All posts by John Becker

Labor In The News, Sandulli Grace In The News

BOSTON POLICE PATROLMEN’S ASSOCIATION WINS BIG IN APPEALS COURT – SIX TERMINATED POLICE OFFICERS REINSTATED

John Becker
John Becker October 7, 2016

COURT AFFIRMS CIVIL SERVICE COMMISSION FINDING THAT PSYCHEMEDICS’ HAIR DRUG TESTING USES BAD SCIENCE

The Massachusetts Appeals Court issued a decision on October 7, 2016 regarding the civil service appeals of 10 Boston police officers who were terminated solely because their hair tested positive for illegal drugs. All 10 officers in the appeal denied that they had used illegal drugs. In Thompson v. Civil Service Commission, No. 15-P-330 (Mass. App. Ct.), the Appeals Court affirmed the decision of the Massachusetts Civil Service Commission ordering six of the officers to be reinstated. After 18 days of hearing, the Commission ruled on February 28, 2013 that the hair testing protocol used by Psychemedics, Inc. was based on bad science and the Boston Police Department could not rely on a positive drug test alone to terminate a police officer. All 10 officers are members of the Boston Police Patrolmen’s Association (BPPA), which provided legal and financial support for these appeals. The BPPA represents the 1500 patrol officers of the Boston Police Department in collective bargaining over matters of wages, hours and working conditions.

Based on its initial finding that the hair test result alone was insufficient to terminate an officer for violating the Department’s rule against using illegal drugs, the Commission went on to consider other factors, such as the credibility of the officers’ denials that they used drugs, to determine whether the Department had just cause to terminate. Using this additional information, the Commission found that the Department had just cause to terminate four of the 10 officers. The Commission ordered the remaining six officers reinstated, but without full back pay. Representing the officers at the Commission at the request of the BPPA were attorneys Alan Shapiro and Jennifer Rubin, both partners at Sandulli Grace, P.C.

The City of Boston and Boston Police Department appealed the Commission’s decision on the six reinstatements to the Superior Court. The four terminated officers also appealed, and the six reinstated officers appealed the portion of the decision denying them full back pay. The Superior Court issued a decision on October 6, 2014 affirming the Commission’s decision in large part, but agreeing with the six reinstated officers that they were entitled to full back pay.

In the next round, the City and Department appealed to the Appeals Court on the issue of the six reinstatements, and the four terminated officers also appealed. The Appeals Court’s October 7, 2016 decision affirmed the Commission’s decision, but adopted the Superior Court’s ruling that the six reinstated officers were entitled to full back pay. Sandulli Grace attorneys Alan Shapiro and John M. Becker, at the request of the BPPA, represented the 10 officers in the appellate proceedings.

Either or both parties may file a petition for further appellate review to the Supreme Judicial Court within 14 days. Unlike the Appeals Court, which must review all the appeals filed with it, the SJC may select which cases to review. In practice, the SJC rejects approximately 9 out of every 10 applications for further appellate review it receives in civil cases.

The implications of this case are significant for any Union or Employer where hair testing, particularly hair testing by Psychemedics, is conducted. The Civil Service Commission was unequivocal in its conclusion that there are too many unanswered questions and questionable scientific assumptions in Psychemedics’ current hair testing protocol to allow an employer to fire an employee covered by just cause (either in a collective bargaining agreement or statute) on the basis of a hair test result alone.

Labor In The News, Sandulli Grace In The News

Masscop Members In Rockport Win Back National Guard Pay Benefit – Arbitrator Rejects Town’s Argument That Payments Are Unlawful.

John Becker
John Becker August 8, 2016

Arbitrator Richard Boulanger handed a significant victory to Local 154 (Rockport) of the Massachusetts Coalition of Police, AFL-CIO (“Union”) on August 3, 2016 when he sustained a grievance over pay cuts by the Town of Rockport (“Town”) for officers attending National Guard training. In doing so, Arbitrator Boulanger rejected the Town’s argument that it could not legally pay officers their full pay during National Guard training.

Two Rockport police officers who served in the National Guard and had been receiving full pay while attending mandatory military training were informed in January 2015 that the Town would now be deducting their National Guard military allowances from their pay, because, the Town claimed, to do otherwise would be illegal. The Union filed a grievance over the pay cut, which proceeded to a hearing before Arbitrator Boulanger. The Massachusetts Coalition of Police provided legal support by assigning Attorney John M. Becker, of Sandulli Grace, P.C., to represent Local 154 and the two grievants.

In his decision [which may be found HERE], Arbitrator Boulanger recognized that the Town had established a past practice of paying employees who were members of the National Guard their full pay while on leave attending mandatory training, without deducting the military allowance the employees received. The practice was encompassed by the strong maintenance of benefits provision in the collective bargaining agreement (“CBA”) between the Town and the Union, which protects any job benefit that (1) existed in the past and (2) has not been contractually modified, even if it is not mentioned in the CBA.

