-: That's JC 13331.
City of Chelsea,
the New England Police Benevolent Association Local 192.
-: Okay, Attorney Treadaway, whenever you're ready.
(Treadway clears throat)
(Treadway coughs)
-: Pardon me.
Good morning, Madam Chief Justice.
Good morning, Associate Justices.
May I please the court.
My name is Strephon Treadway
and I represent the City of Chelsea.
This action is the City of Chelsea's
request to vacate the award of an arbitrator below
finding that Chelsea was subject to compulsory arbitration
of a 2021 dispute with the
New England Police Benevolent Association
under the 2016 through 2019 contract that Chelsea had
with Teamsters Local 25,
which had been the previous collective bargaining
representative of the 911 dispatchers.
As a consequence,
this case raises the question of whether or not
a collective bargaining agreement
and the arbitration clause within it
can survive the termination of the
collective bargaining relationship that gave birth to it.
-: If it can, what's the impact of
disclaimer of interest in January of 2020?
-: So if it could survive the termination
of the relationship,
the disclaimer of interest wouldn't really have an impact.
The argument the city is making is that
the disclaimer of interest is the method by which
the agreement was terminated and therefore-
Justice Kafker: But that's not the way-
-: Or the relationship was terminated rather.
-: Okay the city of ...
Say that it was no change in union representation.
Treadway: Assuming there was no change.
-: Assuming there's no change,
wouldn't this still be in there,
still hadn't gotten a new collective bargain agreement,
this would still be enforceable, right?
Treadway: It would.
-: So are we punishing a change in union representation
by saying that this can no longer be arbitrated,
meaning that we would be interfering
with union's ability to change representatives?
-: We are not. -: Why not?
-: Just as employees have the right to
reject their previous representative,
a union can reject a group of employees.
So the mechanism by which it does that
is a disclaimer of interest.
It can walk away with a relationship with a bargaining unit.
-: I have no doubt that this union,
the old union shouldn't be doing this
because we've changed union representatives.
But for example, are all those employees in Chelsea,
do they have the same terms and conditions they had
under the collective bargaining agreement?
Meaning that their salary is determined
by the collective bargain,
their wages and hours,
their workplace conditions.
Is all of the rest of this contract being enforced?
That's a yes or no.
-: Not because of the contract.
So similar to the case before you-
(Justice Kafker laughs) -: It's just
because out of the goodwill of the city-
-: No, is a requirement-
-: What is required, yeah?
-: Section 10(a)(5) of the Massachusetts Labor Relations Act
and Section 8(a)(5) the Cognate Federal Act,
the National Labor Relations Act,
an employer who has represented employees,
whether or not there is a contract
cannot change terms and conditions of employment
without bargaining with the representative.
This is actually very similar to the case
that you just heard.
Is a similar ...
we would have to go through decisional,
and or impact bargain.
-: Aren't the grievance and arbitration provisions the same
as the rest of the contract?
Meaning they stay in place until you reach impasse
and then if you reach impasse you can make changes or not.
But isn't this all kept in place while you negotiate?
-: No, there's a distinction between hearing grievances
and arbitrating them.
So under Litton, the US Supreme Court decision,
under the National Labor Relations Act,
the employer is obligated under the
Collective Bargaining Act to meet with the union
and negotiate over grievances.
But it's not obligated to arbitrate grievances
absent in agreement to do so.
So both under federal law and under state law-
-: But the old agreement bound you to arbitrate.
Treadway: Exactly.
-: That old agreement is still in effect.
You're telling me that it's still in effect on everything
including the grievance,
but not the little arbitration provision?
-: No, I'm arguing that Teamsters agreement
ceased to be in effect in any way at all
when they disclaimed interest on January 8th of 2020.
-: Despite the, I think maybe about a year earlier
email from the city solicitor?
-: So the agreement was extended
past its nominal termination date,
which was June 30th of 2019,
because both the city and the Teamsters
had indicated a desire to negotiate
new provisions for the contract.
So that extended by virtue of the evergreen clause,
the contract during the period
when negotiations were pending.
However, on January 3rd of 2020, I believe it was,
New England Police Benevolent Association
filed a petition to represent the Chelsea dispatchers.
