Category Archives: Sandulli Grace In The News

In Our Opinion..., Labor In The News, Sandulli Grace In The News

Superior Court Grants BPPA and MCOP Request for Injunction – Orders HRD to NOT Band Scores on Police Promotional Eligibility Lists

Sandulli Grace Staff April 16, 2009

In a thoughtful, well-reasoned 11-page decision issued this morning, Massachusetts Superior Court Judge Bruce Henry ordered the Commonwealth’s Human Resources Division to NOT “band” scores on police promotional eligibility lists. Here’s the full decision. Judge Henry agreed with the arguments advanced by Sandulli Grace Attorneys Alan Shapiro and Bryan Decker that HRD must follow the statutory rule-making process before “banding” scores rather than issue them by “whole numbers.”  The decision does not inhibit HRD’s ability to issue promotional lists as Judge Henry expressly notes HRD can keep issuing lists under the traditional “whole number” format.  This decision represents a significant victory for the merit-based principles that serve as the foundation of the Civil Service system and a victory for the faith that the Boston Police Patrolmen’s Association, Inc. and Massachusetts Coalition of Police placed in this system.

As you may recall, HRD for decades listed promotional candidates in the order of the exam scores of police officers.  HRDs rules require the agency to rank scores in order of “whole numbers.” In other words, HRD ranked both 88.4 and 88.1 as an 88.  In February, HRD reversed this longstanding practice by announcing it would group scores among ranges, or “bands” of up to seven points as equivalent.  Sandulli Grace, PC, on behalf of BPPA, MCOP, and several individual police officers, filed suit.

Injunctions are rarely granted in Massachusetts.  Courts only can grant them if the plaintiffs have standing to challenge the practice, the plaintiffs seeking the injunction have a likelihood of success, and if an injunction will serve the public interest.  On all points, the Judge sided with our clients.  After summarizing the facts of the case, Judge Henry concluded that plaintiffs have “standing” to challenge HRD’s actions and thereby rejected one of the Civil Service Commission’s major arguments.  In his finding on standing, the Judge favorably cited the plaintiffs’ contention that banding will allow increased favoritism into promotional decisions:

The plaintiffs also contend that the banded scores will expand the candidate pool, thus increasing the potential that promotions will be based on favoritism and bias, rather than merit…  In addition, by creating a promotional system that provides fewer safeguards against favoritism and bias, the Division has potentially violated its duty to the plaintiffs.  Accordingly, I am persuaded that the plaintiffs have standing to maintain an action under G. L. c. 231A to challenge the banded promotional eligibility lists.

 Turning to “likelihood of success,” The Judge again sided with the BPPA and MCOP in concluding that plaintiffs have a “strong likelihood of success” on our claim that HRD violated its statutory obligation to conduct rulemaking prior to banding scores:

The practice of banding scores represents a significant departure from the way scores have been reported in the past.  While the proposed banding will be reported as whole number bands, the scoring is very different than what appears to have been intended by the requirement that scores be reported in whole numbers.  The scoring bands are a significant change in the manner of scoring and establishing the eligibility lists and that change should have been put in place using the procedure established by the Legislature for making a significant change in the rules. G.L. c. 31, §4. (emphasis added).

Turning to the issue of “harm,” the Judge found that an injunction will promote the public interest by upholding the integrity of the Civil Service system:

[A] determination of the issues raised by the plaintiffs will promote the public’s interest in guarding against political considerations, favoritism, and bias in governmental hiring and promotion … and ensuring that the system operates on ‘basic merit principles, as defined in G.L. c. 31, § 1, absent properly documented and supported bases for departing from such principles in particular cases. (citation omitted, emphasis added).

 

With regards to the harm claimed by HRD – that an injunction will delay promotions – the Judge agreed with what we’ve been saying all along – that any delay is caused by HRD.  HRD can let municipalities make promotions TODAY by issuing lists with whole number scores:

While the defendants assert that any delay in the implementation of the new scoring method will impact communities which are attempting to fill vacancies on their police forces, I do not so find.  There is nothing which prevents the HRD from issuing eligibility lists in the same fashion that it has done so for years.

 

Finally, the Judge issued his conclusion and order:

Conclusion

            For these reasons, I find that a preliminary injunction should enter enjoining the defendants from issuing eligibility lists for the promotion of police officers in score bands rather than in the manner in which it has been doing so until a final resolution of this matter on its merits.

