At a PERAC meeting on January 25, 2006, there was a change of direction. Instead of adopting proposed legislation as they had voted at the last meeting, they decided to adopt a regulation, a copy of which is attached. This change was based in part upon the belief of some union legislative agents that they could no longer guarantee a favorable outcome (or even reasonably control the outcome) if this issue were put into the hands of the legislature.

The regulation was submitted to the clerk of the legislature on January 31. The regulation will become the law if the legislature approves it or if the legislature does not reject it within 45 days from that submission (that would be March 17, 2006, St. Patrick’s Day). All the legislative agents expect that the legislature will allow the regulation to become effective.

This new regulation grants more extensive grandfather rights than the regulation that was originally proposed. It allows anyone to opt in to a superlongevity plan at any time during a contract that was in effect on January 25, 2006. Such a participant in the plan could then receive his superlongevity benefit for three years, even if that three years took him under a new contract, and he would be able to count the benefit in his retirement. For example, under a contract effective from July 1, 2005 through June 30, 2008, an employee could opt to begin receiving superlongevity as late as June 29, 2008. He would be able to receive superlongevity for 3 years until June 29, 2011 (assuming that the 2008-2011 contract continued to provide superlongevity) and then retire on June 30, 2011 and have his superlongevity counted in his retirement.

If a contract expired on June 30, 2005 (or before) and is continuing beyond January 25, 2006 pursuant to an evergreen clause, an employee who wants superlongevity will have to opt into the plan before that contract is replaced with a new agreement.

When the current contract is going to be replaced, we will need to modify our superlongevity plans to accommodate this regulation. I would recommend that we provide a continuation of superlongevity benefits for those who have already opted into the superlongevity plan, and then provide an alternative benefit all other employees. For an alternative benefit, I would suggest either a large longevity step at 29 or 30 years of service, or a “senior employee benefit” (a new wage step for one or more of the most senior employees in the department).

In advising members or in taking any action with respect to new contract provisions, remember that the regulation is not yet final. Although everyone expects it to become law, anything could happen up at the state house.

PEARC Regulations

The Appeals Court has again confirmed that, not withstanding an arbitrator’s ruling, it will not permit any infringement on what it views as a police chief’s inherent managerial right to require mandatory overtime of public safety personnel. In Town of Saugus v. Saugus Public Safety Dispatchers, issued 12/23/05, the Appeals Court again overturned an arbitrator’s award finding a contract violation in a chief’s requiring mandatory overtime. This case involved police dispatchers. The decision follows similar ones involving Saugus (64Mass. App. Ct. 916 (2005)) and Andover (45 Mass. App. Ct. 167 (1998))police officers.

The message for those of us representing public safety personnel is clear: Mandatory overtime is a fact of life. Our job is to negotiatewith management to make such overtime as acceptable as possible. The lawis quite clear that management has to negotiate with a union over how much someone gets paid to perform overtime and the process of selecting who does the overtime. Some unions have a rotating list by inverse seniority; others confine the requirement to the most junior officers.In some cases, where last minute absence leaves no other choice, officers have to be held over.

Aside from the basic reality that someone can be required to work overtime, the identity and compensation of that person or persons is within the union’s power to negotiate. I have always felt that it is unwise for police unions to contest management’s requiring mandatory overtime. If we are arguing that the work police do is essential, it makes no sense to say that, if no onewants to do that work on a particular shift, it is unnecessary. To the contrary, police unions need to advocate that for reasons of both officer safety and workload, there must be at all times a minimal number of officers available to respond to service calls and calls for officers in trouble.

More funding for the state’s Department of Labor would speed the resolution of labor disputes and assist both employers and workers, labor attorneys told state officials Thursday. At a budget hearing that DOL officials said would inform their talks with the Executive Office of Administration and Finance, the lawyers lobbied for increased line items for the department’s five labor relations agencies. "What we’re asking you to do is to enable these agencies to be as effective as they can be," urged Joseph Sandulli of the Boston law firm Sandulli Grace, which specializes in labor litigation. "Please don’t delete them, don’t tamper with them".

The sparsely attended public hearing included officials from each of the five agencies, DOL Director John Ziemba said: the Massachusetts Division of Occupational Safety, the Labor Relations Commission, the Board of Conciliation and Arbitration, the Joint Labor Management Committee, and the Department of Industrial Accidents. "They really have been crippled by all these budget cuts," said Amy Davidson, a Sandulli Grace attorney.

Adequately funded, smoothly running offices designed to help settle labor disputes cut down on the ancillary costs associated with the lawsuits and disruptions, and their impact on cities and towns, the attorneys testified. "The quicker we can resolve these problems in the labor management arena, the better off both parties are," Davidson said. Ziemba called the department’s budget requests part of "an iterative process" leading up to Gov. Romney’s budget proposal set to be unveiled next month. Hearing from "interested parties" helps the department’s budget authors "crystallize" the various agencies’ needs, Ziemba said. "It informs the debate about certain items and how important they are".