Once Chelsea became aware that there was a so-called
question of representation,
we had an obligation to not deal with either union.
We had a legal obligation to not deal with either union,
not sign a contract with the Teamsters,
not signed a contract with the
New England Police Benevolent Association
until the will of the employees
as to who was gonna represent them in negotiations
became clear.
So if that didn't terminate the
extension of the evergreen clause,
whose manifest purpose is to protect the contract
while negotiations are pending,
the reaction of the Teamsters afterwards
in disclaiming interest walking away from that relationship
certainly did.
-: But again, I get that the Teamsters are out of the game,
but somebody else has stepped into their shoes.
Treadway: Not until April 16th though.
-: Well, but again,
the contract is perpetuated when they give that notice.
It's kept in place 'cause we don't want the world to ...
we don't want to penalize people from changing unions
and losing all those benefits.
So the-
Treadway: So, I'm sorry to interrupt.
-: No, go ahead 'cause it's hard, I get it.
-: Yeah, I don't wanna lose my train of thought, I apologize.
Justice Kafker: Okay, go ahead.
-: So the contract is kept in place
by virtue of the evergreen clause to protect
the contract while negotiations are pending,
not to protect the employees in their interests
as far as who's going to represent them.
So the party to this contract is the Teamsters,
not the employees.
-: No, the party to the contract
are the employees covered.
We care about the people who are covered by it.
They're the ones who are protected by it.
The union negotiated it for them,
but they're beneficiaries of that contract, right?
-: We certainly care about our dispatchers.
I don't want to give the (chuckles)
wrong impression as far as that goes.
-: But they're not left in a void.
I mean, I understand your argument that
somehow the arbitration clause like the space shot,
that gets dropped off while the rest of it keeps flying up.
That's the part that (indistinct)
-: So that is not my argument.
The contract in its entirety terminates
with the end of the relationship.
What stays in place when New England Police
Benevolent Association is certified on the 16th of April,
several months later after the Teamsters
have disclaimed interest.
What stays in place are terms and conditions of employment.
So wages, hours, terms and conditions of employment.
Again, very similar to the vaccine mandate case
you just heard.
We cannot make changes absent decisional
and or impact bargaining.
Justice Gaziano: That's what I don't understand.
-: Absent the contract.
-: If the wage and hours maintain
the terms and conditions, wage and hours vacation policy,
those are all maintained in the interim period.
-: Once the NEPBA is certified.
So during the period where there is no representation
they're not.
But we haven't made any changes.
-: Right, but that's my question.
So if during that interim period,
could the city of Chelsea say to the dispatchers,
you don't get any vacation leave anymore.
Treadway: There's other protections in place-
-: That's what I'm asking. -: Other than that.
So they would have the same rights of vacation
that unrepresented employees have in general.
But beyond that-
-: I'm just wondering what it is about
the arbitration provision makes it a standalone
versus other terms and conditions of employment.
-: Under both federal and Massachusetts law,
a party may only be compelled to arbitrate a dispute
if it's agreed to do so.
So arbitration is a creature of agreement.
There must be an agreement to arbitrate,
absent that no party can be compelled to arbitrate.
-: What's the legal mechanism that makes the
other terms and conditions of employment
be maintained during that interim period?
-: The employer's duty to bargain
when employees are represented.
So, for example-
Justice Gaziano: But who are they bargaining with
if you don't know who to bargain with.
-: Right, so once the Teamsters disclaimed interest
and until the New England Police Benevolent Association
was certified, there was no duty to bargain
because they didn't have a representative.
That said, Chelsea made no changes.
There's nothing in the record
that suggested we did anything.
And an employer would be absurd,
very foolish for an employer to make significant changes
in the context of a union campaign
because they'd be subject to the argument-
-: Well, we know they can't do it during the union campaign.
The question is though, once they change representatives,
do you start completely from scratch?
Meaning, 'cause essentially you're saying
sort of they're doing it out of the goodness of their heart
once they change representative.
But I don't think that's true,
because otherwise then there's been this dramatic loss
of protections when you change union representatives,
and then you're punishing
the change of union representatives, aren't you?
