Strict Enforcement of Work Rules By Cleveland Fire Department

Sandulli Grace Staff December 2, 2015

The Cleveland Firefighter’s recently-created Integrity Control unit has investigated dozens of alleged work rule violations since its inception. The unit’s investigations have uncovered numerous instances of misconduct, ranging from minor infractions to possible felonies.

Particularly noteworthy is the case of one firefighter, whom investigations revealed used his city-issued cell phone for personal reasons, namely to arrange and discuss dates. Said firefighter was suspended and ordered to pay back the City of Cleveland over $2,500.

Frank Szabo, President of the Cleveland Firefighters Union, acknowledged that it is inevitable that some individuals on the force will attempt to violate work rules. However, he also criticized the Department’s sometimes ambiguous policies, which the union believes fail to put firefighters on adequate notice regarding what precise behavior constitutes a violation.

The validity of such objections notwithstanding, the Cleveland cell phone case and other cases like it serve to emphasize the importance of complying with reasonable work rules—so far as employees can properly ascertain what those rules are. Both professionally and monetarily, the consequences of rule transgression may be severe, particularly where employers have entire units dedicated to performing internal investigations and uncovering misconduct.

In Our Opinion..., Labor In The News

Micro Units – A Toe Hold for Organized Labor

Sandulli Grace Staff November 23, 2015

The NLRB ruled this week that a group of 162 skilled machine maintenance workers assigned to Volkswagen’s Tennessee Facility should be allowed to vote on whether they want to be represented by the United Auto Workers. This election comes on the heels of the UAW’s loss in the representation vote for all hourly employees in that same facility and VW’s diesel emissions scandal.

Within this shift of strategy, a valuable lesson of intelligent persistence can be found. Rather than become mired, the UAW keeps deliberately pushing to expand organized labor in the South. In a week that marked the hundred year anniversary of the death of Joe Hill, their efforts should be celebrated.

Find the UAW’s press release here.

In Our Opinion..., Labor In The News

BMC Judge Reinstates Tom Finneran’s Pension Benefits

Sandulli Grace Staff November 6, 2015

In a fairly surprising turn of events, on October 9, 2015, the Honorable Serge Georges of the Dorchester Division of the Boston Municipal Court ordered the State Retirement Board to pay former Speaker of the House Tom Finneran what the media has reported to be hundreds of thousands of dollars in pension benefits retroactive to January of 2007 and activate his benefits prospectively.

Previously, the State Retirement Board had ceased to pay Mr. Finneran his M.G.L. c. 32 superannuation benefits. According to the decision, this occurred after Mr. Finneran pled guilty to willfully making misleading and false statements under oath while testifying in his capacity as Speaker in Federal Court regarding a voting rights action that challenged election redistricting at the start of the century.

The State Retirement Board had ruled that this conduct violated M.G.L. c. 32 § 15(4) which states:

(4) Forfeiture of pension upon misconduct. In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of section one to twenty-eight, inclusive, nor shall any beneficiary be entitled to receive any benefits under such provisions on account of such member. The said member or his beneficiary shall receive, unless otherwise prohibited by law, a return of his accumulated total deductions; provided, however, that the rate of regular interest for the purpose of calculating accumulated total deductions shall be zero.

In applying this statute and applicable case law to Mr. Finneran’s guilty plea, Judge Georges stated in summary that:

Turning to the issue whether the Board’s decision that Finneran must forfeit his pension is legally tenable, I conclude that it is not. Although the record indicates that Finneran’s conviction referenced his public employment, inasmuch as the position Finneran held at the time of his perjured testimony and at all times relevant thereto, there is no substantial evidence to support the Board’s conclusion that Finneran’s conviction bore a direct factual link to his position as a House member and/or Speaker. Additionally, there is also no substantial evidence to support the Board’s conclusion that Finneran’s conviction violated a core function of his position as a House member and/or Speaker because there is no evidence in the record of any code, rule or law applicable to Finneran’s public position that connects his conviction to his office. Accordingly, the Boards decision must be reversed.

The State Retirement Board has appealed the decision. Given the profile of the case and the malleable language of the statute, it is likely that higher courts will be keenly interested. For those interested in a broader explanation, please find the BMC decision below or feel free to send me an e-mail.

Read the decision here.

In Our Opinion..., Labor In The News

U.S. Department Of Labor About To Issue New Regulations Expanding Overtime Coverage To Over 5 Million Workers

Alan Shapiro November 2, 2015

Sometimes, I start thinking there isn’t much difference between Democrats and Republicans, since a lot of them remind me of the kids in high school who were running for student council president. But then, when I look at some federal regulations, I am reminded that who is in the White House can make a real difference for millions of people. The recent overtime rules issued by the U.S. Department of Labor show that there can be a clear difference between the political parties.

