All posts by Sandulli Grace Staff

Injury Leave Possible After Off-Duty Recreation Accident

On May 27, 2014, arbitrator Tammy Brynie issued an important recreation injury leave award in favor of the Boston Police Patrolmen’s Association. The Boston police officer was seriously injured while participating in the 2012 Boston Police Department Fitness Challenge. (Read the full decision of Arbitrator Brynie HERE.) The BPPA case was presented and argued by Sandulli Grace Attorney Ken Grace.

As background to the case, the Boston Police Department had been increasing its emphasis on improved health and wellness for all officers since 2009. To this end, the Department sponsored an annual one-day Fitness Challenge for which officers were encouraged to train and compete in various physical fitness events. However, the annual challenge was considered a volunteer off-duty activity and no one was required to participate. At first glance, then, one might expect that an officer injured while participating in the Challenge would not be protected by M.G.L. chapter 41, section 111F ( the injury leave law applicable to Massachusetts police officers and firefighters). The BPPA thought otherwise, and ultimately Arbitrator Brynie agreed with the union.

The question in injury cases such as this revolves around a determination of whether the activity causing the injury “arises out of and in the course of employment.” In making that determination, Massachusetts courts and arbitrators look at “the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Under certain circumstances, an employee can be entitled to injury leave for injuries sustained outside regular working hours, even if at the time of injury, the employee is engaged in something only incidental to his/her employment.

For injuries involving employee recreation activities, the Massachusetts Supreme Judicial Court has developed more specific criteria to determine whether the injury “arises out of and in the course of employment”. Those criteria involve such factors as the customary nature of the recreation activity; the employer’s encouragement, subsidization, management and direction of the activity; the pressure upon the employee to attend and participate; and whether the employer receives a benefit from the employee’s participation in the activity.

Here, the Grievant was injured during one of the events at the 2012 Boston Police Department Fitness Challenge. Arbitrator Brynie found there were “sufficient links with the Department, its goals and its mission to consider participation in the Fitness Challenge as an aspect of the performance of the Grievant’s duty, for Section 111F purposes.” Those links included the annual nature of the event from 2009 to 2012; the organizing, planning and direction of the Fitness Challenge by the Department and its personnel; and the benefits resulting from the event including such intangibles as positive publicity (featured within an episode of the CNN television show, “Boston’s Finest”), promotion of the Department’s emphasis on health and well-being, better morale, and enhanced team building. In the Grievant’s situation in particular, the Arbitrator also found that he received substantial pressure to participate in the event.

Upon reflection, there is a certain irony in this case that warrants comment. The Boston Police Department invested considerable resources and personnel since 2009 to promote the health and well-being of its officers, and a key component of that effort was the BPD’s annual Fitness Challenge. Consequently, the number of participants grew each year as more and more officers embraced the overall goal of being better able to physically perform their jobs.  Then, when the Grievant was injured during the 2012 Challenge and the Department denied him injury leave coverage, Boston police officers took notice and participation in the Department’s health and wellness program decreased substantially. For example, a Fitness Challenge was scheduled for 2013, but it had to be cancelled for lack of sufficient registration. In hindsight, the Department’s long term goal of helping officers to become more fit would have been better accomplished if the injury leave claim in this case had been covered under Section 111F from the outset rather than through a grievance.

Now it is clear that officers are entitled to injury leave coverage if they are hurt during a future Fitness Challenge, so we will see if the Boston Police Department really is committed to the future health and well-being of its officers. Going forward, that is the real Challenge from the outcome of this grievance arbitration victory.




Cities and Towns Cheating on Health Insurance Contributions to Self Funded Plans

When cities and towns use self-funded health insurance plans, they have been able to cheat on their required contributions.  We have already found a number of cases where municipalities have failed to make their required contributions, thereby forcing employees to pay a greater share then they had agreed to.

This cheating is possible because of the way premiums are established for self-funded plans.  In such plans the premiums are set by estimating a number which will cover the projected cost of claims and expenses.  The premium payments must also maintain a cushion in the fund sufficient to cover regular variation in claims plus enough to cover claims which will come in after the end of a plan period.  We have found that when there is such a cushion in the fund, employers can be tempted to skip their payments and allow claims to be paid from the cushion and from employee contributions.

