All posts by Alan Shapiro

PUBLIC EMPLOYEES: THE NEW SCAPEGOATS

In an article published yesterday by former Secretary of Labor Robert Reich, entitled “The Shameful Attack on Public Employees,” Professor Reich rebuts the most common myths about public workers. Included among these myths are:

  • Public employees earn more than private sector employees
  • Public sector pensions are crippling the country
  • Bargaining rights for public employees have caused state deficits to explode

None of these statements withstand factual scrutiny yet they are repeated by many politicians and business leaders as if they were gospel. The question is “Why?”

Professor Reich convincingly argues that this attempt at pitting public v. private sector workers masks what is really happening in our country:

  • “[C]orporate executive pay … continues to rise as corporate profits soar”
  • Wall Street bonuses are higher than before taxpayers bailed out the financial industry
  • Hedge-fund and private-equity managers continue to pay 15% federal tax, while the rest of us pay close to or more than double that
  • “[T]he top 1 percent is now raking in a bigger share of national income than at any time since 1928, and paying at a lower tax rate.”

As Reich summarizes the situation:

Don’t get me wrong. When times are tough, public employees should have to make the same sacrifices as everyone else. And they are right now. Pay has been frozen for federal workers, and for many state workers across the country as well.

But isn’t it curious that when it comes to sacrifice, Republicans don’t include the richest people in America? To the contrary, they insist the rich should sacrifice even less, enjoying even larger tax cuts that expand public-sector deficits. That means fewer public services, and even more pressure on the wages and benefits of public employees.

It’s only average workers – both in the public and the private sectors – who are being called upon to sacrifice.

The Big Lie is a strategy that has been employed by some political figures over the last century to win over public opinion in an attempt at seizing power. The Nazis in Germany and Joe McCarthy here in the 1950’s are prime examples. As someone once said, “Never let the truth get in the way of a good story.” We need to make the current crop of political leaders accountable for what they say.

Alan H. Shapiro

Sandulli Grace, P.C.

Attorney Joseph Sandulli To Again Teach At The Labor Guild

As he has for many years, Atty. Sandulli will be teaching a course at the Labor Guild’s School of Labor Relations. Classes run in two sessions on Monday evenings from September 13 through November 15, from 7:00 – 9:30 p.m. in Weymouth.

Joe’s class, entitled “Labor Strategies,” focuses on how to coordinate legal action, political action, public relations and negotiations to deal effectively on the range of labor-management issues in both public and private sectors.  The class will also feature guest speakers who are actively involved in these respective endeavors.

The Labor Guild is a longstanding program of the Boston Archdiocese to educate “men and women members of unions, management, and others who are interested in furthering sound labor-management relations.” In addition to Atty. Sandulli’s course, there are a number of other valuable offerings in the upcoming fall period.

Joseph Sandulli was the 2008 winner of the prestigious Cushing-Gavin Award for his nearly four decades of outstanding service on behalf of labor unions to the labor-management community.

For more information, please go to the Guild’s web site or call 781-340-7887.

Sandulli Grace Attorney Alan Shapiro To Speak At American Arbitration Association Conference

Attorney Alan Shapiro will be speaking on June 2, 2010, at a conference at the Boston office of the American Arbitration Association on the subject of Brief Writing and Closing Arguments.  The program flyer is available here.

Attorney Shapiro, whose clients include  the Massachusetts Coalition of Police and the Boston Police Patrolmen’s Association, has been representing labor unions in arbitration hearings, for more than 25 years.

Atty. Shapiro said, “I am honored to be invited by the AAA to speak at their program.  I hope I can help other practitioners by sharing what I have learned from practicing in this field for more than a quarter of a decade.”

Sandulli Grace Partner Amy Davidson Appears On WGBH To Challenge Legislation To Let Municipalities Unilaterally Change Their Employee’s Health Benefits

On Thursday, May 27, Sandulli Grace attorney Amy Laura Davidson appeared on the WGBH show “Greater Boston” to discuss municipal health insurance and collective bargaining with Geoff Beckwith of the Mass Municipal Association. Atty. Davidson is a recognized expert in dealing with health insurance issues on behalf of her clients, including the Massachusetts Coalition of Police (MCOP) and the Boston Police Patrolmen’s Association.

