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.
In contract negotiations between the Town of Braintree and the Braintree Police Officers Association, MCOP Local 365, the Town proposed the new position of Community Service Officer (CSO). The Town proposed the CSO as a specialty position that could be filled without regard to seniority, an exception to the usual practice. The Town also proposed to “flex” the officers’ schedules, which meant that the officers would only receive overtime if they actually worked more than eight hours in a day – not if they were required to work an entirely different shift because of the needs of the job.
The contract language did not specify how the CSOs would be compensated. However, the Town agreed that the CSOs would work a flexible schedule “in the same fashion as currently worked by the Narcotics Unit.” This was sufficient to convince the union to agree to the proposal, because the narcotics detectives worked a flexible schedule, and were paid the night shift differential all the time. The night shift differential made up for the negative aspects of the position, and “sold” the proposal to the union.
Once the position was filled, however, the Town refused to pay the CSOs the night shift differential, taking the position that it was not required to do so because the pay rate was not stated in the contract. The union filed for arbitration. On January 20, 2016, the arbitrator issued his award, agreeing with the Union and ordering the Town to pay CSOs the nights shift differential. (The award can be viewed here.)
This is an important victory for the Massachusetts Coalition of Police and the Braintree Police Officers Association. The arbitrator acknowledged that, by agreeing to a specialty position which the Chief could fill without regard to seniority, the union was obviously making a concession, and it would not be reasonable to expect the union to do so without getting something in return. In this case, what the union expected to get in return was the night shift differential. The arbitrator, Timothy Buckalew, showed great respect for the challenges of police collective bargaining. It was a hard-fought and well deserved victory, and I congratulate the Braintree Police Officers Association!
On June 30, 2015, public sector workers across Massachusetts won an important victory at the Department of Labor (‘DLR’). In the case of City of Springfield and AFSCME, MUP-12-2466, the DLR held that the city of Springfield could not install GPS tracking devices on employee vehicles without first bargaining with the employees’ union—the AFSCME, Council 93. You can read the full decision here: http://www.mass.gov/lwd/labor-relations/recent-decisions/2015-decisions/june-2015/mup-12-2466-cerb-decision.pdf. Moving forward, this decision will help unions to better protect employees on how GPS information is used and what circumstances GPS information will be accessed.
This dispute began in 2012, when the city of Springfield began secretly installing GPS tracking devices on public utility vehicles. These devices allowed the city to determine employees’ work locations, idle time, speed, distances driven, and number of stops—all in real time. Before these devices were installed, the city had no way of gathering this information and did not require employees to report it.
The DLR held that these devices were illegal because they altered an existing condition of employment without first bargaining with the employees’ union. These devices altered an existing condition of employment because they “plainly changed the type and amount of information” available to the city. On these grounds, the DLR distinguished this case from two previous cases: City of Worcester, MUP-05-4409 (2007) and Duxbury School Committee, 25 MLC 22 (1998).
Massachusetts Lawyers Weekly interviewed Jennifer Rubin, a partner at Sandulli Grace, about the case. She explained that this decision is a “big deal”. It is the first time that a case in Massachusetts has held that the decision to implement GPS devices, and the impacts of that decision is something that unions must be given the opportunity to bargain. Attorney Rubin also added even if a public employer had previously monitored employees in some manner, unions should still demand to bargain if the employer considers installing GPS devices “because the decision says if the type or amount of information tracked by the GPS is different from before, that could form the basis for a bargaining obligation.”
This case represents an important victory about the employer’s bargaining obligations. As new technology continues to alter the employer-employee relationship, we should always remember the importance of protecting the employee’s privacy and how that information that is produced by that new technology is used.
Court Decision Reinstating Boston Police Officer Wins Sandulli Grace Press Coverage
The case involved the firing of veteran Boston police officer and BPPA member David Williams for allegedly using excessive force during an arrest. The arbitrator found that Williams had not used excessive force and had acted in compliance with the Police Department’s rules and policies in arresting a belligerent intoxicated citizen in the North End of Boston on the night before St. Patrick’s Day. Specifically, the arbitrator rejected the City’s claim that Williams had used a chokehold on the arrestee.
