This is in follow up to our blog post concerning the amendment of the civil service residency statute, MGL c. 31 sec 58. Since this amendment was part of the State Budget and since the Budget has an emergency preamble, the amendment to 31 sec 58 was also effective immediately. Therefore the amendment is in effect and it would be appropriate for a police and/or fire fighter unions in civil service communities to request bargaining with their municipal employers to increase the 10 mile residency requirement as the amendment allows.
On August 7, 2013 the Department of Labor Relations (DLR) issued a decision finding that the Captain in the Hudson Police Department ought to be included in a new bargaining unit of superior officers recently organized by Mass COP.
Up until December 2012, the sergeants, lieutenants and the captain in Hudson were not organized as a union. Mass COP gathered authorization cards and filed a petition for a Written Majority Authorization at the DLR. Mass COP’s petition included all sergeants, lieutenants and the captain. The petition was approved by the DLR on December 10, 2012. The Town challenged the inclusion of the captain in the bargaining unit. Accordingly, the issue went to hearing before the DLR Board Chair Marjone F. Wittner, Esq.
The Town claimed that the captain was a “managerial” employee who was excluded from bargaining under G.L.c. 150E. In order to establish that the captain is managerial, the Town had to demonstrate that he (1) participated in a substantial degree in formulating policy; or (2) assists in a substantial degree in collective bargaining on behalf of the Town; or (3) has substantial responsibility in the administration of the collective bargaining agreement. The Town failed to establish any of the above elements.
Board Chair Wittner determined that the captain had no role in collective bargaining or in the grievance procedure. The lieutenants participate in the hiring process with the captain. According, there is no distinction between the captain and other members of the bargaining unit.
Wittner also held that the captain did not prepare or formulate policy. In fact, a lieutenant worked with the chief to formulate and update departmental rules and regulations.
Finally, Wittner determined that the captain did not have substantial responsibility in the administrative of the collective bargaining agreement. Since the captain did not meet any of the criteria to be considered a managerial employee, he was included in the unit of sergeants and lieutenants.
On November 22nd, Governor Patrick signed the Evergreen “Fix” bill into law. The bill was passed as an emergency act so it immediately goes into effect. Accordingly, municipal employers are bound to the terms of collective bargaining agreements with an evergreen clause until a new contract is negotiated. This is now the law, even if an evergreen clause extends a collective bargaining agreement beyond three years.
Last fall, the state Supreme Judicial Court overturned 30 years of history and held that “evergreen clauses” – clauses that extend collective bargaining agreements until a new contract is negotiated – were unlawful and unenforceable if the clause operated to extend a collective bargaining agreement beyond three years. This wreeked havoc in some communities because employers took advantage of the ruling by refusing to arbitrate grievances after a three- year contract expired. In addition, some employers took the position that they were not bound by any of the terms of the contract after three years, despite the fact that the employer had agreed to an evergreen provision.
This problem was corrected by the legislature on November 17thin House 3789-11. As a result of diligent efforts, persistence and lobbying by a broad coalition of public sector unions over the past year, the legislature enacted a bill that reverses the SJC ruling — reaffirming that evergreen clauses are enforceable even if they operate to extend the contract beyond three years. In addition, and again due to the extraordinary efforts of the labor coalition, the legislation contains a retroactivity provision. Section 2 of the new law restores evergreen clauses to any collective bargaining agreement that contained an evergreen provision and had expired after three years under the SJC decision. Evergreen clauses in such agreements are resurrected and enforceable going forward – even as to matters that arose prior to this legislation. So, if you are under a three year contract with an evergreen clause that had expired under the SJC ruling, the contract has been restored and is enforceable until a new contract is negotiated.
There is a narrow exception the retroactivity provision. The law does not apply are “specific matters” that “were pending or adjudicated in a court of competent jurisdiction” at the time that law was passed. There will undoubtedly be litigation about which cases fall under that exception. But the vast majority of matters are back under the umbrella of evergreen clauses. This bill is now awaiting the Governor’s signature.
Sandulli Grace Partner Bryan Decker argued yesterday before the Massachusetts Supreme Judicial Court in the “Quinn bill case.” As previous posts have discussed, Decker represents a group of Boston Police Officers challenging the City of Boston’s reduction of educational benefits to officers in 2009. The case argues that the city cannot cut Quinn bill incentive payments to officers, even where the collective bargaining agreement in place allows for such a cut. Sandulli Grace union client Boston Police Patrolmen’s Association is supporting the officers. Sandulli Grace union client Massachusetts Coalition of Police filed a “friend of the court” brief also in support. The SJC should issue a decision within a few months.