 

ORDER

            Until a final resolution of this matter on its merits, the defendants are preliminarily enjoined from issuing eligibility lists for promotions of police officers in score bands rather than in the manner in which such score have been reported up to the time of this proposed change.

 

 

SO WHERE DO WE GO FROM HERE?

            Obviously, this decision affirms of the deeply-held faith that the BPPA and MCOP have long placed in the merit-based principles that form the cornerstone of the Civil Service system.  This faith was tested and ridiculed by the arrogance of HRD and the Civil Service Commission’s refusal to hear the case. 

            It is not 100% clear where this case will go from here.  As HRD has repeatedly stated, it is under a statutory obligation to issue lists within 6 months of the taking of the exam, i.e. by April 20.  We hope that HRD will abide by Judge Henry’s thorough decision and the law and issue those lists in a timely fashion with scores listed and ranked in WHOLE NUMBERS. 

As always, we will keep you posted…

Sandulli Grace In The News

Tweet, Tweet – Sandulli Grace, Pc Starts Twitter Feed To Give Up To The Minute Labor News

Sandulli Grace Staff April 8, 2009

With our blog, www.sandulligraceonline.com, continuing to grow in popularity, we’ve now added a Twitter feed to enable us to provide even more up-to-date information regarding the union movement and matters of concern to employees.  Our Twitter account, found at http://twitter.com/SandulliGrace, allows us to alert you to recent events quickly, and on the go.  (Twitter is a popular “microblogging” site.  Here’s info about Twitter, http://twitter.com/about).  We expect to post 2 – 5 “tweets” a day, depending on the news.  We’ll tweet blog postings, news articles we run across, court and agency cases, etc.  Of course, we will continue to post substantive blog items regarding issues of concern to our clients.  Indeed, don’t be surprised to see us blog an item that first appears on our Twitter feed, once we have time to digest and respond fully to a legal development, case, or political item.

You can sign up to receive our tweets on your computer or mobile device, by going to http://twitter.com/SandulliGrace and hitting “follow.”  Once “following,” you can also send us ideas or information.  Or you can visit the blog and simply look at the recent Twitter entries on the front page.  Also, if you haven’t signed up to receive e-mail announcements of our blog entries, you can do so by entering your e-mail address in the “Join our Mailing List” box in the left hand column of this page.

Labor In The News, Sandulli Grace In The News

Judge Orders HRD To Not Issue Banded Eligibility Lists Pending Consideration Of Motion For Preliminary Injunction

Sandulli Grace Staff March 31, 2009

Massachusetts Superior Court Judge Bruce Henry today ordered the Human Resources Division to NOT issue any eligibility lists for police promotion until after he rules on the request for a preliminary injunction submitted by Sandulli Grace attorneys on behalf of the Boston Police Patrolmen’s Association, the Massachusetts Coalition of Police, and individual test takers.  As we noted last week, we have challenged the Civil Service Commission’s rubberstamping of HRD’s decision to band.  Judge Henry today heard argument on our request for an injunction, and indicated that he will issue a decision on the injunction request soon. 

 At the hearing, HRD, represented by counsel from the Attorney General’s office, continued to insist that banding is lawful in the face of HRD’s rule that says scores have to be put out in “whole numbers.”  “Bands 1 to 7 are whole numbers, just like 1 to 100,” was essentially what HRD contended.  Attorney Shapiro responded that, under that logic, the bands could be 1 to 2 (pass/fail), 1 to 1,000 (scores broken to tenths of a point), or 1 to 10,000 (scores broken to hundredths of a point).  In other words, the Commonwealth contends that its rule has no substantive meaning.

After the Judge ordered that no lists be established utilizing banding, counsel for HRD complained that some unnamed municipalities could lose funding for promotions if they are not made quickly.  Sandulli Grace’s Alan Shapiro quickly pointed out that HRD is free to issue lists based on the 10/08 tests – as long as it follows its own rule and lists the scores by whole numbers from 1 – 100. 

As always, we’ll keep you posted.

