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

HRD Now Reporting Scores In Whole Numbers

Sandulli Grace Staff May 1, 2009

Some good news today on the Banding case front, as officers who log onto the HRD website to see their exam scores are now being given whole number scores.  As far as we know, lists are not yet established.  We spoke with the Assistant Attorney General representing HRD in our lawsuit today, and she indicated that we should know within a week. 

Several people have called or written to inquire whether our suit prohibits HRD’s delay in producing lists.  They point to G.L. c. 31, §25, which requires that lists be compiled within six months of the administration of the exam (a statute that HRD itself raised to the Court in urging speedy action on the case).  The bottom line is “no.”  Our case only protested the banding of test scores.  Any challenge to the timing of the certification of lists would need to occur via a separate action.  Given that it is likely that lists will be released before any action could be heard, we are unaware of any present plans to file such an action.  However, keep tuned, as we realize that the patience of those waiting for lists cannot last forever.

As always, we’ll let you know as soon as we know.  To get notification of blog updates, enter your e-mail in the box under “Join our Mailing List” in the upper left corner of this (or any blog) page.

And a very happy May Day to all.  

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

Superior Court Grants BPPA and MCOP Request for Injunction – Orders HRD to NOT Band Scores on Police Promotional Eligibility Lists

Sandulli Grace Staff April 16, 2009

In a thoughtful, well-reasoned 11-page decision issued this morning, Massachusetts Superior Court Judge Bruce Henry ordered the Commonwealth’s Human Resources Division to NOT “band” scores on police promotional eligibility lists. Here’s the full decision. Judge Henry agreed with the arguments advanced by Sandulli Grace Attorneys Alan Shapiro and Bryan Decker that HRD must follow the statutory rule-making process before “banding” scores rather than issue them by “whole numbers.”  The decision does not inhibit HRD’s ability to issue promotional lists as Judge Henry expressly notes HRD can keep issuing lists under the traditional “whole number” format.  This decision represents a significant victory for the merit-based principles that serve as the foundation of the Civil Service system and a victory for the faith that the Boston Police Patrolmen’s Association, Inc. and Massachusetts Coalition of Police placed in this system.

As you may recall, HRD for decades listed promotional candidates in the order of the exam scores of police officers.  HRDs rules require the agency to rank scores in order of “whole numbers.” In other words, HRD ranked both 88.4 and 88.1 as an 88.  In February, HRD reversed this longstanding practice by announcing it would group scores among ranges, or “bands” of up to seven points as equivalent.  Sandulli Grace, PC, on behalf of BPPA, MCOP, and several individual police officers, filed suit.

Injunctions are rarely granted in Massachusetts.  Courts only can grant them if the plaintiffs have standing to challenge the practice, the plaintiffs seeking the injunction have a likelihood of success, and if an injunction will serve the public interest.  On all points, the Judge sided with our clients.  After summarizing the facts of the case, Judge Henry concluded that plaintiffs have “standing” to challenge HRD’s actions and thereby rejected one of the Civil Service Commission’s major arguments.  In his finding on standing, the Judge favorably cited the plaintiffs’ contention that banding will allow increased favoritism into promotional decisions:

The plaintiffs also contend that the banded scores will expand the candidate pool, thus increasing the potential that promotions will be based on favoritism and bias, rather than merit…  In addition, by creating a promotional system that provides fewer safeguards against favoritism and bias, the Division has potentially violated its duty to the plaintiffs.  Accordingly, I am persuaded that the plaintiffs have standing to maintain an action under G. L. c. 231A to challenge the banded promotional eligibility lists.

 Turning to “likelihood of success,” The Judge again sided with the BPPA and MCOP in concluding that plaintiffs have a “strong likelihood of success” on our claim that HRD violated its statutory obligation to conduct rulemaking prior to banding scores:

The practice of banding scores represents a significant departure from the way scores have been reported in the past.  While the proposed banding will be reported as whole number bands, the scoring is very different than what appears to have been intended by the requirement that scores be reported in whole numbers.  The scoring bands are a significant change in the manner of scoring and establishing the eligibility lists and that change should have been put in place using the procedure established by the Legislature for making a significant change in the rules. G.L. c. 31, §4. (emphasis added).

