All posts by John Becker

SJC Rules Workers’ Comp Benefits are Not Compensation for Services Rendered

The Massachusetts Supreme Judicial Court issued a decision today (May 16th, 2017) that will further protect workers who are injured on the job and ensure that they continue receiving their workers’ compensation benefits even if they are suspended. The SJC overturned the decision of the Superior Court and reinstated the original ruling from the Department of Industrial Accidents, granting a former Boston EMS worker his workers’ compensation benefits. The case was handled by John Becker, Of Counsel to Sandulli Grace, he received assistance from former Sandulli Grace Attorney Jamie Goodwin who argued the case below.

The plaintiff in the case, Brian Benoit, had been an EMT and paramedic with Boston EMS for almost 20 years when he injured his ankle while transporting a patient. Unable to work, he filed for and received workers’ compensation benefits for almost a year under the Massachusetts workers’ Compensation Statute. Mass. G. L. c. 152. Boston EMS halted his workers’ comp payments in August of 2012, arguing that injury was not accidental. Benoit seeking to have his benefits reinstated, filed a complaint at the DIA in October of 2012. Shortly thereafter Benoit was indicted in an unrelated matter, and Boston EMS promptly placed him on suspension in accordance with G. L. c. 268A § 25. Under G. L. c. 268A § 25 public employees are barred from receiving compensation while on suspension. In addition to their argument that the injury was not accidental, Boston EMS also argued that Benoit’s workers’ compensation benefits constituted compensation for services and were therefore not obligated to pay them under the statute. The DIA ruled that Boston EMS had impermissibly denied Benoit his rightful workers’ comp benefits and ordered that they be reinstated. Boston EMS refused to comply with the order and appealed the decision in Superior Court, Benoit also filed an action in Superior Court to inforce the decision of the DIA.

The Superior Court determined workers’ compensation payments constituted compensation and granted the Motion to Dismiss brought by Boston EMS, Benoit appealed that decision. After pleading guilty and subsequently resigning from Boston EMS, Benoit refiled an action in Superior Court alleging that since he was no longer suspended, the suspension statute should no longer apply. The Superior Court disagreed with him once again, stating that since he was suspended at the time of his resignation he was still considered to be suspended. Benoit consolidated both of his appeals and the SJC removed the case from the Appellate court. While the SJC denied Benoit’s first two claims, they agreed with him that the workers’ Compensation Statute was not proscribed by the suspension statute.

workers’ Compensation in Massachusetts was originally enacted in 1911, and the statutory scheme protects workers who are injured while on the job. It allows the injured party to remain financially stable while protecting the employer from prohibitively costly settlements and judgments. When an employee pursues a workers’ compensation claim, they forfeit their right to sue their employer for damages. The no-fault system creates certainty for all parties, the injured employee knows the benefits they will receive and the employer knows what they are liable for. The act also mandates that every employer obtain workers’ compensation insurance from an insurer who will make the payments or obtain licensing as a self-insurer. If the employer chooses a third-party insurer, that insurer will be the one to pay out the workers’ compensation benefits. However, if the employer chooses to be self-insured, as Boston EMS did, they will be liable for all workers compensation payments. Employees can also opt out of the system in order to retain their right to sue, but they must do so at their time of hire. An injured employee will receive medical costs and weekly payments based on salary for a period of time depending on the nature and seriousness of their injury. The SJC decided this case on whether those payments consisted of compensation for services rendered.

While the court acknowledged that compensation is usually interpreted broadly, they recognized the limitations in G. L. c. 268A § 1(a) which defines compensation as any money, thing of value or benefit conferred or given to a person in return for services rendered. The restriction of ‘in return for services rendered’ became the deciding factor in this case. The SJC determined that workers’ compensation benefits are not conferred upon an injured employee for services rendered but because the employee waives the right to sue in order to guarantee benefits when he or she is injured. They differentiated the workers’ compensation act from other forms of compensation such as sick pay and unemployment insurance. The SJC also differentiated workers compensation benefits as they were outside the purview of the employer-employee relationship and instead based on the relationship between the employee and the insurer. The court specifically discussed the differences between workers’ compensation benefits and unemployment benefits. Unlike workers’ comp, the employee is not required to give up either their rights or money to receive unemployment. Unemployment benefits serve as a recognition of the services the employee performed while working and are directly tied to the employer who fund the unemployment insurance mechanism.

This ruling provides substantial protections for workers who are hurt on the job. Employer’s and insurance companies will be barred from denying payments due to a suspension stemming from misconduct. Employees will have the peace of mind that even if they are suspended while they are out of work they are still entitled to receive their workers’ compensation benefits.

Read The Decision

MassCOP Scores Another Victory: Superior Court Orders Town of Middleton to Reinstate Wrongfully-Terminated Police Officer

Town Cannot Use Lack of License to Carry Firearms as Excuse to Avoid Complying with Arbitrator’s Award

An Essex Superior Court judge ruled late last month that the Town of Middleton, Massachusetts must reinstate a wrongfully-terminated police officer, even though the Middleton Police Chief has suspended the officer’s license to carry a firearm (“LTC”). The Superior Court judge’s ruling recognizes that allowing a police chief’s revocation or suspension of an LTC to prevent reinstatement after a lawful order of an arbitrator or other tribunal would effectively render the collectively-bargained protections against unjust discipline null and void. (Click here for the text of the Superior Court ruling.)

The case involves Brian Kelley, a veteran Middleton police officer who became involved in a domestic dispute in Maine on May 1 2013 that resulted in criminal charges against him. While the criminal case was pending the Middleton Police Chief exercised his discretion under G.L. c. 140, § 131 to suspend Kelley’s license to carry a firearm. Because the collective bargaining agreement between the Town of Middleton and the Middleton Police Union made the possession of an LTC a condition of employment, Kelley was unable to work and his employment was eventually terminated after the Town failed to reappoint him to his position. Subsequently, all the charges against Kelley were dismissed and he and his Union, the Middleton Police Benevolent Association, MassCOP Local 292, asked for him to be returned to his position. But the Chief and the Town refused to take Kelley back.

