Civil Service Suspensions: 5 Days Can Be 8 But Not 16

Alan Shapiro October 5, 2011

While, for the Beatles, eight days a week may not have been enough to show they cared, the Appeals Court has said that it is enough for a five-day suspension.

Civil Service law, Mass. Gen. Laws Chapter 31, § 41, allows a police or fire chief to suspend a tenured civil servant “for just cause for a period of five days or less without a hearing prior to such suspension.” [emphasis added]. The statute goes on: “Saturdays, Sundays and legal holidays shall not be counted in the computation of any period of time specified in this section.” The employee is forced to serve the suspension but may (within 48 hours) appeal to the appointing authority for a hearing on whether the chief did indeed have just cause for the punishment. To suspend employees for more than five days or to demote or terminate them, the appointing authority must first hold a hearing before issuing those greater disciplines.

When the Andover fire chief issued a four-day suspension to a Lt. Thornton, he ordered that the four days be served on the lieutenant’s next four scheduled 24-hour shifts, spanning a 16 day period. Not surprisingly, the Civil Service Commission, by a 3-2 vote in an opinion written by Chairman Bowman, had no problem with allowing the chief to take away two weeks’ pay and prevent the lieutenant from working overtime or details for 16 days, all as part of a four-day suspension without a hearing.

This punitive interpretation was first overturned by the Superior Court and then, last week, by the Appeals Court. In Thornton v. Civil Service Commission, Justice Rubin, writing for a 2-1 majority of the three-judge panel, made this Solomonic observation: “Whatever a suspension of ‘a period of five days or less’ is, it is not a suspension under which an employee may not work for sixteen days.”

The Appeals Court decided that the five-day suspension period means five consecutive calendar days, excluding weekends and holidays. A five-day suspension could run from Monday through Friday, Tuesday through the next Monday (remember weekends don’t count), etc. The decision has the practical effect of letting the chief, for the most part, take away a week’s pay and prevent the employee from working overtime/details for the same week. This does raise the question: If weekends and holidays don’t count as part of the suspension period, why should employees also be suspended on those days and prohibited from performing extra work on them?

While the decision is not perfect, it is a reasonable attempt at applying a statute obviously geared to people who work Monday through Friday, nine to five, to the “four and two” and “24 hour” shifts, which did not become prevalent until long after 1978, when the statutory language was written.

One problematic aspect of the Appeals Court decision is language permitting the chief to begin the suspension on a particular day of his/her choosing. An overreaching chief could, therefore, begin an alleged miscreant’s five-day suspension on Tuesday, October 4. Because of the weekend/holiday exclusion and the October 10 Columbus Day holiday, it could run through Tuesday, October 11. If the employee were returning to his/her “four-and-two” on the 4^th, it could actually cost six days’ pay and, depending on the contract, the holiday pay also.

Suffice it to say that the Appeals Court has reduced a “five-day suspension” from sixteen to, at most, eight days. It’s at least a step in the right direction

In Our Opinion..., Labor In The News

NEW CERTIFICATION (EMD TRAINING) REQUIRED FOR DISPATCHERS

Sandulli Grace Staff September 28, 2011

Effective July 1, 2012, dispatchers must be trained in the Emergency Medical Dispatch Protocol Reference System (EMDPRS). EMDPRS is a system that “includes a protocol for emergency medical dispatcher response to calls, including structured caller questioning for patient condition, incident facts, and scene safety, pre-arrival instructions, post-dispatch instructions, selection of appropriate field resources to dispatch (such as first responder, basic life support, and/or advanced life support), and a continuous quality assurance program that measures compliance with the protocol through ongoing random case review of each emergency medical dispatcher.” 560 CMR 5.03.

In other words, if you answer 911 calls, you must be EMD certified. This new training involves a process that is much more detailed than before. Dispatchers will have to provide pre-arrival instructions and dispatch life support in compliance with written text of scripts and other processes within a Department-approved EMDPRS. So, every request for medical assistance will involve the dispatcher following a set of policies and procedures for the safe and effective use of the Department-approved EMDPRS.

Furthermore, under these new regulations, each EMD resource must establish a continuous quality assurance, improvement, and management program that, at a minimum, must include: documentation of the quality assurance case review process utilized to identify EMD compliance with the EMDPRS; written approval of the EMD medical director; ongoing random case review in accordance with the guidelines of the EMDPRS; and regular feedback of performance results to emergency medical dispatchers. In other words, there is the potential for liability and discipline.