Turning to the issue of “harm,” the Judge found that an injunction will promote the public interest by upholding the integrity of the Civil Service system:

[A] determination of the issues raised by the plaintiffs will promote the public’s interest in guarding against political considerations, favoritism, and bias in governmental hiring and promotion … and ensuring that the system operates on ‘basic merit principles, as defined in G.L. c. 31, § 1, absent properly documented and supported bases for departing from such principles in particular cases. (citation omitted, emphasis added).

 

With regards to the harm claimed by HRD – that an injunction will delay promotions – the Judge agreed with what we’ve been saying all along – that any delay is caused by HRD.  HRD can let municipalities make promotions TODAY by issuing lists with whole number scores:

While the defendants assert that any delay in the implementation of the new scoring method will impact communities which are attempting to fill vacancies on their police forces, I do not so find.  There is nothing which prevents the HRD from issuing eligibility lists in the same fashion that it has done so for years.

 

Finally, the Judge issued his conclusion and order:

Conclusion

            For these reasons, I find that a preliminary injunction should enter enjoining the defendants from issuing eligibility lists for the promotion of police officers in score bands rather than in the manner in which it has been doing so until a final resolution of this matter on its merits.

 

ORDER

            Until a final resolution of this matter on its merits, the defendants are preliminarily enjoined from issuing eligibility lists for promotions of police officers in score bands rather than in the manner in which such score have been reported up to the time of this proposed change.

 

 

SO WHERE DO WE GO FROM HERE?

            Obviously, this decision affirms of the deeply-held faith that the BPPA and MCOP have long placed in the merit-based principles that form the cornerstone of the Civil Service system.  This faith was tested and ridiculed by the arrogance of HRD and the Civil Service Commission’s refusal to hear the case. 

            It is not 100% clear where this case will go from here.  As HRD has repeatedly stated, it is under a statutory obligation to issue lists within 6 months of the taking of the exam, i.e. by April 20.  We hope that HRD will abide by Judge Henry’s thorough decision and the law and issue those lists in a timely fashion with scores listed and ranked in WHOLE NUMBERS. 

As always, we will keep you posted…

In Our Opinion..., Labor In The News

Follow Sandulli Grace on Twitter – Best way to get Immediate Notification when Banding Decision is Rendered

Sandulli Grace Staff April 10, 2009

Judging from the comments we’ve been receiving, folks are understandably anxious to hear the Superior Court’s decision in our banding case.  Make no doubt about it, we’re anxious too.  If you want to be notified of a decision within minutes of when we get it, here’s two quick steps to take:

1. Join our mailing list – just fill in your e-mail address in the box in the upper left corner of this page.  By joining, you will get an e-mail every time a new blog entry is posted.

2. Follow “SandulliGrace” on Twitter.  Not going to be near a computer to get your e-mail?  No worries.  Now you can get notifications sent to your mobile device via our Twitter page.  Just go to http://twitter.com/SandulliGrace and hit “follow.”  You’ll be asked to set up an account, and make sure you enable mobile notifications.  Then you’ll be notified each time we “tweet,” which I promise we’ll do the minute we get any word from the Court.

As to the banding decision, we’ve no word yet.  Clearly, the judge is seriously considering the matter, and is taking his time to get it right.  That can only be good news for us, as we think HRD’s violations here are plain.  Like I said, as soon as we know, you will – as long as you’re signed up.

Sandulli Grace In The News

Tweet, Tweet – Sandulli Grace, Pc Starts Twitter Feed To Give Up To The Minute Labor News

Sandulli Grace Staff April 8, 2009

With our blog, www.sandulligraceonline.com, continuing to grow in popularity, we’ve now added a Twitter feed to enable us to provide even more up-to-date information regarding the union movement and matters of concern to employees.  Our Twitter account, found at http://twitter.com/SandulliGrace, allows us to alert you to recent events quickly, and on the go.  (Twitter is a popular “microblogging” site.  Here’s info about Twitter, http://twitter.com/about).  We expect to post 2 – 5 “tweets” a day, depending on the news.  We’ll tweet blog postings, news articles we run across, court and agency cases, etc.  Of course, we will continue to post substantive blog items regarding issues of concern to our clients.  Indeed, don’t be surprised to see us blog an item that first appears on our Twitter feed, once we have time to digest and respond fully to a legal development, case, or political item.

You can sign up to receive our tweets on your computer or mobile device, by going to http://twitter.com/SandulliGrace and hitting “follow.”  Once “following,” you can also send us ideas or information.  Or you can visit the blog and simply look at the recent Twitter entries on the front page.  Also, if you haven’t signed up to receive e-mail announcements of our blog entries, you can do so by entering your e-mail address in the “Join our Mailing List” box in the left hand column of this page.

