Taking a page from the NLRB’s playbook, the Massachusetts Department of Labor Relations (DLR) recently added another technique to their skill set: the “Unilateral Settlement.”  In a case involving the City of Newton and the Newton Municipal Employees Association, MUP-09-5694 (June 26, 2012) (here), the DLR, in the first known instance of which we are aware, approved a ‘settlement’ without the express approval on the record of one of the parties.  (It is not clear whether or to what extent the ‘non-approving’ party may have informally agreed behind the scenes.)

The settlement includes a financial award and a posting.  The posting does not acknowledge liability, but sets out the affirmative action the employer will take and contains a statement by the employer agreeing not to violate Chapter 150E.

According to the Commission’s decision, the Unilateral Settlement procedure was as follows:  (1) after a Complaint issued, the City and the Union attempted to mediate the Union’s unfair labor practice charge, to no avail; (2) the City then presented the DLR with the last offer it had given the Union and asked the DLR to accept the proposal and dismiss the case; (3) the DLR then reviewed the proposal and determined that it “remedie[d] the allegations in the Complaint” and therefore “further proceedings … would not effectuate the purposes of the Law; and (4) the DLR then withdrew the Complaint.

The DLR found support for this procedure in M.G.L. c. 150E, s. 11(b), which permits the DLR to dismiss charges when further proceedings would not effectuate the purposes of the Law, and 456 CMR 15.04(1), which allows the DLR to withdraw Complaints previously issued when a charging party does not make reasonable efforts to resolve a matter.

It is not clear to what extent the DLR will be utilizing this new procedure, but it appears to be a sign that the Department’s already-intensive focus on mediation is not reducing the caseload as much as DLR officials would like.  The new practice raises a couple of questions: (1) How different may the settlement proposal be from what the charging party would obtain if it went forward and won?  It is not clear from the Newton case materials whether the financial figure, for example, was discounted in any way.  (2) Also, as mentioned above, how much input, if any, do charging parties have into these settlements?  Are these settlements to be imposed on unwilling participants, or will there be ‘behind the scenes’ discussions to assure at least a modicum of acquiescence?  (3) What are the appeal rights of charging parties, if any, after the DLR withdraws a complaint pursuant to a “Unilateral Settlement”?

These and other issues will surely be answered in the coming months and years.  We will try to keep you informed of new developments as they arise.

A judge of the Plymouth Superior Court has upheld an arbitration award in a matter involving the Marshfield Education Association, MTA/NEA, and the Marshfield School Committee, which ordered the School Committee to reinstate a teacher who had been terminated for lacking a proper license. (A copy of the decision is here.) The case was briefed and argued at Superior Court by John M. Becker, an attorney with Sandulli Grace, P.C.

The case involves special education teacher Gerard O’Sullivan, who struggled for several years to obtain the proper approvals that would allow him to obtain licensure. At the final stages, he was thwarted by school administration officials, whose misunderstanding of the requirements caused delays that ultimately caused him his job. Most frustrating was the School Department’s insistence that classroom experience could not count for any of the credits required for the license, a stance that was directly contradicted by the state’s regulations. Once Mr. O’Sullivan realized he was not going to have his license in time for the new school year, and the School Department’s attempt to obtain a waiver had failed, he asked for a leave of absence so he could get his license, but even that request was denied, and he lost his job.

The arbitrator saw through the Department’s failures and determined that Mr. O’Sullivan should not have been fired, that he should be reinstated and granted the one-year leave of absence to obtain his license. (The arbitrator pointed out that the School Department had actually employed Mr. Sullivan without a license for a full year when a waiver request had been delayed, so it rejected the idea that he was ‘automatically’ fired once his waiver expired.)

Despite the courts’ deference to labor arbitrators, the School Committee challenged the arbitration award in court, alleging that it forced the School Committee to violate state law and public policy by requiring it to employ a teacher without a license. In a 17-page decision issued on September 18, 2012, Judge Robert C. Cosgrove ruled in the Union’s favor on all the School Committee’s arguments. He found that by reinstating Mr. O’Sullivan to a non-teaching, leave of absence position, the arbitrator was not violating any law requiring teachers to be licensed. He also found that, even though there is a public policy requiring teachers to be licensed, this arbitration award did not violate the policy because it was designed to help the teacher obtain his license without requiring him to teach any students while unlicensed.

The School Committee filed a notice of appeal of the Superior Court’s decision last week, so the matter is not over yet. As usual, employers seem to have a problem with the concept of “final and binding” arbitration. Stay tuned to this site for further developments.

Sandulli Grace, P.C. and the Massachusetts Coalition of Police are litigating two ULP cases this fall for police sergeants who have been the targets of retaliation for exercising their protected speech rights as union members.

