All posts by Sandulli Grace Staff

FEDERAL COURT DISMISSES LAWSUIT AGAINST BROOKLINE FIREFIGHTERS’ UNION

On April 2, 2020, a federal court judge dismissed a discrimination lawsuit against Local 950, International Association of Firefighers (the Brookline firefighters’ union) brought by one of its members. In granting the Union’s motion for summary judgment in Alston v. Town of Brookline, NO. 15-13987-GAO, the Court (Judge George O’Toole) found that there is no genuine issue of material of fact between the parties that needs to be settled through a trial and the matter could be resolved as a matter of law. In reaching this conclusion, the Court stated that the Plaintiff “fails to cite to competent, non-conclusory evidence in support of his objections to the defendant’s cited evidence.”

In 2015, the Plaintiff filed three federal civil rights claims against the Town of Brookline, various town officials, and the Union under Chapter 42, sections 1981, 1983, and 1985 of the U.S. Code. The gist of the claims was that the Union retaliated against the Plaintiff after he protested the discriminatory conduct of another Union member and that the Union failed to file grievances on his behalf because of his race. The Court rejected the 1983 claim, which requires government action, because, as the Court found, ““[t]he factual record does not support a conclusion that the Union was in any way acting under the color of state law… There is simply no evidence that would raise a genuine issue of fact that the Union became so allied with the Town’s actions toward [the Plaintiff] that it effectively became a state actor.” The Section 1985 claim, which requires a finding of a conspiracy between two or more parties, also failed after the Court concluded that “[t]here is no evidence that the Union and the Town were conspiring against [the Plaintiff] to retaliate or discriminate against him” and “there is no evidence in the extensive record that could support a conclusion … that the Union conspired with [the Town] to deprive [the Plaintiff] of his rights.”

The Court also dismissed the Section 1981 claim. To state a claim under Section 1981 a plaintiff must show that they are a racial minority, that they were discriminated against on the basis of their race and that the discrimination implicated one of the activities enumerated in the statute. One activity is the enforcement of contracts; the Plaintiff alleged that the Union had failed to enforce its contract with him because of his race and in retaliation for protesting the actions of other Union members. The Court rejected the Section 1981 claim, noting that “[s]ubstantively, the record lacks evidence that … the Union retaliated against [the Plaintiff] for any protected activity or otherwise itself discriminated against [the Plaintiff] (emphasis included).” The Court noted that the Plaintiff did not approach the Union for assistance: “It cannot be said to have been materially discriminatory for the Union not to have acted when it appeared [the Plaintiff] did not want it to act on his behalf.” Judge O’Toole also pointed out that many of the allegations against the Union were barred by the statute of limitations because they occurred too far in the past.

In addition to dismissing the Plaintiff’s claims against the Union, the Federal Court also dismissed the claims against the Town of Brookline and individual Brookline officials. The Plaintiff has already filed a notice of appeal to the U.S. Court of Appeals for the First Circuit, where the Court will review Judge O’Toole’s rulings. In the meantime, this victory for the Union is an affirmation of their consistent position that they fight hard for the benefit of their members – all their members – regardless of race, creed or color.

READ THE DECISION HERE

Sandulli Grace Welcomes Former Labor Board Attorney James Racine

Sandulli Grace is excited to announce the hiring of our newest attorney, James Racine. James brings a wealth of experience in labor issues to the firm from his time working as a field attorney for the National Labor Relations Board (NLRB), Region 31, in Los Angeles. As a field attorney, James acted on behalf of the General Counsel by investigating charges of unfair labor practices and resolving and litigating cases before administrative law judges. James also helped conduct elections to determine union representation preferences and drafted decisions for the Regional Director in contested representation matters.

Prior to working for the NLRB, James served as a law clerk to administrative law judges at the United States Department of Labor in Washington, D.C. and Boston. He also represented clients at administrative hearings before the Massachusetts Department of Unemployment Assistance as an attorney in the employment law unit of the Central West Justice Center in Worcester, MA.