Video of the oral argument has already been archived by Suffolk University Law School. You can view it here.
The decision could impact police collective bargaining statewide. Acknowledging this, the Boston Globe ran a front page story on the case on Monday, the day before the oral argument. You can read Boston Globe Police Beat Reporter Maria Cramer’s story here.
As always, we’ll keep you posted.
A Boston Police officer and a Wellesley police sergeant received good news this week when Superior Court judge Carol Ball ruled that the state Board of Higher Education had to certify their master’s degrees in criminal justice as eligible for benefits under the Quinn Bill educational incentive program. [The decision can be found here.] Boston Police Officer Miguelangelo Pires and Wellesley Sergeant Glen Gerrans, with the support of their unions, the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police, sued the Board of Higher Ed after the Board refused to allow them to earn Quinn Bill educational incentive benefits for their master’s degrees.
The case arose after the Legislature amended the Quinn Bill – which provides salary increases for police officers who earn advanced degrees in law and law enforcement – to tighten the academic requirements for the educational institutions where officers were earning their degrees. The new academic restrictions eliminated a number of schools from the list of eligible institutions, but a grandfather clause in the legislation stated that anyone enrolled in one of the previously-listed schools before January 1, 2004, could continue in that program and his or her degree would qualify for Quinn Bill benefits. Both Officer Pires and Sgt. Gerrans registered for classes in the Boston University master’s program in the fall of 2003, but they didn’t start classes until after January 1, 2004. After they completed their degrees in 2005, the Board of Higher Education refused to approve them. According to the Board, ‘enrolled’ meant ‘taking classes’, so in its view Pires and Gerrans weren’t enrolled in time to fall under the grandfather clause.
The officers approached their unions, who enlisted the help of Sandulli Grace attorneys Joseph Sandulli and Susan Horwitz, who attempted to negotiate with the Board of Higher Education to resolve this issue, which did not involve many officers. Ultimately, negotiations broke down and Sandulli Grace attorney John M. Becker filed a lawsuit on behalf of Pires and Gerrans against the Board of Higher Education. The officers argued that the plain meaning of ‘enrolled’ is to register and that the Board’s interpretation of enrolled as taking classes was inconsistent with common understanding and legal precedents. This week, a Superior Court judge agreed with the police officers and ruled that they were covered by the grandfather clause and so are entitled to Quinn Bill benefits for their master’s degrees. As the judge stated, “the meaning of ‘enrolled’ is limited to registration, and as such, reflects the intent of the Legislature to permit police officers who have registered for degrees in criminal justice programs certified by the Board prior to January 1, 2004 to benefit from their efforts toward obtaining further education.” Congratulations to Officer Pires and Sgt. Gerrans – their efforts toward obtaining further education are finally paying off.
In November 2009, Sudbury Police Officer Ryan Boyd tore a muscle in his chest while lifting weights. Although he was working out at a private gym on his own time, he was doing so in preparation for an upcoming physical fitness assessment that was a mandatory part of his role on the METRO-LEC METRO-STAR “Regional Response Team.” The Town refused to grant Boyd Injured on Duty Leave, arguing that the injury was sustained while Boyd was “taking part in a personal hobby that had no connection to his job as a Sudbury Police Officer.”
The Sudbury Police Association, MCOP Local 370, AFL-CIO, arbitrated the case, represented by Attorney Leigh Panettiere of Sandulli Grace, P.C. The Arbitrator agreed with the Union’s argument and found that Boyd’s injury “arose out of and in the course of his employment” because the Town required Officer Boyd to be in “excellent physical condition” and participate in an “ongoing physical fitness program” while not providing him paid time to exercise nor a facility in which to do so. The Arbitrator also noted that Boyd’s commanding officer had advised him and his fellow RRT members to keep training for the upcoming assessment.
The arbitrator rejected the Town’s argument that Boyd was engaged in a hobby that had no connection to his employment. The fact that Officer Boyd enjoyed weight lifting and had a long history of regular fitness training was irrelevant. The heightened physical requirements of Boyd’s specialized team meant that he did not have the option to stop training. Also, the arbitrator noted that officers already committed to physical fitness are more likely to serve on a team that requires a high level of fitness.
