The Civil Service Commission has scheduled a pre-hearing conference for the appeal filed by Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt of the decision of the Massachusetts Human Resources Division (HRD) to band scores from civil service promotional exams when placed on eligibility lists.  The Commission, apparently heading our call for a speedy resolution of this matter, has scheduled the pre-hearing for next Tuesday, March 3, 2009 at 10:00 a.m. Here’s the notice.

At the pre-hearing, we will press our request for a speedy full hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced.  Stay tuned…

On Friday, February 13, 2009, the Massachusetts Human Resources Division (HRD) suddenly informed police officers around the state that HRD will start “banding” scores from civil service promotional exams when placed on eligibility lists.  Because this radical shift in the promotional process will make it much easier for cities, towns and chiefs to use favoritism as a basis for promotions, Sandulli Grace, PC, today filed papers to restore basic merit principles.  Attorneys Alan Shapiro and Bryan Decker today challenged the proposed banding by filing an appeal and request for speedy hearing with the Civil Service Commission on behalf of Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt.  You can read the appeal in its entirety by clicking here.

HRD rules require the state agency to list police officers on promotion lists in order of the “whole number” score they received on the exam.  Thus, an officer who scored an “88” is listed ahead of an officer with an “87.”  If the chief wants to promote the lower-ranked officer, he must justify this bypass of the higher-ranked officer in writing to HRD, and the higher-ranked officer can file a bypass appeal with the Civil Service Commission.  The Chief then has to prove that there is reasonable justification for the bypass and that the bypass was and not arbitrary or capricious.  This vetting and appeal process ensures that the chief must be prepared to justify a decision to promote a lower–ranking candidate to an independent third party.  

A bypass does not occur, however, when the Chief selects one of two or more officers with the same score.  In other words, if three officers scored “87” on the exam and the Chief selects one of them, then the other two officers have not been bypassed under the law and the other two officers have no automatic right to file a case with the Commission.  Except for large communities, ties are infrequent under this established promotional process.

HRD’s new policy on “banding” promotional lists dramatically changes the promotional process in a way that explicitly leads to more unfettered decision-making by the Chief.  The new banding results in large numbers of officers being “tied,” even when they score as much as seven points apart on the exam.  For example, the bands HRD currently proposed for the Sergeant are as follows:

2008 Statewide Police Sergeant Exam

Legend for Score Bands

(Includes General Average Plus Preference)

6=92.92-100

5=85.84-92.91

4=78.76-85.83

3=71.68-78.75

2=66.00-71.67

1 = Failed Written and failed overall exam

Officers are automatically “tied” with everyone else in their band.  Under banding, the chief can promote any officer within the band without having to justify the decision to anyone.  You got a 99 and the Chief’s coffee buddy got a 93?  Guess what, you’re tied.  And the Chief doesn’t have to justify his decision to promote his buddy to anyone.

We believe that it is obvious that banding increases the illegal influence of favoritism and bias in promotional decision making.  Unfortunately, HRD prevented police unions and our firm from stopping this dramatic change because HRD refused to hold a hearing demanded by G.L. c. 31 prior to adopting this new regulatory policy.  HRD’s neglect of its statutory duty forms the basis of the appeal filed today – the failure to follow c. 31 and its own rules prior to implementing such a drastic change.

Because it is likely that eligibility lists with banded scores will appear in civil service communities throughout Massachusetts in a matter of weeks, we have asked that the Civil Service Commission conduct a speedy hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced.  As always, we’ll keep you posted.  

Massachusetts public employers cannot discriminate against employees who engage in “concerted, protected activity” under G.L. c.150E, the public sector collective bargaining law.  In order to prevail in an unlawful discrimination case, the aggrieved employee or union must show that (1) the employee engaged in protected, concerted activity under c.150E; (2) the public employer knew of this activity; (3) the employer took “adverse action” against the employee; and (4) this adverse action was motivated by a desire to penalize or discourage the concerted, protected activity.  

In City of Holyoke, MUP-05-4503 (January 9, 2009), a member of the City’s police union was reassigned from a detective to a patrol position just two months after filing a grievance against the City.  The police union filed a charge, claiming that the reassignment retaliated against the officer for filing the grievance.  Based on the above test, CERB ruled that the union provided ample evidence of the first two elements, but failed to do so on the latter two. The filing of a grievance counts as concerted, protected activity under c.150E, because the grievance, even if from an individual attempts to enforce a collectively-bargained agreement.  The City agreed that it knew about the grievance, thereby meeting the second criterion.  However, the Commission ruled that the Holyoke Chief’s involuntary reassignment of the grievant from the detective to uniform patrol did not constitute an “adverse action.” 

