City of Newton v. Commonwealth Emp't Relations Bd.

• Decision Date: 30 December 2021
• Docket Number: 20-P-1269
• Parties: CITY OF NEWTON v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
• Court: Appeals Court of Massachusetts

181 N.E.3d 1083

CITY OF NEWTON

v.COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.¹

No. 20-P-1269

Appeals Court of Massachusetts, Suffolk.

Argued September 1, 2021.

Decided December 30, 2021.

Jeffrey A. Honig, Deputy City Solicitor, for city of Newton.

Jillian M. Bertrand for Commonwealth Employment Relations Board.

Alan H. Shapiro, Boston (John M. Becker also present) for Newton Police Superior Officers Association, MassCOP Local 401.

Present: Green, C.J., Singh, & Hand, JJ.

HAND, J.

In 2016, the chief of police (chief) of the city of Newton (city), in consultation with the city's employment manager, ordered Captain Doe² to undergo physical and psychological "fitness for duty" examinations, and placed him on paid administrative leave pending the results of those examinations. The Newton Police Superior Officers Association, MassCOP Local 401 (union) -- of which Doe was a bargaining unit member and which had a collective bargaining agreement with the city (CBA) -- requested bargaining over certain aspects of the examinations. The city did not bargain as requested by the union. After undergoing both examinations, Doe was cleared to return to work. The union filed a charge of prohibited practice with the Department of Labor Relations (DLR) alleging, inter alia, that the city had engaged in practices in violation of G. L. c. 150E, § 10 (a ) (5), and derivatively, § 10 (a ) (1),³ when it (1) failed to bargain over the procedure for fitness for duty examinations and (2) imposed a fitness for duty policy as a condition of employment without first giving the union notice and an opportunity to bargain to resolution or impasse about the decision and its impact on employees’ terms and conditions of employment.⁴

A hearing officer of the DLR, and on the city's appeal from the DLR decision, the Commonwealth Employment Relations Board (board), concluded that the city failed to meet its obligation to engage in impact bargaining over the criteria and procedure for the fitness for duty examinations to which Doe was required to submit as a condition of his continued employment -- including, specifically, the selection of the examiner, the information to be transmitted to the examiner, the testing protocol to be used by the examiner, the results to be generated by the examiner, and to whom the results of the examinations were to be communicated -- and "when it imposed the fitness for duty policy as a condition of [Doe's] continued employment without providing notice and an opportunity to bargain to resolution or impasse about the decision and [its] impacts ... on employees’ terms and conditions of employment."⁵ The board also rejected the city's argument that the union had waived its right to bargain over these issues. We affirm.

Background. We summarize the undisputed facts as found by the board, supplementing with additional undisputed facts in the record as needed. In 2016, the chief noted that Doe had recently taken an unusually high number of personal days following recent deaths in his family and a personal injury not related to his work, and the chief believed that Doe "seemed to be a different person than he had been."⁶ Citing these reasons, on September 27, 2016, the chief presented Doe with a letter that placed him on paid administrative leave pending the results of physical and psychological fitness for duty examinations. The physical examination was to take place that day, and the letter informed Doe that the city's human resources department would shortly advise him of the date of the appointment for the psychological examination. Following receipt of the letter, Doe requested union representation.

During a meeting at which the chief, Doe, and Doe's union representative were present, the chief stated that he had "just cause" under the city police department's "Code of Conduct [and] Appearance" (code of conduct) to order Doe to undergo the examinations, citing, in addition, his authority to order the examinations under city ordinance § 2-46(c).^{7 ,8} The result of the meeting was an agreement that Doe would comply with the order. Doe attended the physical examination, provided samples for drug testing, and submitted to a breathalyzer test. Later that day, Doe was cleared by the first examiner to return to work pending the results of the drug test. Doe ultimately passed all drug and alcohol tests.

The following day, September 28, 2016, the union sent a letter to the chief seeking certain information regarding the completed physical and impending psychological examinations,⁹ and relying on DLR case law, demanded that the city bargain over "(1) [t]he selection of the [examiner]; (2) [t]he information [to be] transmitted to the [examiner]; (3) [t]he testing protocol to be used by the [examiner]; (4) [w]hat results are to be generated by the [examiner] and to whom [the results] are to be communicated." The city did not bargain with the union as requested. Doe attended the appointment for the psychological examination, was cleared for duty, and was ordered back to work on October 7, 2016. The union then filed a charge of prohibited practice with the DLR.

