The Massachusetts Teachers Association (MTA) recently won a hard-fought arbitration over the termination of a paraprofessional employee (also known as a “para”) in the Ashburnham-Westminster Public Schools. After five days of hearing, Arbitrator Gary Altman ruled that the School District did not have just cause to discharge the MTA member. Following the ruling, the School District reinstated the para in accordance with the arbitrator’s instructions. The MTA was represented in the arbitration proceeding by Sandulli Grace attorney John M. Becker. He was assisted by Local Union President Beth Wojnas and MTA Uniserv consultant Paul Ryan.
The case arose at the end of the 2009-2010 school year when, after several successful years as a para in a difficult special needs program that uses applied behavioral analysis (ABA), the para received a scathing end-of-year evaluation that recommended she be terminated from her employment. This came as a shock because: (1) the Union had negotiated the evaluation as a tool for improvement and growth, not discipline and (2) this para had not received any prior discipline or otherwise been warned that her performance was not satisfactory. Furthermore, the para disputed the truthfulness and accuracy of her supervisor’s criticisms. In many cases, the para’s supervisor criticized her for behavior that had been reported (inaccurately) to the supervisor from third parties.
At the arbitration, the Union introduced evidence that (1) the allegations against the para were false; and (2) the employer failed to use progressive discipline. The arbitrator issued a decision based on the second theory, in a stirring endorsement of the principle that employers must value their employees and give them opportunities to improve, instead of blindsiding them:
[W]hen an employee has been discharged for being unable to perform in a satisfactory manner, arbitrators consider whether the employee was offered a reasonable opportunity to demonstrate satisfactory performance, or whether the steps of progressive discipline have been followed. The purpose of progressive discipline for performance related problems is to put the employee on notice to improve his or her performance, and if the employee is unable to perform in a satisfactory manner, to then impose more severe discipline. In the present case there was absolutely no progressive discipline.
As a remedy, the arbitrator ordered the School District to reinstate the employee to a paraprofessional position. The discharged para had been earning a higher salary as an ABA para, so the Union had asked for her to be reinstated to an ABA position, but the arbitrator did not restrict the School District to ABA positions, thus allowing the School District to reinstate the para to a lower paying position, at least until contractual bumping rights allow the para to bump into an equivalent job. Despite this glitch, this award overturning a discharge was a significant victory for the employee and for the MTA.
In an arbitration case, the Arbitrator found that the City of Salem violated the contract and past practice when Mayor Driscoll refused to pay a Captain, retiring after 30 years of service to the City’s Police Department, for the various benefits and stipends which all other retirees had received for over 25 years. The Mayor claimed that there was not explicit contract language requiring payment for the various benefits and stipends upon retirement and therefore, even though every retiree had received the benefits and stipends when he/she retired, the Mayor refused to pay the benefits and stipends to this Captain.
In his Decision, the Arbitrator explained that it is clear that the City officials including the Mayor, Personnel, Finance, Treasury officials and Police Chiefs were aware of the payments and that the City Council funded the payments when it voted appropriations to fund the contracts and Department budgets. The Arbitrator found further that the evidence discloses that the benefit/stipend payment practices up to the grievant’s retirement “were unequivocal, clearly enunciated and acted upon for a considerable period of time, easily discernible over a long period of time as a fixed and established practice accepted by both parties.” In addition, the Arbitrator found that the “past practice” concerning unpaid benefits and stipends “had become an implied-in-fact contract term.” “As a binding past practice is an enforceable, implied-in-fact contract term, it may only be altered by the collective bargaining process.” Therefore, the retired Captain was entitled to be paid fully for the unpaid benefits and stipends as the other retirees before him received and the City of Salem must continue to comply with the pertinent contract provisions and the parties’ past practices unless and until the parties properly negotiate to amend or alter the parties past practices. The Union was represented by Sandulli Grace Attorney, Susan Horwitz.
It should also be noted that the Salem Police Superior Officers Association has recently affiliated with the Massachusetts Coalition of Police, AFL-CIO.
In a disappointing decision, the Supreme Judicial Court today ruled that the Quinn Bill Statute, M.G.L. c. 41, §108L, only requires a municipality that adopts it pay one half of the benefits enumerated in the statute, and that the other half is contingent on state funding.
The Court ruled that the phrase “shall be granted” education benefits actually only means “shall be granted” half of the benefits when read in conjunction with the “shall be reimbursed” language later in the decision. You can read the decision in Adams v. Boston by linking from the SJC website, http://www.massreports.com/slipops/default.aspx .
The decision just issued, and we are still digesting it fully. We will post a thorough analysis of the Court’s decision soon.
Today, the Massachusetts Supreme Judicial Court did NOT issue a decision in Adams v. Boston, the case considering whether municipalities may cut Quinn Bill benefits to officers. Obviously, no news is not news, but I write because I am asked about a decision at least 5 times a day. If you are a union steward, or a member of the BPPA House of Representatives, I’ll bet you wish you only got asked 5 times a day.
But there are ways that you can know about the decision AS SOON AS IT IS ISSUED. Easiest would be to subscribe to Sandulli Grace’s e-mail notification process. Rest assured that I’m checking for a decision each day, and will post a notice of the decision as soon as I get it. Just go to http://sandulligraceonline.com and add your e-mail address in the box at the upper left of the page. By signing up, you will get notice of the decision, and will get periodic notices of other issues of import and interest to the union community.
The Supreme Judicial Court also issues a daily e-mail notification of all cases issued. You can also sign up for that at the Court’s website, http://www.massreports.com/ .
Finally, please note that there is no deadline for the Court’s consideration of the case. According to the Court’s website, “most opinions are released within 130 days of oral argument,” but some decisions can take longer. I had the opportunity to hear one of the justices speak last year on the inner workings of the SJC. I have to admit that I was humbled at the amount of work that each and every one of the seven justices puts into the many cases the court hears each year. The Court’s Justices (and their able staffs) are not sitting idly around. Rather, they are digesting thousands of pages of briefs, listening to hours and hours of arguments, and writing hundreds of pages of decisions each month. So, while we’d all like to have the decision, please know that the SJC isn’t sitting on the case, it is being carefully considered along with all of the other cases before our state’s highest court.