All posts by Alan Shapiro

John Becker on National Labor Issues

Sandulli Grace attorney John Becker is quoted extensively in an article published June 12, 2023 in Salon, a national publication. The article focuses on labor law opinions issued by the most recent appointee to the U.S. Supreme Court, Justice Ketanji Brown Jackson.

In a recent decision in a case called Glacier Northwest v. Teamsters, the Supreme Court, by an 8-1 majority, allowed a concrete delivery company to sue the Teamsters Union for damages when its drivers went on strike. Even though the drivers had left their delivery drums rolling when they walked off the job so that the concrete would not harden, the Court allowed the lawsuit to go forward.

As the sole dissenting judge, Jackson advocated for adherence to court precedent. Historically, the National Labor Relations Board (NLRB), not the courts, has overseen issues between private sector unions and employers. While the court sided with the employer, it did not, as many had feared, completely overrule precedent. Despite losing the case, unions were a bit heartened by the narrowness of the decision.

As the sole dissenting voice, Justice Jackson wrote:

“Workers are not indentured servants, bound to continue laboring until any planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA [federal labor law] even if economic injury results.”

Attorney Becker commented on Justice Jackson’s dissent:

“She displays a true understanding of and respect for the important role of the NLRB in adjudicating labor disputes,” said, John M. Becker, an attorney at Sandulli Grace, P.C., a law firm that represents unions and employees.”

Attorney Becker further commented on the importance of labor unions in our economy:

Becker glowed over Justice Jackson’s dissent: “At a time when the Republican Party (and a certain portion of the electorate) perceives unions negatively, Justice Jackson’s robust affirmation of the important role unions play in the American economy is a breath of fresh air. I wish we lived in a world where Justice Jackson could get four more votes for her position, but we don’t.”

According to the U.S. Bureau of Labor Statistics, barely 10% of the overall U.S. workforce (including private and public sector workers) is unionized. In 1983, that figure was 20%. The overall percentage of union membership is half of what it was 40 years ago. While about 33% of public sector workers are represented by unions, the figure for private sector workers is 6%.

Unionized workers in the public sector (police officers, fire fighters, teachers, etc.) need to understand that the wages and benefits they have fought for are financed not just by their pension contributions but also by taxes paid by everyone. As fewer and fewer private sector workers have the ability to negotiate for better wages and benefits, their willingness to pay for public sector benefits they don’t have can only diminish.

Workers, particularly unionized ones, need to understand the pernicious effects that the Trump appointees on the NLRB had on private sector unions and their members. The Biden administration has appointed people to that agency who are committed to enforcing its mission of protecting unions and employees. Perhaps, with people on the NLRB who are truly committed to enforcing the law, private sector unions can grow. Only when many more workers belong to unions can this country truly live up to its stated objective of equality for all.

Vaccine Mandates Are Coming: What Can Be Done?

With today’s Federal Drug Administration approval of the Pfizer-BioNTech vaccine for those 16 years of age and older, and with approval of the Moderna vaccine expected soon, we can anticipate a wave of employers imposing vaccine mandates on their employees. For those who are already vaccinated, it’s not an issue. But for those who are not, their jobs could be threatened. If you are in a union, what can your union do about it?

From the early indications, neither the courts nor federal or state agencies are going to protect employees from vaccine mandates. The case law goes back to 1905, when the U.S. Supreme Court upheld a Massachusetts law that mandated that all adults over 21 be vaccinated against smallpox and made it a crime to refuse to comply. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld a decision of our SJC that said that mandating vaccination did not violate either the U.S. or our state constitution.

In the only constitutional challenge to COVID vaccination requirements to reach the U.S. Supreme Court, a group of students sued Indiana University, which is requiring all students to be vaccinated against COVID unless they have medical or religious exemptions. On August 2, 2021, the 7th Circuit (federal circuit courts are the next level below the U.S. Supreme Court) refused to give the students an injunction against the vaccination requirement, relying on Jacobson. Klaassen v. Trustees of Indiana University. On August 12, Supreme Court Justice Barrett denied the students’ request for an injunction. As a Supreme Court blog put it:

Barrett, who is responsible for emergency appeals from Indiana, denied the students’ request without comment, without seeking a response from the state, and without referring the request to the full court for a vote – suggesting that she and the other justices did not regard it as a particularly close case.

The most recent guidance of the EEOC (the federal agency that enforces workplace discrimination laws) said that

Federal EEO [Equal Employment Opportunity] laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. the only required exceptions to mandatory vaccination policies are for medical and religious reasons.

