Category Archives: Labor In The News

“Massachusetts Lawyers Weekly” Taps Sandulli Grace Attorney For Expert Commentary On Confidentiality Clause Case

Sandulli Grace attorney John M. Becker provided expert commentary in a recent front page article in the March 23, 2009 edition of Massachusetts Lawyers Weekly.  MLW is the leading news publication in the state for the legal community.  Attorney Becker commented on the recent decision of the U.S. Court of Appeals for the First Circuit, Northeastern Land Services, Ltd. v. National Labor Relations Board, — F.3d —-, 2009 WL 638248 (2009). In this case, the First Circuit upheld NLRB’s conclusion that the employer’s discharge of an employee over an alleged breach of confidentiality was improper.   At the heart of the case was the employer’s rule that employees sign a confidentiality agreement that made employees promise not to discuss wages and terms of employment with others.  In other words, the employer prohibited employees from talking with each other about their compensation, to compare how they were being paid to other employees, which essentially prevented employees from networking to improve their working conditions.  Before he was fired, the employee became involved in a pay dispute with his employer which he then discussed with a third party.  Ultimately, the employer fired the employee, charging him with violating the confidentiality rule.

The employee filed an unfair labor practice charge with the NLRB, alleging that the confidentiality rule had the effect of intimidating and coercing employees in the exercise of their right to engage in collective activity.  Even though no union was involved in this case, the NLRB found (and the First Circuit agreed) that the confidentiality rule was so overbroad that it violated the National Labor Relations Act, which grants employees the right to organize and engage in collective action, no matter how the rule was applied.  The NLRB concluded that the discharge of the employee for discussing his wages and benefits was improper.  The decision serves to remind employees that they have a right to engage in concerted action about their wages and benefits, even if they elect not to do so under the aegis of a union.

In commenting on the case in “Massachusetts Lawyers Weekly”, Sandulli Grace’s Becker noted, “[The decision recognizes] that as employers become more sophisticated in ways to keep unions out of their shops, the board has to be able to recognize that and protect the rights of employees to organize, even if situations like this one where it’s not obvious that there’s a union issue.”  Becker disagreed with the employer’s attorney’s prediction of dire consequences from the decision.  On the contrary, he stated, “The court itself discusses the possibility of a more narrowly fashioned confidentiality agreement that reaches legitimate goals the employer might have without being overbroad.”      

MCOP and BPPA File For Injunction to Stop Banding

Today, March 27, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, jointly represented by Alan Shapiro and Bryan Decker of Sandulli Grace, filed a lawsuit in Suffolk Superior Court to enjoin the Human Resources Division from promoting with banded lists.

The Court set a hearing on the injunction for Tuesday, March 31, at 2:00 p.m. in Suffolk Superior Courthouse, Room 916.

The arguments are essentially the same ones made, and rejected, before the Civil Service Commission.  HRD has a rule saying it establishes lists with “whole numbers.”  We all know that means the scores are supposed to be in a 1-100 format.  If they want to start banding, they have to change their rules.  The legal way to do that is to follow the procedures in the Civil Service law for rule-making. 

We want to thank all of you who have shown your support over these past weeks for our efforts to preserve a merit-based, civil service promotional system for police officers (and, by extension, others) in Massachusetts.

Read the complaint and the memorandum 

Mass SJC Grants Another Victory To Boston Police Patrolmen’s Union In Long-Running Overtime Battle: City’s Unilateral Shortchanging Of Overtime Pay Violates State Law

The Massachusetts Supreme Judicial Court, the state’s highest court, today upheld a 2006 ruling of the state Commonwealth Employment Relations Board (CERB) that the City of Boston unlawfully reduced the overtime compensation of Boston Patrol Officers without first bargaining with their union, the Boston Police Patrolmen’s Association, Inc. (BPPA).  The SJC and CERB ordered the City, which made the unlawful change in July 2002, to “make whole” the patrol officers represented by the BPPA – which likely will cost the City several hundred thousand dollars. 