Labor In The News, Sandulli Grace In The News

Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction

Sandulli Grace Staff March 31, 2009

Massachusetts Superior Court Judge Bruce Henry today ordered the Human Resources Division to NOT issue any eligibility lists for police promotion until after he rules on the request for a preliminary injunction submitted by Sandulli Grace attorneys on behalf of the Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and individual test takers.  As we noted last week, we have challenged the Civil Service Commission’s rubberstamping of HRD’s decision to band.  Judge Henry today heard argument on our request for an injunction, and indicated that he will issue a decision on the injunction request soon. 

 At the hearing, HRD, represented by counsel from the Attorney General’s office, continued to insist that banding is lawful in the face of HRD’s rule that says scores have to be put out in “whole numbers.”  “Bands 1 to 7 are whole numbers, just like 1 to 100,” was essentially what HRD contended.  Attorney Shapiro responded that, under that logic, the bands could be 1 to 2 (pass/fail), 1 to 1,000 (scores broken to tenths of a point), or 1 to 10,000 (scores broken to hundredths of a point).  In other words, the Commonwealth contends that its rule has no substantive meaning.

After the Judge ordered that no lists be established utilizing banding, counsel for HRD complained that some unnamed municipalities could lose funding for promotions if they are not made quickly.  Sandulli Grace’s Alan Shapiro quickly pointed out that HRD is free to issue lists based on the 10/08 tests – as long as it follows its own rule and lists the scores by whole numbers from 1 – 100. 

As always, we’ll keep you posted.

 

Labor In The News, Sandulli Grace In The News

“Massachusetts Lawyers Weekly” Taps Sandulli Grace Attorney For Expert Commentary On Confidentiality Clause Case

Sandulli Grace Staff March 30, 2009

Sandulli Grace attorney John M. Becker provided expert commentary in a recent front page article in the March 23, 2009 edition of Massachusetts Lawyers Weekly.  MLW is the leading news publication in the state for the legal community.  Attorney Becker commented on the recent decision of the U.S. Court of Appeals for the First Circuit, Northeastern Land Services, Ltd. v. National Labor Relations Board, — F.3d —-, 2009 WL 638248 (2009). In this case, the First Circuit upheld NLRB’s conclusion that the employer’s discharge of an employee over an alleged breach of confidentiality was improper.   At the heart of the case was the employer’s rule that employees sign a confidentiality agreement that made employees promise not to discuss wages and terms of employment with others.  In other words, the employer prohibited employees from talking with each other about their compensation, to compare how they were being paid to other employees, which essentially prevented employees from networking to improve their working conditions.  Before he was fired, the employee became involved in a pay dispute with his employer which he then discussed with a third party.  Ultimately, the employer fired the employee, charging him with violating the confidentiality rule.

The employee filed an unfair labor practice charge with the NLRB, alleging that the confidentiality rule had the effect of intimidating and coercing employees in the exercise of their right to engage in collective activity.  Even though no union was involved in this case, the NLRB found (and the First Circuit agreed) that the confidentiality rule was so overbroad that it violated the National Labor Relations Act, which grants employees the right to organize and engage in collective action, no matter how the rule was applied.  The NLRB concluded that the discharge of the employee for discussing his wages and benefits was improper.  The decision serves to remind employees that they have a right to engage in concerted action about their wages and benefits, even if they elect not to do so under the aegis of a union.

In commenting on the case in “Massachusetts Lawyers Weekly”, Sandulli Grace’s Becker noted, “[The decision recognizes] that as employers become more sophisticated in ways to keep unions out of their shops, the board has to be able to recognize that and protect the rights of employees to organize, even if situations like this one where it’s not obvious that there’s a union issue.”  Becker disagreed with the employer’s attorney’s prediction of dire consequences from the decision.  On the contrary, he stated, “The court itself discusses the possibility of a more narrowly fashioned confidentiality agreement that reaches legitimate goals the employer might have without being overbroad.”      

Labor In The News, Sandulli Grace In The News

MCOP and BPPA File For Injunction to Stop Banding

Alan Shapiro
Alan Shapiro March 27, 2009

Today, March 27, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, jointly represented by Alan Shapiro and Bryan Decker of Sandulli Grace, filed a lawsuit in Suffolk Superior Court to enjoin the Human Resources Division from promoting with banded lists.