Our state anti-discrimination agency, MCAD, has not issued a separate guidance, but they generally follow the EEOC in these types of cases.

While these decisions apply generally to the legality of mandating vaccinations, it’s different in a unionized workplace. Generally, decisions like mandating vaccination, and their impacts, are considered to be mandatory subjects of bargaining. That means that the Employer must negotiate with the Union over the implementation and effects of these policies before they are implemented. But having the legal authority to demand bargaining and to engage in bargaining does not necessarily mean that unions will be able to stop employers from implementing vaccine mandates. Employers will likely claim the urgency of these negotiations in an attempt to foreclose unions from dragging them out. There is case law in some jurisdictions supporting this position. If impasse is reached in the negotiations, generally, labor laws allow employers to implement their last best proposal.

In short, current law provides non-union employees little protection against vaccine mandates. For those in unions, there is at least the opportunity to engage your employer in negotiations before a mandate can be implemented. Of course, each situation in a unionized workplace is different, depending on the laws in your jurisdiction and the content of your collective bargaining agreement.

Note: Please recognize that the opinions in this blog entry are based on my best assessment of current legal precedents. These precedents can change, so it is important to keep current. This blog is not a substitute for guidance from your union or legal counsel to address your particular situation.

Police Unions And The Current Climate

On December 22, the New York Times published an article entitled, “How Cities Lost Control of Police Discipline.” To someone reading the story without an understanding of labor relations and the arbitration process, the message was clear: the ability of police unions to access labor arbitrators allows brutal police officers to remain on the streets. The article, either intentionally, or, more likely, due to preconceived notions, creates a false picture of how labor arbitration works under police contracts.

The article quotes, albeit briefly, union labor attorney Will Aitchison. Aitchison not only practices law, but he also publishes excellent articles, runs seminars, and puts out a monthly podcast – all covering public safety labor law. For those who do not subscribe, I heartily recommend his web site, through which you can access the excellent materials he produces. A number of my colleagues at Sandulli Grace have presented at his seminars.

But, back to Aitchison and the Times article. In his most recent podcast, Atty. Aitchison explains the real story behind his interviews with the reporters who wrote this story. He spent hours with them, trying to explain, from the perspective of a union lawyer with decades of experience representing police unions, that arbitration is hardly the panacea for unions as it is portrayed. He explains in the beginning of this podcast that he told them, yes, unions win about half of the police arbitration cases; just as unions win about half of the firefighter, teacher, or sanitation worker arbitrations. But what that statistic ignores is the 95% of discipline cases that never get to arbitration, either because they are settled or because the union agrees with management that the assessed punishment was fair and with “just cause,” the contractual standard for most discipline arbitration cases. Yet, much to his frustration, this fundament point he conveyed to the reporters never made it into the story. Even a follow up letter to the editor has yet to see publication.

I, too, have been representing unions, many of them police, but also teachers, firefighters, security guards, and many others, for over 35 years. In general, there’s nothing magical about police contracts. They differ little, in their essentials, from other public sector union contracts. They all require employers to have “just cause” to suspend, demote, or discharge employees. If the union believes the punishment imposed lacks that just cause, they have a right to present their case to a neutral labor arbitrator. These arbitrators are mutually selected by the employer and the union. They are neutral people, usually lawyers, with expertise in interpreting labor contracts. After hearing both sides, they decide whether management fulfilled its responsibility to show that it had the requisite just cause to take away someone’s job. The process is the same whether the employee is a teacher, a firefighter, or a police officer. As Aitchison explains, the vast majority of the discipline of police officers never gets to an arbitrator: it is either resolved through the grievance process or the union does not contest that the “punishment fits the crime.”

The Times article, along with virtually all of the ones I’ve seen on this topic, is based on a fundamentally flawed assumption: police management is always right, or at least trying to “do the right thing.” This is a fallacy. There are good police administrators who really do try to manage their workforce fairly, but there are many who are motivated by various biases. These include political favoritism, racial and gender bias, and a general view separating employees into “good guys” and “bad guys.” The misdeeds of the “good guys” are overlooked, while those of the “bad guys” are punished. This is why we have arbitration: to bring an outside, neutral force to act as a check on management. This works the same way for police unions as it is does for all unions.

As labor attorneys and others in this field know, without a union contract, a worker has few rights. They can be fired for any reason except an illegal one, such as for their race, age, sex, or some other category given legal protection. But these laws only protect a very small number of cases. Unions exist not just to fight for higher wages and benefits, but also to fight for contracts that give members at least some modicum of job security. As central to religion as is the concept of loving one’s “neighbor as thyself” so in union contracts is the paramount principle that just cause protects employees from unjustified loss of their job. But, as if often said, never let the truth get in the way of a good story.