Justice Lowy: And that's what
the Town of Watertown prevents, right?
-: I would say that it doesn't,
and I am acutely aware that the author of Town of Watertown
is present on the bench today.
-: It doesn't mean it was rightly decided.
So, and I'm not arguing that it was wrongly decided.
Justice Kafker: It was a long time ago.
-: So I am not suggesting that Town of Watertown
should be reversed at all.
I think it's entirely consistent with previous cases
that have said that rights,
and this at the federal level,
I think this is Nolde versus Confectionary Workers.
Rights that had accrued,
that had arisen under a previous
collective bargaining agreement
can be enforced subsequent to the termination of
that collective bargaining agreement.
So for example, in Town of Watertown,
which was also a case of discipline,
the employee was disciplined and discharged,
I believe the day before the change of union representation.
And the decision merely allowed the subsequent union
to enforce those rights that had accrued
prior to the change in representation.
And there's language in Town of Watertown
that I think to my mind,
strongly suggest it wasn't intended to be extended.
-: While you're looking for that,
are you saying that the Watertown case
does not stand for the proposition,
big picture that changes in unions doesn't void the CBA?
-: I think that's not true.
So I think Town of Watertown, for example ...
Let me find the quote briefly.
It's gonna take a second.
Justice Kafker: The good news for you is
we're not bound by the Town of Watertown. (laughs)
-: So I think that there's no need
to touch Town of Watertown.
I just think we just want to avoid extending it
because it merely stands for the proposition
that rights that have previously accrued
under a predecessor's collective bargaining agreement
can be enforced by the subsequent union.
-: Why should we not extend it to this gap period
that Justice Gaziano was talking about?
-: Because the termination of the relationship
terminated the contract.
There's ...
-: Well tell me more about 10(a)(5)
'cause you started talking about 10(a)(5) and then ...
-: But 10(a)(5) is the statute under which
the vaccine mandate case you just heard was argued.
-: I mean, let's not talk about that case.
Let's talk about what happens under 10(a)(5).
You were suggesting that the terms
and conditions of employment continued
and were required to be continued under 10(a)(5)
or did I misheard you?
-: So, and I just wanna clarify when they are required
to be continued.
So if we take for example,
the situation of a newly organized workplace.
So there had been no union at all.
A union organizes a collection of employees.
There's an election at that point
once the union is certified,
once the will of those employees to be represented
by that union is certified
by the Department of Labor Relations,
the employer has an obligation to maintain wages, hours,
and terms and conditions of employment at the status quo.
-: But that's really easy.
The hard issue is the one we have to deal with.
Treadway: I agree.
-: Which is, okay,
these employees were represented by a collective bargaining.
They were represented by a union.
Treadway: Yes.
-: That union achieved a collective bargaining
contract for them.
And they're not going non-union,
they're just switching union representatives.
So they like unions.
They just didn't like that union.
And then you're saying
that all that they negotiated in the past,
which would have continued, right?
Again, no matter what,
if they hadn't changed representatives
and that notice that we talked about earlier were given,
all those provisions would be in effect, right?
The only difference now is
they change unions and you're saying,
now it's the goodness of their heart
that keeps those in effect.
Treadway: I'm saying-
-: But it's really 10(a)(5) that keeps them in effect.
-: Exactly, if there is no gap in representation,
it's 10(a)(5) that keeps them in effect.
Justice Kafker: There is no gap in representation.
-: Here, there's a gap in representation.
-: There's a change in union representation.
Treadway: As of January 8th,
the Teamsters have disclaimed interest.
-: They've disclaimed interest 'cause they lost.
-: They hadn't lost.
The election was held subsequently.
Justice Kafker: They were about to lose.
There's a union campaign.
-: If they hadn't disclaimed interest,
they would've been on the ballot.
The employees would've been offered
the Teamsters as a choice.
They weren't even offered the Teamsters as a choice.
And this may be a case of sour grapes.
The teamsters, and we may find their behavior
in walking away from this bargaining unit reprehensible,
but it's not unlawful.
So for example.
-: There's nothing reprehensible about it.
