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TR-2014-5 UNION CONTRACTS �_ --- _ - - � . 1 ; ;�.�. _ :� TR-2014-5 A RESOLUTION TO APPROPRIATE FUNDS FOR THE AGAWAM POLICE SUPERVISORS ASSOCIATION, AGAWAM CLERICAL EMPLOYEE'S ASSOCIATION, AGAWAM DEPARTMENT OF PUBLIC WORKS EMPLOYEE'S ASSOCIATION, AGAWAM POLICE PATROLMAN'S ASSOCIATION, AGAWAM BUILDING MAINTENANCE ASSOCIATION, AGAWAM ADMINISTRATIVE UNION, AFL-CIO, LOCAL 1973, FIREFIGHTERS ASSOCIATION Sponsored By Mayor Richard A Cohen Whereas, the Town of Agawam has negotiated Collective Bargaining C-) Agreements with the following bargaining units ("Unions") within the Town of Again: AGAWAM POLICE SUPERVISOR'S ASSOCIATION, AGAWAM CLERICAL r' EMPLOYEE'S ASSOCIATION, AGAWAM DEPARTMENT OF PUBLIC WOR� �r, EMPLOYEE'S ASSOCIATION, AGAWAM POLICE PATROLMAN $ ASSOCIATION, AGAWAM BUILDING MAINTENANCE ASSOCIATIONS AGAWAM ADMINISTRATIVE UNION, AFL-CIO, LOCAL 1973, FIREFIGHTERS-0 tea, ASSOCIATION; and `' S Whereas, the Town and Unions have executed Settlement Agreements; and Whereas, the Settlement Agreements have been ratified and executed by the Unions; and Whereas, the Settlement Agreements provide for the following increases: a. Effective July 1, 2013 —2.0%, FY 2014 b. Effective July 1, 2014— 1.5%, FY 2015 C. Effective July 1, 2015 — 1.5%, FY 2016, and Whereas, pursuant to G. L. c. 150E, § 7, the Agawam City Council must appropriate the necessary funds; and Whereas, it is in the best interest of the Town of Agawam to appropriate the necessary funding. NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM CITY COUNCIL that the necessary funds for the first year of said Settlement Agreements, amounting to Three hundred thirty two thousand one hundred sixty four dollars ($332,164.00), is approved. Do 9 CC - 7rn GA L I'll Lt, c Y" Page I of 2 C -, Tr WSEk r�r CC - Q[►I atic'v-e— LlnIbr'iS C'G- a W i Dated this 3rA day of MJ*LO , 2014. PER ORDER OF THE AGAWAM TOWN COUNCIL Christopher C. J son, President APPROVED TO FORM AND LEGALITY Vincent ti*3*314a, City Solicitor Page 2 of 2 r MAYORAL ACTION Received this i4 day of a 0i , 2014 from Council Clerk. Signed by Council President this 3 r day of M(Lr-c'' ) , 2014. APPROVAL OF LEGISLATION By the powers vested in me pursuant to Article 3, Section 3-6 of the Agawao�Charter, as nde I hereby approve the passage of the above legislation on this day of (,l 4� �1 , 2014. Z�k Richard A. Cohen, Mayor DISAPPROVAL OF LEGISLATION By the powers vested in me pursuant to Article 3, Section 3-6 of the Agawam Charter, as amended, I hereby veto the passage of the above legislation on this day of , 2014 for the following reason(s): Richard A. Cohen, Mayor RETURN OF LEGISLATION TO COUNCIL CLERK Returned to Council Clerk this day of f'�l of �-+� , 2014. TR-2014-5 A RESOLUTION TO APPROPRIATE FUNDS FOR THE AGAWAM POLICE SUPERVISORS ASSOCIATION, AGAWAM CLERICAL EMPLOYEE'S ASSOCIATION, AGAWAM DEPARTMENT OF PUBLIC WORKS EMPLOYEE'S ASSOCIATION, AGAWAM POLICE PATROLMAN'S ASSOCIATION, AGAWAM BUILDING MAINTENANCE ASSOCIATION, AGAWAM ADMINISTRATIVE UNION, AFL-CIO, LOCAL t973, FIREFIGHTERS ASSOCIATION Sponsored By Mayor Richard A Cohen Whereas, the Town of Agawam has negotiated Collective Bargaining Agreements with the following bargaining units ("Unions") within the Town of Agawam: AGAWAM POLICE SUPERVISOR'S ASSOCIATION, AGAWAM CLERICAL EMPLOYEE'S ASSOCIATION, AGAWAM DEPARTMENT OF PUBLIC WORKS EMPLOYEE'S ASSOCIATION, AGAWAM POLICE PATROLMAN'S ASSOCIATION, AGAWAM BUILDING MAINTENANCE ASSOCIATION, AGAWAM ADMINISTRATIVE UNION, AFL-CIO, LOCAL 1973, FIREFIGHTERS ASSOCIATION; and Whereas, the Town and Unions have executed Settlement Agreements; and Whereas, the Settlement Agreements have been ratified and executed by the Unions; and Whereas, the Settlement Agreements provide for the following increases: a. Effective July 1, 2013 --2.0%, FY 2014 b. Effective July 1, 2014 — 1.5%, FY 2015 c. Effective July 1, 2015 — 1.5%, FY 2016, and Whereas, pursuant to G. L. c. 150E, § 7, the Agawam City Council must appropriate the necessary funds; and Whereas, it is in the best interest of the Town of Agawam to appropriate the necessary funding. NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM 'CITY COUNCIL that the necessary funds for the first year of said Settlement Agreements, amounting to Three hundred thirty two thousand one hundred sixty four dollars ($332,164.00), is approved. Page 1 of 2 Dated this day of , 2014. PER ORDER OF THE AGAWAM TOWN COUNCIL Christopher C. Johnson, President APPROVED TO FORM AND LEGALITY Vincent io a, City Solicitor Page 2 of 2 Agawam Massachusetts Office of the Mayor 36 Main Street, Agawam, MA 01001 mayor@agawam.ma.us . Richard A Cohen T: 413.786.4520 Mayor F: 413.786.9927 30 January 2014 Christopher Johnson Council President Agawam City Council 36 Main Street Agawam, MA 01001 Re: Collective Bargaining Agreements Dear