Families First Coronavirus Response Act: A Brief Explanation

Under a new federal law, titled the Families First Coronavirus Response Act (FFCRA), the federal government has created several new programs to assist workers during the current crisis. There are now ten (10) additional fully paid sick days for employees unable to work either because of their own health concerns or those of others in the employee’s care. The same 10 paid leave days (at 2/3 pay, up to $200/day) may also be used to care for children at home due to school closures. These ten days are in addition to any other contractual benefit. The eligibility requirements to use these days are much less stringent than those in most collective bargaining agreements or employer policies. In addition, the 12 weeks of leave under the Family Medical Leave Act (FMLA) may now be used to stay home with children whose schools are closed. Unlike other forms of FMLA leave, employers must compensate employees at 2/3 of their pay, up to $200/day, for this entire leave period.

While the laws apply to all state and local employees (in addition to private sector employers with fewer than 500 employees), the law allows employers to exempt from its coverage “emergency responders,” a category that includes police officers, fire fighters, public health, and even public works personnel. However, we believe, based on case precedents in Massachusetts, that the decision of whether or not to exempt emergency responders, including police officers and firefighters, is a mandatory subject of bargaining under the Mass. collective bargaining law– meaning that a union can require a city or town to negotiate before it adopts the emergency responder exemption. If your city/town has already adopted the exemption without consulting with your union, you can demand that they rescind their acceptance of it and first bargain with your union. However, we know that some cities and towns have agreed to better benefits for emergency responders than are provided by this new law, so whether or not to demand inclusion in these benefits must be evaluated for each local union.

Attached is the U.S. Department of Labor’s synopsis of the FFCRA (which is available at
This blog entry is for general informational purposes only. There are 124 pages of regulations and explanations issued by the U.S. Department of Labor to implement the new law. Before any union or individual takes any specific action under the FFCRA, consultation with a union official or attorney is strongly advised.

Civil Service Commission Upholds Termination Of African American Boston Firefighter For Social Media Posts But Also Orders Investigation Into Boston Fire Department

In Rowe v. Boston Fire Department (D1-18-074), issued on August 29, 2019, the Civil Service Commission upheld the discharge of Boston Firefighter Octavius Rowe for the content of his social media posts and podcasts. The Commission’s summary of its decision states:

Firefighter Rowe maintained a presence on social media and participated in various podcasts inwhich he regularly identified himself as a Boston firefighter. As part of those same public forums, he repeatedly spoke, wrote and/or posted bigoted comments that violate the norms of decency and various rules and regulations of the Boston Fire Department, including conduct unbecoming a firefighter, justifying his termination. Firefighter Rowe’s public posts and statements included: referring to the long-time head of the Boston Urban League as a “shoe-shine Negro”; referring to the then-Boston Police Superintendent (now Commissioner) as a “feckless, jolly black face”; a statement that black men should not share their “genetic material” with a “filthy, filthy white woman” and that “laying with white women is like spitting in your mother’s womb”; a post listing the date, time and location (including the name of the school and a map) where Firefighter Rowe objects to young boys and girls holding hands with members of the same sex; multiple references to gay men as “homophiles”; a reference to so-called “homophiles” seeking to “normalize homophilia particularly among children in order to GAIN and EASE sexual access to them”; references to lesbians as “lez-beasts”; a reply to a person online stating: “You’re QUEER. You’re not significant enough for me to troll”; another online reply stating: “Why haven’t any homophiles been killed by Police?”; a picture of Firefighter Rowe, with a clenched fist, wearing a t-shirt with a stick figure with Pan-African colors kicking in the groin a stick figure with LGBTQ colors; a reference to the head of the Boston Chapter of Black Lives Matter, a Boston resident, as a person with: “Homophile/Trans/Femm Interests”; a reference to Black Lives Matter as “HOMOPHILES LIVES MATTER”; a reference to the leaders of Black Lives Matter as “slowwitted, uniformed agents of sexuality confusion/cooning” who “cannot have access to our children.”; a reference to a black entertainer as a “COM-PLETE bitch”; and a reference to “SmallHats (So-called Jews)”.

As if upholding of the termination were not controversial enough, the Commission went on to take the extraordinary step of initiating its own inquiry into how the Boston Fire Department (BFD) handled the investigation of a white firefighter accused of using “the n-word in a social media posting that has come to the Commission’s attention in the course of the present appeal.”

