The State Appeals Court ruled that a county laboratory director is exempt from the protections of state wage and hour law embodied in General Laws chapters 149 and 151. Like its federal counterpart (the Federal Labor Standards Act), the state overtime law requires that employees receive time-and-a-half of their regular wages for hours worked beyond 40 in one week. The state and federal wage and hour laws exempt bona fide “executive, or administrative or professional” employees from this guarantee of overtime.

In Ahadul Quazi v. Barnstable County, #06-P-486 (Dec. 3, 2007) [http://socialaw.org/slip.htm?cid=17661&sid=119], the Court ruled that the phrase bona fide executive, or administrative or professional person under the state law is interpreted consistently with federal law. Applying federal precedent to the case, the Court ruled that the plaintiff, a laboratory director, was exempt. His job qualified as professional because the water analysis job required that plaintiff possess advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. Further, the responsibilities of the plaintiff’s job, which involved problemsolving, policymaking and directing the work of other employees, also qualified under the “executive” (a.k.a. managerial) exemption. Because of these facts, the Court ruled that the plaintiff was not entitled to any overtime under state law.

The Appeals Court also ruled that the plaintiff could maintain a claim against his employer under the state whistleblower act, G.L. c. 149, §185. The Act generally protects public employees against retaliation for reporting of misdeeds or illegal behavior by their employer. To obtain protections under the Act, employees must notify superiors of the misconduct allegations in order to provide employers with an opportunity to correct behavior. The Appeals Court ruled that the notice requirement does not apply when, as here, the employee claims that the retaliation arose as a result of the employee’s refusal to participate in misconduct, as opposed to the employee’s threat to publicize said misconduct.

We’re not sure what to make of the Supreme Judicial Court’s decision to re-examine two decisions upholding labor arbitration awards, but there is no question that the SJC continues to show a strong interest in these matters, not always to the advantage of unions and their members. On October 31, 2007, the SJC granted further appellate review in the case of City of Somerville v. Somerville Municipal Employees Association, which was decided by the Appeals Court in July. (The citation is 69 Mass.App.Ct. 583.) The case involves a collective bargaining agreement that prescribes the method for assigning someone to a particular position in case of a vacancy. With skills and qualifications being equal, the contract says, the City must choose the internal candidate over an external one. When the City ignored this provision, the union grieved. An arbitrator agreed with the union and ordered the City to follow the procedure it had agreed to use and assign the internal candidate. Instead the City appealed, first to the Superior Court, where it lost, then to the Appeals Court, where it lost again. It could have ended there, but Massachusetts law provides for ‘further appellate review’ for litigants dissatisfied with the decision of the Appeals Court. Upon request, the SJC may (but doesn’t have to) choose to re-examine decisions of the Appeals Court. The City sought further appellate review and the SJC granted it.

An unscientific survey of further appellate review (FAR) requests shows that the SJC only grants a small percentage (maybe 10%). Of those cases taken on further appellate review, fewer than half are civil cases, most are criminal. So when the SJC grants FAR on a case involving labor arbitration, it is not an everyday occurrence.

While it was unusual for the SJC to grant FAR to City of Somerville, it is even more remarkable when we know that, on March 29, 2007, the SJC granted FAR in the case of Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County. (The Appeals Court citation is 68 Mass.App.Ct. 903 (2007).) This case involves a disciplinary matter, in which an arbitrator ordered the employer to reinstate an employee who had been discharged for misconduct. The employer argued that the reinstatement would violate public policy. This argument has been a popular one for employers ever since the SJC’s decision in City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005). In that case, the SJC decided that the reinstatement of a police officer who was found to have misused his police powers to take away the rights of citizens and repeatedly lied about it violated public policy and vacated the arbitrator’s award. The SJC described the case as a ‘rare instance’ in which the public policy exception applied, but employers seem to find rarities whenever an arbitrator rules against them.

