Category Archives: Labor In The News

BOSTON POLICE PATROLMEN’S ASSOCIATION WINS BIG IN APPEALS COURT – SIX TERMINATED POLICE OFFICERS REINSTATED

COURT AFFIRMS CIVIL SERVICE COMMISSION FINDING THAT PSYCHEMEDICS’ HAIR DRUG TESTING USES BAD SCIENCE

The Massachusetts Appeals Court issued a decision on October 7, 2016 regarding the civil service appeals of 10 Boston police officers who were terminated solely because their hair tested positive for illegal drugs. All 10 officers in the appeal denied that they had used illegal drugs. In Thompson v. Civil Service Commission, No. 15-P-330 (Mass. App. Ct.), the Appeals Court affirmed the decision of the Massachusetts Civil Service Commission ordering six of the officers to be reinstated. After 18 days of hearing, the Commission ruled on February 28, 2013 that the hair testing protocol used by Psychemedics, Inc. was based on bad science and the Boston Police Department could not rely on a positive drug test alone to terminate a police officer. All 10 officers are members of the Boston Police Patrolmen’s Association (BPPA), which provided legal and financial support for these appeals. The BPPA represents the 1500 patrol officers of the Boston Police Department in collective bargaining over matters of wages, hours and working conditions.

Based on its initial finding that the hair test result alone was insufficient to terminate an officer for violating the Department’s rule against using illegal drugs, the Commission went on to consider other factors, such as the credibility of the officers’ denials that they used drugs, to determine whether the Department had just cause to terminate. Using this additional information, the Commission found that the Department had just cause to terminate four of the 10 officers. The Commission ordered the remaining six officers reinstated, but without full back pay. Representing the officers at the Commission at the request of the BPPA were attorneys Alan Shapiro and Jennifer Rubin, both partners at Sandulli Grace, P.C.

The City of Boston and Boston Police Department appealed the Commission’s decision on the six reinstatements to the Superior Court. The four terminated officers also appealed, and the six reinstated officers appealed the portion of the decision denying them full back pay. The Superior Court issued a decision on October 6, 2014 affirming the Commission’s decision in large part, but agreeing with the six reinstated officers that they were entitled to full back pay.

In the next round, the City and Department appealed to the Appeals Court on the issue of the six reinstatements, and the four terminated officers also appealed. The Appeals Court’s October 7, 2016 decision affirmed the Commission’s decision, but adopted the Superior Court’s ruling that the six reinstated officers were entitled to full back pay. Sandulli Grace attorneys Alan Shapiro and John M. Becker, at the request of the BPPA, represented the 10 officers in the appellate proceedings.

Either or both parties may file a petition for further appellate review to the Supreme Judicial Court within 14 days. Unlike the Appeals Court, which must review all the appeals filed with it, the SJC may select which cases to review. In practice, the SJC rejects approximately 9 out of every 10 applications for further appellate review it receives in civil cases.

The implications of this case are significant for any Union or Employer where hair testing, particularly hair testing by Psychemedics, is conducted. The Civil Service Commission was unequivocal in its conclusion that there are too many unanswered questions and questionable scientific assumptions in Psychemedics’ current hair testing protocol to allow an employer to fire an employee covered by just cause (either in a collective bargaining agreement or statute) on the basis of a hair test result alone.

Masscop Members In Rockport Win Back National Guard Pay Benefit – Arbitrator Rejects Town’s Argument That Payments Are Unlawful.

Arbitrator Richard Boulanger handed a significant victory to Local 154 (Rockport) of the Massachusetts Coalition of Police, AFL-CIO (“Union”) on August 3, 2016 when he sustained a grievance over pay cuts by the Town of Rockport (“Town”) for officers attending National Guard training. In doing so, Arbitrator Boulanger rejected the Town’s argument that it could not legally pay officers their full pay during National Guard training.

Two Rockport police officers who served in the National Guard and had been receiving full pay while attending mandatory military training were informed in January 2015 that the Town would now be deducting their National Guard military allowances from their pay, because, the Town claimed, to do otherwise would be illegal. The Union filed a grievance over the pay cut, which proceeded to a hearing before Arbitrator Boulanger. The Massachusetts Coalition of Police provided legal support by assigning Attorney John M. Becker, of Sandulli Grace, P.C., to represent Local 154 and the two grievants.

