“Evergreen” Clause Legislation Passed by House and Senate 11/2011

Since last years SJC case Boston Housing Authority v. National Conference of Firemen and Oilers, Local 3 458 Mass. 155 (2010) rejected the states use of the so called “Evergreen clause” there has been a ton of confusion as parties to the agreements try to work around the decision.

The Massachusetts House of Representatives passed House bill H3789 which would close the preexisting loophole the case exposed, and on Thursday the Senate passed their version. The final version will get passed to the Governors desk where he has 10 days to sign it.

The original case created controversy when it negated the “evergreen” clause which allowed for a contracts provisions to survive the life of the contracts. The issue however was that the clause conflicted with statute. The case in part stated ” We begin with the statute that is integral to the disposition of the present matter. General Laws c. 150E, § 7 (a), which governs collective bargaining between public employees and public employers, provides, in relevant part: “Any collective bargaining agreement reached between the employer and the exclusive representative shall not exceed a term of three years.” See Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197 , 203-204 (1982) (G. L. c. 150E, § 7, “authorizes collective bargaining agreements for up to three years’ duration”).

General Laws c. 150E, § 9, states that “nothing contained herein shall prohibit the parties from extending the terms and conditions of such a collective bargaining agreement by mutual agreement for a period of time in excess of the aforementioned time.” This provision is wholly consistent and in accordance with G. L. c. 150E, § 7 (a), in that the duration of a CBA shall not exceed three years, but once that fixed term has expired, the parties are free to enter into a subsequent agreement extending the prior terms and conditions of their agreement, thereby maintaining the status quo while negotiations for a new CBA are ongoing. See, e.g., Gustafson v. Wachusett Regional Sch. Dist., supra at 806-807 (bridge agreement between parties preserved terms of prior collective bargaining agreement until successor agreement ratified).

As we have stated, the MOA expired according to its fixed term on March 31, 2004. In light of our conclusion that the evergreen clause was invalid because it violated the clear mandate of G. L. c. 150E, § 7 (a), the provisions of the parties’ bargaining agreement did not remain in full force and effect until such time as a new agreement was signed. It follows that the grievance and arbitration provision lapsed when the MOA expired. The arbitrator, therefore, exceeded his authority in ordering the BHA to reinstate the firemen because he had no jurisdiction to arbitrate Local 3’s grievance in the first instance. Moreover, by mandating compliance with the minimum staffing provision set forth in “Attachment A,” the arbitrator required the BHA to extend the provisions of the MOA past three years in violation of § 7 (a).

4. Conclusion. The judgment is reversed, and this case is remanded to the Superior Court for entry of an order vacating the arbitration award. So ordered.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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