Sheriff of Suffolk County involves an application of the public policy doctrine. City of Somerville is another one in a long line of cases in which public employers have invoked their inherent management rights to ignore any provision of the contract they don’t like. And these are not the only labor arbitration decisions decided over the past year – see Todino v. Town of Wellfleet, 448 Mass. 234 (2007), upholding a pro-union arbitration award. The SJC recently heard oral arguments in Local 2071, IAFF v. Town of Bellingham, 67 Mass.App.Ct. 502 (2006), which involves the power of an interest arbitrator under the auspices of the Joint Labor Management Committee for Police and Fire to award a 24-hour shift.

The Appeals Court, which, unlike the SJC, cannot pick the appeals it wishes to hear, has heard numerous labor arbitration cases in the past year, almost always upholding the award against an employer appeal. (Notice how the employer is always the one appealing? That’s because unions understand what ‘final and binding arbitration’ means.) In addition to the Somerville, Suffolk County, and Bellingham cases mentioned above, Appeals Court decisions included: Town of Duxbury v. Rossi, 69 Mass.App.Ct. 59 (2007), School Committee of Hull v. Hull Teachers Association, MTA/NEA, 69 Mass.App.Ct. 860 (2007), Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 68 Mass.App.Ct. 222 (2007), Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass.App.Ct. 706 (2006). The Appeals Court upheld the arbitrator’s award in all but the last case. Two other arbitration awards were upheld by the Appeals Court (both public policy cases), but the decisions were not officially published and cannot be used as precedent.

The question is, why the SJC is so interested in these aspects of Massachusetts labor law? Do the justices feel that arbitrators are out of control and need to be reined in? Do they believe the Appeals Court decisions are inconsistent and they need to provide guidance? Do they feel that they have a special responsibility to look out for the interest of the citizens served by public employers and employees? We don’t know. No decision has been issued by the SJC in either the Suffolk County, Somerville or Bellingham case. Plus, the fact that the SJC granted FAR does not necessarily mean it will ultimately disagree with the Appeals Court decision. In another unscientific study, I reviewed decided civil cases in which the SJC had granted FAR. Of 17 cases decided in 2007, the SJC agreed with the Appeals Court in eight cases, slightly less than half. In six cases, the SJC agreed with parts of the Appeals Court decision, and disagreed with other aspects. In only three of 17 cases reviewed did the SJC completely reverse the decision of the Appeals Court. So there is hope yet.

In LeMaitre vs. Mass. Turnpike Authority (November 5, 2007) [http://socialaw.org/slip.htm?cid=17603&sid=119], the Appeals Court ruled that a nonunion civil engineer is entitled to sick leave buyback under the public employer’s buyback policy in place for the majority of his employment.

Plaintiff’s benefits as a nonunion employee were governed by the Authority’s Personnel Manual. During the nearly 30 years that the Plaintiff worked for the Authority, he used only 14.5 sick leave days. For the majority of his employment, the Manual stated that he could receive 50 percent reimbursement for unused sick leave upon retirement. In 1996, the Authority unilaterally reduced this sick leave incentive to 20 percent of unused sick leave. Upon retirement, the Plaintiff received 20 percent for his 28 years of accumulated sick leave.

The Appeals Court agreed with the Plaintiff that the Authority should have applied the buyback percentage in force at the time the Plaintiff accrued the leave (50 percent for days accrued prior to 1996; 20 percent for days accrued thereafter). The Appeals Court found that the terms in the Personnel Manual constituted a binding contract, once the Plaintiff accepted and complied with the terms. The Court rejected arguments that the Manual permitted the Authority to reduce or eliminate previous terms in the contract. The decision does not prohibit an employer’s retroactive changes to terms or conditions for nonunion employees. An employer may reduce benefits so long as its Manual contains conspicuous and detailed disclaimers. The Court ruled, “Moreover, had the authority intended to make no legally binding promises, it should have included in the personnel manuals ‘in a very prominent position . . . an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing . . . .’”

