State Hearing Officer Agrees With Plymouth Fire That Town Plymouth Violated Ground Rules, Good Faith Duty
The duty to bargain in good faith requires an employer to deal exclusively with a union or labor group about terms and conditions of employment. The duty also prohibits an employer from lobbying or polling individual employees about bargaining proposals, unless the union agrees. An employer also must adhere to agreed-upon ground rules for successor bargaining. Attorney Alfred Gordon successfully persuaded a Hearing Officer of the Massachusetts Department of Labor Relations, on behalf of Plymouth Fire Local 1768 IAFF, that the Town of Plymouth violated this duty when it discussed 24 hour shifts and shift swaps with an employee represented by Local 1768.
In this case, the Town and Local 1768 agreed that "all matters discussed" during bargaining would remain confidential. During bargaining, the Town proposed to eliminate shift swaps. Later, the Town Manager asked a fire fighter during a meeting to discuss his promotion to permanent lieutenant what he though of shift swaps and 24-hour shifts. The Town Manager stated that she opposed shift swaps. The Hearing Officer had little difficulty agreeing that the Town Manager's discussion of shift swaps repudiated the parties' ground rule on confidentiality of bargaining matters, even though the Town Manager did not refer to bargaining. This repudiation, by extension, violated the Town's statutory duty to bargain in good faith with the Union.
The Hearing Officer also agreed that the Town Manager's inquiries about both shift swaps and 24-hour shifts constituted unlawful direct dealing in violation of the duty to bargain in good faith. The existence of ground rules was irrelevant to this finding. In other words, the Town Manager's questioning of a single employee about subjects at issue in bargaining (or could be at issue) was unlawful, even if the parties never agreed to maintain confidentiality of bargaining matters.
To remedy the Town's unlawful acts, the Hearing Officer ordered the Town to stop its unlawful behavior, deal directly and exclusively with the Union on such matters, honor ground rules, and post a public notice that summarizes the Town's violations of the law and promises that the Town will not repeat such behavior.
This decision is an important affirmation of a public employer's obligation to deal only with the Union and is an important attacks on efforts to circumvent a Union's role. While an employer is permitted to convey its bargaining position to employees, it cannot ask employees what they think of proposals from either party. Such an inquiry, by definition, undercuts the Union's role, as the employer is disregarding the role of the Union and brazenly displays this disregard to employees.
It does not matter if the employer asks all employees or just one employee about proposals. And it does not matter if the questions actually undermined the employee's faith or support of the Union or of the Union's positions. The mere inquiry of an opinion is by itself unlawful and destructive of the Union's statutory role. By aggressively enforcing the Law, Local 1768 simultaneously strengthened its role in the workplace, increased the solidarity of its members, and discouraged the Employer from direct dealing in the future.
