Monthly Archives: March 2009

Labor In The News, Sandulli Grace In The News

Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction

Sandulli Grace Staff March 31, 2009

Massachusetts Superior Court Judge Bruce Henry today ordered the Human Resources Division to NOT issue any eligibility lists for police promotion until after he rules on the request for a preliminary injunction submitted by Sandulli Grace attorneys on behalf of the Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and individual test takers.  As we noted last week, we have challenged the Civil Service Commission’s rubberstamping of HRD’s decision to band.  Judge Henry today heard argument on our request for an injunction, and indicated that he will issue a decision on the injunction request soon. 

 At the hearing, HRD, represented by counsel from the Attorney General’s office, continued to insist that banding is lawful in the face of HRD’s rule that says scores have to be put out in “whole numbers.”  “Bands 1 to 7 are whole numbers, just like 1 to 100,” was essentially what HRD contended.  Attorney Shapiro responded that, under that logic, the bands could be 1 to 2 (pass/fail), 1 to 1,000 (scores broken to tenths of a point), or 1 to 10,000 (scores broken to hundredths of a point).  In other words, the Commonwealth contends that its rule has no substantive meaning.

After the Judge ordered that no lists be established utilizing banding, counsel for HRD complained that some unnamed municipalities could lose funding for promotions if they are not made quickly.  Sandulli Grace’s Alan Shapiro quickly pointed out that HRD is free to issue lists based on the 10/08 tests – as long as it follows its own rule and lists the scores by whole numbers from 1 – 100. 

As always, we’ll keep you posted.

 

Labor In The News, Sandulli Grace In The News

“Massachusetts Lawyers Weekly” Taps Sandulli Grace Attorney For Expert Commentary On Confidentiality Clause Case

Sandulli Grace Staff March 30, 2009

Sandulli Grace attorney John M. Becker provided expert commentary in a recent front page article in the March 23, 2009 edition of Massachusetts Lawyers Weekly.  MLW is the leading news publication in the state for the legal community.  Attorney Becker commented on the recent decision of the U.S. Court of Appeals for the First Circuit, Northeastern Land Services, Ltd. v. National Labor Relations Board, — F.3d —-, 2009 WL 638248 (2009). In this case, the First Circuit upheld NLRB’s conclusion that the employer’s discharge of an employee over an alleged breach of confidentiality was improper.   At the heart of the case was the employer’s rule that employees sign a confidentiality agreement that made employees promise not to discuss wages and terms of employment with others.  In other words, the employer prohibited employees from talking with each other about their compensation, to compare how they were being paid to other employees, which essentially prevented employees from networking to improve their working conditions.  Before he was fired, the employee became involved in a pay dispute with his employer which he then discussed with a third party.  Ultimately, the employer fired the employee, charging him with violating the confidentiality rule.

The employee filed an unfair labor practice charge with the NLRB, alleging that the confidentiality rule had the effect of intimidating and coercing employees in the exercise of their right to engage in collective activity.  Even though no union was involved in this case, the NLRB found (and the First Circuit agreed) that the confidentiality rule was so overbroad that it violated the National Labor Relations Act, which grants employees the right to organize and engage in collective action, no matter how the rule was applied.  The NLRB concluded that the discharge of the employee for discussing his wages and benefits was improper.  The decision serves to remind employees that they have a right to engage in concerted action about their wages and benefits, even if they elect not to do so under the aegis of a union.

In commenting on the case in “Massachusetts Lawyers Weekly”, Sandulli Grace’s Becker noted, “[The decision recognizes] that as employers become more sophisticated in ways to keep unions out of their shops, the board has to be able to recognize that and protect the rights of employees to organize, even if situations like this one where it’s not obvious that there’s a union issue.”  Becker disagreed with the employer’s attorney’s prediction of dire consequences from the decision.  On the contrary, he stated, “The court itself discusses the possibility of a more narrowly fashioned confidentiality agreement that reaches legitimate goals the employer might have without being overbroad.”      

Labor In The News, Sandulli Grace In The News

MCOP and BPPA File For Injunction to Stop Banding

Alan Shapiro
Alan Shapiro March 27, 2009

Today, March 27, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, jointly represented by Alan Shapiro and Bryan Decker of Sandulli Grace, filed a lawsuit in Suffolk Superior Court to enjoin the Human Resources Division from promoting with banded lists.