James received his Juris Doctor from Boston College Law School, and a bachelor’s in history from the University of Massachusetts, Dartmouth. During law school, James represented an asylum seeker before the Boston Immigration Court as a student attorney in the Boston College Law School Immigration and Asylum Clinic and completed internships at the U.S. Department of Labor, Office of the Solicitor, the Medical-Legal Partnership, and the International Legal Foundation in Nepal and New York.

James currently lives in Norton, MA with his wife and two children. He enjoys traveling, reading, and following the Red Sox. Please join us in welcoming James to Sandulli Grace.

Massachusetts Law Review Publishes Article on Labor Arbitration by Sandulli Grace Attorney

The most recent edition of the Massachusetts Law Review features an article by Sandulli Grace attorney John M. Becker entitled, “The Role of Public Policy in Judicial Review of Massachusetts Public Sector Labor Arbitration Awards.” The article reviews the decision by the Supreme Judicial Court in City of Boston v. Boston Police Patrolmen’s Association, 477 Mass. 434 (2017) in light of the history of court review of labor arbitration in Massachusetts, with a particular focus on public policy. The article discusses three ways in which public policy plays a role in judicial review of arbitration:

  1. the policy in favor of resolving labor disputes through arbitration, and against judicial interference in such disputes;
  2. the public policy exception to labor arbitration awards, a court-created doctrine used to overturn certain decisions by arbitrators that violate public policy; and
  3. the nondelegability doctrine, pursuant to which the courts have found that some arbitration awards (and the collective bargaining agreements they are enforcing) are unenforceable because they impinge on the management rights of the public employer.

In addition to tracing the history of public sector labor arbitration and public policy, Attorney Becker provides his opinions on certain key legal questions, including:

  1. expressing a concern that after a court finds certain CBA language is unenforceable under the nondelegability doctrine, the Union has no opportunity to go back to the bargaining table to obtain a replacement benefit for the one that was lost;
  2. opining that, in cases involving awards reinstating discharged employees, the public policy exception should be restricted to cases in which a specific law requires termination – and only termination – as a punishment for the named offense; and
  3. advocating that the contours of the nondelegablility doctrine should be consistent with cases under G.L. c. 150E defining mandatory and permissive subjects of bargaining.

Many of the cases discussed in the article were litigated by Attorney Becker or other Sandulli Grace attorneys, including: City of Boston v. Boston Police Patrolmen’s Ass’n, 477 Mass. 434 (2017); Adams v. City of Boston, 461 Mass. 602 (2012); City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005); School Comm. of Marshfield v. Marshfield Educ. Ass’n, 84 Mass. App. Ct. 743 (2014); City of Boston v. Police Patrolmen’s Ass’n, 74 Mass. App. Ct. 379 (2009); Boston Police Patrolmen’s Ass’n v. City of Boston, 60 Mass. App. Ct. 672 (2004); and City of Boston v. Boston Police Patrolmen’s Ass’n, 41 Mass. App. Ct. 269 (1996).

Attorney Becker’s article can be found in Massachusetts Law Review Volume 100, No. 2 (March 2019). You can see the full article here. https://www.massbar.org/docs/default-source/publications-document-library/massachusetts-law-review/2018/mlrvol100no2.pdf?sfvrsn=4. The Massachusetts Law Review is published by the Massachusetts Bar Association.

Federal Labor Board Reverses Browning-Ferris Joint-Employer Standard

On December 14, 2017, the National Labor Relations Board reversed the Browning-Ferris joint-employer policy established in 2015, marking the first of many significant policy changes that are expected from the Board over the next few years. Newly minted Board members Marvin Kaplan and William Emmanuel, whose appointments by President Trump gave the Board its first Republican majority since 2007, joined with Chairman Philip Miscimarra in issuing the opinion in Hy-Brand Industrial Contractors, LTD. And Brandt Construction Co. (Case No. 25-CA-163189).