Boulanger rejected the Town’s argument that paying officers without deducting military allowances violated the law. Boulanger reviewed four statutes relating to military pay. First, the federal military leave law, USERRA, does not contain any provisions regarding pay during National Guard training, and so was irrelevant. Of three state statutes with some relevancy, none actually applied to this case, Arbitrator Boulanger concluded. G.L. c. 149, § 52a, which had previously provided for 17 days of military training leave to members of the reserves, which could be “paid or unpaid at the Town’s discretion”, was repealed in 2014 and was no longer good law. Chapter 137 of the Acts of 2003, a local option law that the Town had adopted, allows for paying regular base salary without loss of leave or seniority, but minus any military pay or allowance, for officers in “active service.” But as Arbitrator Boulanger pointed out, the statute is inapplicable because the officers in this case were not in “active service” and National Guard training is specifically excluded from the scope of the law. The Town had not adopted G.L. c. 33, § 59, a local option law, but Arbitrator Boulanger found that statute to be the most relevant. If adopted, the law (as amended in 2014) requires municipalities to give employees in the armed forces full pay without deducting for military stipends or pay during training, for up to 34 days in a state fiscal year or 17 days in a federal fiscal year, without loss of seniority or accrued leave. Boulanger pointed out that, although the Town had not adopted G.L. c. 33, § 59, it had adopted Chapter 137 of the Acts of 2003, which provides that it “shall not limit or reduce a person’s entitlement to benefits under [G.L. c. 33, § 59].”

Ultimately, Arbitrator Boulanger concluded that, while no statute specifically authorized the Town to pay full pay to employees during National Guard training, no statute prohibited the payments either, so the past practice of the Town – which was fully consistent with the local option law, G.L. c. 33, § 59 – was lawful and enforceable. For these reasons, the Arbitrator sustained the grievance and ordered the Town of Rockport to pay the police officers full pay during military training without deducting military allowances going forward and pay the officer back pay to make them whole from the time their pay was cut in January 2015.

Great Moments In Labor History, In Our Opinion...

The Best Labor Union Movies Of All Time

John Becker
John Becker October 23, 2015

I’m a big fan of “Best of” lists, so it was only a matter of time until I compiled a list of the best movies related to unions and the workplace. I scoured the Internet for lists of films related to unions or workers and made sure to include my personal favorites. Here, in chronological order, are the results:

 How Green Was My Valley (US, 1941)

John Ford’s epic story of a family of Welsh coal miners (with Walter Pidgeon and Maureen O’Hara playing the parents) contains at its heart a debate about unionizing. While Ford keeps the focus on the family dynamics and the issue of worker safety, he weaves throughout the film the various pro- and anti-union arguments, leaving the final word for the local minister: “First, have your union. You need it. Alone you are weak. Together you are strong.”

Salt of the Earth (US, 1954)

Directed by Herbert Biberman, Salt of the Earth is famous in film history because nearly everyone involved in making the movie was blacklisted by Hollywood as part of the Red Scare of the 1950s, also known as the McCarthy Era for Wisconsin Senator Joseph McCarthy. The film tells the story of a 1951 strike in New Mexico against a zinc mining company. The story is unusual for the time in that most of the workers are Mexican immigrants; in addition, a major aspect of the story is the struggle between the male workers and their wives. The striking male workers want their wives to stay at home, cook and take care of the children. The women want to help the men win the strike. Guess who wins that argument? When the mine owner obtains an injunction against the striking workers, the women step up and maintain the picket lines.

On the Waterfront (US, 1954)

For many people of a certain age, Elia Kazan’s movie of conflict on the docks between a brutal union leader (Johnny Friendly, played by Lee J. Cobb) and a disillusioned dockworker (Marlon Brando) was their first introduction to the idea of a union and it was not a positive image. Kazan, who had just testified before the Un-American Activities Committee, where he named names of possible Communists, was clearly trying to make a point about the heroism of standing up for what you believe against overwhelming odds. But union workers know that the power of a Johnny Friendly pales in comparison to the power of the people that run the companies that ultimately pay the workers. Perhaps it would have helped to know that Johnny Friendly was based on an actual ILA leader who severely disciplined by the American Federation of Labor for his violent tactics.

The Pajama Game (US, 1957)

At first glance, The Pajama Game is just another Hollywood musical based, in this case, on the play of the same name and featuring the song “Steam Heat.” But upon closer examination, The Pajama Game turns out to be a story about a labor-management struggle. Doris Day plays the union steward in a pajama-making factory who has been pushing for a raise. John Raitt is a superintendent. These representatives of labor and management begin a love affair, but their work roles drive them apart, and after Day damages some machinery during a slowdown, Superintendent Raitt fires her. But then (through the magic of movies), Raitt discovers nefarious doings in management and manages to bring Doris back (to work and to him), get everyone the raise and they all live happily after. OK, it’s not Schindler’s List, but there is a message beneath the singing and dancing. Co-directed by George Abbott (also a co-writer) and Stanley Donen.

