• Miyares and Harrington, LLP

Communication Conundrum

In a recent Department of Labor Relations (DLR) decision, In re: Town of Chelmsford et al., MUP-7227 (consolidated with two other matters), the hearing officer found that private communications between Town Counsel and the management representative of the Joint Labor Management Committee (JLMC) panel handling a contract arbitration involving the Town and a police union constituted failure to bargain in good faith by the Town, in violation of the state’s labor law, Chapter 150E.


The Town of Chelmsford and the union representing Chelmsford’s police sergeants were engaged in the statutory process required by the JLMC Statute, Chapter 589 of the Acts of 1987, which provides for arbitration between municipalities and public safety unions when the parties fail to reach agreement on collective bargaining agreements. The JLMC appointed a 3-member arbitration panel consisting of a neutral and representatives of management and labor to arbitrate the wage dispute after mediation was unsuccessful.


The focus of the unfair labor practice charge was Town Counsel’s emails and discussions with the panel’s management representative during the panel’s deliberation regarding the arbitration award. The management representative shared terms of a draft award with the Town Counsel, who then authored a dissenting opinion on the management representative’s behalf. Chelmsford’s Town Meeting refused to fund the award, apparently based on the recommendation of the Town’s Finance Committee in reliance upon the dissenting opinion. When the union learned of the communications and exchange of materials, it filed charges with DLR alleging prohibited practices in violation of state labor law. Chelmsford argued that the communications were lawful because the management representative was not neutral and because neither the neutral arbitrator nor the JLMC itself expressly barred such contact.


The hearing officer disagreed, finding based on the language of the JLMC Statute that a committee member’s role is not, in fact, to advocate for a party’s interest but rather to advocate for the dispute resolution process. Town Counsel should abstain from private communication with the management representative just as he would have been expected to abstain from such contact with the neutral arbitrator. She found that both the ex parte discussions between Town Counsel and the management representative, as well as Town Counsel’s drafting of the dissent, demonstrated a failure to bargain in good faith under G.L. c. 150E, §10(a). She also found the Town Counsel’s failure to disclose the extent of the ex parte communications to Town Meeting and the Town Finance Committee to violate Section 10(a).


Often, the management and labor representatives whom the JLMC appoints to serve on the arbitration panel are also involved in the JLMC’s mediation process prior to the arbitration, where they have frequent and in-depth communications with their respective sides of the dispute. Open communication and a good working relationship between counsel and the panel members often can lead to settlement short of arbitration. While there may be times when communications prior to issuance of the award can help the panel craft an award with financial terms that are more likely to be approved for funding by the municipality’s legislative body, the parties should be careful when communicating with panelists while the panel is deliberating the draft decision.


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