Category Archives: Labor In The News

Sandulli Grace Attorney Submits Testimony on Civil Service for the Massachusetts Coalition of Police

The police reform bill recently passed by the Massachusetts Legislature (known as the Massachusetts Peace Officer Standards and Training or “POST” law) established a number of committees to study various aspects of policing in the Commonwealth. The job of one of those committees is to study the current civil service system and determine whether any changes need to be made, or whether the entire system should be eliminated. Sandulli Grace attorney John M. Becker recently submitted written testimony to the civil service committee on behalf of the Massachusetts Coalition of Police, a statewide law enforcement union that is one of Sandulli Grace’s clients. The testimony is reproduced below:

Mr. Chairman/Madame Chairwoman, members of the Committee:

My name is John Becker. I am an attorney with the law firm of Sandulli Grace, P.C. I am writing on behalf of our client, the Massachusetts Coalition of Police, a labor organization that represents over 4,500 police officers and other law enforcement professionals in more than 175 cities and towns in Massachusetts.

I am here today to testify in favor of retaining the civil service system for public safety employees in Massachusetts. There are significant benefits to keeping civil service, as I will explain, and eliminating the system is likely to have significant negative consequences, not the least of which is that dismantling the system and distributing these powers and duties to 351 separate municipalities would be contrary to the objectives of the POST legislation to create consistent statewide standards for police.

Right now, civil service operates in 170 Massachusetts municipalities, including every city in the Commonwealth and a significant number of towns. The state human resources division (HRD), through its civil service unit, regulates hiring and promotional procedures, compiles and administers tests, and compiles and manages eligibility lists from those tests. When a municipality seeks to appoint or promote a public safety officer, civil service ensures that the legal standards are adhered to. HRD also provides an appeal process for applicants who have concerns regarding bypasses, scoring, and training and experience credits. In addition, the Civil Service Commission provides review of suspensions, terminations, and demotions of civil service employees. Upon the appeal of an employee, the Commission reviews such decisions to ensure there was just cause for the action.

Eliminating the civil service system will have significant negative consequences for employees, municipalities, and the Commonwealth as a whole. The purpose of the civil service system is to ensure that appointments and promotions are based solely on merit. The Commonwealth has developed standardized tests for physical fitness, as well as standardized written examinations testing the applicant’s knowledge and skills. The rules for appointment and promotion ensure that employers must rely primarily on objective criteria – test results, training and experience, and other relevant factors – to make their decisions. The system significantly reduces or eliminates the use of political considerations, personal preferences, favoritism, and other irrelevant criteria for hiring and promotional decisions. Returning control of the system to the municipalities will only increase the opportunities for local officials to use these non-objective criteria in the decision-making process.

Maybe even more importantly, the elimination of the statewide standards provided by civil service is inconsistent with the purposes of the recently-passed POST legislation. The idea behind POST is to develop stringent and consistent statewide standards for police. Right now, civil service provides a single, statewide set of standards and rules for hiring and promotion of public safety employees. But dismantling civil service and giving total power for hiring and promotion to the municipalities will potentially create 351 separate sets of rules and standards for hiring and promotion. Instead of furthering the objectives of the POST law, eliminating civil service and dispersing these duties to individual municipalities will do just the opposite, by reducing consistency and creating a patchwork quilt of different standards across the Commonwealth.

This is not to say that municipalities do not have any say in hiring and promotion. Under civil service law, municipalities have the ability to choose from among the top scorers according to a formula known as “2N + 1” and may bypass the top scorer with any reasonable justification. Municipalities can also work with civil service to develop locality-specific testing, or adopt innovative hiring processes such as assessment centers (at the municipality’s cost) to supplement the tests administered by the state. HRD’s rules also allow municipalities to specifically seek local residents, people who speak a certain foreign language, or, if there is a showing of prior discrimination, they can ask for a list of women or minority candidates in order to increase diversity. Furthermore, towns already have the ability to remove themselves from civil service entirely through the political process, and quite a few have taken that step. If municipalities have concerns about specific aspects of the state hiring and promotional rules, they should ask the Legislature to make targeted changes instead of getting rid of the whole system and throwing out the baby with the bathwater.

