LERA hosts dinner meeting regarding Veteran’s Benefits and Jobs. The Labor and Employment Relations Association is hosting a dinner meeting regarding veteran’s benefits and jobs on Thursday March 19, 2008. The meeting is at;
NSTAR Electric & Gas
One NSTAR Way, (Please use EAST ENTRANCE)
Westwood, MA 02090
781-441-8773
Social Hour @ 5:30 PM
Dinner @ 6:30 PM
Tickets: $50/Member • $60/Non-Member • $25 student
The Civil Service Commission today held a pre-hearing conference in the “banding” cased filed by Sandulli Grace on behalf of the Mass. Coalition of Police (MCOP) and Boston Police Patrolmen’s Association (BPPA). At the hearing, Sandulli Grace attorneys Bryan Decker and Alan Shapiro, along with other appellants, contested the issues with counsel for the Human Resources Division (HRD) for almost two hours. At the end of the hearing, Civil Service Commissioners Bowman and Taylor took the action under advisement, promising to quickly rule on what action the Commission will take, if any.
From the beginning of the hearing, HRD counsel made clear the agency’s position that it is entitled to make whatever rules it would like regarding test administration and grading, and that it does not need to justify its decision to any other party. The scope of HRD’s hubris was revealed when Commissioner Bowman asked counsel to respond to our argument that “banding” scores violates HRD’s own rule requiring that scores “be presented on eligible lists in whole numbers.” The HRD attorney replied that the bands, expressed as “Band 7,” “Band 6,” etc., are “whole numbers.” The retort drew audible laughter from the crowd in the hearing room. Atty. Shapiro replied that, presumably, the rule was put into place when HRD went from establishing lists with scores expressed in one or two decimal points to rounded off whole numbers. Therefore, under HRD’s logic, HRD could comply with its rule by expressing scores in a system of 1 to 1,000 or 1 to 10,000, and the rule would mean nothing. Atty. Decker added that, with this logic, HRD could make the test results “Pass-Fail,” just by assigning only scores of 1 or 2. HRD had no real counter to these arguments but continued to insist that it could do whatever it wanted in establishing lists, provided it was not arbitrary or capricious.
Under questioning from Commissioner Taylor, HRD counsel admitted that HRD had consulted with the chiefs of police regarding banding. When Commissioner Taylor asked if the unions representing police officers were consulted, she replied they had not, suggesting there were too many of them. Sandulli Grace clients MCOP and BPPA, who together represent almost 5,000 police officers, were never consulted by HRD. It became rather obvious whom HRD viewed as more important in this process.
On the larger issue, the Sandulli Grace attorneys contended that banding flew in the face of both the statutory “2N + 1” system, and the overall intention of a civil service system. Quoting from a 2005 Connecticut Supreme Court case which rejected any deviation from the “2N + 1 system,” we contended that banding would conflict with the overall design of a governmental civil service system:
“to secure more efficient employees, promote better government, eliminate as far as practicable the element of partisanship and personal favoritism, protect the employees and the public from the spoils system and secure the appointment to public positions of those whose merit and fitness have been determined by proper examination”
Specifically, MCOP and BPPA asked the Commission to take the following actions:
In response to questioning from Commissioner Bowman, HRD did indicate that it will not be prepared to establish eligibility lists until the end of March at the earliest even absent the appeal.
In perhaps the most telling comment, when asked about the practicality of appointing authorities in large cities having to wade through dozens of names to make a single appointment, the HRD attorney replied that when HRD posted a job, hundreds of people applied. Here we see again the ultimate goal of HRD and its friends among the appointing authorities: the conversion of a merit-based civil service system to a private sector unregulated model.
We now await the Commission’s decision on what the next step will be. Stay tuned.
The Supreme Judicial Court of Massachusetts, as we’ve indicated frequently on this blog, has issued a number of decisions that are unfavorable, and occasionally hostile, to public employees in general and public safety employees in particular. However, in Retirement Bd. of Salem v. Contributory Retirement Appeal Bd, SJC-10215 (February 24, 2009), the SJC granted a huge victory to public employees.
In this case, a public employee suffered a disabling heart attack upon being told by her supervisor that her job was being eliminated in a few months. After work and within one hour of hearing this news, the employee suffered a heart attack. She was briefly hospitalized. She never returned to work. Instead, she immediately filed for an accidental disability retirement, which generally provides 72 percent of the employee’s recent salary, pursuant to M.G.L. c.32, §7.