I’m All Right, Jack (UK, 1959)

John Boulting directed this satirical British film about the plot of a sinister company owner to drive the price of his product up by inciting the workers to strike, and then having the business transferred to a rival company, which he also secretly owns. The whole thing is played for broad laughs, most of them generated by Peter Sellers as the union boss with Bolshevik sympathies and a Hitler mustache. A cynical look at union leaders and management both, in the end it is clear who has the real power.

The Molly Maguires (US, 1970)

Martin Ritt directed this tale of coal miners in Northeastern Pennsylvania in the 1870s, which is based on a true story. The Molly Maguires, led by Jack Kehoe (Sean Connery), is a sort of proto-union that is at war with the mine owners in pursuit of better pay and working conditions. The differences between the Molly Maguires and a true union are significant: Connery’s group is a secret organization, and they are comfortable with using violence to achieve their ends. A Pinkerton Detective (Richard Harris) infiltrates the group and attempts to uncover its secrets, with tragic results. Ritt would revisit the union theme in 1979 with Norma Rae.

Harlan County, USA (US, 1976)

Director Barbara Kopple won an Oscar for Best Documentary for her on-the-spot reporting of a 1972 Kentucky miners’ strike in Harlan County, USA. Confrontations between striking workers and hired strikebreakers quickly became violent, and even Kopple and her cameraman were beaten. The film reminds audiences that, even in the 1970s, management tactics such as these were commonplace and the dream of a workplace where management and labor lived in perfect harmony was still far off.

F.I.S.T. (US, 1978) / Hoffa (US, 1992)

Hoffa is a well-made but ambivalent biopic of the Teamsters leader, with a pitch-perfect performance by Jack Nicholson, directed by co-star Danny DeVito. We get the good, the bad and the ugly of the controversial union leader, both his tireless dedication to the workers he represented as well as some of the poor choices he made while in power. Made 14 years earlier, F.I.S.T., directed by Norman Jewison and starring Sylvester Stallone, takes the basic outlines of Hoffa’s biography and fictionalizes them. The result is not great moviemaking and Stallone proves that he should keep to the boxing ring. Neither movie has an answer to the question, Where is Jimmy Hoffa’s body?

Blue Collar (US, 1978)

Paul Schrader, the man who wrote Taxi Driver, wrote and directed this crime drama, which places itself squarely in the “unions are corrupt” camp. Richard Pryor, Yaphet Kotto and Harvey Keitel are Detroit auto workers who are so angry at mistreatment by management and their union that they decide to rob the union. In the safe, they find evidence of corruption and links to organized crime. As in On the Waterfront, the theme is little guys vs. big organizations, but the assumption that all unions are corrupt was by that point a stereotype, not an accurate assessment based on the facts. At the same time, the movie fails to explore the vast power differential between the two purported “enemies” of the little guys – as always, management holds most of the cards.

Norma Rae (US, 1979)

If On the Waterfront established the prototype of unions for one generation, Norma Rae reversed the impression for the next. Directed by Martin Ritt and starring Oscar-winner Sally Field and Ron Liebman, the film focuses on a union organizing campaign in a southern textile mill. Along the way, we get a “two different worlds” love story between Field and Liebman, a look at family life and coping on the low wages of textile work, and a view of what working in a textile mill actually looks and sounds like. The movie ends optimistically, but in real life (as is often the case, especially in right to work states), the pro-union vote was only the beginning of the struggle.

Silkwood (US, 1983)

Mike Nichols directed Meryl Streep in this taut thriller about an employee of a plutonium company who stumbles on to some serious safety defects in the radioactive products. Streep plays a union steward at Kerr-McGee and it is clearly her association with the union that underlies much of her activity in the second half of the movie, although the script keeps union references to a minimum. The film is very effective at showing how union stewards communicate with other workers at work and at home. Ultimately, Silkwood decides to blow the whistle and give the information to a reporter, but is killed in a mysterious car accident on the way to the meeting. The movie suggests that the “accident” may have been murder, but the case has never been solved.

Matewan (US, 1987)

Chris Cooper, James Earl Jones and Mary McConnell star in this fictionalized recreation of a 1920 struggle between West Virginia coal miners trying to improve their lot by organizing a union and the owners (and their hired thugs) who want to continue to exploit. John Sayles, who wrote and directed Matewan, explores not just the willingness of the owners to use all means necessary to regain control, but also tensions between black and white workers, between men and women, and between the outsider (Cooper, playing a UMW organizer) and the natives. Somehow, Sayles completed the project, with its massive cast and spectacular battle scenes, for under $4 million.

Roger & Me (US, 1989)

Michael Moore, documentarian and propagandist, had his first hit with this wry tale of his attempts to meet with General Motors CEO Roger Smith (presumably to tell him off). Along the way, Moore guides us through a few decades of history (mostly accurately), focusing on the men and women employed by GM over the years, especially those in Moore’s hometown of Flint, Michigan. While Moore has his critics, and his throw-it-all-up-there-and-see-what-sticks approach can be annoying, his central point is sound: that the big companies who decide to lay off workers and close plants or move plants overseas are not controlled by the economy – they are the economy. The best evidence of this is the fact that no matter how badly the workers and former workers are doing (to the point of selling rabbits “for pets or meat”), people like Roger Smith do just fine.

