Boston EMS/BPPA Union Wins Appeal Of Sick Leave Arbitration Award

Suffolk Superior Court Judge Linda Giles issued a ruling on July 9, 2012 upholding an arbitrator’s award in favor of the union representing emergency medical technicians (EMTs) and paramedics employed by the City of Boston.  The case is Boston Public Health Commission v. Boston Emergency Medical Services-Boston Police Patrolmen’s Association, SUCV2007-03270.  The union was represented by Sandulli Grace attorneys Kenneth A. Grace and John M. Becker.

The case involved the proper discipline for violation of an employer sick leave policy.  At the arbitration, the Public Health Commission (PHC) alleged that under the policy, an EMT’s most recent violation of the sick leave policy required a five-day suspension.  The union argued (1) there was no violation and (2) even if there was, the prior disciplines required only a 1-day suspension.  The arbitrator agreed with the union’s second argument.  He found that the PHC failed to follow its own progressive discipline policy when it gave the EMT a five-day suspension and reduced it to a one-day suspension.

But there is a twist.  After the parties finished putting on their evidence, but before they filed briefs, PHC’s legal staff sought to introduce evidence of two prior disciplines.  These disciplines were not produced in response to a prior union request for documents and they contradicted the testimony of the PHC’s own witness, who did not mention these two disciplinary actions when recounting the grievant’s disciplinary history.  The PHC provided no explanation for why these records had not been produced during the hearing.  The arbitrator denied the request to add new evidence at such a late date, particularly where the union had no chance to cross-examine witnesses regarding the new evidence.

The PHC appealed the arbitration award to Superior Court, arguing that the arbitrator erred when he excluded the new evidence.  In court, all parties agreed that, if the new evidence had been admitted, then the five-day suspension would have been appropriate under the progressive discipline policy.  So the issue before Judge Giles was whether the arbitrator acted properly in excluding the late evidence.  Noting the extreme deference the courts give to arbitrator’s awards, such that arbitrator’s awards are not overturned even if they contain errors of law or fact, the judge affirmed the decision.  In a somewhat desperate move, the PHC also alleged that the union had deliberately hidden the evidence.  The judge summarily rejected this allegation, and noting that the PHC “as the Grievant’s employer, is in a better position to keep track of the Grievant’s disciplinary records than the employee.”