Today’s SJC decision caps lengthy litigation regarding the City’s repeated violation of state and federal laws concerning overtime pay to Boston police officers.  In 2000, more than 800 Boston patrol officers, represented by Sandulli Grace Attorneys Bryan Decker and John Becker, sued the City in federal court for the City’s outright refusal to pay overtime as required by the federal Fair Labor Standards Act (FLSA).  The federal court agreed, and the City ultimately paid officers almost $700,000 plus attorney’s fees.  In July 2002, while the federal litigation was ongoing, the City unilaterally adopted the FLSA’s “partial public safety exemption,” which lowers federal overtime payments to police officers and firefighters.  While the City’s unilateral adoption of this partial overtime exemption was permitted by the FLSA, it was not by state law.  Under state law, Chapter 150E of Massachusetts General Laws, a municipal employer must bargain with a union before changing the wages of employees represented by a union.  The BPPA immediately demanded to bargain about this change.  The City refused, even though the parties were negotiating a new contract, and instead implemented the change.  On behalf of the BPPA, Sandulli Grace Attorneys Bryan Decker and Patrick Bryant filed an unfair labor practice charge with the state labor relations agency.  CERB ruled in the BPPA’s favor, and the City appealed. 

The SJC upheld the CERB decision on all points, finding that:

 

  • “the city was obligated under G.L. c. 150E to bargain in good faith with the union regarding” the July 2002 decision to adopt the partial public safety exemption;
  • that the City further violated the law by refusing to provide the BPPA with information it requested;
  • and that the proper remedy was for the city to “[m]ake whole affected employees for the economic losses they may have suffered as a result of the [c]ity’s decision to adopt” the partial public safety exemption. 

With regards to the remedy, a conservative estimate is that the City reduced overtime pay to officers by at least $100,000 per year by making the unlawful change.  Damages will run back to July 2002, and the BPPA’s members are entitled to interest.

BPPA President Thomas Nee welcomed the Court’s decision.  “We’re extremely gratified that the Supreme Judicial Court agreed with our position in this case.  The FLSA is designed to protect the rights of people who work more than 40 hours per week and ensure that they are properly compensated.  The Court affirmed that this applies to police officers as well.”

Sandulli Grace Attorney Bryan Decker, who argued the case to the SJC, said, “The City continuously, and improperly, claimed that it couldn’t comply simultaneously with the FLSA and its obligations under state law.  The SJC rejected this argument as bogus, and upheld that workers are entitled to the protections of the FLSA and their Union.  Given the state of our economy, this decision reminds employers that a desire to save money is not a defense to violating legal obligations.  Hopefully, municipalities will learn that the only way through these challenging times is to treat unions and employees as partners rather than problems.”

READ the SJC decision at:

http://www.socialaw.com/slip.htm?cid=18853&sid=120

The Band Plays On: Civil Service Commission Abdicates Oversight Role To Human Resources Division – Refuses To Investigate Decision To “Band” Promotional Test Scores

The Civil Service Commission today rejected appeals filed by Sandulli Grace on behalf of the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police (and companion cases filed by the Boston Superior Officers and IBPO) challenging the Human Resource Division’s decision to start “banding” scores from civil service promotional exams when placed on eligibility lists.  Specifically, the Commission rejected the straightforward argument that HRD violated its own rule requiring that exam scores be listed “in whole numbers.”  Instead, Civil Service decided that scores expressed in bands, each containing up to 8 points, are in “whole numbers” because the bands are numbered 1 through 7.  When the HRD attorney made this ridiculous argument in the civil service hearing room, members of the crowd, including one sitting commissioner, audibly laughed.  Now, apparently, it is the law, contradicting the old adage that an argument should first have to “pass the laugh test.”