 

Labor In The News, Sandulli Grace In The News

“Massachusetts Lawyers Weekly” Taps Sandulli Grace Attorney For Expert Commentary On Confidentiality Clause Case

Sandulli Grace Staff March 30, 2009

Sandulli Grace attorney John M. Becker provided expert commentary in a recent front page article in the March 23, 2009 edition of Massachusetts Lawyers Weekly.  MLW is the leading news publication in the state for the legal community.  Attorney Becker commented on the recent decision of the U.S. Court of Appeals for the First Circuit, Northeastern Land Services, Ltd. v. National Labor Relations Board, — F.3d —-, 2009 WL 638248 (2009). In this case, the First Circuit upheld NLRB’s conclusion that the employer’s discharge of an employee over an alleged breach of confidentiality was improper.   At the heart of the case was the employer’s rule that employees sign a confidentiality agreement that made employees promise not to discuss wages and terms of employment with others.  In other words, the employer prohibited employees from talking with each other about their compensation, to compare how they were being paid to other employees, which essentially prevented employees from networking to improve their working conditions.  Before he was fired, the employee became involved in a pay dispute with his employer which he then discussed with a third party.  Ultimately, the employer fired the employee, charging him with violating the confidentiality rule.

The employee filed an unfair labor practice charge with the NLRB, alleging that the confidentiality rule had the effect of intimidating and coercing employees in the exercise of their right to engage in collective activity.  Even though no union was involved in this case, the NLRB found (and the First Circuit agreed) that the confidentiality rule was so overbroad that it violated the National Labor Relations Act, which grants employees the right to organize and engage in collective action, no matter how the rule was applied.  The NLRB concluded that the discharge of the employee for discussing his wages and benefits was improper.  The decision serves to remind employees that they have a right to engage in concerted action about their wages and benefits, even if they elect not to do so under the aegis of a union.

In commenting on the case in “Massachusetts Lawyers Weekly”, Sandulli Grace’s Becker noted, “[The decision recognizes] that as employers become more sophisticated in ways to keep unions out of their shops, the board has to be able to recognize that and protect the rights of employees to organize, even if situations like this one where it’s not obvious that there’s a union issue.”  Becker disagreed with the employer’s attorney’s prediction of dire consequences from the decision.  On the contrary, he stated, “The court itself discusses the possibility of a more narrowly fashioned confidentiality agreement that reaches legitimate goals the employer might have without being overbroad.”      

Labor In The News, Sandulli Grace In The News

MCOP and BPPA File For Injunction to Stop Banding

Alan Shapiro
Alan Shapiro March 27, 2009

Today, March 27, Massachusetts Coalition of Police and Boston Police Patrolmen’s Association, jointly represented by Alan Shapiro and Bryan Decker of Sandulli Grace, filed a lawsuit in Suffolk Superior Court to enjoin the Human Resources Division from promoting with banded lists.

The Court set a hearing on the injunction for Tuesday, March 31, at 2:00 p.m. in Suffolk Superior Courthouse, Room 916.

The arguments are essentially the same ones made, and rejected, before the Civil Service Commission.  HRD has a rule saying it establishes lists with “whole numbers.”  We all know that means the scores are supposed to be in a 1-100 format.  If they want to start banding, they have to change their rules.  The legal way to do that is to follow the procedures in the Civil Service law for rule-making. 

We want to thank all of you who have shown your support over these past weeks for our efforts to preserve a merit-based, civil service promotional system for police officers (and, by extension, others) in Massachusetts.

Read the complaint and the memorandum 

In Our Opinion..., Labor In The News, Sandulli Grace In The News

Mass SJC Grants Another Victory To Boston Police Patrolmen’s Union In Long-Running Overtime Battle: City’s Unilateral Shortchanging Of Overtime Pay Violates State Law

Sandulli Grace Staff March 16, 2009

The Massachusetts Supreme Judicial Court, the state’s highest court, today upheld a 2006 ruling of the state Commonwealth Employment Relations Board (CERB) that the City of Boston unlawfully reduced the overtime compensation of Boston Patrol Officers without first bargaining with their union, the Boston Police Patrolmen’s Association, Inc. (BPPA).  The SJC and CERB ordered the City, which made the unlawful change in July 2002, to “make whole” the patrol officers represented by the BPPA – which likely will cost the City several hundred thousand dollars. 

