Commonwealth v. Commonwealth Emp't Relations Bd., 21-P-411

CourtAppeals Court of Massachusetts
Writing for the CourtSULLIVAN, J.
PartiesCOMMONWEALTH v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another. [1]
Docket Number21-P-411
Decision Date02 September 2022

COMMONWEALTH
v.

COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
[1]

No. 21-P-411

Appeals Court of Massachusetts, Suffolk

September 2, 2022


Heard: June 9, 2022.

Appeal from a decision of the Commonwealth Employment Relations Board.

Cassandra Bolanos, Assistant Attorney General, for the Commonwealth.

Lan T. Kantany for Commonwealth Employment Relations Board.

Ian O. Russell for AFSCME-SEIU/SEIU Local 509.

Present: Meade, Rubin, & Sullivan, JJ.

SULLIVAN, J.

The Commonwealth appeals from a decision of the Commonwealth Employment Relations Board (CERB or board),

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concluding that the Commonwealth engaged in a unilateral change in terms and conditions of employment in violation of G. L. c. 150E, § 10 (a) (1) and (5), when MassHealth managers surreptitiously listened to employees' telephone conversations with members of the public without first providing notice to intervener, AFSCME-SEIU Local 509 (Union), and an opportunity to bargain to resolution or impasse. The Commonwealth contends that CERB erred in concluding that MassHealth had engaged in a prohibited practice because it had authority to do so under existing policies and contract provisions, and the decision to use the previously unused feature of the telephone system did not impact terms and conditions of employment. We conclude that CERB's decision was supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

Background.

We recite the relevant facts as found by CERB based on the parties' written statements of stipulated facts and the stipulated exhibits.

The Commonwealth, acting through the Secretary of Administration and Finance, is a public employer within the meaning of G. L. c. 150E, § 1. The Alliance, AFSCME-SEIU, AFL-CIO (Alliance) is the exclusive bargaining representative for employees in Statewide bargaining units two, eight, and ten. The Union is an employee organization within the meaning of

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G. L. c. 150E, § 1. A member of the Alliance, the Union represents employees in unit eight who hold the job title of Benefit Eligibility Referral Specialist A/B (BERS A/B) at MassHealth. BERS D staff, who are also bargaining unit members, oversee BERS A/B staff, and all BERS staff report to team managers. BERS A/Bs are subject to performance evaluations, known as Employee Performance Reviews, and may be disciplined for performance related reasons.

BERS A/B staff typically work in an environment akin to a call center and are assigned to cubicles. The cubicles are equipped with Commonwealth-owned computers, and an integrated telephone system. BERS A/B staff answer telephone calls from members of the public who are seeking information and assistance.

The BERS A/B staff log into the telephone system through the Commonwealth's computer system. The system tracks whether a BERS A/B's telephone line is busy or available to take the next call in the queue. A dashboard shows managers status indicators that include "Ready," "Talking," "Not Ready," and "On Hold," and the duration of the status.

In early 2019 MassHealth officials monitoring the dashboard noticed what they believed was a high volume of calls with low call duration. During February and March 2019, MassHealth began an investigation into the conduct of specific BERS A/Bs.

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MassHealth did not inform the Union (or the BERS A/Bs) of the investigation.

Unlike many call centers, MassHealth does not record customer calls. Before February 2019, MassHealth had not used a feature of its telephone system that permitted team managers to listen to telephone calls without the knowledge of the BERS A/Bs (or the callers).[2] When the investigation began, MassHealth managers listened to telephone calls between the identified BERS A/Bs and members of the public and took notes. MassHealth did not provide notice to the Union that managers would be listening to telephone calls between BERS A/Bs and members of the public.

On or around April 20, 2019, MassHealth directed eleven BERS A/B staff to attend investigatory interviews. During one of the investigatory interviews the Union learned that MassHealth had been listening to calls. Between June and August 2019, MassHealth disciplined eleven BERS A/Bs.[3] The Union grieved all eleven disciplinary actions.

