All posts by Leigh Panettiere

Our Second Free Training For MASSCOP Local Officials And Members

Sandulli Grace and the Massachusetts Coalition of Police are pleased to announce the second in a series of free trainings for MassCOP members. The second training will be on Tuesday, September 12, 2017 and will be located in Foxborough. The curriculum for this training will be the same as the June 13, 2017 training. We hope that the availability of additional dates and different locations will help more members attend. Please see the attached flyer for registration information.

ANNOUNCING THE SECOND FREE TRAINING
for MASSCOP Local Officials and Members

For the convenience of our members, an additional training date has been added:
TUESDAY SEPTEMBER 12, 2017

Sponsored and run by MassCOP officials and attorneys from Sandulli Grace, P.C., this free session will train you on topics that matter to your members, including:

• How to draft and process contractual grievances
• Handling employee discipline issues
• Preparing for and engaging in contract negotiations
• Tackling stress in the workplace

MassCOP believes in empowering its local unions through education to create a stronger, safer environment for its members. This training will give you tools to enforce your rights and improve your members’ working conditions.

The second training session will be held on Tuesday, September 12, 2017, in the public meeting room at the Foxborough Public Safety Building,
8 Chestnut Street, Foxborough, MA 02035, from 10:00 a.m. – 2:00 p.m. Seating is limited, so please register by e-mailing GCapozzi@sandulligrace.com.

Other dates and locations to be announced

For more information, please visit our web sites:
www.sandulligrace.com
www.masscop.org

– LUNCH WILL BE SERVED –

Download the Flyer For Sept. 12 2017 Regional Training

FREE TRAINING for MASSCOP Local Officials and Members

FREE TRAINING
for MASSCOP Local Officials and Members

TUESDAY JUNE 13, 2017

Sponsored and run by MassCOP officials and attorneys from Sandulli Grace, P.C., this free session will train you on topics that matter to your members, including:

• How to draft and process contractual grievances
• Handling employee discipline issues
• Preparing for and engaging in contract negotiations
• Tackling stress in the workplace

MassCOP believes in empowering its local unions through education to create a stronger, safer environment for its members. This training will give you tools to enforce your rights and improve your members’ working conditions.

The first training session will be held on Tuesday, June 13, 2017, at the Southbridge Police Department, 1 Mechanic Street, Southbridge, MA, from 10:00 a.m. – 2:00 p.m. Seating is limited, so please register by e-mailing GCapozzi@sandulligrace.com.

For more information, please visit our web sites:
www.sandulligrace.com
www.masscop.org

– LUNCH WILL BE SERVED –

Flyer for June 13 2017 Training Southbridge

Workers’ Compensation Recipients Not Required To Reimburse Employer From Settlement Proceeds Allocated To Pain And Suffering

Employees who receive workers’ compensation benefits may not sue their employers in tort.  G.L. c. 152 Sec. 24.  Employees may, however, file claims against third parties.  G.L. c. 152 Sec. 15.  If the employee recovers damages from the third party, the employer is entitled to a statutory lien on the recovery, unless the recovery is greater than the amount the insurer paid the employee.  In that case, the employee may keep the “excess,” which is defined as “the amount by which the gross sum received in payment for the injury exceeds the compensation paid under this chapter.”

In DiCarlo v. Suffolk Construction Co., decided by the SJC on Friday, an employer who had paid out workers’ compensation benefits to an injured employee was seeking a portion of the “pain and suffering” damages the employee received from a subcontractor whom the employee had sued in tort.  The damages arose from a settlement agreement.  The employee agreed to accept less money from the third party than he had received in total from the employer in workers’ compensation benefits, but the agreement specifically allocated a percentage of the payout to pain and suffering.  The employer argued that pain and suffering damages should be included in its lien.  The employer took the position that the “gross sum received in payment for the injury” included pain and suffering.

However, the SJC allowed the settlement agreement to carve out pain and suffering damages for the benefit of the employee.  The court held that the workers’ compensation statute does not allow an employer to be “reimbursed” for pain and suffering damages, because an employee cannot recover for pain and suffering under the workers’ compensation statute – only for wages.  The court clarified that an insurer “cannot be reimbursed for something that it did not pay.”  The decision can be read here.

