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City of Boston v. Labor Relations Commission11/1/1999
No. 97-P-1232.
Suffolk.
December 10, 1998.
Labor Relations Commission. Public Employment, Police, Collective bargaining. Labor, Police, Collective bargaining. Police, Collective bargaining, Compensation. Waiver. Contract, Collective bargaining contract.
Appeal from a decision of the Labor Relations Commission.
For at least thirteen years, the city of Boston (city) paid a differential of twenty-seven dollars per week to the five police captains who served as commanders of special units, even though there was nothing in the collective bargaining contract between the city and the union requiring such differential. In October, 1993, the city unilaterally stopped making the payments. The union challenged the city's action before the Labor Relations Commission (commission). The commission found that the city had committed an unfair labor practice and ordered, among other things, that the city bargain in good faith with the union over the decision. The city appeals, arguing that the union waived its right to bargain this issue.
Factual background.
There are fifteen captains in the Boston Police Department. They are represented by the Boston Police Superior Officers Federation (union). Ten serve as district commanders who work days. The five other captains who are not district commanders serve as commanders of the following specialized units: hackney, paid detail, police academy, central attendance, and technical services. The collective bargaining agreement (agreement) governing the actions at issue in this case consists of the 1979 collective bargaining agreement between the parties as amended by subsequent memoranda of agreement.
Article XVII of the collective bargaining contract is captioned "Compensation." It provides for differential payments by rank, including captains (section 1); officers serving as detectives (section 2); certain special assignments (section 3); and night shift assignments (section 7). Detectives assigned to a special assignment receive only the detective differential (section 5). On the other hand, section 6 provides that the differential for special assignments in section 3 "are in addition to any assignments otherwise specified in the 1965 Plan." (There is no other mention of the 1965 plan in the record before us.) Some, but not all, of the special units headed by the five captains who are not district commanders are among the special assignments listed in section 3.
Section 8 of article XVII provides that each of the " aptains working days who serve as District Commanders shall . . . receive an additional differential of twenty seven ($27.00) dollars per week." It is undisputed that there is no comparable provision for the five captains who serve as commanders of the special units. It is also undisputed that at least from 1980 to 1993, captains commanding the special units also received the twenty-seven dollars per week differential even though section 3 provides other differentials for members of some of the special units. The parties stipulated that the management of the police department knew or should have known that such payments were being made.
Article VII of the collective bargaining contract, entitled "Stability of Agreement," provides as follows:
"Section 1. No agreement, understanding, alteration or variation of the agreements, terms or provisions herein contained shall bind the parties hereto unless made and executed in writing by the parties hereto. "Section 2. The failure of the [city] or the [union] to insist, in any one or more incidents, upon performance of any of the terms or conditions of this Agreement shall not be conside
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