The Union filed a grievance on Kelley’s behalf under the CBA, which eventually reached a neutral arbitrator. MassCOP assigned Attorney Joseph Sandulli of Sandulli Grace, P.C. to represent the Union in the matter. Arbitrator Mary Jean Tufano ruled on November 20, 2014 that the Town did not have just cause to discharge Kelley. As a remedy, the arbitrator ordered the Town to reinstate Kelley with full back pay and benefits. In her decision, Arbitrator Tufano explained that while she had no authority to give Kelley back his LTC, she had the power and authority to make him whole for the Town’s violation of the CBA and that reinstatement was an essential element of the make whole remedy. She interpreted the entire CBA – including the remedial authority granted to her by the parties – to require this result. She noted that in light of the Chief’s unique discretion regarding LTCs, literal enforcement of the “LTC as condition of employment” language would mean that the Police Chief could effectively terminate the employment of any employee without just cause merely by suspending or revoking his or her LTC. She also noted that the reason given by the Police Chief for suspending the LTC – the pending criminal charges – no longer existed.

The Town of Middleton refused to obey the decision of the arbitration and instead filed a petition to vacate the arbitration award pursuant to G.L. c. 150C. MassCOP assigned Attorney John M. Becker, of Sandulli Grace, P.C. to represent the Union on the appeal. The case came before Judge Peter Lauriat in Essex Superior Court, who after briefs and oral argument, on February 28, 2017 denied the Town’s petition to vacate and instead confirmed the award. In ruling in the Union’s favor, Lauriat rejected the Town’s arguments that reinstating Officer Kelley violated public policy and would require the Town to violate the law. Instead of complying with the arbitration award, the Town on March 8, 2017 filed a motion asking the Superior Court to reconsider its decision, which is pending at this time.

Massachusetts Overhauls Public Records Law To Increase Access And Enforcement, Reduce Delays And Fees.

Significant changes to the state’s public records laws went into effect on January 1, 2017. The changes, which were passed by the Legislature in June 2016, clarify and elaborate upon the rights and obligations of the public entities in control of public records and the individuals and organizations seeking access to them. In many ways, the laws strengthen the power of citizens to gain access to public records in part by increasing the punishments for public entities that ignore public records requests or unreasonably delay in responding to them. In response to complaints that public entities have been gouging the public in assessing unreasonably high fees for producing documents, the new law sets strict limits on fees and requires the waiver of fees where the public entity did not follow the time limits or otherwise violated the law. The law moves the enforcement provisions from the original public records provision, G.L. c. 66, § 10, into a much expanded new section, G.L. c. 66, § 10A. Section 10A sets out in detail the legal standards and procedures for members of the public who have not been given the public records they requested, or only obtained the documents after long delays. Section 10A strengthens the role of the Supervisor of Public Records (who is located in the Secretary of State’s office) and the Attorney General in enforcing the law. It also permits the award of attorney’s fees and punitive damages in certain cases. The amended law also requires the holder of public records to communicate with the requester in writing to explain claims of exemption, the amount of fees or the reason for any delay in providing the documents.

The statute requires each public entity to assign a public records access officer who will keep track of all requests for records and oversee the responses to those requests as well as compile a detailed annual report for the Supervisor of Public Records. The statute states that electronic delivery of documents is preferred where feasible. It allows the public entity to withhold documents where: (1) the request is one of many by the same requester and is designed only to harass and intimidate and has no public purpose (a determination ultimately made by the Supervisor of Public Records) or (2) the requester has failed to pay the fees for prior requested documents. The statute also distinguishes between public records requests made for purposes of informing the public and those made with a commmercial or profit-making reason. While most of the amendments strengthen access to public records, there are also a few additions to the list of exempt documents, including those containing cyber security information and also the personal e-mail addresses of certain public employees.

Specific changes include the following:

  1. New exemption: records relating to cyber security
  2. New exemption: personal e-mail addresses of employees of the judicial branch and unelected employees of the Commonwealth, its agencies or its political subdivisions, or their family members.
  3. Establishes a Public Records Assistance Fund, funded by punitive damages awards and other sources, administered by the office of information technology, to provide grants to municipalities to “foster best practices for increasing access to public records and facilitating compliance” with the law.
  4. Requires the Supervisor of Records to create and distribute forms, guidelines and reference materials to aid the public in getting access to public records.
  5. Requires state agencies and muncipalities to designate a records access officer or officers, who are responsible for assisting the public in obtaining documents.
  6. Establishes that providing the requested documents by electronic means is preferred, unless the record is not available in electronic form or the requester does not have to ability to receive the documents in that form.
  7. Any public records request must reasonably describe the public record sought.
  8. The public entity must respond within 10 business days with either the documents requested or a detailed explanation for the delay or exemption; if there is no response within 10 days, then the public entity cannot charge a fee for the documents.
  9. Limited extensions of time of five additional days for the Commonwealth and 15 additional days for municipalities are permitted. For good cause, the Supervisor of Public Records may grant an additional, one-time-only 20-day extension to the Commonwealth or 30 business days for a municipality. The requester can agree to an extension of any length.
  10. The public entity must provide any non-exempt documents that are within its possession, custody or control.
  11. If a fee is permitted and the public entity requests a reasonable fee, the public entity can refuse to provide the documents until it receives the fee.
  12. In a major change from the earlier fee provisions, the Commonwealth and its agencies cannot charge a fee for the first four hours of work in responding to a request. For muncipalities with a population of 20,000 or more, the free period is two hours. Smaller municipalities may charge for all the time required to process the request. After the applicable free period, the public entity can charge up to $25 an hour for time spent on the request (more if approved by the Supervisor of Public Records after a detailed showing of need). The charge for black and white copies is limited to five cents per page.
  13. Enforcement: Whereas under the prior law, the requester could only ask the Supervisor of Public Records to determine whether the requested record was public, the statute now gives the Supervisor the power to make “a determination whether a violation [of the public records law] has occurred.”
  14. If the Supervisor of Public Records finds a violation of the law, it may notify the Attorney General, who may take any steps to ensure compliance, including filing a civil action.
  15. No matter what steps the Supervisor of Public Records or Attorney General do or do not take, the requester has the right to file a civil action to enforce the law in the Superior Court. The enforcement provision gives the court the power to issue injunctive relief and specifically incorporates the presumption that every record sought is public, which places the burden on the public entity to prove that it has complied with the law.
  16. If the requester files a civil action and subsequently prevails (and prevailing includes obtain the requested documents, even without a court order), there is a presumption in favor of an award of attorney’s fees and costs.
  17. To overcome the presumption of attorney’s fees, the agency or municipality must prove it comes within a specific exemption (i.e., the Supervisor of Public Records found there was no violation of the law; the entity reasonably relied on a published court or attorney general opinion; the intent of the request was to harass or intimidate, or the request was for commercial, not public purposes).
  18. If the Superior Court awards attorney’s fees, then it must order the public entity to waive any fees. If the Superior Court does not award attorney’s fees, it still may order the entity to waive fees.
  19. If the requester obtains a court judgment in his or her favor and has shown that the public entity did not act in good faith, then the court may assess punitive damages against the Commonwealth or municipality of between $1000 and $5000, with the money to be placed in the Public Records Assistance Fund.