The 2015 Browning-Ferris decision revised the standard by which the Board finds two companies to be “joint-employers” of employees that performed work for both companies. Traditionally, whether or not an “employer-employee” relationship exists turns on how much control an employer has over its workers. Where there are multiple employers directing or controlling the same workers, determining whether an employment relationship exists between the parties becomes more difficult. For example, if McDowell’s, Inc. owns a fast-food restaurant chain but contracts with a local company that controls the day-to-day operations of a particular restaurant, it might not be immediately clear if either company is the direct employer of the people who work there, or if both companies are joint-employers. Therefore, only one of the companies may be required to bargain with a union or employee representative.

Prior to Browning-Ferris, for two companies to be considered joint-employers, each would have to possess and exercise authority in controlling employees’ terms and conditions of employment. In Browning-Ferris, the Board removed the exercise requirement, bringing companies that simply possessed control over terms and conditions of employment to the table to bargain with the union over those terms and conditions, even if they did not exercise that control “directly and immediately.”
Thursday’s ruling in Hy-Brand Industrial Contractors revived the old rule, reinstating the requirements that an employer must both possess and exercise control to be considered a joint-employer, and that the control must be “direct and immediate.” The Board called the Browning-Ferris standard a “distortion of common law” and “ill-advised as a matter of policy.” The Board argued that the definition of a joint-employer was “confused” and that it produced “wide-ranging instability in bargaining relationships.”
In their dissent, Board members Mark Gaston Pearce and Lauren McFerran harshly criticized the reasoning and result of their colleagues’ decision. They first took issue with the “indefensible” process carried out by the Board in arriving at its decision, arguing that the Board disregarded “basic principles of reasoned decisionmaking” and “longstanding Agency norms in favor of public participation.” They called the Board’s “unwillingness to let the parties and the public participate” in the fact-finding process “particularly curious,” referring to the Board’s abandonment of the usual practice of soliciting briefs from the parties and the public prior to overturning a significant policy decision. “It is reasonable to infer,” they wrote, “that our colleagues do not want to engage the public for fear of what they might learn – namely, that none of the predicted effects of [Browning-Ferris] have actually come to pass.”

The dissenting members further opined that the decision demonstrated “a willful misunderstanding of the joint-employer standard,” and that it “violates the explicit policy of the National Labor Relations Act: to ‘encourag[e] the practice and procedure of collective bargaining.’” It is clear that this decision, by design, will lead to fewer parties at the bargaining table.

Chairman Miscimarra’s term expired on Saturday, December 16, leaving the Board ideologically split 2-2. President Trump has not yet nominated a candidate for his replacement.
You can read the Hy-Brand decision here, and the Browning-Ferris decision here.

First Amendment Does Not Protect Employee Who Is “Just Doing His Job”

The Massachusetts Appeals Court today reaffirmed that an employee does not have First Amendment protection for statements made as part of his job. New Worcester County Sheriff Louis Evangelidis fired Jude Cristo, who had been the Director of Payroll and Human Resources. Cristo challenged his termination, claiming that he was fired because he complained that employees’ were not doing their jobs because they were engaging in political campaigning during work hours. Cristo claimed that the First Amendment protected his complaints. The Court disagreed.

In granting Evangelidis summary judgment, the Court of Appeals found that Cristo’s speech did not constitute protected expression for First Amendment purposes. The Court of Appeals noted settled Supreme Court precedent that is used to determine when a public employee’s speech is protected. In reviewing speech, the court asks, in part, whether the employee is speaking in their capacity as a citizen regarding a matter of public concern. The Court of Appeals agreed that Cristo was clearly commenting on a matter of public concern because the complaints he made to his supervisor were related to the potential misconduct of sheriff’s office employees. This speech was strongly tied to a matter of public concern because it related to public employee’s campaigning during work hours instead of performing their actual duties and committing other potentially unlawful acts.

