All posts by Sandulli Grace Staff

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Leigh Panettiere of Sandulli Grace, P.C., Advances Pro Bono Legal Project for Veterans

Sandulli Grace Staff October 28, 2010

As co-chair of the Boston Bar Association’s Labor and Employment Section as well as its pro bono subcommittee, Sandulli Grace Attorney Leigh Panettiere is spearheading an effort to gather experienced labor and employment lawyers in Massachusetts to volunteer their services to the men and women who serve us in the U.S. Military.  In coordination with the Volunteer Lawyers’ Project and Shelter Legal Services, Ms. Panettiere’s committee is arranging to send labor lawyers to “Yellow Ribbon Events” taking place in the next few months. Veterans and their families are invited to attend Yellow Ribbon Events and seek legal and other advice regarding the impact their military service has on their lives. The guidance of labor and employment lawyers is often sorely needed, especially post-deployment.

A large number of returning service members are police officers facing the challenges of re-integrating into the police force after active military service.  Most returning veterans do not have the financial resources to obtain the necessary legal advice on their own.  The goal of this project is to make returning to work easier for veterans and their families, as well as educating employers on the rights of returning veterans.  We encourage our union clients to get involved in this effort.

A training session will be held on Monday, November 1, 2010 from 6:30 to 7:30 p.m. at the Boston Bar Association. An experienced trainer will be on hand to update the volunteer attorneys on USERRA and other labor and employment statutes that are typically implicated when a returning veteran seeks services.  Any attorney interested in attending the training, volunteering his or her services to veterans, or getting involved in coordination efforts as part of the pro bono subcommittee should contact Leigh Panettiere at lpanettiere@sandulligrace.com, or (617) 523-2500 Ext. 18.

Stay tuned for updates on this project at www.sandulligraceonline.com.

In Our Opinion..., Labor In The News

SJC’s Boston Housing Authority Decision Invalidates Contractual “Evergreen Clauses”

Sandulli Grace Staff October 23, 2010

The Massachusetts Supreme Judicial Court today issued a significant decision impacting public sector collective bargaining in Massachusetts.  The court struck down the validity of contract extension provisions that appear in most of our clients’ collective bargaining agreements.  These provisions are called “evergreen clauses.”  In Boston Housing Authority v. Nat’l Conf. of Firemen and Oilers, Local 3, SJC-10569 (Oct. 22, 2010) (slip opinion), the Court held that these mutually bargained-for clauses, requiring contract provisions to remain in force until the parties reach agreement on a new contract, violate Massachusetts General Laws c. 150E § 7(a), which states “[a]ny collective bargaining agreement reached between the employer and the exclusive representative shall not exceed a term of three years.”  M.G.L. c. 150E § 7(a) (West, 2010).  Because evergreen clauses effectively extend the terms of a contract beyond the three-year limit set out by the Legislature, this legislative mandate trumps the parties’ agreements.

This decision is a significant change in the law governing public sector unions.  For thirty years, evergreen clauses have been approved by the Division of Labor Relations despite the language of section 7(a) of G.L. c. 150E.  By invalidating them today, the SJC has handed public sector labor unions a major challenge and have altered the playing field.

There is no question that today’s SJC decision makes it harder for public sector unions to represent their members in collective bargaining.  However, the decision will also cause consternation in the employer community, as everyone works to determine its exact contours.  While the SJC struck down evergreen clauses, it also noted that the clauses are firmly in the public’s interest, not just the interest of unions.  “We recognize that an evergreen clause is designed to maintain the status quo in labor relations and provide for a continuing code of conduct while parties negotiate a new bargaining agreement.”  The court further noted that evergreen clauses “foster labor peace.”  Thus, the elimination of the availability of evergreen clauses upends BOTH sides of the labor relations table.