Notes for employees and unions:

  1. Because of the fee provisions of the public records law, we advise our public employee union clients to request records that are relevant and necessary to their role as exclusive bargaining agents under G.L. c. 150E, § 6. The obligation to provide such information is an important aspect of a public employer’s obligation to bargain in good faith with its employee unions. If the parties have a past practice of providing documents without charge, then charging a fee for documents requested pursuant to Chapter 150E would be a unilateral change in working conditions and a basis for filing an unfair labor practice charge. A public records request would be necessary when seeking records in the custody of public entities other than the public employer with whom the union has a bargaining relationship.
  2. Personnel records are exempt from disclosure as public records, but an individual employee has a right to see his or her personnel record under G.L. c. 149, § 52C. Employee personnel records and internal investigation records may also be available to unions pursuant to G.L. c. 150E, § 6, although redaction may be required in some cases.
  3. Criminal defendants may have a constitutional right to certain portions of otherwise exempt records, such as personnel files of arresting police officers and internal affairs investigations of those officers, under Commonwealth v. Wanis, 426 Mass. 639 (1998), upon a specific showing that the records are likely to contain exculpatory information.
  4. The exemptions to the Public Records Law only determine what documents public entities are permitted to withhold from public records requesters. It arguably does not prohibit public entities from disclosing exempt documents. Other laws and statutes, including laws creating certain privileges and the law prohibiting invasion of privacy, may be invoked to prevent a public entity from disclosing a document that is not a public record within the meaning of the law.

MassCOP Supports Police Officers Serving in National Guard after Town of Rockport Refuses to Accept Arbitration Award

You may recall my August 8, 2016 blog post announcing an arbitrator’s award that granted back benefits to two full-time Rockport police officers who also serve in the National Guard. The Town had a practice of paying the officers their full salaries when they went to trainings on Cape Cod for several years when the interim police chief – on a complete misreading of the relevant statutes – concluded it was illegal to do this and began deducting their National Guard stipends from their pay. The local police union, supported by the Massachusetts Coalition of Police (MassCOP), fought the Town’s move; MassCOP assigned me (John M. Becker of Sandulli Grace, P.C.) to provide legal services to the officers and their local union.

The arbitrator ruled against the Town and ordered the officers to be paid as before. The decision even received some media attention – Michele McPhee discussed the case on her radio program. For a short time, it seemed as if Rockport was back on the right track.

According to the collective bargaining agreement between the Town and the Union, arbitrators awards are “final and binding”, but less than 30 days after the arbitrator’s award, the Town filed a petition in the state Superior Court asking a judge to overturn the decision because, it argued, the arbitrator had “exceeded his authority” and the award required the Town to violate the law.

Once again, MassCOP authorized Sandulli Grace to represent the local union – this time at the Superior Court. We recently filed a response to the Town’s appeal on behalf of the Rockport police union arguing that the appeal was frivolous and has no legal basis. We asked the Court to not only confirm the award but also require the Town to pay the Union’s legal fees in the frivolous appeal.

In this time of uncertainty and change, when so many misguided people here and abroad seek to solve problems through hatred and violence, we have to rely on the men and women who have chosen to serve in America’s volunteer military more than ever. The police officers in this case are full-time members of the Rockport police force and they have made significant sacrifices to serve in the National Guard. The Town of Rockport’s former practice of not deducting the National Guard stipends from their pay for attending mandatory trainings was the right thing to do. When the Town decided to cut officers’ pay for serving in the military, that was the wrong thing to do. Fortunately, the officers were part of a Union that had a collective bargaining agreement with the Town. That agreement gave them the right to challenge the Town’s change in practice before a neutral third-party arbitrator, who quickly realized that the Town’s position was wrong and no law prevented it from continuing to do the right thing.

It should have ended there. The Town should have accepted the “final and binding” ruling of the arbitrator and moved on. What possessed the Town and its labor counsel (from KP Law, formerly Kopelman & Paige, in Boston) to continue to expend time and money on depriving these hard-working officers of income? Is it simply about saving money? Because the amount they are saving by deducting the National Guard stipends is only a miniscule fraction of the Police Department budget. Is it a case of arrogance – they’re so sure they’re right that they won’t accept anyone telling them otherwise? I don’t have the answers. All I know is that these officers deserve better – their local union knows it, MassCOP knows it, and we at Sandulli Grace know it – and we will continue to fight on their behalf for as long as necessary.

BOSTON POLICE PATROLMEN’S ASSOCIATION WINS BIG IN APPEALS COURT – SIX TERMINATED POLICE OFFICERS REINSTATED

COURT AFFIRMS CIVIL SERVICE COMMISSION FINDING THAT PSYCHEMEDICS’ HAIR DRUG TESTING USES BAD SCIENCE

The Massachusetts Appeals Court issued a decision on October 7, 2016 regarding the civil service appeals of 10 Boston police officers who were terminated solely because their hair tested positive for illegal drugs. All 10 officers in the appeal denied that they had used illegal drugs. In Thompson v. Civil Service Commission, No. 15-P-330 (Mass. App. Ct.), the Appeals Court affirmed the decision of the Massachusetts Civil Service Commission ordering six of the officers to be reinstated. After 18 days of hearing, the Commission ruled on February 28, 2013 that the hair testing protocol used by Psychemedics, Inc. was based on bad science and the Boston Police Department could not rely on a positive drug test alone to terminate a police officer. All 10 officers are members of the Boston Police Patrolmen’s Association (BPPA), which provided legal and financial support for these appeals. The BPPA represents the 1500 patrol officers of the Boston Police Department in collective bargaining over matters of wages, hours and working conditions.