However, the Court nonetheless found the speech to be unprotected because Cristo’s comments were made pursuant to his official duties and he was not necessarily commenting as a private citizen. The Court found that Cristo’s complaints were all made in furtherance of fulfilling his duties as the director of payroll and human resources, as his duties included making sure that employees correctly reported their time and included making sure that other employees complied with their human resources responsibilities. Consequently, as Cristo was merely making statements pursuant to his official duties and was not speaking in his capacity as a private citizen, his speech was not entitled to First Amendment protection.

This case is a reminder that while a public employee “does not leave her constitutional rights at the door” when she goes to work, those rights are curtailed when it comes to the operation of her governmental employer.

You can read the decision here.

Appeals Court Upholds Power of Arbitrators to Decide Whether a Teacher has Professional Teacher Status

Today, the Appeals Court issued a decision holding that arbitrators, acting pursuant to their authority under G.L. c. 71, § 42, have the authority to determine if a dismissed teacher held professional teacher status at the time of his/her dismissal. Under G.L. c. 71, § 42, teachers who have three consecutive years of service with a school district are entitled to professional teacher status, which confers upon them certain procedural and substantive rights, including the right to challenge their dismissals before an arbitrator under a just cause standard.

The case, Plymouth Public Schools vs. Education Association of Plymouth, involved a special education teacher, who worked for the school district for five years. During those five years, the teacher took maternity leave twice, under the Family Medical Leave Act (“FMLA”). At the end of her fifth year, the school district notified her of its decision not to renew her for the upcoming year. The district believed that the teacher had not obtained professional teacher status because her service was interrupted by the two periods of maternity leave. The teacher and the union took the position that she had acquired professional teacher status by virtue of her five years as an employee of the school district. Accordingly, the union petitioned the Commissioner of Elementary and Secondary Education for arbitration. The Commissioner forwarded the petition to the American Arbitration Association for an arbitration to determine first, whether the teacher had professional teacher status, and, if she did, whether or not the district had just cause to terminate her employment.

The district filed suit in Superior Court. There, the district argued that the teacher did not have professional teacher status, that she had no right to arbitrate her dismissal, and that the question of whether or not she had professional teacher status could only be answered by the courts, rather than by an arbitrator. After the Superior Court ruled in the district’s favor, the teacher and the union appealed to the Appeals Court. The Appeals Court reversed the Superior Court’s decision and declined to decide whether or not the teacher had professional teacher status. In doing so, the Court ruled that the question of whether or not she had professional teacher status was one appropriately answered by an arbitrator, rather than the courts. As a result, the dismissal will be reviewed by an arbitrator who will have the power to determine whether the teacher had professional teacher status and, if so, whether she was dismissed for just cause. Had the court not decided in the union’s favor, teachers in a similar position would have to file suit in court to determine their professional teacher status, and then, if the court ruled in their favor, proceed to arbitration to obtain a determination on the merits of their dismissal. This decision reaffirms the Legislature’s intent to have arbitrators decide issues relating to the termination of teachers and avoids forcing teachers into costly, duplicative litigation.

The case was successfully litigated by Atty. Matthew Jones of the Legal Services division of the Massachusetts Teachers Association.

Here is a link to the decision.

Public Records Law Overhauled For First Time In 43 Years

The state’s public records law was updated today for the first time in 43 years. The new law, “An Act to Improve Public Records,” puts pressure on municipalities and agencies to respond quickly and adequately to public record requests by establishing strict timeline requirements and allowing for significant judicial measures in the event of noncompliance.

Most notably, the law allows judges to award attorney fees and costs, as well as punitive damages up to $5,000 for a lack of good faith, to requesters who succeed in court against an agency or municipality that fails to produce records according to the statute. This change accompanies a new timeframe for responding to requests. Like the current law, the new law requires a response within 10 business days. However, the new law will require a municipality or agency, if it cannot produce the requested records, to identify a reasonable timeframe for turning them over. That timeframe cannot exceed 15 days for an agency and 25 days for a municipality following the initial receipt of the request, unless otherwise agreed to by the requestor.

