Court decision re-shapes union negotiations
By Alex Bloom abloom@eagletribune.com —
NORTH ANDOVER — A recent court decision that eliminated "evergreen clauses" in union contracts has city and town officials applauding and union leaders struggling to adapt to the change.
The state Supreme Judicial Court ruled Oct. 22 that so-called "evergreen clauses" within union contracts are in violation of laws limiting collective bargaining agreements to three years. The clauses essentially extended the terms of expired contracts for the length of negotiations, until a new agreement could be reached.
In the Merrimack Valley, mayors of cash-strapped towns are grinning over the change, hoping it will force unions to the bargaining table. They allege that unions used evergreen clauses to delay contract negotiations and avoid offering concessions while keeping the perks of an expired agreement.
"This has been a major noose around our neck for years," Haverhill Mayor James Fiorentini said.
In Haverhill, nine municipal unions — including firefighters, teachers, and school administrators — are operating on expired contracts, and Fiorentini estimated that most of them have evergreen clauses.
The Supreme Judicial Court ruling caught union officials by surprise.
"We’re all pretty startled by the court’s apparent disregard for 30 years of history," said attorney Joseph Sandulli of Sandulli Grace, PC. The Boston law firm represents the 3,600-member Massachusetts Coalition of Police and the 1,500-member Boston Police Patrolmen’s Association, among other unions.
Sandulli said management and unions have included evergreen clauses in the past because they see the wisdom of the agreement, adding structure and cohesion to bargaining periods.
An added edge for cities and towns
Justice Francis Spina’s Oct. 22 opinion contends that evergreen clauses conflict with a law limiting collective bargaining agreements to three years.
The court’s decision takes into consideration "the wholly legitimate concern about the seemingly leisurely status and pace of public sector bargaining," Justice Margot Botsford wrote in her dissent.
At issue is how municipalities will handle labor relations during intervening periods between contracts.
In Lawrence, 12 city unions have expired contracts with evergreen clauses.
"We don’t know exactly what we can and can’t do yet," said Lenny Degnan, chief of staff to Lawrence Mayor William Lantigua.
Removing evergreen clauses has both sides arguing over how the landscape has changed.
"This decision has unleashed all kinds of interesting scenarios, and it’s not yet entirely clear what the guidance will be," said Phil Boyle, an attorney for Boston-based Morgan Brown and Joy, LLP who represents Lawrence and other municipalities.
The new opinion does not give municipal leaders the right to act unilaterally after a contract’s expiration, so a city cannot just decide to change a union’s health care after its contract has expired, or stop paying longevity to a union with an expired contract.
But local leaders do feel the decision gives them a bit of an advantage in negotiations that they didn’t have previously.
"This is a major tool for management, but it’s not the be all and end all that some people have made it out to be," Fiorentini said. "It still says that we have a duty to bargain in good faith before we make changes."
During negotiations, lawyers and town officials agree that towns must uphold regular terms and conditions of employment, as long as the two sides are bargaining in good faith.
Unions may not strike in Massachusetts, so the state has devised processes to push sides to agree. If two sides still cannot agree after a prolonged period of proposals and counter-proposals, they can file to enter mediation, fact-finding, and arbitration.
But municipalities also have the right to declare an impasse if they believe an agreement cannot be reached. After declaring an impasse, they have the right to act. Both sides agree that impasse is rare, as there are multiple ways to reach an agreement.
"You can’t just wake up one morning very early in the process and say, ‘Let’s get to impasse,’" Boyle said.
The SJC’s decision does remove a union’s ability to file grievances with arbitration after a contract has expired — a valued union protection. With the new decision, unions would have to file any grievances as unfair labor practices sent to the Division of Labor Relations, which could take a long time to litigate.
A new sense of urgency
Boyle said he was surprised evergreen clauses survived as long as they did because they are in violation of clear statutes.
"Nothing gets done while you’re in your evergreen status," he said. "There’s no incentive for a union to concede. None."
The court’s decision injects urgency into a process that has been delayed, Boyle said.
The Division of Labor Relations would not comment for this story in order to ensure that judicial processes between both sides remain neutral.
Calls placed to the leaders of the Lawrence Patrolmen’s Association, the Methuen Police Superior Officers Association, the Lawrence Firefighters Local 146 and the Haverhill Firefighters Local 1011 were not returned.
The Haverhill Education Association, representing 750 teachers and school staff members, has not had a contract for over two years and does not have an evergreen clause, association President Marc Harvey said.
Removing the grievance process on an expired contract pushes both sides closer to the table, he said.
"It should not become an ‘us versus them’ scenario," Harvey said. "It should be an open and honest dialogue in terms of creating the conditions by which we can be successful by our shared vision."
Removing a ‘tourniquet’
The real change, as Boyle sees it, is creating an incentive for both parties to move more quickly instead of stalling. "The beauty of the SJC decision is that it removed this artificial tourniquet that is on the collective bargaining process, and it says to both parties, ‘Go into the room and negotiate a contract,’" he said. Officials with the Massachusetts Coalition of Police have already said they plan to lobby lawmakers for a change.
Sandulli said he would advise unions to start negotiating well before a contract’s expiration date. If a contract does expire, unions should file for mediation to ensure protection of the old contract’s terms and conditions.
"It puts a burden on you, it creates a concern, it’s obviously not as good as having an evergreen clause," he said. "It’s taking something away from us. That’s what’s most troublesome."
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