CERB acknowledged that a reassignment to a less preferable position or to a position with reduced benefits is an “adverse action.”  However, the union’s argument that the transfer constituted discrimination was complicated by the grievant’s stated desire to leave the detective division (although he requested a transfer back to narcotics, where he previously worked) and his mediocre performance in the detective and narcotics divisions (at least as viewed from the Chief’s admittedly biased perspective).  In somewhat similar circumstances, the U.S. Supreme Court ruled that a personnel action is adverse if “a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge [ ].” Burlington Northern & Santa Fe Railway v. White, No. 05-259 (June 22, 2006). 

CERB further rejected the union’s argument that the reassignment was adverse given subsequent, mild taunts of co-workers.  CERB dismissed these comments (such as resetting the screensaver to mock the grievant’s new assignment) as mere jocular, “subjective opinions.”  Given that the opinion of other officers is highly relevant to determine whether the reassignment may be reasonable viewed as adverse, CERB’s finding here is questionable.  CERB may just have been disarmed by the deprecating tenor of the other officer’s comments.

As to the last criterion, the Commission ruled that the two-month gap between the grievance and the reassignment was insufficient to establish even an inference that the Chief’s motive was retaliatory. 

In the future, unions and employees aggrieved by a change from a special assignment may wish to emphasize more concrete differences between the positions, such as the flexible schedules, increased overtime opportunities, and the like. Further, they may wish to produce independent evidence that the grievant is capable of performing the job that he or she seeks.

Dowmload the holyoke-ruling

A recent decision by the Commonwealth Employment Relations Board (CERB, formerly known as the Labor Relations Commission) clarified when employers are supposed to respond to information requests and when labor organizations are supposed to file unfair labor practice charges about the employer’s incomplete response.  Generally, public employers in Massachusetts have a duty to furnish information requested by a union, when the information is relevant and necessary for the union to prepare for bargaining, grievances, and administering a collective bargaining agreement.  When a union believes that an employer’s response is lacking, the union has six months from the date it received the employer’s response to file a charge of prohibited practice with the Division of Labor Relations (DLR).

In Cambridge Public Health Comm’n, MUP-02-3605 (January 21, 2009), the union made a series of information requests for a report about restructuring the employer’s operations.  (The Union requested other materials).  The Employer first denied the request in a February 2002 letter.  The Union renewed its requests in later months, resulting including a request in October 2002. The Union then filed a charge with DLR in November 2002. 

CERB ruled that the clock started ticking on the Union’s six-month statute of limitations when the employer denied the request in February 2002.  As a result, the Union’s November 2002 was too late to challenge the February 2002 letter.  However, the Union’s subsequent request for the same information, followed by a subsequent refusal by the employer, “restarted” the six-month clock ticking: 

[t]hat the Association had made prior requests for the same information and that the Alliance previously had refused to provide the information does not forever relieve the Alliance of its statutory obligation, because the Association asserted in its [subsequent] letter that it still needed the information and provided reasons in support of that assertion.

 Just like every paycheck triggers a new and different statute of limitations under the famed Lily Ledbetter Fair Pay Act (discussed here: http://blog.aflcio.org/2009/01/29/lilly-ledbetter-watches-as-obama-signs-fair-pay-act/), CERB effectively ruled that every new request for information also triggers a new and different statute of limitations under c.150E, so long as the information is relevant at the time of the new request.

There are a few interesting asides about this decision.  First, CERB apparently will not rule upon an employer’s obligations to provide information if the request does not specifically cite G.L. c.150E – the law CERB is charged with administering.  Here, CERB ignored requests that only cited the Public Records Law, G.L. c.66, §10. Second, this case illustrates the slow pace of decisionmaking by CERB.  This case was filed in November 2002.  Despite the decision discussed here, this dispute is far from resolved.  CERB’s decision dealt only with the timeliness issue and not with whether the employer lawfully refused to provide the restructuring report in the first place.

cambridge-ruling

A common misperception about the duty of fair representation is that Unions cannot favor one set of bargaining unit employees over another.  The reality, in fact, is the opposite, as illustrated In Anderson v. Commonwealth Employment Relations Board 07-P-1286 (January 23, 2009).

First, here is a brief overview the duty of fair representation.  Labor organizations owe a duty of fair representation, commonly known as “DFR,” to employees in the bargaining unit.  This DFR is imposed on Unions in exchange for their exclusive authority to bargain about terms and conditions of employment on behalf of bargaining unit employees.  The DFR requires a duty of fair representation, not a duty of total or unwavering representation.  Unions are not required to exhaust all resources on trivial grievances that affect few employees, at the expense of more meritorious grievances that may be relevant to most employees. 