            In one decision the Commission ruled that individual offers are not “aggrieved” because they have not suffered “actual harm” – YET!  Reading Chapter 31 (Civil Service law) to only remedy past wrongs, the Commission ruled that since no one has been yet harmed by banding, the appeals are untimely.  Of course, it was our hope and desire to AVOID a situation where individuals are promoted based on banding only to have those promotions undone through an after the fact appeal.  (Indeed, Counsel to HRD, while claiming that our appeal was not ripe, simultaneously argued that the Commission could not go back and undo initial hiring decisions already made because of the chaos that would result.)  Unfortunately, the Commission punted rather than take the issue on headfirst.

            In the second decision on our request for an investigation (as opposed to an appeal), the Commission rejected our argument that HRD had violated its own rule.  Although our request only sought to require HRD to follow proper rulemaking regarding banding, the Commission nonetheless wrote a lengthy exegesis on how terrific banding really is, citing law review articles and unrelated dicta in federal civil rights cases.  Amazingly, the Commission quoted Massachusetts Federal Judge Saris, who opined in a decision that “banding … seems consistent with” civil service.  This is amazing because Judge Saris noted in the same case that “the attorneys have not briefed the issue,” and that “HRD has expressed some legal uncertainty as to whether the statutory framework in Massachusetts allows banding.”  Without a hearing, rulemaking, or any other legal proceeding, HRD has now gone from questioning the legality of banding to making it the law of the land.

            As to WHY HRD’s decision to band scores does NOT violate the “whole number rule,” the Commission held that bands “are whole numbers.”  By this logic, HRD could follow its “whole number” rule by scoring exams 1-100, 1-7 (as in banding), or 1-10,000 (as it did when it used to break down scores to the hundredth of a point).  In other words, the rule has no meaning.  This would be comic were it not for its effect on the careers of literally thousands of police officers who arduously studied, sacrificing earnings and time with their families, expecting their efforts to be scored by the rules.

            A stern dissent by two of the five Commissioners (Henderson and Taylor) pointed to the time and effort put in by test-takers with the expectation that their tests would be scored as they have been in the past: in whole numbers of 1-100.  They disagreed with the majority and would order the relief requested by our clients:

That the Commission order HRD to comply with its present rules and establish eligible lists from the October 2008 police promotional examinations in whole numbers and not utilize banding or any other method. 

To the extent that HRD desires to amend PAR. 07 (4)[the “whole number” rule], the Commission should then order that no such amendment become effective unless and until HRD complies with the statutory requirements of G.L. c. 31, §§ 3 and 4.

            Like the indulgent parent admonishing the wayward teenager taking the family Mercedes out for a spin to “be careful,” the Commission wagged a finger at HRD that, because of the enormous new power it was conferring on appointing authorities, it had better “embark[] forthwith on an inclusive, transparent selection process to ensure effective implementation by municipalities of post-banding selection procedures.”  That was what the Legislature created under the statutory “2N +1 Rule,” until HRD and Civil Service saw fit to destroy it.  But we need not worry, because the decision tells us that the Commission “will not stand idly by if presented with competent evidence that unlawful favoritism was the driving force behind a particular promotional appointment.”  This gives little comfort as we have watched Civil Service stand idly by while HRD makes up its own rules and the agency abrogates its statutory oversight role.

            The role of the Civil Service Commission as a watchdog against favoritism and overreaching by HRD is called into question when Civil Service refuses to demand that HRD conduct rulemaking in the open – AS IT IS REQUIRED TO DO. 

            Needless to say, we are reviewing our options with our clients.  Stay tuned…

LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs.

LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs.  The Labor and Employment Relations Association is hosting a dinner meeting regarding veteran’s benefits and jobs on Thursday March 19, 2008. The meeting is at;

NSTAR Electric  & Gas 

One NSTAR Way, (Please use EAST ENTRANCE) 

Westwood, MA 02090 

781-441-8773 

Social Hour @ 5:30 PM 

Dinner @ 6:30 PM 

Tickets: $50/Member • $60/Non-Member • $25 student 

Download the LERA_dinner_meeting flyer_

Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.

