All posts by Ken Grace

Susan Horwitz to Receive Prestigious Labor Attorney Award at the Labor Guild’s Cushing-Gavin Awards Dinner on December 2, 2016

Susan Horwitz, a senior partner at Sandulli Grace, P.C., has been awarded the 2016 Cushing-Gavin Award for Union Attorneys, the highest honor bestowed upon members of the Massachusetts labor-management community. She will receive the award at the Labor Guild’s 50th Anniversary of the Cushing-Gavin Awards Dinner on December 2, 2016 at the Boston Park Plaza.

For 70 years, the Labor Guild has advanced the interests of workers and advocated better problem solving communication between representatives of labor and management throughout New England. In 1952, the Guild started offering classes to workers through its School of Industrial Relations, now located at 66 Brooks Drive in Braintree. In the late 1960’s, the Guild expanded its membership base by launching a tripartite labor relations awards program to recognize distinguished representatives of the labor, management and neutral/auxiliary communities. These awards are for excellence in labor-management relations “exemplifying moral integrity, professional competence and community concern.” For the past 50 years, select individuals who meet these high standards have been honored at the Guild’s Cushing-Gavin Awards Dinner.

Those familiar with Susan and her career can easily attest to how she exemplifies the required traits of a Cushing-Gavin Awardee. Before going to law school, she developed a foundation in labor relations by spending 5 years with the U.S. Labor Department in New York City. She then attended Northeastern School of Law when she began her work with Sandulli Grace as a coop, becoming its 4th attorney in 1984 and a partner in 1988. Sandulli Grace now has 13 attorneys and has always specialized in representing unions and employees exclusively.

Susan has been an exceptional advocate for the Boston Police Patrolmen’s Association (BPPA), the Massachusetts Coalition of Police (MCOP), the International Brotherhood of Electrical Workers (IBEW) Local 1228 in the broadcasting industry and numerous other local unions and their members across Massachusetts. She is held in high regard by all of the Sandulli Grace clients not just for her tireless work on their behalf, but also for her utmost passion in doing so.

The Cushing-Gavin Awards Dinner has grown to be the largest annual event in the Boston labor-management community. Please consider joining us in supporting the Labor Guild and honoring Susan Horwitz and the other Cushing-Gavin Awardees on December 2, 2016 at the Boston Park Plaza. It is also a chance to meet many old friends and establish new ones as we all strive to improve our working lives. (Further information regarding the Dinner and tickets can be found HERE)

MassCOP Wins Significant 111f Injury Recurrence Arbitration

On January 14, 2015, arbitrator Richard Boulanger issued an important injury leave award in favor of the Massachusetts Coalition of Police and its affiliate, the Ipswich Police Association, Local 310.  The arbitrator granted Ipswich Police Officer Aaron Woodworth injury leave for a three month period in 2014 when Officer Woodworth was out of work recovering from Continue reading

Beware of Illegal Parity Health Insurance Proposals by Employers

In a twist on illegal wage parity proposals, the Department of Labor Relations (DLR) issued Complaints of Prohibited Practice against the Boston Public Health Commission (Commission) for proposing and insisting upon an unlawful health insurance parity clause. (Read the full text of the DLR Complaint dated March 26, 2014 HERE). The Charging Party was the Boston Emergency Medical Services, a division of the Boston Police Patrolmen’s Association (Union) which represents Boston EMTs and Paramedics. The Union was bargaining over its contract which expired on June 30, 2011 where health insurance was a key topic in protracted negotiations with the Commission. The Commission is, by statute, independent from the City of Boston and a separate employer under Chapter 150E. After the parity complaints were issued, the DLR also ruled that the Commission failed to bargain in good faith with the Union when it changed the employees’ health insurance plan design and unilaterally increased their co-payments in violation of Section  10(a)(5)  of Chapter 150E. (Read the full text of the DLR Hearing Officer’s Decision and Order dated June 25, 2014 HERE). The BEMS-BPPA was represented in negotiations and litigation by Sandulli Grace Attorneys Ken Grace and Jenni Smith.

As we all know, employee health insurance costs are constantly changing to the point where any pay raise we may bargain can be quickly cancelled by increases in health insurance premiums, deductibles and co-payments. That is why it is so important for unions to fully exercise their bargaining rights over possible changes in health insurance plans, carriers, providers, benefits, coverages, premiums, premium contributions, co-payments and prescription co-payments. In this case, the Commission sought to have all of these health insurance matters be decided by another employer and another union.