Today’s SJC decision caps lengthy litigation regarding the City’s repeated violation of state and federal laws concerning overtime pay to Boston police officers.  In 2000, more than 800 Boston patrol officers, represented by Sandulli Grace Attorneys Bryan Decker and John Becker, sued the City in federal court for the City’s outright refusal to pay overtime as required by the federal Fair Labor Standards Act (FLSA).  The federal court agreed, and the City ultimately paid officers almost $700,000 plus attorney’s fees.  In July 2002, while the federal litigation was ongoing, the City unilaterally adopted the FLSA’s “partial public safety exemption,” which lowers federal overtime payments to police officers and firefighters.  While the City’s unilateral adoption of this partial overtime exemption was permitted by the FLSA, it was not by state law.  Under state law, Chapter 150E of Massachusetts General Laws, a municipal employer must bargain with a union before changing the wages of employees represented by a union.  The BPPA immediately demanded to bargain about this change.  The City refused, even though the parties were negotiating a new contract, and instead implemented the change.  On behalf of the BPPA, Sandulli Grace Attorneys Bryan Decker and Patrick Bryant filed an unfair labor practice charge with the state labor relations agency.  CERB ruled in the BPPA’s favor, and the City appealed. 

The SJC upheld the CERB decision on all points, finding that:

 

  • “the city was obligated under G.L. c. 150E to bargain in good faith with the union regarding” the July 2002 decision to adopt the partial public safety exemption;
  • that the City further violated the law by refusing to provide the BPPA with information it requested;
  • and that the proper remedy was for the city to “[m]ake whole affected employees for the economic losses they may have suffered as a result of the [c]ity’s decision to adopt” the partial public safety exemption. 

With regards to the remedy, a conservative estimate is that the City reduced overtime pay to officers by at least $100,000 per year by making the unlawful change.  Damages will run back to July 2002, and the BPPA’s members are entitled to interest.

BPPA President Thomas Nee welcomed the Court’s decision.  “We’re extremely gratified that the Supreme Judicial Court agreed with our position in this case.  The FLSA is designed to protect the rights of people who work more than 40 hours per week and ensure that they are properly compensated.  The Court affirmed that this applies to police officers as well.”

Sandulli Grace Attorney Bryan Decker, who argued the case to the SJC, said, “The City continuously, and improperly, claimed that it couldn’t comply simultaneously with the FLSA and its obligations under state law.  The SJC rejected this argument as bogus, and upheld that workers are entitled to the protections of the FLSA and their Union.  Given the state of our economy, this decision reminds employers that a desire to save money is not a defense to violating legal obligations.  Hopefully, municipalities will learn that the only way through these challenging times is to treat unions and employees as partners rather than problems.”

READ the SJC decision at:

http://www.socialaw.com/slip.htm?cid=18853&sid=120

In Our Opinion..., Sandulli Grace In The News

Sandulli Grace, PC Wins Unemployment For Officer Who Persuasively Denies

Sandulli Grace Staff November 3, 2008

The Massachusetts Appeals Court upheld a grant of unemployment benefits to a Boston Police Officer terminated for testing “positive” for cocaine on a hair test. In City of Boston v. George Downing , 06-P-1725 (Oct. 31, 2008), the Court ruled that the Division of Unemployment Assistance properly found that police officer did not use cocaine as alleged, based upon his repeated denials of drug use and his extensive efforts to establish his sobriety. While this decision only entitles the former officer to unemployment benefits (as opposed to reinstatement with back pay), it renews faith that a neutral factfinder can disregard drug use hysteria and instead conclude that hair testing is not sufficiently reliable method to determine that a police officer abused drugs.

The claimaint here, George Downing, served as a sworn Boston police officer for nine (9) years before the City terminated him for testing “positive” for cocaine on an annual hair test. The amount of cocaine allegedly found in his hair was barely above the minimum amount necessary to classify his sample as “positive.” Moreover, his tests would have been classified as “negative” if the City applied the original minimum cutoffs. The City has no other evidence that Downing used drugs. To exonerate himself, Downing produced independent drug tests that were negative for all drugs, repeatedly testified under oath that he did not use drugs, and appealed his termination to the Civil Service Commission. Downing also refused the City’s settlement offer, which involved a lengthy suspension and substance abuse rehabilitation. (In a sense, Downing was terminated for refusing the settlement offer).