To prevent this cheating, union representatives acting under their collective bargaining agreement or working through a Public Employee Committee, where the PEC has a health insurance agreement, must carefully monitor the financial records of the insurance plan.  They should insist on monthly records to be presented quarterly for review.  The records must include the following:

  1. The monthly claims paid.
  2. The monthly expenses of the plan including the fee paid to the plan administrator and the fees for consultants, actuaries, and accountants.
  3. The monthly revenue, showing both the revenue from employee contributions and from employer contributions and income from any other source, like interest on funds.
  4. The monthly fund balance.

Looking at this data the unions should be able to confirm that the total contribution rate is appropriate to cover the claims and expenses of the plan and that the employer is paying its agreed upon share.  Finally, there should be an annual audit report on the plan confirming that the monthly data has been correct.


Policing and Emergency Medical Services

Policing and Emergency Medical Services

The nature of policing is evolving again as departments are getting more involved in providing emergency medical services.  Traditionally the police service has focused on responding to criminal acts, investigating them, and arresting the perpetrators.  That concept changed somewhat with the advent of community policing which asked officers to involve themselves with the community in ways that might prevent crime or assist in investigating it.  The dramatic change is that now departments are asking police officers to make their first priority the delivery of emergency services, ahead of and even to the exclusion of investigation of crime.  Such a change will require a significant change in the skills and the mindset of the patrol officer.

The change in policing arises first from the introduction of three new technologies. First on the scene was the AED (Automated External Defibrillator).  This is the device which delivers an electrical charge to the heart of a person suffering from cardiac arrest. Its use requires a determination that the subject is suffering from cardiac arrest.  The second new technology is the nasal Narcan.  This device allows the officer to spray a chemical into the nose of a person suffering from an overdose of heroin or other opioid and to instantly revive him.  This requires the officer to make a determination that the subject is suffering from an overdose.  Finally, there is the epi-pen which is used to inject epinephrine into the muscle of a person suffering from an allergic reaction.  Use of this device also requires the medical determination that the person is indeed suffering an allergic reaction.   Some departments are now requiring officers to carry some of these devices in their cruisers for use in the appropriate circumstances.

However, the truly dramatic change in policing comes from the recently enacted statute, Massachusetts General Law Chapter 94, Section 34A which immunizes from prosecution both an addict suffering the overdose and the person who calls for medical assistance[1].  When a police officer is called to the scene of an overdose, the purpose of the response is no longer the investigation of a crime; the purpose is now to furnish medical care.  The assumption by police of this new, different, and complex responsibility adds value to their service to the community and is worthy of additional compensation.  While there are not yet many examples of police unions which have bargained benefits for medical services, our firm has negotiated the following provisions for our clients:

Weymouth Police             3% Medical Technology premium

Gloucester Police   1% Narcan; $725 Defibrillator premiums

Braintree  Police              $600 Defibrillator (expires in July 2014)

Brookline  Police            $400 Defibrillator premium

Peabody Police                  $500 Defibrillator premium

[1] Section 34A. (a) A person who, in good faith, seeks medical assistance for someone experiencing a drug-related overdose shall not be charged or prosecuted for possession of a controlled substance under sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the seeking of medical assistance.

(b) A person who experiences a drug-related overdose and is in need of medical assistance and, in good faith, seeks such medical assistance, or is the subject of such a good faith request for medical assistance, shall not be charged or prosecuted for possession of a controlled substance under said sections 34 or 35 if the evidence for the charge of possession of a controlled substance was gained as a result of the overdose and the need for medical assistance.


Who’s The Boss?

McDonald’s isn’t “loving it” anymore.  In a ruling made public on July 28, 2014, the National Labor Relations Board’s General Counsel, Richard F. Griffin, Jr., found that McDonald’s is a joint employer under the law with its franchisees and therefore liable for the franchisees’ anti-worker behavior.  Over the last two years, 181 McDonald’s employees filed unfair labor practices against the company and its franchisees alleging that they were illegally fired, disciplined and/or threatened for their union organizing activity.  Mr. Griffin found merit in forty-three of the complaints and authorized them to go forward against McDonald’s as a joint employer.  Sixty-four complaints are still under investigation.