The Court set a hearing on the injunction for Tuesday, March 31, at 2:00 p.m. in Suffolk Superior Courthouse, Room 916.

The arguments are essentially the same ones made, and rejected, before the Civil Service Commission.  HRD has a rule saying it establishes lists with “whole numbers.”  We all know that means the scores are supposed to be in a 1-100 format.  If they want to start banding, they have to change their rules.  The legal way to do that is to follow the procedures in the Civil Service law for rule-making. 

We want to thank all of you who have shown your support over these past weeks for our efforts to preserve a merit-based, civil service promotional system for police officers (and, by extension, others) in Massachusetts.

Read the complaint and the memorandum 

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

Mass SJC Grants Another Victory To Boston Police Patrolmen’s Union In Long-Running Overtime Battle: City’s Unilateral Shortchanging Of Overtime Pay Violates State Law

Sandulli Grace Staff March 16, 2009

The Massachusetts Supreme Judicial Court, the state’s highest court, today upheld a 2006 ruling of the state Commonwealth Employment Relations Board (CERB) that the City of Boston unlawfully reduced the overtime compensation of Boston Patrol Officers without first bargaining with their union, the Boston Police Patrolmen’s Association, Inc. (BPPA).  The SJC and CERB ordered the City, which made the unlawful change in July 2002, to “make whole” the patrol officers represented by the BPPA – which likely will cost the City several hundred thousand dollars. 

Today’s SJC decision caps lengthy litigation regarding the City’s repeated violation of state and federal laws concerning overtime pay to Boston police officers.  In 2000, more than 800 Boston patrol officers, represented by Sandulli Grace Attorneys Bryan Decker and John Becker, sued the City in federal court for the City’s outright refusal to pay overtime as required by the federal Fair Labor Standards Act (FLSA).  The federal court agreed, and the City ultimately paid officers almost $700,000 plus attorney’s fees.  In July 2002, while the federal litigation was ongoing, the City unilaterally adopted the FLSA’s “partial public safety exemption,” which lowers federal overtime payments to police officers and firefighters.  While the City’s unilateral adoption of this partial overtime exemption was permitted by the FLSA, it was not by state law.  Under state law, Chapter 150E of Massachusetts General Laws, a municipal employer must bargain with a union before changing the wages of employees represented by a union.  The BPPA immediately demanded to bargain about this change.  The City refused, even though the parties were negotiating a new contract, and instead implemented the change.  On behalf of the BPPA, Sandulli Grace Attorneys Bryan Decker and Patrick Bryant filed an unfair labor practice charge with the state labor relations agency.  CERB ruled in the BPPA’s favor, and the City appealed. 

The SJC upheld the CERB decision on all points, finding that:

 

  • “the city was obligated under G.L. c. 150E to bargain in good faith with the union regarding” the July 2002 decision to adopt the partial public safety exemption;
  • that the City further violated the law by refusing to provide the BPPA with information it requested;
  • and that the proper remedy was for the city to “[m]ake whole affected employees for the economic losses they may have suffered as a result of the [c]ity’s decision to adopt” the partial public safety exemption. 

With regards to the remedy, a conservative estimate is that the City reduced overtime pay to officers by at least $100,000 per year by making the unlawful change.  Damages will run back to July 2002, and the BPPA’s members are entitled to interest.

BPPA President Thomas Nee welcomed the Court’s decision.  “We’re extremely gratified that the Supreme Judicial Court agreed with our position in this case.  The FLSA is designed to protect the rights of people who work more than 40 hours per week and ensure that they are properly compensated.  The Court affirmed that this applies to police officers as well.”

Sandulli Grace Attorney Bryan Decker, who argued the case to the SJC, said, “The City continuously, and improperly, claimed that it couldn’t comply simultaneously with the FLSA and its obligations under state law.  The SJC rejected this argument as bogus, and upheld that workers are entitled to the protections of the FLSA and their Union.  Given the state of our economy, this decision reminds employers that a desire to save money is not a defense to violating legal obligations.  Hopefully, municipalities will learn that the only way through these challenging times is to treat unions and employees as partners rather than problems.”

