PAX Centurion - November / December 2013

Page 26 • PAX CENTURION • November/December 2013 617-989-BPPA (2772) Sometimes the system works: A look back at public sector bargaining PAX CENTURION To advertise, contact Director of Advertising Sponsorships Michael Joyce at: Cell: 617-529-9288 • Office 617-989-BPPA (2772) Email: mjoyce@bppa.org • Fax: 617-989-2779 Advertise in the A s I watched this week while, one by one, all 12 Boston City Councilors in the chamber voted “Yes” to fund the BPPA’s collective bargaining agreement, I thought to myself, “Some- times the system works.” Of course, the system had a little help: it took a Herculean effort by Tommy Nee, Jimmy Barry and the rest of the BPPA Executive Board and Bargaining Committee, with the assistance of the legal team, headed by the inimitable Joe Sandulli, the strong advocacy of union-side arbitrator Susan Horwitz, and the courage, insight and fairness of neutral arbitra- tor Tim Buckalew – and those are just a few of the people who made the system work. After the vote was over, the next thought I had was, How did we get here?And the answer I came up with was: Proposition 2½. The idea of unionized public sec- tor workers, particularly public safety workers, has not always sat well with the governments that employ those workers. Remember the 1919 Boston Police Strike? It was not just the idea of a police union, but affiliation with the national AFL that incensed Calvin Coolidge. Even FDR, who signed the National Labor Relations Act to protect unions in the private sector, thought that public employees should not unionize. A big step came in 1962 when President John F. Kennedy signed Executive Order 10988, which gave federal employees limited rights to organized and bargain collectively. In Massachusetts, public sector bargaining took a first step in 1965, with G.L. c. 149 § 178G-N, which allowed bargaining over working conditions, but not wages. It wasn’t until the passage of Chapter 150E in 1973, that full collective bargaining (though without the right to strike) was permitted for state and municipal employees, including police. At the same time, the Legislature created an impasse procedure for police and fire collective bargaining. It was a last best offer procedure, which required the arbitrator to choose between the last best offers of the two parties – no compromises allowed. In 1977, the Legislature eliminated last best offer and created the Joint Labor Management Committee for Police and Fire (JLMC). The procedures Legal Notes: John M. Becker, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association included mediation, first, and then, if necessary, tripartite arbitration. Then, in 1980, the electorate passed a constitutional amendment called Proposition 2½, which radically reduced the amount of prop- erty tax revenue available to cities and towns. Remember that, before Proposition 2½, when a public sector labor union and a municipality agreed on a contract, the legislative body had to fund that contract, no matter what. Similarly, if a police or fire union reached impasse and the dispute went to an arbitrator, the Legislature had to fund the arbitrator’s award without question. As the late Lou Reed once said, “Those were different times.” As a result of Proposition 2½, the Legislature amended Chapter 150E to make the funding of public sector union contracts contingent on the legislative body – in the case of cities and towns, the City Council or the Town Meeting. From now on, the par- ties knew their job wasn’t done when they left the bargaining table with a signed agreement – they now put on their lobbyist hats to persuade the legislative body to bring the contract to life. The existing JLMC procedure could not survive Proposition 2½, so, in 1982, the Legislature repealed the JLMC law. For five years, police and fire unions had no access to statu- tory binding arbitration. Then, in 1987, the Legislature resurrected the JLMC, with one crucial difference. Now, when an arbitrator issued an award, any financial items in that award were subject to funding by the appropriate legislative body. The post-Prop 2½ system works like this: (1) Municipality and police union sit down to bargaining over a contract; (2) If they can’t reach a voluntary agreement, one or both parties petitions the JLMC to get involved (in legalese, “exercise jurisdiction over the dispute”); (3) a JLMC investigator meets with the parties to see if they are at impasse; (4) if yes, the JLMC votes to assign a mediator, who meets with the parties and tries to work out a voluntary deal – this usually works; (5) if mediation doesn’t work, the parties meet with the JLMC to decide what to do; (6) usually they go to arbitration (there is another stage called fact-finding, but it is rarely used); (7) the type of arbitration – single or tripartite – is decided, as is the number and nature of issues to be determined; (8) in tripartite arbitration, each party chooses an advocate/ arbitrator, and those two choose the neutral. The parties then make their cases before the arbitrator panel and a majority of the panel then issues an award. Once an arbitrator issues an award (or the parties voluntarily agree on a contract), each side has a responsibility to support that agree- ment or award before the legislature for funding. At the very least, this requires the executive to present the document to the legislative body with a request to fund it. Once the legislative body receives the request for funding, however, it has no obligation to fund it. No legal obligation in any case. And that brings us back to Proposition 2½. Once an arbitrator issues an award (or the parties voluntarily agree on a contract), each side has a responsibility to support that agreement or award before the legislature for funding. At the very least, this requires the executive to present the document to the legislative body with a request to fund it. Once the legislative body receives the request for funding, however, it has no obligation to fund it. No legal obligation in any case. And that brings us back to Proposition 2½.