Feb. 4, 1825: The Ohio legislature authorizes construction of the 249-mile Miami and Erie Canal, to connect Toledo to Cincinnati. More than 4,000 workers, mostly recent immigrants from Ireland and elsewhere, work from sunrise to sunset, earning 30 cents Continue reading
“The labor movement was the principal force that transformed misery and despair into hope and progress.” – Martin Luther King, Jr. (Born January 15, 1929)
January 27, 1734: New York City maids organize to improve working conditions.
January 29, 1834: Responding to unrest among Irish laborers building the Continue reading
National Right to Work Foundation (NRTW), a right wing think tank funded by large corporations, is on a mission to obliterate unions and collective bargaining in Massachusetts. It recently filed unfair labor practice charges against various teachers unions claiming that agency fee and the principle of exclusive representation are unconstitutional under the First Amendment. Emboldened by the recent Supreme Court decision in Harris v. Quinn, NRTW argues that Continue reading
We join the entire nation in mourning the murder of NYPD Officers Rafael Ramos and Wenjian Liu. As police union lawyers, we have continually worked with our unions to try to find ways to protect officers. We have bargained for officers’ rights to defend themselves, for body armor when appropriate, to protect against Continue reading
In late October, the National Labor Relations Board (NLRB) issued a groundbreaking decision in the long-running dispute between the Pacific Beach Hotel in Waikiki, Hawaii and the International Longshore and Warehouse Union (ILWU). In HTH Corporation, Pacific Beach, the NLRB took a new approach to enforcement and put other scofflaw employers on notice that their continued Continue reading
As you know, on November 4, 2014 Massachusetts voters approved ballot question 4 which enacts a new section of MGL c. 149 section 148C and provides for Massachusetts employees to earn and use 40 hours of sick leave in a calendar year.
This new law is effective July 1, 2015. The law applies to employees of private and public entities with eleven or more employees. However, employees employed by cities and towns shall not be considered employees for purposes of this law until this law is accepted by vote of the city or town as a local option or by appropriation as provided for in Article CXV of the Amendments to the Constitution of the Commonwealth. A local option law for a city must be voted on by the city council in accordance with its charter and in the case of a town by town meeting or town council.
Although most unionized employees already earn sick leave, some benefits of the new law that may not already exist are as follows:
This new law provides minimum benefits and employers can adopt or retain earned sick time policies that are more beneficial than the requirements of this Law. Sick leave also continues to be subject to collective bargaining. However, any sick time employment benefit program or plan cannot provide any lesser sick time rights than the rights established under this law.
Polls open tomorrow to decide who will be the next Governor of Massachusetts. This year we have a hotly contested race. We are writing to let you know that we’re voting for Martha Coakley for Governor – and we think you should too! Attorney General Coakley has been a public servant since 1986. Her husband is a retired Cambridge Police Officer. She understands the challenges facing working people and people fighting to survive in the public sector. The fact that she is a Democrat isn’t enough to recommend her, but her track record advocating for the people of Massachusetts is. When it comes to your pension and rights at work, I believe Attorney General Coakley will be unbiased and deliberate.
In contrast, Charlie Baker made millions of dollars at Harvard Pilgrim. In the process, he outsourced jobs from Massachusetts and increased the cost of your healthcare. Mr. Baker picked our pockets to succeed in business while shipping jobs out. If given the keys to the Commonwealth he will make the same “tough choices” to eviscerate your pension and underfund the state agencies that protect our rights.
Vote Coakley!
Jamie & Jenni
In a twist on illegal wage parity proposals, the Department of Labor Relations (DLR) issued Complaints of Prohibited Practice against the Boston Public Health Commission (Commission) for proposing and insisting upon an unlawful health insurance parity clause. (Read the full text of the DLR Complaint dated March 26, 2014 HERE). The Charging Party was the Boston Emergency Medical Services, a division of the Boston Police Patrolmen’s Association (Union) which represents Boston EMTs and Paramedics. The Union was bargaining over its contract which expired on June 30, 2011 where health insurance was a key topic in protracted negotiations with the Commission. The Commission is, by statute, independent from the City of Boston and a separate employer under Chapter 150E. After the parity complaints were issued, the DLR also ruled that the Commission failed to bargain in good faith with the Union when it changed the employees’ health insurance plan design and unilaterally increased their co-payments in violation of Section 10(a)(5) of Chapter 150E. (Read the full text of the DLR Hearing Officer’s Decision and Order dated June 25, 2014 HERE). The BEMS-BPPA was represented in negotiations and litigation by Sandulli Grace Attorneys Ken Grace and Jenni Smith.
As we all know, employee health insurance costs are constantly changing to the point where any pay raise we may bargain can be quickly cancelled by increases in health insurance premiums, deductibles and co-payments. That is why it is so important for unions to fully exercise their bargaining rights over possible changes in health insurance plans, carriers, providers, benefits, coverages, premiums, premium contributions, co-payments and prescription co-payments. In this case, the Commission sought to have all of these health insurance matters be decided by another employer and another union.
The proposal at controversy stated that “the Union hereby agrees that any decision of the City of Boston to make [health insurance] changes, and the impact of those decisions will not require bargaining between the parties provided that such changes are implemented for the City of Boston’s Boston Police Patrolmen’s Association bargaining unit or successor.” The proposal, which ties the health insurance of BEMS to the collective bargaining future of the BPPA, constitutes a parity clause. The proposal, therefore, is an illegal restriction on the ability of both the BEMS and the BPPA to effectively represent the interests of their union members. For the BPPA, the proposed parity clause places illegitimate pressure upon their collective bargaining process, because they would be forced to take into account an additional group of employees whose interests and concerns do not mirror the sentiments of their immediate union members. In turn, the BEMS would be barred from representing the interests and well-being of its members on a mandatory subject of bargaining- – health insurance.
