Labor - Duty to bargain - Police - Fitness for duty.

Byline: Mass. Lawyers Weekly Staff

Where the city of Newton unilaterally imposed a fitness for duty policy as a condition of continued employment, the city violated G.L.c. 150E by not providing the union with notice and an opportunity to bargain about the decision and impacts of the decision.

"The issue in this matter is whether the City of Newton (City or Employer) violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the Law) by: repudiating Article 32.04 of the parties' collective bargaining agreement (CBA) (Count I); failing to timely provide information (Count II); failing to bargain upon demand about fitness for duty examination issues (Count III); and imposing a fitness for duty policy as a condition of continued employment without providing notice and an opportunity to bargain about the decision and impacts of the decision (Count IV). Based on the record, and for the reasons explained below, I dismiss Counts I and II, and I find that the City violated the Law as alleged in Counts III and IV.

"On October 3, 2016, the Newton Police Superior Officers Association, MASSCOP Local 401 (Union or Association) filed a charge of prohibited practice with the Department of Labor Relations (DLR) alleging that the City had violated Section 10(a)(5) and, derivatively, Section 10(a)(1) of the Law.

"Although the City maintains a Code of Conduct that purports to authorize fitness for duty examinations under limited circumstances, the record contains no evidence that the City ever exercised that authority over bargaining unit members with notice to the Union. Accordingly, [Chief of Police David] MacDonald ordering [Captain] Doe to undergo a fitness for duty examination as a condition of continued employment implemented a change to the bargaining unit members' terms and conditions of employment.

" [U]nder the CERB's existing precedent, the order that Doe undergo a fitness for duty examination as a condition of continued employment was a change that affected a mandatory subject of bargaining.

"The Union requested to...