The ability to appeal disciplinary action to the Civil Service Commission is also a benefit to employees and municipalities. The Civil Service Commission provides a low-cost way for individuals to obtain due process – in a setting removed from local politics – and determine whether there was just cause for suspensions, discharges and demotions. The Commission upholds the discipline in the vast majority of cases. Although many police unions and municipalities also have just cause provisions in their collective bargaining agreements (CBAs), which are resolved through neutral third-party arbitration, some CBAs lack such just cause provisions and so civil service appeals are the only way to obtain review of discipline. Furthermore, because the Union controls the ability to go to arbitration, some individuals may prefer to go to civil service, where they have full control of the process. Even where arbitration is available, civil service provides a lower-cost alternative that both municipalities and unions may sometimes find useful.

In conclusion:

Police officers should be evaluated based on their merit alone. The existence of the civil service system reassures the public that officers have their jobs for no reason other than their qualifications. Police officers can concentrate on doing their jobs, without worrying about being beholden to any particular political force in the community.

The civil service system also provides a consistent statewide standard for hiring and promotion of police and other public safety employees. Fragmenting the system into a hodgepodge of municipal hiring and promotional policies will cause duplication of costs, increased potential for inconsistency, not to mention the potential for political considerations to enter into the process, and moreover, is exactly contrary to the purpose and objectives of the POST legislation.

For these reasons, I urge the Committee to retain the civil service system in Massachusetts.

Families First Coronavirus Response Act: A Brief Explanation

Under a new federal law, titled the Families First Coronavirus Response Act (FFCRA), the federal government has created several new programs to assist workers during the current crisis. There are now ten (10) additional fully paid sick days for employees unable to work either because of their own health concerns or those of others in the employee’s care. The same 10 paid leave days (at 2/3 pay, up to $200/day) may also be used to care for children at home due to school closures. These ten days are in addition to any other contractual benefit. The eligibility requirements to use these days are much less stringent than those in most collective bargaining agreements or employer policies. In addition, the 12 weeks of leave under the Family Medical Leave Act (FMLA) may now be used to stay home with children whose schools are closed. Unlike other forms of FMLA leave, employers must compensate employees at 2/3 of their pay, up to $200/day, for this entire leave period.

While the laws apply to all state and local employees (in addition to private sector employers with fewer than 500 employees), the law allows employers to exempt from its coverage “emergency responders,” a category that includes police officers, fire fighters, public health, and even public works personnel. However, we believe, based on case precedents in Massachusetts, that the decision of whether or not to exempt emergency responders, including police officers and firefighters, is a mandatory subject of bargaining under the Mass. collective bargaining law– meaning that a union can require a city or town to negotiate before it adopts the emergency responder exemption. If your city/town has already adopted the exemption without consulting with your union, you can demand that they rescind their acceptance of it and first bargain with your union. However, we know that some cities and towns have agreed to better benefits for emergency responders than are provided by this new law, so whether or not to demand inclusion in these benefits must be evaluated for each local union.

Attached is the U.S. Department of Labor’s synopsis of the FFCRA (which is available at https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave).
This blog entry is for general informational purposes only. There are 124 pages of regulations and explanations issued by the U.S. Department of Labor to implement the new law. Before any union or individual takes any specific action under the FFCRA, consultation with a union official or attorney is strongly advised.