The proposal at controversy stated that “the Union hereby agrees that any decision of the City of Boston to make [health insurance] changes, and the impact of those decisions will not require bargaining between the parties provided that such changes are implemented for the City of Boston’s Boston Police Patrolmen’s Association bargaining unit or successor.” The proposal, which ties the health insurance of BEMS to the collective bargaining future of the BPPA, constitutes a parity clause. The proposal, therefore, is an illegal restriction on the ability of both the BEMS and the BPPA to effectively represent the interests of their union members. For the BPPA, the proposed parity clause places illegitimate pressure upon their collective bargaining process, because they would be forced to take into account an additional group of employees whose interests and concerns do not mirror the sentiments of their immediate union members. In turn, the BEMS would be barred from representing the interests and well-being of its members on a mandatory subject of bargaining- – health insurance.

Over the last few months, the Union finally reached a collective bargaining agreement with the Commission and I’m happy to report that the contract does not include the illegal parity provision that was the subject of the DLR’s Complaints last March. The Commission was forced to withdraw its proposal because of mounting legal pressure. The contract settlement contained some small adjustments in health insurance co-payments and premium contributions consistent with those applicable to City of Boston employees, but the changes were not made retroactive. This amounted to considerable savings to BEMS employees over more than a three year period when premiums were lowered on the assumption of the higher co-payments. It was one of those rare instances where the foot dragging by an employer in delaying a contract settlement actually benefited the employees. Just as significant, however, was the Union’s willingness to take on the Commission through legal action and bargaining strategy in order to protect its important right to negotiate over all matters of health insurance in the future.

Injury Leave Possible After Off-Duty Recreation Accident

On May 27, 2014, arbitrator Tammy Brynie issued an important recreation injury leave award in favor of the Boston Police Patrolmen’s Association. The Boston police officer was seriously injured while participating in the 2012 Boston Police Department Fitness Challenge. (Read the full decision of Arbitrator Brynie HERE.) The BPPA case was presented and argued by Sandulli Grace Attorney Ken Grace.

As background to the case, the Boston Police Department had been increasing its emphasis on improved health and wellness for all officers since 2009. To this end, the Department sponsored an annual one-day Fitness Challenge for which officers were encouraged to train and compete in various physical fitness events. However, the annual challenge was considered a volunteer off-duty activity and no one was required to participate. At first glance, then, one might expect that an officer injured while participating in the Challenge would not be protected by M.G.L. chapter 41, section 111F ( the injury leave law applicable to Massachusetts police officers and firefighters). The BPPA thought otherwise, and ultimately Arbitrator Brynie agreed with the union.

The question in injury cases such as this revolves around a determination of whether the activity causing the injury “arises out of and in the course of employment.” In making that determination, Massachusetts courts and arbitrators look at “the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Under certain circumstances, an employee can be entitled to injury leave for injuries sustained outside regular working hours, even if at the time of injury, the employee is engaged in something only incidental to his/her employment.

For injuries involving employee recreation activities, the Massachusetts Supreme Judicial Court has developed more specific criteria to determine whether the injury “arises out of and in the course of employment”. Those criteria involve such factors as the customary nature of the recreation activity; the employer’s encouragement, subsidization, management and direction of the activity; the pressure upon the employee to attend and participate; and whether the employer receives a benefit from the employee’s participation in the activity.

Here, the Grievant was injured during one of the events at the 2012 Boston Police Department Fitness Challenge. Arbitrator Brynie found there were “sufficient links with the Department, its goals and its mission to consider participation in the Fitness Challenge as an aspect of the performance of the Grievant’s duty, for Section 111F purposes.” Those links included the annual nature of the event from 2009 to 2012; the organizing, planning and direction of the Fitness Challenge by the Department and its personnel; and the benefits resulting from the event including such intangibles as positive publicity (featured within an episode of the CNN television show, “Boston’s Finest”), promotion of the Department’s emphasis on health and well-being, better morale, and enhanced team building. In the Grievant’s situation in particular, the Arbitrator also found that he received substantial pressure to participate in the event.

Upon reflection, there is a certain irony in this case that warrants comment. The Boston Police Department invested considerable resources and personnel since 2009 to promote the health and well-being of its officers, and a key component of that effort was the BPD’s annual Fitness Challenge. Consequently, the number of participants grew each year as more and more officers embraced the overall goal of being better able to physically perform their jobs.  Then, when the Grievant was injured during the 2012 Challenge and the Department denied him injury leave coverage, Boston police officers took notice and participation in the Department’s health and wellness program decreased substantially. For example, a Fitness Challenge was scheduled for 2013, but it had to be cancelled for lack of sufficient registration. In hindsight, the Department’s long term goal of helping officers to become more fit would have been better accomplished if the injury leave claim in this case had been covered under Section 111F from the outset rather than through a grievance.

Now it is clear that officers are entitled to injury leave coverage if they are hurt during a future Fitness Challenge, so we will see if the Boston Police Department really is committed to the future health and well-being of its officers. Going forward, that is the real Challenge from the outcome of this grievance arbitration victory.