The union, now we have a different union,
and the question is, does 10(a)(5) preserve
and the whole sort of thought process on continuing
contracts when they expire,
does it extend here,
and does it include the grievance procedure, right?
That's the issue we have to deal with.
And I understand it's complicated
'cause even under the federal law
they're all over the place.
-: So I would distinguish between grievances and arbitration.
So under Litton, for example, Supreme Court case,
the court distinguished between grievances,
which the employer is required to meet and negotiate over
because under the Cognate Federal Statute,
section 8(a)(5) those were distinguished
in Litton from arbitration.
So the employer was required to meet and discuss grievances
but not arbitrate them
because there was no arbitration clause in effect
at the time the disputes arose.
-: You're saying the CBA continues under all of its terms
except for the arbitration clause
because you can only be bound under Litton
to arbitrate if you have an existing contract?
-: Except that it's not the CBA that extends,
it's the terms and conditions of employment-
-: Which are written down in the CBA.
-: So they're very closely related, there's no question.
But the cause of action here
would not be a violation of the contract
if we didn't do that.
It would be a charge of prohibited practice
for failing to bargain, okay?
So there's a different cause of action
related to change in terms and conditions of employment.
If there's a contract, there can be an arbitration.
If there isn't and there's a group of represented employees,
there would be instead a charge of prohibited practice
for failing to bargain over a change.
I do wanna focus more on the impact
of the disclaimer of interest.
-: Sorry, yeah.
It's three minutes over so you don't have time.
Treadway: All right.
-: Do you have it in your brief?
I'm gonna assume it's there.
-: Please, and I would rely on my brief.
Thank you very much, your honors.
I appreciate your time.
-: Thank you.
Okay, Attorney Horgan.
-: Thank you Madam Chief Justice.
May I please the court,
Tom Horgan on behalf of the NEPBA.
I'd just like to start with addressing
the presumption of arbitrability
in the sense that it's both recognized
in the Massachusetts and federal courts,
that there's a presumption that an arbitration provision
should be arbitrable
and an order to arbitrate should be upheld
unless there's a finding, special ...
there's not any reasonable or susceptible interpretation
that can be enforced to cover that dispute.
And that's heightened in the sense when we have
a change in union representation and or expiring contracts.
-: But so that's tied into why the city you say is wrong,
that the January 20th disclaimer
didn't terminate the collective bargaining.
Horgan: Correct, because the contract-
-: The why in there.
I want you to tell me why.
-: Because the contract was always in effect,
it was never expired.
And that goes back to the intent of the parties.
The city of Chelsea, when they negotiated this contract,
they didn't include language
that this could be unilaterally terminated.
They didn't include language that a successor could not
step into the shoes of the predecessor.
-: Well, they didn't include an evergreen clause though.
This is a somewhat unusual provision.
It says basically somebody has to ask to continue it, right?
-: Correct, but it can only be continued,
it can't be unilaterally terminated.
Unlike some agreements that include that type of language.
And just, I'd like to point to the
Cincinnati Newspaper case, US district court case,
which I think is on point with
the facts that we have in front of us.
In that case, you had a contract that was continued
past its expiration date per the language in the contract.
There was a newly certified representative.
After that certified representative was certified,
the events giving rise to that grievance occurred.
And the court said in that situation,
the successor union could still enforce the terms
even though, including arbitration,
even though the events occurred after the certification.
Because the new successor union
had assumed the agreement voluntarily.
-: The Cincinnati Newspaper case is by who?
By which court.
Horgan: US Appeals Court.
-: Which one? -: Sixth circuit.
Although from what ...
I think I've read that case.
There's something different about that case, right?
Horgan: They have the contingency that
the successor union has to assume the contract.
They have to take steps to either notify the employer
that it's there understanding that they're a successor
to the agreement. -: Right.
-: And take other steps that are aligned with the contract,
either filing a grievance
or a motion to compel as the case was here.
-: This is a little tricky though, right?
So we're in this period post,
the old unions left
and said they want nothing to do with it.
The new unions stepped in.
The terms and conditions are preserved,
but they're preserved by 10(a)(5), right?
It's not like the contract is in effect, right?
