The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released four decisions that dismiss union charges of unfair labor practices. For your consideration, we provide the following brief summary of the key decisions.

COMMONWEALTH OF MASS/COMM’R OF ADMIN. & FINANCE (SUP-05-5174) (March 30, 2007)

In this case involving correctional officers, the Commission holds that an employer’s decision to record investigatory interviews of employees, instead of taking handwritten notes, does not qualify as a change in a term or condition of employment. The Commission also dismissed the charge over the new policy of disciplining employees for refusing to participate in investigatory interviews as there was no evidence that the employer did not do so prior to the policy.

Town Of Tyngsborough & IBPO (MUP-05-4420) (March 7, 2007)

In this case involving IBPO police officers, the Labor Relations Commission strictly interpreted its six-month statute of limitations in a manner that may encourage unions to file more ULP’s and more quickly. Here, the Union filed a ULP charge six months after the parties first discussed changes to the personal leave policy. Because the Union knew of these changes prior to that first meeting, the Commission ruled the charge to be untimely.

The Commission also found that the Union failed to support that the Town made a unilateral change concerning the personal leave and shift-swap policies. First, the union produced no evidence of a past practice that entitled patrol officers to use a personal leave whenever request. Second, the Union offered no evidence of the shift-swap practice in existence prior to the Town’s adoption of the policy.

CITY OF PITTSFIELD (MUP-05-4480) (March 7, 2007)

In this case involving IBPO police officers, the Union charged that the City’s implementation of a flex time scheduled for an in-service training officer violated the Law. The Commission disagreed and dismissed the charges. First, the Commission found no evidence that a flex time schedule actually was implemented. Second, the Commission found no evidence that the employer dealt directly with the officer about scheduling. Third, the absence of a new flex time schedule meant that the employer had no obligation to bargain. Finally, the Commission found no support for the claim that the employer refused to provide information requested by the Union. It noted that the Union failed to produce a copy of any request or describe the information not provided.

TOWN OF AGAWAM (MUP-05-4479) (March 30, 2007)

Here, the Commission dismissed the Union’s claims that the Town violated the law when it negotiated wage increases individual with three members of the bargaining unit. As wages are a mandatory subject of bargaining and the union is the exclusive bargaining agent, an employer cannot negotiate or implement changes to individual employee pay without providing notice and an opportunity to bargain first to the union. However, the undisputed evidence showed that the parties had a longstanding practice of permitting the Town to negotiate directly with individual employees and the Union had never communicated a change in its position on this practice. The Commission dismissed the charge.

In an ongoing battle between the Town of Agawam and its police officers regarding the Fair Labor Standards Act, U.S. District Court of Massachusetts Judge Ponsor affirmed the Town’s liability. His decision in the case of O’Brien v. Agawam (O’Brien III) (March 31, 2007) rejected four arguments raised by the Town.

First, the Court rejected the Town’s argument that regular rate or base pay for purposes of calculating overtime should exclude time spent on paid leave. “Plaintiffs’ ‘regular rates’ should be calculated by adding their annual salaries, wage augments, and roll call pay, then dividing that amount by the number of hours these payments are intended to compensate (1950 plus roll call time).” Second, the court affirmed that the officers should be compensated during their meal breaks, which are unscheduled and during which they remain “on call.” As a side note, the Court states that the Massachusetts meal break law, G.L. 149, §100, does not apply to municipalities.

In the third and most significant aspect of its decision, the Court sets forth the standard to calculate overtime liability for periods of “court time.” Under the FLSA, officers receive 1.5 their regular rate for hours worked beyond 40 (unless the employer affirmatively adopts a §7(k) period). Applying this principle to periods of court time can be tricky, given that many officers receive a minimum payment of 3-4 hours pay whether or not they work that time. In cases where the Town does not record actual time worked by officers at court, Judge Ponsor said that the employee first must show: 1) he “performed work for which he was improperly compensated”; and (2) sufficient evidence of “the amount and extent of that work as a matter of just and reasonable inference.” This is not an onerous task, noted the court, and the officers discharged their burden with an affidavits from officers estimating that they actually worked the minimum amount of time. At this point, the burden shifts to the town to refute the reasonableness of the employee’s claims. As the court noted, “the purpose of the burden-shifting scheme in cases like this is to prevent an employer from capitalizing on its failure to maintain records.” Here, the Town did not supply counter affidavits from court officials who could challenge its claims that officers did not the claimed time in court.

Finally, Judge Ponsor affirmed that the Town must pay liquidated damages, which means that Plaintiffs will receive double unpaid overtime compensation.

