Bill H.2363

HOUSE DOCKET, NO. 3084 FILED ON: 1/18/2019

HOUSE . . . . . . . . . . . . . . . No. 2363

By Mr. Ryan of Boston, a petition (accompanied by bill, House, No. 2363) of Daniel J. Ryan and others relative to collective bargaining representation for public employees. Public Service.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to collective bargaining representation.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 1 – Section 1 of Chapter 150E of the general laws is hereby amended by inserting after the paragraph entitled “Legislative body” the following: “Non-member” An employee who has not maintained membership within the employee organization.

Section 2 – Section 2 of Chapter 150E of the general laws is hereby amended by deleting the last sentence and inserting the following: An employee shall have the right to refrain from any or all such activities and thereby be classified as a “non-member” of the employee organization recognized as the exclusive representative.

Section 3 -- Section 3 of Chapter 150E of the general laws is hereby amended by inserting, at the end of the first paragraph, the following: Notwithstanding the above, the commission shall consider union membership as a primary factor in determining whether a group shares a community of interest. Any union which desires not to represent one or more non-member(s) in a collective bargaining unit shall have the right to submit a unit clarification petition to the commission for a clarification of the appropriate bargaining unit to exclude non-members. The commission is hereby directed to amend the provisions of 465 CMR 14.03(2) to reflect this legislative policy directive.

Section 4 – Section 5 of Chapter 150E of the general laws is hereby amended by deleting the current language of Section 5 in its entirety and by inserting in its place the following as Section 5:

For a union that has chosen not to represent and exclude non-members from its collective bargaining unit it shall have no obligation, nor will it be a violation of Chapter 150E, to refuse to represent non-members or to refuse to process any statutory or administrative appeal(s), contractual grievances or to refuse to file for arbitration, or to refuse to represent any non-member at any level of the grievance and arbitration process under the parties’ collective bargaining agreement or any statutory or administrative proceeding under the general or special laws of the Commonwealth or its political subdivisions.

For a union that has not chosen to exclude non-members from its collective bargaining unit the exclusive representative shall have the right to act for and negotiate agreements covering all employees in the unit and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership unless the exclusive representative has petitioned the commission to exclude non-members from the bargaining unit. Provided, however, that notwithstanding this or any other general or special law to the contrary, the exclusive representative may require a non-member to pay for the reasonable costs of advancing a grievance on his or her behalf to arbitration, or the statutory or administrative hearing including arbitrator’s or hearing officer’s fees and the fees of the attorney representing the employee organization. Employee organizations may require non-members to pre-pay all such anticipated costs and fees prior to any grievance or arbitration, or the statutory or administrative hearing. Failure to pay such costs and fees shall relieve the exclusive representative of any further responsibility to the non-member regarding the grievance or arbitration matter or the statutory or administrative hearing.

Notwithstanding this or any other general or special law to the contrary, an exclusive representative’s duty of fair representation to a public employee who is in the bargaining unit shall be limited to the negotiation and enforcement of the terms of agreements with the public employer. Nothing in the laws of the Commonwealth shall be construed to require an employee organization to provide its members any legal, economic or job-related services or benefits outside of the collective bargaining agreement.

Notwithstanding any general or special law, or any collective bargaining agreement to the contrary, the employee organization, recognized as the exclusive representative for both members and non-members shall not be required to process any statutory or administrative appeal(s), contractual grievances or file for arbitration, or represent any non-member of the employee organization at any level of the grievance and arbitration process under the parties’ collective bargaining agreement or any statutory or administrative proceeding under the general or special laws of the Commonwealth or its political subdivisions. The non-member shall be fully responsible for the timely filing of all grievances, and arbitrations, statutory and administrative proceedings. The non-member shall be fully responsible for securing his or her private attorney for all grievances, arbitrations, statutory and administrative proceedings and for the payment of all filing fees, attorney fees, and arbitrator’s fees related to the above proceedings. The non-member shall be fully responsible for the timely filing of any court enforcement action and for any court costs and attorney fees related to enforcement or appeal of an arbitration, statutory or administrative decision.

It shall not be a prohibited labor practice under this Chapter 150E for an employee organization, recognized as the exclusive representative, not to advise, not to represent or not to financially assist a non-member during any level of the grievance, arbitration of the above proceedings and/or the court enforcement and/or appeal process.