Unions can fulfill their duty, generally speaking, by rendering a reasonable and informed decision about a grievance or bargaining issue that is based upon how the Union views the merits of the issue.  Unions violate their duty when they make decisions primarily based upon irrelevant aspects of the individual employee(s).  In other words, the Union may not discriminate against non-Union members or members who do not pay dues or support the Union, and may not act arbitrarily. Beyond those minor limitations, Unions have discretion on how to process grievances and what items to include within a collective bargaining agreement.

            In Anderson v. Commonwealth Employment Relations Board, the Massachusetts Court of Appeals affirmed that Unions may, if not must, favor one set of employees over another during the collective bargaining process.  The contract negotiated by the Boston Firefighters Local 718, International Association of Firefighters, AFL-CIO, CLC provided  additional sick leave to each firefighter on the payroll as of September 2001.  More than 90 firefighters who retired before that date sued Local 718, complaining that the differential treatment for recent retirees violated the duty of fair representation.  The Appeals Court disagreed:

This duty does not require a union to treat each member identically.  A union has room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake.  That fairly generous scope for inaction is exceeded when the union’s conduct is arbitrary, discriminatory, in bad faith, or grossly negligent.

The Court also affirmed that Unions do not necessarily owe a duty of fair representation to retirees.  In conclusion, the Court agreed that the CERB properly dismissed the claim.

Contrary to popular belief, Massachusetts courts are not the most liberal in the country.  The courts can be downright conservative…when it comes to the rights of public employees, especially police officers.  This observation is underscored by comparing treatment of police union speech in a recent case from Nebraska Supreme Court with a 1994 case from the Massachusetts Supreme Judicial Court.  After all, SJC Justice Oliver Wendell Holmes, prior to serving as a Supreme Court Justice, famously quipped that police officers “may have a constitutional right to talk politics…he has no constitutional right to be a policeman,” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892).

 First, we provide a brief, simplified overview of protected speech.  The right of public employees, especially police union officials, to speak their minds is not absolute.  While the First Amendment is commonly thought to provide a “right to free speech,” the realities are far different.  The First Amendment simply protects citizens from government interference in the exercise of speech.  It does not, for instance, prohibit private employers or businesses from restricting speech of employees.  Where public employees are involved, the employer is the government.  The natural assumption is that public employees enjoy enhanced free speech protection compared to private sector employees.  While this may theoretically be true, courts can narrow free speech rights for public employees. 

Public employees generally have the right to free speech when their speech relates to a “matter of public concern.”  Unfortunately, judges often do not view terms and conditions of employment as “matters of public concern.”  Some complaints about internal corruption or incompetence, for instance, have been classified as not matters of public concern, and hence not entitled to free speech protection.  Even when the public employee is speaking in his or her role as a Union official (and not on behalf of his or her pubic employer), the speech is protected only if the benefits of unrestricted speech outweigh any disruption experienced by the government employer as a result of the speech.  As the U.S. Supreme Court stated:

The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.  This consideration reflects the importance of the relationship between the speaker’s expressions and employment.  A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

 Garcetti v. Cabellos, 47 U.S. 410 (2006) (citations omitted).

Public sector labor laws frequently grant additional protections to employee speech.  Public employees generally are free to speak their mind as long as they are speaking about terms and conditions of employment.  Unfortunately, the Massachusetts Supreme Judicial Court years ago narrowed this protection for certain public employees.  In Plymouth Police Broth. v. Labor Relations Com’n, 417 Mass. 436 (1994), the SJC agreed with the Labor Relations Commission (now Commonwealth Employment Relations Board) that a union official had no statutory speech protections for an internal email to union members about a dispute over vaccinations described the local board of selectmen as “pigs, cheats, liars, whatever!!!!”

 In contrast to the SJC’s crabbed view of protected public employee speech, in Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha (January 2, 2009) (http://www.supremecourt.ne.gov/opinions/2009/january/jan2/s07-1245.pdf), the Nebraska Supreme Court agreed that a municipality violated state labor law for disciplining a police union official as a result of a union article that criticized City procedures for 911 calls and characterized city officials as a “bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.”  The police chief concluded that the article constituted “gross disrespect and insubordination,” and – surprise! – “conduct unbecoming an officer,” that old disciplinary chestnut.  It should be noted that the official wrote the article after the Chief investigated the union president for allegedly advocating that union members ignore department protocols.  (These charges were unfounded and the Chief was forced to exonerate the union president).  Initially, the Chief terminated the article’s author.  He later agreed to reduce the termination to a 20-day suspension and a reassignment.  The Union then filed an unfair labor practice charge with a state labor relations agency, claiming that the disciplinary action violated state labor law’s protection for employees who engage in protected activity.

