Weymouth crossing guards win again 04/24/2014

From Weymouth News
April 24, 2014

By Ed Baker

recent ruling by the Commonwealth Employment Relations Board could pave the way for 14 school traffic supervisors who were laid off in June 2010 under a budget cut to return to their jobs and receive back pay.

The board upheld a July 2013 state Department of Labor Relations ruling that alleges Weymouth violated a state law when it laid the traffic supervisors off without giving their union prior notification and an opportunity to discuss the job eliminations in collective bargaining.

Jim Durkin, a spokesman for the American Federation of State County and Municipal Employees Council 93, stated the union is pleased, but not surprised, by the decision.

“We have always been confident in our case and we remain confident that justice will prevail,” Durkin stated. “While we fully respect the town’s right for a judicial review in the Appeals Court, it’s our hope that the board’s decision will mark the end of this long ordeal and the town will move as soon as possible to reinstate these workers and provide them with the restitution they deserve.”

Councilor-at-large Michael Molisse said he is pleased with the decision. “”They were let go without warning,” he said. “They have worked hard. They are like parents to the kids they help cross the street. You need people outside the schools helping kids cross the street with the way people drive and text. They were not treated fairly and let go after so many years of service.”

The town claimed Council 93 waived its right to bargain over the layoffs, but the Commonwealth Employment Relations Board disagreed.
“Regarding the waiver issue, the (state) hearing officer found that the town first notified the union that it was eliminating the traffic supervisors’ jobs on May 19, 2010,” stated CERB chairwoman Marjorie F. Wittner and board members Elizabeth Neumeier and Harris Freeman. “Prior to that, the town provided no information to the union that it was considering that action.”

The CERB further alleges Weymouth Human Resources Director Cindy DePina sent the union a letter May 19, 2010, that stated the town was eliminating the traffic supervisor’s jobs June 22, 2010, and that a representative from the state Department of Unemployment Assistance and Division of Career Services would meet with them on June 2, according to Wittner.

“Next on June 8, Cara Winslow, the union staff representative for the traffic supervisors bargaining unit, sent a letter to the town’s mayor protesting the town’s failure to provide advance notice of the layoffs and an opportunity to bargain,” stated Wittner. “The letter further stated, ‘Please feel free to contact my office with any concern.’”

Wittner stated DePina left a voicemail message for Winslow June 11 concerning the June 8 letter.

“The record does not reflect what DePina said in her voicemail message,” Wittner stated. “On these facts, the (Department of Labor Relations) hearing officer concluded that the town presented the union with a fait accompli by issuing the employees’ layoff notices with a firm date when their employment would end and their jobs eliminated and by bringing in a speaker. She further found that the situation had progressed to the point where further bargaining would have been fruitless because the record does not reveal that, when DePina called Winslow back and left her a voicemail message, DePina indicated that the notices had been rescinded or that the town was willing to bargain.”

Town officials, according to the CERB, alleged the union’s failure to respond to DePina’s phone call denied the town an opportunity to meet with them and the actual layoff date of the traffic supervisors in her letter was in September and not June 22.

Wittner stated the June 22 date had an immediate impact on the traffic supervisors’ eligibility for unemployment insurance and job searches.

“In fact, the record indicates the town understood the June date to have signaled a change in employment status, as it arranged to have a representative from the Division of Career Services and Department of Unemployment Assistance speak to the affected employees in June,” Wittner stated. “We find the positions were eliminated and the change was implemented as of June 22, 2010.”

School officials hired safety guards at a lower wage rate to guide children at crosswalks near schools in September 2010, according to the CERB. The hiring of these workers, according to the CERB, was an improper transference of the traffic supervisors’ duties that requires a “make-whole remedy.”

“Accordingly, the employer’s (town) core challenge to the remedy that the layoff of the traffic supervisors was an inevitable outcome flowing from a level-services decision completely ignores the fact that after the layoff, the non-union safety guards were hired and the traffic supervisors’ work was transferred to them,” stated Wittner.

Weymouth officials, according to the CERB, argued they are not legally accountable for the school department’s decision to hire the safety guards because they did not know about it.

The CERB dismissed Weymouth’s claim by citing a case involving the Saugus School Committee, when the board ruled that town violated state law by transferring the duties of some police officers over to do non-union work as truant officers in 2001 following a complaint by a police union.

“The Town of Saugus defended against the charge contending that it did not participate in or endorse the school committee’s decision to hire the truant officers,” stated Wittner. “The Town of Saugus argued that it did not have a duty to bargain because the truant officers were school department employees over whom the town had not control.”

The CERB further stated the law has a presumption that municipalities would be knowledgeable and informed when it comes to employment decisions of its agent, at least insofar as these decisions affect collective bargaining obligations.

“Given this statutory mandate, it is fair to infer that there was no impediment to the Town of Weymouth becoming involved in and at minimum informed as to the bargaining obligations that should have been fulfilled prior to the school committee hiring the crossing guards,” Wittner stated.

The CERB also ordered the town to cease from failing and refusing to bargain in good faith with the traffic supervisors’ union and offer reinstatement to the employees with back pay.