MassCOP To Serve As Only Police Labor Rep On Police Training Commission

Sandulli Grace, PC, congratulates its longtime client, the Massachusetts Coalition of Police, AFL-CIO (“MassCOP”), on its recent appointment as the only police labor representative to a special commission on local police training. Earlier this year, the Massachusetts Legislature passed Chapter 3 of the Resolves of 2008 to establish a special commission. The Commission’s dozen or so members will study the creation of a statewide law enforcement training program and improvement of municipal law enforcement training. Commission members include representatives from the Massachusetts House and Senate Joint Committee on Public Safety, the State Police Colonel, the Massachusetts Chiefs of Police Association, and several other entities related to law enforcement. MassCOP, which represents more than 3,200 police officers and police employees in the Commonwealth, was named in Chapter 3 as the only representative of rank-and-file police officers and police unions. MassCOP Vice President and Legislative Committee Chair Kenneth J. Scanzio will serve as MassCOP’s representative to the Commission. Sandulli Grace again congratulates MassCOP and Vice President Scanzio on yet another recognition of their status as leaders in advocating for sworn police officers.

LEGISLATIVE ALERT – MAINTAINING SWORN POLICE OFFICERS AT PRIVATE DETAILS IS UNDER ATTACK! CALL YOUR STATE SENATOR AND REPRESENTATIVE TODAY!

No doubt that you have heard the overactive rumor mill regarding possible legislation on private paid details. Sandulli Grace is in constant contact with the legislative officers of the Massachusetts Coalition of Police (MassCOP) and the Boston Police Patrolmen’s Association (BPPA). Here’s what we know as of Tuesday Morning, April 1. This situation is developing hourly, and we will continue to keep you up to date:

The House transportation bill does not contain any attack on the use of sworn police officers to direct traffic at road construction jobs. There is a possibility that the Senate will attach a rider onto its version of the transportation bill that does impact details. If you agree that sworn police officers at private details provide enhanced public safety in a cost effective manner, you should call your senator and representative to let them know how important it is to maintain these protections.

CALL YOUR STATE REPRESENTATIVE AND SENATOR TODAY TO TELL THEM WHY sworn police officers at private details provide enhanced public safety in a cost effective manner.

You can look up your senator and representative (and get their phone numbers) here, by going here, http://www.wheredoivotema.com/bal/myelectioninfo.php

Our client MassCOP has developed the following helpful information regarding details, which you can cite when speaking with your legislators: (You can also download the information as a .pdf using this link: mcop-police-details-make-sense.pdf )

POLICE DETAILS AT WORK ON OUR ROADS PROVIDING ENHANCED PUBLIC SAFETY IN A COST EFFECTIVE MANNER

Putting aside the rhetoric and hyperbole, the facts demonstrate that having sworn police officers assigned to road and highway construction projects – so-called Paid Police Details – provides both enhanced public safety and cost effectiveness.

POLICE DETAILS ENHANCE PUBLIC SAFETY:

Sworn police officers are trained emergency first responders, ready and able to:

  • Perform CPR
  • Utilize defibrillators maintained in cruisers in the case of cardiac episode
  • Communicate effectively with fire and EMS responders, ensuring fast, effective response when accidents occur
  • Just last week, the first responders to the MBTA train tragedy in Canton were four Canton Police Officers (all members of MCOP) working a nearby private detail. These trained offices were able to immediately identify the needs and call for fire and ambulance services, and begin to provide emergency services while awaiting the arrival of the EMTs.

Sworn police officers performing private details means more cops on the street:

  • Police officers perform private details in the communities they police, providing extra protection to the people of the community in the event of a crime
  • Officers routinely assist motorists while performing private details
  • Officers routinely respond to emergency calls while performing paid details, frequently being able to respond faster than officers who are providing services elsewhere
  • Officers provide security to the construction and utility workers doing their jobs in high crime areas

POLICE DETAILS ARE COST EFFECTIVE:

The use of civilians to direct traffic at construction sites is unlikely to lead to meaningful costs savings:

Contractors will be required to pay civilians state prevailing wages to take the place of sworn police officers. The prevailing wage for such “flagmen” is currently (figures provided by Massachusetts Department of Labor):

  • Metro Boston $37.45 per hour
  • Central Mass $34.05
  • Springfield $30.72
  • Berkshires $29.97

In addition, contractors will need to pay payroll taxes and provide health insurance to civilians hired to replace sworn police officers. When you add it up, it doesn’t make sense.