A federal trial court in Georgia has ruled that the police department violated the First Amendment when its internal affairs division inquired the union’s alleged involvement in firing the current Chief, where such alleged off-duty activities had no relation to the alleged on-duty misconduct of a single officer’s “mutinous statements.” The Court also ruled in the case, Local 491, IBPO, v. Gwinnett County, Ga. (N.D. Ga May 7, 2007), that the Department’s ban on the off-duty sporting of uniforms by union officials at public meetings was not unconstitutional or otherwise illegal. [The decision initially was issued in May but it was only released to a legal database this week.]

In this case, a patrol officer was overheard talking to other patrol offers about his involvement in recruiting and interviewing potential candidates to replace the current Chief. His involvement was commissioned by county leaders. The Chief, once alerted to the officer’s plans in the efforts to oust him, ordered an investigation into whether the officer’s actions violated department rules regarding loyalty and support. In the course of the investigation, the Department also interviewed members of the police union’s executive board about whether the union advocated the Chief’s removal, and whether officials discussed this issue with county leaders. IAD sustained two charges of misconduct against the officer, but the Chief declined to prosecute or discipline the officer.

In a robust victory for the rights and abilities of police unions to organize, the Court ruled that the Department’s questions about the union violated the First Amendment’s guarantee of engaging in associational activity without government interference. The Court’s analysis balanced the interests of the Union and their members against the interests of the Department in morale and internal order. The tipping point appeared to be that the sheer irrelevance of the suspected union activity into the investigation’s stated purpose.

[B]y asking questions about whether the leaders of Local 491, in the course of their organizational participation, had expressed opinions concerning the replacement of the current police chief, and by asking whether they had engaged in communications with members of the Gwinnett County Board of Commissioners, Internal Affairs investigators intruded into quintessentially protected associational activity. Although the questions were asked in connection with a legitimate inquiry into Officer Fouchia’s on-duty conduct, it is not clear how, in determining whether disloyal statements were made on duty, it was relevant-much less necessary-for the Internal Affairs investigators to determine whether similar statements had been made off duty in connection with protected union activity.

Notably, the Court did not rule that Departments may never investigate union activity. Yet, the decision still serves as a cautionary tale to Departments contemplating a fishing expedition into union pursuits.

The Court also ruled that the Department’s ban on wearing uniforms off-duty at public meetings was not illegal, absence evidence of selective enforcement or exemptions based on the content of the meeting or speech at hand. “Inasmuch as it does so indiscriminately,” the Court ruled, “the First Amendment does not forbid a government from jealously protecting and zealously restricting the use of its uniforms for non-official purposes.”

Please note that this case’s interpretation of the U.S. Constitution and federal law have no force in Massachusetts. It still may be persuasive authority to a local court confronting a similar issue. Also, Massachusetts courts and agencies may provide better protections under state law.

In Olsen v. Teachers Retirement Board (Oct. 9, 2007), the Brockton Education Association and the Brockton school committee agreed to increase the percentage of health insurance premiums paid by employees by five percent in exchange for a stipend paid to employees enrolled in health plans that was equivalent to the dollar amount of the increased premium payments. The parties also agreed to increase the stipend annually by the cost of living wage increases dictated by the contract. The contract language specifically states.

Beginning on July 1, 2004, the listed stipends will be increased by the amount of the general salary increase in that year and in future years. Eligible teachers who change plans, change level of coverage, or drop off of health insurance entirely after June 30, 2003 will continue to receive the stipend that corresponds to the plan and level of coverage that they had during 2002-2003. Eligible teachers who return from an approved leave of absence or who are recalled after a layoff will remain eligible for the stipend. Eligible teachers who resign and who later are rehired, however, will no longer be eligible for the stipend.

The Appeals Court agreed with the complaint brought by two teachers that these stipends qualified as “regular compensation” under the state law regulating public retirement pension systems, General Laws, Chapter 32B, §1. As a result, the stipends must be included in the formula that determines pension allowance for retirees.

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In the latest decision concerning the application of Fair Labor Standards Act to Massachusetts public safety officers, Judge Stearns of the U.S. District Court for the District of Massachusetts ruled on which payments must be added to the overtime rate; whether details performed for a public employer must be paid at the overtime rate; whether certain superior officers are exempt from the FLSA; and how the employer calculates the damages it owes for FLSA violations. The results, from a public safety union standpoint, were mixed. The case is Murphy v. Town of Natick, CA#04-11996-RGS (D.Mass. Sept. 25, 2007).

