It all began in December, 1999, when the Sheriff of Suffolk County wrongfully terminated a jail officer who, it claimed, failed to report two other jail officers for using excessive force on a prisoner.  After 14 years and half a dozen court decisions, the Jail Officers and Employees Association of Suffolk County (JOEASC), with the legal assistance of Attorney John M. Becker of Sandulli Grace, P.C., have finally succeeded in obtaining the officer’s back wages for all the years he was kept out of work.

The officer’s Union filed a grievance over his termination, which proceeded to arbitration in 2000.  In 2001, the Arbitrator found that the Sheriff did not have just cause for the termination and issued an award reducing the termination to a six-month suspension and reinstating the jail officer with back pay.  But instead of returning the officer to work, the Sheriff did what so many public employers do when confronted with an arbitration decision they don’t like – they appealed to court under G.L. c. 150C, § 11.  It was here, in the courts, that the officer’s ordeal truly began.  Because although the Union kept winning, the jail officer couldn’t go back to work.

First, the Sheriff asked the Superior Court to vacate the arbitrator’s award.  The parties filed briefs, the judge heard oral arguments and then, applying the rule that judges are supposed to be extremely deferential to labor arbitrators, the Superior Court upheld the arbitrator’s decision.  See Sheriff, County of Suffolk v. AFSCME, Council 93, AFL-CIO, Local 1134, 2002 WL 33966764 (Aug. 9, 2002) and 2002 WL 339966765 (Oct. 25, 2002).  Now it’s 2002.  Not satisfied, the Sheriff appealed the decision to the Appeals Court.  Once again, the parties filed briefs and the Court held oral arguments, after which the Appeals Court affirmed the Superior Court’s decision upholding the arbitrator’s award.  See Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 62 Mass. App. Ct. 915 (2004).  Now it’s 2004.

The Sheriff then asked the Supreme Judicial Court to review the case, arguing that the case deserved further appellate review because it involved “substantial reasons affecting the public interest or the interests of justice.” Mass. R. App. P. 27.1.  The SJC disagreed, but it did remand the case in light of its decision in City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), which overturned an arbitration award because it violated public policy. So once again the parties filed briefs and argued before the Appeals Court, and once again the Appeals Court affirmed the arbitrator’s award.  See Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 68 Mass. App. Ct. 903 (2007).  Now it’s 2007.  Again, the Sheriff asked the SJC to grant further appellate review and this time the SJC said yes.  So the parties went to the highest court in the Commonwealth to plead their case and, lo and behold, the SJC affirmed the arbitration award.  See Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698 (2008).  (For those keeping score at home, this is the fourth time a court has affirmed the arbitrator’s 2001 award.)

Finally, in August, 2008, the Sheriff allowed the long-suffering jail officer to go back to work and earn a regular paycheck.  But it was not over yet.  The Sheriff also owed the officer back pay for the 8 ½ years he was out of work.  So the Sheriff wrote up a list of the pay he would have earned, and subtracted certain items (unemployment compensation, for example) and asked the officer to sign off on the total, which he did.  But then the Sheriff decided that the officer might have earned more money while he was out of work and refused to pay anything.  The Sheriff refused to believe the officer’s statement that he never looked for another full-time job because he every time the case went to court, he won, and every time he won, he thought he was getting his job back.

JOEASC decided that this had gone on long enough and it asked its attorneys (Joe Sandulli and me) to take legal action.  Joe and I filed a motion for contempt in Superior Court on August 24, 2009 to force the Sheriff to pay.  The parties engaged in discovery and then went through a mini-trial on how much money the officer earned while waiting to go back to work.  The Superior Court judge ultimately agreed with the Union, and on April 12, 2011, he ordered the Sheriff to pay the amount based on the jail officer’s testimony.  The Sheriff, of course, could not accept this ruling, and went once again to the Appeals Court.  This time, the SJC, perhaps acknowledging the inevitable, took the case from the Appeals Court and heard it directly.  Once again, the parties filed briefs and, on February 4, 2013, argued before the seven justices of the SJC.  The legal issues before the Court were: (1) whether the jail officer had a duty to mitigate damages while out of work; (2) whether the Sheriff had waived the issue of mitigation; (3) whether the Sheriff had proved the jail officer had failed to mitigate; and (4) whether the Sheriff was subject to interest on the back pay award.  Ultimately the SJC ruled that the officer did have a duty to mitigate damages by looking for similar work but that: the Sheriff should have brought up the issue before the arbitrator and now it was too late; and even if the Sheriff didn’t waive the issue, it failed to show that there were similar jobs available for the officer to apply for.  The court also found that the Sheriff had sovereign immunity from interest awards.  See Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 365 Mass. 584 (2013). .   Reading between the lines of the legal analysis, the takeaway from the SJC’s decision was that the Sheriff now – finally – had to pay the jail officer the back pay he was owed.  Now it’s 2013 – and  the damage that began with an improper termination in 1999 has finally been undone.  But has it, really?