If you are a dispatcher and are (or will be) in negotiations, I would advise that you raise these new regulations at the table when bargaining. They add significant responsibilities and duties to your job. Although it is mandated by the State, the Department should recognize the added work you are doing.

If you are not a dispatcher (e.g., a patrol officer) but are being asked to comply with these new certifications, call your union representative to discuss the probability that these new duties could be a change in your working conditions and thus should be bargained.

Labor In The News, Sandulli Grace In The News

YET ANOTHER QUINN BILL UPDATE SJC WILL LIKELY HEAR CASE IN NOVEMBER

Sandulli Grace Staff September 20, 2011

Since we filed our brief in the Boston Quinn Bill case, the City filed its opposition, and we filed our reply on behalf of the plaintiff officers. Again, the suit claims that the City of Boston violated the Quinn Bill when it reduced educational stipends to officers. The City responds that it reduced the payments due to the Commonwealth’s shortfall in Quinn reimbursement, and that it was entitled to do so due to the collective bargaining agreements with the three Boston Police Unions. The only problem with the City’s response is that the law is clear that parties can’t bargain about everything, and can’t bargain to cut Quinn. The only state court judge to reach this issue found just that, and we believe the SJC will too.

The most recent development is that the Massachusetts Municipal Association has filed an Amicus brief in the case defending the city. This brief is amazing in that the MMA’s counsel waxes poetic about the virtues of bargaining over EVERYTHING. This is the same MMA that for over 30 years has claimed that it CANNOT bargain about most things – that everything is “an inherent managerial right.” The MMA saying we should bargain everything is like Michele Bachmann saying something sane. It’s like the Boston Globe saying that Police Details are great. It’s like Snookie saying she thinks sobriety is way cool. You get the idea – it’s a complete 180.

We’re getting ready for, and looking forward to, the argument. As always, we’ll keep you posted.

Don’t take my word for it. Here are all of the briefs in the case:

Our initial brief
The City’s reply
Our reply
The MMA’s about face

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

Sandulli Grace Files Supreme Judicial Court Brief In Case Challenging Quinn Bill Cuts

Sandulli Grace Staff January 28, 2011

As you no doubt know if you are a reader of this blog, many police contracts contain provisions which seek to “modify” the educational incentive benefits granted by the Quinn Bill. Under the Quinn Bill, M.G.L. c. 41, §108L, qualified officers receive salary increases from 10-25% based on the attainment of criminal justice related college degrees. The Quinn Bill is a local option statute, meaning that it only applies in municipalities that voluntarily adopt it. In addition, the Quinn bill states that the state will reimburse Towns for one half of monies spent on Quinn Bill benefits.

The contract provisions modifying the Quinn Bill generally allow municipalities to cut pay to officers in the event that the Commonwealth fails to fully reimburse 50% of Quinn Bill expenditures. In other words, the contracts allow the municipalities to pass 100% of a targeted local aid cut onto officers.

Because the Quinn Bill is not a statute that can be modified by collective bargaining, several lawsuits have been filed across the state seeking to invalidate contract provisions that cut Quinn benefits. The first suit was filed by Sandulli Grace representing officers in Mashpee, where the local union is an affiliate of the Massachusetts Coalition of Police. Sandulli Grace also represents officers in a separate case filed in Boston.

Late last year, the Supreme Judicial Court agreed to pluck the Boston case out of Superior Court and hear it in the first instance. Today, we filed our brief in chief in the case. You can read it here. The case is actually quite straightforward – the Quinn Bill cannot be legally modified by collective bargaining, and therefore officers must be paid their full benefit, regardless of any collective bargaining agreement allowing otherwise. While the Boston case was transferred to the SJC before any decision was rendered below, the Middlesex Superior Court did issue a finding consistent with our position last month in a case involving North Reading. You can read about the North Reading case at pages 11-13 of our brief.

We’re very hopeful that the SJC will agree with us and rule that police officers who have diligently pursued advanced education for the benefit of their employer and themselves should be paid their full Quinn Benefits. After the City of Boston files its brief and we reply, the court will set the case for oral argument. We hope that this will occur in the spring, and that we have a decision not long thereafter. Of course, we’ll keep you posted.