A public employee who suffers a mental or emotional disability as a result of a “bona fide personnel action” (i.e., a legitimate transfer, demotion, etc) is ineligible for accidental disability retirement. Here, the Retirement Board denied benefits because it claimed that the heart attack arose from news of a bona fide personnel action. The SJC disagreed, ruling that the physical, as opposed to emotional/mental, injuries that result from a bona fide personnel action remain eligible for accidental disability retirement. In other words, Chapter 32, §7 denies accidental disability retirement benefits to employees who, for instance, suffer a permanent psychological disability as a result of layoff news, but does not deny benefits if the exact same news results in a permanent physical disability.
In the decision, the SJC also affirmed that disabling injuries, to qualify for accidental disability retirement, must occur while working and not merely “at work.” In other words, the employee likely would not have been eligible for benefits had the heart attack resulted from learning at work about a family tragedy. The SJC concluded here that the employee’s injury arose during the performance of work duties given that she was ordered to participate in a meeting with her supervisor.
The Civil Service Commission has scheduled a pre-hearing conference for the appeal filed by Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt of the decision of the Massachusetts Human Resources Division (HRD) to band scores from civil service promotional exams when placed on eligibility lists. The Commission, apparently heading our call for a speedy resolution of this matter, has scheduled the pre-hearing for next Tuesday, March 3, 2009 at 10:00 a.m. Here’s the notice.
At the pre-hearing, we will press our request for a speedy full hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced. Stay tuned…
Today’s Boston Globe has an article about the banding controversy. You can find the article here. Several of the comments in the article not only are inaccurate but also revealing. The Mass. Chiefs want more leeway in promotions:
“It’s no different than the private sector,” said A. Wayne Sampson, a retired Shrewsbury chief and executive director of the Massachusetts Police Chiefs Association. “There are a lot more factors involved in picking part of your command staff than just the ranking of the test.”
The civil service system is not supposed to be like the private sector. In the private sector, you can hire whoever you want for a job, provided you don’t discriminate in some illegal way (race, age, gender, handicap, etc.). You want to give your brother-in-law the vacant position in Sales, no problem. Your old high school chum is out of work and you want to help him out, be my guest. In the private sector, you only answer to the owners of the enterprise. In 1885, Massachusetts became the second state (New York was first a year earlier) to implement a civil service system. The goal was to eliminate cronyism, favoritism, and especially political considerations from hiring and promotion in the public sector. Sadly, some police chiefs apparently prefer to turn the clock back to the 19th century.
Some also believe, inaccurately, that banding will allow for greater diversity:
The move could also help chiefs diversify their command staff. Over the years, many department leaders have complained that the civil service exam was a stumbling block for minorities trying to move up.
“If [a minority candidate] were somewhere in the middle and someone else was slightly ahead of them, that’s the factor you could use,” said Brockton Police Chief William Conlon, whose department has no minorities in supervisor positions. “The department does need diversity.”
While diversity is undoubtedly a worthwhile goal not only in police departments but in all professions, banding does not necessarily lead to that result. If Chief Conlon intends to select a minority candidate over others within a band solely on the basis of race, he will be violating civil service precedent as well as state and federal discrimination law. In MAMLEO v. Abban, the Mass. Supreme Judicial Court rejected the Boston Police Department’s efforts to promote sergeants solely on the basis of a desire to improve racial diversity. Only where a court has found a history of discrimination and entered a remedial order can a police department use race as a factor in promotion decisions.
Ironically, historians have noted that civil service systems have worked to promote diversity, not stifle it:
“One consequence of U.S. civil service policy has been to provide a notable route for upward mobility, especially for women and blacks. “
U.S. History Encyclopedia, cited in http://www.answers.com/topic/civil-service.
Today’s Globe article, perhaps unwittingly, explains why our clients, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, have undertaken the effort to restore whole number numerical scoring to the promotional examinations.
On Friday, February 13, 2009, the Massachusetts Human Resources Division (HRD) suddenly informed police officers around the state that HRD will start “banding” scores from civil service promotional exams when placed on eligibility lists. Because this radical shift in the promotional process will make it much easier for cities, towns and chiefs to use favoritism as a basis for promotions, Sandulli Grace, PC, today filed papers to restore basic merit principles. Attorneys Alan Shapiro and Bryan Decker today challenged the proposed banding by filing an appeal and request for speedy hearing with the Civil Service Commission on behalf of Sandulli Grace clients Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and Boston Patrol Officer (and BPPA Treasurer) Tom Pratt. You can read the appeal in its entirety by clicking here.
