A common misperception about the duty of fair representation is that Unions cannot favor one set of bargaining unit employees over another.  The reality, in fact, is the opposite, as illustrated In Anderson v. Commonwealth Employment Relations Board 07-P-1286 (January 23, 2009).

First, here is a brief overview the duty of fair representation.  Labor organizations owe a duty of fair representation, commonly known as “DFR,” to employees in the bargaining unit.  This DFR is imposed on Unions in exchange for their exclusive authority to bargain about terms and conditions of employment on behalf of bargaining unit employees.  The DFR requires a duty of fair representation, not a duty of total or unwavering representation.  Unions are not required to exhaust all resources on trivial grievances that affect few employees, at the expense of more meritorious grievances that may be relevant to most employees. 

Unions can fulfill their duty, generally speaking, by rendering a reasonable and informed decision about a grievance or bargaining issue that is based upon how the Union views the merits of the issue.  Unions violate their duty when they make decisions primarily based upon irrelevant aspects of the individual employee(s).  In other words, the Union may not discriminate against non-Union members or members who do not pay dues or support the Union, and may not act arbitrarily. Beyond those minor limitations, Unions have discretion on how to process grievances and what items to include within a collective bargaining agreement.

            In Anderson v. Commonwealth Employment Relations Board, the Massachusetts Court of Appeals affirmed that Unions may, if not must, favor one set of employees over another during the collective bargaining process.  The contract negotiated by the Boston Firefighters Local 718, International Association of Firefighters, AFL-CIO, CLC provided  additional sick leave to each firefighter on the payroll as of September 2001.  More than 90 firefighters who retired before that date sued Local 718, complaining that the differential treatment for recent retirees violated the duty of fair representation.  The Appeals Court disagreed:

This duty does not require a union to treat each member identically.  A union has room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake.  That fairly generous scope for inaction is exceeded when the union’s conduct is arbitrary, discriminatory, in bad faith, or grossly negligent.

The Court also affirmed that Unions do not necessarily owe a duty of fair representation to retirees.  In conclusion, the Court agreed that the CERB properly dismissed the claim.

Contrary to popular belief, Massachusetts courts are not the most liberal in the country.  The courts can be downright conservative…when it comes to the rights of public employees, especially police officers.  This observation is underscored by comparing treatment of police union speech in a recent case from Nebraska Supreme Court with a 1994 case from the Massachusetts Supreme Judicial Court.  After all, SJC Justice Oliver Wendell Holmes, prior to serving as a Supreme Court Justice, famously quipped that police officers “may have a constitutional right to talk politics…he has no constitutional right to be a policeman,” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892).

 First, we provide a brief, simplified overview of protected speech.  The right of public employees, especially police union officials, to speak their minds is not absolute.  While the First Amendment is commonly thought to provide a “right to free speech,” the realities are far different.  The First Amendment simply protects citizens from government interference in the exercise of speech.  It does not, for instance, prohibit private employers or businesses from restricting speech of employees.  Where public employees are involved, the employer is the government.  The natural assumption is that public employees enjoy enhanced free speech protection compared to private sector employees.  While this may theoretically be true, courts can narrow free speech rights for public employees. 

Public employees generally have the right to free speech when their speech relates to a “matter of public concern.”  Unfortunately, judges often do not view terms and conditions of employment as “matters of public concern.”  Some complaints about internal corruption or incompetence, for instance, have been classified as not matters of public concern, and hence not entitled to free speech protection.  Even when the public employee is speaking in his or her role as a Union official (and not on behalf of his or her pubic employer), the speech is protected only if the benefits of unrestricted speech outweigh any disruption experienced by the government employer as a result of the speech.  As the U.S. Supreme Court stated:

The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.  This consideration reflects the importance of the relationship between the speaker’s expressions and employment.  A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

 Garcetti v. Cabellos, 47 U.S. 410 (2006) (citations omitted).

Public sector labor laws frequently grant additional protections to employee speech.  Public employees generally are free to speak their mind as long as they are speaking about terms and conditions of employment.  Unfortunately, the Massachusetts Supreme Judicial Court years ago narrowed this protection for certain public employees.  In Plymouth Police Broth. v. Labor Relations Com’n, 417 Mass. 436 (1994), the SJC agreed with the Labor Relations Commission (now Commonwealth Employment Relations Board) that a union official had no statutory speech protections for an internal email to union members about a dispute over vaccinations described the local board of selectmen as “pigs, cheats, liars, whatever!!!!”

 In contrast to the SJC’s crabbed view of protected public employee speech, in Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha (January 2, 2009) (http://www.supremecourt.ne.gov/opinions/2009/january/jan2/s07-1245.pdf), the Nebraska Supreme Court agreed that a municipality violated state labor law for disciplining a police union official as a result of a union article that criticized City procedures for 911 calls and characterized city officials as a “bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.”  The police chief concluded that the article constituted “gross disrespect and insubordination,” and – surprise! – “conduct unbecoming an officer,” that old disciplinary chestnut.  It should be noted that the official wrote the article after the Chief investigated the union president for allegedly advocating that union members ignore department protocols.  (These charges were unfounded and the Chief was forced to exonerate the union president).  Initially, the Chief terminated the article’s author.  He later agreed to reduce the termination to a 20-day suspension and a reassignment.  The Union then filed an unfair labor practice charge with a state labor relations agency, claiming that the disciplinary action violated state labor law’s protection for employees who engage in protected activity.