At least ninety percent of McDonald’s restaurants in the United States are franchises.  McDonald’s, and presumably other fast-food restaurants with similar business models, will no longer be able to hide behind their franchisees and blame them when workers challenge their working conditions before the NLRB.  Fast-food workers, who make an average of $8.90 per hour, have been pushing for a wage floor of $15.00 per hour in a nation-wide movement for several years.  Many of the workers, with the help of the Service Employees International Union, are trying to unionize their restaurants.  Advocates hope that this latest NLRB ruling will help empower more fast-food workers to stand up for their rights and improve their working conditions.

Supreme Court Rules That First Amendment Protects Employee’s Truthful Testimony

Chalk this one up to “this wasn’t already settled law?”  Yes, it was only last week that the US Supreme Court ruled that the First Amendment to the Constitution protects an employee’s right to testify truthfully in a court case.

In 2006, Central Alabama Community College hired Edward Lane to be the Director of a statewide program for underprivileged youth.  An audit revealed that Alabama State Representative Suzanne Schmitz had a “no show” job at the program. Continue reading

If You Worked as a Reserve Police Officer or a Call Firefighter – You Need To Read This.

All MASSC.O.P. members who have worked as a reserve officer or a call firefighter need to read this article. In Massachusetts, retirement system members who worked as call firefighters or reserve police officers can be credited with a maximum of five years of service for the time they held those positions. This has not changed. However, now the State is requiring members to buy back those five years of service in order to use them to calculate their pension. This is a significant change because, during the last forty years, this type of service was automatically credited to members without any contributions.

This change began last summer when the Contributory Retirement Appeal Board (“CRAB”) issued a decision in Brenton MacAloney v. Worcester Regional System and Public Employee Retirement Administration Commission CR No. 11-19 (2013). That case involved a retired Fire Chief who was required to make payments for his service as a call fire fighter in order for that service to be credited in the calculation of his pension. Since CRAB’s decision, the State (through its agency PERAC) has issued guidance to the Retirement Boards advising them that officers now need to provide make up payments for any reserve/call service for it to be considered creditable in calculating their pension.

This guidance applies only to officers retiring after June 21, 2013. For officers who actually worked as reserves or call firefighters in regular service each of the relevant five years, they will have to remit make up payments based upon the income they earned with interest accruing after June 21, 2013. Though the new change might not stand, officers should err on the side of making any such buy back payments if their board gives them that opportunity. Better to over pay and be reimbursed then to underpay and lose years of creditable service.

Things get more complicated for officers who did not work in regular service when they were on a list or possibly for officers who only worked details when on a reserve list. Previously, this time on the list was credited regardless of whether a reserve officer had worked. However, PERAC has now issued guidance to the boards stating that if an officer did not perform any reserve service in one or more of the relevant five years that the member should be required to remit contributions as if they earned three thousand dollars of regular compensation for each year.

PERAC chose three thousand dollars because it is the amount used to calculate disability pensions for reserve officers and call firefighters when there is no other comparable amount available. As the two relevant sections of the statute are not directly linked, this guidance could be flawed. Indeed, some boards are not following that portion of PERAC’s guidance and it is currently the subject of litigation.

This article is a starting point. Everyone who worked as a reserve officer or a call fire fighter needs to be aware of this change and what position their board is taking with respect to it. This is necessary to be able to properly plan for retirement. If a member encounters a problem, he or she should notify his or her local MASS C.O.P. leadership.

Salem City Council Stands For Public Safety

Based on the diligence of MASS C.O.P. locals in Salem, the Salem City Council took a stand for public safety this week.  Recently, Salem Mayor Kim Driscoll proposed to the City Council that the Police Chief and Fire Chief positions be removed from Civil Service.  This proposal was timed closely with the decision by Police Chief Paul F. Tucker to vacate his position.  Realizing the damage to autonomous public safety operations that could be wrought by this unnecessary and ill conceived change, the Salem Police Patrolmen’s Association, MASS C.O.P. Local 426 and the Salem Superior Officers’ Association, MASS C.O.P. Local 425 joined with their brothers and sisters in Fire to fight against the Mayor’s proposal.   Recognizing good sense, the City Council voted 10 to 0 to send the matter to a full City Council meeting with a negative recommendation.
Congratulations to MASSC.O.P. Local 426 and MASS C.O.P. Local 425, and, respectively, President Rob Phelan and President James Walker for working so diligently together.  When locals in the Massachusetts Coalition of Police work together to agitate and organize – good things follow!   