The FLSA guarantees that most employees, including public sector employees, receive 1.5 times their “regular rate” (or base pay) for hours actually worked beyond 40 in a 7-day pay period. Section 207(k) of the FLSA permits public safety employers to elect a different overtime threshold specifically for police and fire employees – the range is from 43-hours/7-days to 171-hours/28 days for police and 53 hours/7 days to 212 hours/28 days for fire fighters. This is commonly known as the §207(k) or §7(k) partial overtime exemption.

Most public safety unions have negotiated collective bargaining agreements that provide better overtime benefits than the FLSA, for instance in terms of hour rate, daily overtime, and minimum payments, under most circumstances. In limited situations, however, the FLSA provides a better benefit than the contract, and numerous unions have taken employers to court to obtain those statutory entitlements.

To summarize the rulings in Murphy v. Town of Natick:

First, the Court ruled that the federal overtime rate for police officers MUST include shift differentials, education incentive, assignment differentials, and community services, but not in-service training stipends. (Please note that these payments must be included only when the FLSA compels the payment of overtime and not necessarily when the union contract does. Normally, union contracts require overtime pay for many hours that are not deemed overtime-eligible by the FLSA and may use an overtime rate that does not include wage supplements.)

Second, the Court ruled that details for any town department, such as the recreation department, DPW, and the schools, are considered “hours worked” under the FLSA and must be paid at FLSA overtime rate (instead of the lesser detail rate) if they are worked beyond 40 hours. (If the detail rate is greater than the FLSA overtime rate, then the detail rate applies.)Judge Stearns’ decision has two highly controversial features involving the application of the FLSA to superior officers and the calculation of damages owed by the Town. First, Judge Stearns appeared to rule that superior officers are by definition exempt from the protections of the Fair Labor Standards Act. “Executive” employees are exempt from the entitlement to overtime under federal law and are defined as employees who a) are paid on a salary basis of at least $455 per week; b) have a primary duty of managing the workplace; c) customarily and regularly direct the work of two or more other employees; & d) have the authority to hire or fire other employees or whose suggestions and recommendations in this reqard “are given particular weight.”

Under regulations issued by the Department of Labor in 2004, this exemption does not apply to

police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

29 CFR 541.3 (emphasis added). Judge Stearns interpreted this regulation narrowly as applying only to officers in the “rank” of detective (detective, as most people know, is an assignment rather than a “rank”). This interpretation, to us, flies in the face of the regulation’s plain language, which already lists detectives and all other titles, and the purpose of the exemption. We interpret the regulation as protecting superior officers who engage in actual police work (such as a patrol supervisor or ranking detective) and exempting only those superior officers, if any, who primarily supervise other employees or handle administrative tasks.

The 2004 regulations also added a requirement that executive employees, to be exempt from the FLSA, must possess the authority to hire or fire employees or to effectively recommend such actions. In Natick, the Judge found that “superior officers play an influential role in the process by evaluating and interviewing new hire candidates as well as candidates for promotion.” In many other communities, superior officers play little, if any, role in personnel decisions and therefore may be protected by the FLSA.

In the second controversial aspect of the decision, Judge Stearns ruled that the Town may offset its liability by considering the amount of premium pay (in other words, the one-half of the regular rate paid in addition to the regular rate) it paid that exceeded the overtime due under the FLSA and was required by the union contract or some other requirement.. This is commonly known as the “premium offset.” Plaintiffs and union advocates argue that the Town may only offset its liability on a pay period-by-pay-period basis (For example, if the FLSA required Officer Smith to receive $50 more during Week A, but the contract required the Town to pay overtime premiums in excess of the FLSA of $30 for that week, the Town could reduce its liability to $20 for Week A. But if the Town paid excess premiums in Week B of $20, it could not use this excess payment to reduce its Week A liability to $0). Taking its cue from the latest chapter in O’Brien v. Town of Agawam case, another recent Massachusetts decision, Judge Stearns agreed with the Town that it may apply a credit “regardless of when the premiums were paid and when the overtime work occurred.”