The City of Boston appealed the arbitrator’s ruling to the Superior Court, arguing that the Boston Police Commissioner had unfettered power under state law to determine when an officer had used excessive force and that arbitrators did not have the power to overturn his disciplinary which upheld the award. Judge Dennis J. Curran in the Superior Court threw out the City’s claims. Instead, the judge agreed with the BPPA and its attorneys that disciplinary actions and the factual underpinnings thereof are subject to review through the grievance and arbitration procedures that the City and the BPPA have collectively bargained. In particular, the findings of a neutral arbitrator selected by the parties on matters of fact, such as whether or not Williams used a chokehold, are sacrosanct, and may not be overturned by a reviewing court.
Judge Curran issued his decision in City of Boston v. BPPA on June 29, 2015. The Boston Globe ran the story on the front page of the Metro section on July 22, 2015 with a picture of David Williams and a quote from Attorney Becker. You can find the link here.
Massachusetts Lawyer’s Weekly ran a front-page article on the case in its July 27, 2015 edition in which Attorney Becker was quoted extensively. The link is here.
One might speculate that the media attention to the Williams case might stem from the chokehold allegation – even though the arbitrator found otherwise – given the press coverage of incidents in New York and elsewhere. Some commentators raised concerns about those incidents because the police officers involved were white and the people they arrested were black. In this case, interestingly, the press did not draw attention to the fact that Williams is black and the person he arrested is white.
Sandulli Grace Attorney Nick Pollard was prominently quoted in the August 1st Boston Sunday Globe. Nick was interviewed for a front-page article on New England Patriots’ quarterback Tom Brady’s appeal of the suspension imposed on him by NFL Commissioner Roger Goodell. Brady was suspended by the Commissioner for four games after the NFL found that it was “more probable than not” that Brady was “at least generally aware” that game balls were deflated during last year’s AFC Championship game against the Indianapolis Colts. Nick highlighted the important legal issues surrounding Brady’s appeal and opined that while Brady’s case is fairly strong, he still faces an uphill battle.
Continuing his media tour, Nick appeared on 680AM WRKO’s Boston.com Morning Show where he assessed Brady’s chances. He explained that while there were a number of procedural flaws in the NFL’s handling of Brady’s suspension, the award of an arbitrator interpreting a collective bargaining agreement entitled to a high degree of deference by federal judges. Nick explained how fundamental tenets of labor law such as “the law of the shop” and the requirement of notice come into play in the unique disciplinary system created by the collective bargaining agreement between the NFL and the Players’ Association. Links to the article and the interview can be found below. All and all, Nick did a fine job of explaining the Deflategate controversy from a legal perspective, especially for a Jets fan.
Ever feel like you don’t quite get it? Where something seems so simple, but maybe, just maybe, there’s something you’re missing? Like, in the case of the Waltham Police Contract where it says that a decision of an arbitrator will be “final and binding,” doesn’t that mean that it should be, well, final? Or, binding? Well, unfortunately the City seems to have different definitions for that word, as it continues to challenge the November 2012 decision of Arbitrator Michael Stutz overturning the fifteen day suspension of Officer Paul Tracey. It was a straightforward decision, the arbitrator overturned a suspension finding that the alleged victim was no believable. Couldn’t have been more run of the mill. Unfortunately, the City appealed in true “throw everything at the wall and see if something sticks” fashion.
Back on March 4, 2014, I blogged about how Superior Court Judge S. Jane Haggerty summarily upheld the decision, rejecting all of the City’s arguments (that blog entry is here).