Sandulli Grace And The Massachusetts Coalition Of Police Win Night Shift Differential Pay For The Community Service Officers In The Braintree Police Officers Association

In contract negotiations between the Town of Braintree and the Braintree Police Officers Association, MCOP Local 365, the Town proposed the new position of Community Service Officer (CSO).  The Town proposed the CSO as a specialty position that could be filled without regard to seniority, an exception to the usual practice. The Town also proposed to “flex” the officers’ schedules, which meant that the officers would only receive overtime if they actually worked more than eight hours in a day – not if they were required to work an entirely different shift because of the needs of the job.

The contract language did not specify how the CSOs would be compensated.   However, the Town agreed that the CSOs would work a flexible schedule “in the same fashion as currently worked by the Narcotics Unit.” This was sufficient to convince the union to agree to the proposal, because the narcotics detectives worked a flexible schedule, and were paid the night shift differential all the time. The night shift differential made up for the negative aspects of the position, and “sold” the proposal to the union.

Once the position was filled, however, the Town refused to pay the CSOs the night shift differential, taking the position that it was not required to do so because the pay rate was not stated in the contract. The union filed for arbitration. On January 20, 2016, the arbitrator issued his award, agreeing with the Union and ordering the Town to pay CSOs the nights shift differential. (The award can be viewed here.)

This is an important victory for the Massachusetts Coalition of Police and the Braintree Police Officers Association. The arbitrator acknowledged that, by agreeing to a specialty position which the Chief could fill without regard to seniority, the union was obviously making a concession, and it would not be reasonable to expect the union to do so without getting something in return. In this case, what the union expected to get in return was the night shift differential. The arbitrator, Timothy Buckalew, showed great respect for the challenges of police collective bargaining. It was a hard-fought and well deserved victory, and I congratulate the Braintree Police Officers Association!

 

Town of Millbury and Millbury Police Association, MassCOP Local 128 – Termination of Kimberly Brothers

On July 19, 2013, Arbitrator Timothy Buckalew reinstated Millbury Police Detective Kimberly Brothers, who terminated in August 2012 for allegedly “harassing” three residents of the Town.  Two women who had formerly dated Detective Brothers’ boyfriend, and one who had recently ended her friendship with Detective Brothers, accused Detective Brothers of either following them in a cruiser, or parking near their workplaces in order to intimidate them.

The Union, represented by Attorney Leigh Panettiere of Sandulli Grace, P.C., demonstrated at the arbitration that Det. Brothers, a busy and well-respected detective who before being promoted to detective was an extremely productive patrol officer, had been assigned to official police duties that often brought her near the homes and workplaces of the accusers.  The Union was also able to present numerous instances of inconsistencies and untruths in the testimony of the three accusers, and that the accusers were all talking to each other about Det. Brothers.  Additionally, the Union demonstrated that the investigator failed to inquire about any of the inconsistencies in the stories the accusers told.

The Arbitrator rejected the allegations of harassment.  He called the Town’s investigation “hasty and inadequate.”  He found that all three of the accusers were motivated to lie, and he found Det. Brothers to be “credible and consistent.”

The Town also accused Det. Brothers of “excessive texting,” clearly in an attempt to shore up the weak harassment allegations.  The Police Department had no policy on texting.  The Town never reviewed the text records of any other officer in the department, and did not even give Det. Brothers an opportunity to defend herself against this allegation during the investigation.  Moreover, the Union presented testimony of fellow officers and the Chief of Police that Det. Brothers did not text on duty any more than other officers in the department.  The Arbitrator credited the testimony of those witnesses, and stated, “the Town cannot not show excessive texting when it has no standard from which to argue the employee deviated.”

The Arbitrator delivered the Millbury Policy Association a resounding victory in this case, ordering Det. Brothers reinstated with full back pay and restoration of all benefits, including details and overtime.  Det. Brothers returned to her Detective position on August 26, 2013.  This is the third in a series of recent victories for the Millbury Police Association.  The Arbitrator’s Award in the Kim Brothers case can be read here.

