In Pellegrino v. Springfield Parking Authority (May 17, 2007), the Massachusetts Appeals Court affirmed that retirees from Massachusetts public employment cannot work for another state or local public employer in Massachusetts, including quasi-public agencies. Under Massachusetts General Law Chapter 32, § 91, individuals collecting benefits from a state or local retirement program generally cannot be paid for services rendered to another public employer. The limited exceptions to this ban on post-retirement public employment include when a retiree waives his right to retirement allowance during the period of post-retirement enrollment, or when the retiree works no more than 960 hours and earns no more between employment and retirement than the current salary for the position from which the former employee retired.

While the above rule is relatively straightforward, Kathleen Pellegrino argued that this prohibition on post-retirement employment applies only to public retirees who work for the state or local governments and not to public retirees who work for quasi-public entities such as the Springfield Parking Authority. The court disagreed.

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Sandulli Grace, PC Attorney Patrick Bryant has been invited to speak ona Boston Bar Association panel regarding recent developments in laborlaw. The panel is Tuesday, May 1, 2007 from 12:30 p.m.-2 p.m. at theBBA offices, 16 Beacon Street. According to the BBA, “An experiencedpanel of labor law practitioners-two from the union-side and two whorepresent management-will discuss current topics in labor law. Includedin the discussion will be the NLRB’s recent decision regardingsupervisors, Oakwood Healthcare, Inc., and its likely legal andpractical effects going forward.

The panel will also discuss theEmployee Free Choice Act, proposed legislation that has passed the Houseof Representatives and was recently introduced in the Senate, andneutrality agreements and card check recognition.” For information onattending the panel, go to www.bostonbar.org or call (617) 778-2030.

The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released four decisions that dismiss union charges of unfair labor practices. For your consideration, we provide the following brief summary of the key decisions.

COMMONWEALTH OF MASS/COMM’R OF ADMIN. & FINANCE (SUP-05-5174) (March 30, 2007)

In this case involving correctional officers, the Commission holds that an employer’s decision to record investigatory interviews of employees, instead of taking handwritten notes, does not qualify as a change in a term or condition of employment. The Commission also dismissed the charge over the new policy of disciplining employees for refusing to participate in investigatory interviews as there was no evidence that the employer did not do so prior to the policy.

Town Of Tyngsborough & IBPO (MUP-05-4420) (March 7, 2007)

In this case involving IBPO police officers, the Labor Relations Commission strictly interpreted its six-month statute of limitations in a manner that may encourage unions to file more ULP’s and more quickly. Here, the Union filed a ULP charge six months after the parties first discussed changes to the personal leave policy. Because the Union knew of these changes prior to that first meeting, the Commission ruled the charge to be untimely.

The Commission also found that the Union failed to support that the Town made a unilateral change concerning the personal leave and shift-swap policies. First, the union produced no evidence of a past practice that entitled patrol officers to use a personal leave whenever request. Second, the Union offered no evidence of the shift-swap practice in existence prior to the Town’s adoption of the policy.

CITY OF PITTSFIELD (MUP-05-4480) (March 7, 2007)

In this case involving IBPO police officers, the Union charged that the City’s implementation of a flex time scheduled for an in-service training officer violated the Law. The Commission disagreed and dismissed the charges. First, the Commission found no evidence that a flex time schedule actually was implemented. Second, the Commission found no evidence that the employer dealt directly with the officer about scheduling. Third, the absence of a new flex time schedule meant that the employer had no obligation to bargain. Finally, the Commission found no support for the claim that the employer refused to provide information requested by the Union. It noted that the Union failed to produce a copy of any request or describe the information not provided.

TOWN OF AGAWAM (MUP-05-4479) (March 30, 2007)

Here, the Commission dismissed the Union’s claims that the Town violated the law when it negotiated wage increases individual with three members of the bargaining unit. As wages are a mandatory subject of bargaining and the union is the exclusive bargaining agent, an employer cannot negotiate or implement changes to individual employee pay without providing notice and an opportunity to bargain first to the union. However, the undisputed evidence showed that the parties had a longstanding practice of permitting the Town to negotiate directly with individual employees and the Union had never communicated a change in its position on this practice. The Commission dismissed the charge.