Additional provisions call for the use of electronic and digital transmission of records when possible (preferably in ‘searchable’ form), the designation of one or more employees as ‘records access officers,’ and the creation of a Public Records Assistance Fund. Further, agencies must host websites providing records of proceedings, annual reports, winning bids for public contracts, grant awards, agency budgets, minutes of open meetings, and more.

The law specifically clarifies that personal information of law enforcement and public safety personnel, including their home address, personal email address, and home telephone number, “shall not be public records” and “shall not be disclosed,” with limited exceptions that include requests made by public employee organizations such as unions. Section 10B. Similar personal information relating to family members of law enforcement and public safety personnel are explicitly not public records and should never be disclosed, without exception. Id.

The bill, House No. H.4333, passed unanimously in both the House and Senate on Wednesday and signed today by the governor, after being formed as a result of a compromise between two bills originating separately in each chamber. Most of the provisions of the new law take effect on January 1, 2017.

Court of Appeals for the Second Circuit Reverses District Court’s “Deflategate” Decision, Reinstates Brady’s Suspension

By a 2-1 decision, a panel of three judges of the Court of Appeals for the Second Circuit overturned District Court Judge Richard Berman’s decision that overturned the NFL’s suspension of New England Patriots’ quarterback Tom Brady.

In its decision, the majority held that Judge Berman ignored the exceptional deference federal law afford decisions of labor arbitrators and acted beyond the narrow scope of review federal courts are required to adhere to. Specifically, the Court held that in suspending Brady, NFL Commissioner Roger Goodell properly exercised the broad discretion given to him by Article 46 of the collective bargaining agreement to suspend players for “conduct detrimental” to the NFL and/or the integrity of the game.

In its decision, the Court highlighted and rejected each of the three bases upon which Judge Berman overturned Brady’s suspension: 1) that Brady was not given proper notice that his actions could result in a four-game suspension, 2) that testimony excluded from the arbitration made the decision fundamentally unfair, and 3) that the NFL’s denial of access to the investigative notes from the NFL’s General Counsel also amounted to fundamental unfairness. In the case of each, the Court ruled that Judge Berman acted beyond his authority and did not afford Goodell’s decision the deference it was entitled to under the federal Labor Management Relations Act and the Federal Arbitration Act. The Court noted that under federal law, so long as the arbitrator is “even arguably construing or applying the contract and acting within the scope of his authority” the decision must be upheld, and that a judge cannot simply substitute his judgment for that of the arbitrator.

It is worth noting that the point of controversy which received a large bulk of the media attention in this case, that Goodell was able to serve as arbitrator in a dispute involving discipline he himself meted out, was a relatively minor issue to the Court. The Court that found this arrangement is extremely unusual, but noted that it was the process explicitly called for by the collective bargaining agreement. This is consistent with a long line of cases emphasizing that when parties to a collective bargaining agreement agree to a grievance process which ends in final and binding arbitration, that the decision of an arbitrator should be just that: final, binding, and free from interference by the courts. It seems that if the NFL and the NFL Players Association are to fix what many agree is a broken system of disciplinary appeals, they will have to do so at the bargaining table, rather than in a courthouse.

SJC Determines That State Pension Forfeiture Statute Is A Fine, Subject To The Eighth Amendment

The Supreme Judicial Court has ruled that G.L. c. 32, § 15(4) is a fine and therefore subject to the restrictions of the Eighth Amendment of the United States’ Constitution. Section 15(4) provides for the forfeiture of a public employee’s pension and health insurance benefits if he/she is convicted of a crime relating to his/her position. The Court’s decision means that individuals convicted of minor crimes may not be subject to a complete forfeiture of their pension and retiree health insurance.

