National Treasury Employees Union v. Federal Labor Relations Auth.,
We disagree with the commission’s conclusion that the facts of Logemann Bros.,
The union asks us to hold that surveys on mandatory subjects of collective bargaining are unlawful even when no negotiations are occurring or expected to occur. The union notes that its role as exclusive representative of employees continues not only during negotiations but throughout the life of the collective bargaining agreement. See Higher Educ. Coordinating Council, 25 M.L.C. 37, 40 (1998). We decline to decide this question.
We acknowledge that the commission, “in proceeding on a case-by-case basis, should be permitted to make refinements and even new rules in light of past experience.” West Bridgewater Police Ass’n v. Labor Relations Comm’n,
Because the Labor Relations Commission erred as a matter of law, the order of the commission dismissing the complaint is vacated. The case is remanded to the commission for proceedings consistent with this opinion. See Boston Police Superior Officers Fed’n v. Labor Relations Comm’n,
So ordered.
Notes
The chief counsel of the commission, who represents the commission in this appeal, served as administrative law judge in this proceeding. The union has not challenged the propriety of this practice, so we do not decide the is
The commission had never decided in a published opinion whether a survey of employees represented by a union constitutes direct dealing.
Our task of reviewing the commission’s decisions would be eased if the commission, or the commercial publisher that reports its decisions, were to publish a list of past decisions that subsequent decisions (whether by the commission or by courts) have overruled. Neither Lexis nor Westlaw, it would seem, includes the decisions of the commission in its otherwise ample selec
Numerous commission decisions have characterized violations of G. L. c. 150E, § 10 (a) (5), as “derivative” violations of § 10 (a) (1), which forbids public employers from interfering, restraining, or coercing any employee in the exercise of any right guaranteed under c. 150E. See, e.g., Commonwealth of Mass., 25 M.L.C. 48, 51 (1998); City of Everett, 2 M.L.C. 1471, 1475 (1976), aff’d, Labor Relations Comm’n v. Everett, 1 Mass. App. Ct. 826 (1979). Sections 10 (a) (1) and 10(a)(5) are parallel to §§ 8(a)(1) and 8(a)(5), respectively, of the NLRA. Federal case law makes clear that a violation of § 8(a)(5) is necessarily a violation of § 8(a)(1). See Microimage Display Div. v. NLRB,
General Laws c. 150E, § 5, creates a narrow exception to this general rule. “An employee may present a grievance to his employer and have such grievance heard without intervention by the exclusive representative of the employee organization representing said employee, provided that the exclusive representative is afforded the opportunity to be present at such conferences and that any adjustment made shall not be inconsistent with the terms of an agreement then in effect between the employer and the exclusive representative.”
Surveys that constitute “direct dealing” with employees as to subjects of collective bargaining are distinguishable from surveys that attempt to undermine a union’s efforts to be recognized or retained by official election as a bargaining unit’s exclusive representative. The former violate § 8(a)(5) of the NLRA and derivatively violate § 8(a)(1) of the NLRA. The latter independently violate § 8(a)(1) of the NLRA. See, e.g., Tom Wood Pontiac, Inc.,
As for decisions of the NLRB, the commission cited only five of those in its opinion. At oral argument, counsel for the commission stated that the five decisions were the only direct dealing cases involving employee surveys that the NLRB had decided in its history. This assertion is manifestly erroneous. Numerous NLRB decisions on surveys claimed to be direct dealing are cited throughout this opinion.
Some of the decisions on whether particular surveys amount to direct dealing appear to assume or imply that intent to harm the union is a necessary element of direct dealing. See, e.g., Vans Grocery Co.,
Indeed, the Commissioner was obliged to give the union notice and an opportunity to bargain before any changes could be made in sick leave policy. See, e.g., Town of Hull, 19 M.L.C. 1780, 1784 (1993); School Comm. of Newton v. Labor Relations Comm’n,