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

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

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

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

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

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

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

In an arbitration case, the Arbitrator found that the City of Salem violated the contract and past practice when Mayor Driscoll refused to pay a Captain, retiring after 30 years of service to the City’s Police Department, for the various benefits and stipends which all other retirees had received for over 25 years.  The Mayor claimed that there was not explicit contract language requiring payment for the various benefits and stipends upon retirement and therefore, even though every retiree had received the benefits and stipends when he/she retired, the Mayor refused to pay the benefits and stipends to this Captain.

In his Decision, the Arbitrator explained that it is clear that the City officials including the Mayor, Personnel, Finance, Treasury officials and Police Chiefs were aware of the payments and that the City Council funded the payments when it voted appropriations to fund the contracts and Department budgets.  The Arbitrator found further that the evidence discloses that the benefit/stipend payment practices up to the grievant’s retirement “were unequivocal, clearly enunciated and acted upon for a considerable period of time, easily discernible over a long period of time as a fixed and established practice accepted by both parties.”  In addition, the Arbitrator found that the “past practice” concerning unpaid benefits and stipends “had become an implied-in-fact contract term.”  “As a binding past practice is an enforceable, implied-in-fact contract term, it may only be altered by the collective bargaining process.”  Therefore, the retired Captain was entitled to be paid fully for the unpaid benefits and stipends as the other retirees before him received and the City of Salem must continue to comply with the pertinent contract provisions and the parties’ past practices unless and until the parties properly negotiate to amend or alter the parties past practices.  The Union was represented by Sandulli Grace Attorney, Susan Horwitz.

It should also be noted that the Salem Police Superior Officers Association has recently affiliated with the Massachusetts Coalition of Police, AFL-CIO.