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The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released a batch of decisions from February 15 and March 15, 2007. For your consideration, we provide the following brief summary of the key decisions.

Board of Higher Education & AFCSME Council 93 (CAS-06-3631)

In this case, the Labor Relations Commission classifies Administrative Assistants to the Vice President of Student Affairs and the Vice President as "confidential employees" who are excluded from a bargaining unit of clerical employees. One assistant has access to the executive’s correspondence and phone calls regarding personnel decisions, including promotions, warning letters, requests for resignations, and the performance evaluations of department directors. She also examines personnel files and conducts research into personnel matters at executive’s request.

The other assistant is "involved in monthly budget meetings and directly handles the entry of budget numbers for the College’s operations and its budgetary planning," and has access to bank statements and documents. This involvement makes her "aware of the College’s budgetary discussions before final decisions or recommendations are publicized, including plans for layoffs or retrenchment of positions, assessment of departmental budget requests, funding for collective bargaining agreements, and the feasibility of proposed new positions." As a result, the Commission decides that this assistant, too, has significant access and exposure to confidential information concerning the impact of budgetary issues on labor relations matters.

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NAGE (SUPL-03-3012)

In this case, a laid off employee charged a union, NAGE, with violating its duty of fair representation for the manner in which she was bypassed during two recalls in 2002 and 2003. The Commission dismissed the DFR charge as untimely because the primary allegations concern activity in 2002 which was beyond six-month statute of limitations period. The Commission indicates that it would consider these allegations if they were connected to activity that occurred six months prior to the filing of the charge. It suggests evidence that might have saved the charge: 1) when the second recall occurred; 2) the date on which the charging party learned about that recall; 3) when charging party’s representative contacted the Union to ascertain why DOR had not recalled charging party for the second time; 4) to whom the representative spoke at the Union; and 5) the details of his discussions with the Union.

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Town of Weymouth/IAFF (MUP-05-4403 & MUPL-05-4516):

In these related cases, the Commission dismisses charges by a firefighter against town and union. The Commission found no evidence that involuntary transfer of firefighter over less senior employees constituted unlawful retaliation and intimidation as there was no evidence the employee engaged in protected, concerted activity, the town was aware of this activity, or the transfer was motivated by a desire to penalize or discourage protected activity.

The Commission also found that the union’s refusal to process the firefighter’s grievance did not violate its duty of fair representation. In the decision, the Commission added language that should serve as guidance for union decisionmaking and as boilerplate defense against baseless DFR charges:

"Rather, the information demonstrates that the Union considered and evaluated the merits of the Charging Party’s grievance, decided not to process the grievance on the Charging Party’s behalf, notified the Charging Party of its decision, and informed the Charging Party that he could process the grievance on his own up to the point of arbitration. Further, the Union considered the seniority argument proffered by the Charging Party and based its conclusion on its interpretation of the Agreement."

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State Police & SPAM (SUP-04-5104)

Here, the Commission refused to reconsider its earlier dismissal of an unfair labor practice concerning a charge of illegal transfer of shared bargaining unit work. The Commission held that its decision in a related case did not entitle the union to victory here. A previous ruling that the state police department illegally withheld information concerning shared work does not, without more, mean that employer committed an unfair labor practice on unilaterally changing a condition of employment.

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Mass Turnpike Authority & USWA (UPL-05-169):

In another victory for unions, the Commission affirmed its previous dismissal of a charge against union which concerned its behavior during bargaining about part of the bargaining unit while the parties awaited a decision on the unit’s appropriateness.

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BHE & AFSCME Council 93 (SUP-05-5177)

In this case, the Commission found that the Union failed to show that the parties reached an oral agreement about an inclement weather policy for non-essential personnel. As part of its ruling about the absence of an oral agreement, the Commission noted that there was no evidence that the Union informed its members about the existence of an alleged oral agreement.

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Worcester & NAGE (MUP-05-4542).

Here, the Commission concludes that the employer lawfully bargained to impasse on dredger reorganization and therefore was entitled to unilaterally change a condition of employment. The decision notes that the union failed to act aggressively enough to indicate that further bargaining could be productive

"Even though the Union asserts that it was ‘prepared to engage in further negotiations,’ it did not request that the Employer reopen negotiations at any point following the exchange of final offers on April 5, 2005. Additionally, there was no appreciable lapse in time between the last negotiation and the Employer’s declaration of impasse on April 7, 2005. Finally, the Employer’s letter dated April 7, 2005 was a ‘clearly defined and communicated position on impasse,’ and the Union’s failure to rebut that position indicates that the parties had reached ‘a contemporaneous understanding of the state of negotiations.’ HECC, 23 MLC 16, 19 (1996). This ‘state of negotiations’ in the instant case was an impasse."