On the show, she vigorously defended municipal unions against the blanket accusation that they are deaf to the pleas of cities and towns that they are being overwhelmed by health insurance costs. The shibboleth of the “$5 Co-Pay” was held out as the norm in the public sector. Atty. Davidson spoke the truth: unions in dozens of municipalities have made significant concessions in health care negotiations, including significant increases in co-pays and deductibles. Contrary to public perception fed by ill-informed media, the $5 co-pay is an “anomaly,” Atty. Davidson explained. She argued, forcefully but intelligently, against the MMA bill currently pending at the Legislature which would eliminate bargaining over health plan design and allow municipalities to unilaterally change health benefits. As Ms. Davidson eloquently stated: “Health insurance essentially is wages.” If employers can just unilaterally make employees pay more to go to a doctor or hospital without having to negotiate with their unions, we might as well just let them reduce employees’ wages without bargaining.

Those who watch the show will note one bogus argument advanced by Mr. Beckwith: that there is something unique about the requirement that cities and towns in Massachusetts bargain with unions over the structure of the health insurance plans that cover their employees. While it is true that Massachusetts state employees and federal employees do not have the right to negotiate over their health insurance plans, those workers make up a very small percentage of the total workforce. In fact, the more than 7,000,000 workers in private sector unions throughout the country have virtually exactly the same collective bargaining rights as Massachusetts municipal employees: to bargain over the design of their health insurance plans.

Here’s a link to the show:

http://www.wgbh.org/greater_boston/index.cfm

GOOD NEWS AND BAD NEWS: NO BANDING BUT MAYBE NO CIVIL SERVICE COMMISSION

Like one of those standard joke setups, I have good news and bad news.

First the good news: Human Resources Division (HRD) has dropped banding, at least for now. The Civil Service Commission just issued an email with the announcement of a public hearing on February 25 to review proposed amendments to HRD rules. The rules no longer contain a provision for banding of examination scores.

In reviewing the proposed changes, I actually find some of them improvements. For example, they clarify how to deal with the period when old lists are expiring and being replaced by new ones. If HRD does not receive the certification (“the list”) back from the employer at least three weeks before a list expires, it will not, assuming these rules go through, issue a certification. This creation of a “bright line” separating the two lists removes some of the politicking that has invariably influenced this process.

Now for the bad news. On January 27, Governor Patrick filed legislation that would go a long way towards gutting civil service. The Commission now has, as it has had for decades (at least as long as I’ve been practicing, which goes back to at least the Hoover Administration), five Commissioners: a chairman and four others. Only three of them now receive full salaries, with Commissioner Dan Henderson’s being the lowest of those, at about $77,000.

The Governor has proposed to essentially eliminate Commissioner Henderson, by converting his position from one of a relatively modest salary to one with no salary. Since Henderson presumably does not have a trust fund to fall back on, this would necessitate his leaving this position. Ironically, this change would come following significant criticism from the management labor community (including Boston Police Commissioner Davis and the Mass. Municipal Association) protesting Commissioner Henderson’s repeated insistence on issuing decisions in accordance with the law and not as a rubber-stamp for public employers.

Also in the bill, Commissioner Jack Taylor, who is already reduced to a part-time schedule, would see his salary go from about $35,000 to zero. Coincidentally, Taylor was the only other commissioner, besides Henderson, to vote against allowing banding to go through about a year ago. The other three commissioners, including Chairman Bowman, saw no problem with it. We had to then go to Superior Court to find someone who would actually read the law and force HRD to live with its regulations requiring scores to be set out in “whole numbers.”

What is particularly nefarious about the legislation is that, by the way it was filed, it automatically goes into effect on March 27, unless one branch of the Legislature votes it down before then. A copy of the bill can be found here.

If you still believe that having an independent Civil Service Commission has any value, I cannot urge you strongly enough to contact your union, your legislators, and anyone else who will listen to try to stop this legislation from becoming law.

Had this been done by the Romney Administration it would not have been surprising, but coming from the first Democratic governor in over 15 years, it is shameful.

Alan Shapiro

Appeals Court Upholds Duty Of Fair Representation

Following the decision of the Massachusetts Appeals Court in United Steelworkers of America v. Commonwealth Employment Relations Board [http://socialaw.com/slip.htm?cid=19281&sid=119], union officials have been put on notice that what they don’t know can hurt their union.