In his decision [which may be found HERE], Arbitrator Boulanger recognized that the Town had established a past practice of paying employees who were members of the National Guard their full pay while on leave attending mandatory training, without deducting the military allowance the employees received. The practice was encompassed by the strong maintenance of benefits provision in the collective bargaining agreement (“CBA”) between the Town and the Union, which protects any job benefit that (1) existed in the past and (2) has not been contractually modified, even if it is not mentioned in the CBA.

Boulanger rejected the Town’s argument that paying officers without deducting military allowances violated the law. Boulanger reviewed four statutes relating to military pay. First, the federal military leave law, USERRA, does not contain any provisions regarding pay during National Guard training, and so was irrelevant. Of three state statutes with some relevancy, none actually applied to this case, Arbitrator Boulanger concluded. G.L. c. 149, § 52a, which had previously provided for 17 days of military training leave to members of the reserves, which could be “paid or unpaid at the Town’s discretion”, was repealed in 2014 and was no longer good law. Chapter 137 of the Acts of 2003, a local option law that the Town had adopted, allows for paying regular base salary without loss of leave or seniority, but minus any military pay or allowance, for officers in “active service.” But as Arbitrator Boulanger pointed out, the statute is inapplicable because the officers in this case were not in “active service” and National Guard training is specifically excluded from the scope of the law. The Town had not adopted G.L. c. 33, § 59, a local option law, but Arbitrator Boulanger found that statute to be the most relevant. If adopted, the law (as amended in 2014) requires municipalities to give employees in the armed forces full pay without deducting for military stipends or pay during training, for up to 34 days in a state fiscal year or 17 days in a federal fiscal year, without loss of seniority or accrued leave. Boulanger pointed out that, although the Town had not adopted G.L. c. 33, § 59, it had adopted Chapter 137 of the Acts of 2003, which provides that it “shall not limit or reduce a person’s entitlement to benefits under [G.L. c. 33, § 59].”

Ultimately, Arbitrator Boulanger concluded that, while no statute specifically authorized the Town to pay full pay to employees during National Guard training, no statute prohibited the payments either, so the past practice of the Town – which was fully consistent with the local option law, G.L. c. 33, § 59 – was lawful and enforceable. For these reasons, the Arbitrator sustained the grievance and ordered the Town of Rockport to pay the police officers full pay during military training without deducting military allowances going forward and pay the officer back pay to make them whole from the time their pay was cut in January 2015.

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.

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.

Masscop Prevails In Arbitration Of Injury That Re-Emerged Twenty Four Years Later

On February 22, 2016, Arbitrator Marc Greenbaum issued an injury leave award in favor of Mass Coaltion of Police and Rehoboth Police Lt. Bruce Dube. A copy of the Award is attached. Mass COPs case was presented and argued by Sandulli Grace Attorney Amy Laura Davidson.

The case involved a reoccurrence and exacerbation of a previous injury that Lt. Dube had suffered in a cruiser accident in 1990. The accident damaged one of his cranial nerves causing him to have double vision. He was able to compensate for it for many years by tilting his head or blinking. Last December, Bruce’s condition deteriorated and he was no longer able to compensate for the double vision.

Lt. Dube had 27 years of unblemished service. He rose through the ranks to Lieutenant. The medical evidence that his condition was work related was uncontroverted. Even the Town’s doctor found that to be the case. Although the Chief originally placed Bruce on IOD, he reversed that decision and deducted his sick leave back to February 2015. The Town dragged its feet causing Lt. Dube to run out of all of his accumulated sick and vacation time. He went off the payroll in early December 2015 and remained so until the Award issued.

Arbitrator Greenbaum issued his award in under two weeks. He found that the Town violated the contract by failing to place Lt. Dube on injured on duty leave. He also held that the Town violated the contract by switching Bruce’s shift assignment to the day shift while he was incapacitated resulting in a loss of @ $95/week. Arbitrator Greenbaum issued a make whole order requiring the Town to restore all the accumulated time that Bruce was forced to use, compensate him for back pay and place him on IOD status going forward.

The parties are currently engaged in discussions about the damages owed under the Award. The amount owed is in excess of $50,000. In addition, the Town has agreed to reimburse Lt Dube nearly $9,000 for the taxes that were unlawfully withheld from his pay while he was incapacitated.

Read the arbitrator’s award.

