February 9, 2021

Quesiyah Ali, Esq

Mass. Teachers Association
2 Heritage Drive, 8th Floor
Quincy, MA 02171

Amy Lindquist
Melrose School Committee
360 Lynn Fells Parkway
Melrose, MA 02176

RE: MUP-20-8369 and MUP-20-8370, Melrose School Committee

Dear Ms. Ali and Ms. Lindquist:

On December 21, 2020, the Melrose Education Association (MEA) filed

two charges with the Department of Labor Relations (DLR) alleging that the
Melrose School Committee (School Committee) had violated Section 10(a)(5) and,
derivatively, Section 10(a)(1) of Massachusetts General Laws, Chapter 150E (the
Law) by repudiating the parties’ Memorandum of Agreement (MOA). The DLR
docketed MEA’s charge on behalf of unit A as MUP-20-8369 and docketed MEA’s
charge on behalf of unit C as MUP-20-8370. During the investigation, the MEA
amended both charges to also allege that the School Committee violated Section
10(a)(5) and, derivatively, Section 10(a)(1) of the Law by making changes to the
MOA without providing the MEA with notice and the opportunity to bargain.
Pursuant to Section 11 of the Law, as amended by Chapter 145 of the Acts of
2007, Section 15.05 of the DLR’s Rules, and the DLR’s Interim Investigation
Procedures issued on April 13, 2020, I conducted an investigation on January 20,
2021.1 Based on the information presented during the investigation, I have decided
to dismiss the charges for the reasons explained below.2

1
I conducted the investigation remotely after Governor Baker directed state
employees to stay at home during the state of emergency.
2
I did not consider the School Committee’s proposed exhibit which was submitted
after the close of the record.
Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

Background
The MEA represents approximately 338 teachers in bargaining unit A and
95 paraprofessionals in bargaining unit C.

The Melrose Public Schools closed in mid-March 2020 due to COVID-19.

On June 25, 2020, the Department of Elementary and Secondary Education
required districts to prepare a reopening plan that addressed three possible
learning models for the 2020-2021 school year: in-person learning, remote learning
and a hybrid of in-person and remote learning.

On August 4, 2020, the parties commenced negotiations concerning

reopening for the 2020-2021 school year. On August 14, 2020, the School
Committee submitted its Reopening Plan (Plan), providing for in-person instruction
for students designated as high needs but remote instruction for the start of the
school year for other students, with a hybrid learning-model phased in at a later
point.

On August 5, 2020, the MEA proposed that employees “return to school

buildings once certain community metrics and school health and safety
benchmarks are met.” The MEA provided the following list of proposed health and
safety benchmarks, noting that this list did not necessarily constitute the complete
list of concerns to be met:

Community Metrics
● For educators and staff to return and remain in person, the positive
test rate in Massachusetts should be no more than 2% over a 14-day
period.
● The City will have no increases in positive cases for fourteen (14)
days before shifting from a full remote to a hybrid model.
● Test results from labs must be happening within 48 hours in order
for real time contact tracing and containment to occur.
● Rate of transmission (RT) should be below one (1) in
Massachusetts and the counties the District serves.
● If the District meets these community metrics and moves to any in-
person model (hybrid or full) these benchmarks must be maintained,
or the District will revert to full remote.

During a subsequent August 2020 negotiation session, the School

Committee submitted a proposed agreement which, in part, required it to work with
the Melrose Department of Public Health to monitor metrics related to positive case
rates and trends. The School Committee further proposed the following:

If the percent positivity rate in the City of Melrose increases over 2%,
the Superintendent, prior to making a decision to return to a remote-
only model, will, in consultation with the Melrose Department of
Public Health, review other such relevant metrics, including but not

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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

limited to the case count in Melrose (last 14 days); the relative

change in case counts; and the Average Daily Incidence rate per
100,000.

The School Committee also slightly modified a proposal originally offered

by the MEA, by offering the following proposal:

If the District meets these community metrics and moves to any in-
person model (hybrid or full), these benchmarks must be maintained,
or the District will, at the direction of the Superintendent, revert to full
remote.