 The Nebraska Supreme Court ruled that the City’s actions may be upheld only if the Union official engaged in “flagrant misconduct,” which it defined as “statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer’s ability to accomplish its mission, or (3) disrupt discipline.” The state labor relations agency found that the Union author’s conduct did not rise to this level and therefore qualified as protected speech under state law.  The agency described the article’s statements as:

rhetorical hyperbole, which would not be reasonably believed by any reader as accusing of any crime or wrongdoing.  They were intemperate, immature hyperbole, but they were nonetheless protected union speech in the context of the newsletter.

 The Nebraska agency also found no evidence that the article caused the City to suffer any diminution in respect or operational efficacy.  It doubted “the remarks would reflect poorly on anyone other than [the article’s author] and the newsletter’s editor.”  The agency ordered the Department to buy an ad in the Union publication and state that the City recognizing the rights of union members to engage in protected activity.  The Nebraska Supreme Court thereafter affirmed the agency’s decision, citing the principle of agency deference.  The Court however took a swipe at the police union by suggesting that the Court may have ruled in favor of the City had the Court, and not the agency, reviewed the case in the first instance.  

In a case between the Boston Police Patrolmen’s Association, Inc. (BPPA) and the City of Boston, Arbitrator Michael Ryan found  that the Internal Affairs procedures of the Boston Police Department Rules are “benefits” incorporated into the collective bargaining agreement. And that the Union may grieve the City’s violation of its own IA policy.  The arbitrator explained that the Internal Affairs rules “codified” the Department’s “complaint and investigatory procedures, thereby ensuring consistency and predictability” concerning the handling of complaints of misconduct against officers.  An “inherent purpose” of the rules “is to ensure fair disciplinary procedures.”  He therefore found that “the complaint and investigatory procedures” of the internal affairs rules “are advantageous to officers and constitute benefits” under the contract. 

Relying on the language of the contract that states “benefits” specified in the published rules and regulations, general and special orders in force …” are continued in force, the arbitrator determined that “a benefit,” within the meaning of the contract article, encompasses policies, rules, and regulations that are advantageous to officers.”  Therefore, the “complaint and investigation procedures” of the police department rules constitute such benefits and are incorporated into the collective bargaining agreement.  As result, the internal affairs procedures are enforceable at arbitration.

            Although the arbitrator in this case did not find that the City  violated its IA rules based on the facts at the hearing, his Decision represents a tremendous victory for the BPPA.  The Decision enables the BPPA to require the Boston Police Department to follow its own internal affairs procedures.  It also  guarantees that the officers have an avenue for challenging violations of the internal affairs complaint and investigatory procedures. 

Download the decision

Massachusetts law prohibits employers from requiring employees to violate a religious practice and therefore requires employers to provide a “reasonable accommodation” of their religious practice, so long as the accommodation does not create “undue hardship” for the employer. In Brown v. F.L. Roberts & Co., Inc., SJC-10155 (Dec. 2, 2008), the Supreme Judicial Court of Massachusetts ruled that the owner of a Jiffy Lube facility violated the law, G.L. c.151B, §4(1A), if it refused to provide a religious accommodation to its new grooming policy.

Here, the company implemented a grooming policy as part of a marketing strategy to increase business. Seriously. The new policy required employees who had contact with customers to be “be clean-shaven with no facial hair . . . . Hair should be clean, combed, and neatly trimmed or arranged. Radical departures from conventional dress or personal grooming and hygiene standards are not permitted.” The company, curiously, did not implement this policy at any of the other retail establishments it owned. The plaintiff, Bobby Brown, had occasional employee contact in his position and therefore was subject to the new policy. As Brown’s Rastafarian religion prohibits him from cleaning or shaving his hair, he asked for the employer to exempt him from this policy. The company refused, and instead transferred him to a position that did not involve customer contact, and that provided fewer breaks or certain other perks. Brown also alleged that the company refused to discuss any alternatives to its grooming policy.

The Court concluded that the company here violated the law, if Brown is able to persuade a jury of his version of events. The Court ruled that exemptions to a company grooming policy do not automatically create an “undue hardship” and therefore do not automatically protect a company from liability. The Court also ruled while it is not necessary for the employer to grant an employee’s specific request for an accommodation, the employer has a duty to explore acceptable alternatives with the employee. In reaching this conclusion, the Court discussed a previous case in which the employer refused the employee’s request for an exemption to a grooming policy but proposed several other accommodations. The employer in that case did not violate the law. Here, Brown alleged that the employer refused the request for a complete exemption from the policy and simply re-assigned him without exploring any alternatives. The Court concluded that a jury will have to decide whether the Company’s unilateral re-assignment of Brown qualified as a reasonable accommodation.