FEDERAL COURT DISMISSES LAWSUIT AGAINST BROOKLINE FIREFIGHTERS’ UNION

On April 2, 2020, a federal court judge dismissed a discrimination lawsuit against Local 950, International Association of Firefighers (the Brookline firefighters’ union) brought by one of its members. In granting the Union’s motion for summary judgment in Alston v. Town of Brookline, NO. 15-13987-GAO, the Court (Judge George O’Toole) found that there is no genuine issue of material of fact between the parties that needs to be settled through a trial and the matter could be resolved as a matter of law. In reaching this conclusion, the Court stated that the Plaintiff “fails to cite to competent, non-conclusory evidence in support of his objections to the defendant’s cited evidence.”

In 2015, the Plaintiff filed three federal civil rights claims against the Town of Brookline, various town officials, and the Union under Chapter 42, sections 1981, 1983, and 1985 of the U.S. Code. The gist of the claims was that the Union retaliated against the Plaintiff after he protested the discriminatory conduct of another Union member and that the Union failed to file grievances on his behalf because of his race. The Court rejected the 1983 claim, which requires government action, because, as the Court found, ““[t]he factual record does not support a conclusion that the Union was in any way acting under the color of state law… There is simply no evidence that would raise a genuine issue of fact that the Union became so allied with the Town’s actions toward [the Plaintiff] that it effectively became a state actor.” The Section 1985 claim, which requires a finding of a conspiracy between two or more parties, also failed after the Court concluded that “[t]here is no evidence that the Union and the Town were conspiring against [the Plaintiff] to retaliate or discriminate against him” and “there is no evidence in the extensive record that could support a conclusion … that the Union conspired with [the Town] to deprive [the Plaintiff] of his rights.”

The Court also dismissed the Section 1981 claim. To state a claim under Section 1981 a plaintiff must show that they are a racial minority, that they were discriminated against on the basis of their race and that the discrimination implicated one of the activities enumerated in the statute. One activity is the enforcement of contracts; the Plaintiff alleged that the Union had failed to enforce its contract with him because of his race and in retaliation for protesting the actions of other Union members. The Court rejected the Section 1981 claim, noting that “[s]ubstantively, the record lacks evidence that … the Union retaliated against [the Plaintiff] for any protected activity or otherwise itself discriminated against [the Plaintiff] (emphasis included).” The Court noted that the Plaintiff did not approach the Union for assistance: “It cannot be said to have been materially discriminatory for the Union not to have acted when it appeared [the Plaintiff] did not want it to act on his behalf.” Judge O’Toole also pointed out that many of the allegations against the Union were barred by the statute of limitations because they occurred too far in the past.

In addition to dismissing the Plaintiff’s claims against the Union, the Federal Court also dismissed the claims against the Town of Brookline and individual Brookline officials. The Plaintiff has already filed a notice of appeal to the U.S. Court of Appeals for the First Circuit, where the Court will review Judge O’Toole’s rulings. In the meantime, this victory for the Union is an affirmation of their consistent position that they fight hard for the benefit of their members – all their members – regardless of race, creed or color.

READ THE DECISION HERE

Sandulli Grace, P.C. and the Massachusetts Coalition of Police Present the next 2019 Training on December 4, 2019

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are proud to announce our third 2019 police union training. Sandulli Grace and MassCOP believe in empowering MassCOP’s local unions through education, to create a stronger, safer environment for members. Our 2019 training sessions will give you tools to enforce your rights and improve your members’ working conditions.

Basics Trainings

In the past two years, MassCOP and Sandulli Grace have presented multiple “basics” trainings to our police unions. We believe there is a continued need for these trainings, as unions continue to elect new leaders, and new legal challenges present themselves every day. Topics include:

  • Grievance Processing
  • Discipline
  • Bargaining
  • Stress in the Workplace

Whether you are newly elected, or a seasoned union leader looking for ideas on how to make your job easier and more effective, these basics trainings can give you helpful information about issues that local unions face every day.

Bring Your Contract!

