Early Wednesday morning, more than 70 percent of the 100 production and technical workers at Boston’s FOX25 (WFXT) television station overwhelmingly voted to join Local 1228, International Brotherhood of Electrical Workers. Local 1228 is one of the largest unions in New England representing workers in the broadcast industry, and has been a client of Sandulli Grace since the firm was founded by Joe Sandulli over thirty years ago. Local 1228 represents workers at television and radio stations throughout New England, and has long represented technical and production workers at WBZ (CBS), WCVB (ABC) and WHDH (NBC) in Boston. With the addition of FOX25, Local 1228 now represents employees at all 4 Boston network affiliates.

In early March, Local 1228 petitioned the National Labor Relations Board to confirm that a majority of technical employees at FOX25 wanted a union. Once the station learned of the worker’s intent to unionize, it engaged in a campaign against unionization through memos, staff meetings, and one-on-one sessions. To the station’s credit, while it urged workers not to unionize, it did not appear to engage in any illegal efforts to suppress the workers’ rights. Despite the station’s efforts, the workers remained united in their desire to join together. In addition, Local 1228 and the workers remained in constant contact, quickly responding to any anti-union memos with the facts about the benefits of unionization.

After agreeing with Local 1228 and Fox on the job titles and employees who get to vote, the NLRB scheduled the election for April 8. The bargaining unit is comprised of exactly 100 employees, including engineers, master control operators, editors, tape coordinators, photographers, van technicians, production technicians, Chyron operators, audio engineers, studio camera operators, jib and robotic camera operators, studio technicians, technical directors and directors. In order to ensure that all employees had a chance to vote, the NLRB conducted four separate voting periods, and the election actually extended into April 9, with the final voting period ending at 12:15 a.m. Stunningly, 97 of the 100 eligible voters cast a ballot.

After the close of voting at 12:15 a.m., Wednesday, April 9, representatives of Local 1228, FOX25 management, and about 20 excited FOX25 workers gathered in the “old studio,” where the vote was held, to watch an NLRB agent count the ballots. The excitement in the room was electrifying as the pile of “Yes” votes quickly grew. The final vote count was 70 votes for Local 1228 and only 27 votes for no union, a greater than 2-1 margin of victory! Unless Fox files objections to the election, the NLRB will certify Local 1228 as the democratically-elected collective bargaining representative of workers at FOX25.

Now that the employees at FOX25 have come together and gained a voice in their workplace, the real work begins. Local 1228 will work closely with its new members to develop proposals for an initial collective bargaining agreement. During the campaign, FOX25 committed that it would bargain in good faith with the union if the workers voted to unionize. Local 1228 is excited to begin the process of improving the working conditions of its newest members and to bring them in line with other Local 1228 members. And we here at Sandulli Grace remain honored to with work Local 1228, and are ready to assist the Local and its members as they move forward at FOX25 and beyond.

A recent Appeals Court decision gives employers another tool in keeping public employees from returning to work after disability retirement. In Facella v. City of Newton, 69 Mass. App. Ct. 459 (2007), the Court denied civil service rights to a police officer returning from retirement because her employer had fired her before she had completed a back-to-work retraining program. The case expands on the Supreme Judicial Court’s 2001 decision in Sullivan v. Town of Brookline.

The case arises from a complicated aspect of the public employee retirement laws. Individuals who are disabled from performing their duties because of an on-duty injury may retire with a benefit equal to 72% of their pay, tax free. Any retirees who subsequently become able-bodied had to return to work if a position was available and the employer chose to take them back. In 1996, after newspaper reports that disabled retirees were working in physically-demanding jobs while earning a state pension, the Legislature amended the law to eliminate the discretion of the employer. Now, the employer has to take back the employee if he or she is designated by the state as able to do the work. In two 1998 cases, White v. City of Boston, and O’Neill v. City of Cambridge, the SJC explained to reluctant employers that the law meant what it said and the returning retirees must be taken back, if a position was available. (To complicate matters further, if there is no position available, the returning retiree is given a preference for the next opening.)