Surprisingly, the City was not done, and appealed Judge Haggerty’s decision to the Appeals Court. Last week, in a summary decision a panel of Appeals Court justices upheld the Superior Court upholding the Arbitrator (you can read the decision here). Similar to the Superior Court, the Panel rejected all of the City’s myriad arguments, concluding “we discern no error in the Superior Court judge’s reasoned decision and conclusions of law in denying the city’s motion for summary judgement.”
The City could still ask the Massachusetts Supreme Judicial Court to consider the case (the SJC could decline to do so). On behalf of the Waltham Police Union, Officer Tracey, the taxpayers of Waltham (who continue to foot the bill for the absurd appeals), myself, and good people everywhere who understand what “final and binding” means, here’s hoping the City decides to simply comply with the award instead.
Download theTracey appeals court decision
On Friday April 3, 2015, at the Massachusetts Coalition of Police’s annual President’s Dinner, United States Army Sergeant Major Craig R. Chapman honored Sandulli Grace and MassCOP for the services they provided to him while he was stationed at Guantanamo Bay, Cuba in 2014 during Operation Enduring Freedom. Continue reading
On January 14, 2015, arbitrator Richard Boulanger issued an important injury leave award in favor of the Massachusetts Coalition of Police and its affiliate, the Ipswich Police Association, Local 310. The arbitrator granted Ipswich Police Officer Aaron Woodworth injury leave for a three month period in 2014 when Officer Woodworth was out of work recovering from Continue reading
In a twist on illegal wage parity proposals, the Department of Labor Relations (DLR) issued Complaints of Prohibited Practice against the Boston Public Health Commission (Commission) for proposing and insisting upon an unlawful health insurance parity clause. (Read the full text of the DLR Complaint dated March 26, 2014 HERE). The Charging Party was the Boston Emergency Medical Services, a division of the Boston Police Patrolmen’s Association (Union) which represents Boston EMTs and Paramedics. The Union was bargaining over its contract which expired on June 30, 2011 where health insurance was a key topic in protracted negotiations with the Commission. The Commission is, by statute, independent from the City of Boston and a separate employer under Chapter 150E. After the parity complaints were issued, the DLR also ruled that the Commission failed to bargain in good faith with the Union when it changed the employees’ health insurance plan design and unilaterally increased their co-payments in violation of Section 10(a)(5) of Chapter 150E. (Read the full text of the DLR Hearing Officer’s Decision and Order dated June 25, 2014 HERE). The BEMS-BPPA was represented in negotiations and litigation by Sandulli Grace Attorneys Ken Grace and Jenni Smith.
As we all know, employee health insurance costs are constantly changing to the point where any pay raise we may bargain can be quickly cancelled by increases in health insurance premiums, deductibles and co-payments. That is why it is so important for unions to fully exercise their bargaining rights over possible changes in health insurance plans, carriers, providers, benefits, coverages, premiums, premium contributions, co-payments and prescription co-payments. In this case, the Commission sought to have all of these health insurance matters be decided by another employer and another union.
The proposal at controversy stated that “the Union hereby agrees that any decision of the City of Boston to make [health insurance] changes, and the impact of those decisions will not require bargaining between the parties provided that such changes are implemented for the City of Boston’s Boston Police Patrolmen’s Association bargaining unit or successor.” The proposal, which ties the health insurance of BEMS to the collective bargaining future of the BPPA, constitutes a parity clause. The proposal, therefore, is an illegal restriction on the ability of both the BEMS and the BPPA to effectively represent the interests of their union members. For the BPPA, the proposed parity clause places illegitimate pressure upon their collective bargaining process, because they would be forced to take into account an additional group of employees whose interests and concerns do not mirror the sentiments of their immediate union members. In turn, the BEMS would be barred from representing the interests and well-being of its members on a mandatory subject of bargaining- – health insurance.
