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December 30, 2011

New Legislation Reinstates Evergreen Clauses Effective Retoractively

On November 22, 2011, Governor Patrick signed legislation amending M.G.L.c. 150E to allow public employers and unions to include, once again, evergreen clauses in collective bargaining agreements.  An evergreen clause is generally defined as a provision in a collective bargaining agreement that provides the agreement will remain in effect beyond its three-year term, until a successor agreement is negotiated.  The legislation does not change the parties' obligation to arbitrate grievances when a contract without an evergreen clause expires.


The legislation, which overturns last October's Supreme Judicial Court ("SJC") decision in Boston Housing Authority v. Natl. Conference, is effective immediately.  In Boston Housing Authority, the SJC held that evergreen clauses that extend collective bargaining agreements beyond the statutory three-year term were unenforceable.  In the wake of the decision, public employers enjoyed significant leverage in foreclosing grievances that were pursued beyond an agreement's three-year term and negotiating successor collective bargaining agreements prior to the expiration of an agreement's three-year term.


Unfortunately for public employers, the legislation takes away much of the leverage they gained under Boston Housing Authority. The law is retroactive in its effect, as it expressly applies to collective bargaining agreements that had expired before the legislation.  The lone exception to its retroactive application is for "matter[s] that were pending or adjudicated in a court of competent jurisdiction between October 22, 2010, and [November 22, 2011]."  Given the law's retroactive application, public employers should anticipate unions using the legislation to revive grievances that were previously dismissed by an arbitrator based on Boston Housing Authority.  We recommend public employers review such grievances with counsel to determine whether the new legislation applies.


Please do not hesitate to contact us concerning this or other labor and employment issues.

Labor, Employment & Employee Benefits Group 


Mirick O'Connell

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This client alert is intended to inform you of developments in the law and to provide information of general interest.   It is not intended to constitute legal advice regarding a client's specific legal issues and should not be relied upon as such.  This client alert may be considered advertising under the rules of the Massachusetts Supreme Judicial Court.