In an ongoing battle between the Town of Agawam and its police officers regarding the Fair Labor Standards Act, U.S. District Court of Massachusetts Judge Ponsor affirmed the Town’s liability. His decision in the case of O’Brien v. Agawam (O’Brien III) (March 31, 2007) rejected four arguments raised by the Town.

First, the Court rejected the Town’s argument that regular rate or base pay for purposes of calculating overtime should exclude time spent on paid leave. “Plaintiffs’ ‘regular rates’ should be calculated by adding their annual salaries, wage augments, and roll call pay, then dividing that amount by the number of hours these payments are intended to compensate (1950 plus roll call time).” Second, the court affirmed that the officers should be compensated during their meal breaks, which are unscheduled and during which they remain “on call.” As a side note, the Court states that the Massachusetts meal break law, G.L. 149, §100, does not apply to municipalities.

In the third and most significant aspect of its decision, the Court sets forth the standard to calculate overtime liability for periods of “court time.” Under the FLSA, officers receive 1.5 their regular rate for hours worked beyond 40 (unless the employer affirmatively adopts a §7(k) period). Applying this principle to periods of court time can be tricky, given that many officers receive a minimum payment of 3-4 hours pay whether or not they work that time. In cases where the Town does not record actual time worked by officers at court, Judge Ponsor said that the employee first must show: 1) he “performed work for which he was improperly compensated”; and (2) sufficient evidence of “the amount and extent of that work as a matter of just and reasonable inference.” This is not an onerous task, noted the court, and the officers discharged their burden with an affidavits from officers estimating that they actually worked the minimum amount of time. At this point, the burden shifts to the town to refute the reasonableness of the employee’s claims. As the court noted, “the purpose of the burden-shifting scheme in cases like this is to prevent an employer from capitalizing on its failure to maintain records.” Here, the Town did not supply counter affidavits from court officials who could challenge its claims that officers did not the claimed time in court.

Finally, Judge Ponsor affirmed that the Town must pay liquidated damages, which means that Plaintiffs will receive double unpaid overtime compensation.

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A recent decision by Massachusetts’ highest court may help to protect the privacy of individuals falsely accused of crimes by other citizens. The case, Eagle-Tribune Publishing Company v. Clerk-Magistrate of the Lawrence Division of the District Court Department, SJC-09665 (“Eagle-Tribune”), was issued by the Supreme Judicial Court on March 28, 2007. Law enforcement officials may benefit the most from the decision as police officers frequently are falsely accused of crimes by criminal defendants and can suffer public embarrassment from these false accusations.

The case discusses the public’s right to attend a “show cause” hearing, also known as a clerk’s hearing, which is a procedure that allows private citizens and police officers to apply for criminal process to issue against someone else. (The statutory basis for the procedure is G.L. c. 218, §35A.) The show cause hearing is held before a clerk-magistrate, who decides whether the evidence produced by the applicant shows probable cause that the accused committed a crime. Show cause hearings often are informal. The rules of evidence do not apply. The decision-maker is not a judge. The person accused of the crime has no right to appointed counsel at the hearing, though parties may retain private counsel to represent them. In many cases, criminal defendants use the show cause hearing procedure to allege crimes committed by the police officers who arrested them, whether or not the criminals have credible support for their claims. Criminal defendants may file such a claim as leverage to obtain dismissal of the charges against them.

The Eagle-Tribune case, involved a stabbing of an underage patron in a nightclub. The police applied for issuance of criminal process against the corporate owner of the club and a show cause hearing was scheduled. When the local newspaper sought to attend the hearing, the clerk-magistrate refused and declared the hearing private. The newspaper appealed, and the SJC decision is the ultimate response to that appeal.

The SJC found that the clerk-magistrate was well within his rights to declare the hearing private. Specifically, the court declared that there is no right under the First Amendment of the U.S. Constitution to public access to show cause hearings. The court provided three main reasons for this conclusion: (1) there is no established history or practice of public access to such hearings; (2) the show cause hearing is more like a grand jury proceeding (which is private) than a probable cause hearing (which is public), because the show cause hearing occurs before there are any criminal charges against the individual (as in the grand jury), while the probable cause hearing involves someone who is already charged with a crime; and (3) there is a strong public policy in favor of protecting the privacy and reputations of individuals who have been falsely accused of crimes from public exposure; according to the court, one important goal of the hearing is to “screen out baseless complaints with minimal harm to the accused’s reputation.”