 The Nebraska Supreme Court ruled that the City’s actions may be upheld only if the Union official engaged in “flagrant misconduct,” which it defined as “statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer’s ability to accomplish its mission, or (3) disrupt discipline.” The state labor relations agency found that the Union author’s conduct did not rise to this level and therefore qualified as protected speech under state law.  The agency described the article’s statements as:

rhetorical hyperbole, which would not be reasonably believed by any reader as accusing of any crime or wrongdoing.  They were intemperate, immature hyperbole, but they were nonetheless protected union speech in the context of the newsletter.

 The Nebraska agency also found no evidence that the article caused the City to suffer any diminution in respect or operational efficacy.  It doubted “the remarks would reflect poorly on anyone other than [the article’s author] and the newsletter’s editor.”  The agency ordered the Department to buy an ad in the Union publication and state that the City recognizing the rights of union members to engage in protected activity.  The Nebraska Supreme Court thereafter affirmed the agency’s decision, citing the principle of agency deference.  The Court however took a swipe at the police union by suggesting that the Court may have ruled in favor of the City had the Court, and not the agency, reviewed the case in the first instance.  

The Massachusetts Appeals Court ruled on January 9, 2009 that the City of Lynn must pay nearly $300,000 in damages to the Lynn Police Association, Massachusetts Coalition of Police Local 302, for violating a memorandum of agreement.  In so ruling, the Appeals Court in City of Lynn v. Lynn Police Assn, MCOP Local 302, #07-P-1090, http://www.socialaw.com/slip.htm?cid=18734&sid=119 rejected the City’s claim that its failure to specifically budget for this expense allowed the City to escape liability for breaching the union contract.  The case vindicates unions that agree in good-faith to wage concessions based upon employer promises to return the favor when circumstances improve.  Sandulli Grace, PC, led by Attorney John Becker, represented MCOP in this proceeding.  Sandulli Grace partner Susan F. Horwitz assisted the Association in negotiating the original memorandum of agreement.

The case arose when the City, facing possible layoffs in 2003, asked the Association for concessions.  The Association agreed to forego approximately $300,000 in negotiated contractual benefits, but only on  condition that if the City later obtained additional state or federal grant funding, then the City would use those funds to offset the Association’s concessions.  As it happened, the police department later obtained a community policing grant of approximately $300,000.  However, the City refused to use the funds to offset the concessions.

An arbitrator agreed that the grant funds should have been paid to officers who had sacrificed their contractual benefits.  The City refused to abide by the arbitrator’s ruling, and appealed the decision to Superior Court and then, after losing at Superior Court, to the Appeals Court.

The City argued that its compliance with the arbitrator’s decision would violate the Lynn Bailout Act, Chapter 8 of the Acts of 1985.  The Lynn Bailout Act, as suggested by its title, was enacted at a time of severe fiscal crisis.  The Bailout Act sets forth a number of procedures for curbing irresponsible spending by the City and holding department heads personally liable for overspending.  According to the City’s argument, complying with the arbitrator’s award would force the City to spend more than the allotted budget for police department personnel for a particular year, and this expenditure was prohibited by the Bailout Act.

The Appeals Court rejected the City’s argument that it could avoid contractual obligations because of the Bailout Act.  First, the Bailout Act only prohibits paying liabilities that arise after the appropriated funds  have been exhausted.  The Appeals Court found that the City of Lynn’s obligation to pay police officers arose before the appropriation was exhausted, so the Bailout Act did not apply. 

Second, the Court pointed out other court cases that ordered municipalities to pay damages for breaching contracts even when they had not appropriated funds to pay the damages.  The Court concluded that the Bailout Act and similar laws (such as G.L. c. 44, § 31, which prohibits municipalities from spending in excess of appropriations) were not designed to protect cities and towns from the consequences of their unlawful actions.  Because Lynn had a contract with the Association, and breached that contract, it was obligated to pay the damages resulting from that breach, whether or not it had appropriated funds to pay for those damages.

The Court agreed with one aspect of the City’s appeal.  The City complained that the Superior Court failed to provide a declaratory judgment – a statement about the respective rights and obligations of the parties – as the City had requested.  The Appeals Court agreed.  In a case of be careful what you wish for, the Appeals Court directed the Superior Court to modify its decision to declare: “the arbitrator’s award does not require the city to violate any law, and payment of that award will not violate chapter 8 of the Acts of 1985 because that statute does not prohibit payment of awards for breach of contract.”

The Appeals Court’s decision is final unless the City asks the Supreme Judicial Court to review the decision and the Supreme Judicial Court agrees to do so.  (The SJC declines to review more than 90 percent of these requests.)