Curiously, the issue of the §7(k) exemption did not arise in Murphy, because the Town conceded that it had not adopted any such exemption, thus supporting the ruling of the U.S. First Circuit Court of Appeals in O’Brien v. Town of Agawam that, at least in police departments with a ‘4 and 2’ schedule, a §7(k) exemption is not automatic. A Town must take affirmative steps adopt §7(k) in order to receive its benefits.

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On September 27, 2007, Governor Patrick signed legislation that will require covered employers to recognize a union based on a showing that a majority of employees want to form a union. In doing so, Massachusetts joined a handful of states that have outpaced the U.S. Congress in enacting worker friendly legislation. Last June, a federal bill that would have extended similar rights to employees was derailed when Republican senators threatened to filibuster.

The bill, which amends c. 150A and c. 150E, applies to public sector employers, and to the limited number of private sector employers not covered by the National Labor Relations Act (such as race track workers and workers at quasi-public commissions). The main impact of the bill is the elimination of lengthy waits for elections conducted by the Labor Relations Commission. Prior to the passage, employers could require employees to submit to the LRC election process, which in recent years has grown more lengthy as the LRC’s staff and budget have been reduced. Now, an employer must recognize a union once a neutral determines that a majority of employees have given their written authorization for representation. The neutral must be appointed within 10 days of the union’s presentation of the authorization to the employer, and must complete the verification within 30 days thereafter.

Unfortunately, some employers may still attempt to drag out the process by challenging whether the bargaining unit sought by the union is appropriate. It appears that the LRC will still need to conduct hearings when there is a dispute regarding the bargaining unit.

In practice, the Massachusetts law will have as much symbolic as practical effect. The public sector in Massachusetts is already heavily organized, and, even when a group is unrepresented, towns and cities most often do not engage in the type of anti-union campaigns seen in the private sector. In the private sector, employers often use the time created by delays in elections run by the National Labor Relations Board to bring in anti-union consultants to pressure employees not to exercise their right to join together to advance their interests. This law will not impact those employers, but will send a message that Massachusetts stands behind workers rights.

On the federal front, the Employee Free Choice Act (EFCA) would have extended similar rights to the vast majority of workers in the country, and would have strengthened other worker protections in the National Labor Relations Act. That bill passed the House of Representatives in March, but, as noted, died in the Senate. The AFL-CIO has made passage of EFCA its primary legislative goal, and the Democratic controlled Congress has vowed to send the bill to our next president for signing in January, 2009. All of the major Democratic candidates for president have indicated that they will gladly sign the bill into law at that time.

SJC Justice Oliver Wendell Holmes (later a U.S. Supreme Court Justice) once famously quipped in an 1892 case by a terminated New Bedford police officer against the Mayor: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”  The decision symbolized a callous view about the free speech rights of public employees, who like most employees were considered servants of their master.  The U.S. Court of Appeals for the Ninth Circuit has updated Justice Holmes’ famous line: “[the Plaintiff] may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same time.” 

In the case Dible v. City of Chandler, Arizona, the federal appeals court on the West Coast has ruled that the First Amendment does not prohibit a municipal police officer from being terminated for running a pornographic web site involving his wife.  The case involves another sharp reminder about the limitations of off-duty conduct placed upon police officers. 

The Arizona municipal police officer in question operated a web site that featured naked pictures of his wife, including footage of the wife having sex with the officer.  The couple also organized meet-and-greets for fans of the site at area establishments.  When the Department learned of the site, it investigated the officer, who lied during the investigation.  The City fired the officer, who subsequently filed suit in federal court.  