Council President Johnson: Following the City Council's vote against the appropriation for the collective bargaining agreements I contacted the bargaining units and asked them to return to the negotiating table. I have enclosed both my letter to them and their response. They have unanimously refused my offer to renegotiate. I hereby resubmit the collective bargaining agreements to the City Council for approval of the appropriation. Please contact my office should you have any further questions related to this matter. Sincerely, /�Zoz�4 Z4 Richard A Cohen Mayor Enclosure cc: Full Council File Agawam Massachusetts Office of the Mayor 36 Main Street, Agawam, MA 01001 mayor@agawam.ma.us Richard A Cohen Tel: 413-786-4520 Mayor Fax:413-786-9927 January 23, 2014 Dear Union Presidents: I was extremely disappointed that the Agawam City Council defeated the resolution appropriating the funding necessary for the collective bargaining agreements for the next three years. I sincerely appreciate all of the time and effort both employees and management put in negotiating these agreements in good faith. While we are all disheartened by the lack of support of the City Council, I would like to thank those Councilors (Cichetti, Mineo, Bitzas, Cavallo and Suffriti)who did vote in favor of the resolution. I am asking each Union to notify our Labor Counsel, Russell Dupere, regarding how you wish to proceed regarding your agreements. Should you have any questions, please contact Attorney Dupere directly. Very truly yours, 4 Z�"/ zz Mayor Richard A Cohen Connor, Morneau & Olin, LLP JOHN D.CONNOR* 73 State Street JEFFREY S. MORNEAU* Suite 310 NATHAN A.OLIN* Springfield,MA 01103 MATTHEW L.DONOHUE,Of Counsel Phone:(413)455-1730 MARY C.CLARK,Associate Fax:(413)455-1594 *also admitted in Connecticut cmolawyers.com January 24, 2014 Russell Dupere,Esq. 94 North Elm Street, Suite 307 Westfield, MA 0I085 RE: Town of Agawain-Ratification of Collective Bargaining Agreements Dear Attorney Dupere, Kindly accept this correspondence as the formal response of the Agawam Police Patrolmen's Association, the Agawain Police Supervisors Association,the Agawam Clerical Employees Association and the Agawam Maintenance Employees Association concerning the failure of the Agawam City Council to ratify the patties'collective bargaining agreements. We too were greatly disheartened that the City Council failed to vote in favor of the collective bargaining agreements.As you know,those agreements were negotiated over several months and are the product of significant efforts on that part of our negotiating teams. We feel the City Council has failed in its obligation to consider these contracts in good faith.In fact,die City Council made no assertion that it lacked sufficient funding to support the modest wage increases contained in these agreements.The only telling comment during the discussion preceding the vote was by Chairman Christopher Johnson who appeared upset that the City Council had told the Mayor prior to commencing negotiations not to exceed 1.5%in the first year.As you know the contracts provide for an initial wage increase of 2%followed by two(2)successive years at 1.5%.These comments by Mr. Johnson firmly establish that the City Council seeks to negotiate directly with the Town's Unions in violation of Massachusetts General Laws Chapter IS OE and further that it would not consider good faith wage proposals proffered by the Unions. Such conduct is in clear violation of M.G.L.c. 150E §§ I0(axl)and derivatively,10(ax5). Therefore, the above named Associations will not reopen negotiations for a successor agreement and further demand that these contracts be resubmitted to the City Council for another vote. Such action is necessary not only to cure the Town's bad faith conduct but also because the Council did not reach a majority either in favor or against ratification. Should the contracts not be resubmitted for a second vote, my clients will be filing charges of prohibited practice with the Massachusetts Department of Labor Relations seeking as much. I look forward to your prompt response to this demand. Sin , 111 OI 101, Jlin, JV. LV I'f 7: 7VhlVl aht,UN d YYI LJUIV NV. yy} P, L J Baconilson SPRINGFIF1D ATTORNEYS AT LAW WESTFIELD NORTIiAM PION AMHERST January 30, 2014 Fax 786-9927 and First Class Mail Russell Dupere, Esq. 94 North Elm Street, Suite 307 Westfield, MA 01085 RE. Town of Agawam -Ratification of Collective Bargaining Agreements Dear Attorney Dupere: Please allow this letter to serve as notice that the undersigned represents the Agawam Administrative Union. Kindly accept this correspondence as the formal response of the Agawam Administrative Union concerning the failure of the Agawam City Council to ratify the parties' collective bargaining agreement. Without belaboring the issues, my client feels that City Council has failed in