Newsies! (US, 1992)

Another labor musical – this time from Disney. Based on the 1899 New York City newsboys strike, this dancing and singing extravaganza stars a young Christian Bale, with support from Bill Pullman, Ann-Margret and Robert Duvall. More than just Annie with newspapers, the film shows the desperate poverty that newsboys lived in, although it doesn’t explain how they can sing and dance so well on such a meagre diet.

Germinal (France, 1993)

Claude Berri directed this film version of the 19th Century novel by Émile Zola that relates French coal miners’ attempts to organize a union in the 1860s. Gerard Depardieu stars as the leader of a strike that begins well but collapses into a riot. Depardieu is blamed for the failure, leading his arch-enemy, an anarchist miner, to attempt to kill him in the mine. I won’t spoil the ending.

Office Space (US, 1999)

Mike Judge’s contemporary comedy doesn’t really have anything to do with unions, but it does say a lot about the absurdity of the modern workplace, particularly the business office setting. Though the concept and characters are better than the actual plot, there are enough knowing laughs (TPS reports, flair, etc.) to sustain the viewer though to the end. For some reason, Jennifer Anniston is in it. And would someone please give me back my stapler? You know the one, red, Trimline…

Bread and Roses (UK, 2000)

British filmmaker and chronicler of the working class Ken Loach went to California to tell the fictionalized story of two Central American immigrants who become involved in a janitors strike in Los Angeles. The film is based on SEIU’s April 1990 Justice for Janitors strike and also deals with issues of race, class and immigration. Adrian Brody plays a union lawyer.

Made in Dagenham (UK, 2010)

Underrated British actress Sally Hawkins turns in a subtle and convincing performance as a unionized sewing machinist, one of many women who sewed upholstery for cars at a Ford plant in England. Eventually, Hawkins and her union lead the women on a strike based on unequal pay between male and female workers. The movie is based on actual events in the Dagenham Ford plant in 1968. Nigel Cole directed. Co-stars include Bob Hoskins, Miranda Richardson and Rosamund Pike.

In Our Opinion...

Writing Tips for Unions and Employees

John Becker
John Becker September 28, 2015

The lawyers at Sandulli Grace, P.C. often have occasion to work with our clients on various writing projects. Employees are often asked to write reports, statements and memoranda or fill out forms regarding incidents that may affect their employment conditions or lead to disciplinary action. In reviewing these documents, we have noticed that our clients, like most people, will occasionally make mistakes of grammar, spelling and usage that reduce the effectiveness of their writing. While we cannot guarantee that a well-written report will ensure that you will achieve your desired goal, we are certain that a document riddled with spelling or syntax errors will distract the reader from what you are trying to say and focus his or her attention on the way you are saying it.

In the hopes of improving our clients’ writing skills (and reminding ourselves – because lawyers make these mistakes too), we have developed a brief list of common writing errors for you to refer to when writing something that your employer may read.

To, Two and Too
Let’s start with an easy one, but one I see all the time. “Too” means also or excessively. “Two” means the number after one and before three. Any other meaning, spell it “to.” “He was driving too fast.” “Can I go too?” “This is too much food for one person.” “I saw two men in a two-door Chevy Malibu at two o’clock.” “Take me out to the ballgame.” “Give that to the Principal.” “Is this the way to the fair?” “I don’t know what to say.” “I have too many reports to write.” “To tell the truth, even two is too many.”

It’s and Its
If I had to pick the most common confusion between words, among all English-language writers, it has to be “it’s” and “its.” Yet the solution, once you memorize it, couldn’t be simpler. “It’s” is a contraction for “it is”, so if you can substitute “it is” without changing the meaning of the sentence, then ‘it’s’ is correct; if not, then ‘its’ is correct. Also remember that ‘its’ is a possessive adjective, which means it always modifies a noun. Examples: “The monster was so huge that it’s body blotted out the sun.” WRONG! Substituting “it is” gives us, “The monster was so huge that it is body blotted out the sun”, which makes no sense. “The monster was so huge that its body blotted out the sun” is correct. Other correct examples: “The monster is so huge that it’s impossible for me to see the sun”, “It’s too late baby, now it’s too late”, “The School Committee hasn’t released its budget yet” and “It’s obvious that your situation has its problems.”

Their, There and They’re
1. “Their” is a possessive adjective meaning ‘belonging to them” that always modifies a noun and refers to more than one person. “Their stereo is turned up too loud.” “Are you going to their party, too? “Has their daughter come home yet?”
2a. “There” is sometimes an adverb referring to a place: “I was there in February.” “Did you see the gun there under the car?” “The resource room is over there next to the auditorium.”