The Court set a hearing on the injunction for Tuesday, March 31, at 2:00 p.m. in Suffolk Superior Courthouse, Room 916.

The arguments are essentially the same ones made, and rejected, before the Civil Service Commission.  HRD has a rule saying it establishes lists with “whole numbers.”  We all know that means the scores are supposed to be in a 1-100 format.  If they want to start banding, they have to change their rules.  The legal way to do that is to follow the procedures in the Civil Service law for rule-making. 

We want to thank all of you who have shown your support over these past weeks for our efforts to preserve a merit-based, civil service promotional system for police officers (and, by extension, others) in Massachusetts.

Read the complaint and the memorandum 

In Our Opinion..., Labor In The News, Sandulli Grace In The News

Mass SJC Grants Another Victory To Boston Police Patrolmen’s Union In Long-Running Overtime Battle: City’s Unilateral Shortchanging Of Overtime Pay Violates State Law

Sandulli Grace Staff March 16, 2009

The Massachusetts Supreme Judicial Court, the state’s highest court, today upheld a 2006 ruling of the state Commonwealth Employment Relations Board (CERB) that the City of Boston unlawfully reduced the overtime compensation of Boston Patrol Officers without first bargaining with their union, the Boston Police Patrolmen’s Association, Inc. (BPPA).  The SJC and CERB ordered the City, which made the unlawful change in July 2002, to “make whole” the patrol officers represented by the BPPA – which likely will cost the City several hundred thousand dollars. 

Today’s SJC decision caps lengthy litigation regarding the City’s repeated violation of state and federal laws concerning overtime pay to Boston police officers.  In 2000, more than 800 Boston patrol officers, represented by Sandulli Grace Attorneys Bryan Decker and John Becker, sued the City in federal court for the City’s outright refusal to pay overtime as required by the federal Fair Labor Standards Act (FLSA).  The federal court agreed, and the City ultimately paid officers almost $700,000 plus attorney’s fees.  In July 2002, while the federal litigation was ongoing, the City unilaterally adopted the FLSA’s “partial public safety exemption,” which lowers federal overtime payments to police officers and firefighters.  While the City’s unilateral adoption of this partial overtime exemption was permitted by the FLSA, it was not by state law.  Under state law, Chapter 150E of Massachusetts General Laws, a municipal employer must bargain with a union before changing the wages of employees represented by a union.  The BPPA immediately demanded to bargain about this change.  The City refused, even though the parties were negotiating a new contract, and instead implemented the change.  On behalf of the BPPA, Sandulli Grace Attorneys Bryan Decker and Patrick Bryant filed an unfair labor practice charge with the state labor relations agency.  CERB ruled in the BPPA’s favor, and the City appealed. 

The SJC upheld the CERB decision on all points, finding that:

 

  • “the city was obligated under G.L. c. 150E to bargain in good faith with the union regarding” the July 2002 decision to adopt the partial public safety exemption;
  • that the City further violated the law by refusing to provide the BPPA with information it requested;
  • and that the proper remedy was for the city to “[m]ake whole affected employees for the economic losses they may have suffered as a result of the [c]ity’s decision to adopt” the partial public safety exemption. 

With regards to the remedy, a conservative estimate is that the City reduced overtime pay to officers by at least $100,000 per year by making the unlawful change.  Damages will run back to July 2002, and the BPPA’s members are entitled to interest.

BPPA President Thomas Nee welcomed the Court’s decision.  “We’re extremely gratified that the Supreme Judicial Court agreed with our position in this case.  The FLSA is designed to protect the rights of people who work more than 40 hours per week and ensure that they are properly compensated.  The Court affirmed that this applies to police officers as well.”

Sandulli Grace Attorney Bryan Decker, who argued the case to the SJC, said, “The City continuously, and improperly, claimed that it couldn’t comply simultaneously with the FLSA and its obligations under state law.  The SJC rejected this argument as bogus, and upheld that workers are entitled to the protections of the FLSA and their Union.  Given the state of our economy, this decision reminds employers that a desire to save money is not a defense to violating legal obligations.  Hopefully, municipalities will learn that the only way through these challenging times is to treat unions and employees as partners rather than problems.”