Section 5 – Section 8 of Chapter 150E of the general laws is hereby amended by adding the following second paragraph: Notwithstanding the above, as outlined more fully in Sections 5 and 12 herein, the employee organization, recognized as the exclusive representative, shall not be required to process statutory or administrative appeals, grievances or file for arbitration or represent any non-member of the employee organization at any level of the statutory or administrative process or the grievance and arbitration process under the parties’ collective bargaining agreement. The non-member shall be fully responsible for the timely filing of all statutory appeals, grievances and arbitrations. The non-member shall be fully responsible for securing his or her private attorney and for the payment of all filing fees, all attorney fees, and all hearing officer and arbitrator’s fees related to all statutory appeals and the grievance and arbitration process. Alternatively, the Union may choose to represent the non-member and charge the non-member for these services.

Section 6 – Section 10(a)(3) of Chapter 150E of the general laws is hereby amended by adding after the word “organization” the following: “except that a collective bargaining agreement that includes only members of a collective bargaining representative may provide different terms and conditions of employment for members of the employee organization than those terms and conditions applied by the public employer to employees who have elected not to maintain membership in the employee organization.

Section 7 – Section 10(a)(6) of Chapter 150E of the general laws is hereby amended by adding after the word “nine” the following: “Provided that notwithstanding any other provision in this Chapter, in no event will a public employer or its designated representatives be under any obligation to grant, provide or extend any wage, term of employment or any other benefit which is contained in a collective bargaining agreement that covers only members of the collective bargaining representative to any employee who is a non-member of the collective bargaining representative.”

Section 8 – Section 10(b)(1) of Chapter 150E of the general laws is hereby amended by adding after the word “chapter” the following: “Provided that it shall not be a prohibited practice for an employee organization, recognized as the exclusive representative, not to process grievances, not to file for arbitration and/or not to represent any non-member of the employee organization at any level of the grievance and arbitration process under the parties’ collective bargaining agreement or any statutory or administrative proceeding under the general or special laws of the Commonwealth or its political subdivisions. Alternatively, it shall not be an unfair labor practice for a union to decide to represent the non-member and to charge the non-member for the above services. “

Section 9 – Section 10(b)(3) of Chapter 150E of the general laws is hereby amended by adding after the word “nine” the following: “except that a collective bargaining agreement may provide different terms and conditions of employment for members of the employee organization than those terms and conditions applied by the public employer to employees who have elected not to maintain membership within the employee organization. Provided further that notwithstanding any other provision in this Chapter, it shall not be a prohibited practice for an employee organization, recognized as the exclusive representative, or its designated representatives, not to process grievances, not to file for arbitration and/or not to represent any non-member of the employee organization at any level of the grievance and arbitration process under the parties’ collective bargaining agreement or any statutory or administrative proceeding under the general or special laws of the Commonwealth or its political subdivisions. Alternatively, it shall not be an unfair labor practice for a union to decide to represent the non-member and to charge the non-member for the above services. “

Section 10 – Section 12 of Chapter 150E of the general laws is hereby amended by deleting the current language of Section 12 in its entirety and by inserting in its place thereof the following:

All “Service Fee” provisions of all public-sector state, county and municipal collective bargaining agreements within the Commonwealth, that were based, in whole or in part, upon former requirements of Section 12 of Chapter 150E, are hereby void and the remaining provisions of the above public sector collective bargaining agreements shall hereby remain valid and fully enforceable. The parties to the above agreements are hereby strongly encouraged to reopen their agreements for the limited purpose of incorporating language consistent with the provisions outlined below.

The employee organization, recognized as the exclusive representative shall have the right to negotiate wages, benefits, hours of work and all other working conditions on behalf of all employees in the bargaining unit whether such an employee is a member or non-member of the employee organization. A union that has not chosen to exclude non-members from its collective bargaining unit shall not be required to process statutory or administrative appeals, grievances or file for arbitration or represent any non-member of the employee organization at any level of the statutory or administrative process or the grievance and arbitration process under the parties’ collective bargaining agreement. The non-member shall be fully responsible for the timely filing of all statutory and administrative appeals, grievances and arbitrations. The non-member shall be fully responsible for securing his or her private attorney and for the payment of all filing fees, all attorney fees, all hearing officer and arbitrator’s fees related to all statutory appeals and the grievance and arbitration process. The non-member shall be fully responsible for the timely filing of any court appeal or enforcement action based upon the above proceedings and for any court costs and attorney fees related the above proceedings. It shall not be a prohibited labor practice under this Chapter 150E for an employee organization not to advise, not to represent or not to financially assist a non-member during any level of the above statutory and administrative appeals, grievance, arbitration and/or court enforcement process. Alternatively, a Union may decide to represent the non-member and to charge the non-member for the above services.