2b. “There” is sometimes used with the verb “to be” to indicate that something exists. “There is a mosquito on your nose.” “I heard there was a fight at the bar last night.” Here are both uses: “There is no way I’m going in there.”
2c. “There” is also used to say things like “Hi there!”, “There, there, don’t worry”, and “There – I told you I wasn’t lying!”
3. “They’re” is a contraction that is short for “they are.” “They’re coming – everybody hide!” “I’m trying to figure out what they’re doing in there.”

Affect and Effect
This one confuses even the best writers. The best way to understand them is to treat each word’s noun and verb forms separately.

  1. Affect (verb): To change or have an impact on something. “That song always affects my mood.” “Spicy foods affect my digestion – and not in a good way.” “Trauma in his childhood has affected his ability to communicate.” “The bad economy really affected the value of my house.” (Secondary meaning: to pretend or put on airs: “Madonna sounds so affected when she uses a British accent.”)
    2. Affect (noun): This rarely-used word comes from psychology and refers to one’s emotional or behavioral state. “The child presented a flat affect – no expression of emotion at all.”
  2. Effect (verb): To bring about, often with ‘change’. “In his speech, the Governor claimed the new program will effect real change in our state.”
    4. Effect (noun): A result or consequence. “The discipline had the effect of ruining morale in the workplace.” “The effects of the storm were visible everywhere we went.” “In effect, he told us to go jump in a lake.” “The law of cause and effect doesn’t always apply in this department.”
    NOTE: A sentence using the verb “affect” can usually be converted to a sentence using the phrase “have an effect on” and vice versa. Ex. “That thing really affected me” = “That thing really had an effect on me.”

Conscious and Conscience
1. ‘Conscious’ means you’re not in a coma.

  1. ‘Conscience’ is your sense of right and wrong.

    Accept, Except and Expect
    1. Accept (verb): “I accept your apology.”

  2. Except (preposition): “I understand everything except why you didn’t tell me sooner.”
  3. Expect (verb): “I don’t expect you to understand.”

    Alot, A lot and Allot
    1. ‘Alot’ is not a word. Ever. Always write ‘a lot’ instead.
    2. ‘Allot’ is a word meaning to give out or distribute. “We allotted five minutes for each candidate to speak.”

    Cite, Sight and Site
    1. ‘Cite’ means to quote or provide a reference. “The Union president cited Robert’s Rules of Order.” “Did you cite your sources on this paper?” Special meaning: To give a traffic citation: “You can see that I’ve cited you for having a broken taillight.”

  4. ‘Sight’ means the ability to see; something seen. “You are a sight for sore eyes.” “I went to Italy and saw all the sights.” “The child experienced a temporary loss of sight.”
  5. ‘Site’ refers to a specific location. “I visited the site of the shooting.” “They need a detail at the construction site.”

    Lead and Led
    I often see writers using ‘lead’ when they mean ‘led.’
    1. ‘Lead’ (noun): “Get the lead out.” “This heavy object must be made of lead.”

  6. ‘Lead’ (verb, present tense) “She took the lead early in the race.” “If you lead, I will follow.”
  7. ‘Led’ (verb, past tense) “I think you led us down the garden path.” “What led you to believe I was following you?”

Lose and Loose

  1. ‘Lose’: To misplace; to fail to win: “With you on our team, how can we lose?” “I tend to lose things if they’re not nailed down.”
  2. ’Loose’: Not tight (adj.); let go (v): “Loose lips sink ships.” “I let the dogs loose and I haven’t seen them since.” “I have a loose tooth.”

    Breath and Breathe
    1. ‘Breath’ (noun): “He took his last breath.” “Don’t waste your breath.” “How long can you hold your breath?”
    2. ‘Breathe’ (verb): “All I need is the air that I breathe.” “Breathe deep the gathering gloom.”

Council and Counsel
1. ‘Council’: “I am meeting with the City Council next week.”

  1. ‘Counsel’: “Attorney Jones is the new Town counsel; she will be counseling the town on legal matters.”

    Complement and Compliment
    1. ‘Complement’: something that fits with something else: “This rug complements the décor nicely – it really pulls the room together.” “The yin and yang symbols truly complement one another.”

  2. ‘Compliment’: a flattering statement: “Thanks for the compliment!” “Compliments of the chef.”

Active and Passive Voice
Every writing instructor will tell you that you should write in the active voice unless there is a good reason to use the passive voice. What’s the difference? In the active voice, the verb normally identifies an action that the subject is performing; in the passive voice, the verb indicates an action that is being performed by someone or something on the subject.
Active (better): The quick brown fox jumped over the lazy dog. (Subject: Fox; Verb: Jumped Over)

Passive: The lazy dog was jumped over by the quick brown fox. (Subject: Dog: Verb: Was Jumped Over)

Passive: John Q. Public was arrested by Officer Jones and Officer Smith.

Active (better): Officers Smith and Jones arrested John Q. Public.

Passive: Over 10,000 students were educated in the District’s schools over the past decade.