In the private sector, workers must be paid time and a half for all hours worked beyond 40 in a week. Passed in the 1930’s, this law was designed to encourage employers to hire more workers, since millions were thrown into unemployment by the Great Depression[1]. The statute exempted from the overtime laws “executive, administrative and professional” employees, but left government regulators to enact rules distinguishing employees exempt from overtime from non-exempt ones.

In 2004, the Bush Administration passed rules which “updated” these regulations in a way that left millions of workers without overtime protection. A salaried employee who spent 99% of her time performing manual labor could still be exempt from overtime as long as she made over $455/week. See In Re: Family Dollar FLSA Litigation.

Under the new regulations in the process of becoming law, not only does an “executive” really have to work as one, but s/he must make at least $50,440/year. Regardless of what title or job duties the employer gives the employee, unless s/he makes at least $50,440/year, s/he must receive overtime pay after working 40 hours in a week.

The new regulations, however, are not a panacea, since many companies have reacted by either reducing wages or reducing the hours of employees about to become eligible for overtime for the first time. Since virtually all of these employees are not covered by union contracts, they are powerless to do anything about it. Nevertheless, some formerly exempt employees will receive a raise, and, in some instances, more employees will be hired to fill in for the unlimited hours employers were formerly able to require of their supposed “managers” without any increased cost. As one economist said, “Trust me on this: you’d be very hard pressed to come up with [another] rule change or executive order to lift the pay of this many middle-wage workers.”

[1] In 1933, the U.S. unemployment rate was 25%.

Labor In The News

Is the Tide Turning for Organized Labor?

Jennifer Smith October 12, 2015

Although union membership continues to decline (only about 7% of private sector workers are union members and 36% of public sector employees are union members according to the US Department of Labor Bureau of Labor Statistics), in the face of growing income inequality, and stagnant wages, it appears that organized labor may soon be facing a resurgence.

Union advocates have long known and promoted the fact that belonging to a union makes a powerful difference in people’s lives, for example, unionized workers have median weekly earnings of $970 compared with $763 for workers not in a union. Nevertheless, the clear utility of unions in narrowing income inequality has gone unheeded for decades, but the tide may be turning. A new poll by the National Employment Law Project, reports that 72% or workers who make less than $15 an hour support unions. Remarkably a recent Gallup poll that found that 58% of the general population support unions. Majority support for organized labor might seem far-fetched – but an incredible 42% of ALL workers in the United States make less than $15 an hour.

The 78% of workers making less than $15 an hour who support organized labor aren’t just paying lip service to collective action, they’re looking to make their voices heard in Massachusetts. On October 13, 2015, a coalition organized by Raise Up Massachusetts and #WageAction are sponsoring a day of Action at the Massachusetts State House. While the legislature begins hearings on a number of bills protecting and promoting workers, the workers will be agitating and lobbying in support of their goals. Will you join them?

More information about the day of action can be found here: http://wageaction.org/fight-for-15-at-the-massachusetts-state-house/#.VhwP8vlVhBd

#wageaction

Labor In The News, Sandulli Grace In The News

Employer Cannot Install GPS on Vehicles Without First Bargaining with the Union

Sandulli Grace Staff October 7, 2015

On June 30, 2015, public sector workers across Massachusetts won an important victory at the Department of Labor (‘DLR’). In the case of City of Springfield and AFSCME, MUP-12-2466, the DLR held that the city of Springfield could not install GPS tracking devices on employee vehicles without first bargaining with the employees’ union—the AFSCME, Council 93. You can read the full decision here: http://www.mass.gov/lwd/labor-relations/recent-decisions/2015-decisions/june-2015/mup-12-2466-cerb-decision.pdf. Moving forward, this decision will help unions to better protect employees on how GPS information is used and what circumstances GPS information will be accessed.

This dispute began in 2012, when the city of Springfield began secretly installing GPS tracking devices on public utility vehicles. These devices allowed the city to determine employees’ work locations, idle time, speed, distances driven, and number of stops—all in real time. Before these devices were installed, the city had no way of gathering this information and did not require employees to report it.

The DLR held that these devices were illegal because they altered an existing condition of employment without first bargaining with the employees’ union. These devices altered an existing condition of employment because they “plainly changed the type and amount of information” available to the city. On these grounds, the DLR distinguished this case from two previous cases: City of Worcester, MUP-05-4409 (2007) and Duxbury School Committee, 25 MLC 22 (1998).