Based on its initial finding that the hair test result alone was insufficient to terminate an officer for violating the Department’s rule against using illegal drugs, the Commission went on to consider other factors, such as the credibility of the officers’ denials that they used drugs, to determine whether the Department had just cause to terminate. Using this additional information, the Commission found that the Department had just cause to terminate four of the 10 officers. The Commission ordered the remaining six officers reinstated, but without full back pay. Representing the officers at the Commission at the request of the BPPA were attorneys Alan Shapiro and Jennifer Rubin, both partners at Sandulli Grace, P.C.

The City of Boston and Boston Police Department appealed the Commission’s decision on the six reinstatements to the Superior Court. The four terminated officers also appealed, and the six reinstated officers appealed the portion of the decision denying them full back pay. The Superior Court issued a decision on October 6, 2014 affirming the Commission’s decision in large part, but agreeing with the six reinstated officers that they were entitled to full back pay.

In the next round, the City and Department appealed to the Appeals Court on the issue of the six reinstatements, and the four terminated officers also appealed. The Appeals Court’s October 7, 2016 decision affirmed the Commission’s decision, but adopted the Superior Court’s ruling that the six reinstated officers were entitled to full back pay. Sandulli Grace attorneys Alan Shapiro and John M. Becker, at the request of the BPPA, represented the 10 officers in the appellate proceedings.

Either or both parties may file a petition for further appellate review to the Supreme Judicial Court within 14 days. Unlike the Appeals Court, which must review all the appeals filed with it, the SJC may select which cases to review. In practice, the SJC rejects approximately 9 out of every 10 applications for further appellate review it receives in civil cases.

The implications of this case are significant for any Union or Employer where hair testing, particularly hair testing by Psychemedics, is conducted. The Civil Service Commission was unequivocal in its conclusion that there are too many unanswered questions and questionable scientific assumptions in Psychemedics’ current hair testing protocol to allow an employer to fire an employee covered by just cause (either in a collective bargaining agreement or statute) on the basis of a hair test result alone.

Masscop Members In Rockport Win Back National Guard Pay Benefit – Arbitrator Rejects Town’s Argument That Payments Are Unlawful.

Arbitrator Richard Boulanger handed a significant victory to Local 154 (Rockport) of the Massachusetts Coalition of Police, AFL-CIO (“Union”) on August 3, 2016 when he sustained a grievance over pay cuts by the Town of Rockport (“Town”) for officers attending National Guard training. In doing so, Arbitrator Boulanger rejected the Town’s argument that it could not legally pay officers their full pay during National Guard training.

Two Rockport police officers who served in the National Guard and had been receiving full pay while attending mandatory military training were informed in January 2015 that the Town would now be deducting their National Guard military allowances from their pay, because, the Town claimed, to do otherwise would be illegal. The Union filed a grievance over the pay cut, which proceeded to a hearing before Arbitrator Boulanger. The Massachusetts Coalition of Police provided legal support by assigning Attorney John M. Becker, of Sandulli Grace, P.C., to represent Local 154 and the two grievants.

In his decision [which may be found HERE], Arbitrator Boulanger recognized that the Town had established a past practice of paying employees who were members of the National Guard their full pay while on leave attending mandatory training, without deducting the military allowance the employees received. The practice was encompassed by the strong maintenance of benefits provision in the collective bargaining agreement (“CBA”) between the Town and the Union, which protects any job benefit that (1) existed in the past and (2) has not been contractually modified, even if it is not mentioned in the CBA.

Boulanger rejected the Town’s argument that paying officers without deducting military allowances violated the law. Boulanger reviewed four statutes relating to military pay. First, the federal military leave law, USERRA, does not contain any provisions regarding pay during National Guard training, and so was irrelevant. Of three state statutes with some relevancy, none actually applied to this case, Arbitrator Boulanger concluded. G.L. c. 149, § 52a, which had previously provided for 17 days of military training leave to members of the reserves, which could be “paid or unpaid at the Town’s discretion”, was repealed in 2014 and was no longer good law. Chapter 137 of the Acts of 2003, a local option law that the Town had adopted, allows for paying regular base salary without loss of leave or seniority, but minus any military pay or allowance, for officers in “active service.” But as Arbitrator Boulanger pointed out, the statute is inapplicable because the officers in this case were not in “active service” and National Guard training is specifically excluded from the scope of the law. The Town had not adopted G.L. c. 33, § 59, a local option law, but Arbitrator Boulanger found that statute to be the most relevant. If adopted, the law (as amended in 2014) requires municipalities to give employees in the armed forces full pay without deducting for military stipends or pay during training, for up to 34 days in a state fiscal year or 17 days in a federal fiscal year, without loss of seniority or accrued leave. Boulanger pointed out that, although the Town had not adopted G.L. c. 33, § 59, it had adopted Chapter 137 of the Acts of 2003, which provides that it “shall not limit or reduce a person’s entitlement to benefits under [G.L. c. 33, § 59].”

Ultimately, Arbitrator Boulanger concluded that, while no statute specifically authorized the Town to pay full pay to employees during National Guard training, no statute prohibited the payments either, so the past practice of the Town – which was fully consistent with the local option law, G.L. c. 33, § 59 – was lawful and enforceable. For these reasons, the Arbitrator sustained the grievance and ordered the Town of Rockport to pay the police officers full pay during military training without deducting military allowances going forward and pay the officer back pay to make them whole from the time their pay was cut in January 2015.

The Best Labor Union Movies Of All Time

I’m a big fan of “Best of” lists, so it was only a matter of time until I compiled a list of the best movies related to unions and the workplace. I scoured the Internet for lists of films related to unions or workers and made sure to include my personal favorites. Here, in chronological order, are the results:

 How Green Was My Valley (US, 1941)

John Ford’s epic story of a family of Welsh coal miners (with Walter Pidgeon and Maureen O’Hara playing the parents) contains at its heart a debate about unionizing. While Ford keeps the focus on the family dynamics and the issue of worker safety, he weaves throughout the film the various pro- and anti-union arguments, leaving the final word for the local minister: “First, have your union. You need it. Alone you are weak. Together you are strong.”

Salt of the Earth (US, 1954)

Directed by Herbert Biberman, Salt of the Earth is famous in film history because nearly everyone involved in making the movie was blacklisted by Hollywood as part of the Red Scare of the 1950s, also known as the McCarthy Era for Wisconsin Senator Joseph McCarthy. The film tells the story of a 1951 strike in New Mexico against a zinc mining company. The story is unusual for the time in that most of the workers are Mexican immigrants; in addition, a major aspect of the story is the struggle between the male workers and their wives. The striking male workers want their wives to stay at home, cook and take care of the children. The women want to help the men win the strike. Guess who wins that argument? When the mine owner obtains an injunction against the striking workers, the women step up and maintain the picket lines.