After further negotiations, the parties executed a MOA for unit A on September 10,
2020 and executed a MOA for unit C on September 22, 2020. Both agreements
contain the following Health and Safety provision in Section 3:

3. Health and Safety:

A. Community Metrics:

i. The District will work closely with the Melrose Department of

Public Health to monitor metrics related to positive case rates
and trends in the City of Melrose, individual schools, the
District as a whole, and the Commonwealth.

ii. The parties will rely on the Massachusetts Department of

Public Health COVID-19 dashboard for all COVID-19 data.

iii. If the percent positivity rate in the City of Melrose increases

over 2%, the Superintendent, prior to making a decision to
return to a remote-only model, will, in consultation with the
Melrose Department of Public Health, review other such
relevant metrics, including but not limited to:
a. Case count in Melrose (last 14 days);
b. Relative change in case counts; and
c. Average Daily Incidence rate per 100,000.

iv. If the decision is made to return to a full remote-model due to

current health and safety metrics, the Superintendent will,
upon consultation with the Melrose Department of Public
Health, decide whether to continue to provide in-person
instruction to vulnerable students (including but not limited to
those with disabilities, English learners, and students who
have not engaged or cannot engage with remote learning).

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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

v. If Melrose is within the yellow, green or white color-coded

metric established by the DPH/COVID-19 Command, for the
time period of October 5, 2020 through October 16, 2020, the
District will, in the discretion of and at the direction of the
Superintendent, move from the remote-only model to the
best-fit model, with students designated as “Group A” and
“Group B” (in the MPS Comprehensive Return to Instruction
Plan approved by the Committee on August 11, 2020)
returning to school for in-person instruction.

vi. Melrose will maintain a white or green color-coded metric,

established by the DPH/COVID-19 Command, for at least 14
days before shifting from a hybrid model to a full in-person
model.

vii. If the District meets these community metrics and moves to

any in-person model (hybrid or full), these benchmarks must
be maintained, or the District will, at the direction of the
Superintendent, revert to full remote.

At the beginning of the 2020-2021 school year, the Melrose Public Schools
provided in-person instruction for high needs students; remote instruction for
Grades 2 through 12; and hybrid instruction for kindergarten and first grade
students. On October 19, 2020 the School Committee commenced hybrid
instruction for Grades 2-12.3

On November 6, 2020, the Commonwealth of Massachusetts Department

of Public Health (DPH) made changes to its color-coded metrics. The MEA
questioned if this change required a change to the MOA. On November 10, 2020,
Superintendent Kukenberger (Superintendent or Kukenberger) responded that
she did not believe the parties needed to change the MOA based on the release
of DPH's COVID-19 Health Metrics but, she added “we should confirm the
agreement.”4

In December of 2020, the positivity rate in Melrose began to rise; a

December 3 report showed a 3.55% positivity rate and a December 10 report
reflected a 5% positivity rate. Noting this positivity rate, on December 11, 2020,
Association President Lisa Donovan emailed Kukenberger, writing “[g]iven these
factors, the MEA is insisting that the agreed upon metrics be adhered to and that
the Melrose Public Schools returns (sic) immediately to a fully remote learning

3
At the parent’s request, any student could receive remote instruction.
4
Neither party presented any evidence that the agreement was modified in any
way at that time.
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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

model for all.” Kukenberger did not respond and did not return to fully remote
learning for all students as requested.

On the same day, the MEA filed a grievance at Step 2, asserting “that
contractual language was not followed and is in violation of the memorandum of
Agreement between the Melrose School Committee and Melrose Education
Association generally and specifically, but not limited to, Section 3A iii and vii
Community Metrics.” As a remedy, the MEA sought that the schools move to a
fully remote learning model for all and continue with that model until the “metrics
meet the agreed upon MOA benchmarks for a return to inperson instruction.”

On December 11, 2020, during a meeting with the public-school community,

via Facebook Live, Kukenberger stated words to the effect that she would not
direct the school district to revert to remote status unless directed by the state. On
December 15, 2020, during a virtual forum for Melrose employees, Kukenberger
repeated similar comments.5

After the holiday break, Kukenberger returned all students to full remote
learning from January 4 to January 8, 2021 to allow all staff and students to
participate in a testing clinic.6 The Superintendent reviewed these results and other
COVID-related data for evidence of clusters of cases. On three occasions,
Kukenberger decided to have a whole class transition to remote learning for a
period of time due to specific concerns related to the specific class.7

Position of the Parties8

The MEA asserts that the School Committee repudiated the MOA when the
Superintendent did not direct the schools to return to remote learning in December
2020 when the positivity rate rose above 2%, as required by Sections 3A iii and 3A