READ the SJC decision at:

http://www.socialaw.com/slip.htm?cid=18853&sid=120

In Our Opinion..., Labor In The News

The Band Plays On: Civil Service Commission Abdicates Oversight Role To Human Resources Division – Refuses To Investigate Decision To “Band” Promotional Test Scores

Sandulli Grace Staff March 13, 2009

The Civil Service Commission today rejected appeals filed by Sandulli Grace on behalf of the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police (and companion cases filed by the Boston Superior Officers and IBPO) challenging the Human Resource Division’s decision to start “banding” scores from civil service promotional exams when placed on eligibility lists.  Specifically, the Commission rejected the straightforward argument that HRD violated its own rule requiring that exam scores be listed “in whole numbers.”  Instead, Civil Service decided that scores expressed in bands, each containing up to 8 points, are in “whole numbers” because the bands are numbered 1 through 7.  When the HRD attorney made this ridiculous argument in the civil service hearing room, members of the crowd, including one sitting commissioner, audibly laughed.  Now, apparently, it is the law, contradicting the old adage that an argument should first have to “pass the laugh test.”

            In one decision the Commission ruled that individual offers are not “aggrieved” because they have not suffered “actual harm” – YET!  Reading Chapter 31 (Civil Service law) to only remedy past wrongs, the Commission ruled that since no one has been yet harmed by banding, the appeals are untimely.  Of course, it was our hope and desire to AVOID a situation where individuals are promoted based on banding only to have those promotions undone through an after the fact appeal.  (Indeed, Counsel to HRD, while claiming that our appeal was not ripe, simultaneously argued that the Commission could not go back and undo initial hiring decisions already made because of the chaos that would result.)  Unfortunately, the Commission punted rather than take the issue on headfirst.

            In the second decision on our request for an investigation (as opposed to an appeal), the Commission rejected our argument that HRD had violated its own rule.  Although our request only sought to require HRD to follow proper rulemaking regarding banding, the Commission nonetheless wrote a lengthy exegesis on how terrific banding really is, citing law review articles and unrelated dicta in federal civil rights cases.  Amazingly, the Commission quoted Massachusetts Federal Judge Saris, who opined in a decision that “banding … seems consistent with” civil service.  This is amazing because Judge Saris noted in the same case that “the attorneys have not briefed the issue,” and that “HRD has expressed some legal uncertainty as to whether the statutory framework in Massachusetts allows banding.”  Without a hearing, rulemaking, or any other legal proceeding, HRD has now gone from questioning the legality of banding to making it the law of the land.

            As to WHY HRD’s decision to band scores does NOT violate the “whole number rule,” the Commission held that bands “are whole numbers.”  By this logic, HRD could follow its “whole number” rule by scoring exams 1-100, 1-7 (as in banding), or 1-10,000 (as it did when it used to break down scores to the hundredth of a point).  In other words, the rule has no meaning.  This would be comic were it not for its effect on the careers of literally thousands of police officers who arduously studied, sacrificing earnings and time with their families, expecting their efforts to be scored by the rules.

            A stern dissent by two of the five Commissioners (Henderson and Taylor) pointed to the time and effort put in by test-takers with the expectation that their tests would be scored as they have been in the past: in whole numbers of 1-100.  They disagreed with the majority and would order the relief requested by our clients:

That the Commission order HRD to comply with its present rules and establish eligible lists from the October 2008 police promotional examinations in whole numbers and not utilize banding or any other method. 

To the extent that HRD desires to amend PAR. 07 (4)[the “whole number” rule], the Commission should then order that no such amendment become effective unless and until HRD complies with the statutory requirements of G.L. c. 31, §§ 3 and 4.

            Like the indulgent parent admonishing the wayward teenager taking the family Mercedes out for a spin to “be careful,” the Commission wagged a finger at HRD that, because of the enormous new power it was conferring on appointing authorities, it had better “embark[] forthwith on an inclusive, transparent selection process to ensure effective implementation by municipalities of post-banding selection procedures.”  That was what the Legislature created under the statutory “2N +1 Rule,” until HRD and Civil Service saw fit to destroy it.  But we need not worry, because the decision tells us that the Commission “will not stand idly by if presented with competent evidence that unlawful favoritism was the driving force behind a particular promotional appointment.”  This gives little comfort as we have watched Civil Service stand idly by while HRD makes up its own rules and the agency abrogates its statutory oversight role.