At about this time, public employers whose employees were covered by civil service law pointed out that Section 39 of Chapter 31 of the Mass. General Laws required civil service employees who were returning to work after an absence of five years or more to successfully complete a retraining program designed by the employer and approved by the state Human Resources Division. A question arose: When does the right of reinstatement begin, before or after the retraining?

The SJC answered the question in Sullivan v. Town of Brookline, 435 Mass. 353 (2001), in favor of the employers, who generally wanted their obligation to reinstate the returning retiree to begin as late as possible. Sullivan, who was required to complete a retraining program, but had not yet completed it, had no right to reinstatement, the Court ruled. His right (and the town’s obligation) only began after he had successfully completed the retraining.

Facella v. City of Newton, decided in 2007, follows up on a question left unanswered by Sullivan: what are the rights of a returning retiree who has actually been reinstated, but has not completed retraining? The answer: few to none. In Facella, the Appeals Court strengthened the Sullivan court’s conclusion that successfully completing retraining is the key factor in determining the employment status of disability retirees who retired more than five years earlier. The state cleared Facella as physically fit to return to a police officer position after 19 years on disability retirement. The City reinstated her, relying on the law as it existed at the time. The City assigned her to a desk job for several months, and then sent her to the police academy for a 22-week retraining course. During the retraining course, health issues caused her to drop out of the academy and be placed on sick leave. When Facella had not completed the academy 18 months later, the City terminated her employment. Facella sought to appeal her termination using the legal protections for tenured employees under civil service law. Under that law, Facella would have the right to a hearing before the employer, and the right to appeal to the Civil Service Commission, which would order her reinstated unless the City could prove it had just cause to fire her. The Appeals Court backed the City, ruling that Facella had never finished the retraining program, so she had never been fully reinstated as a tenured officer. At best, she was “conditionally reinstated … subject to her completing a retraining program.” 69 Mass. App. Ct. at 464. In other words, a disability retiree cleared to return to work has no legal claim on the employment, and no right to just cause protection against termination, unless and until the retiree completes training.

Sullivan in 2001 and Facella in 2007 may represent a trend towards strengthening the rights of employers in the returning disability retiree arena, after the strong pro-retiree statements of White and O’Neill in 1998. On the other hand, they may be only the courts’ response to a specific problem: how do the right to reinstatement and the retraining obligation intersect? With Sullivan and Facella, we have the answer to that question. Until another case comes along.

The Massachusetts Appeals Court has ruled that the City of Boston Police Department may have violated state anti-discrimination law by unilaterally eliminating rank-specific locker rooms in response to complaints by female ranking officers about inadequate accommodations. Sandulli Grace Attorney Patrick N. Bryant filed a friend-of-the-court brief on behalf of the Boston Police Patrolmen’s Association, Inc., which supported the Boston Police Superior Officers Federation’s challenge to elimination of longstanding locker room arrangements.

In the case of King & BPSOF vs. Boston, 06-P-1013 (March 28, 2008) (http://socialaw.org/slip.htm?cid=18022&sid=119), female superior officers for the Boston Police Department requested that they be provided access to rank-specific, female locker rooms, as enjoyed by male ranking officers. Many BPD district stations offer rank-specific locker rooms for male officers and not female officers. After several superior officers complained about the disparate accommodations (the BPD offered a locked closet space as one alternative), the BPD sought to eliminate all rank-specific locker rooms at all district stations. This move was jointly opposed by the BPPA and BPSOF. The day after the superiors union filed a complaint with the Massachusetts Commission Against Discrimination, the BPD ordered the closure of all rank-specific locker rooms, including male and female. The superiors union amended its complaint to include charges of retaliation. After the superiors union moved for an injunction, the BPD agreed to halt locker room changes for the time being.

The Appeals Court ruled that the BPSOF produced enough evidence to go to trial against the City. The Appeals Court agreed with Plaintiffs that rank-specific, gender-specific locker rooms may be an important condition of employment. As the court ruled:

Separate locker rooms alleviate potential tensions between superior officers and the patrol officers whom they are required to supervise and discipline. They provide also a psychological buffer zone for patrol officers who use their locker rooms as a place to decompress, without official scrutiny, after performing a shift that can be stressful and intense. Locker rooms may be a significant location for union organizing and collective action, a particularly relevant factor in this instance given that patrol officers and superior officers are members of different unions.