On the Waterfront (US, 1954)

For many people of a certain age, Elia Kazan’s movie of conflict on the docks between a brutal union leader (Johnny Friendly, played by Lee J. Cobb) and a disillusioned dockworker (Marlon Brando) was their first introduction to the idea of a union and it was not a positive image. Kazan, who had just testified before the Un-American Activities Committee, where he named names of possible Communists, was clearly trying to make a point about the heroism of standing up for what you believe against overwhelming odds. But union workers know that the power of a Johnny Friendly pales in comparison to the power of the people that run the companies that ultimately pay the workers. Perhaps it would have helped to know that Johnny Friendly was based on an actual ILA leader who severely disciplined by the American Federation of Labor for his violent tactics.

The Pajama Game (US, 1957)

At first glance, The Pajama Game is just another Hollywood musical based, in this case, on the play of the same name and featuring the song “Steam Heat.” But upon closer examination, The Pajama Game turns out to be a story about a labor-management struggle. Doris Day plays the union steward in a pajama-making factory who has been pushing for a raise. John Raitt is a superintendent. These representatives of labor and management begin a love affair, but their work roles drive them apart, and after Day damages some machinery during a slowdown, Superintendent Raitt fires her. But then (through the magic of movies), Raitt discovers nefarious doings in management and manages to bring Doris back (to work and to him), get everyone the raise and they all live happily after. OK, it’s not Schindler’s List, but there is a message beneath the singing and dancing. Co-directed by George Abbott (also a co-writer) and Stanley Donen.

I’m All Right, Jack (UK, 1959)

John Boulting directed this satirical British film about the plot of a sinister company owner to drive the price of his product up by inciting the workers to strike, and then having the business transferred to a rival company, which he also secretly owns. The whole thing is played for broad laughs, most of them generated by Peter Sellers as the union boss with Bolshevik sympathies and a Hitler mustache. A cynical look at union leaders and management both, in the end it is clear who has the real power.

The Molly Maguires (US, 1970)

Martin Ritt directed this tale of coal miners in Northeastern Pennsylvania in the 1870s, which is based on a true story. The Molly Maguires, led by Jack Kehoe (Sean Connery), is a sort of proto-union that is at war with the mine owners in pursuit of better pay and working conditions. The differences between the Molly Maguires and a true union are significant: Connery’s group is a secret organization, and they are comfortable with using violence to achieve their ends. A Pinkerton Detective (Richard Harris) infiltrates the group and attempts to uncover its secrets, with tragic results. Ritt would revisit the union theme in 1979 with Norma Rae.

Harlan County, USA (US, 1976)

Director Barbara Kopple won an Oscar for Best Documentary for her on-the-spot reporting of a 1972 Kentucky miners’ strike in Harlan County, USA. Confrontations between striking workers and hired strikebreakers quickly became violent, and even Kopple and her cameraman were beaten. The film reminds audiences that, even in the 1970s, management tactics such as these were commonplace and the dream of a workplace where management and labor lived in perfect harmony was still far off.

F.I.S.T. (US, 1978) / Hoffa (US, 1992)

Hoffa is a well-made but ambivalent biopic of the Teamsters leader, with a pitch-perfect performance by Jack Nicholson, directed by co-star Danny DeVito. We get the good, the bad and the ugly of the controversial union leader, both his tireless dedication to the workers he represented as well as some of the poor choices he made while in power. Made 14 years earlier, F.I.S.T., directed by Norman Jewison and starring Sylvester Stallone, takes the basic outlines of Hoffa’s biography and fictionalizes them. The result is not great moviemaking and Stallone proves that he should keep to the boxing ring. Neither movie has an answer to the question, Where is Jimmy Hoffa’s body?

Blue Collar (US, 1978)

Paul Schrader, the man who wrote Taxi Driver, wrote and directed this crime drama, which places itself squarely in the “unions are corrupt” camp. Richard Pryor, Yaphet Kotto and Harvey Keitel are Detroit auto workers who are so angry at mistreatment by management and their union that they decide to rob the union. In the safe, they find evidence of corruption and links to organized crime. As in On the Waterfront, the theme is little guys vs. big organizations, but the assumption that all unions are corrupt was by that point a stereotype, not an accurate assessment based on the facts. At the same time, the movie fails to explore the vast power differential between the two purported “enemies” of the little guys – as always, management holds most of the cards.

Norma Rae (US, 1979)

If On the Waterfront established the prototype of unions for one generation, Norma Rae reversed the impression for the next. Directed by Martin Ritt and starring Oscar-winner Sally Field and Ron Liebman, the film focuses on a union organizing campaign in a southern textile mill. Along the way, we get a “two different worlds” love story between Field and Liebman, a look at family life and coping on the low wages of textile work, and a view of what working in a textile mill actually looks and sounds like. The movie ends optimistically, but in real life (as is often the case, especially in right to work states), the pro-union vote was only the beginning of the struggle.

Silkwood (US, 1983)

Mike Nichols directed Meryl Streep in this taut thriller about an employee of a plutonium company who stumbles on to some serious safety defects in the radioactive products. Streep plays a union steward at Kerr-McGee and it is clearly her association with the union that underlies much of her activity in the second half of the movie, although the script keeps union references to a minimum. The film is very effective at showing how union stewards communicate with other workers at work and at home. Ultimately, Silkwood decides to blow the whistle and give the information to a reporter, but is killed in a mysterious car accident on the way to the meeting. The movie suggests that the “accident” may have been murder, but the case has never been solved.

Matewan (US, 1987)

Chris Cooper, James Earl Jones and Mary McConnell star in this fictionalized recreation of a 1920 struggle between West Virginia coal miners trying to improve their lot by organizing a union and the owners (and their hired thugs) who want to continue to exploit. John Sayles, who wrote and directed Matewan, explores not just the willingness of the owners to use all means necessary to regain control, but also tensions between black and white workers, between men and women, and between the outsider (Cooper, playing a UMW organizer) and the natives. Somehow, Sayles completed the project, with its massive cast and spectacular battle scenes, for under $4 million.