its obligation to consider the contract in good faith. As you are fully aware, the agreements were negotiated over several months and are the product of significant efforts on the part of the negotiating team. It is also my understanding that comments made by Chairman Christopher Johnson established that the City Council sought to negotiate directly with the Town's Unions. Such conduct violates M.G.L. Chapter 150 E. It is also my understanding that the City Council would not consider good faith wage proposals proffered by the Unions. Again, such conduct is a violation of M.G.L. Chapter 150E, Sections 10 (a) (1) and also 10 (a) (5). Therefore, my client will not reopen negotiations for a successor agreement and further demand that the contracts be resubmitted to the City Council for another vote. It is my understanding that such action is necessary to cure the Town's bad faith and also because the Council did not reach a majority either in favor or against ratification. I have been instructed that should the contracts not be resubmitted for a second vote, the Agawam Administrative Union will be left with no choice but to proceed as the law allows. Thank you for your time and attention to this matter. Very trul rs, K vin V Itb KVM/lsf 9999M239 1064468 cc: Mayor Richard Cohen (Fax 786-9927) Kevin V.Maltby Bacon Wilson,P.C. 33 Sire Shet Tel 413,781,0560 kmaltby@baconw4on,com Awneys as Law SpNngllela,MA 01103 faX 413.739.7740 1 Agawam Fire Fighters Local 1973 P.O.Box 147-Agawam, Massachusetts 01001 Attorney Dupere, Please accept this letter as the formal response from Local 1973 International Association of Firefighters. After attending the City Council meeting we too are disheartened that the City Council failed to vote in favor of the collective bargaining agreements.We feel that we bargained in good faith, and that town has failed to bargain in good faith by the council's failure to fund our contract. It is my understanding that the council did fund the school department contracts, all with similar wage increases.As such,we will not reopen negotiations and respectfully request that the contract is resubmitted to the City Council for another vote.Failure to resubmit and a vote in favor of funding will result in tiling an unfair labor practice with theLabor Relations Board. Thank you, Mark Theroux President Local 1973 Jan. 2T 2014 3:20M -HP Fax page Z i Attorney Scott E. S>koWck , :.: 850 Springfield St., Suite 4 ,' . ... Feeding Hills, MA. 01030 Telephone(413) 786-6727 Fecsimile(413) 786-7564 .-Marianne R. Stokowski, Paralegal ErnaiI: scatteskolnic msn:corn. January 27, 2014 VIA FACSMLE 1-413-562-3301 &FIRST CLASS IvWL Russell Dupers, Esquire 94 North Elms Street, Suite 307 Wedfield,MA O1085 RE: TOWN OF AGAWA M DEPARTMENT OF PUBLIC WORKS EMPLOI'EES ASSOCIATIOI Dear Attorney Dupe= Picase be adviscd the. axis ictter is s form l respnn:C by t13c Town of Agawarn Department o, Public Narks Fimployees Association conceixxing the fai.ture of the Agawam City CoLLm it to ratify the parries' colIective bargaining agreements. I bane had an opportunity to review Attorneys John Connor's letter with President, Pctea Sadowski. We are in complete agreenent vlith Attorney Corner's rresponzc and join ham in his demand. We would appreciate your contactir�this office to discuss these issues. Ttmk-you for your coopers ' in this matter and look forward to hearing from you. Veiytru}may pus, -' Scott olrrick,Esquire S Mrs cc: Attorney John D. Comior Via Facsimile: 1-413-455-1594 James T.Donahue Attorney At Law 1252 Elm Street—Suite 6 P.O. Box 465 West Springfield,Massachusetts 01090-0465 Telephone 'felefax (413) 733-2100 (413) 746-6279 February 17, 2014 ca ti o Agawam Town Council -Y, Agawam Town Hall 36 Main Street 77 Agawam, MA 01001 D Attn: Christopher C. Johnson, Council President co "` cn F RE: Legal Opinion—Unfair Labor Practice Allegations - Failure to Fund Appropriation Request Dear President Johnson: In reference to the above matter, you have requested I review give my opinion as to the correctness of the allegations made by various attorneys representing various Agawam employee organizations(hereinafter"unions")that the discussion and vote not to fund the cost items in the negotiated collective bargaining agreements submitted to the Council by the Mayor was an unfair bargaining practice in violation of Massachusetts G. L. c. 150E, section 10(a) (1)and(a) (5). Before addressing the specific issue of the failure to appropriate the requested funds,I believe it is important to set forth the duties and responsibilities of the Mayor and the Town Council under both c. l 50E and the Agawam Homc Rule Charter(hereinafter"HRC"). The HRC gives all powers of the Town, including the legislative powers,to the Council, except those by law or the HRC given to another entity or officer. (IIRC section 24). The Council determines how