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In Parker v. Town of North Brookfield, No. 06-P-167 (February 15, 2007), the Massachusetts Court of Appeals upheld a public employer’s termination of an at-will employee who exercised her statutory right to health care benefits. The town terminated the employee purely so it could avoid cost of meeting its health insurance obligations. By allowing public employers to terminate employees who demand health insurance, the Court reinforced incentives and benefits of unions, whose members generally receive health insurance and protections against retaliatory treatment.

The case involved an animal control officer who was subject to annual appointment. For many years, the employee was not enrolled in the town’s insurance program, as she received benefits from her other (public) employer. Following the transfer, she requested enrollment in the town’s insurance plan, to which she was entitled under Massachusetts General Law, Chapter 32B. The town responded to the employee’s request for basic health care benefits by terminating her, eliminating her position, and transferring her animal control responsibilities to the police department. The town reassigned the animal control duties to other members of the police department. There was no dispute that the town acted “purely on the basis of avoiding the cost of providing her with insurance.”

In one of the decision’s few victories for employees, the Appeals Court first held that an aggrieved public employee could sue a municipality in court for its violation of state health care laws, even though the statute does not specifically provide a mechanism for such lawsuits. Nevertheless, the court still upheld the town’s actions.

The Appeals Court acknowledged that the town’s actions would violate the federal ERISA law, 29 USC §§ 1001 et seq., if the law applied (ERISA generally does not apply to public employers). The court then declined to adopt the federal rule into chapter 32B, even though the employer’s actions arguably violate the spirit and purpose of chapter 32B. In other words, the court held that employees may sue to enforce the terms of state health care laws, except when they are fired for seeking to enforce the terms of health care laws.

The court later held that the town’s actions did not violate public policy, because, it reasoned, the town’s effort to control its budget was consistent with decision making of a private sector employer. It wrote, “[W]e note that in the context of the private sector, financial considerations can provide good cause to terminate an at-will employee.” The court arrived at this conclusion despite its previous acknowledgment that a private sector employer could not have acted in a manner that the town did here. The court further held that it did not matter if the town acted in bad faith.

The court’s decision may only compound the health care crisis by intimidating uninsured employees from asserting their rights and by rewarding employers who seek to avoid their obligations. By taking such an unsympathetic view of uninsured public employees, the court reinforced the benefits of union membership. Employees who are represented by a union generally are not “at-will.” They only cannot be fired if the employer has “just cause.” An employer does not have “just cause” if it fires an employee in retaliation for asserting statutory rights, and where the employer merely transfers the job responsibilities to other employees in the town. Further, a union could sue the town in an instance as here for unlawful retaliation and for unilaterally transferring or subcontracting the union work.

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In two recent cases, the Massachusetts Appeals Court has flatly rejected efforts by public employers to overturn arbitrator awards in favor of unions representing criminal justice system employees.

It is a basic principle of Massachusetts labor law that courts generally cannot overturn an arbitrator’s decision except under very exceptional circumstances. It is similarly well established a court won’t overturn awards even it if believes the arbitrator made mistakes in interpreting the law or in determining the facts.

Despite the exceptionally high threshold, Massachusetts public employers routinely waste public time and resources by refusing to accept an arbitrator’s decision as binding and final. Public employers may feel encouraged – wrongly so – by the Court’s decision in by the Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813 (2005) (aka DiSciullo). This case involved highly exceptional circumstances of when an award reinstating a police officer was reversed, because reinstatement of an officer found to have repeatedly lied under oath and filed false criminal charges (both felonies) would violate state law prohibiting felons from being police officers.

For detailed information see the following:

Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 03-P-1154 (Feb. 1, 2007)

Sheriff of Suffolk County v. AFSCME Council 93 (Feb. 13, 2007)

Many police chiefs and public employers have misinterpreted the DiSciullo decision (perhaps willfully) to claim that they must fire law enforcement officers who make any lie or misstatement. A recent decision shows that once again, public employers have it wrong.
In Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 03-P-1154 (Feb. 1, 2007), the Appeals Court affirmed its previous decision that resulted in the reinstatement of a corrections officer. The Suffolk County Sheriff terminated a corrections officer after it found that he observed a scuffle between fellow officers and a pretrial detainee, failed to report these observations and then lied about the matter to investigators. On appeal, the arbitrator found that punishment of the corrections officer warranted no more than a six-month suspension. The arbitrator specifically found that the corrections officer failed to "file some form of a report of an unusual and significant event (i.e., the assault) and that he did not cooperate with the investigation and filed incomplete, misleading or false reports."