Roger & Me (US, 1989)

Michael Moore, documentarian and propagandist, had his first hit with this wry tale of his attempts to meet with General Motors CEO Roger Smith (presumably to tell him off). Along the way, Moore guides us through a few decades of history (mostly accurately), focusing on the men and women employed by GM over the years, especially those in Moore’s hometown of Flint, Michigan. While Moore has his critics, and his throw-it-all-up-there-and-see-what-sticks approach can be annoying, his central point is sound: that the big companies who decide to lay off workers and close plants or move plants overseas are not controlled by the economy – they are the economy. The best evidence of this is the fact that no matter how badly the workers and former workers are doing (to the point of selling rabbits “for pets or meat”), people like Roger Smith do just fine.

Newsies! (US, 1992)

Another labor musical – this time from Disney. Based on the 1899 New York City newsboys strike, this dancing and singing extravaganza stars a young Christian Bale, with support from Bill Pullman, Ann-Margret and Robert Duvall. More than just Annie with newspapers, the film shows the desperate poverty that newsboys lived in, although it doesn’t explain how they can sing and dance so well on such a meagre diet.

Germinal (France, 1993)

Claude Berri directed this film version of the 19th Century novel by Émile Zola that relates French coal miners’ attempts to organize a union in the 1860s. Gerard Depardieu stars as the leader of a strike that begins well but collapses into a riot. Depardieu is blamed for the failure, leading his arch-enemy, an anarchist miner, to attempt to kill him in the mine. I won’t spoil the ending.

Office Space (US, 1999)

Mike Judge’s contemporary comedy doesn’t really have anything to do with unions, but it does say a lot about the absurdity of the modern workplace, particularly the business office setting. Though the concept and characters are better than the actual plot, there are enough knowing laughs (TPS reports, flair, etc.) to sustain the viewer though to the end. For some reason, Jennifer Anniston is in it. And would someone please give me back my stapler? You know the one, red, Trimline…

Bread and Roses (UK, 2000)

British filmmaker and chronicler of the working class Ken Loach went to California to tell the fictionalized story of two Central American immigrants who become involved in a janitors strike in Los Angeles. The film is based on SEIU’s April 1990 Justice for Janitors strike and also deals with issues of race, class and immigration. Adrian Brody plays a union lawyer.

Made in Dagenham (UK, 2010)

Underrated British actress Sally Hawkins turns in a subtle and convincing performance as a unionized sewing machinist, one of many women who sewed upholstery for cars at a Ford plant in England. Eventually, Hawkins and her union lead the women on a strike based on unequal pay between male and female workers. The movie is based on actual events in the Dagenham Ford plant in 1968. Nigel Cole directed. Co-stars include Bob Hoskins, Miranda Richardson and Rosamund Pike.

Writing Tips for Unions and Employees

The lawyers at Sandulli Grace, P.C. often have occasion to work with our clients on various writing projects. Employees are often asked to write reports, statements and memoranda or fill out forms regarding incidents that may affect their employment conditions or lead to disciplinary action. In reviewing these documents, we have noticed that our clients, like most people, will occasionally make mistakes of grammar, spelling and usage that reduce the effectiveness of their writing. While we cannot guarantee that a well-written report will ensure that you will achieve your desired goal, we are certain that a document riddled with spelling or syntax errors will distract the reader from what you are trying to say and focus his or her attention on the way you are saying it.

In the hopes of improving our clients’ writing skills (and reminding ourselves – because lawyers make these mistakes too), we have developed a brief list of common writing errors for you to refer to when writing something that your employer may read.

To, Two and Too
Let’s start with an easy one, but one I see all the time. “Too” means also or excessively. “Two” means the number after one and before three. Any other meaning, spell it “to.” “He was driving too fast.” “Can I go too?” “This is too much food for one person.” “I saw two men in a two-door Chevy Malibu at two o’clock.” “Take me out to the ballgame.” “Give that to the Principal.” “Is this the way to the fair?” “I don’t know what to say.” “I have too many reports to write.” “To tell the truth, even two is too many.”

It’s and Its
If I had to pick the most common confusion between words, among all English-language writers, it has to be “it’s” and “its.” Yet the solution, once you memorize it, couldn’t be simpler. “It’s” is a contraction for “it is”, so if you can substitute “it is” without changing the meaning of the sentence, then ‘it’s’ is correct; if not, then ‘its’ is correct. Also remember that ‘its’ is a possessive adjective, which means it always modifies a noun. Examples: “The monster was so huge that it’s body blotted out the sun.” WRONG! Substituting “it is” gives us, “The monster was so huge that it is body blotted out the sun”, which makes no sense. “The monster was so huge that its body blotted out the sun” is correct. Other correct examples: “The monster is so huge that it’s impossible for me to see the sun”, “It’s too late baby, now it’s too late”, “The School Committee hasn’t released its budget yet” and “It’s obvious that your situation has its problems.”

Their, There and They’re
1. “Their” is a possessive adjective meaning ‘belonging to them” that always modifies a noun and refers to more than one person. “Their stereo is turned up too loud.” “Are you going to their party, too? “Has their daughter come home yet?”
2a. “There” is sometimes an adverb referring to a place: “I was there in February.” “Did you see the gun there under the car?” “The resource room is over there next to the auditorium.”

2b. “There” is sometimes used with the verb “to be” to indicate that something exists. “There is a mosquito on your nose.” “I heard there was a fight at the bar last night.” Here are both uses: “There is no way I’m going in there.”
2c. “There” is also used to say things like “Hi there!”, “There, there, don’t worry”, and “There – I told you I wasn’t lying!”
3. “They’re” is a contraction that is short for “they are.” “They’re coming – everybody hide!” “I’m trying to figure out what they’re doing in there.”

Affect and Effect
This one confuses even the best writers. The best way to understand them is to treat each word’s noun and verb forms separately.

  1. Affect (verb): To change or have an impact on something. “That song always affects my mood.” “Spicy foods affect my digestion – and not in a good way.” “Trauma in his childhood has affected his ability to communicate.” “The bad economy really affected the value of my house.” (Secondary meaning: to pretend or put on airs: “Madonna sounds so affected when she uses a British accent.”)
    2. Affect (noun): This rarely-used word comes from psychology and refers to one’s emotional or behavioral state. “The child presented a flat affect – no expression of emotion at all.”
  2. Effect (verb): To bring about, often with ‘change’. “In his speech, the Governor claimed the new program will effect real change in our state.”
    4. Effect (noun): A result or consequence. “The discipline had the effect of ruining morale in the workplace.” “The effects of the storm were visible everywhere we went.” “In effect, he told us to go jump in a lake.” “The law of cause and effect doesn’t always apply in this department.”
    NOTE: A sentence using the verb “affect” can usually be converted to a sentence using the phrase “have an effect on” and vice versa. Ex. “That thing really affected me” = “That thing really had an effect on me.”

