Category Archives: Labor In The News

Labor In The News, Sandulli Grace In The News

SJC Rules Workers’ Comp Benefits are Not Compensation for Services Rendered

John Becker
John Becker May 16, 2017

The Massachusetts Supreme Judicial Court issued a decision today (May 16th, 2017) that will further protect workers who are injured on the job and ensure that they continue receiving their workers’ compensation benefits even if they are suspended. The SJC overturned the decision of the Superior Court and reinstated the original ruling from the Department of Industrial Accidents, granting a former Boston EMS worker his workers’ compensation benefits. The case was handled by John Becker, Of Counsel to Sandulli Grace, he received assistance from former Sandulli Grace Attorney Jamie Goodwin who argued the case below.

The plaintiff in the case, Brian Benoit, had been an EMT and paramedic with Boston EMS for almost 20 years when he injured his ankle while transporting a patient. Unable to work, he filed for and received workers’ compensation benefits for almost a year under the Massachusetts workers’ Compensation Statute. Mass. G. L. c. 152. Boston EMS halted his workers’ comp payments in August of 2012, arguing that injury was not accidental. Benoit seeking to have his benefits reinstated, filed a complaint at the DIA in October of 2012. Shortly thereafter Benoit was indicted in an unrelated matter, and Boston EMS promptly placed him on suspension in accordance with G. L. c. 268A § 25. Under G. L. c. 268A § 25 public employees are barred from receiving compensation while on suspension. In addition to their argument that the injury was not accidental, Boston EMS also argued that Benoit’s workers’ compensation benefits constituted compensation for services and were therefore not obligated to pay them under the statute. The DIA ruled that Boston EMS had impermissibly denied Benoit his rightful workers’ comp benefits and ordered that they be reinstated. Boston EMS refused to comply with the order and appealed the decision in Superior Court, Benoit also filed an action in Superior Court to inforce the decision of the DIA.

The Superior Court determined workers’ compensation payments constituted compensation and granted the Motion to Dismiss brought by Boston EMS, Benoit appealed that decision. After pleading guilty and subsequently resigning from Boston EMS, Benoit refiled an action in Superior Court alleging that since he was no longer suspended, the suspension statute should no longer apply. The Superior Court disagreed with him once again, stating that since he was suspended at the time of his resignation he was still considered to be suspended. Benoit consolidated both of his appeals and the SJC removed the case from the Appellate court. While the SJC denied Benoit’s first two claims, they agreed with him that the workers’ Compensation Statute was not proscribed by the suspension statute.

workers’ Compensation in Massachusetts was originally enacted in 1911, and the statutory scheme protects workers who are injured while on the job. It allows the injured party to remain financially stable while protecting the employer from prohibitively costly settlements and judgments. When an employee pursues a workers’ compensation claim, they forfeit their right to sue their employer for damages. The no-fault system creates certainty for all parties, the injured employee knows the benefits they will receive and the employer knows what they are liable for. The act also mandates that every employer obtain workers’ compensation insurance from an insurer who will make the payments or obtain licensing as a self-insurer. If the employer chooses a third-party insurer, that insurer will be the one to pay out the workers’ compensation benefits. However, if the employer chooses to be self-insured, as Boston EMS did, they will be liable for all workers compensation payments. Employees can also opt out of the system in order to retain their right to sue, but they must do so at their time of hire. An injured employee will receive medical costs and weekly payments based on salary for a period of time depending on the nature and seriousness of their injury. The SJC decided this case on whether those payments consisted of compensation for services rendered.