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No BERS A/Bs had been disciplined for their handling of telephone calls in the past. Nor had any BERS A/Bs been disciplined based upon review or monitoring of "status indicators" related to the employees' call status or the passing observations of managers.[4] MassHealth had received complaints about the conduct of BERS A/Bs from the public and informed the relevant BERS A/B staff member, but MassHealth had not pursued discipline.

On May 24, 2019, the Union filed a charge of prohibited practice with the Department of Labor Relations (DLR) alleging that the Commonwealth, via MassHealth, had engaged in prohibited practices in violation of G. L. c. 150E, § 10 (a) (5), and, derivatively, § 10 (a) (1), when MassHealth managers monitored BERS A/B telephone calls without first providing the Union with notice and an opportunity to bargain to resolution or impasse. The DLR issued a complaint of prohibited practice on September 13, 2019, alleging that by monitoring telephone calls, the Commonwealth "had changed the criteria by which it evaluates productivity and performance and imposes discipline without giving the Union prior notice and an opportunity to bargain to resolution or impasse about the decision and the impacts of its decision in violation of Section 10(a)(5) of the Law." Pursuant

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to 456 Code Mass. Regs. § 13.03(1)(b) (2016), the Commonwealth filed a petition, which CERB granted, requesting that CERB decide the matter on a stipulated record in the first instance.[5]

MassHealth claimed, as it does here, that the monitoring of the telephone calls was permitted under applicable policies and the collective bargaining agreement (CBA). When BERS A/Bs log in to the Commonwealth's computers, BERS A/Bs receive a notification of "Authorized Use of Information System Resources."[6] The notice refers to an "Acceptable Use Policy" and

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a memo on the "Use of EOHHS and Personal Technology Resources" promulgated by the Executive Office of Health and Human Services, which includes MassHealth.[7] CERB also found that "[o]n

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November 2, [2015], MassHealth Manager Rick Wilson sent a memo to 'MassHealth Operations Staff,' regarding 'Use of EOHHS and Personal Technology Resources.' This memo reiterated various aspects of the technology notifications set forth [in the margin]. It also attached the 'EOHHS agreement,' which was identical to the first paragraph of Article 28 of the CBA."

Article 28 of the CBA provides, in pertinent part:

"The parties specifically agree that all hardware, software, databases, communications networks, peripherals, and all other electronic technology, whether networked or free-standing, is the property of the Commonwealth and is expected to be used only as it has in the past for official Commonwealth business. Use by employees of the Commonwealth's technological resources constitutes express consent for the Commonwealth and its Departments/Agencies to monitor and/or inspect any data that users create or receive, any electronic mail messages they send or receive, and any web sites that they may access. The Commonwealth
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retains, and through its Departments/Agencies, may exercise the right to inspect and randomly monitor any user's computer, any data contained in it, and any data sent or received by that computer.
". . .
"The terms of this Section do not alter current practice regarding employee use of telephones.
". . .
"This shall not infringe upon any rights within . . . G. L. c. 150E or any other right legally granted to employees." (Emphasis added.)

MassHealth also claimed that the monitoring did not alter terms and conditions of employment because it was simply a more dependable and reliable way of collecting information that it had informally collected before.

On March 8, 2021, CERB issued a decision (one member dissenting) in which it concluded that the Commonwealth engaged in an unlawful unilateral change in terms and conditions of employment in violation of G. L. c. 150E, § 10 (a) (1) and (5), when it initiated the practice of surreptitiously listening to employees' telephone conversations with the public without first notifying the Union and providing an opportunity to bargain to resolution or impasse. It ordered MassHealth to restore the status quo ante by ceasing the monitoring of calls until such time as the Union was notified and the parties had bargained to resolution or impasse, to rescind all discipline, and to make the impacted employees whole.

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In support of its decision CERB found not only that the practice was new, but that listening to telephone calls in this manner had an impact on the underlying conditions of employment, thereby implicating a mandatory subject of bargaining, because MassHealth managers changed the nature, quantity, and quality of information available to them. CERB reasoned 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 BERS A/B 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."

CERB rejected MassHealth's claim that the monitoring was permitted under the CBA and existing policy. It found that the Acceptable...

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