The Sheriff appealed. The Appeals Court expressly rejected the suggestion that the arbitrator’s award was illegal under DiSciullo.

In the Boston Police case, DiSciullo was the original perpetrator of bad acts, who then went on to "shroud his own misconduct in an extended web of lies and perjured testimony." In contrast, Upton’s conduct was the result of trying to cover up the misdeeds of his fellow correction officers, and not the result of trying to cover up his own misconduct. Such conduct, while condemnable, and requiring substantial discipline, did not compel termination, as it did not "present one of those ‘rare instances’ in which an arbitrator’s award must be vacated as contrary to ‘an explicit, well-defined, and dominant public policy.’ "
While this case involved a corrections officer, it seems to have equal application to police officers. As such, this decision should make public employers reconsider their threats of termination when they assert that police officers have lied in the course of an internal affairs investigation.

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In another case involving the Suffolk County Sheriff, Sheriff of Suffolk County v. AFSCME Council 93 (Feb. 13, 2007), the Massachusetts Appeals Court rejected another effort to void a public employer’s attack on an arbitrator’s award of reinstatement.
This case dealt with a corrections officer terminated for excessive sick leave – sick leave, incidentally, caused by a work-related injury (restraining an unruly prisoner). The arbitrator interpreted the sick leave policy and found that, contrary to the Sheriff’s claims, the absences were not “undocumented” as the officer provided supporting medical documentation. The arbitrator ordered reinstatement.

The Sheriff appealed under the principle that an arbitrator cannot ignore the contract’s plain language. In essence, the arbitrator claimed that an erroneous interpretation is tantamount to ignoring contract language. The Appeals Court rejected this contorted logic.

In this case, there is no doubt that the arbitrator focused on the correct language in the [policy], but his interpretation of that language, that an employee who lacked sufficient accrued sick leave could avoid being charged with an "undocumented" sick day by providing appropriate medical documentation, may have been incorrect. The judge essentially ruled that the arbitrator’s interpretation was erroneous. In short, the arbitrator may simply have got it wrong. The sheriff’s argument, therefore, boils down to a claim that the arbitrator exceeded his authority by erroneously interpreting the contract provision. If that were the test for vacating an arbitration award, G. L. c. 150C, § 11 … would be drained of any meaning, so that any and all awards would be vulnerable to attack, merely on a complaint by a party who claims error on the part of an arbitrator in interpreting the particular contract language at hand. The settled rule, however, is that a court has "no business overruling an arbitrator because [it] give[s] a contract a different interpretation."

In a world guided by logic, this decision should caution public employers from frivolously challenging arbitration losses. Of course, if only all public employers inhabited such a world.

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SJC Reinstates Excessive Punishment For Employee Misconduct

In December, the Supreme Judicial Court severely narrowed the ability of employees to obtain meaningful relief from the Massachusetts Civil Service Commission. As a result of today’s unanimous decision from the highest state court, employees should consider alternatives to the Commission, such as grievance/arbitration (when provided by a collective bargaining agreement) and/or wrongful termination claims under various anti-discrimination and anti-retaliation laws.

In Town Of Falmouth v. Civil Service Commission, SJC-09652 (December 7, 2006), the public employer suspended an officer for 180 days as a result of the officer’s assault on a teenager that had been harassing the officer’s son. The officer did not testify at the town hearing, but he did before the Commission. Where the alleged victim claimed that the officer grabbed him by the throat, threw him against the cruiser and repeatedly threatened the teen’s life, the officer denied the above allegations before the Commission and testified that he merely placed his hand to the teen’s chest to prevent the teen from leaving. The Commission largely found the officer’s testimony credible, finding that he placed his hand in a way that caused the teen “to fall back into a tree trunk." The Commission reduced the suspension from 180 days to 60 days.

In a decision that could reverberate throughout the Commonwealth, the SJC criticized the Commission and reinstated the 180 day suspension. Public employers will read the case as making it easier for a town to prove its case before the Commission. First, although the SJC acknowledged that the Commission hearing is “de novo” (meaning that the hearing is conducted anew at the Commission and is not bound by the Town’s decision), the SJC suggested the Commission must consider the facts as found by the town. If a town’s create a presumption of validity, then an employee is denied the promise of a new hearing. Second, public employers will contend that under this decision, the SJC mandates the Commission to draw a negative inference from an officer’s lawful invocation of his right to remain silent under state and federal law. Here, the Town did not appear to draw any negative inference from the officer’s silence; the SJC did so on its own.