We intend this training to be interactive and practical, so we ask each person to please bring a copy of your collective bargaining agreement so that we can discuss real situations. PARTICIPATION IS NOT NECESSARY, BUT IT ADDS TO EVERYONE’S EXPERIENCE! WE STRONGLY ENCOURAGE IT! We will help you interpret your contract’s provisions on grievance processing and appealing discipline, and we will discuss what proposals you might want to make in your next round of bargaining.

How to Register

Our next 2019 training will be held on Wednesday, December 4, 2019 from 10:00 a.m. – 2:00 p.m. at the American Legion Hall, 199 Federal Furnace Rd, Plymouth, MA 02360. Please see the attached flyer. The cost is $55 per person. Payment can be by check mailed to Gia Capozzi at Sandulli Grace, P.C., 44 School Street, Suite 1100, Boston, MA 02018, or by credit card at this link:
https://www.eventbrite.com/e/basics-training-2019-tickets-74856835811.

We welcome your feedback regarding the location and content of these training sessions. Please do not hesitate to contact us with questions or suggestions at gcapozzi@sandulligrace.com.

Download the event flyer

Sandulli Grace, P.C. and the Massachusetts Coalition of Police Present the next 2019 Training

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are proud to announce our third 2019 police union training. Sandulli Grace and MassCOP believe in empowering MassCOP’s local unions through education, to create a stronger, safer environment for members. Our 2019 training sessions will give you tools to enforce your rights and improve your members’ working conditions.

Basics Trainings

In the past two years, MassCOP and Sandulli Grace have presented multiple “basics” trainings to our police unions. We believe there is a continued need for these trainings, as unions continue to elect new leaders, and new legal challenges present themselves every day. Topics include:

  • Grievance Processing
  • Discipline
  • Bargaining
  • Stress in the Workplace

Whether you are newly elected, or a seasoned union leader looking for ideas on how to make your job easier and more effective, these basics trainings can give you helpful information about issues that local unions face every day.

Bring Your Contract!

We intend this training to be interactive and practical, so we ask each person to please bring a copy of your collective bargaining agreement so that we can discuss real situations. PARTICIPATION IS NOT NECESSARY, BUT IT ADDS TO EVERYONE’S EXPERIENCE! WE STRONGLY ENCOURAGE IT! We will help you interpret your contract’s provisions on grievance processing and appealing discipline, and we will discuss what proposals you might want to make in your next round of bargaining.

How to Register

Our next 2019 training will be held on Wednesday, December 4, 2019 from 10:00 a.m. – 2:00 p.m. at the American Legion Hall, 199 Federal Furnace Rd, Plymouth, MA 02360. Please see the attached flyer. The cost is $55 per person. Payment can be by check mailed to Gia Capozzi at Sandulli Grace, P.C., 44 School Street, Suite 1100, Boston, MA 02018, or by credit card at this link:
https://www.eventbrite.com/e/basics-training-2019-tickets-74856835811.

We welcome your feedback regarding the location and content of these training sessions. Please do not hesitate to contact us with questions or suggestions at gcapozzi@sandulligrace.com.

Download the event flyer

Civil Service Commission Upholds Termination Of African American Boston Firefighter For Social Media Posts But Also Orders Investigation Into Boston Fire Department

In Rowe v. Boston Fire Department (D1-18-074), issued on August 29, 2019, the Civil Service Commission upheld the discharge of Boston Firefighter Octavius Rowe for the content of his social media posts and podcasts. The Commission’s summary of its decision states:

Firefighter Rowe maintained a presence on social media and participated in various podcasts inwhich he regularly identified himself as a Boston firefighter. As part of those same public forums, he repeatedly spoke, wrote and/or posted bigoted comments that violate the norms of decency and various rules and regulations of the Boston Fire Department, including conduct unbecoming a firefighter, justifying his termination. Firefighter Rowe’s public posts and statements included: referring to the long-time head of the Boston Urban League as a “shoe-shine Negro”; referring to the then-Boston Police Superintendent (now Commissioner) as a “feckless, jolly black face”; a statement that black men should not share their “genetic material” with a “filthy, filthy white woman” and that “laying with white women is like spitting in your mother’s womb”; a post listing the date, time and location (including the name of the school and a map) where Firefighter Rowe objects to young boys and girls holding hands with members of the same sex; multiple references to gay men as “homophiles”; a reference to so-called “homophiles” seeking to “normalize homophilia particularly among children in order to GAIN and EASE sexual access to them”; references to lesbians as “lez-beasts”; a reply to a person online stating: “You’re QUEER. You’re not significant enough for me to troll”; another online reply stating: “Why haven’t any homophiles been killed by Police?”; a picture of Firefighter Rowe, with a clenched fist, wearing a t-shirt with a stick figure with Pan-African colors kicking in the groin a stick figure with LGBTQ colors; a reference to the head of the Boston Chapter of Black Lives Matter, a Boston resident, as a person with: “Homophile/Trans/Femm Interests”; a reference to Black Lives Matter as “HOMOPHILES LIVES MATTER”; a reference to the leaders of Black Lives Matter as “slowwitted, uniformed agents of sexuality confusion/cooning” who “cannot have access to our children.”; a reference to a black entertainer as a “COM-PLETE bitch”; and a reference to “SmallHats (So-called Jews)”.

As if upholding of the termination were not controversial enough, the Commission went on to take the extraordinary step of initiating its own inquiry into how the Boston Fire Department (BFD) handled the investigation of a white firefighter accused of using “the n-word in a social media posting that has come to the Commission’s attention in the course of the present appeal.”

Firefighter Rowe mounted three challenges to his termination: (1) no nexus between his conduct and his job; (2) First Amendment protected speech; and (3) disparate treatment1 . The Commision analyzed the First Amendment defense under federal precedents adopted by Mass. courts. The decision rejected the nexus argument because firefighters enter the homes of people, some of whom belong to races/genders/sexual identities Rowe disparaged in his postings. It analyzed the First Amendment argument under traditional caselaw and ultimately agreed with BFD that “there is no basis for concluding that Firefighter’s Rowe’s interest in free speech outweighed BFD’s interest in providing efficient and effective public safety services.”

The disparate treatment contention – that white firefighters’ repugnant social media posts were treated more leniently than Rowe’s – caused the Commission more difficulty. One white firefighter who “posted vile comments regarding Rachel Maddow and Senator Elizabeth Warren” had been forced to resign. Another was also forced to resign, rather than contest his termination, whose “hateful, bigoted postings” included one stating “I Never Ever Trust a Dirty Fucking Muslim.” As part of Rowe’s defense at his hearing, he produced evidence that another white firefighter had also made racist social media posts but had only received a warning from BFD. The Commission rejected the disparate treatment argument, concluding that, regardless of how others may have been treated, Rowe’s conduct was so unacceptable that termination was warranted.

Normally, that would be the end of the case, but the Commission then took the extraordinary step of conducting its own inquiry:

to ascertain what further action should be recommended by the Commission or taken by the BFD to further investigate the allegation that a BFD firefighter has allegedly used the n-word in a social media posting that has come to the Commission’s attention in the course of the present appeal.

As authority for this highly unusual investigation, the Commission’s relied on Section 72 of Chapter 31 (the civil service statute), which states:

The commission or administrator [HRD], upon the request of an appointing authority, shall inquire into the efficiency and conduct of any employee in a civil service position who was appointed by such appointing authority. The commission or the administrator may also conduct such an inquiry at any time without such request by an appointing authority. After conducting an inquiry pursuant to this paragraph, the commission or administrator may recommend to the appointing authority that such employee be removed or may make other appropriate recommendations.” (emphasis added by Commission)

The Commission then ordered BFD within 30 days “to file a written response to this inquiry which should include recommended steps for conducting a further investigation of the above-referenced allegation.”