5
The School Committee maintains that these words were taken out of context and
Kukenberger asserts that her comments were meant to apply to special needs
students. The MEA disputes these contentions. Given my decision to dismiss the
charges on other factors, there is no need to resolve this dispute of facts.
6
A total of 1,632 individuals were tested. Of these, 2 students and 4 adults tested
positive for COVID-19. However, 2 of the adults who tested positive were not part
of the public-school system.
7
The parties did not provide the dates for when these classes transitioned,
temporarily, to the remote-learning model.
8
The School Committee advocated that unless I dismissed the charge, the MEA’s
allegation regarding repudiation should be deferred to the parties’ grievance and
arbitration procedure. The MEA objected. Given my decision to dismiss the
charges, I decline to defer the repudiation allegation to the parties’ grievance and
arbitration procedure.
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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

vii. The MEA contends that the language in the MOA is not ambiguous. Although
other provisions in the MOA give discretion to the Superintendent, Section 3A vii
does not. That provision clearly requires that the Superintendent will direct a return
to full remote learning unless the benchmarks are maintained. The community
metrics and benchmarks mentioned in this provision refer to the items specified in
Section 3A iii. The Superintendent has operational authority so she must direct the
action, but the provision does not specify that she has discretion whether or not to
direct the action.

Although the Superintendent did direct a return to remote learning for one
week in January 2021, that was not done in compliance with the requirements in
the MOA. She made that decision in order to allow for testing, but this action was
not directed as a result of the higher than 2% positivity rate in the City of Melrose.

MEA also contends that the Superintendent changed the MOA when she
stated, twice, in December that she would not return to remote learning unless
directed by the State. The MEA contends that this change in working conditions is
negotiable as it does not implicate a core education policy because the
predominant effect of a decision is directly upon the employment relationship
rather than upon the level or type of education in a school system. Boston School
Committee, 3 MLC 1603, 1607, MUP-2503, 2528 and 2541 (April 15, 1977).
Moreover, the Superintendent’s change of the MOA impacts the employees’ safety
and workload. Therefore, the MEA asserts that the School Committee violated the
Law by failing to provide the MEA with notice and the opportunity to bargain over
both the decision to make the change to the MOA and the impacts of that change.

In contrast, the School Committee maintains that it did not violate the Law
as alleged. The School Committee, too, contends that the language of the MOA is
unambiguous. However, the School Committee asserts that the clear language of
the MOA gives the Superintendent discretion in making decisions regarding the
learning method. The MEA originally proposed that under certain circumstances,
schools would automatically revert to remote learning. The School Committee,
believing that the decision about whether to offer instruction through an in-person,
remote or hybrid model, is a core managerial decision that is not negotiable,
instead proposed that the Superintendent had discretion in determining which
learning model was used. The final agreement provides for the Superintendent to
consider various factors but gives her discretion to make the final decision. The
one part of the MOA which may be ambiguous is the reference to community
metrics and benchmarks in Section 3A vii. Although the MEA asserts that this
refers back to the metrics spelled out in Section 3A iii9, the School Committee notes
that Section 3A v refers to the color-coded metric and this was the metric
referenced in Section 3A vii. In any case, the Superintendent had full discretion to

9
The School Committee also points out that this provision does not only refer to
the positivity rate, but also includes other metrics which should be, and were,
considered.
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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

decide whether to revert to fully remote instruction, and she did not repudiate the
MOA when she did not revert to fully remote instruction in December.

The School Committee also maintains that the MOA was not changed and
therefore there can be no allegation of a unilateral change. The Superintendent’s
comments in December were taken out of context. She merely noted that there
would not be fully remote learning, to accommodate special needs students who
could not learn remotely, unless there was a similar emergency such as the
Commonwealth’s emergency order closing schools in March 2020. The
Superintendent’s actions further demonstrate that she did not change the MOA.
The Superintendent did direct fully remote learning for the week of January 4,
2021, so that students and staff could participate in a testing program. This testing
provided additional information for her to use when exercising her discretion to
determine which learning model would be used. She returned to fully remote
learning for a period of time even though there was no order from the state directing
such a return to remote learning. The Superintendent also closed three classrooms
when the data showed that was in the best interest of the students and employees.
She made these decisions on her own after considering various relevant data.

Moreover, the School Committee argues that the decision as to which

educational model to utilize is one of those core governmental decisions. The
School Committee establishes educational policies for the district, consistent with
the requirements of law and the statewide goals and standards established by the
Massachusetts Department of Elementary and Secondary Education. See G.L. c.
71,§ 37. The Superintendent is vested with all operational decisions for the District
and is required to manage the system in a manner that is consistent with state law
and the policy determinations of the Committee. G.L. c. 71, §52. The educational
model to be utilized for the District is inherently a policy decision of the School
Committee. Given this, any decision as to which educational model to utilize is a
non-delegable management right that cannot be susceptible to the process of
collective bargaining. School Comm. of Newton v. Newton School Custodians
Association, Local 454, SEIU, 438 Mass. 739, 746–748 (2003).

