Category Archives: Sandulli Grace 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.

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.

Sandulli Grace And The Massachusetts Coalition Of Police Win Night Shift Differential Pay For The Community Service Officers In The Braintree Police Officers Association

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!

 

Employer Cannot Install GPS on Vehicles Without First Bargaining with the Union

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

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.

Deflategate From A Labor Law Perspective: Sandulli Grace Attorney Nick Pollard In Boston Globe And On WRKO Radio

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.

Appeals Court Affirms Decision of Superior Court Upholding Arbitrator’s Decision Overturning Suspension of Police Officer

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