Sandulli Grace, PC, wins another arbitration for MBTA Union

Just one day week the Alliance of MBTA Unions scored a victory against the MBTA in an arbitration about meal allowances , another neutral arbitrator ruled that the MBTA violated its collective bargaining agreement with the Alliance by excluding the Union president and two members from a lottery to resolve a seniority tie between the two members. The agreement between the Alliance and the MBTA states that a “lottery shall be used to break the tie” in seniority between two members who receive their permanent assignment on the same date. Here, the MBTA held a lottery without inviting or notifying the Alliance and the two affected members. The Union president testified that this secretive lottery was inconsistent with past lotteries, where members and the Association were permitted to observe. The Alliance grieved the MBTA’s secret lottery and the arbitrator ruled that the employer violated the contract.Even though the contract did not spell out exactly how a lottery must be conducted, the Arbitrator ruled that “some standards of fundamental fairness must be present in the conduct of a lottery under … the Agreement.” The Authority has discretion in creating and implementing the lottery. But, “[a]t a minimum, notice must be provided to the Union and to the employees subject to the lottery so they be present, should they desire, to view the results.” This arbitration decision affirms that basic ideas of due process – consistency, notice and an opportunity to be heard – are generally useful when interpreting ambiguous contract language.The Arbitrator also rejected the MBTA’s last-minute claim that the Alliance’s grievance was untimely, noting that the MBTA itself was delinquent observing the proposed timelines under the grievance provision. The parties by their conduct, ruled the arbitrator, waived the deadlines under the contract.MBTA Seniority Victory

New Appointment to Massachusetts Labor Relations Commission

The Massachusetts Labor Relations Commission appointed a new Chairman effective Monday, August 27, 2007.  Michael A. Byrnes, who worked for the past six years as a business agent for the National Conference of Firemen & Oilers, Local 3, SEIU, AFL-CIO, has been appointed to a five-year term at the LRC. Former Chairman John Jesensky is now a commissioner and will serve out his term until 2010. Commissioner Paul O’Neill’s term ends next summer.

Before becoming a union business agent, Mr. Byrnes worked for the Massachusetts Department of Corrections and then the MBTA as a management representative. At the start of his legal career, he worked as an associate at the management-side law firm of Murphy, Hesse, Toomey & Lehane. He was admitted to the bar in 1996, after earning his B.A. from Harvard University and his J.D. from Northeastern University Law School.

Sandulli Grace, PC Wins Meal Allowance Arbitration For MBTA Union

A neutral arbitrator upheld the grievance regarding meal allowance compensation filed by the Alliance of MBTA Unions (decision available below), which represents certain foremen and supervisors in the quasi-public transit agency. In this case, the parties negotiated a provision in the collective bargaining agreement that entitles employees to a $4 meal allowance benefit when they work overtime at least 3 hours before or after a regular shift or when they are “required to work on a day on which the employee was not scheduled to work.” Despite paying the meal allowance on days off nearly 470 times over a three-year period, representing about 85% of the times they were due, the MBTA suddenly stopped paying it.

The MBTA claimed the contract language “required to work” meant that employees only were entitled to get the meal allowance when they worked compulsory overtime. The Arbitrator noted that mandatory overtime does not exist within the particular department of the Authority and noted that the MBTA previously paid the fee when employees or the Union complained about non-payment. In the end, the Arbitrator interpreted the contract in light of this consistent practice, upheld the grievance and ordered the MBTA to pay the meal allowance as far back as December 2004. The case is a good example of applying past practice to overcome language that could be construed as contrary to that practice.

Here’s a copy of the Hoban Meal Allowance Arbitration Award.

Member Disciplined For Violating Constitution Cannot Hide Behind Alleged Due Process Violations.

In Doro v. Sheet Metal Workers’ Intern. Ass’n, 2007 WL 2331941 (2nd Cir. 2007), the Second Circuit Court of Appeals rejected a union member’s claim against the international about his discipline for working in violation of his local’s rules. In this case, the member worked for a union employer under terms and conditions less than those required by the collective bargaining agreement. The local charged the member with violating its constitution and convened a trial board to review the charges. The member, who incidentally was an owner of a union employer, did not contest the accuracy of the charges and admitted misconduct. The local then fined the member about  $11,000.00. The local membership and international body upheld the fine on appeal. The member sued the local and the international under the Labor-Management & Reporting Disclosures Act (LMRDA), which regulates internal union governance for many private sector unions. He claimed in essence that the charges were vague. Prior to trial, the local settled with the member; the International did not.

The Second Circuit held that the International did not illegally “ratify” the due process violations because its decision was based upon the admissions of misconduct by the member. The Second Circuit went further and suggested that a local that allegedly violates due process provisions of the LMRDA is not thereby precluded from disciplining a member where the member’s misconduct cannot be plausibly disputed. “It remains an open question whether a local union can violate a member’s due process rights under the LMRDA when the member does not contemporaneously challenge the deficiencies of the charging document and admits, during the intraunion appeal process, the factual basis for the charges and his understanding of the nature of the charges.”

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Municipalities Can Deny Health Care Coverage To Certain Retirees, SJC Rules

The Massachusetts Supreme Judicial Court proved once again that it is
increasingly unsympathetic to the interests of public employees with a
recent decision that lets municipalities deprive certain retirees of
basic health care coverage. In the case of Cioch v. Treasurer of
, the SJC handed municipalities a big pair of scissors to cut
health care costs – by letting them deny coverage to retirees not
enrolled in a municipal plan at the time of retirement. While this
decision is an immediate setback for public employees, it ultimately may
be a case of “be careful what you wish for.” In the long-term, the
Cioch decision likely will increase health care costs for public

The SJC supported Ludlow’s position and ruled that municipalities may
ban post-retirement enrollment in their health insurance programs.
Ironically, while Massachusetts has earned international coverage for
its universal health care efforts, the SJC is letting municipal
employers go in the opposite direction. This decision is particularly
cruel to an unknown number of public employee retirees who politely
declined coverage from their employer throughout their career in an
effort to save money for all parties.