The first is Town of Mansfield and Mansfield Police Association, MCOP Local 298, MUP-11-6146, which is scheduled for hearing on September 25, 2012.  The Mansfield Police Association represents patrol officers and sergeants.  Sergeant Tracey Juda was assigned to investigate an incident in which a patrol officer under her command was accused of misconduct.  In the process of investigating the incident, Sergeant Juda advised the officer to contact his union representative, and gave him an opportunity to do so.  Chief of Police Arthur O’Neill presented her with a written reprimand accusing her of incompetence and excoriating her for acting as a “union friend” rather than a sergeant by advising the officer to seek union representation. Sergeant Juda’s union filed a charge of prohibited practice, and the Department of Labor Relations issued a complaint alleging that the Chief of Police had retaliated against Sergeant Juda for her protected activity. (A copy of the Complaint of Prohibited Practice and the union’s charge may be viewed here.)

The second case to appear this fall is City of Attleboro and Attleboro Police Association, MCOP Local 352, MUP-11-1161, which is scheduled for hearing on October 16, 2012.  The Attleboro Police Association represents patrol officers, sergeants, lieutenants and captains.  In February 2011, the City fired a police officer based on the statements of a fellow officer.  Chief of Police Kyle Heagney told the fellow officer that he should obtain the investigation report leading to the termination, and the fellow officer submitted a public records request through Sergeant Michael McDonnell.  Sergeant McDonnell, perceiving that the Chief was pitting union members against each other to weaken the union’s defense of the terminated officer, advised the union president of the public records request.  The Chief issued Sergeant McDonnell a scathing reprimand, accusing him of “disloyalty,” saying that the union should not have been informed of the public records request, and punishing him for trying to “provide the union with some kind of advantage.” Sergeant McDonnell’s union filed a charge, and the Department of Labor Relations issued a complaint alleging that Chief Heagney had discriminated against Sergeant McDonnell for engaging in concerted, protected activity, and interfered with his exercise of rights protected under the law.  (A copy of the Complaint of Prohibited Practice and the union’s charge may be viewed here.)  The APA has two other ULP charges pending based on retaliatory conduct by Chief Heagney.  Those charges are still in the investigatory stage.

Every police officer has the right to encourage fellow officers to seek union assistance.  These Department of Labor Relations decisions support our belief that sergeants and other supervisory police personnel are entitled to the same collective bargaining and protected speech rights as non-supervisory employees.  Sandulli Grace, P.C. and MCOP will continue to advocate for their rights.

Leigh Panettiere, Esq.

Sandulli Grace, P.C.

City of Salem, Mayor Driscoll continues to disregard her legal obligations to the City of Salem employees and its Unions.  In March 2012 an arbitrator found that the City of Salem violated the Salem Police Superior Officers contract and past practice when Mayor Driscoll refused to pay a Police Captain, retiring after 30 years of service to the City’s Police Department for the earned benefits which all other retirees had received for over 25 years.  The Mayor again disregarded her legal obligations when she removed Police Sergeant Peter Gifford from the Harbormaster position which he had held since 2001 and replaced him with a civilian employee.  This was done without any bargaining with the Union as is required by state law.  On August 24, 2012, the second arbitrator found, that based on 10 years of past practice that “the Superior Officers’  ‘own’ the Harbormaster work and the Employer is constrained from unilaterally removing that work from the bargaining unit.”  The Arbitrator also stated that the “City violated the collective bargaining agreement and state law when it removed Sergeant Peter Gifford from the position of Harbormaster and replaced him with a civilian, non bargaining unit employee.”

Therefore twice in one year the Mayor has been found by an arbitrator to be in violation of her legal obligations to the working men and women of the City of Salem.  By disregarding her legal obligations and ignoring the rights of the employees, the Mayor has also compelled the Salem Police Superior Officers Association and the City of Salem to expend its resources to fight over its employees clear rights.  The mayor’s approach is clearly wrong and it is not working. Hopefully, the Mayor will finally learn to show the Union workers some respect and will act to meet her legal and contractual obligations.

The Salem Police Superior Officers Association is a Local of the Massachusetts Coalition of Police (MCOP) and is represented by Sandulli Grace Attorney Susan Horwitz.

Sandulli Grace Attorney Bryan Decker recently won reinstatement for an unjustly terminated Boston Police Officer.  In a case involving the City of Boston and the Boston Police Patrolmen’s Association, arbitrator Richard Boulanger ordered the immediate reinstatement with full back pay of Officer Baltazar DaRosa.  Arbitrator Boulanger found that the Boston Police Department did not have just cause to terminate Officer DaRosa in December 2010.  The Department charged DaRosa with involvement in a 2004 murder that occurred at a Cape Verdean Night at a night club in Randolph.  DaRosa’s cousin is the main suspect in the crime, of which DaRosa has steadfastly denied any knowledge.