Following a hearing, the DLR hearing officer determined that the city had violated G. L. c. 150E, § 10 (a ) (5), and, derivatively, § 10 (a ) (1), when it failed to bargain upon demand about the criteria and procedure for fitness for duty examinations (count III), and "when it imposed a fitness for duty policy as a condition of continued employment without providing notice and an opportunity to bargain to resolution or impasse about the decision and the impacts of the decision on employees’ terms and conditions of employment" (count IV).¹⁰ On appeal from the hearing officer's decision, the board affirmed and declined to find that the union had waived the right to demand to bargain with the city.¹¹

Discussion. We begin by clarifying the scope of this appeal. The only issues as to which the union demanded bargaining were the criteria and procedures for fitness for duty examinations. Accordingly, we need not and do not decide whether the decision to impose fitness for duty examinations, or to place Doe on administrative leave pending the completion of a fitness for duty examination, or to order him to undergo such an examination, was subject to bargaining. The board concluded, based on what it treated as "well-established precedent," that those actions were part of the city's nonbargainable prerogative, and at oral argument before this court, the union agreed that those issues were not before us.¹² See, e.g., Nolan v. Police Comm'r of Boston, 383 Mass. 625, 625-626, 420 N.E.2d 335 (1981). Accordingly, our consideration is limited to review of the board's conclusion that the city was required to engage in impact bargaining over the means for implementation of the department's decision; that is, the criteria and procedures for the fitness for duty examinations. Like the board, we determine that the city is required to bargain.

1. Standard of review. An appeal from a decision of the board is governed by G. L. c. 30A, § 14. See G. L. c. 150E, § 11 (i ). Although we "accord deference to the [board's] specialized knowledge and expertise, and to its interpretation of the applicable statutory provisions," Worcester v. Labor Relations Comm'n, 438 Mass. 177, 180, 779 N.E.2d 630 (2002), we will nevertheless set aside a decision if it is "[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Somerville v. Commonwealth Employment Relations Bd., 470 Mass. 563, 568, 24 N.E.3d 552 (2015), quoting G. L. c. 30A, § 14 (7) (g ). See Commonwealth v. Labor Relations Comm'n, 404 Mass. 124, 127, 533 N.E.2d 1326 (1989), citing G. L. c. 30A, § 14 (7). "A commission's decision must be based on substantial evidence, i.e., such evidence as ‘a reasonable mind might accept as adequate to support a conclusion.’ " North Attleboro v. Labor Relations Comm'n, 56 Mass. App. Ct. 635, 638, 779 N.E.2d 654 (2002), quoting G. L. c. 30A, § 1 (6).

2. City's obligation to bargain. Public employers are required to "negotiate in good faith with respect to wages, hours, standards or productivity and performance, and any other terms and conditions of employment," and are "prohibited" from "[r]efus[ing] to bargain collectively in good faith with the exclusive representative." G. L. c. 150E, §§ 6, 10 (a ) (5). "A failure to meet and negotiate when there is a duty to do so and unilateral action without prior discussion can constitute an unlawful refusal to bargain ...." School Comm. of Newton v. Labor Relations Comm'n, 388 Mass. 557, 572, 447 N.E.2d 1201 (1983). "[S]hort of impasse, [the public employer] may not unilaterally implement changes to a mandatory subject of bargaining without negotiation." Commonwealth, 404 Mass. at 127, 533 N.E.2d 1326. Accordingly, a public employer violates G. L. c. 150E when it unilaterally changes an existing condition of employment or implements a new condition of employment concerning a mandatory subject of bargaining without first providing the union with notice and an opportunity to bargain to resolution or impasse. See School Comm. of Newton, supra ; Lee v. Labor Relations Comm'n, 21 Mass. App. Ct. 166, 167, 485 N.E.2d 971 (1985).

We discern no error in the board's determination that the impact and the means of implementing the city's requirement that Doe undergo fitness for duty examinations were mandatory subjects of bargaining. Although "certain types of managerial decisions that must, as a matter of policy, be reserved to the public employer's discretion" are exempted from the duty to bargain, Worcester, 438 Mass. at 180, 779 N.E.2d 630, "the means of implementing such a nondelegable decision may properly be the subject of an enforceable collective bargaining agreement" (emphasis added). School Comm. of Newton, 388 Mass. at 564, 447 N.E.2d 1201. The employer's obligation to bargain is particularly clear where the decision touches on the terms and...