In Our Opinion..., Labor In The News

PUBLIC EMPLOYEES: THE NEW SCAPEGOATS

Alan Shapiro January 6, 2011

In an article published yesterday by former Secretary of Labor Robert Reich, entitled “The Shameful Attack on Public Employees,” Professor Reich rebuts the most common myths about public workers. Included among these myths are:

Public employees earn more than private sector employees
Public sector pensions are crippling the country
Bargaining rights for public employees have caused state deficits to explode

None of these statements withstand factual scrutiny yet they are repeated by many politicians and business leaders as if they were gospel. The question is “Why?”

Professor Reich convincingly argues that this attempt at pitting public v. private sector workers masks what is really happening in our country:

“[C]orporate executive pay … continues to rise as corporate profits soar”
Wall Street bonuses are higher than before taxpayers bailed out the financial industry
Hedge-fund and private-equity managers continue to pay 15% federal tax, while the rest of us pay close to or more than double that
“[T]he top 1 percent is now raking in a bigger share of national income than at any time since 1928, and paying at a lower tax rate.”

As Reich summarizes the situation:

Don’t get me wrong. When times are tough, public employees should have to make the same sacrifices as everyone else. And they are right now. Pay has been frozen for federal workers, and for many state workers across the country as well.

But isn’t it curious that when it comes to sacrifice, Republicans don’t include the richest people in America? To the contrary, they insist the rich should sacrifice even less, enjoying even larger tax cuts that expand public-sector deficits. That means fewer public services, and even more pressure on the wages and benefits of public employees.

It’s only average workers – both in the public and the private sectors – who are being called upon to sacrifice.

The Big Lie is a strategy that has been employed by some political figures over the last century to win over public opinion in an attempt at seizing power. The Nazis in Germany and Joe McCarthy here in the 1950’s are prime examples. As someone once said, “Never let the truth get in the way of a good story.” We need to make the current crop of political leaders accountable for what they say.

Alan H. Shapiro

Sandulli Grace, P.C.

Labor In The News, Sandulli Grace In The News

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.

Labor In The News, Sandulli Grace In The News

Superior Court Rules Police Officers Entitled To Quinn Bill Benefits

John Becker October 4, 2010

A Boston Police officer and a Wellesley police sergeant received good news this week when Superior Court judge Carol Ball ruled that the state Board of Higher Education had to certify their master’s degrees in criminal justice as eligible for benefits under the Quinn Bill educational incentive program. [The decision can be found here.] Boston Police Officer Miguelangelo Pires and Wellesley Sergeant Glen Gerrans, with the support of their unions, the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police, sued the Board of Higher Ed after the Board refused to allow them to earn Quinn Bill educational incentive benefits for their master’s degrees.

The case arose after the Legislature amended the Quinn Bill – which provides salary increases for police officers who earn advanced degrees in law and law enforcement – to tighten the academic requirements for the educational institutions where officers were earning their degrees. The new academic restrictions eliminated a number of schools from the list of eligible institutions, but a grandfather clause in the legislation stated that anyone enrolled in one of the previously-listed schools before January 1, 2004, could continue in that program and his or her degree would qualify for Quinn Bill benefits. Both Officer Pires and Sgt. Gerrans registered for classes in the Boston University master’s program in the fall of 2003, but they didn’t start classes until after January 1, 2004. After they completed their degrees in 2005, the Board of Higher Education refused to approve them. According to the Board, ‘enrolled’ meant ‘taking classes’, so in its view Pires and Gerrans weren’t enrolled in time to fall under the grandfather clause.

The officers approached their unions, who enlisted the help of Sandulli Grace attorneys Joseph Sandulli and Susan Horwitz, who attempted to negotiate with the Board of Higher Education to resolve this issue, which did not involve many officers. Ultimately, negotiations broke down and Sandulli Grace attorney John M. Becker filed a lawsuit on behalf of Pires and Gerrans against the Board of Higher Education. The officers argued that the plain meaning of ‘enrolled’ is to register and that the Board’s interpretation of enrolled as taking classes was inconsistent with common understanding and legal precedents. This week, a Superior Court judge agreed with the police officers and ruled that they were covered by the grandfather clause and so are entitled to Quinn Bill benefits for their master’s degrees. As the judge stated, “the meaning of ‘enrolled’ is limited to registration, and as such, reflects the intent of the Legislature to permit police officers who have registered for degrees in criminal justice programs certified by the Board prior to January 1, 2004 to benefit from their efforts toward obtaining further education.” Congratulations to Officer Pires and Sgt. Gerrans – their efforts toward obtaining further education are finally paying off.

