Labor – Good faith bargaining – Town meeting advocacy

Where the Commonwealth Employment Relations Board found that the Andover Education Association engaged in a prohibited labor practice by advocating for a warrant article before Andover Town Meeting that would provide a one-time payment of $800 to instructional assistants, there was no error in the board’s conclusion that the union failed to bargain collectively in good faith with the school committee of Andover.

Affirmed.

“During negotiations of a collective bargaining agreement between the Andover Education Association (union) and the school committee of Andover (school committee), the parties discussed including a one-time payment of $800 to instructional assistants but came to an agreement that did not include such a payment. Within weeks of coming to this agreement, the union began advocating for a warrant article before Andover town meeting that would provide a one-time payment of $800 to the instructional assistants. After the article passed, the union sent a letter to the school committee requesting that it make the payments. The Commonwealth Employment Relations Board (board) found that this was a violation of the union’s duty to bargain collectively in good faith. The union challenges the finding that it engaged in a prohibited labor practice and further argues that its rights under the First Amendment to the United States Constitution were violated. Discerning no error in the board’s conclusion that the union failed to bargain in good faith and that the Commonwealth may constitutionally restrain government unions from bargaining in bad faith in this manner, we affirm. …

“The prohibited labor practices statute, G.L.c. 150E, §10, contains no categorical prohibition as such against direct bargaining or against a union’s advocating for its interests at town meeting. … When a union uses the town meeting process to avoid bargaining in good faith with the public employer, it violates this prohibition.

“The first way in which a union can use town meeting to avoid bargaining in good faith with its employer is through ‘fait accompli’ bargaining, a term coined in Anderson v. Selectmen of Wrentham, 406 Mass. 508, 512 (1990). …

“… The board found that the union attempted to engage in what can be described as fait accompli bargaining by securing the $800 stipends from town meeting and then proposing that the school committee enter into an agreement to that effect. The board also found what we call double-cross bargaining in the union’s ‘bypassing the School Committee in an effort to obtain what it could not obtain through negotiations.’ For a union to agree to a collective bargaining agreement that omits one of the union’s desired terms (presumably in exchange for employer concessions elsewhere), only to promptly attempt to force the employer to provide that omitted benefit is as antithetical to good faith bargaining as the fait accompli bargaining discussed in Anderson, 406 Mass. at 512. … We agree with the board that both fait accompli and double-cross bargaining can form the basis of a finding that a union violated G.L.c. 150E, §10(b)(2), by refusing to bargain in good faith. …

“… The undisputed facts are that the union sought an $800 payment for instructional assistants through collective bargaining and then agreed to a collective bargaining agreement that contained no such payments. Within weeks, the union advocated for a town meeting warrant article that would provide those very payments. The board could reasonably find that this was double-cross bargaining and thus a refusal to bargain in good faith with the school committee.

“The union then sent a letter to the school committee asking it to make those payments. The board could reasonably find that this was an attempt at fait accompli bargaining. Although the letter did not explicitly ask the school committee to bargain with it regarding those payments, that is the nature of fait accompli bargaining; no good faith bargaining is necessary because the result is foreordained. The union’s proposed alternative reading of its letter as merely ‘a limited waiver of bargaining rights by offering the Union’s affirmative advance agreement to permit the School Committee to implement the $800 payment’ is a strained reading of a letter asking to ‘formalize the compensation’ and ‘look[ing] forward to ensuring that the will of the community is executed.’ In any event, it is not for us to choose between reasonable interpretations of this letter, even if they were equally compelling. Rather, we ‘may not displace an administrative board’s choice between two fairly conflicting views.’ …

“It is beyond cavil that there is a right to free speech and petition regarding municipal legislative bodies such as town meeting. … That these rights were exercised by the union members through the use of a labor union does not eliminate the constitutional protections accorded them. … Accordingly, we must determine whether the restrictions on the exercise of those rights imposed by G.L.c. 150E, §10(b)(2), survive constitutional scrutiny. …

“… Whether labor peace generally is a compelling government interest, it is difficult to counter the proposition that labor peace between the government and its own employees is a compelling government interest. …

“Having concluded that achieving labor peace through exclusive collective bargaining is a compelling government interest, we next ask whether the relevant prohibition is narrowly tailored to further that interest. …

“As fait accompli and double-cross bargaining are ‘antithetical’ to ‘good faith bargaining,’ Anderson, 406 Mass. at 512, the prohibition on those practices is narrowly tailored to the compelling government interest in achieving labor peace between the government and its own employees through the use of exclusive collective bargaining. As those were the prohibitions applied by the board in this case, the board’s decision that its findings did not violate the First Amendment is sound. …

“The decision and order of the Commonwealth Employment Relations Board is affirmed.”

Andover Education Association v. Commonwealth Employment Relations Board, et al. (Lawyers Weekly No. 11-061-25) (20 pages) (Ditkoff, J.) Appealed from a decision of the Commonwealth Employment Relations Board. Ryan McGovern Quinn for the plaintiff; Kathleen Goodberlet for Commonwealth Employment Relations Board; John Foskett for school committee of Andover, intervener (Docket No. 24-P-465) (Sept. 9, 2025).

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