The Massachusetts Department of Labor Relations yesterday issued a 50-page stinging rebuke of the Town of Chelmsford’s municipal management, finding that its Town Manager and Counsel unlawfully communicated with an arbitration panel member in an attempt to gain confidential information in order to influence an arbitration award, and also by misleading the Town’s Finance Committee and Town Meeting, among many other violations of law.
NP partners Gary Nolan and Peter Perroni represented the NEPBA and the Chelmsford Police Sergeant’s Union (NEPBA Local 20) in this long-running legal battle. This very important decision thoughtfully addresses the good faith bargaining requirements of parties and arbitration panelists during a contract arbitration proceeding before the JLMC, both during the hearings and all the way through the contract funding process.
This Department of Labor Relations decision comes more than a year after it concluded eight (8) days of testimony in this case, in addition to adjudicating related litigation and appeals involving subpoena issues. This decision – reached in favor of the Chelmsford Police Sergeant’s Union – sustained three (3) different Prohibited Practice Complaints issued against the Town of Chelmsford.
The union alleged that during a previous contract arbitration (JLMC) proceeding, the Chelmsford Town Manager, together with Town Counsel, had illegally communicated in secret with an arbitration panelist, Andrew Flanagan (Andover Town Manager), in an attempt to ensure that the 2016-2019 contract arbitration award (which was favorable to the union) was defeated at Town Meeting. The union alleged that Flanagan unlawfully leaked the award to the town before its release, and then allowed the Town to secretly influence the arbitration panel’s confidential deliberations, and then – when that effort failed – to draft a negative “dissenting opinion” to attach to the arbitration award, which Flanagan had agreed to pass-off as his own. That negative opinion was the Town’s basis to reject the favorable contract during Town Meeting. The Town Manager, however, never disclosed that he and Town Counsel were actually responsible for the negative dissenting opinion.
Based on multiple unlawful and inappropriate communications between the Town’s Counsel, Town Manager and the JLMC Panel Member Flanagan, the DLR determined that the Town of Chelmsford violated the law in many ways. Some examples are below.
- Unlawful Conduct During JLMC Contract Arbitration Proceeding:
The DLR found:
- The sworn testimony of Andrew Flanagan (JLMC Panel Member) was not creditable.
- The Town acted in bad faith when Town Counsel engaged in ex-parte communications with Flanagan with the intent to gain information about the arbitration panel’s confidential deliberations and influence the award.• Paul Cohen, Chelmford’s Town Manager, participated in the unlawful conduct; Cohen knew that Town Counsel was communicating with Flanagan; Cohen was informed of the contents of the communications; and Cohen reviewed the dissent, and understood it would be incorporated into the arbitration award.
- The Town is responsible for the unlawful conduct of Cohen.
- Through its unlawful conduct, the Town gained an unfair advantage by receiving information about the panel’s confidential deliberations before the award was issued.
- The Town acted in bad faith when Town Counsel engaged in ex-parte communications with Flanagan with the intent to influence the panel and modify the arbitration award.
- The Town knowingly engaged in the unlawful conduct in order to influence the arbitration award.
- The Town acted in bad faith when Town Counsel drafted a Dissenting Opinion for Flanagan, with the intent and knowledge that the dissent would be incorporated into the arbitration award.
- As a result of the Town’s unlawful conduct, both the Finance Committee and the Town Meeting voted not to appropriate funding for the arbitration award.
- The Town violated the legal requirement to participate in good faith contract arbitration procedures.
- Unlawful conduct during funding process: the Town Manager misled the Town Meeting prior to its funding vote
The DLR found that:
- The Finance Committee was heavily influenced by the Dissenting Opinion, which is indicative of the Town’s bad faith during the arbitration panel’s deliberation period.
- The Town Manager misled the Finance Committee and Town Meeting by leading them to believe that the Award was independently reached by the panel of arbitrators.
- The Town Manager was aware that Town Counsel had communicated with JLMC Panel Member Flanagan in an attempt to influence the award throughout the deliberation period and knew that Town Counsel had drafted the dissenting opinion which was incorporated into the award.
- By presenting the Award to Town Meeting and the Finance Committee and not disclosing to either that Town Counsel had drafted the opinion, the Town misled the Town Meeting and Finance Committee into believing that the Award was reached by an independent arbitration panel after a full and fair hearing and an unadulterated deliberation process.
- By his unlawful conduct at Town Meeting, the Town Manager failed to bargain in good faith in violation of the law (i.e., failed to bargain with honesty, integrity or an open or fair mind).
- Conclusion and Remedy
The Massachusetts Department of Labor Relations concluded:
- The Town of Chelmsford violated the law when, through counsel, it (1) engaged in ex-parte communications with JLMC Panelist Flanagan with the intent to gain information about the arbitration panel’s confidential deliberations, influence the opinion of the panel and modify the award, and (2) by drafting the dissenting opinion for Flanagan with the intent and understanding that it would be incorporated into the award.
- The Town violated the law by failing to participate in the JLMC process in good faith.
- The Town violated the law when it misled the Town Meeting and Finance Committee into believing that the award was issued by an independent arbitration panel after a full and fair hearing and unadulterated deliberation process.
- The Town acted unlawfully when it withheld directly relevant and necessary information from the union in violation of the law.
- The Town’s unlawful conduct substantially impaired the collective bargaining and JLMC arbitration process.
- As an unfortunate consequence of the Town’s conduct, the arbitration panel issued an award, portions of which were heavily influenced by the Town’s unlawful ex-parte communications.
- The Town’s unlawful conduct resulted in the Finance Committee’s vote not to recommend funding of the award.
The DLR has ordered the Town to take the following actions:
- Resubmit the request to fund the arbitration award to the Finance Committee and Town Meeting within 30 days of September 6, 2022 (at a regular or special Town Meeting).
- No less than 14-days before the Town Meeting vote, as it is essential that Finance Committee Members and Town Meeting Representatives be informed of the Town’s conduct, a copy of the DLR order, decision and notice must be delivered to all Finance Committee Members and Town Meeting Representatives.
In addition, the Town was issued a lengthy Cease and Desist Order, and also a Notice of its Wrongful Conduct which must be posted alerting employees of the findings.