Arbitrator Boulanger found that although the Department investigated the case for almost seven years, it produced no evidence that DaRosa knew of or was involved in the crime in any way.  He found that DaRosa did not violate any department rules justifying termination.  He ordered DaRosa reinstated and made whole – with full back pay and lost detail and overtime earnings.  You can read the Boston Globe’s article regarding the case here

Suffolk Superior Court Judge Linda Giles issued a ruling on July 9, 2012 upholding an arbitrator’s award in favor of the union representing emergency medical technicians (EMTs) and paramedics employed by the City of Boston.  The case is Boston Public Health Commission v. Boston Emergency Medical Services-Boston Police Patrolmen’s Association, SUCV2007-03270.  The union was represented by Sandulli Grace attorneys Kenneth A. Grace and John M. Becker.

The case involved the proper discipline for violation of an employer sick leave policy.  At the arbitration, the Public Health Commission (PHC) alleged that under the policy, an EMT’s most recent violation of the sick leave policy required a five-day suspension.  The union argued (1) there was no violation and (2) even if there was, the prior disciplines required only a 1-day suspension.  The arbitrator agreed with the union’s second argument.  He found that the PHC failed to follow its own progressive discipline policy when it gave the EMT a five-day suspension and reduced it to a one-day suspension.

But there is a twist.  After the parties finished putting on their evidence, but before they filed briefs, PHC’s legal staff sought to introduce evidence of two prior disciplines.  These disciplines were not produced in response to a prior union request for documents and they contradicted the testimony of the PHC’s own witness, who did not mention these two disciplinary actions when recounting the grievant’s disciplinary history.  The PHC provided no explanation for why these records had not been produced during the hearing.  The arbitrator denied the request to add new evidence at such a late date, particularly where the union had no chance to cross-examine witnesses regarding the new evidence.

The PHC appealed the arbitration award to Superior Court, arguing that the arbitrator erred when he excluded the new evidence.  In court, all parties agreed that, if the new evidence had been admitted, then the five-day suspension would have been appropriate under the progressive discipline policy.  So the issue before Judge Giles was whether the arbitrator acted properly in excluding the late evidence.  Noting the extreme deference the courts give to arbitrator’s awards, such that arbitrator’s awards are not overturned even if they contain errors of law or fact, the judge affirmed the decision.  In a somewhat desperate move, the PHC also alleged that the union had deliberately hidden the evidence.  The judge summarily rejected this allegation, and noting that the PHC “as the Grievant’s employer, is in a better position to keep track of the Grievant’s disciplinary records than the employee.”

An arbitrator has reversed a 10-day suspension that had been imposed on a Rockport, Massachusetts police officer in connection with his actions in checking to see if Town Hall was secure.  The arbitrator, Betty Waxman, Esq., concluded that the Town did not have just cause to discipline the officer because he had not committed any misconduct.  The officer is a member of the Rockport Police Association, Local 154 of the Massachusetts Coalition of Police, and was represented by Attorney John M. Becker, of Sandulli Grace, P.C., counsel to MassCOP.

The case involved the procedures used by midnight shift officers to check Town Hall to make sure all doors were locked.  According to one method, an officer who found Town Hall unlocked would drive to the police station, obtain the key, return to Town Hall and lock up.  At some point, the Department prohibited this practice and stated that officers who found the door unlocked should call for another officer to bring the key.  In these cases, officers would have to call the station when arriving at Town Hall and again when leaving it secure.  But the officer who received the suspension had a different method: he usually carried the Town Hall key with him during patrol.  Then if he found Town Hall open, he would make sure it was secure and call in to the police station.  Although the Town argued that the officer violated the rules by not calling in twice, Arbitrator Waxman found that the Department’s directives were ambiguous when it came to how many times an officer with the key must call in.  She further found that the officer’s answers to questions and report were truthful and consistent with the Department’s rules.

In finding the officer’s version of events credible, and giving him the “benefit of the doubt”, Arbitrator Waxman relied on a number of factors.  Even though the Town relied heavily on the officer’s record of prior discipline to justify the punishment, the Arbitrator warned that, in effect, the Town had engaged in a form of discrimination based on prior disciplinary history.  It is permissible to use prior discipline as a rationale for more severe discipline at the next infraction, the Arbitrator implied, but it is not permissible to assume that because an employee has been insubordinate in the past, he will be insubordinate in the future.  This would be, in a sense, robbing the employee of the right to have each case considered on the merits, and relieve the employer of the burden of proving just cause.  The Arbitrator also noted that, while the employee had a significant history of past discipline, the three years immediately prior to the current allegations were discipline-free.