Although the SJC found no First Amendment right for access to show cause hearings, it did state that public access is permitted and may even be desirable in some cases, when the legitimate interest of the public in the proceeding outweighs the right of privacy. In other words, the clerk magistrate decides whether a particular show cause hearing is open or closed. Although the court did not rule directly on this issue, it did provide some guidance on how it might rule in the future if a clerk-magistrate makes a show cause hearing public over the party’s objection. First, it is relevant if the underlying matter is already public, through, for example, news accounts. Then, the right of privacy arguably has been compromised already, and a public show cause hearing will not likely increase any damage to the accused individual’s reputation. Second, if the accused is a public official or highly visible person, the public interest in the matter may be more significant than if the accused is a private citizen. (The court does cite with approval the District Court Standards of Judicial Practice: The Complaint Procedure (1975), which states that “[t]he sole fact that the person complained against is a public official or otherwise well known is not in and of itself . . . reason for the hearing to be public." Commentary to standard 3:16.)

In sum, the Eagle-Tribune case is a mixed blessing for individuals, such as law enforcement officers, whose professions put them in contact with citizens who may have a reason to accuse them of crimes falsely. On the one hand, the clerk-magistrate has the right to make the hearing private, because the First Amendment does not give anyone the right to make it public. On the other hand, the clerk-magistrate has the power to make the hearing public over the objections of the parties under some circumstances.

The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released a batch of decisions from February 15 and March 15, 2007. For your consideration, we provide the following brief summary of the key decisions.

Board of Higher Education & AFCSME Council 93 (CAS-06-3631)

In this case, the Labor Relations Commission classifies Administrative Assistants to the Vice President of Student Affairs and the Vice President as "confidential employees" who are excluded from a bargaining unit of clerical employees. One assistant has access to the executive’s correspondence and phone calls regarding personnel decisions, including promotions, warning letters, requests for resignations, and the performance evaluations of department directors. She also examines personnel files and conducts research into personnel matters at executive’s request.

The other assistant is "involved in monthly budget meetings and directly handles the entry of budget numbers for the College’s operations and its budgetary planning," and has access to bank statements and documents. This involvement makes her "aware of the College’s budgetary discussions before final decisions or recommendations are publicized, including plans for layoffs or retrenchment of positions, assessment of departmental budget requests, funding for collective bargaining agreements, and the feasibility of proposed new positions." As a result, the Commission decides that this assistant, too, has significant access and exposure to confidential information concerning the impact of budgetary issues on labor relations matters.

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NAGE (SUPL-03-3012)

In this case, a laid off employee charged a union, NAGE, with violating its duty of fair representation for the manner in which she was bypassed during two recalls in 2002 and 2003. The Commission dismissed the DFR charge as untimely because the primary allegations concern activity in 2002 which was beyond six-month statute of limitations period. The Commission indicates that it would consider these allegations if they were connected to activity that occurred six months prior to the filing of the charge. It suggests evidence that might have saved the charge: 1) when the second recall occurred; 2) the date on which the charging party learned about that recall; 3) when charging party’s representative contacted the Union to ascertain why DOR had not recalled charging party for the second time; 4) to whom the representative spoke at the Union; and 5) the details of his discussions with the Union.

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Town of Weymouth/IAFF (MUP-05-4403 & MUPL-05-4516):

In these related cases, the Commission dismisses charges by a firefighter against town and union. The Commission found no evidence that involuntary transfer of firefighter over less senior employees constituted unlawful retaliation and intimidation as there was no evidence the employee engaged in protected, concerted activity, the town was aware of this activity, or the transfer was motivated by a desire to penalize or discourage protected activity.

The Commission also found that the union’s refusal to process the firefighter’s grievance did not violate its duty of fair representation. In the decision, the Commission added language that should serve as guidance for union decisionmaking and as boilerplate defense against baseless DFR charges:

"Rather, the information demonstrates that the Union considered and evaluated the merits of the Charging Party’s grievance, decided not to process the grievance on the Charging Party’s behalf, notified the Charging Party of its decision, and informed the Charging Party that he could process the grievance on his own up to the point of arbitration. Further, the Union considered the seniority argument proffered by the Charging Party and based its conclusion on its interpretation of the Agreement."