Over the last few months, the Union finally reached a collective bargaining agreement with the Commission and I’m happy to report that the contract does not include the illegal parity provision that was the subject of the DLR’s Complaints last March. The Commission was forced to withdraw its proposal because of mounting legal pressure. The contract settlement contained some small adjustments in health insurance co-payments and premium contributions consistent with those applicable to City of Boston employees, but the changes were not made retroactive. This amounted to considerable savings to BEMS employees over more than a three year period when premiums were lowered on the assumption of the higher co-payments. It was one of those rare instances where the foot dragging by an employer in delaying a contract settlement actually benefited the employees. Just as significant, however, was the Union’s willingness to take on the Commission through legal action and bargaining strategy in order to protect its important right to negotiate over all matters of health insurance in the future.
On May 27, 2014, arbitrator Tammy Brynie issued an important recreation injury leave award in favor of the Boston Police Patrolmen’s Association. The Boston police officer was seriously injured while participating in the 2012 Boston Police Department Fitness Challenge. (Read the full decision of Arbitrator Brynie HERE.) The BPPA case was presented and argued by Sandulli Grace Attorney Ken Grace.
As background to the case, the Boston Police Department had been increasing its emphasis on improved health and wellness for all officers since 2009. To this end, the Department sponsored an annual one-day Fitness Challenge for which officers were encouraged to train and compete in various physical fitness events. However, the annual challenge was considered a volunteer off-duty activity and no one was required to participate. At first glance, then, one might expect that an officer injured while participating in the Challenge would not be protected by M.G.L. chapter 41, section 111F ( the injury leave law applicable to Massachusetts police officers and firefighters). The BPPA thought otherwise, and ultimately Arbitrator Brynie agreed with the union.
The question in injury cases such as this revolves around a determination of whether the activity causing the injury “arises out of and in the course of employment.” In making that determination, Massachusetts courts and arbitrators look at “the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Under certain circumstances, an employee can be entitled to injury leave for injuries sustained outside regular working hours, even if at the time of injury, the employee is engaged in something only incidental to his/her employment.
For injuries involving employee recreation activities, the Massachusetts Supreme Judicial Court has developed more specific criteria to determine whether the injury “arises out of and in the course of employment”. Those criteria involve such factors as the customary nature of the recreation activity; the employer’s encouragement, subsidization, management and direction of the activity; the pressure upon the employee to attend and participate; and whether the employer receives a benefit from the employee’s participation in the activity.
Here, the Grievant was injured during one of the events at the 2012 Boston Police Department Fitness Challenge. Arbitrator Brynie found there were “sufficient links with the Department, its goals and its mission to consider participation in the Fitness Challenge as an aspect of the performance of the Grievant’s duty, for Section 111F purposes.” Those links included the annual nature of the event from 2009 to 2012; the organizing, planning and direction of the Fitness Challenge by the Department and its personnel; and the benefits resulting from the event including such intangibles as positive publicity (featured within an episode of the CNN television show, “Boston’s Finest”), promotion of the Department’s emphasis on health and well-being, better morale, and enhanced team building. In the Grievant’s situation in particular, the Arbitrator also found that he received substantial pressure to participate in the event.
Upon reflection, there is a certain irony in this case that warrants comment. The Boston Police Department invested considerable resources and personnel since 2009 to promote the health and well-being of its officers, and a key component of that effort was the BPD’s annual Fitness Challenge. Consequently, the number of participants grew each year as more and more officers embraced the overall goal of being better able to physically perform their jobs. Then, when the Grievant was injured during the 2012 Challenge and the Department denied him injury leave coverage, Boston police officers took notice and participation in the Department’s health and wellness program decreased substantially. For example, a Fitness Challenge was scheduled for 2013, but it had to be cancelled for lack of sufficient registration. In hindsight, the Department’s long term goal of helping officers to become more fit would have been better accomplished if the injury leave claim in this case had been covered under Section 111F from the outset rather than through a grievance.
Now it is clear that officers are entitled to injury leave coverage if they are hurt during a future Fitness Challenge, so we will see if the Boston Police Department really is committed to the future health and well-being of its officers. Going forward, that is the real Challenge from the outcome of this grievance arbitration victory.