HRD rules require the state agency to list police officers on promotion lists in order of the “whole number” score they received on the exam. Thus, an officer who scored an “88” is listed ahead of an officer with an “87.” If the chief wants to promote the lower-ranked officer, he must justify this bypass of the higher-ranked officer in writing to HRD, and the higher-ranked officer can file a bypass appeal with the Civil Service Commission. The Chief then has to prove that there is reasonable justification for the bypass and that the bypass was and not arbitrary or capricious. This vetting and appeal process ensures that the chief must be prepared to justify a decision to promote a lower–ranking candidate to an independent third party.
A bypass does not occur, however, when the Chief selects one of two or more officers with the same score. In other words, if three officers scored “87” on the exam and the Chief selects one of them, then the other two officers have not been bypassed under the law and the other two officers have no automatic right to file a case with the Commission. Except for large communities, ties are infrequent under this established promotional process.
HRD’s new policy on “banding” promotional lists dramatically changes the promotional process in a way that explicitly leads to more unfettered decision-making by the Chief. The new banding results in large numbers of officers being “tied,” even when they score as much as seven points apart on the exam. For example, the bands HRD currently proposed for the Sergeant are as follows:
2008 Statewide Police Sergeant Exam
Legend for Score Bands
(Includes General Average Plus Preference)
6=92.92-100
5=85.84-92.91
4=78.76-85.83
3=71.68-78.75
2=66.00-71.67
1 = Failed Written and failed overall exam
Officers are automatically “tied” with everyone else in their band. Under banding, the chief can promote any officer within the band without having to justify the decision to anyone. You got a 99 and the Chief’s coffee buddy got a 93? Guess what, you’re tied. And the Chief doesn’t have to justify his decision to promote his buddy to anyone.
We believe that it is obvious that banding increases the illegal influence of favoritism and bias in promotional decision making. Unfortunately, HRD prevented police unions and our firm from stopping this dramatic change because HRD refused to hold a hearing demanded by G.L. c. 31 prior to adopting this new regulatory policy. HRD’s neglect of its statutory duty forms the basis of the appeal filed today – the failure to follow c. 31 and its own rules prior to implementing such a drastic change.
Because it is likely that eligibility lists with banded scores will appear in civil service communities throughout Massachusetts in a matter of weeks, we have asked that the Civil Service Commission conduct a speedy hearing, so that the Commission can determine the validity of this new process before any promotions based on banding are announced. As always, we’ll keep you posted.
Massachusetts public employers cannot discriminate against employees who engage in “concerted, protected activity” under G.L. c.150E, the public sector collective bargaining law. In order to prevail in an unlawful discrimination case, the aggrieved employee or union must show that (1) the employee engaged in protected, concerted activity under c.150E; (2) the public employer knew of this activity; (3) the employer took “adverse action” against the employee; and (4) this adverse action was motivated by a desire to penalize or discourage the concerted, protected activity.
In City of Holyoke, MUP-05-4503 (January 9, 2009), a member of the City’s police union was reassigned from a detective to a patrol position just two months after filing a grievance against the City. The police union filed a charge, claiming that the reassignment retaliated against the officer for filing the grievance. Based on the above test, CERB ruled that the union provided ample evidence of the first two elements, but failed to do so on the latter two. The filing of a grievance counts as concerted, protected activity under c.150E, because the grievance, even if from an individual attempts to enforce a collectively-bargained agreement. The City agreed that it knew about the grievance, thereby meeting the second criterion. However, the Commission ruled that the Holyoke Chief’s involuntary reassignment of the grievant from the detective to uniform patrol did not constitute an “adverse action.”
CERB acknowledged that a reassignment to a less preferable position or to a position with reduced benefits is an “adverse action.” However, the union’s argument that the transfer constituted discrimination was complicated by the grievant’s stated desire to leave the detective division (although he requested a transfer back to narcotics, where he previously worked) and his mediocre performance in the detective and narcotics divisions (at least as viewed from the Chief’s admittedly biased perspective). In somewhat similar circumstances, the U.S. Supreme Court ruled that a personnel action is adverse if “a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge [ ].” Burlington Northern & Santa Fe Railway v. White, No. 05-259 (June 22, 2006).
CERB further rejected the union’s argument that the reassignment was adverse given subsequent, mild taunts of co-workers. CERB dismissed these comments (such as resetting the screensaver to mock the grievant’s new assignment) as mere jocular, “subjective opinions.” Given that the opinion of other officers is highly relevant to determine whether the reassignment may be reasonable viewed as adverse, CERB’s finding here is questionable. CERB may just have been disarmed by the deprecating tenor of the other officer’s comments.