Conscious and Conscience
1. ‘Conscious’ means you’re not in a coma.

  1. ‘Conscience’ is your sense of right and wrong.

    Accept, Except and Expect
    1. Accept (verb): “I accept your apology.”

  2. Except (preposition): “I understand everything except why you didn’t tell me sooner.”
  3. Expect (verb): “I don’t expect you to understand.”

    Alot, A lot and Allot
    1. ‘Alot’ is not a word. Ever. Always write ‘a lot’ instead.
    2. ‘Allot’ is a word meaning to give out or distribute. “We allotted five minutes for each candidate to speak.”

    Cite, Sight and Site
    1. ‘Cite’ means to quote or provide a reference. “The Union president cited Robert’s Rules of Order.” “Did you cite your sources on this paper?” Special meaning: To give a traffic citation: “You can see that I’ve cited you for having a broken taillight.”

  4. ‘Sight’ means the ability to see; something seen. “You are a sight for sore eyes.” “I went to Italy and saw all the sights.” “The child experienced a temporary loss of sight.”
  5. ‘Site’ refers to a specific location. “I visited the site of the shooting.” “They need a detail at the construction site.”

    Lead and Led
    I often see writers using ‘lead’ when they mean ‘led.’
    1. ‘Lead’ (noun): “Get the lead out.” “This heavy object must be made of lead.”

  6. ‘Lead’ (verb, present tense) “She took the lead early in the race.” “If you lead, I will follow.”
  7. ‘Led’ (verb, past tense) “I think you led us down the garden path.” “What led you to believe I was following you?”

Lose and Loose

  1. ‘Lose’: To misplace; to fail to win: “With you on our team, how can we lose?” “I tend to lose things if they’re not nailed down.”
  2. ’Loose’: Not tight (adj.); let go (v): “Loose lips sink ships.” “I let the dogs loose and I haven’t seen them since.” “I have a loose tooth.”

    Breath and Breathe
    1. ‘Breath’ (noun): “He took his last breath.” “Don’t waste your breath.” “How long can you hold your breath?”
    2. ‘Breathe’ (verb): “All I need is the air that I breathe.” “Breathe deep the gathering gloom.”

Council and Counsel
1. ‘Council’: “I am meeting with the City Council next week.”

  1. ‘Counsel’: “Attorney Jones is the new Town counsel; she will be counseling the town on legal matters.”

    Complement and Compliment
    1. ‘Complement’: something that fits with something else: “This rug complements the décor nicely – it really pulls the room together.” “The yin and yang symbols truly complement one another.”

  2. ‘Compliment’: a flattering statement: “Thanks for the compliment!” “Compliments of the chef.”

Active and Passive Voice
Every writing instructor will tell you that you should write in the active voice unless there is a good reason to use the passive voice. What’s the difference? In the active voice, the verb normally identifies an action that the subject is performing; in the passive voice, the verb indicates an action that is being performed by someone or something on the subject.
Active (better): The quick brown fox jumped over the lazy dog. (Subject: Fox; Verb: Jumped Over)

Passive: The lazy dog was jumped over by the quick brown fox. (Subject: Dog: Verb: Was Jumped Over)

Passive: John Q. Public was arrested by Officer Jones and Officer Smith.

Active (better): Officers Smith and Jones arrested John Q. Public.

Passive: Over 10,000 students were educated in the District’s schools over the past decade.

Active (better): The District’s schools educated over 10,000 students over the past decade.

Sometimes you need to reword the sentence, adding and subtracting, in order to make a passive into an active sentence:

Passive: Large numbers of aliens were seen in the vicinity of Grover’s Mills, New Jersey.

Active (better): Residents reported seeing large numbers of aliens in the vicinity of Grover’s Mills, New Jersey (adding the words “Residents reported”).

Sometimes it is appropriate to use the passive voice, such as when your emphasis is on the recipient or product of an action, you want to avoid vague attributions or rewriting it into active voice muddies your meaning. “My car was stolen” (passive) sounds better than “Someone stole my car” (active). “The building was renovated in 1997” (passive) sounds better than “The J&M Construction Company renovated the building in 1997” (active) (unless you are writing for the Construction Company’s website). “Following the ceremony, refreshments will be served in the church basement” (passive). Unfortunately, many bureaucracies and large organizations of all kinds have propagated a mind-numbing writing style for annual reports and other documents that relies heavily on the passive voice. Many of us are so used to reading and hearing such turgid prose that it now sounds normal to us. Please try to resist this impulse in your writing. The active voice is usually the best choice for clear, well-organized prose, no matter what the document.

 

 

Article About Lying Still Rings True After a Decade

Ten years ago, I wrote an article for the Massachusetts Coalition of Police’s Roll Call publication about a recent decision by the Supreme Judicial Court with important implications about police officers accused of untruthfulness. In the intervening decade, the predictions I made in 2005 have unfortunately come to pass. More and more Police Chiefs and municipalities are relying on this case and others that followed to discharge police officers found to have been untruthful. So it was extremely good timing when, at MassCOP’s annual convention in Hyannis last week, former MassCOP business agent Tom Smith mentioned the article, called “The Truth About Lying” and told the conventioneers that he made copies of it to give to police officers under investigation for misconduct. I recently reread the article and found that while the case it mentions is 10 years old, the advice is still timely. As a service to those who didn’t get the Roll Call in 2005, we have reprinted the article below.

 THE TRUTH ABOUT LYING

Recent SJC Decision Puts Spotlight on Police Officer Untruthfulness

By John M. Becker

Sandulli Grace, P.C.

“We can defend the truth, but we can’t defend a lie.” – Tom Smith, MCOP Business Agent (ret.)