 

Attleboro Police Association, MassCOP Local 352 – Accidental Disability Retirement of Detective James Cote

On November 2, 2010, Attleboro Police Detective James Cote, who was also President of the Attleboro Police Association, MassCOP Local 352, suffered a cardiac arrest in his home and was in critical condition for days.  MassCOP members throughout the state showed their support for Det. Cote and his family.  Det. Cote made an astounding recovery in the face of a prognosis of a mere 5% chance of survival.  However, he suffered memory loss from lack of oxygen.  While able to resume many of the activities of his daily life, Det. Cote was unable to continue his work as a police officer, and had to retire at the age of forty.

Det. Cote’s Union, represented by Leigh Panettiere of Sandulli Grace, P.C., assisted Det. Cote in filing an application for accidental disability retirement with the City of Attleboro Retirement Board, taking the position that Det. Cote’s cardiac arrest was work-related.  Det. Cote’s cardiologist diagnosed Det. Cote with a hypertrophic cardiomyopathy, usually an inherited condition.  Hypertrophic cardiomyopathy often causes sudden death in professional athletes, who appear completely healthy one moment but die of a sudden cardiac arrest the next.  One member of the medical panel believed that the existence of this so called “risk factor” exempted Det. Cote from the heart law presumption.

However, the Union was able to demonstrate through Police Department records and the testimony of Det. Cote’s fellow detectives that Det. Cote’s underlying heart condition had been exacerbated by the stress of a high-profile, high-pressure murder investigation that Det. Cote was spearheading up until the night before his cardiac arrest, and that, therefore, even if the heart law presumption did not apply, Det. Cote was entitled to an accidental disability retirement because his job had accelerated the condition.

Thanks to a well-written, thorough affidavit by Det. Cote’s cardiologist, a dedicated local Retirement Board willing to do the extra work necessary to understand the medical evidence, and the support of his Union and the Police Department, the Accidental Disability Retirement application was accepted by the Retirement Board, and it was approved by PERAC on June 27, 2013.

MassCOP and Attorney Panettiere were happy to be able to assist Det. Cote in the face of this daunting injury, and continue to send their good wishes to him and his family.

 

Sandulli Grace and MCOP Protect the Collective Bargaining Rights of Sergeants

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are litigating two ULP cases this fall for police sergeants who have been the targets of retaliation for exercising their protected speech rights as union members.

The first is Town of Mansfield and Mansfield Police Association, MCOP Local 298, MUP-11-6146, which is scheduled for hearing on September 25, 2012.  The Mansfield Police Association represents patrol officers and sergeants.  Sergeant Tracey Juda was assigned to investigate an incident in which a patrol officer under her command was accused of misconduct.  In the process of investigating the incident, Sergeant Juda advised the officer to contact his union representative, and gave him an opportunity to do so.  Chief of Police Arthur O’Neill presented her with a written reprimand accusing her of incompetence and excoriating her for acting as a “union friend” rather than a sergeant by advising the officer to seek union representation. Sergeant Juda’s union filed a charge of prohibited practice, and the Department of Labor Relations issued a complaint alleging that the Chief of Police had retaliated against Sergeant Juda for her protected activity. (A copy of the Complaint of Prohibited Practice and the union’s charge may be viewed here.)

The second case to appear this fall is City of Attleboro and Attleboro Police Association, MCOP Local 352, MUP-11-1161, which is scheduled for hearing on October 16, 2012.  The Attleboro Police Association represents patrol officers, sergeants, lieutenants and captains.  In February 2011, the City fired a police officer based on the statements of a fellow officer.  Chief of Police Kyle Heagney told the fellow officer that he should obtain the investigation report leading to the termination, and the fellow officer submitted a public records request through Sergeant Michael McDonnell.  Sergeant McDonnell, perceiving that the Chief was pitting union members against each other to weaken the union’s defense of the terminated officer, advised the union president of the public records request.  The Chief issued Sergeant McDonnell a scathing reprimand, accusing him of “disloyalty,” saying that the union should not have been informed of the public records request, and punishing him for trying to “provide the union with some kind of advantage.” Sergeant McDonnell’s union filed a charge, and the Department of Labor Relations issued a complaint alleging that Chief Heagney had discriminated against Sergeant McDonnell for engaging in concerted, protected activity, and interfered with his exercise of rights protected under the law.  (A copy of the Complaint of Prohibited Practice and the union’s charge may be viewed here.)  The APA has two other ULP charges pending based on retaliatory conduct by Chief Heagney.  Those charges are still in the investigatory stage.