Over the last few months, the Union finally reached a collective bargaining agreement with the Commission and I’m happy to report that the contract does not include the illegal parity provision that was the subject of the DLR’s Complaints last March. The Commission was forced to withdraw its proposal because of mounting legal pressure. The contract settlement contained some small adjustments in health insurance co-payments and premium contributions consistent with those applicable to City of Boston employees, but the changes were not made retroactive. This amounted to considerable savings to BEMS employees over more than a three year period when premiums were lowered on the assumption of the higher co-payments. It was one of those rare instances where the foot dragging by an employer in delaying a contract settlement actually benefited the employees. Just as significant, however, was the Union’s willingness to take on the Commission through legal action and bargaining strategy in order to protect its important right to negotiate over all matters of health insurance in the future.
On May 27, 2014, arbitrator Tammy Brynie issued an important recreation injury leave award in favor of the Boston Police Patrolmen’s Association. The Boston police officer was seriously injured while participating in the 2012 Boston Police Department Fitness Challenge. (Read the full decision of Arbitrator Brynie HERE.) The BPPA case was presented and argued by Sandulli Grace Attorney Ken Grace.
As background to the case, the Boston Police Department had been increasing its emphasis on improved health and wellness for all officers since 2009. To this end, the Department sponsored an annual one-day Fitness Challenge for which officers were encouraged to train and compete in various physical fitness events. However, the annual challenge was considered a volunteer off-duty activity and no one was required to participate. At first glance, then, one might expect that an officer injured while participating in the Challenge would not be protected by M.G.L. chapter 41, section 111F ( the injury leave law applicable to Massachusetts police officers and firefighters). The BPPA thought otherwise, and ultimately Arbitrator Brynie agreed with the union.
The question in injury cases such as this revolves around a determination of whether the activity causing the injury “arises out of and in the course of employment.” In making that determination, Massachusetts courts and arbitrators look at “the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Under certain circumstances, an employee can be entitled to injury leave for injuries sustained outside regular working hours, even if at the time of injury, the employee is engaged in something only incidental to his/her employment.
For injuries involving employee recreation activities, the Massachusetts Supreme Judicial Court has developed more specific criteria to determine whether the injury “arises out of and in the course of employment”. Those criteria involve such factors as the customary nature of the recreation activity; the employer’s encouragement, subsidization, management and direction of the activity; the pressure upon the employee to attend and participate; and whether the employer receives a benefit from the employee’s participation in the activity.
Here, the Grievant was injured during one of the events at the 2012 Boston Police Department Fitness Challenge. Arbitrator Brynie found there were “sufficient links with the Department, its goals and its mission to consider participation in the Fitness Challenge as an aspect of the performance of the Grievant’s duty, for Section 111F purposes.” Those links included the annual nature of the event from 2009 to 2012; the organizing, planning and direction of the Fitness Challenge by the Department and its personnel; and the benefits resulting from the event including such intangibles as positive publicity (featured within an episode of the CNN television show, “Boston’s Finest”), promotion of the Department’s emphasis on health and well-being, better morale, and enhanced team building. In the Grievant’s situation in particular, the Arbitrator also found that he received substantial pressure to participate in the event.
Upon reflection, there is a certain irony in this case that warrants comment. The Boston Police Department invested considerable resources and personnel since 2009 to promote the health and well-being of its officers, and a key component of that effort was the BPD’s annual Fitness Challenge. Consequently, the number of participants grew each year as more and more officers embraced the overall goal of being better able to physically perform their jobs. Then, when the Grievant was injured during the 2012 Challenge and the Department denied him injury leave coverage, Boston police officers took notice and participation in the Department’s health and wellness program decreased substantially. For example, a Fitness Challenge was scheduled for 2013, but it had to be cancelled for lack of sufficient registration. In hindsight, the Department’s long term goal of helping officers to become more fit would have been better accomplished if the injury leave claim in this case had been covered under Section 111F from the outset rather than through a grievance.
Now it is clear that officers are entitled to injury leave coverage if they are hurt during a future Fitness Challenge, so we will see if the Boston Police Department really is committed to the future health and well-being of its officers. Going forward, that is the real Challenge from the outcome of this grievance arbitration victory.
When cities and towns use self-funded health insurance plans, they have been able to cheat on their required contributions. We have already found a number of cases where municipalities have failed to make their required contributions, thereby forcing employees to pay a greater share then they had agreed to.
This cheating is possible because of the way premiums are established for self-funded plans. In such plans the premiums are set by estimating a number which will cover the projected cost of claims and expenses. The premium payments must also maintain a cushion in the fund sufficient to cover regular variation in claims plus enough to cover claims which will come in after the end of a plan period. We have found that when there is such a cushion in the fund, employers can be tempted to skip their payments and allow claims to be paid from the cushion and from employee contributions.
To prevent this cheating, union representatives acting under their collective bargaining agreement or working through a Public Employee Committee, where the PEC has a health insurance agreement, must carefully monitor the financial records of the insurance plan. They should insist on monthly records to be presented quarterly for review. The records must include the following:
Looking at this data the unions should be able to confirm that the total contribution rate is appropriate to cover the claims and expenses of the plan and that the employer is paying its agreed upon share. Finally, there should be an annual audit report on the plan confirming that the monthly data has been correct.