While the court acknowledged that compensation is usually interpreted broadly, they recognized the limitations in G. L. c. 268A § 1(a) which defines compensation as any money, thing of value or benefit conferred or given to a person in return for services rendered. The restriction of ‘in return for services rendered’ became the deciding factor in this case. The SJC determined that workers’ compensation benefits are not conferred upon an injured employee for services rendered but because the employee waives the right to sue in order to guarantee benefits when he or she is injured. They differentiated the workers’ compensation act from other forms of compensation such as sick pay and unemployment insurance. The SJC also differentiated workers compensation benefits as they were outside the purview of the employer-employee relationship and instead based on the relationship between the employee and the insurer. The court specifically discussed the differences between workers’ compensation benefits and unemployment benefits. Unlike workers’ comp, the employee is not required to give up either their rights or money to receive unemployment. Unemployment benefits serve as a recognition of the services the employee performed while working and are directly tied to the employer who fund the unemployment insurance mechanism.

This ruling provides substantial protections for workers who are hurt on the job. Employer’s and insurance companies will be barred from denying payments due to a suspension stemming from misconduct. Employees will have the peace of mind that even if they are suspended while they are out of work they are still entitled to receive their workers’ compensation benefits.

Read The Decision

In Our Opinion..., Labor In The News, Sandulli Grace In The News

FREE TRAINING for MASSCOP Local Officials and Members

Leigh Panettiere
Leigh Panettiere April 28, 2017

FREE TRAINING
for MASSCOP Local Officials and Members

TUESDAY JUNE 13, 2017

Sponsored and run by MassCOP officials and attorneys from Sandulli Grace, P.C., this free session will train you on topics that matter to your members, including:

• How to draft and process contractual grievances
• Handling employee discipline issues
• Preparing for and engaging in contract negotiations
• Tackling stress in the workplace

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

The first training session will be held on Tuesday, June 13, 2017, at the Southbridge Police Department, 1 Mechanic Street, Southbridge, MA, from 10:00 a.m. – 2:00 p.m. Seating is limited, so please register by e-mailing GCapozzi@sandulligrace.com.

For more information, please visit our web sites:
www.sandulligrace.com
www.masscop.org

– LUNCH WILL BE SERVED –

Flyer for June 13 2017 Training Southbridge

Labor In The News, Sandulli Grace In The News

MassCOP Scores Another Victory: Superior Court Orders Town of Middleton to Reinstate Wrongfully-Terminated Police Officer

John Becker
John Becker March 16, 2017

Town Cannot Use Lack of License to Carry Firearms as Excuse to Avoid Complying with Arbitrator’s Award

An Essex Superior Court judge ruled late last month that the Town of Middleton, Massachusetts must reinstate a wrongfully-terminated police officer, even though the Middleton Police Chief has suspended the officer’s license to carry a firearm (“LTC”). The Superior Court judge’s ruling recognizes that allowing a police chief’s revocation or suspension of an LTC to prevent reinstatement after a lawful order of an arbitrator or other tribunal would effectively render the collectively-bargained protections against unjust discipline null and void. (Click here for the text of the Superior Court ruling.)

The case involves Brian Kelley, a veteran Middleton police officer who became involved in a domestic dispute in Maine on May 1 2013 that resulted in criminal charges against him. While the criminal case was pending the Middleton Police Chief exercised his discretion under G.L. c. 140, § 131 to suspend Kelley’s license to carry a firearm. Because the collective bargaining agreement between the Town of Middleton and the Middleton Police Union made the possession of an LTC a condition of employment, Kelley was unable to work and his employment was eventually terminated after the Town failed to reappoint him to his position. Subsequently, all the charges against Kelley were dismissed and he and his Union, the Middleton Police Benevolent Association, MassCOP Local 292, asked for him to be returned to his position. But the Chief and the Town refused to take Kelley back.

The Union filed a grievance on Kelley’s behalf under the CBA, which eventually reached a neutral arbitrator. MassCOP assigned Attorney Joseph Sandulli of Sandulli Grace, P.C. to represent the Union in the matter. Arbitrator Mary Jean Tufano ruled on November 20, 2014 that the Town did not have just cause to discharge Kelley. As a remedy, the arbitrator ordered the Town to reinstate Kelley with full back pay and benefits. In her decision, Arbitrator Tufano explained that while she had no authority to give Kelley back his LTC, she had the power and authority to make him whole for the Town’s violation of the CBA and that reinstatement was an essential element of the make whole remedy. She interpreted the entire CBA – including the remedial authority granted to her by the parties – to require this result. She noted that in light of the Chief’s unique discretion regarding LTCs, literal enforcement of the “LTC as condition of employment” language would mean that the Police Chief could effectively terminate the employment of any employee without just cause merely by suspending or revoking his or her LTC. She also noted that the reason given by the Police Chief for suspending the LTC – the pending criminal charges – no longer existed.