its legislative powers are to be exercised and may, only,by a vote of a majority the full council (6 members) adopt any appropriation order. (HRC section 2-7) The executive powers of the Town are, by HRC, vested solely in the Mayor. (HRC section 3-2). The Mayor is therefore the chief executive officer of the Town. The power to appropriate funds for the purpose of the operation of the Town and its departments, including salary increases for both union and non-union municipal employees, requires independent actions by both the executive,the Mayor,and the legislative,the Town Council. The Mayor, as the chief executive office, must submit the appropriation request for funds to the Town Council. The Town Council,the as the Town's sole appropriating body, must then either: a. approve the requested appropriation; b. decrease the requested appropriation;or c. reject the requested appropriation. (HRC section 5-2(b) Collective bargaining by municipal employers and municipal employees of said employers is subject to the provisions of Massachusetts General Laws chapter I50E(hereinafter %. 150E"). Said statute defines various terms in section 1 as they arc to be applied to its provisions. Those definitions relevant to this opinion are as follows: 1. "Employer or public employer" ... "in a city or town acting though its chief executive officer"... ; 2. "Incremental cost items" ... "in respect of the first fiscal year or portion thereof during which an agreement has effect, "incremental cost items"shall mean the provisions of collective bargaining agreement that require an appropriation by the legislative body of monies that are newly requested by the employer [(Mayor] to discharge the obligations arising under the terms of such agreement." (hereinafter"cost items") 3."Legislative body" ... "city [town] council which has the power of appropriation with respect to an employer as defined in this chapter". 4. "Employee organization""any lawful association,organization,federation, council, or labor union,the members of which include public employees, and assists its members to improve their wages,hours and conditions of employment." Under the provisions of both the HRC and c. 150E the Mayor is the town's chief executive officer and as such is the exclusive bargaining agent for the Town in negotiating collective bargaining agreement with its unions. The Town Council is the legislative body and is solely responsible for acting on the appropriation of any funds requested by the Mayor. The Mayor's function during the bargaining process with the employee organizations is to negotiate to reach an agreement, including new cost items, satisfactory to both sides. Once an agreement is reached it must be put in writing and the cost items submitted to the legislative body for its consideration of the requested appropriations to fund said cost items. The Town Council's function is to act upon requests for appropriations requested in relation to negotiated agreements with the unions. Section 7(b)of chapter 150E provides in relevant part that: "The employer... shall submit to the appropriate legislative body within thirty days after the dated on which the agreement is executed by the parties, a request for an appropriation necessary to fund the cost items contained therein;...If the appropriate legislative body duly rejects the request for an appropriation necessary to fund the cost items, such cost items shall be returned to the parties for further bargaining." The legislative body,the Town Council, must consider the request for an appropriation to fund new cost items. It may approve it or reject it. If the Council rejects the requested appropriation, such rejected cost items must be returned to the Mayor and the unions for further bargaining. (c. 150E, section 7(b)above) The rejection of appropriations necessary to fund the new cost items of a proposed collective bargaining settlement by the Town Council, whether by majority negative vote of the full council or by the failure to obtain a majority vote in favor of the requested appropriation is authorized by c. 150E and is not an unfair bargaining practice. Section 7(b) makes that fact abundantly clear. In addition since the bargaining process was completed before the request for the appropriation was submitted to the Council for consideration any statements made during the council discussion of the requested appropriation could not have had any effect negative or positive on the negotiations, as alleged by the unions, since the negotiations were at that time completed. There is no obligation to fund salary increases requested as part of a negotiated collective bargaining agreement. Once the Council rejects the requested appropriation, the cost items must be returned to the Mayor and the union for renewed bargaining. City of Somerville v. Somerville Municipal Employees Association (1994)418 Mass. 21, and c. 150E, section 7(b). The Council has no legal obligation to appropriate monies requested to fund new cost items in a negotiated collective bargaining agreement. Local 1652,International_Association_of Firefighters v. Town of Framingham(2004)442 Mass 463; Boston Teachers Union Local 66 AFT,AFL-CIO v. City of Boston (1998)44 Mass. App. Ct. 746, 756 reviewed denied 427 Mass. 1109. Also,it has been determined that once cost items are submitted for appropriation a council has no obligation to fund them nor does the Labor Relations Commission(now Department of Labor Relations) have the power to order a council to fund the request. Town of Sauggs v. Newbury (1983) 15 Mass.App. Ct. 611, 614-615. Therefore, it is my opinion that the failure or refusal of the Town Council to appropriate monies requested to fund the salary increases and any other cost items contained in the collective bargaining agreements requested by the Mayor was not an unfair labor practice under c. 150E as alleged, but is in fact lawfully permitted action by the Town Council under the provisions of c.' 150E and existing Massachusetts judicial decisions. spectfully submitt , James T. Donahue i Agawam Massachusetts Office of the Mayor 36 Main Street, Agawam, MA 01001 mayor@agawam.ma.us Richard A Cohen T: 413.786.4520 Mayor F: 413.786.9927 30 January 2014 Christopher Johnson Council President Agawam City Council 36 Main Street Agawam, MA 01001 Re: Collective Bargaining Agreements Dear Council President Johnson: Following the City Council's vote against the appropriation for the collective bargaining agreements I contacted the bargaining units and asked them to return to the negotiating table. I have enclosed both my letter to them and their response. They have unanimously refused my offer to renegotiate. I hereby resubmit the collective bargaining agreements to the City Council for approval of the appropriation. Please contact my office should you have any further questions related to this matter. Sincerely, G� Richard A Cohen Mayor Enclosure cc: Full Council File Agawam Massachusetts ,.op. . ; iik4 Office of the Mayor qw. 36 Main Street,Agawam, MA 01001 mayor@agawam.ma.us Richard A Cohen Tel: 413-786-4520 Mayor Fax:413-786-9927 January 23, 2014 Dear Union Presidents: I was extremely disappointed that the Agawam City Council defeated the resolution appropriating the funding necessary for the collective bargaining agreements for the next three years. 1 sincerely appreciate all of the time and effort both employees and management put in negotiating these agreements in good faith. While we are all disheartened by the lack of support of the City Council, I would like to thank those Councilors (Cichetti, Mineo, Bitzas, Cavallo and Suffriti)who did vote in favor of the resolution. I am asking each Union to notify our Labor Counsel, Russell Dupere, regarding how you wish to proceed regarding your agreements. Should you have any questions, please contact Attorney Dupere direcHy. Very truly yours, if /- zz Mayor Richard A Cohen Connor, Morneau & Olin, LLP JOHN D.CONNOR* 73 State Street JEFFREY S. MORNEAU* Suite 310 NATHAN A.OLIN* Springfield,MA 01103 MAT-THEW L.DONOHUE,Of Counsel Phone:(413)455-1730 MARY C.CLARK,Associate Fax:(413)455-1594 *also admitted in Connecticut cmoiawyers.conl January 24, 2014 Russell Dupere, Esq. 94 North Elm Street,Suite 307 Westfield, MA 0I085 RE: Town of Agawam-Ratification of Collective Bargaining Agreements Dear Attorney Dupere, Kindly accept this correspondence as the formal response of the Agawam Police Patrolmen's Association, the Agawam Police Supervisors Association,the Agawam Clerical Employees Association and the Agawam Maintenance Employees Association concerning the failure of the Agawam City Council to ratify the pasties' collective bargaining agreements. We too were greatly disheartened that the City Council failed to vote in favor of the collective bargaining agreements. As you know,those agreements were negotiated over several months and are the product of significant efforts on that part of our negotiating teams. We feel the City Council has failed in its obligation to consider these contracts in good faith.in fact,the City Council made no assertion that it lacked sufficient funding to support the modest wage increases contained in these agreements.The only telling comment during the discussion preceding the vote was by Chairman Christopher Johnson who appeared upset that the City Council had told the Mayor prior to commencing negotiations not to exceed 1.5%in the first year.As you know the contracts provide for an initial wage increase of 2% followed by two(2) successive years at 1.5%.These comments by Mr.Johnson firmly establish that the City Council seeks to negotiate directly with the Town's Unions in violation of Massachusetts General Laws Chapter I SOB and further that