All posts by Leigh Panettiere

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…

Sandulli Grace and MassCOP win confirmation of arbitration award reinstating officer fired for running out of leave, and holding that FMLA benefits are a floor of rights which can be improved in negotiations

Officer Tyrone Patruno was injured off the job, and then fired when he ran out of his paid time off and his unpaid FMLA leave.  The Barre Patrol Officers’ Union, MCOP Local 340, AFL-CIO, was represented by Attorney Leigh Panettiere of Sandulli Grace, P.C.  The Arbitrator agreed with the Union’s argument and found that there was a practice of offering light duty to officers injured off the job, and further that there was no justification for the Town to refuse to Patruno’s request for extended unpaid leave to recover from his injury.

The Town appealed the arbitrator’s award, arguing that the arbitrator exceeded his powers by requiring the Town to give more than the three months of leave guaranteed by the Family and Medical Leave Act.  The court rejected the Town’s argument (as did the arbitrator) on the basis that the FMLA is a floor of benefits and the parties are free to negotiate a greater benefit in their contract.  Patruno was ordered reinstated to light duty pending a doctor’s decision that he is fit for full duty, with back pay to the date his doctor cleared him to work light duty.

Public employers cannot unilaterally impose FMLA policies, because they impact availability of paid and unpaid leave, as well as compensation and job security — all mandatory subjects of bargaining.  Based upon this rule of collective bargaining law that was reaffirmed in the Barre case, Sandulli Grace advises its clients to watch for new FMLA policies, and contact their union representative if they believe an employer has imposed a policy without bargaining.

Download the decision…

Sandulli Grace Attorney Leigh Panettiere named Co-Chair of Boston Bar Association’s Labor and Employment Section

Leigh Panettiere, who has been a partner at Sandulli Grace, P.C. for six years, has been named Co-Chair of the Boston Bar Association’s Labor and Employment Section for the 2009 – 2011 term.  Ms. Panettiere is excited to play a leadership role in the BBA, and to help energize the L&E Section.  She hopes to contribute to the BBA’s mission of educating lawyers and encouraging productive professional relationships, goals that benefit Sandulli Grace’s clients by fostering healthy communications between labor and management.

Police Officers In Massachusetts Have The Right To Wear A Union Pin

In January 2000, the Chief of Police in the Town of Oxford ordered all police officers to remove their MCOP Union Pins. The Oxford Police Association, MCOP Local 173, filed a prohibited practice charge at the Labor Relations Commission, arguing that the Massachusetts collective bargaining law guaranteed the right to wear a union pin, even for police officers. The case went to hearing in 2001. Leigh Panettiere of Sandulli Grace, P.C., represented MCOP Local 173 in the case. In August 2005, the Labor Relations Commission finally issued its decision, in the Union’s favor (LRC Case No. MUP-2659). The Town of Oxford appealed. On November 14, 2007, the Town withdrew that appeal, officially ending the case. It is now a settled matter of law that police officers in Massachusetts have the right to wear a union pin.

Download the decision

New Appointment to Massachusetts Labor Relations Commission

The Massachusetts Labor Relations Commission appointed a new Chairman effective Monday, August 27, 2007.  Michael A. Byrnes, who worked for the past six years as a business agent for the National Conference of Firemen & Oilers, Local 3, SEIU, AFL-CIO, has been appointed to a five-year term at the LRC. Former Chairman John Jesensky is now a commissioner and will serve out his term until 2010. Commissioner Paul O’Neill’s term ends next summer.

Before becoming a union business agent, Mr. Byrnes worked for the Massachusetts Department of Corrections and then the MBTA as a management representative. At the start of his legal career, he worked as an associate at the management-side law firm of Murphy, Hesse, Toomey & Lehane. He was admitted to the bar in 1996, after earning his B.A. from Harvard University and his J.D. from Northeastern University Law School.