A State judge has ordered the City of Lynn to pay $270,000 to the Lynn Police Association and its members for violating written promises to reimburse police officers for lost benefits. The Lynn Police Association (“the union”) is Local 302 of the Massachusetts Coalition of Police, AFL-CIO and is represented by attorneys from Sandulli Grace, P.C. The decision, which was issued May 15, 2007, prevents a public employer from exploiting financial hardship to reneging on negotiated agreements with public safety unions.

The case arose in 2003, when the City of Lynn encountered serious financial troubles. After intense negotiations with the City, the Union signed a memorandum of agreement in which the officers agreed to forego certain negotiated benefits for a one-year period. These voluntary give-backs saved the City about $290,000 and demonstrated the Union’s willingness to help the city weather difficult financial times. In making this arrangement, the City agreed that if it obtained any federal or state grant funds, it would pay back the benefits sacrificed by the Union. When the City obtained a $270,000 community policing grant, it refused to pay back the benefits. The Union filed a grievance under the collective bargaining agreement, and Arbitrator Richard Boulanger found that the City breached the memorandum of agreement when it failed to apply the grant to pay back the officers for the benefits they had sacrificed. He ordered the City to pay the Union a sum equal to the value of the community policing grant.

The City appealed the arbitration decision to the Essex Superior Court, arguing that a state law designed to rein in irresponsible spending on personnel expenses by City officials prohibited the City from complying with the award and paying the $270,000 to the Union. The City also argued that the subject matter of the grievance was a non-delegable management right and not subject to arbitration. Superior Court Judge Kathe M. Tuttman rejected every single argument. Judge Tuttman found that public policy favored upholding the arbitrator’s decision. She held that the public interest was furthered by enforcing an agreement to reimburse the Union that had sacrificed negotiated benefits in order to help the City in troubled times. Judge Tuttman wrote: “Public policy requires the court to hold the [City] accountable for the contractual obligation it undertook to reinstate benefits that the [Union] voluntarily conceded in order to accommodate the [City’s] fiscal crisis if it became possible to do so.”

Sandulli Grace Attorney Susan Horwitz represented the Union in negotiating the memorandum of agreement and successfully arbitrating the grievance. Sandulli Grace Attorney John Becker, assisted by Attorney Kevin Merritt, represented the Union in the appeal of the arbitration award at Superior Court.

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Last year, the Supreme Judicial Court held that public employers must pay pre- and post-judgment interest on lost earnings when they incorrectly deny a claim for injured-on-duty benefits under Massachusetts General Laws 41, §111F. (see our previous blog entry) In another victory for injured public safety officers, the Appeals Court has affirmed that §111F claims may be subject to arbitration and may be awarded to officers for stress-related injuries. As the arbitrator awarded §111F benefits to an officer who might not otherwise be entitled to him, this case supports arbitration as the most effective means to resolve disputes about whether an officer was legitimately injured-on-duty.

In Town Of Duxbury v. Rossi

(May 15, 2007), an officer’s stress-related hypertension worsened after he argued with his supervisor about swapping shifts. The officer left work immediately following the argument due to elevated blood pressure, but the Town refused to place the officer on paid injury leave. The town’s physician agreed that his stress was work related and that he was not yet ready to return to work. A neutral arbitrator agreed that the injury qualified for IOD pay under the collective bargaining agreement.

The Town asked the courts to vacate the arbitration award. In an example of everything-but-the-kitchen-sink form of argument, the town raised multiple arguments in support of it its appeal. The court rejected every single one.

First the court ruled that the arbitrator properly resolved a dispute about §111F benefits. Second, the Court rejected the Town’s specious argument that the arbitrator’s decision interfered with the Chief’s management rights. This ruling in particular shows that “management rights” is not a magic wand. Third, the court ruled an arbitrator has the power to award §111F benefits even if this award conflicts with the position of the Town’s physician. Fourth, the Court ruled that the arbitrator’s award of benefits does not violate public policy even if the officer was not entitled to §111F benefits for hypertension induced by interpersonal dispute at work. In other words, even if arbitrator made errors of fact and law, the decision must be affirmed. Finally, the court ruled the arbitration decision was not voided by a subsequent court action by the officer addressing his later return to work.

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In Pellegrino v. Springfield Parking Authority (May 17, 2007), the Massachusetts Appeals Court affirmed that retirees from Massachusetts public employment cannot work for another state or local public employer in Massachusetts, including quasi-public agencies. Under Massachusetts General Law Chapter 32, § 91, individuals collecting benefits from a state or local retirement program generally cannot be paid for services rendered to another public employer. The limited exceptions to this ban on post-retirement public employment include when a retiree waives his right to retirement allowance during the period of post-retirement enrollment, or when the retiree works no more than 960 hours and earns no more between employment and retirement than the current salary for the position from which the former employee retired.

While the above rule is relatively straightforward, Kathleen Pellegrino argued that this prohibition on post-retirement employment applies only to public retirees who work for the state or local governments and not to public retirees who work for quasi-public entities such as the Springfield Parking Authority. The court disagreed.

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