Firefighter Rowe mounted three challenges to his termination: (1) no nexus between his conduct and his job; (2) First Amendment protected speech; and (3) disparate treatment1 . The Commision analyzed the First Amendment defense under federal precedents adopted by Mass. courts. The decision rejected the nexus argument because firefighters enter the homes of people, some of whom belong to races/genders/sexual identities Rowe disparaged in his postings. It analyzed the First Amendment argument under traditional caselaw and ultimately agreed with BFD that “there is no basis for concluding that Firefighter’s Rowe’s interest in free speech outweighed BFD’s interest in providing efficient and effective public safety services.”

The disparate treatment contention – that white firefighters’ repugnant social media posts were treated more leniently than Rowe’s – caused the Commission more difficulty. One white firefighter who “posted vile comments regarding Rachel Maddow and Senator Elizabeth Warren” had been forced to resign. Another was also forced to resign, rather than contest his termination, whose “hateful, bigoted postings” included one stating “I Never Ever Trust a Dirty Fucking Muslim.” As part of Rowe’s defense at his hearing, he produced evidence that another white firefighter had also made racist social media posts but had only received a warning from BFD. The Commission rejected the disparate treatment argument, concluding that, regardless of how others may have been treated, Rowe’s conduct was so unacceptable that termination was warranted.

Normally, that would be the end of the case, but the Commission then took the extraordinary step of conducting its own inquiry:

to ascertain what further action should be recommended by the Commission or taken by the BFD to further investigate the allegation that a BFD firefighter has allegedly used the n-word in a social media posting that has come to the Commission’s attention in the course of the present appeal.

As authority for this highly unusual investigation, the Commission’s relied on Section 72 of Chapter 31 (the civil service statute), which states:

The commission or administrator [HRD], upon the request of an appointing authority, shall inquire into the efficiency and conduct of any employee in a civil service position who was appointed by such appointing authority. The commission or the administrator may also conduct such an inquiry at any time without such request by an appointing authority. After conducting an inquiry pursuant to this paragraph, the commission or administrator may recommend to the appointing authority that such employee be removed or may make other appropriate recommendations.” (emphasis added by Commission)

The Commission then ordered BFD within 30 days “to file a written response to this inquiry which should include recommended steps for conducting a further investigation of the above-referenced allegation.”

The lesson from all of this, besides a basic suggestion that employees refrain from categorically criticizing or disparaging any group of people, is to simply stay off of all forms of social media. As this blog has pointed out several times, most recently earlier this month, employees have little to gain and a lot to lose through participation in social media.

1 Disparate treatment occurs when one employee or group of employees is treated differently from another employee or group of employees for the same or similar conduct.

Social Media Will Ruin Your Whole Life, Again

More than four years ago, my colleague Jennifer Smith wrote a blog entry entitled “Social Media Will Ruin Your Whole Life.” The blog detailed how one corporate executive lost her job over one “stupid tweet.” Atty. Smith’s advice to police officers, teachers, and firefighters was “delete your social media accounts now, if you haven’t already.” That advice is even more critical today.

A group called “The Plain View Project” has compiled a database of “public Facebook posts and comments made by current and former police officers” from eight cities around the country. An article disseminated today by LRIS (Labor Relations Information System) explains that, in June, 72 Philadelphia police officers were placed on administrative leave after the department began investigating allegations of racist and offensive Facebook posts by these officers. Since then, 13 of those officers have been notified that the department intends to terminate them; 7 of those 13 have just resigned. Four other officers were suspended for 30 days, three face no discipline, and the remaining face disciplinary action ranging between reprimand and five-day suspension.

Whether you like groups like Plain View Project prying into your Facebook posts or not, it is a reality that these groups exist. In addition, any FB post you’ve ever made is potentially something that could be used to make you look bad by jealous colleagues, spiteful relatives, or anybody else who has an ax to grind with you. The same must be said about all social media, including, but not limited to, Facebook, Twitter, Snapchat, Instagram, Tumblr, Pinterest, Imgur, Yelp, and the many others I’ve never heard of.

As a public employee, and particularly one who daily deals directly with the public, you are called upon to evenhandedly and judiciously ply your trade. Whether intended or not, any action you take which in any way calls into question your evenhandedness can potentially get you into trouble.