The case, Public Employee Retirement Administration Commission v. Bettencourt, involved, a lieutenant and twenty-five year veteran of the Peabody Police Department, who was convicted of twenty-one counts of unauthorized access of a computer system. Shortly after his conviction (which has since been appealed), the lieutenant applied for a superannuation retirement. However, as a result of the conviction, the Public Employee Retirement Administration Commission (“PERAC”) denied his application on the grounds that his retirement benefits and continuing health insurance were forfeited under G.L. c. 32, § 15(4). The issue before the Court was whether Section 15(4), as applied to this officer’s case, was an excessive fine under the Eight Amendment of the United States’ Constitution.

In determining that the forfeiture was an excessive fine, the Court held that Bettencourt had a property interest in his retirement benefits, that the forfeiture was a punishment (and hence, a fine), and that the fine as applied to him was disproportionate to the harm caused by the crimes for which he was convicted. As a result, the Court ruled that Section 15(4)’s forfeiture would not apply to Bettencourt’s pension and health insurance, allowing him to receive both in their entirety. Rather than determine what a non-excessive fine would be in this case, the Court deferred to the Legislature to determine how cases such as Bettencourt’s would be handled after forfeiture is deemed to be excessive.

This case is an important one, as the Court held for the first time that forfeiture under G.L. c. 32, § 15(4) is a fine subject to the restrictions of the Eighth Amendment. While the case did not strike down Section 15(4), unless and until the Legislature answers the Court’s call to create a remedy for individuals who have been excessively fined under Section 15(4), excessive forfeitures should result in an employee receiving the entirety of their retirement and health insurances benefits.

You can find the case details here.

Appeals Court Upholds Arbitrator’s Award Reinstating Employee, Even Where Arbitrator Found He Sexually Harassed A Co-Worker

The Massachusetts Appeals Court today upheld an arbitrator’s reinstatement of a City of Springfield employee who was found to have sexually harassed a co-worker. The case is City of Springfield v. United Public Service Employees Unions, No. 15-P-742. The three judge panel, adhering to the high deference afforded an arbitrator’s decision, refused to find that the award violated public policy. The court found that while there is certainly a strong public policy against sexual harassment, the reinstatement of the grievant did not violate that public policy as he was still subject to remedial action for his behavior.

The grievant, a twenty-two year employee of the Springfield housing office with an “unblemished” record, was a messenger for the office. He suffers from “significant physical and mental health problems” and has a “mildly impaired overall [IQ] of 74.” He was fired over one incident, in which he made lewd statements and gestures toward a female employee, causing her significant upset. His union filed a grievance, and following a two day hearing, an arbitrator found that there was not just cause for the termination, and ordered him “reinstated to his position without loss of compensation or other rights.” The arbitrator found that the grievant’s conduct did amount to sexual harassment, but that termination was not justified. The arbitrator based her decision on the grievant’s work history, his physical and mental limitations, and also on the fact that another employee “engaged in a six-month course of sexual harassment directed at a co-worker” and received only a reprimand.

The City first claimed that the failure to uphold termination violates public policy. The court quickly rejected this, pointing out that employers are not required to terminate an employee who sexually harasses another employee, as long as other “appropriate remedial action” is taken. The City next claimed that the award violated public policy in that it ordered the grievant reinstated with no loss of compensation. The City argued that public policy required a sexual harasser to be punished in some way. The Court rejected this argument, noting that “counseling and training” are appropriate remedial responses to sexual harassment, and that the arbitrator’s award did not impede the employer’s right to require such. Again properly noting its limited role in review of an arbitrator, the panel noted that upholding the award “does not suggest that we agree with the arbitrator’s resolution of the matter without loss of compensation or other employment rights, as ‘even our strong disagreement with the result [would] not provide sufficient grounds for vacating the arbitrator’s award.”

The Court’s decision in this case again demonstrates that arbitrator’s awards are subject to great deference on review. Judges properly uphold such awards, even when they disagree with them, as the parties to an arbitration agreement have submitted to the “final and binding” nature of the process.

Read the decision.