The employee organization, recognized as the exclusive bargaining agent, shall be allowed to attend and participate at every level of the grievance and arbitration process and must agree in writing with the employer to any proposed settlement of any grievance or arbitration filed by any member or non-member of the employee organization.

Section 11 - Chapter 180 of the general laws is hereby amended by striking section 17A and inserting the following section:

Section 17A. Deductions on payroll schedules may be made from the wages of any employee of any amount which such employee may specify in writing to any public employer under Chapter 150E or by any employer made subject to the provisions of Chapter 150A by Chapter 760 of the Acts of 1982 by whom or which he is employed, for the payment of union dues or fees to any labor organization or employee organization. The authorization for payroll deduction may be irrevocable pursuant to the terms of such authorization for a period of no longer than one year from the anniversary of the authorization and shall be revocable solely pursuant to the terms of revocation specified in the employee authorization. Any authorization consistent with the terms of this section shall be accepted by the employer or public employer. The treasurer of the labor organization or employee organization or relief association shall notify the office of the employer or public employer responsible for implementing payroll deductions of any authorization revocation within fifteen days of receipt.

If the authorization for payroll deduction does not specify the terms for revocation, then any such authorization may be withdrawn by the employee by giving at least sixty days’ notice in writing of such withdrawal to the office of the employer or public employer responsible for implementing payroll deductions by whom or which he is then employed and by filing a copy thereof with the treasurer of the labor organization or employee organization.

The state treasurer or the treasurer of the employer or public employer by which such employee is employed, shall deduct from the wages of such employee such amount of union dues or fees, as may be certified to him on the payroll, and transmit the sum so deducted to the treasurer of said labor organization or employee organization; provided, that the state treasurer or the treasurer of the employer or public employer, as the case may be, is satisfied by such evidence as he may require that the treasurer of such employee organization or labor organization has given to said employee organization or labor organization a bond, in a form approved by the commissioner of revenue, for the faithful performance of his duties, in a sum and with such surety or sureties as are satisfactory to the state treasurer or treasurer of the employer or public employer; and provided, further, that whenever a labor organization or employee organization is certified or obtains consent recognition under the provisions of Chapter 150A or Chapter 150E, such deductions shall be made for dues or fees only to the certified or recognized labor organization or employee organization.

This section shall be effective in any county, city or town which has accepted it in the manner provided by section two of chapter seven hundred and forty of the acts of nineteen hundred and fifty, or which accepts it in the following manner:-- In a county by vote of the county commissioners; in a city having a Plan D or Plan E charter by majority vote of its city council; in any other city by vote of its city council, approved by the mayor; and in a town by vote of the board of selectmen.

Section 12 – Savings Clause – If one or more provisions of the above legislation is determined to be unconstitutional by a court of competent jurisdiction, and if this determination is upheld after the parties have exhausted all of their appeal rights, the provision or provisions determined to be unconstitutional shall then be rendered void and without effect, and the remaining provisions of the above legislation shall be fully enforceable.

And further,

Chapter 32B of the Massachusetts General Laws is hereby amended by adding the following section

Section 16 1/2 - Notwithstanding any other general or special law to the contrary, including but not limited to M.G.L. c. 32B, section 19, a public employer may negotiate and provide separate annuity, medical, dental, life and disability insurance plans for each of its collective bargaining units provided that the public employer contributes the same percentage of any premium charges on a uniform basis for all of its collective bargaining units.

Name:	District/Address:	Date Added:
Daniel J. Ryan	2nd Suffolk	1/14/2019
Harold P. Naughton, Jr.	12th Worcester	1/31/2019
John H. Rogers	12th Norfolk	1/31/2019
David Biele	4th Suffolk	2/1/2019