And, you may ask, what about my First Amendment rights? In 1892, Supreme Court Justice Oliver Wendell Holmes tersely articulated a police officer’s First Amendment rights: he “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” While there certainly are lines that can be drawn to distinguish public employees’ protected from unprotected speech, do you really want to be a constitutional test case? Are you sufficiently knowledgeable about the intricacies of free speech rights of public employees to be sure that what you post on social media can’t get you in trouble? I would strongly suggest that rather than play Russian Roulette with your career, you stay off social media. Whatever you might gain from participating in social media is dwarfed by what you might lose.

Supreme Court’s Janus Decision: What Does It Mean?

On June 27, 2018, the US Supreme Court issued its long expected decision in the case of Janus v. AFSCME, Council 31. By a 5-4 majority, the Court ruled that it is unconstitutional for a union representing public employees (federal, state, or municipal) to require its members to pay anything to their union, even though, in most states, that union still has a duty to represent them. If it seems odd for the Supreme Court to rule that unions, private organizations funded by workers’ dues, should have to provide free services to fellow workers who choose not to pay dues, welcome to the current political landscape. But, first, how does the case affect unions now?

Janus has no effect on unions representing private employees. It deals only with public employee unions, such as police officers, fire fighters, teachers, municipal and state workers.

If you are a union member, you continue being a member. There is no direct effect on you.

The immediate impact is: there is no more required agency service fee. What, you may ask, is an agency service fee?

In certain states with public sector collective bargaining laws, such as Massachusetts (governed by Chapter 150E), when a union is chosen by a group of workers to represent them for collective bargaining purposes, that union is obligated to represent all of the employees in that particular group. The group represented by the union is called a bargaining unit. For example, when the police in, say, Lynn, voted to be represented by the Lynn Police Association, that Association (for our purposes, “Association” and “Union” are the same thing) became the “exclusive collective bargaining representative” of the bargaining unit of all of the police in Lynn. Under Chapter 150E, that Association became legally obligated to represent all of the Lynn police, because they are all part of its bargaining unit.

Under preexisting law, public employees could not be compelled to join a union, even when that union has a duty to represent them. However, in Massachusetts and other states with fully developed labor laws, bargaining unit employees who did not want to join their union could be required to pay their fair, proportionate share of the union’s cost of representing them. As members of the bargaining unit, agency fee payers receive the same wages and contractual benefits as union members. Their grievances had to be processed the same as members’ grievances. This “fair share” payment is an agency service fee.

Generally, the amount of the agency service fee was somewhere around 80-85% of the union dues. Not being union members, employees who paid agency service fees could not run for union office, serve in any union position, or have any say in how their unions were run. They also received considerably fewer services than union members, but more about this below. Suffice it to say that, in Massachusetts, not many workers opted to be agency fee payers and, among public safety unions, they were virtually non-existent.

The Janus decision says members of a bargaining unit who refuse to join their union can no longer be required to pay an agency service fee. In fact, they cannot be required to pay anything. Yet their union, under existing Mass. law, still has a duty to represent them in the areas where the union serves as the exclusive collective bargaining representative. Those areas are contract negotiations and grievance processing.

While the case was supposedly decided on First Amendment (“free speech”) grounds, anyone who thinks it a product of refined legal reasoning and scholarship should consider applying to Trump University. The decision is designed to cripple public sector unions, who provide both funds and foot soldiers for causes which ultra-conservative billionaires like the Koch Brothers oppose. We need only look at the 62-38 trouncing of the charter school referendum in the 2016 Mass. election. Only the human and economic resources of teacher and other unions (both public and private sector) succeeded in countering the tens of millions of dollars the charter school proponents pumped into the campaign. These ultra-rich also don’t particularly enjoy paying taxes so that police officers, fire fighters, teachers, and other public workers can lead decent lives with decent benefits and retire on livable pensions. In short, Janus is only superficially about free speech; what it’s really about is breaking unions.

While quitting your union and letting your co-workers’ dues pay for the cost of negotiating your contract and handling your grievances may be an option for some, there are significant downsides to this approach. In many unions, particularly public safety, union members receive significant benefits outside of the contract which are not provided to non-members. Unions represent their members in civil service, retirement, unemployment, and other areas where non-members receive no services. For police officers, in particular, unions provide legal representation at critical incidents and defend their members in civil and criminal cases arising out of their employment. Union members also receive representation in both departmental (“internal affairs”) and external (state and/or federal) investigations. Since these services are provided outside of the collective bargaining agreement, non-members receive none of them. Teachers in Massachusetts who are wrongly terminated can appeal only through an individual arbitration process. The union will fight to get its members their jobs back; non-members can either represent themselves or mortgage their homes to hire their own counsel.