The Town of Middleton refused to obey the decision of the arbitration and instead filed a petition to vacate the arbitration award pursuant to G.L. c. 150C. MassCOP assigned Attorney John M. Becker, of Sandulli Grace, P.C. to represent the Union on the appeal. The case came before Judge Peter Lauriat in Essex Superior Court, who after briefs and oral argument, on February 28, 2017 denied the Town’s petition to vacate and instead confirmed the award. In ruling in the Union’s favor, Lauriat rejected the Town’s arguments that reinstating Officer Kelley violated public policy and would require the Town to violate the law. Instead of complying with the arbitration award, the Town on March 8, 2017 filed a motion asking the Superior Court to reconsider its decision, which is pending at this time.

In Our Opinion..., Labor In The News

Massachusetts Overhauls Public Records Law To Increase Access And Enforcement, Reduce Delays And Fees.

John Becker
John Becker January 13, 2017

Significant changes to the state’s public records laws went into effect on January 1, 2017. The changes, which were passed by the Legislature in June 2016, clarify and elaborate upon the rights and obligations of the public entities in control of public records and the individuals and organizations seeking access to them. In many ways, the laws strengthen the power of citizens to gain access to public records in part by increasing the punishments for public entities that ignore public records requests or unreasonably delay in responding to them. In response to complaints that public entities have been gouging the public in assessing unreasonably high fees for producing documents, the new law sets strict limits on fees and requires the waiver of fees where the public entity did not follow the time limits or otherwise violated the law. The law moves the enforcement provisions from the original public records provision, G.L. c. 66, § 10, into a much expanded new section, G.L. c. 66, § 10A. Section 10A sets out in detail the legal standards and procedures for members of the public who have not been given the public records they requested, or only obtained the documents after long delays. Section 10A strengthens the role of the Supervisor of Public Records (who is located in the Secretary of State’s office) and the Attorney General in enforcing the law. It also permits the award of attorney’s fees and punitive damages in certain cases. The amended law also requires the holder of public records to communicate with the requester in writing to explain claims of exemption, the amount of fees or the reason for any delay in providing the documents.

The statute requires each public entity to assign a public records access officer who will keep track of all requests for records and oversee the responses to those requests as well as compile a detailed annual report for the Supervisor of Public Records. The statute states that electronic delivery of documents is preferred where feasible. It allows the public entity to withhold documents where: (1) the request is one of many by the same requester and is designed only to harass and intimidate and has no public purpose (a determination ultimately made by the Supervisor of Public Records) or (2) the requester has failed to pay the fees for prior requested documents. The statute also distinguishes between public records requests made for purposes of informing the public and those made with a commmercial or profit-making reason. While most of the amendments strengthen access to public records, there are also a few additions to the list of exempt documents, including those containing cyber security information and also the personal e-mail addresses of certain public employees.

Specific changes include the following:

  1. New exemption: records relating to cyber security
  2. New exemption: personal e-mail addresses of employees of the judicial branch and unelected employees of the Commonwealth, its agencies or its political subdivisions, or their family members.
  3. Establishes a Public Records Assistance Fund, funded by punitive damages awards and other sources, administered by the office of information technology, to provide grants to municipalities to “foster best practices for increasing access to public records and facilitating compliance” with the law.
  4. Requires the Supervisor of Records to create and distribute forms, guidelines and reference materials to aid the public in getting access to public records.
  5. Requires state agencies and muncipalities to designate a records access officer or officers, who are responsible for assisting the public in obtaining documents.
  6. Establishes that providing the requested documents by electronic means is preferred, unless the record is not available in electronic form or the requester does not have to ability to receive the documents in that form.
  7. Any public records request must reasonably describe the public record sought.
  8. The public entity must respond within 10 business days with either the documents requested or a detailed explanation for the delay or exemption; if there is no response within 10 days, then the public entity cannot charge a fee for the documents.
  9. Limited extensions of time of five additional days for the Commonwealth and 15 additional days for municipalities are permitted. For good cause, the Supervisor of Public Records may grant an additional, one-time-only 20-day extension to the Commonwealth or 30 business days for a municipality. The requester can agree to an extension of any length.
  10. The public entity must provide any non-exempt documents that are within its possession, custody or control.
  11. If a fee is permitted and the public entity requests a reasonable fee, the public entity can refuse to provide the documents until it receives the fee.
  12. In a major change from the earlier fee provisions, the Commonwealth and its agencies cannot charge a fee for the first four hours of work in responding to a request. For muncipalities with a population of 20,000 or more, the free period is two hours. Smaller municipalities may charge for all the time required to process the request. After the applicable free period, the public entity can charge up to $25 an hour for time spent on the request (more if approved by the Supervisor of Public Records after a detailed showing of need). The charge for black and white copies is limited to five cents per page.
  13. Enforcement: Whereas under the prior law, the requester could only ask the Supervisor of Public Records to determine whether the requested record was public, the statute now gives the Supervisor the power to make “a determination whether a violation [of the public records law] has occurred.”
  14. If the Supervisor of Public Records finds a violation of the law, it may notify the Attorney General, who may take any steps to ensure compliance, including filing a civil action.
  15. No matter what steps the Supervisor of Public Records or Attorney General do or do not take, the requester has the right to file a civil action to enforce the law in the Superior Court. The enforcement provision gives the court the power to issue injunctive relief and specifically incorporates the presumption that every record sought is public, which places the burden on the public entity to prove that it has complied with the law.
  16. If the requester files a civil action and subsequently prevails (and prevailing includes obtain the requested documents, even without a court order), there is a presumption in favor of an award of attorney’s fees and costs.
  17. To overcome the presumption of attorney’s fees, the agency or municipality must prove it comes within a specific exemption (i.e., the Supervisor of Public Records found there was no violation of the law; the entity reasonably relied on a published court or attorney general opinion; the intent of the request was to harass or intimidate, or the request was for commercial, not public purposes).
  18. If the Superior Court awards attorney’s fees, then it must order the public entity to waive any fees. If the Superior Court does not award attorney’s fees, it still may order the entity to waive fees.
  19. If the requester obtains a court judgment in his or her favor and has shown that the public entity did not act in good faith, then the court may assess punitive damages against the Commonwealth or municipality of between $1000 and $5000, with the money to be placed in the Public Records Assistance Fund.

Notes for employees and unions:

  1. Because of the fee provisions of the public records law, we advise our public employee union clients to request records that are relevant and necessary to their role as exclusive bargaining agents under G.L. c. 150E, § 6. The obligation to provide such information is an important aspect of a public employer’s obligation to bargain in good faith with its employee unions. If the parties have a past practice of providing documents without charge, then charging a fee for documents requested pursuant to Chapter 150E would be a unilateral change in working conditions and a basis for filing an unfair labor practice charge. A public records request would be necessary when seeking records in the custody of public entities other than the public employer with whom the union has a bargaining relationship.
  2. Personnel records are exempt from disclosure as public records, but an individual employee has a right to see his or her personnel record under G.L. c. 149, § 52C. Employee personnel records and internal investigation records may also be available to unions pursuant to G.L. c. 150E, § 6, although redaction may be required in some cases.
  3. Criminal defendants may have a constitutional right to certain portions of otherwise exempt records, such as personnel files of arresting police officers and internal affairs investigations of those officers, under Commonwealth v. Wanis, 426 Mass. 639 (1998), upon a specific showing that the records are likely to contain exculpatory information.
  4. The exemptions to the Public Records Law only determine what documents public entities are permitted to withhold from public records requesters. It arguably does not prohibit public entities from disclosing exempt documents. Other laws and statutes, including laws creating certain privileges and the law prohibiting invasion of privacy, may be invoked to prevent a public entity from disclosing a document that is not a public record within the meaning of the law.
Labor In The News, Sandulli Grace In The News

