As we prepare to begin bargaining our next contract in 2027, we wanted to provide some information on frequently asked questions about parameters and higher ed bargaining.

Question: What are “parameters”?

Answer: A percentage figure for wages and other economic provisions for state collective bargaining agreements set by the Executive Office for Administration and Finance (“EOAF”). Their origin was as targets for Executive Branch collective bargaining negotiations (with the Alliance, MOSES, MNA and other unions representing Executive Branch employees), but parameters have expanded as targets for Higher Ed negotiations as well.

Question: But we bargain with the Board of Higher Education (“BHE”) or the University of Massachusetts (“U. Mass.”), which are autonomous, legally distinct employers. How can EOAF set “parameters” for negotiations for another employer?

Answer: Because the Governor may, in effect, veto any collective bargaining agreement negotiated with the BHE or U. Mass., so the “autonomous” employers have to pay attention to the Governor’s wishes (which are conveyed through EOAF).

Question: How does the Governor have an effective veto over the Higher Ed contracts?

Answer: The funding of newly negotiated Higher Ed contracts is subject to G.L. c. 150E, § 7(c). Section 7(c) provides that newly negotiated Higher Ed contracts are submitted to the Governor (through EOAF) within 30 days with a cost estimate for the incremental cost items in the agreements. Submission to the Governor starts a 45 day clock running for the Governor to approve the contracts and forward them to the Legislature for an appropriation to fund the incremental cost items. If the Governor rejects the contracts or simply does not forward them to the Legislature within 45 days, § 7(c) provides that the incremental cost items do not take effect and are returned to the parties for further bargaining. In practice, the 45 day deadline is often exceeded, and contracts are eventually approved and sent on to the Legislature.

Question: Is the Governor restricted as to the reasons for rejecting a Higher Ed contract?

Answer: No. Approval or rejection of the contract is at the Governor’s discretion.

Question: EOAF will often communicate about the parameters to BHE and U. Mass.? Isn’t that interfering with bargaining?

Answer: “Yes” practically, but “no” legally. In a case involving a county Sheriff’s office, which used the same § 7(c) funding process as Higher Ed, the Supreme Judicial Court (“SJC”) found that it was legal for EOAF to communicate with the Sheriff’s bargaining representatives about the raises that EOAF would accept. Teamsters Local Union No. 404 v. Sec’y of Admin. & Fin., 434 Mass. 651, 655–56 (2001).

Question: But don’t the BHE and U. Mass. negotiators have to have authority to negotiate raises and other economic items?

Answer: Yes, but this doesn’t mean that they have to offer any particular raise or ignore what EOAF will approve. An employer may legally negotiate economics and offer zero or propose take-backs. Similarly, it’s legal for BHE or U. Mass. to make only offers that won’t exceed the parameters because, while the law requires that employer representatives have the authority to discuss economics, it doesn’t require any particular offer or preclude “hard bargaining.”

Question: May U. Mass. and the BHE choose to not seek an appropriation to fund a collective bargaining agreement and simply fund it out of existing resources.

Answer: Yes, § 7(c) does not “prohibit the funding of collective bargaining costs out of an existing appropriation.” University of Massachusetts, 30 MLC 106, 109.

Question: Has MTA proposed Legislation to end the Governor’s veto over Higher Education contracts?

Answer: Yes, MTA’s fair higher education workplace bill would amend G.L. c. 150E to eliminate the submission to the Governor for approval and to permit U. Mass. and the BHE to submit funding requests for newly negotiated agreements directly to the Legislature.

Question: DCE (MCCC), DGCE (MSCA) and GRACE (U. Mass. Lowell) are not funded through any state appropriations. Do they have to go through the § 7(c) process?

Answer: No. As already noted, a public employer may choose to fund a contract with existing funds and, in the case of these units, none of the “incremental cost items,” or salaries in general, are funded by appropriations from the Legislature. With that said, it’s legal for the employer to take the position in bargaining that raises in these units should generally align with the raises in other units.

Question: Is it bad faith bargaining for Higher Ed to refuse to discuss economics until the parameters are released?

Answer: Yes, literally, but practically, probably not. It would be unlawful to for the employer to categorically take the position that it won’t discuss economics until the parameters are released. However, it would probably be legal for the employer to discuss economics and offer “0%” until it has a better sense of its finances due to the release of the parameters.

Question: Is mediation and/or fact-finding under G.L. c. 150E, § 9 a way to arrive an agreement that exceeds the parameters?

Answer: Not as a legal matter; whether mediation or factfinding would be helpful in reaching an agreement would be need to be assessed in the context of the particular negotiation. The Governor is not bound by agreements arrived at in mediation or recommended in factfinding and the Governor retains the power to reject the agreement under § 7(c). Thus, the bargaining dynamic where the Governor hold an effective veto over the economics of Higher Ed collective bargaining agreements remains in the background of the negotiations and still gives the parameters “teeth.”

Question: What can we do to limit the impact of the parameters on bargaining?

Answer: EOAF’s ability to set parameters is a challenge but understanding how they work and potential pressure points is the first step to meeting the challenge. Given how the parameters work, these are possible ideas to deal with them:

• Investigate the capacity of the employer for self-funding of the contract without an appropriation with a view toward demanding that it self-fund the contract;
• Make the Governor a target of the contract campaign along with the employer;
• If possible, make an alliance with the employer to obtain funding. The SJC specifically envisioned this in its Teamsters decision: “How the parties reach an agreement that is acceptable to the Governor, and how they convince the Governor that their agreement should be approved, is entirely up to the parties.” Teamsters at 434 Mass. 655–56.

Legislatively bypass the § 7(c) process. The Legislature can pass special legislation that a particular contract is in effect without making an appropriation.