From my perspective, there is something wrong with a system that allows, perhaps even encourages employers to challenge arbitration awards with such impunity.  First of all, to the extent that the monarchial-based doctrine of sovereign immunity has any lasting merit in today’s world, it should not apply to arbitration awards.  The failure to award interest means that public employers have little to lose by delaying reinstatement and back pay awards through fruitless appeals or other tactics.  The first goal of the interest doctrine is not to compensate those who have been deprived of the use of their money but to create an incentive for those with the obligation to pay to do so promptly.  Second, the Courts have been too willing to delve into the underlying merits of arbitration awards in recent years.  While reverentially reciting the deferential standard, the Courts’ analyses too often betray the presence of more hands-on standards like those used for administrative appeals under G.L. c. 30A.  As this former SJC law clerk can tell you, the standard of review is often where the case gets decided.  The implications for the entire labor arbitration system are serious.  Each arbitration award that is vacated because an arbitrator allegedly exceeded her authority or because the award violated public policy encourages other public employers to challenge the next loss (I say ‘employers’ deliberately because although unions have just as much right to appeal their losses, they very rarely do.).  In time, the words ‘final and binding’ in the collective bargaining agreements become more and more meaningless and ‘labor peace’ becomes something that is fought over by lawyers in the courts, instead of by the parties (and, yes, sometimes their lawyers) at the bargaining table.  And that would be a shame.

Taking a page from the NLRB’s playbook, the Massachusetts Department of Labor Relations (DLR) recently added another technique to their skill set: the “Unilateral Settlement.”  In a case involving the City of Newton and the Newton Municipal Employees Association, MUP-09-5694 (June 26, 2012) (here), the DLR, in the first known instance of which we are aware, approved a ‘settlement’ without the express approval on the record of one of the parties.  (It is not clear whether or to what extent the ‘non-approving’ party may have informally agreed behind the scenes.)

The settlement includes a financial award and a posting.  The posting does not acknowledge liability, but sets out the affirmative action the employer will take and contains a statement by the employer agreeing not to violate Chapter 150E.

According to the Commission’s decision, the Unilateral Settlement procedure was as follows:  (1) after a Complaint issued, the City and the Union attempted to mediate the Union’s unfair labor practice charge, to no avail; (2) the City then presented the DLR with the last offer it had given the Union and asked the DLR to accept the proposal and dismiss the case; (3) the DLR then reviewed the proposal and determined that it “remedie[d] the allegations in the Complaint” and therefore “further proceedings … would not effectuate the purposes of the Law; and (4) the DLR then withdrew the Complaint.

The DLR found support for this procedure in M.G.L. c. 150E, s. 11(b), which permits the DLR to dismiss charges when further proceedings would not effectuate the purposes of the Law, and 456 CMR 15.04(1), which allows the DLR to withdraw Complaints previously issued when a charging party does not make reasonable efforts to resolve a matter.

It is not clear to what extent the DLR will be utilizing this new procedure, but it appears to be a sign that the Department’s already-intensive focus on mediation is not reducing the caseload as much as DLR officials would like.  The new practice raises a couple of questions: (1) How different may the settlement proposal be from what the charging party would obtain if it went forward and won?  It is not clear from the Newton case materials whether the financial figure, for example, was discounted in any way.  (2) Also, as mentioned above, how much input, if any, do charging parties have into these settlements?  Are these settlements to be imposed on unwilling participants, or will there be ‘behind the scenes’ discussions to assure at least a modicum of acquiescence?  (3) What are the appeal rights of charging parties, if any, after the DLR withdraws a complaint pursuant to a “Unilateral Settlement”?

These and other issues will surely be answered in the coming months and years.  We will try to keep you informed of new developments as they arise.

A judge of the Plymouth Superior Court has upheld an arbitration award in a matter involving the Marshfield Education Association, MTA/NEA, and the Marshfield School Committee, which ordered the School Committee to reinstate a teacher who had been terminated for lacking a proper license. (A copy of the decision is here.) The case was briefed and argued at Superior Court by John M. Becker, an attorney with Sandulli Grace, P.C.

The case involves special education teacher Gerard O’Sullivan, who struggled for several years to obtain the proper approvals that would allow him to obtain licensure. At the final stages, he was thwarted by school administration officials, whose misunderstanding of the requirements caused delays that ultimately caused him his job. Most frustrating was the School Department’s insistence that classroom experience could not count for any of the credits required for the license, a stance that was directly contradicted by the state’s regulations. Once Mr. O’Sullivan realized he was not going to have his license in time for the new school year, and the School Department’s attempt to obtain a waiver had failed, he asked for a leave of absence so he could get his license, but even that request was denied, and he lost his job.

The arbitrator saw through the Department’s failures and determined that Mr. O’Sullivan should not have been fired, that he should be reinstated and granted the one-year leave of absence to obtain his license. (The arbitrator pointed out that the School Department had actually employed Mr. Sullivan without a license for a full year when a waiver request had been delayed, so it rejected the idea that he was ‘automatically’ fired once his waiver expired.)