Active (better): The District’s schools educated over 10,000 students over the past decade.

Sometimes you need to reword the sentence, adding and subtracting, in order to make a passive into an active sentence:

Passive: Large numbers of aliens were seen in the vicinity of Grover’s Mills, New Jersey.

Active (better): Residents reported seeing large numbers of aliens in the vicinity of Grover’s Mills, New Jersey (adding the words “Residents reported”).

Sometimes it is appropriate to use the passive voice, such as when your emphasis is on the recipient or product of an action, you want to avoid vague attributions or rewriting it into active voice muddies your meaning. “My car was stolen” (passive) sounds better than “Someone stole my car” (active). “The building was renovated in 1997” (passive) sounds better than “The J&M Construction Company renovated the building in 1997” (active) (unless you are writing for the Construction Company’s website). “Following the ceremony, refreshments will be served in the church basement” (passive). Unfortunately, many bureaucracies and large organizations of all kinds have propagated a mind-numbing writing style for annual reports and other documents that relies heavily on the passive voice. Many of us are so used to reading and hearing such turgid prose that it now sounds normal to us. Please try to resist this impulse in your writing. The active voice is usually the best choice for clear, well-organized prose, no matter what the document.

 

 

In Our Opinion...

Article About Lying Still Rings True After a Decade

John Becker
John Becker September 24, 2015

Ten years ago, I wrote an article for the Massachusetts Coalition of Police’s Roll Call publication about a recent decision by the Supreme Judicial Court with important implications about police officers accused of untruthfulness. In the intervening decade, the predictions I made in 2005 have unfortunately come to pass. More and more Police Chiefs and municipalities are relying on this case and others that followed to discharge police officers found to have been untruthful. So it was extremely good timing when, at MassCOP’s annual convention in Hyannis last week, former MassCOP business agent Tom Smith mentioned the article, called “The Truth About Lying” and told the conventioneers that he made copies of it to give to police officers under investigation for misconduct. I recently reread the article and found that while the case it mentions is 10 years old, the advice is still timely. As a service to those who didn’t get the Roll Call in 2005, we have reprinted the article below.

 THE TRUTH ABOUT LYING

Recent SJC Decision Puts Spotlight on Police Officer Untruthfulness

By John M. Becker

Sandulli Grace, P.C.

“We can defend the truth, but we can’t defend a lie.” – Tom Smith, MCOP Business Agent (ret.)

From the point of view of your union representatives and attorneys, the hardest thing to defend is a lie. When an officer engages in misconduct and lies when confronted or questioned about it, either orally or in writing, or leaves damaging facts out of a report in a situation when they normally should be recorded, the officer has made the job of the union rep and lawyer many times more difficult and has jeopardized his job security that much more. It is always easier to defend the misconduct than to defend the officer’s decision to lie about it. Many arbitrators agree with the oft-repeated refrain of management that a police officer’s credibility is essential to his ability to do his job, which involves testifying in court. So, while arbitrators may apply normal principles of progressive discipline and disparate treatment to most misconduct cases, they are more likely to treat a police untruthfulness case with a higher standard.

If anyone doubted Tom Smith’s words of wisdom quoted above, they should be persuaded by a recent decision of the Massachusetts Supreme Judicial Court that says an arbitrator could not put a police officer who lied back on the job. (The case is City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005).) In the case, the Boston Police Department fired an officer for alleged misconduct during an encounter with two citizens who were in a double-parked car. The union grieved the discipline and took it to arbitration. The arbitrator decided that the officer lied about what happened when he wrote his police report, when he filed for criminal charges against the citizens, when he spoke to internal affairs investigators, when he testified at a Departmental hearing and when he testified at the arbitration. But the arbitrator ordered the officer reinstated with a one-year suspension, primarily because there was evidence of disparate treatment: other officers had committed similar or worse misconduct and had received only suspensions. The City appealed the decision to court – the Superior Court and Appeals Court upheld the arbitrator, but the Supreme Judicial Court overruled the lower courts and overturned the arbitrator’s award. The SJC found that it violated public policy to force the City to reinstate this officer, after the arbitrator found that he misused his official position to file false police reports and take out false criminal charges against innocent civilians and then told his false version of the story again and again to investigators, hearing officers and the arbitrator herself. The court noted that lying on a police report, filing criminal charges and lying under oath are all felonies and there is a law saying convicted felons cannot be police officers. So, even though the officer was never charged with any felony, the court said that reinstating him would violate a public policy against allowing someone who commits these kinds of acts from working as a police officer. The disparate treatment evidence was irrelevant in this kind of a case, the court said. Unless you have evidence that the Department discriminated against the officer because of his race or sex or some other protected category, you could bring in evidence of two dozen other cases of more lenient discipline, or non-enforcement of the rules against other officers and it would not make a difference. Cases like these, the court said, are evaluated on their own and without regard to what happened to other officers in the past.