Due to the significant departure from established precedent presented by this case, we will take the time necessary to digest its full impact and devise strategies to deal with its implications.  For our police and fire clients, the binding arbitration provisions of the Joint Labor Management Committee statute potentially provide some safe harbor from the most draconian implications of the decision.  For now, we encourage all public sector unions to work together to find solutions to this problem. We will continue to update you on developments and reflections on how to minimize the negative impact of this decision.

Sandulli Grace In The News

Sandulli Grace and MassCOP win arbitration awarding officer c. 41 Section 111F benefits based on injury that occurred while training for an upcoming physical fitness assessment

Sandulli Grace Staff September 27, 2010

In November 2009, Sudbury Police Officer Ryan Boyd tore a muscle in his chest while lifting weights.  Although he was working out at a private gym on his own time, he was doing so in preparation for an upcoming physical fitness assessment that was a mandatory part of his role on the METRO-LEC METRO-STAR “Regional Response Team.” The Town refused to grant Boyd Injured on Duty Leave, arguing that the injury was sustained while Boyd was “taking part in a personal hobby that had no connection to his job as a Sudbury Police Officer.”

The Sudbury Police Association, MCOP Local 370, AFL-CIO, arbitrated the case, represented by Attorney Leigh Panettiere of Sandulli Grace, P.C.  The Arbitrator agreed with the Union’s argument and found that Boyd’s injury “arose out of and in the course of his employment” because the Town required Officer Boyd to be in “excellent physical condition” and participate in an “ongoing physical fitness program” while not providing him paid time to exercise nor a facility in which to do so.  The Arbitrator also noted that Boyd’s commanding officer had advised him and his fellow RRT members to keep training for the upcoming assessment.

The arbitrator rejected the Town’s argument that Boyd was engaged in a hobby that had no connection to his employment. The fact that Officer Boyd enjoyed weight lifting and had a long history of regular fitness training was irrelevant. The heightened physical requirements of Boyd’s specialized team meant that he did not have the option to stop training. Also, the arbitrator noted that officers already committed to physical fitness are more likely to serve on a team that requires a high level of fitness.

The Town was ordered to restore Boyd’s wages and benefits to the level they would have been set at had his request for §111F benefits been originally granted.  The town will also have to restore all of the paid leave time Boyd was required to use during his recovery.

This is an important decision for Massachusetts police officers and fire fighters. It is not uncommon for injuries to occur while training to meet required physical fitness standards, and this award provides strong support for the argument that those injuries are compensable.

Read the Arbitrator’s Award…

Labor In The News, Sandulli Grace In The News

Sandulli Grace and MassCOP win confirmation of arbitration award reinstating officer fired for running out of leave, and holding that FMLA benefits are a floor of rights which can be improved in negotiations

Sandulli Grace Staff July 26, 2010

Officer Tyrone Patruno was injured off the job, and then fired when he ran out of his paid time off and his unpaid FMLA leave.  The Barre Patrol Officers’ Union, MCOP Local 340, AFL-CIO, was represented by Attorney Leigh Panettiere of Sandulli Grace, P.C.  The Arbitrator agreed with the Union’s argument and found that there was a practice of offering light duty to officers injured off the job, and further that there was no justification for the Town to refuse to Patruno’s request for extended unpaid leave to recover from his injury.

The Town appealed the arbitrator’s award, arguing that the arbitrator exceeded his powers by requiring the Town to give more than the three months of leave guaranteed by the Family and Medical Leave Act.  The court rejected the Town’s argument (as did the arbitrator) on the basis that the FMLA is a floor of benefits and the parties are free to negotiate a greater benefit in their contract.  Patruno was ordered reinstated to light duty pending a doctor’s decision that he is fit for full duty, with back pay to the date his doctor cleared him to work light duty.

Public employers cannot unilaterally impose FMLA policies, because they impact availability of paid and unpaid leave, as well as compensation and job security — all mandatory subjects of bargaining.  Based upon this rule of collective bargaining law that was reaffirmed in the Barre case, Sandulli Grace advises its clients to watch for new FMLA policies, and contact their union representative if they believe an employer has imposed a policy without bargaining.