Besides these specific and practical reasons, public workers, at least in Massachusetts, need only look at the benefits they have gained through collective bargaining. During this past year, we have seen teachers in states without union bargaining rights (West Virginia, Oklahoma, Kentucky) marching on their state capitals to achieve even the most modest wage and benefit improvements. While public employees in Mass. have not gotten rich, they have at least been able, for the most part, to be able to lead decent lives, raise and support their families, and retire with some modicum of financial security.

You can anticipate that anti-union groups will conduct a negative campaign to try and convince you to abandon your union and stop paying dues. Groups like the NRTW (National Right to Work) organization, (an oxymoron if ever there was one) will undoubtedly conduct a campaign. They will likely start with the teachers, but all other public employee unions will come next. Members who want to abandon their union must, in Massachusetts, provide at least 60 days’ notice of cancellation. This will provide you and others from your union an opportunity to educate your colleague. The message is very simple: Your union is only as strong as its members; working together we can make our lives better and have some say in our destiny.

Not too long ago, when you bought a house, you got a 30 year mortgage. You paid the same amount every month and, over time, you gained some equity. If you stayed in the house, eventually you paid it off and not only had a place to live but also something to pass on to your children. Then, about 20 years ago, some Wall Street sharpies got a lot of people to refinance or buy new houses. For the first few years, there were very low monthly payments on artificially low interest rates with no payments of principal. The sharpies made a lot of money creating and selling complex financial instruments with these mortgages. If your house went up in value and you sold it, it was a great deal. But in 2008 and 2009, when you couldn’t sell your house, all of a sudden the principal payments and higher interest rates kicked in and the monthly payments were crushing. A lot of people lost their homes.

This is what Janus is all about. On the surface, getting some of the benefits without paying anything looks great. But, over the long haul, you’re just being taken for a sucker. Let’s not get fooled again.

Why Can’t The Boston Teachers Get A New Contract?

Last week, I was talking with a business agent for a large public sector union which represents thousands of employees in the City of Boston. When our conversation turned to city negotiations, I asked why the Boston teachers couldn’t get a new contract, since the mayor had already settled with the firefighters and police officers (represented by the Boston Police Patrolmen’s Association with the expert legal guidance of my colleague Susan Horwitz). He said that it had something to do with the teachers’ union protecting the jobs of 100 teachers who were in some kind of “rubber room.” Since I knew the “rubber room” refers to a place where New York City dumped lots of teachers awaiting disciplinary hearings for accusations of serious misconduct, I could only conclude that the union must be trying to protect problem teachers. Wanting to find out what is really going on, through a mutual friend, I went straight to the source. Below is a detailed explanation from Richard Stutman, President of the Boston Teachers Union. The bottom line is: the City wants to be able to get rid of many, perhaps 100, perfectly good teachers, many of whom have been rated as not just adequate, but exceptional teachers. Instead, they would rather hire those who are younger, cheaper, and less experienced. All unions, union members, and people who care about maintaining a system where qualified professionals can make a career in public service without fear of being cast aside for no reason, need to support the BTU’s fight for justice for all of its members. Below is a detailed explanation from President Stutman:

-Alan Shapiro

Each year in the Boston Public Schools we have school closings, programmatic readjustments (e.g., a school needs one fewer English Language Arts teacher, two more math teachers, and so on), a school (or two or three) converting to “Turnaround” status (a provision under state law which allows (in some cases, mandates) large staff turnover at a school, regardless of individual teacher competence), or other events, all of which ‘excess’ or push out a teacher or a group of teachers and thrust them into the land of the unassigned. This year we had one school closing, two schools forced into Turnaround status, and another school that underwent a status change (Level 5 to Level 5+) – altogether 150 teachers excessed from these four schools alone. At different changes in a school’s status, no less than 50% of the staff have to leave the school; at yearly intervals staff turnovers of up to 100% can occur. What does this mean?

Simply, because of these school status changes, we have perhaps hundreds of people forced to vacate schools each year – not because of individual performance or anything related to individual conduct or discipline – but because the school is undergoing a transformation ordered by the state or federal government.

So these teachers get ‘excessed’ and in a few cases, schools can take some of them back, either after or without an application process. In the vast majority of cases, those excessed become unassigned teachers looking for a permanent placement. This year there are 350 excessed teachers currently without an assignment. Regardless of how they got into this status, they are, as measured on the performance scale , similar to all other teachers in the system – no better, no worse.

A little background on the current group of 350 unassigned teachers. They were noticed in February and have from February to September to apply for a position. Most diligently apply for placement where there is a suitable position in their field.