Talk about that 'cause that's where this gets novel.
-: Right, I think my brother pointed to the case in Litton,
and the difference in Litton was that
the contract had expired and that wasn't in dispute.
And so the terms and conditions after the expiration,
the terms and conditions, the grievance process,
not the arbitration provision, but that all continued.
That became the status quo.
-: But so he says not the arbitration process.
That suggests you agree with him.
I take it that's not what you meant.
-: If the contract is deemed to be expired,
the arbitration provision absent clear and unmistakable
language in the contract, otherwise,
yes, the arbitration is a matter of contract.
-: So then talk to me about that.
Why is that not binding here then?
-: Because the contract never expired here.
The only reason that the city is arguing
that the contract expired
is because the employees of the union
enacted on their statutory right to
freely choose a representative of their choice.
And that is the reason why the contract
is expired from my brother's standpoint.
-: In the gap period, with whom is the contract?
-: Well, it's just a status quo.
Everything has to freeze at that point.
Because until the board determines
who the majority representative is,
they don't want any prejudice to take over the group
until that decision is finalized.
-: But under what authority is that, 10(a)(5)?
Horgan: 10(a)(5)
Justice Gaziano: Well, the answer is 10(a)(5) for us?
-: Would preserve the status quo in that situation
while we wait for the board to make a determination
on the representation petition.
-: Hold on, okay, but again, that's easy.
The hard part is once you've got a new union.
Once you have a new union in place
and they're bargaining,
does 10(a)(5) preserve the terms and conditions
including the arbitration?
What keeps everything in place?
'Cause you both seem to agree that 10(a)(5) preserves
everything else but the arbitration.
You seem to be suggesting that the contract remains in place
and that preserves the arbitra ...
I'm just getting lost here.
And I also know that the NLRB
has some very odd decisions on this.
So I'm not sure what preserves the arbitration.
Is the arbitration clause preserved by 10(a)(5) or not?
-: It is, in that while the parties await to see
what the DLR does with the representation
until they have an election.
-: Again, we've had an election.
Again, I have no ...
This is very simple in that period.
What happens is when we switch union representatives,
that's where this gets difficult.
Where we switch representatives
and we're negotiating a new contract, right?
That's the period we're in.
That's when all this occurs, right?
-: Right, but the contract that initially was signed
by the Teamsters never went out of effect.
It was still in effect.
-: Right, he says it's not, and you say it is.
Horgan: It is.
(Justices laugh)
Justice Lowy: Can you tell me?
Justice Gaziano: The schoolyard argument.
(Justices laugh)
-: Tell me which,
I'm gonna give you a multiple choice option here.
So when you say it is, and he says it isn't, is it ...
Hold on.
Is it Article 25 and the CBA?
Is it Watertown?
Is it 10(a)(5)?
Is it the city's solicitor's email?
Why do you say it is?
-: So it's Article 25 because the city and the Teamsters
negotiated that provision to allow
all provisions to extend.
And then they did in fact extend,
then we had a certified representative,
a new certified representative.
And at that point,
I would point you to the Cincinnati case
that says employees have a choice of free representation.
They can elect to utilize that rep
and choose a representation from here to here,
whether the employer assents to it or not.
-: And when you said, and they didn't extend,
but they made that decision.
Are you saying that's the city's solicitor's letter?
-: Yes, and I don't believe that's in dispute.
But the Cincinnati case says you cannot void a contract
merely because the employee chose to a new representative.
And so the contract would've been in effect
but for the change in representative,
in the Cincinnati case says that's not true.
It doesn't void the contract.
-: What is 10(a)(5)'s role in that.
10(a)(5)'s role is just protecting
the change in representatives,
or does 10(a)(5) also help keep those conditions in place?
Because otherwise by definition
you're penalizing the change of representation.
-: Right, essentially freezes the terms and conditions,
including the arbitration at that point
until the board can determine
who the exclusive representative is,
so that this case, the Teamsters disqualified interest.
But not in all cases that's true.
And sometimes you might have competing unions
fighting over a group.
-: Right, but the feds are all over the place on that, right?
Have you read the NLRB decisions?
So we have some NLRB cases,
we have at least two that are of some relevance here.