READ the SJC decision at:

http://www.socialaw.com/slip.htm?cid=18853&sid=120

In Our Opinion..., Labor In The News

The Band Plays On: Civil Service Commission Abdicates Oversight Role To Human Resources Division – Refuses To Investigate Decision To “Band” Promotional Test Scores

Sandulli Grace Staff March 13, 2009

The Civil Service Commission today rejected appeals filed by Sandulli Grace on behalf of the Boston Police Patrolmen’s Association and the Massachusetts Coalition of Police (and companion cases filed by the Boston Superior Officers and IBPO) challenging the Human Resource Division’s decision to start “banding” scores from civil service promotional exams when placed on eligibility lists.  Specifically, the Commission rejected the straightforward argument that HRD violated its own rule requiring that exam scores be listed “in whole numbers.”  Instead, Civil Service decided that scores expressed in bands, each containing up to 8 points, are in “whole numbers” because the bands are numbered 1 through 7.  When the HRD attorney made this ridiculous argument in the civil service hearing room, members of the crowd, including one sitting commissioner, audibly laughed.  Now, apparently, it is the law, contradicting the old adage that an argument should first have to “pass the laugh test.”

            In one decision the Commission ruled that individual offers are not “aggrieved” because they have not suffered “actual harm” – YET!  Reading Chapter 31 (Civil Service law) to only remedy past wrongs, the Commission ruled that since no one has been yet harmed by banding, the appeals are untimely.  Of course, it was our hope and desire to AVOID a situation where individuals are promoted based on banding only to have those promotions undone through an after the fact appeal.  (Indeed, Counsel to HRD, while claiming that our appeal was not ripe, simultaneously argued that the Commission could not go back and undo initial hiring decisions already made because of the chaos that would result.)  Unfortunately, the Commission punted rather than take the issue on headfirst.

            In the second decision on our request for an investigation (as opposed to an appeal), the Commission rejected our argument that HRD had violated its own rule.  Although our request only sought to require HRD to follow proper rulemaking regarding banding, the Commission nonetheless wrote a lengthy exegesis on how terrific banding really is, citing law review articles and unrelated dicta in federal civil rights cases.  Amazingly, the Commission quoted Massachusetts Federal Judge Saris, who opined in a decision that “banding … seems consistent with” civil service.  This is amazing because Judge Saris noted in the same case that “the attorneys have not briefed the issue,” and that “HRD has expressed some legal uncertainty as to whether the statutory framework in Massachusetts allows banding.”  Without a hearing, rulemaking, or any other legal proceeding, HRD has now gone from questioning the legality of banding to making it the law of the land.

            As to WHY HRD’s decision to band scores does NOT violate the “whole number rule,” the Commission held that bands “are whole numbers.”  By this logic, HRD could follow its “whole number” rule by scoring exams 1-100, 1-7 (as in banding), or 1-10,000 (as it did when it used to break down scores to the hundredth of a point).  In other words, the rule has no meaning.  This would be comic were it not for its effect on the careers of literally thousands of police officers who arduously studied, sacrificing earnings and time with their families, expecting their efforts to be scored by the rules.

            A stern dissent by two of the five Commissioners (Henderson and Taylor) pointed to the time and effort put in by test-takers with the expectation that their tests would be scored as they have been in the past: in whole numbers of 1-100.  They disagreed with the majority and would order the relief requested by our clients:

That the Commission order HRD to comply with its present rules and establish eligible lists from the October 2008 police promotional examinations in whole numbers and not utilize banding or any other method. 

To the extent that HRD desires to amend PAR. 07 (4)[the “whole number” rule], the Commission should then order that no such amendment become effective unless and until HRD complies with the statutory requirements of G.L. c. 31, §§ 3 and 4.

            Like the indulgent parent admonishing the wayward teenager taking the family Mercedes out for a spin to “be careful,” the Commission wagged a finger at HRD that, because of the enormous new power it was conferring on appointing authorities, it had better “embark[] forthwith on an inclusive, transparent selection process to ensure effective implementation by municipalities of post-banding selection procedures.”  That was what the Legislature created under the statutory “2N +1 Rule,” until HRD and Civil Service saw fit to destroy it.  But we need not worry, because the decision tells us that the Commission “will not stand idly by if presented with competent evidence that unlawful favoritism was the driving force behind a particular promotional appointment.”  This gives little comfort as we have watched Civil Service stand idly by while HRD makes up its own rules and the agency abrogates its statutory oversight role.

            The role of the Civil Service Commission as a watchdog against favoritism and overreaching by HRD is called into question when Civil Service refuses to demand that HRD conduct rulemaking in the open – AS IT IS REQUIRED TO DO. 

            Needless to say, we are reviewing our options with our clients.  Stay tuned…