Download the decision…

Labor In The News, Sandulli Grace In The News

Mashpee Quinn Bill Case Update: Judge Denies Town’s Attempt To Muddy Case – Plaintiffs Will File For Summary Judgment In Their Favor

Sandulli Grace Staff July 26, 2010

Barnstable Superior Court Justice Gary Nickerson has rejected the Town of Mashpee’s attempt to forcibly join the Mashpee police Union to the lawsuit brought by several Mashpee Police Officers who contend that the Town violated the law when it cut their Quinn Benefits. The Officers, represented by Sandulli Grace, successfully argued that the case involved a violation of the law by the Town, and that their union was not a proper party. “The Town was trying to muddy the issue in the case by seeking to join the Union as a party. We’re pleased that Judge Nickerson rejected this attempt, as we can now move forward to seek a ruling on the merits,” said Sandulli Grace Partner Bryan Decker, lead counsel on the case.

In the suit, the officers contend that the Town of Mashpee violated the Quinn Bill (found at G.L. c. 41, §108L) when it reduced Quinn payments to officers. The Town reduced the payments due to the state’s cutting of Quinn funding to municipalities. “The Quinn bill is a wage law that guarantees certain level of pay to officers who better themselves and their departments by seeking education. This is no different than if the Town sought to pay officers less than minimum wage. I certainly feel for the cities and towns that have suffered a back door local aid cut via the state’s underfunding of the Quinn program. However, that doesn’t allow those cities and towns to cut the pay of officers. Two wrongs most certainly do not make a right,” said Decker.

It should be noted that while the Union was properly found to NOT be a proper party to the suit, the plaintiffs’ union, the Massachusetts Coalition of Police, is fully supporting its members in their attempt to be paid all of the wages the law guarantees to them – including their Quinn Bill wages.

Labor In The News, Sandulli Grace In The News

Bppa Members Paid $2.23 Million In Damages For City’s Unilateral Implementation Of Flsa Pay Period Sandulli Grace Successfully Argues Case At Mass Supreme Judicial Court

Sandulli Grace Staff July 26, 2010

After a seven year battle, the City of Boston has finally paid Boston Police Patrolmen’s Association (BPPA) members damages relating to the unlawful unilateral implementation of a 28 day/ 171 hour Fair Labor Standards Act pay period in 2002. In total, 1765 officers received $1,781,091.11 in damages plus $449,628.44 in statutory interest, for a total damages payment of $2,230,719.55. Because the BPPA refused to bow to the City’s change in 2002, BPPA members are the only BPD sworn personnel benefitting from the shorter pay period.

This case had its origins in the 2000 lawsuit brought by over 800 patrolmen (represented by Sandulli Grace attorneys Bryan Decker and John Becker and with the support of the BPPA) alleging violations of the FLSA due to the City’s failure to include Quinn Bill and night shift differential in the calculation of FLSA overtime. In fact, it turned out that the City wasn’t even calculating FLSA overtime, and in 2004, the officers were awarded over $750,000 in damages and attorney fees. Attempting to cut its losses, in spring 2002 the City announced that it wanted to implement a longer FLSA pay period. A longer pay period allows the employer to stretch its overtime liability, resulting in lower payments to officers. Because the issue implicated officers’ pay, the BPPA demanded to bargain. The City refused, and unilaterally implemented the change at the start of July, 2002.

The BPPA challenged that unilateral change by filing an unfair labor practice charge with the Massachusetts Labor Relations Commission. The City contended that it did not need to bargain the change with the union, and the BPPA was the only union to challenge the change. Sandulli Grace attorneys Bryan Decker and Patrick Bryant represented the union before the LRC, which ruled in the union’s favor in 2006, finding that the decision to change the FLSA pay period was a mandatory subject of bargaining, and ordered the City to restore the traditional 7 day/40 hour pay period. Rather than comply, the City appealed the case, and the state’s Supreme Judicial Court took the appeal. Bryan Decker argued the case before the high court, and in 2009 the Court upheld the finding in the Union’s favor.