There's this Arizona Portland Cement and Children Hospital.
Have you read these two cases?
-: Mm-hmm. -: Okay.
So one of those cases says that the old union
would continue to represent,
would continue to do a grievance
even though you've changed representatives, right?
And then the other one, it's hard to ...
they don't sort of carry over the obligation, right?
It's just messy.
I don't know if it makes any sense.
-: But I believe with the NLRB cases,
the expiration was not in dispute.
The parties weren't disputing the fact
that the contract had expired.
Then the issue became what were our obligations,
what arose under the contract prior to expiration.
-: But they don't sort of freeze everything in place
automatically though.
The question I asked you earlier,
is the freezing necessary to prevent
punishing a change in union representation?
You said yes, which I thought was the right answer.
But that isn't necessarily the way the NLRB does this,
because otherwise that decision in Arizona Portland Cement
doesn't make sense, does it?
-: No, my understanding is they do freeze.
They have to freeze the terms only
but to protect the employees in that situation.
-: But there they say there's no grievance.
They say there's no arbitration required
in the Arizona Portland Cement.
They say even though ...
They say this is a post, right?
I can't remember the facts,
but it seems like they suggest that
if you change representatives, I guess it's easier,
'cause they say you change representatives,
but the old union is gonna do the grievance under the old,
but they leave the suggestion that the new union
would not be able to do something afterwards, don't they?
You don't read it that way.
-: They don't. -: Okay.
-: No, I read it as those contracts,
there was not a dispute that it had expired.
And then the only question became whether
the incident that they were looking to grieve
arose under the contract before it expired.
-: What is your understanding of what the NLRB'S rule is
for exactly this situation where a contract was in place,
it's in that evergreen or some kind of ...
it's in some kind of post ...
The contract was in place but it had expired.
And then there was some,
just what we have some kind of notice saying
you're gonna continue this and then an incident happens.
And after that change,
do you say the feds have decided this issue
that the new union gets to do that under the old contract?
-: If they determine that the incident
that gave rise to that grievance in particular-
-: Occurred after the change in representation,
but prior to the negotiation
of a new collective bargaining agreement.
-: I have not seen any NLRB cases
that have held that position.
-: We can't find any either.
So you haven't seen them do this yet?
-: No, only prior to expiration.
Justice Kafker: Okay (indistinct)
-: The only case that I can,
well, I can point to the general Teamsters case,
which is referred to in the Cincinnati case.
Those two cases are the ones that have allowed
in a successor union to grieve
and take to arbitration a grievance
concerning events that occurred after the certification.
And again, Cincinnati case is very clear that
the employee has that right to choose that representative.
And you're really punishing them
if you don't allow them to grieve in that situation.
'Cause they're not going to switch representation
if they know that their contract
could potentially be voided.
-: That's right.
That seems to be the guiding problem
for the city of Chelsea,
which is if you don't allow this,
the change in representation
has put people in a worse position.
Horgan: Right, and then we're dealing with
911 dispatchers emergency personnel.
-: Well, they're still allowed to grieve, right?
I mean the position is not that
there isn't a grievance procedure,
it's just not subject to arbitration.
-: Right, but the problem with that is they can grieve it
and the same individuals that are issuing the discipline
are going to be making the final decision
on that discipline.
And so then that becomes ...
Justice Kafker: You could sue them
in court though, right? -: Absolutely.
-: So that's your ...
Instead of having arbitration decide this,
you end up in court.
-: Right, so the difference is
do you get an arbitrator or do you get a judge?
Horgan: Yes.
-: And that you say is putting the employee
in a worse position.
-: Especially when the city clearly negotiated language
that allowed for the arbitration of grievances
post the expiration date of June 19th
and to continue indefinitely.
If their intent was to either not have a successor
take on the agreement,
they could have contracted for that.
And I think the US Supreme Court in an old case
speaks to that.
They look at the intent to the language
in terms of determining whether or not
the parties intended to grieve specific disputes.
And here I think we have a clear,
a broad arbitration clause that continued
in a continued past post expiration
and was in effect at the time
that the events here in February 1st of 2021 arose.