In an important win for employees and unions, the Massachusetts Supreme Judicial Court (“SJC”) recently ruled in favor of the Newton Police Superior Officers Association, MCOP Local 401 (“NPSOA”), finding that the City of Newton (“City”) discriminated against NPSOA member John Babcock for his union activities. Sandulli Grace attorneys Alan Shapiro and John Becker represented the NPSOA. This decision establishes that an employment action can be adverse (and thus retaliatory) if it has an overall negative impact on an employee’s working conditions even if it also results in some positive change. In addition, this decision confirms that a good work record (i.e. no history of discipline) is unnecessary to establish a retaliation claim under G.L. c. 150E.

The SJC agreed with the state’s labor board that the City violated G.L. c. 150E, § 10(a)(3) and (1) by involuntarily transferring Sgt. Babcock in retaliation for his union activity. From 2012 to 2018, Sgt. Babcock held a specialty position in the Traffic Bureau, where he worked a Monday–Friday day shift and did not regularly work nights, weekends, or holidays. Sgt. Babcock was also president of the NPSOA. After a series of disputes with the police chief about grievances and contract negotiations—and a single incident where Sgt. Babcock received a letter of reprimand for arguing with another officer—the chief involuntarily transferred Sgt. Babcock to the Patrol Bureau with no explanation. In patrol, Sgt. Babcock worked a four-and-two schedule that required him to work weekends and holidays, alternating between evening and midnight shifts. Following the involuntary transfer, Sgt. Babcock received an 8% night differential. The NPSOA filed a charge with the state Department of Labor Relations (“DLR”) alleging that the City transferred Sgt. Babcock to the Patrol Bureau because of his union activities, which would violate state labor law.

A DLR hearing officer found that the NPSOA established the involuntary transfer was an adverse employment action but dismissed the complaint because, in the hearing officer’s view, the City showed Sgt. Babcock’s prior discipline was a legitimate reason for the transfer. The NPSOA appealed to the Commonwealth Employee Relations Board (“CERB”), which reversed that decision, holding that the transfer was retaliation for union activity because the City failed to show the prior discipline was a legitimate reason for the transfer. The City appealed, and the Appeals Court reversed CERB’s decision: it found that because Sgt. Babcock’s compensation increased after the transfer—from the 8% contractual night differential—the transfer was not, and could not be, an adverse employment action, and therefore, the NPSOA did not meet its burden for a retaliation claim. NPSOA and CERB appealed.

The SJC reversed the Appeals Court’s decision. It found there was substantial evidence to support CERB’s decision that the involuntary transfer was an adverse employment action. In so doing, it confirmed that whether an employment action, such as a transfer, qualifies as an adverse employment action is based on “whether the action has had a material disadvantage affecting the objective aspects of the work environment that would be objectively apparent to a reasonable person in the employee’s position.” City of Newton v. CERB et al. 496 Mass. 82, 92 (2025) (internal quotations and citations omitted). Accordingly, the SJC rejected the argument that the involuntary transfer was not, and could not be, an adverse employment action because Sgt. Babcock received a contractual pay increase for working nights in patrol. Instead, the SJC found evidence that there were other non-monetary advantages to working the day shift because the City paid additional compensation to night shift employees. That is, the involuntary transfer could still be an adverse employment action even though Sgt. Babcock’s compensation was higher after the transfer. The SJC also held that an employer’s compliance with the terms of a CBA does not alone determine whether something is an adverse employment action, although it may be a factor in the analysis.

In addition, the SJC rejected the City’s argument that that a generally good work record is necessary to establish a claim for retaliation. It found that an employee’s work record can be part of the argument about whether an action was retaliatory or for a legitimate purpose, but that a charging party at the DLR need not prove a “good work record” as part of showing an employer retaliated on the basis of union activity.

Finally, the SJC affirmed CERB’s finding that the City failed to show it had a legitimate employment-related reason for transferring Sgt. Babcock to patrol. Specifically, it found there was no evidence that that Sgt. Babcock’s prior misconduct was part of the reason for his transfer.

The SJC’s full decision can be found here.