Some have no place to apply. They may, for example, be in an ‘exotic’ field, teaching a subject that is not widely taught. Or they may teach a not-so-exotic field, but in a grade level where that subject is not needed. While most of the 350 will predictably find a position by September, some will not, and they’ll become “SPC’s” or people who will be assigned to a “Suitable Professional Capacity” on the first day of school.

People assigned to an SPC role get full pay and benefits and remain eligible to seek and accept any posting that opens up in the school system. While unassigned to a ‘real’ position, they work in a school in a variety of capacities: as a second teacher, teacher’s helper, paraprofessional, small group instructor, or in a similar support role. This year there are around 45 SPC’s. Next year, given the inevitable whittling down of the 350 unassigned now, there will be another 50 to 75 SPC’s (but we cannot be sure how many) added to the group of current 45 SPC’s. Let’s assume there will be 100 or so SPC’s next year, as some of the current SPC’s will undoubtedly resign, retire, or naturally find a position.

Here, then, is the issue:

Given the above, there is a steady, though fluctuating, core of 50 to 100 SPC’s, who remain in that status each year, costing the district annually $5 to $10M. This year, 2/3 of these teachers have been rated proficient or exemplary. Some have been SPC’s for a few years, some for a year. To a person, they want to get out of the status, obtain a ‘real’ position, and get on with their careers. But they are not guaranteed placement as principals retain the right to say ‘no’ to any particular applicant.

Some of the SPC’s apply to many schools looking for virtually anything, others are more selective. Unless an SPC finds a school and is accepted there, s/he remains in this status without a time limit.

Why aren’t these folks laid off? Under the BTU contract each SPC is guaranteed this status (full pay and benefits) for years without limit. This guarantee is seniority-based and means that the SPC can continue in the status provided there is a person in the same subject area who is junior to the SPC, even if that junior person has a ‘real’ position. There is no time limit.

Under the state law, the SPC has a right, as well, to continue in the same status – notwithstanding the provisions of the BTU contract — provided a non-permanent or provisional employee is working in that subject area. This adds to their protection.

Bottom line: the SPC has a right to stay in that position indefinitely, even without a real spot to claim.

From our point of view, these SPCs should be working in productive, real positions. Each has been trained and vetted, each has been rigorously evaluated under a new state Performance Evaluation system that the district has agreed to, and each is in his/her predicament through no fault of his/her own. Each has undergone anywhere from 30 to hundreds of hours of yearly Professional Development. None of those in this capacity are there as a result of any disciplinary proceeding. This is no rubber room.

(There are teachers awaiting disciplinary proceedings, and this small group is sent home to await the disciplinary process. None of these is an SPC.)

From the school district’s point of view, a principal should have the right to hire any person s/he chooses and these excessed teachers (SPC’s) are never forced into a school. The normal teaching turnover is approximately 500 teaching positions per year. The existence of SPC’s adds another 50 to 100 positions that have to be filled. This year the department has hired 600 new teachers.

We’d like to see the district put the SPC’s to work at their full capacity as teachers in the fields in which they are fully trained and qualified, and save anywhere from $5-10M per year. The school district, hiding behind the ideology of “not-forcing-a-person-into-a-position,” has the cash to withstand the cost of paying the unnecessary $5-$10M in yearly costs. We’d like to see the money used elsewhere.

Final point, in a circular twist to all of this – if the school department could redistribute the $5 to $10M that is spent on this issue, it would allow schools to add back teaching positions and cut back on the programmatic excessing that helps create the SPC problem in the first place.

In negotiations, we seek to keep the SPC’s employed in productive capacity until a ‘real’ vacancy opens up. The school district wishes to put a time limit on each SPC’s status and have us waive their contractual and statutory rights to employment. If that were to happen, eventually, dozens or even hundreds of fully qualified, experienced teachers would end up unemployed, while the school district hires new, generally inexperienced, and much cheaper teachers (starting teachers make about 35% less than those at the top of the salary schedule) to replace them.

What People Say When They Get Arrested

The Boston Globe has a front page story on April 10 titled “Arresting Words.” Written by columnist Yvonne Abraham, the story weaves the words from Boston police reports into a tapestry of what police officers face daily on the streets and in the health clinics and within the homes of people to whom they are called to respond. Most are poor, many suffer from mental or physical illness, some are violent or threaten violence.