Every police officer has the right to encourage fellow officers to seek union assistance.  These Department of Labor Relations decisions support our belief that sergeants and other supervisory police personnel are entitled to the same collective bargaining and protected speech rights as non-supervisory employees.  Sandulli Grace, P.C. and MCOP will continue to advocate for their rights.

 

Leigh Panettiere, Esq.

Sandulli Grace, P.C.

Leigh Panettiere of Sandulli Grace, P.C., Advances Pro Bono Legal Project for Veterans

As co-chair of the Boston Bar Association’s Labor and Employment Section as well as its pro bono subcommittee, Sandulli Grace Attorney Leigh Panettiere is spearheading an effort to gather experienced labor and employment lawyers in Massachusetts to volunteer their services to the men and women who serve us in the U.S. Military.  In coordination with the Volunteer Lawyers’ Project and Shelter Legal Services, Ms. Panettiere’s committee is arranging to send labor lawyers to “Yellow Ribbon Events” taking place in the next few months. Veterans and their families are invited to attend Yellow Ribbon Events and seek legal and other advice regarding the impact their military service has on their lives. The guidance of labor and employment lawyers is often sorely needed, especially post-deployment.

A large number of returning service members are police officers facing the challenges of re-integrating into the police force after active military service.  Most returning veterans do not have the financial resources to obtain the necessary legal advice on their own.  The goal of this project is to make returning to work easier for veterans and their families, as well as educating employers on the rights of returning veterans.  We encourage our union clients to get involved in this effort.

A training session will be held on Monday, November 1, 2010 from 6:30 to 7:30 p.m. at the Boston Bar Association. An experienced trainer will be on hand to update the volunteer attorneys on USERRA and other labor and employment statutes that are typically implicated when a returning veteran seeks services.  Any attorney interested in attending the training, volunteering his or her services to veterans, or getting involved in coordination efforts as part of the pro bono subcommittee should contact Leigh Panettiere at lpanettiere@sandulligrace.com, or (617) 523-2500 Ext. 18.

Stay tuned for updates on this project at www.sandulligraceonline.com.

Sandulli Grace and MassCOP win arbitration awarding officer c. 41 Section 111F benefits based on injury that occurred while training for an upcoming physical fitness assessment

In November 2009, Sudbury Police Officer Ryan Boyd tore a muscle in his chest while lifting weights.  Although he was working out at a private gym on his own time, he was doing so in preparation for an upcoming physical fitness assessment that was a mandatory part of his role on the METRO-LEC METRO-STAR “Regional Response Team.” The Town refused to grant Boyd Injured on Duty Leave, arguing that the injury was sustained while Boyd was “taking part in a personal hobby that had no connection to his job as a Sudbury Police Officer.”

The Sudbury Police Association, MCOP Local 370, AFL-CIO, arbitrated the case, represented by Attorney Leigh Panettiere of Sandulli Grace, P.C.  The Arbitrator agreed with the Union’s argument and found that Boyd’s injury “arose out of and in the course of his employment” because the Town required Officer Boyd to be in “excellent physical condition” and participate in an “ongoing physical fitness program” while not providing him paid time to exercise nor a facility in which to do so.  The Arbitrator also noted that Boyd’s commanding officer had advised him and his fellow RRT members to keep training for the upcoming assessment.

The arbitrator rejected the Town’s argument that Boyd was engaged in a hobby that had no connection to his employment. The fact that Officer Boyd enjoyed weight lifting and had a long history of regular fitness training was irrelevant. The heightened physical requirements of Boyd’s specialized team meant that he did not have the option to stop training. Also, the arbitrator noted that officers already committed to physical fitness are more likely to serve on a team that requires a high level of fitness.

The Town was ordered to restore Boyd’s wages and benefits to the level they would have been set at had his request for §111F benefits been originally granted.  The town will also have to restore all of the paid leave time Boyd was required to use during his recovery.

This is an important decision for Massachusetts police officers and fire fighters. It is not uncommon for injuries to occur while training to meet required physical fitness standards, and this award provides strong support for the argument that those injuries are compensable.

Read the Arbitrator’s Award…