The lesson from all of this, besides a basic suggestion that employees refrain from categorically criticizing or disparaging any group of people, is to simply stay off of all forms of social media. As this blog has pointed out several times, most recently earlier this month, employees have little to gain and a lot to lose through participation in social media.

1 Disparate treatment occurs when one employee or group of employees is treated differently from another employee or group of employees for the same or similar conduct.

Social Media Will Ruin Your Whole Life, Again

More than four years ago, my colleague Jennifer Smith wrote a blog entry entitled “Social Media Will Ruin Your Whole Life.” The blog detailed how one corporate executive lost her job over one “stupid tweet.” Atty. Smith’s advice to police officers, teachers, and firefighters was “delete your social media accounts now, if you haven’t already.” That advice is even more critical today.

A group called “The Plain View Project” has compiled a database of “public Facebook posts and comments made by current and former police officers” from eight cities around the country. An article disseminated today by LRIS (Labor Relations Information System) explains that, in June, 72 Philadelphia police officers were placed on administrative leave after the department began investigating allegations of racist and offensive Facebook posts by these officers. Since then, 13 of those officers have been notified that the department intends to terminate them; 7 of those 13 have just resigned. Four other officers were suspended for 30 days, three face no discipline, and the remaining face disciplinary action ranging between reprimand and five-day suspension.

Whether you like groups like Plain View Project prying into your Facebook posts or not, it is a reality that these groups exist. In addition, any FB post you’ve ever made is potentially something that could be used to make you look bad by jealous colleagues, spiteful relatives, or anybody else who has an ax to grind with you. The same must be said about all social media, including, but not limited to, Facebook, Twitter, Snapchat, Instagram, Tumblr, Pinterest, Imgur, Yelp, and the many others I’ve never heard of.

As a public employee, and particularly one who daily deals directly with the public, you are called upon to evenhandedly and judiciously ply your trade. Whether intended or not, any action you take which in any way calls into question your evenhandedness can potentially get you into trouble.

And, you may ask, what about my First Amendment rights? In 1892, Supreme Court Justice Oliver Wendell Holmes tersely articulated a police officer’s First Amendment rights: he “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” While there certainly are lines that can be drawn to distinguish public employees’ protected from unprotected speech, do you really want to be a constitutional test case? Are you sufficiently knowledgeable about the intricacies of free speech rights of public employees to be sure that what you post on social media can’t get you in trouble? I would strongly suggest that rather than play Russian Roulette with your career, you stay off social media. Whatever you might gain from participating in social media is dwarfed by what you might lose.

Sandulli Grace Welcomes Former Labor Board Attorney James Racine

Sandulli Grace is excited to announce the hiring of our newest attorney, James Racine. James brings a wealth of experience in labor issues to the firm from his time working as a field attorney for the National Labor Relations Board (NLRB), Region 31, in Los Angeles. As a field attorney, James acted on behalf of the General Counsel by investigating charges of unfair labor practices and resolving and litigating cases before administrative law judges. James also helped conduct elections to determine union representation preferences and drafted decisions for the Regional Director in contested representation matters.

Prior to working for the NLRB, James served as a law clerk to administrative law judges at the United States Department of Labor in Washington, D.C. and Boston. He also represented clients at administrative hearings before the Massachusetts Department of Unemployment Assistance as an attorney in the employment law unit of the Central West Justice Center in Worcester, MA.

James received his Juris Doctor from Boston College Law School, and a bachelor’s in history from the University of Massachusetts, Dartmouth. During law school, James represented an asylum seeker before the Boston Immigration Court as a student attorney in the Boston College Law School Immigration and Asylum Clinic and completed internships at the U.S. Department of Labor, Office of the Solicitor, the Medical-Legal Partnership, and the International Legal Foundation in Nepal and New York.

James currently lives in Norton, MA with his wife and two children. He enjoys traveling, reading, and following the Red Sox. Please join us in welcoming James to Sandulli Grace.

