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.
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 firstname.lastname@example.org, or (617) 523-2500 Ext. 18.
Stay tuned for updates on this project at www.sandulligraceonline.com.
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…
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.
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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.
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.
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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.
On April 3, 2006, Sandulli Grace, P.C. and the Massachusetts Coalition of Police, AFL-CIO, presented their fourth educational seminar forpolice officers in Massachusetts. It was entitled, "Cops Under Attack: Who Protects The Police?" This seminar, which took place at the Sheraton Framingham Hotel, was attended by over 125 police officers from cities and towns all over the Commonwealth.
The seminar began with a presentation on the legal rights of police officers who are targeted in internal affairs investigations, including a panel discussion with Arbitrator Allan W. Drachman, the former Chairman of the Massachusetts Labor Relations Commission, and Attorney Kenneth H. Anderson of Finneran, Bryne & Drechsler, L.L.P., a Boston law firm that specializes in providing criminal defense to police officers. After the panel discussion, Sandulli Grace’s attorneys trained the seminar attendees on how to respond to a request for an investigatory interview which may or may not involve criminal allegations. With the assistance of the attorneys, the seminar attendees then planned for and participated in a mock investigatory interview, and the attorneys gave them feedback on the strengths and weaknesses of their performances. The seminar ended with a reception.
Our next educational seminar will be held in the spring of 2007. Like this year’s seminar, it will feature a hands-on approach to learning about your legal rights, which will prepare you to respond more effectively in all situations. Please plan on joining us.
Feel free to contact us with suggestions for topics.