From the point of view of your union representatives and attorneys, the hardest thing to defend is a lie. When an officer engages in misconduct and lies when confronted or questioned about it, either orally or in writing, or leaves damaging facts out of a report in a situation when they normally should be recorded, the officer has made the job of the union rep and lawyer many times more difficult and has jeopardized his job security that much more. It is always easier to defend the misconduct than to defend the officer’s decision to lie about it. Many arbitrators agree with the oft-repeated refrain of management that a police officer’s credibility is essential to his ability to do his job, which involves testifying in court. So, while arbitrators may apply normal principles of progressive discipline and disparate treatment to most misconduct cases, they are more likely to treat a police untruthfulness case with a higher standard.

If anyone doubted Tom Smith’s words of wisdom quoted above, they should be persuaded by a recent decision of the Massachusetts Supreme Judicial Court that says an arbitrator could not put a police officer who lied back on the job. (The case is City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005).) In the case, the Boston Police Department fired an officer for alleged misconduct during an encounter with two citizens who were in a double-parked car. The union grieved the discipline and took it to arbitration. The arbitrator decided that the officer lied about what happened when he wrote his police report, when he filed for criminal charges against the citizens, when he spoke to internal affairs investigators, when he testified at a Departmental hearing and when he testified at the arbitration. But the arbitrator ordered the officer reinstated with a one-year suspension, primarily because there was evidence of disparate treatment: other officers had committed similar or worse misconduct and had received only suspensions. The City appealed the decision to court – the Superior Court and Appeals Court upheld the arbitrator, but the Supreme Judicial Court overruled the lower courts and overturned the arbitrator’s award. The SJC found that it violated public policy to force the City to reinstate this officer, after the arbitrator found that he misused his official position to file false police reports and take out false criminal charges against innocent civilians and then told his false version of the story again and again to investigators, hearing officers and the arbitrator herself. The court noted that lying on a police report, filing criminal charges and lying under oath are all felonies and there is a law saying convicted felons cannot be police officers. So, even though the officer was never charged with any felony, the court said that reinstating him would violate a public policy against allowing someone who commits these kinds of acts from working as a police officer. The disparate treatment evidence was irrelevant in this kind of a case, the court said. Unless you have evidence that the Department discriminated against the officer because of his race or sex or some other protected category, you could bring in evidence of two dozen other cases of more lenient discipline, or non-enforcement of the rules against other officers and it would not make a difference. Cases like these, the court said, are evaluated on their own and without regard to what happened to other officers in the past.

The case was shocking to many because courts so rarely overturn arbitrator’s awards. Most observers agree that what so angered the court was the fact that the case involved an untruthful police officer. It would be wrong to generalize too much from the case – it does not mean that every termination for untruthfulness will be upheld on appeal, nor does it mean that every allegation of acts that could be the basis for a felony charge will lead to a discharge. But the case does mean that when a police officer is disciplined for misconduct that involves untruthfulness, arbitrators and courts are going to be much more likely to uphold the discipline. So if it was hard to defend a lie before, now it will be even harder.

Psychologists tell us that everybody lies. But most of the lying we do falls into the category of ‘white lies.’ Charles V. Ford, Ph. D., an expert on lying, describes five categories of lies:

  • White lies are used to make social interactions more comfortable. They include self-protective lies (“Sorry, I can’t go to the party, I’m feeling sick”) and altruistic lies (“Nice haircut”; “You’ll be fine.”)
  • Humorous lies are harmless exaggerations used to embellish a story or joke. In these cases, what matters isn’t the truth, but whether the story is funny or not.
  • Defensive lies are the most dangerous lies and are almost never harmless. “I didn’t do it.” “I wasn’t there.” “I didn’t see anything.”
  • Aggressive lies are the stuff of rumormongers and bad guys in the movies – you’re not just defending yourself, you’re attacking someone else. “I saw him do it.” “Did you know that he is a [fill in the blank].”
  • Pathological lies are those told for no rational purpose, but just because the person can’t seem to stop himself. “They’re going to build a movie theater in that lot – sometime next summer.”

There is a sixth category – lies of omission.            Although the experts don’t like to call these lies technically, they are just as dangerous for your job. When you have an obligation to speak up and you remain silent, that is a type of untruthfulness. These can be divided into at least two categories – silence on your own behalf (you did it but you aren’t admitting it) and on behalf of someone else (you know who did it but you won’t say). Both types of silent lies can subject you to disciplinary action.

Note that lies that seem harmless in some contexts can turn serious when told in an employment context. “I can’t go to the party because I’m sick” may be a white lie, but “I can’t come to work because I’m sick” can subject the officer to disciplinary action. Exaggerations when you’re describing the fish that got away are fine, but work-related exaggerations or downplaying can lead to discipline (“he was yelling at the top of his lungs” “she hit me several times” “the car was going about 90 miles an hour” “I barely touched it” “I did not raise my voice”).

The time to stop the lying is at the beginning, because the more you lie about the misconduct, the harder it is to tell the truth about it. The psychologists tell us that liars are often trying to convince themselves that they did not commit the misconduct – it is much easier to lie convincingly to others if you’ve already convinced yourself that the lie is true. According to Doctor Ford, “the lie facilitates self-deception; people lie to others in order to lie to themselves.” If you find yourself telling people, “I know it’s hard to believe, but …” take a step back and ask if maybe it’s hard to believe because it’s not true. Don’t become the victim of your own deception.

Knowing that many of us have a tendency to lie in our own defense when we do something wrong is not an excuse. Instead, it should put us on notice that, when we engage in misconduct, the temptation to lie will be strong. We should be prepared to fight it. Remember: almost no one who tells a lie believes that they will be caught, yet think of how many lies are exposed on a regular basis. Knowing the wrongdoers have a tendency to lie in their own defense also means that those investigating the misconduct will be looking for signs of lying and self-deception, just as you do when investigating crimes. So, if you screw up, ‘fess up. You may take a hit, but your union and your union attorneys will do our best to see that you get a fair shake. If you screw up and lie about it too, you’re not avoiding the pain, you’re only postponing it, while making it much harder for us to defend you.

 

 

 

 

The Month of March in Labor History

March 4, 1801: In his inaugural address, President Thomas Jefferson declares: “Take not from the mouth of labor the bread it has earned.”

March 31, 1840: President Martin Van Buren issues an Executive Order providing for a 10-hour work day for all employees on federal public works projects.

March 7, 1860: Several thousand shoemakers in Lynn, Massachusetts begin a strike that soon spreads to 20,000 shoe workers all over New England. The strikers, who include men and women, eventually win Continue reading