Massachusetts Lawyers Weekly interviewed Jennifer Rubin, a partner at Sandulli Grace, about the case. She explained that this decision is a “big deal”. It is the first time that a case in Massachusetts has held that the decision to implement GPS devices, and the impacts of that decision is something that unions must be given the opportunity to bargain. Attorney Rubin also added even if a public employer had previously monitored employees in some manner, unions should still demand to bargain if the employer considers installing GPS devices “because the decision says if the type or amount of information tracked by the GPS is different from before, that could form the basis for a bargaining obligation.”

This case represents an important victory about the employer’s bargaining obligations. As new technology continues to alter the employer-employee relationship, we should always remember the importance of protecting the employee’s privacy and how that information that is produced by that new technology is used.

Labor In The News

Facebook Content Admissible

Sandulli Grace Staff October 5, 2015

Facebook content is becoming more and more prevalent in court proceedings. An article in American Police Beat highlights how Facebook posts have been used by the government to challenge disability claims (i.e., online photos of claimants engaged in activities like water sports and karate while claiming to be disabled) and attack credibility. This story is a good reminder that everyone (including, and especially officers) should be careful about posting anything on Facebook or any other social media. The original story can be found here: https://apbweb.com/facebook-content-admissible/

Labor In The News, Uncategorized

Healey Wants To Expand Scope Of Wiretap Law

Sandulli Grace Staff October 2, 2015

Attorney General Maura Healey testified before the Judiciary Committee to expand the scope of the wiretap law because, as she put it “right now you can’t use a wire in a human trafficking case or a gun trafficking case.” Healey did not back any particular bill, but the current wiretap law has a prerequisite that the target of the wire be involved in “organized crime” which many advocates for change argue do not fit well with current street gangs. The original article can be found here:
http://www.sentinelandenterprise.com/weddings/ci_28827396/healey-wants-expand-scope-wiretap-law

In Our Opinion..., Labor In The News

New Study Says Employee Health Care Costs Are Skyrocketing – Attention Contract Negotiators!

Sandulli Grace Staff September 24, 2015

On September 22, 2015, the Kaiser Family Foundation released a Health Benefits Survey of employer health plans demonstrating that health care costs for an individual employee have grown seven times as fast as wages and inflation from January to June of 2015. The survey itself can be found here and an interesting article discussing the survey by Carolyn Johnson in the Washington Post can be found here.

This type of survey information is compelling can be both compelling as anecdote and demonstrates an effective way to analyze health insurances costs for employees negotiating with employers.

Labor In The News, Sandulli Grace In The News

Court Decision Reinstating Boston Police Officer Wins Sandulli Grace Press Coverage

Sandulli Grace Staff August 19, 2015

Court Decision Reinstating Boston Police Officer Wins Sandulli Grace Press Coverage
The case involved the firing of veteran Boston police officer and BPPA member David Williams for allegedly using excessive force during an arrest. The arbitrator found that Williams had not used excessive force and had acted in compliance with the Police Department’s rules and policies in arresting a belligerent intoxicated citizen in the North End of Boston on the night before St. Patrick’s Day. Specifically, the arbitrator rejected the City’s claim that Williams had used a chokehold on the arrestee.

The City of Boston appealed the arbitrator’s ruling to the Superior Court, arguing that the Boston Police Commissioner had unfettered power under state law to determine when an officer had used excessive force and that arbitrators did not have the power to overturn his disciplinary which upheld the award. Judge Dennis J. Curran in the Superior Court threw out the City’s claims. Instead, the judge agreed with the BPPA and its attorneys that disciplinary actions and the factual underpinnings thereof are subject to review through the grievance and arbitration procedures that the City and the BPPA have collectively bargained. In particular, the findings of a neutral arbitrator selected by the parties on matters of fact, such as whether or not Williams used a chokehold, are sacrosanct, and may not be overturned by a reviewing court.

Judge Curran issued his decision in City of Boston v. BPPA on June 29, 2015. The Boston Globe ran the story on the front page of the Metro section on July 22, 2015 with a picture of David Williams and a quote from Attorney Becker. You can find the link here.
Massachusetts Lawyer’s Weekly ran a front-page article on the case in its July 27, 2015 edition in which Attorney Becker was quoted extensively. The link is here.

One might speculate that the media attention to the Williams case might stem from the chokehold allegation – even though the arbitrator found otherwise – given the press coverage of incidents in New York and elsewhere. Some commentators raised concerns about those incidents because the police officers involved were white and the people they arrested were black. In this case, interestingly, the press did not draw attention to the fact that Williams is black and the person he arrested is white.