Sandulli Grace and the Massachusetts Coalition of Police are pleased to announce a day-long “Advanced” training for MCOP officials and members. It will take place on Wednesday, October 3, 2018 at the Doubletree Hotel in Westboro, from 8:30 to 4:30. Click here for a brochure with registration information.

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

This advanced training will go beyond our recent “Basics” trainings, which are geared toward new local officials. Our “Advanced” training will be an in-depth discussion of challenging issues that arise day-to-day for police unions. It is geared toward all union members, and union officials with or without prior experience running a union. Topics will include:

• Unfair Labor Practices
• Management Rights
• Just Cause for Discipline
• Health Insurance
• Shootings and Other Critical Incidents
• Injured on Duty Benefits and Disability Retirement
• Regular Retirement Options
• Issues facing Public Safety Dispatchers
• Drafting and Processing Grievances

There will also be a discussion of the U.S. Supreme Court’s recent decision in Janus v. AFCME Council 93.

Each topic will be taught by a team of Sandulli Grace attorneys. We will provide written materials you can take home with you for future use. There will be time for questions, and practical applications of the concepts discussed. At the end of the training, the attorneys will hold a half-hour “ask the lawyer” forum and take questions about any topic of interest to the attendees. There will be a luncheon, and the day will end with a cocktail reception.

To register, please e-mail Gia Capozzi at GCapozzi@sandulligrace.com.

Any questions can be directed to lpanettiere@sandulligrace.com. You may download the event flyer here

We look forward to assisting you in providing the best representation possible for your members.

Leigh Panettiere
Sandulli Grace, P.C.

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.

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.