Analysis

Repudiation

Section 6 of the Law requires public employers and unions that represent
their employees to meet at reasonable times to negotiate in good faith regarding
wages, hours, standards of productivity and performance, and any other terms and
conditions of employment. The statutory obligation to bargain in good faith includes
the duty to comply with the terms of a collective bargaining agreement.
Commonwealth of Massachusetts, 30 MLC 43, 45, SUP-4768 (September 17,
2003). A public employer’s deliberate refusal to abide by an unambiguous
collectively bargained agreement constitutes a repudiation of that agreement, in
violation of the Law. Id.; Town of Falmouth, 20 MLC 1555, 1559, MUP-8114 (May

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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

16, 1994) aff’d sub nom. Town of Falmouth v. Labor Relations Commission, 42
Mass. App. Ct. 1113 (1997). However, if the evidence is insufficient to find an
agreement underlying the matter in dispute, or if the parties hold differing good
faith interpretations of the terms of the agreement, then the Commonwealth
Employment Relations Board (CERB) will find that no repudiation has occurred.
City of Everett, 26 MLC 25, 27, MUP-1542 (July 22, 1999). If the language at issue
in the agreement is ambiguous, the CERB will look to the underlying bargaining
history to determine whether there was a clear agreement between the parties.
Commonwealth of Massachusetts, 18 MLC 1161, SUP-3356, SUP-3439 (October
16, 1991).

Although both parties assert that the MOA is unambiguous, they provide
differing good faith interpretations of the MOA. The School Committee reasonably
interprets the agreement as providing the Superintendent with discretion to decide
when to change the offered learning model. The MEA, though, also reasonably
asserts that although various sections of the MOA provide for the Superintendent
to make decisions and reference her discretion, Section 3A vii notably does not
use the words decision or discretion. Rather, Section 3A vii states that the
benchmarks must be maintained, or the District will, at the direction of the
Superintendent, revert to full remote. The parties disagree whether this provision
provides the Superintendent with any discretion.

I find that the language in the MOU is ambiguous and internally inconsistent.
The plain language in Section 3A vii does not provide the Superintendent with
discretion regarding when schools must revert to remote learning, while the plain
language in Section 3A iii allows the Superintendent to decide whether to revert to
a remote learning, after considering various metrics. Moreover, the reference to
the community metrics and benchmarks in Section 3A vii is ambiguous; it is unclear
if this refers to the metrics listed in Section 3A iii or the color-coded metrics
referenced in Sections 3A v and 3A vi.

A review of the bargaining history does not fully clarify the parties’ intent.
The bargaining history makes clear that the parties agreed to give the
Superintendent certain discretion in making decisions about moving between
different learning models. The MEA first proposed that in-person education would
only be provided if certain metrics were met, including that the positive test rate in
Massachusetts is no more than 2% over a 14-day period. The School Committee
did not accept this language, which did not allow the Superintendent to exercise
any discretion, and instead proposed language which would not automatically
revert the schools to remote learning if the positivity rate increased above 2%. The
School Committee’s proposal, which was agreed upon, permitted the
Superintendent to decide when to revert to remote-only learning, after considering
the positivity rate in Melrose as well as other metrics.

The bargaining history pertaining to Section 3A vii is less clear. The MEA’s
original proposal was “[i]f the District meets these community metrics and moves

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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

to any in-person model (hybrid or full) these benchmarks must be maintained, or

the District will revert to full remote.” The School Committee modified this proposal
by adding in the words “the District will, at the direction of the Superintendent,
revert to full remote.” (emphasis added). Presumably, this change was not meant
of be meaningless, however the parties did not provide sufficient information to
explain the intent of this language. Moreover, neither party presented bargaining
history pertaining to the meaning of the terms “community metrics” and
“benchmarks” in Section 3A vii.

Accordingly, I find that the MOA is ambiguous, and the bargaining history
does not sufficiently clarify the parties’ intent. Therefore, I do not find probable
cause to believe that the School Committee repudiated the MOA and I dismiss that
portion of the charges.