The case was shocking to many because courts so rarely overturn arbitrator’s awards. Most observers agree that what so angered the court was the fact that the case involved an untruthful police officer. It would be wrong to generalize too much from the case – it does not mean that every termination for untruthfulness will be upheld on appeal, nor does it mean that every allegation of acts that could be the basis for a felony charge will lead to a discharge. But the case does mean that when a police officer is disciplined for misconduct that involves untruthfulness, arbitrators and courts are going to be much more likely to uphold the discipline. So if it was hard to defend a lie before, now it will be even harder.

Psychologists tell us that everybody lies. But most of the lying we do falls into the category of ‘white lies.’ Charles V. Ford, Ph. D., an expert on lying, describes five categories of lies:

  • White lies are used to make social interactions more comfortable. They include self-protective lies (“Sorry, I can’t go to the party, I’m feeling sick”) and altruistic lies (“Nice haircut”; “You’ll be fine.”)
  • Humorous lies are harmless exaggerations used to embellish a story or joke. In these cases, what matters isn’t the truth, but whether the story is funny or not.
  • Defensive lies are the most dangerous lies and are almost never harmless. “I didn’t do it.” “I wasn’t there.” “I didn’t see anything.”
  • Aggressive lies are the stuff of rumormongers and bad guys in the movies – you’re not just defending yourself, you’re attacking someone else. “I saw him do it.” “Did you know that he is a [fill in the blank].”
  • Pathological lies are those told for no rational purpose, but just because the person can’t seem to stop himself. “They’re going to build a movie theater in that lot – sometime next summer.”

There is a sixth category – lies of omission.            Although the experts don’t like to call these lies technically, they are just as dangerous for your job. When you have an obligation to speak up and you remain silent, that is a type of untruthfulness. These can be divided into at least two categories – silence on your own behalf (you did it but you aren’t admitting it) and on behalf of someone else (you know who did it but you won’t say). Both types of silent lies can subject you to disciplinary action.

Note that lies that seem harmless in some contexts can turn serious when told in an employment context. “I can’t go to the party because I’m sick” may be a white lie, but “I can’t come to work because I’m sick” can subject the officer to disciplinary action. Exaggerations when you’re describing the fish that got away are fine, but work-related exaggerations or downplaying can lead to discipline (“he was yelling at the top of his lungs” “she hit me several times” “the car was going about 90 miles an hour” “I barely touched it” “I did not raise my voice”).

The time to stop the lying is at the beginning, because the more you lie about the misconduct, the harder it is to tell the truth about it. The psychologists tell us that liars are often trying to convince themselves that they did not commit the misconduct – it is much easier to lie convincingly to others if you’ve already convinced yourself that the lie is true. According to Doctor Ford, “the lie facilitates self-deception; people lie to others in order to lie to themselves.” If you find yourself telling people, “I know it’s hard to believe, but …” take a step back and ask if maybe it’s hard to believe because it’s not true. Don’t become the victim of your own deception.

Knowing that many of us have a tendency to lie in our own defense when we do something wrong is not an excuse. Instead, it should put us on notice that, when we engage in misconduct, the temptation to lie will be strong. We should be prepared to fight it. Remember: almost no one who tells a lie believes that they will be caught, yet think of how many lies are exposed on a regular basis. Knowing the wrongdoers have a tendency to lie in their own defense also means that those investigating the misconduct will be looking for signs of lying and self-deception, just as you do when investigating crimes. So, if you screw up, ‘fess up. You may take a hit, but your union and your union attorneys will do our best to see that you get a fair shake. If you screw up and lie about it too, you’re not avoiding the pain, you’re only postponing it, while making it much harder for us to defend you.

 

 

 

 

Great Moments In Labor History

The Month of March in Labor History

John Becker
John Becker April 1, 2015

March 4, 1801: In his inaugural address, President Thomas Jefferson declares: “Take not from the mouth of labor the bread it has earned.”

March 31, 1840: President Martin Van Buren issues an Executive Order providing for a 10-hour work day for all employees on federal public works projects.

March 7, 1860: Several thousand shoemakers in Lynn, Massachusetts begin a strike that soon spreads to 20,000 shoe workers all over New England. The strikers, who include men and women, eventually win Continue reading →

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

MTA Scores Major Victory For Marshfield Teacher

John Becker
John Becker February 3, 2014

The Massachusetts Appeals Court on January 30, 2014 affirmed an arbitrator’s award reinstating a public school teacher in Marshfield, Massachusetts.  (Read The Opinion)  The teacher was a member of the Marshfield Education Association (Union), an affiliate of the Massachusetts Teachers Association, NEA (MTA), which provided legal support.  The MTA assigned Patrick N. Bryant, formerly of Sandulli Grace, P.C., to represent the Union in the arbitration proceeding and appointed Sandulli Grace attorney John M. Becker to defend the Union when the School District appealed the arbitration award to the Superior Court and the Appeals Court.