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State Police & SPAM (SUP-04-5104)

Here, the Commission refused to reconsider its earlier dismissal of an unfair labor practice concerning a charge of illegal transfer of shared bargaining unit work. The Commission held that its decision in a related case did not entitle the union to victory here. A previous ruling that the state police department illegally withheld information concerning shared work does not, without more, mean that employer committed an unfair labor practice on unilaterally changing a condition of employment.

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Mass Turnpike Authority & USWA (UPL-05-169):

In another victory for unions, the Commission affirmed its previous dismissal of a charge against union which concerned its behavior during bargaining about part of the bargaining unit while the parties awaited a decision on the unit’s appropriateness.

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BHE & AFSCME Council 93 (SUP-05-5177)

In this case, the Commission found that the Union failed to show that the parties reached an oral agreement about an inclement weather policy for non-essential personnel. As part of its ruling about the absence of an oral agreement, the Commission noted that there was no evidence that the Union informed its members about the existence of an alleged oral agreement.

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Worcester & NAGE (MUP-05-4542).

Here, the Commission concludes that the employer lawfully bargained to impasse on dredger reorganization and therefore was entitled to unilaterally change a condition of employment. The decision notes that the union failed to act aggressively enough to indicate that further bargaining could be productive

"Even though the Union asserts that it was ‘prepared to engage in further negotiations,’ it did not request that the Employer reopen negotiations at any point following the exchange of final offers on April 5, 2005. Additionally, there was no appreciable lapse in time between the last negotiation and the Employer’s declaration of impasse on April 7, 2005. Finally, the Employer’s letter dated April 7, 2005 was a ‘clearly defined and communicated position on impasse,’ and the Union’s failure to rebut that position indicates that the parties had reached ‘a contemporaneous understanding of the state of negotiations.’ HECC, 23 MLC 16, 19 (1996). This ‘state of negotiations’ in the instant case was an impasse."

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Recently, as you can see in this news article, Circuit City decided to fire thousands of trained, competent employees and replace them with lower-paid people off the streets. Why? Because they legally can.

Here is an example of why workers need unions. These Circuit City workers had no union contract to protect them. At the whim of corporate bosses, they could be fired for no reason and replaced by lower-paid workers to do the same job. This is not the same as laying people off to reduce the work force, as the auto manufacturers have done. This is simply cheapening the work force. This could not be done under a union contract. These workers, like virtually all American workers without a collective bargaining agreement (excluding only those few highly paid ones with individual employment contracts) are “employees at will.”

What this means is that they can be legally fired for any reason or no reason. The only exception to this doctrine is when the firing is for a reason that is specifically made illegal, such as race, gender, age, handicap, etc. But if these Circuit City workers were replaced just to save money or, for that matter, if the CEO had a dream that led him to this decision, this is all perfectly legal in the U.S. So, the moral of the story: if you have a union contract, treasure it. You should also note that fewer than 8% of American private sector workers are covered by collective bargaining agreements. This figure has steadily eroded from about 35% in the 1950’s.

Link to article:

http://www.signonsandiego.com/news/business/20070329-9999-1n29circuit.html

In Parker v. Town of North Brookfield, No. 06-P-167 (February 15, 2007), the Massachusetts Court of Appeals upheld a public employer’s termination of an at-will employee who exercised her statutory right to health care benefits. The town terminated the employee purely so it could avoid cost of meeting its health insurance obligations. By allowing public employers to terminate employees who demand health insurance, the Court reinforced incentives and benefits of unions, whose members generally receive health insurance and protections against retaliatory treatment.

The case involved an animal control officer who was subject to annual appointment. For many years, the employee was not enrolled in the town’s insurance program, as she received benefits from her other (public) employer. Following the transfer, she requested enrollment in the town’s insurance plan, to which she was entitled under Massachusetts General Law, Chapter 32B. The town responded to the employee’s request for basic health care benefits by terminating her, eliminating her position, and transferring her animal control responsibilities to the police department. The town reassigned the animal control duties to other members of the police department. There was no dispute that the town acted “purely on the basis of avoiding the cost of providing her with insurance.”