The Town was ordered to restore Boyd’s wages and benefits to the level they would have been set at had his request for §111F benefits been originally granted. The town will also have to restore all of the paid leave time Boyd was required to use during his recovery.
This is an important decision for Massachusetts police officers and fire fighters. It is not uncommon for injuries to occur while training to meet required physical fitness standards, and this award provides strong support for the argument that those injuries are compensable.
Read the Arbitrator’s Award…
Barnstable Superior Court Justice Gary Nickerson has rejected the Town of Mashpee’s attempt to forcibly join the Mashpee police Union to the lawsuit brought by several Mashpee Police Officers who contend that the Town violated the law when it cut their Quinn Benefits. The Officers, represented by Sandulli Grace, successfully argued that the case involved a violation of the law by the Town, and that their union was not a proper party. “The Town was trying to muddy the issue in the case by seeking to join the Union as a party. We’re pleased that Judge Nickerson rejected this attempt, as we can now move forward to seek a ruling on the merits,” said Sandulli Grace Partner Bryan Decker, lead counsel on the case.
In the suit, the officers contend that the Town of Mashpee violated the Quinn Bill (found at G.L. c. 41, §108L) when it reduced Quinn payments to officers. The Town reduced the payments due to the state’s cutting of Quinn funding to municipalities. “The Quinn bill is a wage law that guarantees certain level of pay to officers who better themselves and their departments by seeking education. This is no different than if the Town sought to pay officers less than minimum wage. I certainly feel for the cities and towns that have suffered a back door local aid cut via the state’s underfunding of the Quinn program. However, that doesn’t allow those cities and towns to cut the pay of officers. Two wrongs most certainly do not make a right,” said Decker.
It should be noted that while the Union was properly found to NOT be a proper party to the suit, the plaintiffs’ union, the Massachusetts Coalition of Police, is fully supporting its members in their attempt to be paid all of the wages the law guarantees to them – including their Quinn Bill wages.
Following the decision of the Massachusetts Appeals Court in United Steelworkers of America v. Commonwealth Employment Relations Board [http://socialaw.com/slip.htm?cid=19281&sid=119], union officials have been put on notice that what they don’t know can hurt their union.
When the City of Springfield terminated a civil service public works employee, he had the option of either appealing to the Civil Service Commission or going to arbitration through his collective bargaining agreement (CBA). This option was spelled out in the CBA and is also part of the collective bargaining law, Chapter 150E.
The union representative explained the option to the employee and advised him that the union would handle his arbitration case but that he would need to hire his own lawyer if he wanted to go to the Civil Service Commission. The employee nevertheless expressed a preference for challenging his discharge through civil service, rather than arbitration. What the union representative did not know or fully understand was that civil service appeals must be filed within ten (10) business days of the termination.
Although the union representative went ahead and prepared to file the employee’s case for arbitration, when the employee again stated he preferred the civil service route, the representative withdrew the case and did not file for arbitration. He did not check into nor inform the employee about the 10-day filing period, which had already passed a month before. Both the Division of Labor Relations, and now the Appeals Court have concluded that the union’s actions here constituted “inexcusable neglect” in violation of the duty of fair representation.
While this case does extend the degree to which public sector unions in Massachusetts are held liable for knowledge of laws outside their contract, it must serve as a warning to all unions, their staff, and even elected local union leaders. When unions collect dues from and undertake to represent employees, they are going to be required to have some degree of knowledge about the laws covering their members.
The decision in this case points out that the union representative had access to union attorneys but did not utilize that resource. For those of you in a position of union leadership, the message is clear: If you don’t know, ask!
With our blog, www.sandulligraceonline.com, continuing to grow in popularity, we’ve now added a Twitter feed to enable us to provide even more up-to-date information regarding the union movement and matters of concern to employees. Our Twitter account, found at http://twitter.com/SandulliGrace, allows us to alert you to recent events quickly, and on the go. (Twitter is a popular “microblogging” site. Here’s info about Twitter, http://twitter.com/about). We expect to post 2 – 5 “tweets” a day, depending on the news. We’ll tweet blog postings, news articles we run across, court and agency cases, etc. Of course, we will continue to post substantive blog items regarding issues of concern to our clients. Indeed, don’t be surprised to see us blog an item that first appears on our Twitter feed, once we have time to digest and respond fully to a legal development, case, or political item.
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