The case had a long and tortuous history, but the key facts are as follows:  Marshfield special education teacher Gerard O’Sullivan had a teaching license when he began teaching in 2000, but like all teacher’s licenses, it expired after five years.  His attempt to obtain a new license met with delays, bureaucratic snafus, mixed messages from his employer and the state agency in charge (known by the acronym DESE), and deliberate misinformation (e.g., O’Sullivan’s School District told him that his six years of experience as a SPED teacher could not count towards his licensure, when the regulations clearly state otherwise).  During this period, however, O’Sullivan did work for at least three years with a license, which gave him professional teacher status (PTS) under the collective bargaining agreement (CBA) between his Union and the School Committee.  PTS provides certain benefits to teachers, including automatic renewal for each school year and a requirement that PTS teachers may only be discharged for cause after a hearing under the CBA and Mass. General Laws, Chapter 71, Section 42.

Despite his best efforts and the support of Union President Sarah T. Marples and MTA Consultant Joy Beckwith, O’Sullivan arrived at the end of the 2007-2008 school year with no license and no waiver from DESE.  Seeing few options, he invoked the CBA provision granting any teacher with at least six years of seniority an unpaid leave of up to one year, which would give him time to obtain his license.  But the School District denied the request, saying that absence of a license or a waiver made O’Sullivan automatically a non-employee by action of the law.  The School District said that it did not need to have a hearing, prove cause for discharge, or take any steps to end O’Sullivan’s employment because, without a license or a waiver, Mass. General Laws, Chapter 71, Section 38G automatically made him unemployed and unemployable as a teacher.

The Union grieved both the termination and the denial of unpaid leave, and the grievances proceeded to arbitration before Arbitrator Mary Ellen Shea.  Arbitrator Shea issued a 46-page award on September 15, 2010 ordering the School Committee to reinstate O’Sullivan’s employment and grant unpaid leave for the 2008-2009 school year.  She determined that O’Sullivan’s rights as a PTS teacher survived the loss of his license and he was entitled to CBA benefits such as unpaid leave.  Arbitrator Shea noted that (1) the School Committee’s argument that O’Sullivan was unemployable without a license was undermined by the fact that he continued to work as a teacher without a license or a waiver for long periods during his employment and (2) had the School District provided O’Sullivan with the due process to which he was entitled, the lack of a license would have provided adequate cause to discharge him.

Despite a CBA provision making arbitration awards final and binding, the School Committee appealed the award to Plymouth Superior Court on the grounds that it required the employer to violate the law and violated public policy.  Superior Court Judge Cosgrove rejected the School Committee’s arguments and confirmed the arbitration award on September 18, 2012.  The School Committee then appealed to a three-judge panel of the Massachusetts Appeals Court, which upheld the Superior Court ruling last week.  In summarizing its published opinion, the Appeals Court stated:

O’Sullivan’s unlicensed status alone did not automatically eliminate his rights, and … absent termination pursuant to §42, he retained certain collective bargaining rights, including the right to file a grievance and request an unpaid leave of absence. We also conclude that the arbitrator did not exceed her authority in deciding that O’Sullivan was entitled under the CBA to the one-year unpaid leave of absence to try to fulfil his licensing requirements.

The School Committee has the right to seek further appellate review of the case by petitioning the Supreme Judicial Court.  Otherwise, according to the arbitrator’s award, the School Committee must reinstate Mr. O’Sullivan to his position and make him whole for any loss of pay and benefits.

 

Labor In The News, Sandulli Grace In The News

Sandulli Grace Attorney Stands Up For Retired Police Officers And Firefighters In Marlborough

John Becker
John Becker January 15, 2014

Sandulli Grace attorney Jamie Goodwin is at the forefront of the opposition to the Mayor of Marlborough’s outrageous proposal to cut health benefits for retired disabled police officers and firefighters.  Specifically, Mayor Arthur Vigeant asked the City Council to repeal its acceptance of Chapter 41, Section 100B of the Massachusetts Laws, which obligates the City of Marlborough to pay medical expenses for police officer and firefighters who retired due to a job-related disability.  The City adopted Section 100B in 1973, but now Mayor Vigeant says it is too expensive.  If the City repeals the law, the retirees would have to arrange for their individual health insurers to pay their medical expenses.  The Mayor’s proposal came before the City Council at a meeting on Monday, January 13, 2014, where several councilors immediately expressed their opposition.

Attorney Goodwin, who represents the Marlborough Police Command Officers Union, MassCOP Local 366, attended the City Council meeting in support of current and future retirees who would be affected, along with a number of union members, to express opposition to the proposal.  Attorney Goodwin was quoted in published accounts in both the Metrowest Daily News and the Marlborough Patch.  He pointed out to the Daily News that the City’s financial situation was not as dire as the Mayor stated, noting that the City had $28 million in excess levy capacity. In the Patch article, Attorney Goodwin pointed out that he was unaware of any other city or town that was proposing such a move.  “This shouldn’t even go to a council vote,” he said.
“At the end of the day, these guys go out and risk their lives,” Goodwin told the Daily News. “It’s a bad decision for Marlborough and a bad decision for the police and firefighters.”