In one of the decision’s few victories for employees, the Appeals Court first held that an aggrieved public employee could sue a municipality in court for its violation of state health care laws, even though the statute does not specifically provide a mechanism for such lawsuits. Nevertheless, the court still upheld the town’s actions.

The Appeals Court acknowledged that the town’s actions would violate the federal ERISA law, 29 USC §§ 1001 et seq., if the law applied (ERISA generally does not apply to public employers). The court then declined to adopt the federal rule into chapter 32B, even though the employer’s actions arguably violate the spirit and purpose of chapter 32B. In other words, the court held that employees may sue to enforce the terms of state health care laws, except when they are fired for seeking to enforce the terms of health care laws.

The court later held that the town’s actions did not violate public policy, because, it reasoned, the town’s effort to control its budget was consistent with decision making of a private sector employer. It wrote, “[W]e note that in the context of the private sector, financial considerations can provide good cause to terminate an at-will employee.” The court arrived at this conclusion despite its previous acknowledgment that a private sector employer could not have acted in a manner that the town did here. The court further held that it did not matter if the town acted in bad faith.

The court’s decision may only compound the health care crisis by intimidating uninsured employees from asserting their rights and by rewarding employers who seek to avoid their obligations. By taking such an unsympathetic view of uninsured public employees, the court reinforced the benefits of union membership. Employees who are represented by a union generally are not “at-will.” They only cannot be fired if the employer has “just cause.” An employer does not have “just cause” if it fires an employee in retaliation for asserting statutory rights, and where the employer merely transfers the job responsibilities to other employees in the town. Further, a union could sue the town in an instance as here for unlawful retaliation and for unilaterally transferring or subcontracting the union work.

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In this Brockton Arbitration Award the arbitrator enforced contractual language notwithstanding a twelve year contrary past practice.

The grievance challenged the City’s twelve-year practice of compensating Animal Control Officers for overtime based upon a forty (40) hour work week rather than a thirty-five (35) hour work week. The City challenged the grievance both on arbitrability timeliness grounds and on the merits.
The arbitrator found that the grievance was arbitrable, notwithstanding the City’s timeliness defense, holding that the union had no knowledge that Animal Control Officers were being paid on a forty (40) hour workweek until just prior to filing the grievance. In addition, the arbitrator found the grievance to be a continuing violation.

The arbitrator also enforced the thirty-five (35) hour work week language of the contract, notwithstanding the fact that the City had a twelve-year practice of paying Animal Control Officers based upon a forty (40) hour work week.

Accordingly, the arbitrator held that the City violated the contract by calculating Animal Control Officer overtime based upon a forty (40) hour work week rather than a thirty-five (35) hour work week. As a remedy, the arbitrator ordered the City to make the Animal Control Officers whole for all losses retroactive to ten (10) days prior to filing the grievance. In addition, she ordered the City to prospectively compensate Animal Control Officers and the Animal Control Supervisor an hourly/overtime rate based upon a thirty-five (35) hour workweek.

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In two recent cases, the Massachusetts Appeals Court has flatly rejected efforts by public employers to overturn arbitrator awards in favor of unions representing criminal justice system employees.

It is a basic principle of Massachusetts labor law that courts generally cannot overturn an arbitrator’s decision except under very exceptional circumstances. It is similarly well established a court won’t overturn awards even it if believes the arbitrator made mistakes in interpreting the law or in determining the facts.

Despite the exceptionally high threshold, Massachusetts public employers routinely waste public time and resources by refusing to accept an arbitrator’s decision as binding and final. Public employers may feel encouraged – wrongly so – by the Court’s decision in by the Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813 (2005) (aka DiSciullo). This case involved highly exceptional circumstances of when an award reinstating a police officer was reversed, because reinstatement of an officer found to have repeatedly lied under oath and filed false criminal charges (both felonies) would violate state law prohibiting felons from being police officers.

For detailed information see the following:

Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 03-P-1154 (Feb. 1, 2007)

Sheriff of Suffolk County v. AFSCME Council 93 (Feb. 13, 2007)