The Court ruled that the Plaintiffs also produced enough evidence that the BPD illegally retaliated against female officers and the BPSOF when it made changes to locker rooms. Significantly, the Court agreed that the filing of a grievance about discriminatory treatment is “protected activity” under anti-discrimination law. Further, the BPD’s decision to eliminate rank-specific locker rooms after a newspaper article about the lawsuit created an inference that the decision was intended to retaliate against BPSOF.

Technically, the Appeals Court decision occurred at the Summary Judgment stage of litigation, meaning that the Court did not necessary agree that the locker rooms were a material condition of employment or that the BPD’s actions were illegally motivated. By denying Summary Judgment to the BPD, the Court essentially ruled that Plaintiffs produced enough evidence for a jury to decide the legality of BPD’s actions.

In an extraordinary rebuke of the Republican-dominated National Labor Relations Board, a panel of the U.S. Court of Appeals for the Second Circuit has struck down a vague “no harassment” policy implemented by an employer during an acrimonious union organizing campaign.

In UAW v. NLRB, (March 20, 2008), a Connecticut automobile plant responded to a UAW organizing campaign by threatening to fire employees that even talked about the union during work time, and by implementing a vague “no harassment” policy intended to thwart union organizing. On review, the NLRB agreed that employer policies that prohibit discussions or solicitations regarding unionization during working hours are illegal.

While federal courts typically defer to the decisions of administrative agencies such as the NLRB, the Second Circuit reversed the NLRB’s conclusion that the announcement of a “no harassment” policy was not illegal. The employer defended the “no harassment policy” as addressing reported intimidation and vandalism at the plant. However, the Second Circuit reminded the NLRB that the employer’s intentions behind the policy are irrelevant, as it is necessary to consider how a reasonable employee would interpret a “no harassment” policy. Here, the Second Circuit ruled, a reasonable person would interpret such a policy as prohibiting union organizing, given that the employer already implemented a policy expressly prohibiting union organizing.

Unfortunately, as an example of federal law’s bias toward employers, the Second Circuit upheld the NLRB’s ruling that the employer’s fearmongering – regularly characterizing the Union as violent, strike-happy, pervaded by “violence, threats, intimidation and [ ] death” – was not illegal.

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The influential U.S. Court of Appeals for the District of Columbia has ruled that an employer cannot refuse to bargain with a union that represents illegal immigrants that the employer hired. In Agri Processesor Co. Inc., v. National Labor Relations Board, (Jan. 4, 2008), a New York City employer hired a number of undocumented aliens to work at a kosher meat processing plant. A majority of plant workers sought to improve their working conditions by electing the United Food and Commercial Workers Union as their union representative.

Instead of sitting down at the bargaining table with the democratically elected union, the employer chose to violate federal labor law. The employer claimed it had no obligation to bargain with a union that represents illegal aliens, even though the employer hired these employees. The employer also claimed that the National Labor Relations Board had no power to craft a bargaining unit that included both illegal aliens and legal residents. The NLRB and the D.C. Circuit Court easily rejected these arguments. They cited to a U.S. Supreme Court case that held that the National Labor Relations Act, which is the federal labor law that applies to the private sector, defines “employee” to protects legal and illegal residents. “Since undocumented aliens are not among the few groups of workers expressly exempted by Congress, they plainly come within the broad statutory definition of ‘employee.’” the Supreme Court ruled in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984).

In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the NLRB cannot provide certain financial relief to illegal aliens, such as backpay to immigrants fired in violation of the NLRA. But as the D.C. Circuit pointed out, Hoffman Plastic did not change the basic rule from Sure-Tan: illegal aliens have the right to join unions and be free from anti-union retaliation.

Regardless of one’s position on illegal immigration, the D.C. Circuit’s decision in Agri Processor is a victory for unions and a rebuke of employer’s illegal efforts to undermine employee free choice. Agri Processing shows states that employers cannot rely on its own question hiring practices to justify illegally refusing to negotiate with unions elected by employees.

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