We see and hear a lot about victims of police abuse. This story gives some small bit of insight into the world into which society sends its police officers. Perhaps because it thrives on sensationalism, the press usually fails to convey a true picture of the milieu in which police officers work. Police must at once be legal experts and social workers. Split second decisions are parsed by appellate judges and clinical psychologists years later, but only after they have spent weeks, months, and years poring over enormous amounts of data, much of which the officer on the scene had no knowledge of in the moment.

And how does society value the men and women in police work? It compensates them like other public employees – fire fighters, teachers, sanitation workers – but nowhere near the level of the judges or bureaucrats who sit in judgment over therm.

One would think that having an educated police force would be a good idea. In fact, in 1967, the President’s Commission on Law Enforcement and Criminal Justice (the Johnson Crime Commission) recommended more education for police officers. Massachusetts responded in 1970 by passing the Quinn Bill, now known as the Police Career Incentive Pay Program, codified as Mass. Gen. Laws Chapter 149, Section 108L. A local option law, it provided additional compensation ranging from 10% to 20% to 25% for an Associates’, Bachelor’s, and Masters/JD degree. When many municipalities accepted the program, thousands of police officers seized the incentive to gain college degrees. But the program’s Achilles heel was that, although its cost was supposed to be split between the state and the community, starting in the late 1980’s and continuing to the present day, the Legislature has underfunded the program to the point that it makes virtually no contribution to its one-half share.

In Boston, where one would think educated police officers would be a priority, the Boston Police Patrolmen’s Association and the City had negotiated for this benefit in 1998. But when the Commonwealth underfunded the program in 2009, the City simply shortchanged its educated police officers, reducing their salaries by thousands of dollars. The Supreme Judicial Court, which has no problem opining on the lofty standards to which police are held (“it is extremely important for the police to gain and preserve public trust, maintain public confidence, and avoid an abuse of power by law enforcement officials.” 1 ) voted unanimously to uphold these pay cuts for educated police officers.

The current solution to address police abuse is to put body cameras on police officers. If and when that happens, and if people actually watch 99+% of what the police see, they will perhaps gain some insight into the world into which this Globe article peers. As one veteran officer remarked to me, people would be horrified to actually have to look at some of what police see on a daily basis. He mentioned entering a house where multiple people and domestic animals had relieved themselves everywhere, creating a visual and olfactory experience that could only induce nausea.

The social and economic conditions depicted in this column were not created by the police. But it is the police who must spend much of their working lives dealing with them. As Jesse Jackson has written,

The president has created a Task Force on 21st Century Policy, with instructions to report in 90 days. He’s committed millions to put cameras on police. But he might be better advised to put cameras on bankers.

By putting this article on its front page, the Globe perhaps opened a few readers’ eyes. But there is much more that must be done

1 City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005)

U.S. Department Of Labor About To Issue New Regulations Expanding Overtime Coverage To Over 5 Million Workers

Sometimes, I start thinking there isn’t much difference between Democrats and Republicans, since a lot of them remind me of the kids in high school who were running for student council president. But then, when I look at some federal regulations, I am reminded that who is in the White House can make a real difference for millions of people. The recent overtime rules issued by the U.S. Department of Labor show that there can be a clear difference between the political parties.

In the private sector, workers must be paid time and a half for all hours worked beyond 40 in a week. Passed in the 1930’s, this law was designed to encourage employers to hire more workers, since millions were thrown into unemployment by the Great Depression[1]. The statute exempted from the overtime laws “executive, administrative and professional” employees, but left government regulators to enact rules distinguishing employees exempt from overtime from non-exempt ones.

In 2004, the Bush Administration passed rules which “updated” these regulations in a way that left millions of workers without overtime protection. A salaried employee who spent 99% of her time performing manual labor could still be exempt from overtime as long as she made over $455/week. See In Re: Family Dollar FLSA Litigation.

Under the new regulations in the process of becoming law, not only does an “executive” really have to work as one, but s/he must make at least $50,440/year. Regardless of what title or job duties the employer gives the employee, unless s/he makes at least $50,440/year, s/he must receive overtime pay after working 40 hours in a week.

The new regulations, however, are not a panacea, since many companies have reacted by either reducing wages or reducing the hours of employees about to become eligible for overtime for the first time. Since virtually all of these employees are not covered by union contracts, they are powerless to do anything about it. Nevertheless, some formerly exempt employees will receive a raise, and, in some instances, more employees will be hired to fill in for the unlimited hours employers were formerly able to require of their supposed “managers” without any increased cost. As one economist said, “Trust me on this: you’d be very hard pressed to come up with [another] rule change or executive order to lift the pay of this many middle-wage workers.”

[1] In 1933, the U.S. unemployment rate was 25%.