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

City Of Boston Ordered To Pay Police Union Members $16.5 Million To Resolve Longstanding Labor Dispute.

John Becker August 23, 2010

It is a case that began way back in September 1994, when the City of Boston (“City”) first assigned Boston Municipal Police (“Municipal Police”) to patrol the Boston Housing Authority (“BHA”) housing developments without first bargaining with the Boston Police Patrolmen’s Association (“BPPA”). Now, 16 years later after protracted litigation, the City has finally agreed to pay damages owed to the Boston police officers who should have performed the work. The Massachusetts Division of Labor Relations (“DLR”) this week issued a Stipulated Order which instructs the City to pay $16.5 million to affected officers according to a method agreed to by the parties.

The Order puts an end to a saga that began even before 1994. The BPPA, which represents patrol officers employed by the Boston Police Department (“BPD”), had objected to the creation of another, second-tier police force in the City – the Boston Municipal Police – from the start. But when the City assigned Municipal Police to patrol the BHA developments, the BPPA filed a charge of unfair labor practice with the state labor board, then called the Labor Relations Commission (“Commission”). The charge accused the City of violating G.L. c. 150E, section 10(a)(5) when it subcontracted BPPA work to the Municipal Police without first giving the BPPA notice and an opportunity to bargain. A hearing officer of the LRC upheld the BPPA’s charge after a hearing (at which the BPPA was represented by Sandulli Grace Attorney Susan F. Horwitz) in 1996, and the full Commission affirmed the decision in 2000. See City of Boston, 23 MLC 133 (1996), affirmed by 26 MLC 144 (2000). The City then appealed to the Mass. Appeals Court, where the BPPA, represented by Sandulli Grace Attorney John M. Becker, in 2003 was again successful. See City of Boston v. Labor Relations Commission, 58 Mass. App. Ct. 1102 (2003). Finally, after the Appeals Court decision, the City removed the Municipal Police from the developments. The force was eventually disbanded, with some of its members transferring to the Boston Police Department.

Back in 1996 and 2000, the Labor Relations Commission ruled that the City must: return to the status quo before the violation (and remove the Municipal Police from the developments); make officers whole for any financial losses; and bargain before making any changes. The Commission ordered the City and the BPPA to attempt to determine the damages, but numerous meetings over many years were fruitless, largely because the City took the position that it owed no damages. As a result of this dispute, the parties asked the Commission for help. By 2010, the Labor Relations Commission had become the Division of Labor Relations, and scheduled a series of meetings with the parties. First the parties attempted to mediate a settlement, without success. Then, the DLR held three days of compliance hearings, where the BPPA was represented by Sandulli Grace Attorneys Amy Laura Davidson and John M. Becker, in an effort to establish the amount of damages. It was out of this process that the parties developed a series of stipulations that led to the Stipulated Order issued by the DLR this week.

The Stipulated Order distributes the damages in a fair and equitable manner among current and former members of the BPPA. First, the nine-year damages period is divided into quarters beginning October 1, 1994 and ending September 30, 2003. Then, each person who was an active member of the BPD and a dues (or agency fee) paying member of the BPPA on the first day of each quarter is entitled to a payment for that quarter, up to a maximum 36 quarters. (This means some of those entitled to payments will be retired or promoted into higher ranks.) Then it gets a little complicated. The total amount of damages ($16.5 million) is then divided by the total number of quarters worked by all eligible individuals, for the payment-per-quarter. Every individual will receive the payment-per-quarter for each quarter that he or she is eligible. Because the total number of individuals and quarters has not yet been determined, we don’t yet know the payment-per-quarter, so we can’t yet tell individuals how much they will receive. This will take a little time, but the BPPA and the City hope to have the process substantially completed in the coming months.

Throughout the years, the leadership of the BPPA has never stopped fighting for a fair result to bring back to their members in this litigation. With this week’s Stipulated Order, they’ve reached their goal.