This latter development may be most troubling if applied to mean that the invocation of your right to protect yourself against incriminating yourself in criminal prosecution comes at the cost of your pay or your job. This view ignores the reality for many public employees – most town hearings are simply kangaroo courts that deny due process. In these settings, an employee speaking out on his or her behalf is unlikely to make a difference. If anything, the testimony will serve to support a charge by the employer that you “lied.”

Finally, public employers will read the decision as suggesting that a town’s findings and discipline must be upheld unless the Commission finds facts that are materially different. Here, the Town found that the officer choked the teen and violated the use-of-force policy. By contrast, the Commission found that only tapped the teen’s chest and did not violate the Town policy. Remarkably, the SJC found that these differences were immaterial.

The above decision sadly reinforces that employees are more likely to receive a fair hearing under a grievance/arbitration procedure and/or from a wrongful termination lawsuit premised upon anti-discrimination or anti-retaliation laws.

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Ever since Governor Romney proposed legislation in 2003 setting municipal employers’ health insurance premium contributions at 75% and employee contributions at 25%, cities and towns have been attempting to bargain for the reduction to 75% of any higher employer contributions. While the reduction of employer contributions is generally undesirable, the employer’s anxiety about the cost of insurance can be turned to the employees’ advantage. Employers have been induced to pay substantially more in wage increases than they have gained in premium contribution reductions. This strategy is available to unions only when employers propose a reduction in their health insurance contributions; the union cannot expect such exceptional wage increase unless the employer first seeks a reduction of health insurance contributions.

Some recent contract settlements negotiated by this office demonstrate the possibilities. In the case of the Essex Police (MassCOP Local 270) Attorney Ken Grace negotiated a 6.5% wage premium to offset a proposed reduction of the employer’s health insurance contribution from 90% to 75%. The parties assumed that their general wage increases would have been 3%, 3%, and 3% without the change in insurance contributions. In that case the contract wage increases and the insurance reductions were as follows:

General Wage Increase Town’s Insurance %
July 1, 2004 3.0% 90%
July 1, 2005 9.5% 75%
July 1, 2006 3.0% 75%

Assuming that an employee has an HMO family plan costing a typical $12,000 per year, the 15% increase in employee contributions costs 15% x $12,000 = $1,800 per year. However, the 6.5% wage increase on a typical police salary of $50,000 per year generates 6.5% x $50,000 = $3,250 per year. Not only does this wage increase far supersede the increased employee cost of the insurance contribution increase, but unlike insurance contributions, it increases the overtime rate and it increases the employee’s pension benefit. For employees on the individual insurance plan, the gain would be even greater.

One concern about agreeing to any reduction in the employer contribution in health insurance is that any compensation for the change will be swallowed up by the substantial annual increases in the premium. Assuming that premium rates will increase at an average of 10% per year, the additional cost arising from the change in rates from 90% to 75% will not overtake the $3,250 wage premium for seven years. That is, the $1,800 increased at 10% per year will not rise over $3,250 until the seventh year. During the first six years following the change, the employee is getting far ahead of the game. By the time the seventh year comes around, there may be some entirely new approaches to health care.

Another approach to bargaining a reduction in the employer’s contribution to health insurance has been to make the reduction gradual, but again with substantial wage premiums. Attorney Amy Davidson of this office bargained the following package for the Dedham Firefighters (Local 1735, I.A.F.F.):

General Wage Increase Town Insurance %
July 1, 2004 2.0% 90%
July 1, 2005 6.92% 87%
July 1, 2006 3.0% 84%
July 1, 2007 4.0% 80%

Here the union obtained a 3.92% premium in 2005 and an additional 1% in 2007 (assuming a 3% increase would have been appropriate with no change in insurance) in exchange for the gradual reduction of the town’s insurance contribution from 90% to 80%. At the end of the contract the 10% increase in employee insurance contributions will cost about $1,200 per year while the compounded 4.96% wage increase generates $2,480 per year.

One final reason to consider this approach to bargaining is that some recent interest arbitration cases from the Joint Labor Management Committee have ordered the reduction of employer contributions. Rather than letting an arbitrator determine what compensation, if any, is appropriate as a trade for such a reduction, it may be desirable to bargain the appropriate trade.

Joseph G. Sandulli