As to the last criterion, the Commission ruled that the two-month gap between the grievance and the reassignment was insufficient to establish even an inference that the Chief’s motive was retaliatory.
In the future, unions and employees aggrieved by a change from a special assignment may wish to emphasize more concrete differences between the positions, such as the flexible schedules, increased overtime opportunities, and the like. Further, they may wish to produce independent evidence that the grievant is capable of performing the job that he or she seeks.
A recent decision by the Commonwealth Employment Relations Board (CERB, formerly known as the Labor Relations Commission) clarified when employers are supposed to respond to information requests and when labor organizations are supposed to file unfair labor practice charges about the employer’s incomplete response. Generally, public employers in Massachusetts have a duty to furnish information requested by a union, when the information is relevant and necessary for the union to prepare for bargaining, grievances, and administering a collective bargaining agreement. When a union believes that an employer’s response is lacking, the union has six months from the date it received the employer’s response to file a charge of prohibited practice with the Division of Labor Relations (DLR).
In Cambridge Public Health Comm’n, MUP-02-3605 (January 21, 2009), the union made a series of information requests for a report about restructuring the employer’s operations. (The Union requested other materials). The Employer first denied the request in a February 2002 letter. The Union renewed its requests in later months, resulting including a request in October 2002. The Union then filed a charge with DLR in November 2002.
CERB ruled that the clock started ticking on the Union’s six-month statute of limitations when the employer denied the request in February 2002. As a result, the Union’s November 2002 was too late to challenge the February 2002 letter. However, the Union’s subsequent request for the same information, followed by a subsequent refusal by the employer, “restarted” the six-month clock ticking:
[t]hat the Association had made prior requests for the same information and that the Alliance previously had refused to provide the information does not forever relieve the Alliance of its statutory obligation, because the Association asserted in its [subsequent] letter that it still needed the information and provided reasons in support of that assertion.
Just like every paycheck triggers a new and different statute of limitations under the famed Lily Ledbetter Fair Pay Act (discussed here: http://blog.aflcio.org/2009/01/29/lilly-ledbetter-watches-as-obama-signs-fair-pay-act/), CERB effectively ruled that every new request for information also triggers a new and different statute of limitations under c.150E, so long as the information is relevant at the time of the new request.
There are a few interesting asides about this decision. First, CERB apparently will not rule upon an employer’s obligations to provide information if the request does not specifically cite G.L. c.150E – the law CERB is charged with administering. Here, CERB ignored requests that only cited the Public Records Law, G.L. c.66, §10. Second, this case illustrates the slow pace of decisionmaking by CERB. This case was filed in November 2002. Despite the decision discussed here, this dispute is far from resolved. CERB’s decision dealt only with the timeliness issue and not with whether the employer lawfully refused to provide the restructuring report in the first place.
A common misperception about the duty of fair representation is that Unions cannot favor one set of bargaining unit employees over another. The reality, in fact, is the opposite, as illustrated In Anderson v. Commonwealth Employment Relations Board 07-P-1286 (January 23, 2009).
First, here is a brief overview the duty of fair representation. Labor organizations owe a duty of fair representation, commonly known as “DFR,” to employees in the bargaining unit. This DFR is imposed on Unions in exchange for their exclusive authority to bargain about terms and conditions of employment on behalf of bargaining unit employees. The DFR requires a duty of fair representation, not a duty of total or unwavering representation. Unions are not required to exhaust all resources on trivial grievances that affect few employees, at the expense of more meritorious grievances that may be relevant to most employees.
Unions can fulfill their duty, generally speaking, by rendering a reasonable and informed decision about a grievance or bargaining issue that is based upon how the Union views the merits of the issue. Unions violate their duty when they make decisions primarily based upon irrelevant aspects of the individual employee(s). In other words, the Union may not discriminate against non-Union members or members who do not pay dues or support the Union, and may not act arbitrarily. Beyond those minor limitations, Unions have discretion on how to process grievances and what items to include within a collective bargaining agreement.
In Anderson v. Commonwealth Employment Relations Board, the Massachusetts Court of Appeals affirmed that Unions may, if not must, favor one set of employees over another during the collective bargaining process. The contract negotiated by the Boston Firefighters Local 718, International Association of Firefighters, AFL-CIO, CLC provided additional sick leave to each firefighter on the payroll as of September 2001. More than 90 firefighters who retired before that date sued Local 718, complaining that the differential treatment for recent retirees violated the duty of fair representation. The Appeals Court disagreed:
This duty does not require a union to treat each member identically. A union has room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake. That fairly generous scope for inaction is exceeded when the union’s conduct is arbitrary, discriminatory, in bad faith, or grossly negligent.