43rd Annual Workshop for Public Sector Labor Relations Specialists

On Saturday May 7th, the Boston Bar Association will be holding its 43rd Annual Workshop for Public Sector Labor Relations Specialists at Langdell Hall, Harvard Law School. The program is designed to familiarize lay people and attorneys who specialize in labor relations with current trends in collective bargaining and other issues affecting public employees. This year’s program features a review of significant labor law decisions issued in the past year followed by a panel of representatives from the Department of Labor Relations and the Joint Labor Management Committee who will review recent developments in their agencies. A second panel addresses the perils and pitfalls of workplace investigations including Weingarten and Fifth Amendment Rights. The conference is co-chaired by Amy Laura Davidson of Sandulli Grace, P. C., Brian Magner of Deutsch, Williams, Brooks, DeRensis & Holland, P. C., and Suffolk University Professor of Law Marc Greenbaum.

The Supreme Court Hands Down An Unexpected Public Sector Union Victory

An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.

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.

Termination Upheld When Safety Violation Was Intentional And There Were Prior Disciplines

The Labor Arbitration Institute have arbitrators discuss hypothetical employment arbitration scenarios and state how he/she would have ruled. These “decisions” by arbitrators can be helpful in assessing how an arbitrator would rule in real world cases. In this scenario, a two-year employee rigged one of the two handles/levers on a press machine so that the machine would go faster and to alleviate some pain in his left arm that was hurting due to carpal tunnel syndrome. All five arbitrators on the panel would have upheld the discharge because the two levers were specifically there for safety reasons, the conduct was intentional, there was no prior request for an accommodation for carpel tunnel, he had prior discipline for other types of non-safety incidents, and the fact that the Company’s investigation may not have been 100% thorough was adequate enough.

What we can learn from the conclusions these arbitrators came to is that prior disciplines, even if they are for dissimilar conduct, can be used against you as progressive discipline, especially if it’s within a short span of time, and that relying on incomplete training or investigation as a basis for turning over a discipline/discharge comes up short in the face of other factors such as the ones discussed above.

Below is the complete discussion as issued by the Labor Arbitration Institute.

Conference Reporter – Labor Arbitration Institute

Safety Violation with a Poor Record

At this month’s program in Miami, the arbitrators on the panel discussed a case of a 2-year employee. He was a press operator. He had two years with the company, but had bid into a press operator position only 4 days earlier.

The press has two handles or levers. The reason for this is to ensure that the operator does not have either hand near the pinch point. In other words, the operator must use both hands at the same time in order for the press to work.

Four days into the job, the employee is discovered to have tied up the left-hand lever to a post. This allowed him to operate the press with just the right-hand lever. The supervisor asked him why he did this, and he gave two reasons. 1) he could work faster and thus, earn more incentive pay (true); and 2) his left arm was hurting due to carpal tunnel syndrome.

He was discharged for reasons which the panelists address below.

Decision

All five arbitrators on the panel would have upheld the discharge. What is interesting about this is how strongly they all felt, that:

1. There may not be a rule which specifically covers two levers, but the employer can rely upon its general safety rules.
The company went to the expense of providing two levers. These safety devices are there for a reason. The purpose of the device is to keep the employee out of harm’s way. The employee is jeopardizing his own safety.

2. It was intentional.
The union cited two prior cases in which employees were given a written warning. But in each case, the employees committed a one-time mistake. Both were the result of not thinking, and it doesn’t appear that either employee acted deliberately. On the other hand, the grievant did this for 3 days and it was intentional. In fact, is he cheating the other employees by gaining incentive pay that they cannot obtain the same way?

3. He didn’t ask for an accommodation.
He could have asked for an accommodation based on the carpal tunnel, but he didn’t.

4. He had a poor record.
He is a two-year employee, and he has this record: written warning for graphic statements to a supervisor and two written warnings & a 3-day suspension for attendance violations.

5. The Company investigation was adequate enough.
The union argued that the investigation should have included an interview of the trainer. Then, management would have learned that his training lasted only 15 minutes. The company counter-argued that the co-worker who trained him was only a few feet away on each of the 4 days that he worked, and thus available for any retraining. All of the arbitrators on the panel felt that an investigation does not have to be 100 percent. A lesser investigation will not nullify the discipline when the employer’s reasons for the discharge (#1-#4) are as strong as they are here.