Massachusetts law on municipal health insurance, Chapter 32B, §§9, 16,
requires employers to provide health insurance to all employees working
at least 20 hours a week and to continue providing such coverage after
retirement. More than a decade ago, the Appeals Court and the SJC ruled
in McDonald v. Town of Sturbridge, 39 Mass. App. Ct. 479 (1995), S.C.,
423 Mass. 1018 (1996), that Chapter 32B does not forbid coverage of
retirees who were not covered while active employees. The SJC’s cryptic
one-paragraph decision in McDonald was unclear whether and to what
extent municipal employers may ban post-retirement enrollment via
regulation. The issue faced by the SJC in Cioch is to resolve the issue
left open to debate by McDonald: whether cities and towns can deny
coverage to retirees who were not enrolled in a municipal plan at
retirement. Cioch puts this query to rest by ruling that municipalities
may adopt regulations that ban post-retirement enrollment, despite the
considerable savings reaped by employers when these employees declined
coverage during their employment.

The Cioch case involved the plight of 68-year old retired teacher Joanne
Cioch.During her 22 years of employment with the Town of Ludlow, Ms.
Cioch was insured by her husband’s employer. This step resulted in
savings to Ludlow that totaled in low-6 figures over her employment.
Sometime after Ms. Cioch and her husband retired, they lost access to
health coverage by her husband’s former employer. Ms. Cioch then sought
such benefits from her Ludlow, which denied the request. With the
assistance of the Massachusetts Teachers Association, she sued.
Sandulli Grace, PC, on behalf of the Boston Police Patrolmen’s
Association, Inc., filed a “friend of the court” brief in support of the
Cioch and the MTA.

The SJC supported Ludlow’s position and ruled that municipalities may
ban post-retirement enrollment in their health insurance programs.
Ironically, while Massachusetts has earned international coverage for
its universal health care efforts, the SJC is letting municipal
employers go in the opposite direction. This decision is particularly
cruel to an unknown number of public employee retirees who politely
declined coverage from their employer throughout their career in an
effort to save money for all parties.

Cioch spares public employers of the expense of retirees not previously
enrolled in health insurance plans. But it’s a case of municipal
managers being penny-wise and pound foolish as the SJC decision likely
will result in increased health care costs for cities and towns. The
Cioch decision encourages police officers and other public employees who
currently are not covered by municipal plans to now enroll in City plans
– even if the employees have more affordable or more comprehensive
options through their spouses. Instead of saving $10-15,000 in health
care costs per employee per year for their employers, public employees
now have every incentive to enroll in costly municipal health care
plans, thereby increasing the employer’s financial burden. In other
words, the SJC’s Cioch decision arguably accelerates the health care
budgetary crisis faced by municipal employers.

In light of this decision, employees and labor unions should consider
several steps to guarantee health insurance to retirees: (1) enroll in a
municipal health care plan prior to retirement; (2) negotiate a
provision in the collective bargaining agreement that entitles active
employees to enroll in a municipal health plan anytime during retirement
(or to switch insurance plans), regardless of whether the employee
previously was enrolled in a municipal plan; (3) negotiate a provision
to require employers to individually notify employees who decline
coverage of the possibility th at they may lack access to
post-retirement enrollment; and/or (4) require the employer to notify
employees and labor organizations if it ever considers placing
restrictions or exclusions on post-retirement enrollment.

In a footnote, the SJC signaled another potential problem area for a
certain class of public employees: “deferred retirees,” also known as
employees who quit or are fired from employment prior to being eligible
for retirement benefits (or prior to employee retiring). If, under
Cioch, a municipality is permitted to restrict retiree insurance
coverage to persons on the health care rolls at the time of retirement,
these deferred retirees arguably are, by definition, ineligible for
retirement coverage even if they were enrolled in a municipal plan at
the time they left the job.

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Arbitrator May Promote Successful Grievant

The Massachusetts Appeals Court chipped away at the foliage surrounding management rights when it upheld the authority of an arbitrator to order the promotion of a grievant wrongfully denied a job.

In City of Somerville v. Somerville Municipal Employees Assn, #06-P-1299 (July 23, 2007), the union challenged the mayor’s appointment of a non-unit employee to Veterans’ Affairs Director. The Mayor is empowered by statute to make this appointment and his decision, under the principle of “management rights” is not subject to arbitration. But the City and the union negotiated a provision that provides a preference to the most qualified, senior unit member. The arbitrator found, and the City did not dispute, that the grievant was at least as qualified as the Mayor’s appointee. As such, the arbitrator directed the City to appoint the grievant to the position.

The Appeals Court rejected the City’s arguments to overturn the arbitrator’s award. While appointment selections and assignments are entrusted to public employers, the Appeals Court affirmed that public employers and unions nonetheless may negotiate a process for the selection of an appointment or promotion. The seniority preference here fell into this exception to managerial rights.

This decision is noteworthy because it affirmed the power of an arbitrator in remedying the contract violation to direct an appointment. In other circumstances, such as civil service, tribunals are reluctant to vacate a management decision, no matter how erroneous. This Somerville decision should strengthen union challenges to personnel decisions by the public employers that violate a contract. In addition, the case shows that “management rights” is not a failsafe defense or magic wand.

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