MASSACHUSETTS COALITION OF POLICE ADVANCED TRAINING TUESDAY, APRIL 23, 2019

Sponsored and run by MassCOP officials and attorneys from Sandulli Grace, P.C.

This training will go beyond MassCOP’s “basics” trainings to explore in depth the process of bargaining your next contract, including:

Identifying comparable communities
Analyzing comparable benefits
The municipality’s ability to pay
Drafting proposals
Ground rules
Negotiating tactics
Health insurance
Ratification of the MOA
Getting the contract funded
The JLMC process

This advanced training session will be held on Tuesday, April 23, 2019, at the Doubletree by Hilton Hotel, 5400 Computer Dr., Westborough, MA from 8:30 a.m. to 3:00 p.m. with reception to follow

Cost is $85 per person INCLUDES Continental Breakfast, Lunch, a Cocktail Reception & Materials

Please pay by check or credit card at: https://www.eventbrite.com/e/advanced-training-tickets-58452715646
Seating is limited so registration is final.

For more information, please visit our web sites: www.sandulligrace.com or www.masscop.org

Massachusetts Law Review Publishes Article on Labor Arbitration by Sandulli Grace Attorney

The most recent edition of the Massachusetts Law Review features an article by Sandulli Grace attorney John M. Becker entitled, “The Role of Public Policy in Judicial Review of Massachusetts Public Sector Labor Arbitration Awards.” The article reviews the decision by the Supreme Judicial Court in City of Boston v. Boston Police Patrolmen’s Association, 477 Mass. 434 (2017) in light of the history of court review of labor arbitration in Massachusetts, with a particular focus on public policy. The article discusses three ways in which public policy plays a role in judicial review of arbitration:

  1. the policy in favor of resolving labor disputes through arbitration, and against judicial interference in such disputes;
  2. the public policy exception to labor arbitration awards, a court-created doctrine used to overturn certain decisions by arbitrators that violate public policy; and
  3. the nondelegability doctrine, pursuant to which the courts have found that some arbitration awards (and the collective bargaining agreements they are enforcing) are unenforceable because they impinge on the management rights of the public employer.

In addition to tracing the history of public sector labor arbitration and public policy, Attorney Becker provides his opinions on certain key legal questions, including:

  1. expressing a concern that after a court finds certain CBA language is unenforceable under the nondelegability doctrine, the Union has no opportunity to go back to the bargaining table to obtain a replacement benefit for the one that was lost;
  2. opining that, in cases involving awards reinstating discharged employees, the public policy exception should be restricted to cases in which a specific law requires termination – and only termination – as a punishment for the named offense; and
  3. advocating that the contours of the nondelegablility doctrine should be consistent with cases under G.L. c. 150E defining mandatory and permissive subjects of bargaining.

Many of the cases discussed in the article were litigated by Attorney Becker or other Sandulli Grace attorneys, including: City of Boston v. Boston Police Patrolmen’s Ass’n, 477 Mass. 434 (2017); Adams v. City of Boston, 461 Mass. 602 (2012); City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005); School Comm. of Marshfield v. Marshfield Educ. Ass’n, 84 Mass. App. Ct. 743 (2014); City of Boston v. Police Patrolmen’s Ass’n, 74 Mass. App. Ct. 379 (2009); Boston Police Patrolmen’s Ass’n v. City of Boston, 60 Mass. App. Ct. 672 (2004); and City of Boston v. Boston Police Patrolmen’s Ass’n, 41 Mass. App. Ct. 269 (1996).

Attorney Becker’s article can be found in Massachusetts Law Review Volume 100, No. 2 (March 2019). You can see the full article here. https://www.massbar.org/docs/default-source/publications-document-library/massachusetts-law-review/2018/mlrvol100no2.pdf?sfvrsn=4. The Massachusetts Law Review is published by the Massachusetts Bar Association.