it would not consider good faith wage proposals proffered by the Unions.Such conduct is in clear violation of M.G.L.c. 150E §§ 10(a)(I)and derivatively,l0(ax5). Therefore,the above named Associations will not reopen negotiations for a successor agreement and Further demand that these contracts be resubmitted to the City Council for another vote. Such action is necessary not only to cure the Town's bad faith conduct but also because the Council did not reach a majority either in favor or against ratification. Should the contracts not be resubmitted for a second vote, my clients will be fling charges of prohibited practice with the Massachusetts Department of Labor Relations seeking as much. I look forward to your prompt response to this demand. Sin , 111 01 1or • �nir. )V. CV I't 7 VHIYi ORLVIY a V l LJVIV Nu. yy J r. z Bacon ikon SPRINGFIEID ATTORNEYS AT LAW WESTFIELD NORTHAMPTON AMHERST January 30, 2014 Fax 786-9927 and First Class Mail Russell Dupere, Esq. 94 North Elm Street, Suite 307 Westfield, MA 01085 RE: Town of Agawam - Ratification of Collective Bargaining Agreements Dear Attorney Dupere: Please allow this letter to serve as notice that the undersigned represents the Agawam Administrative Union. Kindly accept this correspondence as the formal response of the Agawam Administrative Union concerning the failure of the Agawam City Council to ratify the parties' collective bargaining agreement. Without belaboring the issues, my client feels that City Council has failed in its obligation to consider the contract in good faith. As you are fully aware, the agreements were negotiated over several months and are the product of significant efforts on the part of the negotiating team. It is also my understanding that comments made by Chairman Christopher Johnson established that the City Council sought to negotiate directly with the Town's Unions. Such conduct violates M.G.L. Chapter 150 E. It is also my understanding that the City Council would not consider good faith wage proposals proffered by the Unions. Again, such conduct is a violation of M.G.L. Chapter 150E, Sections 10 (a) (1) and also 10 (a) (5). Therefore, my client will not reopen negotiations for a successor agreement and further demand that the contracts be resubmitted to the City Council for another vote. It is my understanding that such action is necessary to cure the Town's bad faith and also because the Council did not reach a majority either in favor or against ratification. I have been instructed that should the contracts not be resubmitted for a second vote, the Agawam Administrative Union will be left with no choice but to proceed as the law allows. Thank you for your time and attention to this matter. Very trul rs, K vin V Itb KVMAsf 99999-0239 1064468 cc: Mayor Richard Cohen (Fax 786-9927) Kevin V.MaRby Bacon Wilson,P.C. 33 Stale StW U 413.781.0560 kmaRbyMacomfton.com Awneys a1 taw 5p6npliela,MA 01103 Fax 413.739.7740 f *�d Agawam Fire Fighters Local 1973 P.O.Box 147-Agawam,Massachusetts 01001 Attorney Dupere, Please accept this letter as the formal response from Local 1973 International Association of Firefighters.After attending the City Council meeting we too are disheartened that the City Council failed to vote in favor of the collective bargaining agreements.We feel that we bargained in good faith, and that town has failed to bargain in good faith by the council's failure to fund our contract. It is my understanding that the council did fund the school department contracts,all with similar wage increases.As such,we will not reopen negotiations and respectfully request that the contract is resubmitted to the City Council for another vote.Failure to resubmit and a vote in favor of funding will result in filing an unfair labor practice with theLabor Relations Board. Thank you, Mark Theroux President Local 1973 r ' An,`.2Z_ 2014 3:24PM HP Fax page : . Attorney Scut E. Skolnick 850 Springfield St., Suite 4 Feeding Hills, MA 01030 Telephone (413) 786-6727 Facsimile (413) 786-7564 Marianne R. Stokowslti,Paralegal Emai]: scotteskohiick sn.com. January 27, 2014 VIA FACSIMILE i-413-562-3301 &FIRST CLASS NWL Russell Dupere,Esquire 94 North Elm Street, Suite 307 Westfield,MA 01085 RE: TOWN OF.AAGAWAM DEPARTMENT OF PUBLIC WORKS EMPLOYEES ASSOCIATION Dear Attornev Dume: i Picric be advisGi that this 1eZ= is a formal respomc, by the Towai-of Agawam Dep.:.rtrnent of Fu ii: Work;; Employees Association concmning the failure of the Agawam City Cov�a, I to ratify the paxtiW collective bargaining agreements. I have had an opportunity to review Attorneys John Connor's letter with Pi 1 ent, Pctcr Sadowski. We are in complete agmement vrit-h AttatTicy Ccn_nor's responsr, and join hats in his demand. We would apprecime your contacting thi office tb discuss these iwues. Thank you four your coopers ` in thi s matter and look forward to hearing