Appeals Court Affirms Commonwealth Committed Unfair Labor Practice By Its Surreptious Surveillance of Employees Represented by SEIU Local 509

September 05, 2022

The right of labor unions to have a voice in the working conditions extends to secret monitoring of public employee performance, according to a new decision of the Massachusetts Appeals Court. This decision vindicates an unfair labor practice filed by Attorney Ian O. Russell on behalf of SEIU Local 509. Public sector employers must, under this decision, provide unions with notice and an opportunity to bargain before implementing new surveillance or monitoring systems that significantly increase the amount of information available for supervisors to use for evaluations and discipline of employees.

Under the state public sector collective bargaining law known as Chapter 150E, unions have a right to bargain about wages, benefits and other terms and conditions of employment. The law also imposes a duty on employers to provide notice and an opportunity to bargain prior to implementing changes in those categories. This case involved call center employees for the MassHealth division who receive and respond to calls for health-insurance information and assistance. Employees had never been disciplined for their handling of work calls or for their productivity during such calls. Moreover, their calls have never been secretly monitored by managers until February 2019. The Union only learned about this change months later, when MassHealth notified nearly a dozen employees represented by SEIU Local 509 to report for investigatory interviews based on the secretly-monitored calls. As the Commonwealth never notified SEIU Local 509 of this change before implementation in February, SEIU Local 509 filed an unfair labor practice.

The Commonwealth Employment Relations Board (CERB) agreed that Commonwealth's unilateral implementation of surreptitious surveillance violated Chapter 150E. The CERB ruled that "surreptitiously listening in to phone conversations through the previously unused feature of MassHealth's phone system changed both the type and amount of information available to managers, including in particular whether the [employees] actually ever spoke to or assisted the caller. It also increased employees' chances of being disciplined, as demonstrated by the suspension letters . . . and the undisputed fact that, prior to listening in on employee phone conversations, the Commonwealth had not disciplined employees for their conduct during phone calls, despite receiving customer complaints."

The CERB ordered the State to rescind the surveillance and provide SEIU Local 509 with notice an opportunity to bargain before restoring any surveillance. The Commonwealth refused to accept this well-reasoned decision and appealed. The Appeals Court affirmed the CERB decision and the judiciary's longstanding deference for decisions and interpretations made by the labor agency. The Court agreed that the CERB findings of fact were supported by the record, and its legal conclusion - that "surreptitious monitoring of telephone calls changed terms and conditions of employment because it directly implicated the "productivity and performance" measures by which the employees were assessed, and resulted in increased likelihood of discipline - was not arbitrary or capricious or an abuse of discretion. The Appeals Court agreed that the reasoning of the CERB was consistent with its own precedent as well as that of the National Labor Relations Board and federal courts.

As a result of this decision, the 11 employees represented by SEIU Local 509 who were suspended as a result of the unlawful change will have their suspensions expunged and will be made whole, with interest, for economic losses arising from the suspensions.

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