The Ninth Circuit wasted little time in rejecting the First Amendment claims of the officer.  Claims under the First Amendment balance the expressive activity of the employee versus the public concern for efficient public services.  The federal court placed enormous emphasis on the disruptive consequences of the officer’s activities police officers: intense and unflattering media coverage, reduced morale, and diminished recruitment, especially among women.  In other words, less popular speech is afforded less coverage.  (The officer argued that the Court’s ruling gave a “heckler’s veto” power to public employers).  The Court also noted the unique moral expectations placed upon police officers.

The situation here is compounded by a) the public nature of the officer’s off-duty activity; b) the economic profit motive of his activity; c) the lack of express political dimension associated with the officer’s activity; and d) the false or misleading statements told by the officer during an internal investigation.  A concurring opinion advocated an analytical approach more considerate of the rights of public employees.  The concurring judge suggested that the termination should have been upheld due to the officer’s admitted lies, not for the content of his off-duty activity.

The Court’s decision does not mean that the same result applies to a Massachusetts municipal officer involved in the same or similar conduct.  The Ninth Circuit has no authority over Massachusetts, which belongs to the First Circuit.  Moreover, state free speech laws and collective bargaining agreements may be interpreted to provide greater protections to police officers.

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In Massachusetts, public school teachers do not obtain Professional Teacher Status (otherwise known as tenure or protection against discharge without just cause) until they teach four consecutive years without being terminated. Teachers automatically attain PTS if they are appointed for the fourth consecutive year. The decision to reappoint a teacher for four consecutive years is vested exclusively with the School and generally is not be subject to arbitration. Schools are mandated by statute to conduct performance evaluations of non-tenured teachers (G.L. c.71, §38). This same statute permits teacher unions to negotiate with school employers about the process used to evaluate a teacher’s suitability for reappointment or PTS. In the recent decision of the School Committee of Hull v. Hull Teachers Ass’n, MTA/NRA (issued August 27, 2007), the Massachusetts Appeals Court affirmed that a public employer’s violation of a negotiated evaluation procedure may be remedied by reinstating the teacher to his or her job.Here, a school principal in the Town of Hull declined to rehire a particular teacher. Contrary to the express terms of the contract with the local affiliate of the Massachusetts Teachers Association, the school committee never formally observed the teacher in her classroom or never evaluated her performance in writing. In other words, the teacher had no idea that she failed to meet the employer’s expectations and was provided no opportunity to improve her performance. The arbitrator upheld the grievance and ordered the teacher to be reinstated. Despite agreeing to final and binding arbitration, the school committee appealed the decision to superior court and then the appeals court. The Appeals Court had little sympathy for the School’s arguments and ruled that the arbitrator did not impinge upon managerial rights. Quoting an old case which set forth similar principles under the former teacher tenure law the Court stated, “The award merely requires that . . . [the board of education] follow procedures it has agreed to adopt in its decision-making process in the area of tenure.”

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In Doro v. Sheet Metal Workers’ Intern. Ass’n, 2007 WL 2331941 (2nd Cir. 2007), the Second Circuit Court of Appeals rejected a union member’s claim against the international about his discipline for working in violation of his local’s rules. In this case, the member worked for a union employer under terms and conditions less than those required by the collective bargaining agreement. The local charged the member with violating its constitution and convened a trial board to review the charges. The member, who incidentally was an owner of a union employer, did not contest the accuracy of the charges and admitted misconduct. The local then fined the member about  $11,000.00. The local membership and international body upheld the fine on appeal. The member sued the local and the international under the Labor-Management & Reporting Disclosures Act (LMRDA), which regulates internal union governance for many private sector unions. He claimed in essence that the charges were vague. Prior to trial, the local settled with the member; the International did not.

The Second Circuit held that the International did not illegally “ratify” the due process violations because its decision was based upon the admissions of misconduct by the member. The Second Circuit went further and suggested that a local that allegedly violates due process provisions of the LMRDA is not thereby precluded from disciplining a member where the member’s misconduct cannot be plausibly disputed. “It remains an open question whether a local union can violate a member’s due process rights under the LMRDA when the member does not contemporaneously challenge the deficiencies of the charging document and admits, during the intraunion appeal process, the factual basis for the charges and his understanding of the nature of the charges.”

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