MassCOP Supports Police Officers Serving in National Guard after Town of Rockport Refuses to Accept Arbitration Award

John Becker
John Becker November 18, 2016

You may recall my August 8, 2016 blog post announcing an arbitrator’s award that granted back benefits to two full-time Rockport police officers who also serve in the National Guard. The Town had a practice of paying the officers their full salaries when they went to trainings on Cape Cod for several years when the interim police chief – on a complete misreading of the relevant statutes – concluded it was illegal to do this and began deducting their National Guard stipends from their pay. The local police union, supported by the Massachusetts Coalition of Police (MassCOP), fought the Town’s move; MassCOP assigned me (John M. Becker of Sandulli Grace, P.C.) to provide legal services to the officers and their local union.

The arbitrator ruled against the Town and ordered the officers to be paid as before. The decision even received some media attention – Michele McPhee discussed the case on her radio program. For a short time, it seemed as if Rockport was back on the right track.

According to the collective bargaining agreement between the Town and the Union, arbitrators awards are “final and binding”, but less than 30 days after the arbitrator’s award, the Town filed a petition in the state Superior Court asking a judge to overturn the decision because, it argued, the arbitrator had “exceeded his authority” and the award required the Town to violate the law.

Once again, MassCOP authorized Sandulli Grace to represent the local union – this time at the Superior Court. We recently filed a response to the Town’s appeal on behalf of the Rockport police union arguing that the appeal was frivolous and has no legal basis. We asked the Court to not only confirm the award but also require the Town to pay the Union’s legal fees in the frivolous appeal.

In this time of uncertainty and change, when so many misguided people here and abroad seek to solve problems through hatred and violence, we have to rely on the men and women who have chosen to serve in America’s volunteer military more than ever. The police officers in this case are full-time members of the Rockport police force and they have made significant sacrifices to serve in the National Guard. The Town of Rockport’s former practice of not deducting the National Guard stipends from their pay for attending mandatory trainings was the right thing to do. When the Town decided to cut officers’ pay for serving in the military, that was the wrong thing to do. Fortunately, the officers were part of a Union that had a collective bargaining agreement with the Town. That agreement gave them the right to challenge the Town’s change in practice before a neutral third-party arbitrator, who quickly realized that the Town’s position was wrong and no law prevented it from continuing to do the right thing.

It should have ended there. The Town should have accepted the “final and binding” ruling of the arbitrator and moved on. What possessed the Town and its labor counsel (from KP Law, formerly Kopelman & Paige, in Boston) to continue to expend time and money on depriving these hard-working officers of income? Is it simply about saving money? Because the amount they are saving by deducting the National Guard stipends is only a miniscule fraction of the Police Department budget. Is it a case of arrogance – they’re so sure they’re right that they won’t accept anyone telling them otherwise? I don’t have the answers. All I know is that these officers deserve better – their local union knows it, MassCOP knows it, and we at Sandulli Grace know it – and we will continue to fight on their behalf for as long as necessary.

In Our Opinion..., Labor In The News

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

Sandulli Grace Staff October 28, 2016

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.

Labor In The News, Sandulli Grace In The News

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

John Becker
John Becker October 7, 2016

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.

Labor In The News, Sandulli Grace In The News

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

John Becker
John Becker August 8, 2016

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.

In Our Opinion..., Labor In The News

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

Nick Pollard
Nick Pollard June 30, 2016

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.

In Our Opinion..., Labor In The News

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

Nick Pollard
Nick Pollard April 26, 2016

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.