Following the SJC decision, the City finally agreed to implement the 7day / 40 hour work period. BPPA members have been receiving FLSA overtime on a weekly basis since late last summer. The City then undertook to calculate damages for the period from 2002 until 2009, which resulted in the $2.23 million dollar payout this summer.

(A longer, more detailed report on this case appears in this month’s Pax Centurion, the BPPA’s Official Newspaper).

Labor In The News

MCOP to support Teamsters’ boycott of Dunkin Donuts

Sandulli Grace Staff July 23, 2010

In a show of solidarity with the members of Teamsters Local 25, Sandulli Grace client Massachusetts Coalition of Police (MCOP) has joined in the boycott of Dunkin Donuts. The Teamsters organized the workers of DCP company, the largest distributor for Dunkin Donuts in the northeast, in 2009. Despite meeting three times per month since, the company has refused to agree to a fair contract for its workers. The Teamsters have therefore called for a boycott of Dunkin Donuts, and MCOP has answered the call.

As the MCOP announcement notes, “When the police needed the Teamsters in our fight against “flaggers,” they were there… It’s our turn to support the Teamsters. Please join all Mass.C.O.P. members in boycotting Dunkin Donuts until Teamsters Local 25 reaches a fair agreement.” (Click here to view the MCOP announcement).

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

Appeals Court Victory for Retiring Teacher

Sandulli Grace Staff April 13, 2010

Sandulli Grace successfully argued before the Appeals Court that a teacher is eligible for creditable service for retirement for service performed out of state so long as that service is in a day school that is under exclusive public control. It does not have to be for a school committee or a board of trustees. In the Weston case, the teacher had taught special needs students in Virginia before the public schools provided special education. Rodney Weston taught in a school in Fairfax Virginia which was under the control of the Department of Health, a public entity. The Teacher’s Retirement System had denied his application to buy back the service credit because the employer was not a school committee or a board of trustees. The Appeals Court found that the MTRS, CRAB and the Superior Court were all wrong in their interpretation of the statute by improperly limiting the service eligible for service credit. The case is Rodney Weston vs. Contributory Retirement Appeal Board, 09-P-475 March 18, 2010.

Download The Case…

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Mashpee Quinn Suit Update! Judge Denies Town’s Motion To Dismiss Case To Proceed To Ruling On Merits

Sandulli Grace Staff April 2, 2010

Earlier this week Massachusetts Superior Court Judge Robert Rufo denied the Town of Mashpee’s motion to dismiss the Quinn bill lawsuit brought by several Mashpee Officers. The Suit contends that the Town violated the law when it reduced Quinn Bill payments to officers based on an anticipated reduction in state funding. After hearing argument, Judge Rufo denied the motion from the bench, an unusual move. The case will now proceed to a decision on the merit.

The suit alleges that under the Quinn Bill, a municipality may NOT reduce Quinn bill benefits, even if the collective bargaining agreement between the municipality and its union would purport to allow a reduction. This is because the Quinn Bill is NOT a statute that parties may amend via bargaining. Allowing a Town to reduce Quinn benefits is the same as allowing it to pay officers below the minimum wage. Even if the contract says it’s permissible, it is not.

“We’re extremely happy that Judge Rufo refused to dismiss the case. The officers will now have their case heard on its merits,” said Sandulli Grace’s Bryan Decker, who argued for the officers. “We’re confident that we will prevail and that the Town will be ordered to pay its officers the full benefit to which they are entitled.”

Even assuming that the case will be successful, educational benefits for officers are not ensured in the future. The legislature already “closed” the program to newly hired officers; and the Governor is pushing further changes that would ALLOW a town to reduce payments if the state short changes the town on reimbursement. “It’s pretty disgraceful, the state’s reduction in Quinn reimbursement is nothing more than a back door local aid cut,” says Decker. “Nonetheless, towns and cities can’t just cut police officers’ pay. That’s outrageous.”