The Civil Service Commission has scheduled a pre-hearing conference for the appeal filed by Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt of the decision of the Massachusetts Human Resources Division (HRD) to band scores from civil service promotional exams when placed on eligibility lists.  The Commission, apparently heading our call for a speedy resolution of this matter, has scheduled the pre-hearing for next Tuesday, March 3, 2009 at 10:00 a.m. Here’s the notice.

At the pre-hearing, we will press our request for a speedy full hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced.  Stay tuned…

On Friday, February 13, 2009, the Massachusetts Human Resources Division (HRD) suddenly informed police officers around the state that HRD will start “banding” scores from civil service promotional exams when placed on eligibility lists.  Because this radical shift in the promotional process will make it much easier for cities, towns and chiefs to use favoritism as a basis for promotions, Sandulli Grace, PC, today filed papers to restore basic merit principles.  Attorneys Alan Shapiro and Bryan Decker today challenged the proposed banding by filing an appeal and request for speedy hearing with the Civil Service Commission on behalf of Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt.  You can read the appeal in its entirety by clicking here.

HRD rules require the state agency to list police officers on promotion lists in order of the “whole number” score they received on the exam.  Thus, an officer who scored an “88” is listed ahead of an officer with an “87.”  If the chief wants to promote the lower-ranked officer, he must justify this bypass of the higher-ranked officer in writing to HRD, and the higher-ranked officer can file a bypass appeal with the Civil Service Commission.  The Chief then has to prove that there is reasonable justification for the bypass and that the bypass was and not arbitrary or capricious.  This vetting and appeal process ensures that the chief must be prepared to justify a decision to promote a lower–ranking candidate to an independent third party.  

A bypass does not occur, however, when the Chief selects one of two or more officers with the same score.  In other words, if three officers scored “87” on the exam and the Chief selects one of them, then the other two officers have not been bypassed under the law and the other two officers have no automatic right to file a case with the Commission.  Except for large communities, ties are infrequent under this established promotional process.

HRD’s new policy on “banding” promotional lists dramatically changes the promotional process in a way that explicitly leads to more unfettered decision-making by the Chief.  The new banding results in large numbers of officers being “tied,” even when they score as much as seven points apart on the exam.  For example, the bands HRD currently proposed for the Sergeant are as follows:

2008 Statewide Police Sergeant Exam

Legend for Score Bands

(Includes General Average Plus Preference)

6=92.92-100

5=85.84-92.91

4=78.76-85.83

3=71.68-78.75

2=66.00-71.67

1 = Failed Written and failed overall exam

Officers are automatically “tied” with everyone else in their band.  Under banding, the chief can promote any officer within the band without having to justify the decision to anyone.  You got a 99 and the Chief’s coffee buddy got a 93?  Guess what, you’re tied.  And the Chief doesn’t have to justify his decision to promote his buddy to anyone.

We believe that it is obvious that banding increases the illegal influence of favoritism and bias in promotional decision making.  Unfortunately, HRD prevented police unions and our firm from stopping this dramatic change because HRD refused to hold a hearing demanded by G.L. c. 31 prior to adopting this new regulatory policy.  HRD’s neglect of its statutory duty forms the basis of the appeal filed today – the failure to follow c. 31 and its own rules prior to implementing such a drastic change.

Because it is likely that eligibility lists with banded scores will appear in civil service communities throughout Massachusetts in a matter of weeks, we have asked that the Civil Service Commission conduct a speedy hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced.  As always, we’ll keep you posted.  

Massachusetts public employers cannot discriminate against employees who engage in “concerted, protected activity” under G.L. c.150E, the public sector collective bargaining law.  In order to prevail in an unlawful discrimination case, the aggrieved employee or union must show that (1) the employee engaged in protected, concerted activity under c.150E; (2) the public employer knew of this activity; (3) the employer took “adverse action” against the employee; and (4) this adverse action was motivated by a desire to penalize or discourage the concerted, protected activity.  