Even if, arguendo, the MOA was not ambiguous, I would still dismiss the
charge. Some managerial decisions cannot be delegated by public employers or
be made the subject of collective bargaining. Town of Dennis, 12 MLC 1027, 1030,
MUP-5247 (1985). For example, school committees have the exclusive
prerogative to determine certain matters of educational policy without bargaining.
Lowell School Committee, 26 MLC 111, 113, MUP-1775 (January 28, 2000). To
determine if a decision falls within the core educational policy exception to
bargaining, the CERB ascertains whether the “predominant effect” of a decision is
directly upon the employment relationship or is upon the level or type of education
in a school system. Boston School Committee, 3 MLC 1603, 1606 – 1607, MUP-
2541 (April 15, 1977). The School Committee’s decision here, regarding which
learning model to utilize during the COVID-19 pandemic, i.e. all in-person, remote,
or hybrid, predominantly affects the level or type of education in the school system
and is therefore insulated from the bargaining process. When parties do negotiate
over a nondelegable right of management, the resulting agreement is not
enforceable. See Town of Billerica v. IAFF, Local 1495, 415 Mass. 692 (1993).
Accordingly, to the extent that the MOA infringed on the School Committee’s
managerial prerogative to determine which learning model is utilized, it is
unenforceable, and the School Committee did not unlawfully repudiate the MOA
when the Superintendent chose not to revert to remote learning in December 2020.

Unilateral Change

A public employer violates Section 10(a)(5) and, derivatively, Section

10(a)(1) of the Law when it unilaterally changes a condition of employment or
implements a new condition of employment involving a mandatory subject of
bargaining without first giving its employees’ exclusive collective bargaining
representative notice and an opportunity to bargain to resolution or impasse.
Commonwealth of Massachusetts v. Labor Relations Comm’n, 404 Mass. 124, 127
(1989); School Committee of Newton v. Labor Relations Commission, 338 Mass.
557 (1983). The duty to bargain extends to both conditions of employment that are
established through past practice as well as conditions of employment that are

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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

established through a collective bargaining agreement. Town of Burlington, 35

MLC 18, 25, MUP-04-4157 (June 30, 2008), aff'd sub nom., Town of Burlington
v. Commonwealth Employment Relations Board, 85 Mass. App. Ct. 1120 (May 19,
2014); Commonwealth of Massachusetts, 27 MLC 1, 5, SUP-4304 (June 30,
2000). To establish a unilateral change violation, the charging party must show
that: 1) the employer altered an existing practice or instituted a new one; 2) the
change affected a mandatory subject of bargaining; and 3) the change was
established without prior notice and an opportunity to bargain. City of Boston, 20
MLC 1603, 1607, MUP-7976 (May 20, 1994); Commonwealth of Massachusetts,
20 MLC 1545, 1552, SUP-3460 (May 13, 1994).

I find that the MEA failed to provide sufficient facts that the School
Committee instituted a change. The MEA alleges that the School Committee
unilaterally changed working conditions when Kukenberger stated that she would
not return the schools to remote learning unless directed to by the state, thereby
changing the terms of the MOA. The School Committee argues that Kukenberger’s
comments were taken out of context and that she was referring to high-needs
students.10 Regardless of exactly what the Superintendent said, or intended, the
facts do not demonstrate that the School Committee implemented any change to
the MOA. Although it is factually correct that the positivity rate in Melrose rose
above 2% in December and Kukenberger did not revert to remote learning, there
is no evidence that she did not revert to remote learning because the
Commonwealth did not so direct. As noted above, Kukenberger was acting in
accordance with the School Committee’s reasonable interpretation of the MOA,
which permitted her to consider various metrics before deciding if or when to revert
to remote learning. Additionally, Kukenberger did revert to fully remote instruction
for a week in January to allow for testing to provide additional data for her to
consider. She took this action, even though she was not directed to do so by the
Commonwealth. She also returned certain classes to remote learning when she
determined the circumstances warranted that action. Given her actions, I find that
the MEA has not provided sufficient evidence to demonstrate that the School
Committee made a change in working conditions as alleged.

Accordingly, I do not find probable cause to believe that the School

Committee violated the Law by making a unilateral change to working conditions,
and I dismiss the charges.

10
During the investigation, the MEA never disputed that Section 3 iv permits the
Superintendent to decide whether to continue to provide in-person instruction to
vulnerable students even if she decides to return others to a remote-model due to
health and safety metrics.

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Dismissal (cont’d) MUP-20-8369 and MUP-20-8370

COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS

____________________________________
GAIL SOROKOFF, INVESTIGATOR
APPEAL RIGHTS

The charging party may, within ten (10) days of receipt of this order seek a review
of the dismissal by filing a request with the Commonwealth Employment Relations
Board pursuant to Department Rule 456 CMR15.05(9). The request shall contain
a complete statement setting forth the facts and reasons upon which such request
is based. The charging party shall include a certificate of service indicating that it
has served a copy of its request for review on the opposing party or its counsel.
Within seven (7) days of receipt of the charging party’s request for review, the
respondent may file a response to the charging party’s request.

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