            The role of the Civil Service Commission as a watchdog against favoritism and overreaching by HRD is called into question when Civil Service refuses to demand that HRD conduct rulemaking in the open – AS IT IS REQUIRED TO DO. 

            Needless to say, we are reviewing our options with our clients.  Stay tuned…

Labor In The News

LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs.

Amy Laura Davidson
Amy Laura Davidson March 9, 2009

LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs.  The Labor and Employment Relations Association is hosting a dinner meeting regarding veteran’s benefits and jobs on Thursday March 19, 2008. The meeting is at;

NSTAR Electric  & Gas 

One NSTAR Way, (Please use EAST ENTRANCE) 

Westwood, MA 02090 

781-441-8773 

Social Hour @ 5:30 PM 

Dinner @ 6:30 PM 

Tickets: $50/Member • $60/Non-Member • $25 student 

Download the LERA_dinner_meeting flyer_

In Our Opinion..., Labor In The News

Bppa And Mcop Request That Civil Service Commision Hold Speedy Hearing On Legality Of Decision To “Band” Promotional Test Scores

Alan Shapiro
Alan Shapiro March 3, 2009

The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA).  At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours.  At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.

From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party.  The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.”  The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.”  The retort drew audible laughter from the crowd in the hearing room.  Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers.  Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing.  Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2.  HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.

Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding.  When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them.  Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD.  It became rather obvious whom HRD viewed as more important in this process.

On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system.  Quoting from a 2005 Connecticut Supreme Court case  which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:

“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”

Specifically, MCOP and BPPA asked the Commission to take the following actions:

  • Conduct a speedy hearing to ascertain whether HRD is acting within its authority in establishing eligible lists by banding;
  • Order HRD not to send out any eligibility lists using banding until the issue has been decided by Civil Service;
  • After the hearing, order that HRD follow its own rules and establish police promotional lists using whole numbers, unless and until it lawfully changes the rules.

In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.

In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied.  Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.

We now await the Commission’s decision on what the next step will be.  Stay tuned.

In Our Opinion...

SJC Grants Rare Victory To Public Employees – Deceased Employee Entitled To 72% Retirement For Suffering Heart Attack Upon Being Told Of Layoff

Sandulli Grace Staff March 2, 2009

The Supreme Judicial Court of Massachusetts, as we’ve indicated frequently on this blog, has issued a number of decisions that are unfavorable, and occasionally hostile, to public employees in general and public safety employees in particular.  However, in Retirement Bd. of Salem v. Contributory Retirement Appeal Bd, SJC-10215 (February 24, 2009), the SJC granted a huge victory to public employees. 

In this case, a public employee suffered a disabling heart attack upon being told by her supervisor that her job was being eliminated in a few months.  After work and within one hour of hearing this news, the employee suffered a heart attack.  She was briefly hospitalized.  She never returned to work.  Instead, she immediately filed for an accidental disability retirement, which generally provides 72 percent of the employee’s recent salary, pursuant to M.G.L. c.32, §7.

 A public employee who suffers a mental or emotional disability as a result of a “bona fide personnel action” (i.e., a legitimate transfer, demotion, etc) is ineligible for accidental disability retirement.  Here, the Retirement Board denied benefits because it claimed that the heart attack arose from news of a bona fide personnel action.  The SJC disagreed, ruling that the physical, as opposed to emotional/mental, injuries that result from a bona fide personnel action remain eligible for accidental disability retirement.  In other words, Chapter 32, §7 denies accidental disability retirement benefits to employees who, for instance, suffer a permanent psychological disability as a result of layoff news, but does not deny benefits if the exact same news results in a permanent physical disability.

In the decision, the SJC also affirmed that disabling injuries, to qualify for accidental disability retirement, must occur while working and not merely “at work.”  In other words, the employee likely would not have been eligible for benefits had the heart attack resulted from learning at work about a family tragedy.  The SJC concluded here that the employee’s injury arose during the performance of work duties given that she was ordered to participate in a meeting with her supervisor.