from you. Ver3'trU , r' Scott olt+ick, Esquire S� rnrs cc: Attorney John D. Connor Via Facsimile: 1-41 345 5-1 594 J Dupere Law Offices 94 North Elm Street, Suite 307 Westfield, Massachusetts 01085 Tel.. (413) 562-3300 Fax, (413) 562-3301 Fernand J. Dupere, Esq. Russell J. Dupere, Esq. Adam J. Dupere, Esq. February 25, 2014 Mayor Richard A. Cohen Town of Agawam 36 Main St. Agawam, MA 01001 Hand Delivered RE: Upfair Labor Practice Allegations—Failure to Fund Appropriation Request Dear Mayor Cohen, I have reviewed the legal opinion provided by James T. Donahue, Esq. regarding the above-referenced matter. I concur generally with the legal concepts described in said opinion. However, based upon my review of the various union demand letters regarding this issue, I do not believe that the specific issues raised by the unions have been addressed by said opinion. The specific allegations made by the unions are that the Council sought"to negotiate directly with the Town's Unions" . . . and"that it would not consider good faith wage proposals proferred by the Unions." See Letter received by John Connor, Esq. dated January 24, 2014; see also Letters received by Kevin V. Maltby, Esq. dated January 30,2014, Scott E. Skolnick, Esq. dated January 27, 2014. It is my understanding that these allegations were made based upon certain comments made by members of the Council during their meeting. In particular, it appears that the unions are arguing that the Council's decision regarding whether they would; appropriate monies necessary to fund the contracts was made prior to and/or while contract Cz negotiations were occurring. h � nr D It my legal opinion that in order to defend the Town, it would be necessary to review the minutes of the Council meeting as well as prior meetings wherein the budget was discussed. I am unaware whether this information was provided to Attorney Donahue. If an action is lodged with the Department of Labor Relations (DLR), as has been threatened by the unions, said information will certainly be necessary. It is my opinion that the DLR will seek to determine whether the Council made a decision and/or sought to limit the mayor's ability to negotiate prior to or during the negotiation process. Sinc 'rely, ' usmsell J. upere, q. cc: Vincent Gioscia, Solicitor 2 James T. Donahue Attorney At Law 1252 Elm Street—Suite 6 P.O. Box 465 West Springfield, Massachusetts 01090-0465 Telephone Telefax (413) 733-2100 (413) 746-6279 February 17, 2014 Agawam Town Council Agawam Town Hall 36 Main Street Agawam, MA 01001 Attn: Christopher C. Johnson, Council President RE: Legal Opinion—Unfair Labor Practice Allegations - Failure to Fund Appropriation Request Dear President Johnson: In reference to the above matter, you have requested I review give my opinion as to the correctness of the allegations made by various attorneys representing various Agawam employee organizations (hereinafter"unions") that the discussion and vote not to fund the cost items in the negotiated collective bargaining agreements submitted to the Council by the Mayor was an unfair bargaining practice in violation of Massachusetts G. L. c. 150E, section 10 (a) (1) and (a) (5). Before addressing the specific issue of the failure to appropriate the requested funds, I believe it is important to set forth the duties and responsibilities of the Mayor and the Town Council under both c. 150E and the Agawam Home Rule Charter (hereinafter"HRC"). The HRC gives all powers of the Town, including the legislative powers, to the Council, except those by law or the HRC given to another entity or officer. (HRC section 2-4). The Council determines how its legislative powers are to be exercised and may, only, by a vote of a majority the full council (6 members) adopt any appropriation order. (HRC section 2-7) The executive powers of the Town are, by HRC, vested solely in the Mayor. (HRC section 3-2). The Mayor is therefore the chief executive officer of the Town. The power to appropriate funds for the purpose of the operation of the Town and its departments, including salary increases for both union and non-union municipal employees, requires independent actions by both the executive, the Mayor, and the legislative, the Town Council. The Mayor, as the chief executive office, must submit the appropriation request for funds to the Town Council. The Town Council, the as the Town's sole appropriating body, must then either: a. approve the requested appropriation; b. decrease the requested appropriation; or c. reject the requested appropriation. (HRC section 5-2(b) Collective bargaining by municipal employers and municipal employees of said employers is subject to the provisions of Massachusetts General Laws chapter 150E (hereinafter "c. 150E" ). Said statute defines various terms in section 1 as they are to be applied to its provisions. Those definitions relevant to this opinion are as follows: 1. "Employer or public employer" ... "in a city or town acting though its chief executive officer"... ; 2. "Incremental cost items" ... "in respect of the first fiscal year or portion thereof during which an agreement has effect, "incremental cost items" shall mean the provisions of a collective bargaining agreement that require an appropriation by the legislative body of monies that are newly requested by the employer [(Mayor] to discharge the obligations arising under the terms of such agreement." (hereinafter"cost items") 3. " Legislative body" ... "city [town] council which has the power of appropriation with respect to an employer as defined in this chapter". 