The Court also affirmed that Unions do not necessarily owe a duty of fair representation to retirees. In conclusion, the Court agreed that the CERB properly dismissed the claim.
Contrary to popular belief, Massachusetts courts are not the most liberal in the country. The courts can be downright conservative…when it comes to the rights of public employees, especially police officers. This observation is underscored by comparing treatment of police union speech in a recent case from Nebraska Supreme Court with a 1994 case from the Massachusetts Supreme Judicial Court. After all, SJC Justice Oliver Wendell Holmes, prior to serving as a Supreme Court Justice, famously quipped that police officers “may have a constitutional right to talk politics…he has no constitutional right to be a policeman,” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892).
First, we provide a brief, simplified overview of protected speech. The right of public employees, especially police union officials, to speak their minds is not absolute. While the First Amendment is commonly thought to provide a “right to free speech,” the realities are far different. The First Amendment simply protects citizens from government interference in the exercise of speech. It does not, for instance, prohibit private employers or businesses from restricting speech of employees. Where public employees are involved, the employer is the government. The natural assumption is that public employees enjoy enhanced free speech protection compared to private sector employees. While this may theoretically be true, courts can narrow free speech rights for public employees.
Public employees generally have the right to free speech when their speech relates to a “matter of public concern.” Unfortunately, judges often do not view terms and conditions of employment as “matters of public concern.” Some complaints about internal corruption or incompetence, for instance, have been classified as not matters of public concern, and hence not entitled to free speech protection. Even when the public employee is speaking in his or her role as a Union official (and not on behalf of his or her pubic employer), the speech is protected only if the benefits of unrestricted speech outweigh any disruption experienced by the government employer as a result of the speech. As the U.S. Supreme Court stated:
The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.
Garcetti v. Cabellos, 47 U.S. 410 (2006) (citations omitted).
Public sector labor laws frequently grant additional protections to employee speech. Public employees generally are free to speak their mind as long as they are speaking about terms and conditions of employment. Unfortunately, the Massachusetts Supreme Judicial Court years ago narrowed this protection for certain public employees. In Plymouth Police Broth. v. Labor Relations Com’n, 417 Mass. 436 (1994), the SJC agreed with the Labor Relations Commission (now Commonwealth Employment Relations Board) that a union official had no statutory speech protections for an internal email to union members about a dispute over vaccinations described the local board of selectmen as “pigs, cheats, liars, whatever!!!!”
In contrast to the SJC’s crabbed view of protected public employee speech, in Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha (January 2, 2009) (http://www.supremecourt.ne.gov/opinions/2009/january/jan2/s07-1245.pdf), the Nebraska Supreme Court agreed that a municipality violated state labor law for disciplining a police union official as a result of a union article that criticized City procedures for 911 calls and characterized city officials as a “bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” The police chief concluded that the article constituted “gross disrespect and insubordination,” and – surprise! – “conduct unbecoming an officer,” that old disciplinary chestnut. It should be noted that the official wrote the article after the Chief investigated the union president for allegedly advocating that union members ignore department protocols. (These charges were unfounded and the Chief was forced to exonerate the union president). Initially, the Chief terminated the article’s author. He later agreed to reduce the termination to a 20-day suspension and a reassignment. The Union then filed an unfair labor practice charge with a state labor relations agency, claiming that the disciplinary action violated state labor law’s protection for employees who engage in protected activity.
The Nebraska Supreme Court ruled that the City’s actions may be upheld only if the Union official engaged in “flagrant misconduct,” which it defined as “statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer’s ability to accomplish its mission, or (3) disrupt discipline.” The state labor relations agency found that the Union author’s conduct did not rise to this level and therefore qualified as protected speech under state law. The agency described the article’s statements as:
rhetorical hyperbole, which would not be reasonably believed by any reader as accusing of any crime or wrongdoing. They were intemperate, immature hyperbole, but they were nonetheless protected union speech in the context of the newsletter.
The Nebraska agency also found no evidence that the article caused the City to suffer any diminution in respect or operational efficacy. It doubted “the remarks would reflect poorly on anyone other than [the article’s author] and the newsletter’s editor.” The agency ordered the Department to buy an ad in the Union publication and state that the City recognizing the rights of union members to engage in protected activity. The Nebraska Supreme Court thereafter affirmed the agency’s decision, citing the principle of agency deference. The Court however took a swipe at the police union by suggesting that the Court may have ruled in favor of the City had the Court, and not the agency, reviewed the case in the first instance.
