NEW BEDFORD, MA - More than 350 New Bedford city employees are in position to recoup more than $3 million in back wages due to a violation of state collective bargaining law by outgoing New Bedford Mayor Scott Lang.
On November 18, the Massachusetts Division of Labor Relations (DLR) determined that Lang violated state law when he unilaterally cut the hours and wages of workers represented by Council 93 of the American Federation of State, County, and Municipal Employees (AFSCME Council 93). The DLR is a state agency with primary jurisdiction over disputes between labor unions and municipalities.
“This is a tremendous victory for our members in New Bedford,” said AFSCME negotiator and attorney Jaime DiPaola-Kenny. “It’s encouraging to know there are safeguards in place to hold elected officials like Mayor Lang accountable for deliberate violations of the law and it's even more heartening to know that these safeguards work.”
AFSCME Local 851 President and New Bedford municipal employee Mark Messier noted that the victory extends beyond the borders of the city that he has worked for more than 17 years. “In many respects the DLR decision is a victory for any public employee who has been pushed around by politicians like Scott Lang. Our mayor thought he could operate outside the law. He was wrong.”
The issue began on Aug. 17, 2009 when Lang proposed a half day per week furlough and commensurate cut in wages. When the union declined the offer, the mayor informed the union that he would move forward and unilaterally cut the workers hours and wages despite the union’s clear objection.
The next day, AFSCME filed a petition for mediation with the DLR. The law mandates that once a petition for mediation is filed, the employer is prohibited from making changes in any mandatory subjects of collective bargaining while the mediation petition is pending. Mandatory subjects of bargaining include wages and hours.
The DLR decision noted Lang’s flagrant violation of the law stating, “despite the pendency of the Union’s petition, the city issued Executive Order No. 2009-5 on August 20, 2009, which reduced unit members’ hours of work effective Aug. 30, 2009. … the City’s conduct violated Section 10 (a) (6) of the law.” (see Decision page 45 line 34; page 46 line 14)
The DLR decision also makes it clear that wages and hours are a mandatory subject of bargaining, and that Lang violated the law when he failed to give the union an opportunity to bargain to resolution or impasse before he implemented the half day furlough. (see Decision page 45 lines 3-5)
The DLR decision orders Lang to bargain in good faith with the union, to engage in mediation in good faith with the union, to restore the members to the hours they had been working before the unilateral change in hours, and to “Make unit members whole for any economic losses that they have suffered as a result of the city’s unilateral reduction in their hours of work, plus interest on any sums owed at the rate specified in M.LG. L. c. 231, Section 61, compounded quarterly. (see “Notice to Employees” last page appended to decision)
The city has the right to appeal the DLR decision to the Commonwealth Employment Relations Board and is taking steps to do so. However, AFSCME Council 93 General Counsel Joseph DeLorey, who presented the case before the DLR vowed to fight any appeal and expressed confidence the DLR ruling will be upheld. “This decision is a well-founded application of the law to the facts,” said DeLorey. “I am confident it will withstand any appeal and the union will actively oppose any effort by the city to set this decision aside.”
In a companion case issued concurrently, the DLR found Mayor Lang did not violate a June 2008 agreement with the Union when he laid off certain union members in February 2009.The Union intends to appeal this decision to the Commonwealth Employment Relations Board.