In City of Holyoke, MUP-05-4503 (January 9, 2009), a member of the City’s police union was reassigned from a detective to a patrol position just two months after filing a grievance against the City.  The police union filed a charge, claiming that the reassignment retaliated against the officer for filing the grievance.  Based on the above test, CERB ruled that the union provided ample evidence of the first two elements, but failed to do so on the latter two. The filing of a grievance counts as concerted, protected activity under c.150E, because the grievance, even if from an individual attempts to enforce a collectively-bargained agreement.  The City agreed that it knew about the grievance, thereby meeting the second criterion.  However, the Commission ruled that the Holyoke Chief’s involuntary reassignment of the grievant from the detective to uniform patrol did not constitute an “adverse action.” 

CERB acknowledged that a reassignment to a less preferable position or to a position with reduced benefits is an “adverse action.”  However, the union’s argument that the transfer constituted discrimination was complicated by the grievant’s stated desire to leave the detective division (although he requested a transfer back to narcotics, where he previously worked) and his mediocre performance in the detective and narcotics divisions (at least as viewed from the Chief’s admittedly biased perspective).  In somewhat similar circumstances, the U.S. Supreme Court ruled that a personnel action is adverse if “a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge [ ].” Burlington Northern & Santa Fe Railway v. White, No. 05-259 (June 22, 2006). 

CERB further rejected the union’s argument that the reassignment was adverse given subsequent, mild taunts of co-workers.  CERB dismissed these comments (such as resetting the screensaver to mock the grievant’s new assignment) as mere jocular, “subjective opinions.”  Given that the opinion of other officers is highly relevant to determine whether the reassignment may be reasonable viewed as adverse, CERB’s finding here is questionable.  CERB may just have been disarmed by the deprecating tenor of the other officer’s comments.

As to the last criterion, the Commission ruled that the two-month gap between the grievance and the reassignment was insufficient to establish even an inference that the Chief’s motive was retaliatory. 

In the future, unions and employees aggrieved by a change from a special assignment may wish to emphasize more concrete differences between the positions, such as the flexible schedules, increased overtime opportunities, and the like. Further, they may wish to produce independent evidence that the grievant is capable of performing the job that he or she seeks.

Dowmload the holyoke-ruling

A recent decision by the Commonwealth Employment Relations Board (CERB, formerly known as the Labor Relations Commission) clarified when employers are supposed to respond to information requests and when labor organizations are supposed to file unfair labor practice charges about the employer’s incomplete response.  Generally, public employers in Massachusetts have a duty to furnish information requested by a union, when the information is relevant and necessary for the union to prepare for bargaining, grievances, and administering a collective bargaining agreement.  When a union believes that an employer’s response is lacking, the union has six months from the date it received the employer’s response to file a charge of prohibited practice with the Division of Labor Relations (DLR).

In Cambridge Public Health Comm’n, MUP-02-3605 (January 21, 2009), the union made a series of information requests for a report about restructuring the employer’s operations.  (The Union requested other materials).  The Employer first denied the request in a February 2002 letter.  The Union renewed its requests in later months, resulting including a request in October 2002. The Union then filed a charge with DLR in November 2002. 

CERB ruled that the clock started ticking on the Union’s six-month statute of limitations when the employer denied the request in February 2002.  As a result, the Union’s November 2002 was too late to challenge the February 2002 letter.  However, the Union’s subsequent request for the same information, followed by a subsequent refusal by the employer, “restarted” the six-month clock ticking: 

[t]hat the Association had made prior requests for the same information and that the Alliance previously had refused to provide the information does not forever relieve the Alliance of its statutory obligation, because the Association asserted in its [subsequent] letter that it still needed the information and provided reasons in support of that assertion.

 Just like every paycheck triggers a new and different statute of limitations under the famed Lily Ledbetter Fair Pay Act (discussed here: http://blog.aflcio.org/2009/01/29/lilly-ledbetter-watches-as-obama-signs-fair-pay-act/), CERB effectively ruled that every new request for information also triggers a new and different statute of limitations under c.150E, so long as the information is relevant at the time of the new request.

There are a few interesting asides about this decision.  First, CERB apparently will not rule upon an employer’s obligations to provide information if the request does not specifically cite G.L. c.150E – the law CERB is charged with administering.  Here, CERB ignored requests that only cited the Public Records Law, G.L. c.66, §10. Second, this case illustrates the slow pace of decisionmaking by CERB.  This case was filed in November 2002.  Despite the decision discussed here, this dispute is far from resolved.  CERB’s decision dealt only with the timeliness issue and not with whether the employer lawfully refused to provide the restructuring report in the first place.

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