4. "Employee organization" "any lawful association, organization, federation, council, or labor union, the members of which include public employees, and assists its members to improve their wages, hours and conditions of employment." Under the provisions of both the HRC and c. 150E the Mayor is the town's chief executive officer and as such is the exclusive bargaining agent for the Town in negotiating collective bargaining agreement with its unions. The Town Council is the legislative body and is solely responsible for acting on the appropriation of any funds requested by the Mayor. The Mayor's function during the bargaining process with the employee organizations is to negotiate to reach an agreement, including new cost items, satisfactory to both sides. Once an agreement is reached it must be put in writing and the cost items submitted to the legislative body for its consideration of the requested appropriations to fund said cost items. The Town Council's function is to act upon requests for appropriations requested in relation to negotiated agreements with the unions. Section 7(b) of chapter 150E provides in relevant part that: "The employer... shall submit to the appropriate legislative body within thirty days after the dated on which the agreement is executed by the parties, a request for an appropriation necessary to fund the cost items contained therein;...If the appropriate legislative body duly rejects the request for an appropriation necessary to fund the cost items, such cost items shall be returned to the parties for further bargaining." The legislative body, the Town Council, must consider the request for an appropriation to fund new cost items. It may approve it or reject it. If the Council rejects the requested appropriation, such rejected cost items must be returned to the Mayor and the unions for further bargaining. (c. 150E, section 7(b) above) The rejection of appropriations necessary to fund the new cost items of a proposed collective bargaining settlement by the Town Council, whether by majority negative vote of the full council or by the failure to obtain a majority vote in favor of the requested appropriation is authorized by c. 150E and is not an unfair bargaining practice. Section 7(b) makes that fact abundantly clear. In addition since the bargaining process was completed before the request for the appropriation was submitted to the Council for consideration any statements made during the council discussion of the requested appropriation could not have had any effect negative or positive on the negotiations, as alleged by the unions, since the negotiations were at that time completed. There is no obligation to fund salary increases requested as part of a negotiated collective bargaining agreement. Once the Council rejects the requested appropriation, the cost items must be returned to the Mayor and the union for renewed bargaining. City of Somerville v. Somerville Municipal Employees Association (1994) 418 Mass. 21, and c. 150E, section 7(b). The Council has no legal obligation to appropriate monies requested to fund new cost items in a negotiated collective bargaining agreement. Local 1652 International Association of Firefighters v. Town of Framingham (2004) 442 Mass 463; Boston Teachers Union Local 66 AFT, AFL-CIO v. City of Boston (1998) 44 Mass. App. Ct. 746, 756 reviewed denied 427 Mass. 1109. Also, it has been determined that once cost items are submitted for appropriation a council has no obligation to fund them nor does the Labor Relations Commission (now Department of Labor Relations) have the power to order a council to fund the request. Town of Saugus v. Newbury (1983) 15 Mass. App. Ct. 611, 614-615. Therefore, it is my opinion that the failure or refusal of the Town Council to appropriate monies requested to fund the salary increases and any other cost items contained in the collective bargaining agreements requested by the Mayor was not an unfair labor practice under c. 150E as alleged, but is in fact lawfully permitted action by the Town Council under the provisions of c. 150E and existing Massachusetts judicial decisions. Lspectfully submitt , James T. Donahue