Appeals Court Rules Employer Immune From Tort Liability For Workplace Injury

“Employee misclassification” has long been a problem that costs workers and the government billions of dollars every year. Employers are notorious for trying to label employees “independent contractors” in order to avoid paying payroll taxes and worker benefits. “Employee Misclassification” is especially common when workers have been injured, harmed, or otherwise mistreated at work. In circumstances where employees organize to form unions, are victims of illegal discrimination, file claims for unpaid wages or overtime, or are terminated without just cause, it is a common litigation dodge of employers to argue that they are not, in fact, employers. The recent Massachusetts Appeals Court case of Fleming v. Shaheen Brothers, 07-P-255 (Feb. 21, 2008) http://socialaw.org/slip.htm?cid=17900&sid=119a provides a unique instance when an employer has a financial incentive to prove that it is the boss to an employee injured on the clock.

In general, Massachusetts workers compensation law provides immunity to employers from personal injury claims by employees injured on the job. As the tradeoff for requiring employers to contribute to workers compensation insurance to make lost compensation and health benefits available, the law prohibits injured workers from bringing personal injury claims, which could potentially provide much large awards. (In certain circumstances, employees may file personal injury claims against third parties that caused the injuries, including manufacturers, and sometimes against fellow employees).

In Shaheen Brothers, an employee was injured while operating a forklift. The employee and his wife sued the employer and the forklift manufacturer. Shaheen Brothers hired, supervised and directed the employees. But, as is not uncommon in the construction industry, Shaheen Brothers outsourced its administrative and payroll functions to a different company, NBS. It was NBS, not Shaheen Brothers, that paid employees, withheld taxes and contributed to unemployment and workers compensation funds. The injured employee argued that NBS, not Shaheen Brothers, was his employer and Shaheen Brothers therefore was not immune from liability for personal injury claims. The Appeals Court disagreed. “NBS cannot be considered a general employer if it did not exercise any control over Fleming’s work duties; performing payroll functions does not amount to a working relationship.”

In concluding that an employer-employee relationship existed between the injured employee and Shaheen Brothers, the Appeals Court relied on the golden rule of “if it walks like a duck, it’s a duck” rather than technical niceties. In other words, if the company hires you, assigns you work, supervisors your work, and has the power to discipline you or change your wages, then it is your employer for purposes of workers compensation, regardless of who is listed on your paystub.

Legislature Affirms Intent To Strengthen Wage And Hour Law

Contact The Governor To Tell Him To Stand With Workers On S. 1029

As we noted on Wednesday, earlier this week Governor Patrick refused to sign legislation designed to strengthen penalties imposed on employers that violate state wage and hour laws. Instead, he sent the bill back to the legislature with a demand that it be watered down. I’m very happy to report that both houses of the Legislature have rejected the Governor’s amendment. On Tuesday, the Senate rejected the amendment, and yesterday the House concurred. The legislature will soon formally re-enact the bill mandating triple damages for violations of state wage and hour laws. Once that happens, it goes back to the Governor.

Once the bill is returned to the Governor, he has three choices – he can veto it, he can sign it, or he can do nothing, which will cause it to become law. Let the Governor know that you want him to join with the legislature and support workers rights by signing S. 1029. You can call the Governor’s office at 617-725-4005 or 888-870-7770 (in state). Or you can send him an e-mail using the form on his webpage, http://www.mass.gov/?pageID=gov3utilities&sid=Agov3&U=Agov3_contact_us.

While you’re at it, consider dropping your Senator and Representative a note to let them know that you appreciate their refusal to bend to the Governor’s attempt to weaken workers’ rights. You can get contact information for your representatives by filling in your address here, http://www.wheredoivotema.com/bal/myelectioninfo.php.