CERB dismisses unfair labor practice charge over ‘silent observers’

A decision last summer by the Commonwealth Employment Relations Board provides guidance for municipal employers for collective bargaining sessions if a union proposes that individuals other than members of the bargaining team attend negotiations.

In Belmont School Committee and Belmont Education Association, the parties disagreed over a ground rule proposed by the union to open negotiations to all bargaining unit members. The union’s first proposal was to hold all bargaining in open session, allowing anyone to attend, but that proposal was met with opposition from the School Committee, which countered with a ground rule that negotiating sessions would be closed to anyone not designated as a bargaining committee member for either party. The School Committee also rejected a subsequent union proposal to designate the entire bargaining unit as a member of the bargaining team.

The union also discussed inviting members of the bargaining unit to attend negotiation sessions as “silent representatives” who would listen and observe the sessions, provide feedback to their bargaining team, and meet with their team to caucus. The School Committee rejected this proposal as well, indicating that it would only attend negotiations with a designated bargaining team.

While the parties were disagreeing on ground rules, but before negotiations began, the union voted at a monthly meeting to include silent representatives on its bargaining team. It failed, however, to inform the School Committee of this vote.

When negotiations began, there were several bargaining unit members sitting in chairs at the back of the room, and the union’s designated bargaining team members were seated at the table. Noting that it had rejected the union’s proposed rule, the School Committee declined to take part in bargaining while observers were in the room, with the understanding that the union could not implement its proposed rule unilaterally. When the union finally asked its observers to leave, the parties began to bargain without ground rules, reaching an agreement several months later.

The union filed a complaint with the Commonwealth Employment Relations Board, which is the appellate body within the Massachusetts Department of Labor Relations, alleging violations of the state labor relations law, claiming that the School Committee had interfered with the union’s duty to represent its members by attempting to dictate the size and composition of its bargaining teams.

The union argued that the law guarantees employees the right to bargain collectively through representatives that the union selects through a protected internal selection process. The School Committee argued that the union was creating a workaround of longstanding precedent that bargaining be held in closed sessions, and obscuring the process by insisting that others attend negotiations.

Finding that the union did not clarify the status of the silent representatives before negotiations began, the CERB dismissed the complaint. Until the union clarified the roles of the bargaining unit members present, the School Committee was justified in refusing to bargain with observers in the room, the CERB ruled.

The CERB noted that the union did not have to provide the names of bargaining team members to the School Committee before negotiations, but that it should have notified the School Committee that silent representatives would be attending bargaining sessions and should have specified the role they would be playing in bargaining.