Employer Must Provide Information Before, Not After, Loudermill Hearing

Employer Must Provide Information Before, Not After, Loudermill Hearing

Written on 09/20/2019
Will Aitchison

The town of Auburn, Massachusetts and the Massachusetts Coalition of Police are parties to a collective bargaining agreement. One of the members of the Coalition is dispatcher Maureen MacLean.

The Town begin investigating MacLean about a call she took on July 11, 2017. The investigation expanded into MacLean’s conduct on other calls and resulted in MacLean being placed on administrative leave. As the investigation proceeded, the Coalition requested a copy of all of the relevant audio recordings and investigatory documents with respect to the calls. While the Town partially complied with the request, it redacted certain documents and refused to provide others.

The Coalition filed an unfair labor practice complaint against the Town, claiming the failure to produce the complete investigatory file violated its obligation to share information about topics relevant to the bargaining process and grievances. The Town demurred, contending that as the requests were made in anticipation of a pending Loudermill due process hearing, it had no obligation to produce them.

An administrative law judge with the Massachusetts Labor Commission disagreed with the Town. The ALJ began with the proposition that “if a public employer possesses information that is relevant and reasonably necessary to an employee organization in the performance of its duties as the exclusive collective bargaining representative, the employer is generally obligated to provide the information upon request of the employee organization. The Commonwealth Employment Relations Board has long held that a union’s right to receive relevant and reasonably necessary information is derived from the statutory obligation of parties to engage in good faith collective bargaining.

“The Town contends that because Loudermill hearings derive from the United States Constitution, and not from the parties’ collective bargaining agreement, the Town was not obligated to provide the Coalition with the withheld information prior to MacLean’s Loudermill hearing because that hearing did not involve contract negotiations, grievance processing, or contract administration. Based on this contention, the Town asserts that the Coalition did not attend MacLean’s Loudermill hearing as the exclusive bargaining representative, but was there solely as a representative of an individual employee. The Town also asserts that the Coalition was not entitled to pre-hearing discovery of the requested information in advance of MacLean’s Loudermill hearing because that was an informal proceeding which has different procedural rules from full evidentiary hearings.

“I disagree with the Town’s contention that the Coalition was not entitled to receive the requested information prior to MacLean’s Loudermill hearing. First, the information sought by the Coalition was relevant to carry out its statutory duties in representing MacLean at the Loudermill hearing because it pertained to the terms and conditions of her employment with the Town. Although the Town maintains that the Coalition was not entitled to the requested information because the grievance arbitration procedures of the parties’ collective bargaining agreement did not apply to MacLean’s Loudermill proceeding, the relevancy standard does not require the existence of pending negotiations or pending grievances as a condition precedent to the Coalition’s right to the requested information.

“I find that the information requested by the Coalition was relevant for the Coalition in the execution of its duties as the exclusive bargaining representative of unit members because the requests for information related directly to the Town’s discipline and eventual termination of MacLean.

“Once a union shows that the requested information is relevant and reasonably necessary to its duties as bargaining agent, the employer has the burden of demonstrating that its concerns about disclosure of the information are legitimate and substantial. Nothing in the record shows that the Town possessed good faith concerns about confidentiality related to disclosure of the requested information. In fact, none of the Coalition’s multiple requests for information specifically sought confidential methods, tactics, or law enforcement practices used by the Town that could have impeded the Town’s ability to investigate MacLean. Without more evidence, the Town is unable show that its disclosure of the requested information would have prejudiced the confidential nature of its operations.

“Thus, I find that the Town’s decision not to disclose the requested information did not outweigh the Coalition’s need for that information to represent MacLean at her disciplinary hearings, including the Loudermill proceeding.”

Town of Auburn, 2019 WL 3574289 (MA LRC ALJ 2019).