Waltham News Program Highlights Recent MCOP Win

The television news program Waltham Newswatch last night reported on the Waltham Police Union, Massachusetts Coalition of Police’s recent superior court victory upholding an arbitration award in favor of Officer Paul Tracey. The program recounted the events that led to the Waltham Police Department suspending Officer Tracey based on the allegations of a wholly unbelievable “victim,” from the start of the investigation through to the Union’s victory at arbitration and then in superior court (following the City’s inexplicable appeal of a “final and binding” decision).

Sandulli Grace attorney Bryan Decker successfully litigated the case with assistance from Attorney Ken Anderson, of Byrne & Drechsler, L.L.P. You can watch the story here:

Read the full decision of the appeal HERE

Read the original arbitration decision HERE

Superior Court Upholds Arbitrator’s Decision Overturning Suspension of Police Officer

In a case brought by the Waltham Police Union, Local 161, Massachusetts Coalition of Police, and argued by Sandulli Grace Attorney Bryan Decker, Middlesex Superior Court judge S. Jane Haggerty has upheld the decision of an arbitrator overturning the suspension of a Waltham Police Officer. (Read the full decision HERE). In a November 2012 decision Arbitrator Michael Stutz converted Waltham Police Officer Paul Tracey’s 15 day suspension to a written reprimand, and ordered the Waltham Police Department to pay Officer Tracey for lost detail and overtime opportunities (based on earnings from the prior year). Officer Tracey was placed on administrative leave while the City investigated the allegation that he had assisted a Mayoral Candidate and City Council President in intimidating one of the politician’s tenants. The allegation was advanced by a witness who was not even believed by the City’s hired hearing officer. As a result, the Arbitrator concluded that Officer Tracey had not committed misconduct, overturned the suspension and also ordered that Officer Tracey should be compensated for having been inappropriately kept on administrative leave.

Rather than comply with the contractually “final and binding” decision of the arbitrator, the City instead appealed the decision to superior court.  Following briefing and a hearing, Judge Haggerty rejected this attempt, and ordered the Award upheld.  Judge Haggerty’s decision is an exemplification of the deference that courts are to pay to the decisions of arbitrators.  Judge Haggerty first points out that “the court is confined to accept the factual findings of the Arbitrator.”  Given that the Arbitrator had found that Officer Tracey did not violate the complainant’s rights, the Judge rejected the City’s claims that the decision violated public policy:


Here, the Arbitrator found that Tracy did not engage in any type of conduct that could potentially corrode the public trust, as he did not find Gonzalez’s complaint against Tracy credible.  Given that the court must accept this factual finding, the Arbitrator’s award did not require the Chief or the City to break the law.


The City also complained that the Arbitrator had infringed on the Waltham Police Chief’s “inherent authority” when he ordered that Officer Tracey be compensated for having been improperly kept on administrative leave.  Again, the Judge rejected the claim, finding that the arbitrator’s decision was proper:


Here, the Arbitrator’s decision did not infringe on the Chief’s authority.  The Arbitrator never ordered the Chief to remove Tracey from administrative leave…  The Arbitrator found that Tracy did not commit any serious misconduct.  Thus, the Arbitrator used the overtime pay award to sanction the Chief for extending the administrative leave after September 1, 2011 because the Arbitrator found that this extension was without any basis.


In this case, the City of Waltham spent almost a year investigating the claims of a patently unbelievable “victim” in an effort to discredit a long serving police office.  The City then imposed a lengthy suspension, which was properly overturned by a respected Arbitrator.  Rather than accept this factually based decision, the City then appealed, citing a myriad of far-fetched claims in an “everything and the kitchen sink” attempt to overturn the decision.  Fortunately, Superior Court Judge Haggerty faithfully applied the proper standard in reviewing the award.  She considered each and every argument advanced by the City, and she then concluded:


The award is logically based on the facts as found by the Arbitrator.  Given the broad discretion afforded arbitrators, there is simply no basis for this court to vacate the Arbitrator’s award.