Monthly Archives: October 2012

Labor In The News, Sandulli Grace In The News

Masscop Member Wins Extra Detail Opportunities After Arbitrator Finds Contract Violation

John Becker
John Becker October 26, 2012

The Town of Bellingham must provide a police officer who was out on administrative leave with additional paid detail opportunities after an arbitrator found that the Police Department’s practice of giving “refusals” to such officers violated the collective bargaining agreement between the Town and the police union, Local 216 of the Massachusetts Coalition of Police. The union was represented by Attorney John M. Becker of Sandulli Grace, P.C.

The issue arose when the Police Chief decided to place the officer on administrative leave so he could send him for a fitness-for-duty examination. During the month-long leave period, the Department, according to a longstanding practice, recorded the officer as having refused every detail opportunity that he would have been offered had he been working. Such refusals placed the officer much lower on the list when he did return.

The Department had adopted this practice for officers on sick, injury and administrative leave to keep officers who were out for long periods from returning at the top of the detail list. The problem, the Union argued (and Arbitrator John Cochran agreed in an August 28, 2012 award), was that the clear language of the collective bargaining agreement stated that refusals were only appropriate when an officer was actually available to take the work and voluntarily refused. Thus, the practice of the Department violated the unambiguous language of the contract, and in such cases, the arbitrator ruled, the contract, not the practice, prevails. As a remedy, Arbitrator Cochran ordered the Department to give the officer another detail opportunity for each refusal he received.

In another portion of the case, the Town had argued that the grievance was not arbitrable because the Union had not filed for arbitration until 10 months after the contract violation. In this case, the contract language required the Union to give notice of intent to arbitrate within 14 days but had no deadline for actually filing for arbitration. Arbitrator Cochran agreed with an earlier arbitrator, who ruled that despite the absence of a strict time limit, the Union must file for arbitration within a “reasonable time” unless it had a good excuse for the delay. In this case, Arbitrator Cochran found that 10 months was unreasonable “on its face” but that the Union had a legitimate reason for waiting to file. The Union had also filed an unfair labor practice at the state Department of Labor Relations in relation to the same underlying facts as the grievance, and a win at the DLR would have given the officer the remedy he was looking for. But when the DLR dismissed a portion of the case, the Union realized it would have to go forward with the grievance in order for the officer to be made whole. Based on this explanation, Arbitrator let the grievance go forward on the merits and ultimately ruled in the Union’s favor on the detail refusal issue.

Labor In The News

Judge Strikes Parts of Wisconsin Collective Bargaining Law

Sandulli Grace Staff October 2, 2012

A circuit court judge in Wisconsin struck down parts of the controversial law curbing collective bargaining rights on September 14, 2012.  The law, Wisconsin Acts 10 and 32, which was passed by the Legislature in March 2011, limited collective bargaining to wages only and further imposed a restriction that collectively bargained wage increases could not exceed the inflation rate.  Furthermore, the law prohibited collective “fair share” agreements in which all bargaining unit members pay a proportionate share toward collective bargaining; and imposed stringent certification requirements, among other restrictions.

In Madison Teachers Inc., et al. v. Scott Walker, et al., Dane County Circuit Court Judge Juan Colas held that the law violates both the Wisconsin and U.S. constitutions.  The case posits that although the law does not outright restrict the freedom of speech or association, two constitutionally protected rights, the law burdens the exercise of those rights.  For example, since the employees who choose to become members of the union are restricted from bargaining wages and further limited to how much they can seek, and those who do not join the union are not restricted, the law effectively burdens exercise of those constitutional protections by rewarding those who give up their free speech and freedom of association rights.  As such, the law also infringes upon the constitution’s equal protection clause by creating two classes of similarly situated employees (members and non-members of the union) who are treated differently and unequally.  The decision also invalidates the portion of the law that prohibits the City of Milwaukee from paying employees’ share of contributions to the City of Milwaukee Employee Retirement System.

The lawsuit’s plaintiffs are a teachers’ union and municipal employees’ unions as well as members of those unions; the defendants are Governor Scott Walker, who spearheaded the law six weeks after he took office, and the three members of the Wisconsin Employment Relations Commission.  Since the decision was issued, public-sector unions have been trying to bargain new contracts in case the decision gets overturned.  The case is now pending before the Wisconsin appeals court.

The law spurred controversy since its inception.  All of Wisconsin’s Democratic senators boycotted a vote on the bill by fleeing the state.  After the bill was passed, protests erupted in Wisconsin and around the country and several other lawsuits have been filed concerning other portions of the legislation.  In June 2012, Governor Scott Walker survived a recall election, an initiative backed by labor unions.