Downing also filed a complaint against the City at the Massachusetts Commission Against Discrimination. He is one of nearly a dozen African Americans officers and recruits who have been fighting their termination (or bypass) from the Boston Police Department for allegedly “positive” results for cocaine on hair tests. These officers have been challenging the accuracy of hair testing, including whether it reliably shows voluntary drug use (as opposed to cocaine that naturally deposits itself into hair from the environment), and whether it produces results that are “biased.” They have filed claims with the MCAD (which are not being processed in federal court) and the Civil Service Commission.

Employees who lose their job (voluntarily or involuntarily) generally are entitled to receive unemployment benefits so long as they were not terminated for “deliberate misconduct in willful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy.” G.L. c.151A, §25. The DUA examiner (a.k.a. hearing officer) reviewing Downing’s unemployment claim agreed that he did not use cocaine. As the Appeals Court summarized, she:

explicitly credited Downing’s testimony because, as found by her, it was supported and bolstered by the following facts. First, Downing twice promptly had submitted himself to further and independent drug testing at his own expense, acts she concluded would be improbable had he in fact used drugs. Second, those two independent tests proved negative as to cocaine use. Third, Downing had refused to enter into a drug rehabilitation agreement even though doing so would have permitted him to remain employed by the department.

The Appeals Court upheld the agency’s grant of unemployment benefits. The Court rejected arguments that the City’s hair test is irrefutable proof of drug use.

Downing was represented by Sandulli Grace, PC Attorney Patrick Bryant (on behalf of the Boston Police Patrolmen’s Association, Inc.) in this case. Bryant also represents Downing and several other former Boston police officers, who were terminated for testing “positive” for cocaine, at the Civil Service Commission.

Sandulli Grace In The News

Joe Sandulli Receives Cushing-Gavin Award, The Highest Honor For Mass. Labor Lawyer

Sandulli Grace Staff October 8, 2008

Sandulli Grace, PC founder Joe Sandulli has been awarded the 2008 Cushing-Gavin Award for Union Attorneys, the highest honor bestowed upon members of the New England labor management  community.  He will receive the award at the Labor Guild’s 42nd Annual Awards dinner on November 20 at the Sheraton Boston.

            Since 1946, the Labor Guild has advanced the interests of Massachusetts workers and strengthened bonds between representatives of labor and management.  In 1952, the Guild started offering classes to workers through its School of Industrial Relations.  In 1967, the Guild established the Cushing Awards Dinner to honor achievement in the field of labor management.  The Dinner has grown to be the largest annual event in the Boston labor management community and provides financial support to its School.

            Joe has actively supported the Labor Guild since he began his career in the Boston labor community more than 35 years ago.  He has served as a Faculty member of the Labor Guild’s School for many years, teaching courses ranging from “Law and Labor Relations” to “Labor Strategies,” his current course offering.  His selection as a Cushing-Gavin Awardee highlights not only his standing in the community, but also his commitment to labor education and to the Labor Guild.

            Upon learning of his selection, Joe was, as usual, quick to credit the whole team at Sandulli Grace.  “While it’s a great personal honor to be selected for this award, what it shows is the standing that Sandulli Grace has in the labor management community,” Sandulli stated.  “The legacy of quality representation that Sandulli Grace provides to labor unions and their members is the proudest achievement of my legal career.”

            Thanks Joe, but why don’t you take a while to let us all be proud of you for a change.

Sandulli Grace In The News

Sandulli Grace, PC Supports Saturday’s Safety & Survival conference hosted by Duxbury Permanent Firefighters Association

Sandulli Grace Staff August 12, 2008

Sandulli Grace, PC, client Duxbury Permanent Firefighters Association, Local 2167, IAFF, AFL-CIO hosts the second annual “Firefighter Safety & Survival Conference 2008” this Saturday, August 16, 2008 at the Duxbury Performing Arts Center. The featured speaker is FDNY Battalion Chief John Salka, author of “First In, Last Out – Leadership Lessons From The New York Fire Department.” Salka will discuss fighting top floors in multi-floor buildings and “Tactics & Procedures for Fires in Private Dwellings.” Attendees may receive a certificate of attendance and 8 OEMS Massachusetts credits. The event, which runs from 9 a.m. – 4 p.m., is open to firefighters and any other person interested in fire, rescue, safety and survival. Sandulli Grace, PC, is a proud supporter of the Firefighter Safety & Survival Conference 2008.

Several Sandulli Grace attorneys will be available during break periods at this event to discuss collective bargaining strategies on safety and related matters. We encourage attendees to stop by and say hello.