 When the City of Springfield terminated a civil service public works employee, he had the option of either appealing to the Civil Service Commission or going to arbitration through his collective bargaining agreement (CBA).  This option was spelled out in the CBA and is also part of the collective bargaining law, Chapter 150E.

The union representative explained the option to the employee and advised him that the union would handle his arbitration case but that he would need to hire his own lawyer if he wanted to go to the Civil Service Commission.  The employee nevertheless expressed a preference for challenging his discharge through civil service, rather than arbitration.  What the union representative did not know or fully understand was that civil service appeals must be filed within ten (10) business days of the termination.

 Although the union representative went ahead and prepared to file the employee’s case for arbitration, when the employee again stated he preferred the civil service route, the representative withdrew the case and did not file for arbitration.  He did not check into nor inform the employee about the 10-day filing period, which had already passed a month before.  Both the Division of Labor Relations, and now the Appeals Court have concluded that the union’s actions here constituted “inexcusable neglect” in violation of the duty of fair representation.

 While this case does extend the degree to which public sector unions in Massachusetts are held liable for knowledge of laws outside their contract, it must serve as a warning to all unions, their staff, and even elected local union leaders.  When unions collect dues from and undertake to represent employees, they are going to be required to have some degree of knowledge about the laws covering their members.

The decision in this case points out that the union representative had access to union attorneys but did not utilize that resource.  For those of you in a position of union leadership, the message is clear: If you don’t know, ask!

HRD Gives Up On Banding, For Now

In case anyone hasn’t seen it, the following is now posted on the HRD web site:

2008 Police & Fire Promotional Exam Info Update

Due to the recent preliminary injunction issued by the Suffolk Superior Court in regard to the police promotional exams, the Human Resources Division (HRD) will not band scores for the October, 2008 promotional exams or the November, 2008 fire promotional exams. HRD is planning on moving forward with rulemaking for score banding in the future.

HRD has finally agreed to do what we asked them to do in the first place: not change the scoring system without changing their rules.

As always, we will keep you updated when we get more information.

Alan Shapiro

HRD Appears To Have Given Up On Banding

Based on the attached memo sent to the police chiefs by HRD, it appears the agency has finally relented and will establish promotional lists from the October 2008 exam in the traditional “whole number” formula.

As the memo goes on to state, HRD will attempt through rulemaking to change the current rule requiring scores in whole numbers.  If the rule is changed, they would then, presumably, band results of the next promotional examinations.

 I know that within seconds of this entry’s going out, we will be asked these questions:  (1) “Will you challenge banding in rulemaking?” and (2) “What is the likelihood of winning such a challenge?”  The answer to Question 1 is simple: we will do what our clients ask us to do.  To stop banding of this exam, our clients Mass. Coalition of Police and Boston Police Patrolmen’s Association jointly retained us.  Whether to contest the issue in rulemaking will be their decision.  As for the likelihood of a successful legal challenge to the rulemaking, I will say only that there are arguments that could be raised on both sides of the issue.

We (my law partner Bryan Decker and myself) again want to thank all of you for your support, but most especially our clients, MCOP and BPPA, without whom HRD would have been able to run roughshod over its own rules and the merit-based system Civil Service is supposed to be.

Download Memo

MCOP and BPPA File For Injunction to Stop Banding

Today, March 27, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, jointly represented by Alan Shapiro and Bryan Decker of Sandulli Grace, filed a lawsuit in Suffolk Superior Court to enjoin the Human Resources Division from promoting with banded lists.

The Court set a hearing on the injunction for Tuesday, March 31, at 2:00 p.m. in Suffolk Superior Courthouse, Room 916.

The arguments are essentially the same ones made, and rejected, before the Civil Service Commission.  HRD has a rule saying it establishes lists with “whole numbers.”  We all know that means the scores are supposed to be in a 1-100 format.  If they want to start banding, they have to change their rules.  The legal way to do that is to follow the procedures in the Civil Service law for rule-making. 

We want to thank all of you who have shown your support over these past weeks for our efforts to preserve a merit-based, civil service promotional system for police officers (and, by extension, others) in Massachusetts.

Read the complaint and the memorandum 

Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.