Despite the courts’ deference to labor arbitrators, the School Committee challenged the arbitration award in court, alleging that it forced the School Committee to violate state law and public policy by requiring it to employ a teacher without a license. In a 17-page decision issued on September 18, 2012, Judge Robert C. Cosgrove ruled in the Union’s favor on all the School Committee’s arguments. He found that by reinstating Mr. O’Sullivan to a non-teaching, leave of absence position, the arbitrator was not violating any law requiring teachers to be licensed. He also found that, even though there is a public policy requiring teachers to be licensed, this arbitration award did not violate the policy because it was designed to help the teacher obtain his license without requiring him to teach any students while unlicensed.

The School Committee filed a notice of appeal of the Superior Court’s decision last week, so the matter is not over yet. As usual, employers seem to have a problem with the concept of “final and binding” arbitration. Stay tuned to this site for further developments.

Suffolk Superior Court Judge Linda Giles issued a ruling on July 9, 2012 upholding an arbitrator’s award in favor of the union representing emergency medical technicians (EMTs) and paramedics employed by the City of Boston.  The case is Boston Public Health Commission v. Boston Emergency Medical Services-Boston Police Patrolmen’s Association, SUCV2007-03270.  The union was represented by Sandulli Grace attorneys Kenneth A. Grace and John M. Becker.

The case involved the proper discipline for violation of an employer sick leave policy.  At the arbitration, the Public Health Commission (PHC) alleged that under the policy, an EMT’s most recent violation of the sick leave policy required a five-day suspension.  The union argued (1) there was no violation and (2) even if there was, the prior disciplines required only a 1-day suspension.  The arbitrator agreed with the union’s second argument.  He found that the PHC failed to follow its own progressive discipline policy when it gave the EMT a five-day suspension and reduced it to a one-day suspension.

But there is a twist.  After the parties finished putting on their evidence, but before they filed briefs, PHC’s legal staff sought to introduce evidence of two prior disciplines.  These disciplines were not produced in response to a prior union request for documents and they contradicted the testimony of the PHC’s own witness, who did not mention these two disciplinary actions when recounting the grievant’s disciplinary history.  The PHC provided no explanation for why these records had not been produced during the hearing.  The arbitrator denied the request to add new evidence at such a late date, particularly where the union had no chance to cross-examine witnesses regarding the new evidence.

The PHC appealed the arbitration award to Superior Court, arguing that the arbitrator erred when he excluded the new evidence.  In court, all parties agreed that, if the new evidence had been admitted, then the five-day suspension would have been appropriate under the progressive discipline policy.  So the issue before Judge Giles was whether the arbitrator acted properly in excluding the late evidence.  Noting the extreme deference the courts give to arbitrator’s awards, such that arbitrator’s awards are not overturned even if they contain errors of law or fact, the judge affirmed the decision.  In a somewhat desperate move, the PHC also alleged that the union had deliberately hidden the evidence.  The judge summarily rejected this allegation, and noting that the PHC “as the Grievant’s employer, is in a better position to keep track of the Grievant’s disciplinary records than the employee.”

An arbitrator has reversed a 10-day suspension that had been imposed on a Rockport, Massachusetts police officer in connection with his actions in checking to see if Town Hall was secure.  The arbitrator, Betty Waxman, Esq., concluded that the Town did not have just cause to discipline the officer because he had not committed any misconduct.  The officer is a member of the Rockport Police Association, Local 154 of the Massachusetts Coalition of Police, and was represented by Attorney John M. Becker, of Sandulli Grace, P.C., counsel to MassCOP.

The case involved the procedures used by midnight shift officers to check Town Hall to make sure all doors were locked.  According to one method, an officer who found Town Hall unlocked would drive to the police station, obtain the key, return to Town Hall and lock up.  At some point, the Department prohibited this practice and stated that officers who found the door unlocked should call for another officer to bring the key.  In these cases, officers would have to call the station when arriving at Town Hall and again when leaving it secure.  But the officer who received the suspension had a different method: he usually carried the Town Hall key with him during patrol.  Then if he found Town Hall open, he would make sure it was secure and call in to the police station.  Although the Town argued that the officer violated the rules by not calling in twice, Arbitrator Waxman found that the Department’s directives were ambiguous when it came to how many times an officer with the key must call in.  She further found that the officer’s answers to questions and report were truthful and consistent with the Department’s rules.

In finding the officer’s version of events credible, and giving him the “benefit of the doubt”, Arbitrator Waxman relied on a number of factors.  Even though the Town relied heavily on the officer’s record of prior discipline to justify the punishment, the Arbitrator warned that, in effect, the Town had engaged in a form of discrimination based on prior disciplinary history.  It is permissible to use prior discipline as a rationale for more severe discipline at the next infraction, the Arbitrator implied, but it is not permissible to assume that because an employee has been insubordinate in the past, he will be insubordinate in the future.  This would be, in a sense, robbing the employee of the right to have each case considered on the merits, and relieve the employer of the burden of proving just cause.  The Arbitrator also noted that, while the employee had a significant history of past discipline, the three years immediately prior to the current allegations were discipline-free.