The full Massachusetts Civil Service Commission has affirmed a hearing Commissioner’s ruling that a City cannot introduce evidence of the results of a lie detector test. Sandulli Grace Attorney Bryan Decker successfully argued at hearing that polygraph results should not be allowed into evidence because lie detector tests are so unreliable as to be (in the words of the Maryland Appeals Court) “incompetent.” The full Commission has now agreed, closing the door on municipalities that seek to introduce polygraph results. The Commission joins other states such as Illinois, Maryland and Ohio that refuse polygraph evidence in administrative hearings when a public employee’s job and reputation are on the line.

This victory comes as we are still waiting for the Supreme Judicial Court’s decision in the Furtado v. Plymouth case, which involves whether a police chief can order a police officer to take a polygraph examination during a non-criminal disciplinary investigation, although all other employees in the state are protected from such an order. Sandulli Grace submitted a friend of the court brief in the case arguing for equal treatment for police officers, and discussing the history of polygraphs as pseudo-science. We’ll let you know as soon as a decision is issued.

Whatever the outcome in Furtado, it is our hope that Police Chiefs will stop wasting time and money trying to intimidate employees with the “magic truth box.” Since the results from any results from any “failed” polygraph tests will not be admissible in disciplinary hearings, the tests themselves serve no legitimate governmental purpose.

Sandulli Grace partner Amy Laura Davidson successfully reversed a one-day suspension issued against a Rehoboth police officer for alleged misuse of the CORI system to check up on an unpopular selectman with whom the Union has been at war. The arbitrator reversed the discipline in its entirety finding no just cause for any discipline against the grievant, Officer James Casey.

The Town argued that the CORI check was an unlawful curiosity check. The arbitrator found that Casey was prompted to run the check because Selectman Morra had demanded to meet with him about the status of Morra’s license.

The Town also argued that the check was unlawful because Casey did not take any action against Morra after finding that Morra had still not obtained a Massachusetts license. The arbitrator rejected that argument accepting Casey’s explanation that he did not want to start a war with Selectman Morra. 

The arbitrator also noted that the Department had not provided training on the proper utilization of CJIS and that Casey was not on notice that discipline could result from his actions.

The arbitrator also recommended that the Town restore the grievant’s access to the CJIS and NCIC systems which was suspended by the Criminal History Systems Board.

Read the rehoboth-casey-arbitrators-award.pdf

The staff at Sandulli Grace continues to uphold its longstanding commitment to legal education with its attorneys actively involved in educating clients, other lawyers and the public.

In March, Ken Grace will start his 26th year as an instructor at the School of Industrial Relations at the Labor Guild of Boston, teaching his popular Snapshot of Labor Relations course. This is a bittersweet term at the Guild, as it is the first school term in over 30 years that will not be overseen by Fr. Edward Boyle, who passed away last November. Father Ed was an inspiration to the entire labor community, and he was a good friend and mentor to many of us here at Sandulli Grace. The Labor Guild School provides practical courses to union leaders and rank and file members from all walks of life. While we mourn Fr. Ed’s passing, we look forward to maintaining our strong relationship with and commitment to the Labor Guild, and we welcome its new head, Sister Mary Priniski. More information about the Labor Guild can be found at its website, http://www.laborguild.com.

Bryan Decker is also active in educational activities. On January 29, 2008, Bryan taught a course on Labor Law Basics presented by the Boston Bar Association. The course was aimed at new attorneys, or at lawyers who do not normally practice in this area. Bryan is also a member of the leadership at the Massachusetts Bar Association, and this year he serves as Pro Bono Coordinator for the MBA’s Labor and Employment Section. Along with co-coordinator Rosemary Pye, the Boston Regional Director of the Federal National Labor Relations Board, Bryan has developed a course entitled Your Rights and Responsibilities on the Job, which is an introductory course for individuals entering the job force. Bryan and Rosemary presented the course for the first time at the Urban League of Eastern Massachusetts’s Employment and Professional Skills Training, which is an intensive six-week training program. The presentation was a success and will be repeated at the Urban League in early February. Bryan and Regional Director Pye hope to then expand the program to include other members as teachers, and to offer it to other organizations and educational institutions. Their efforts were noted in the MBA’s January Lawyer’s Journal.

In May, Amy Davidson is again co-chairing the Boston Bar Association’s annual Public Sector Labor Law Conference held at Harvard Law School. This is the largest conference concentrating on Massachusetts Public Sector Labor Law in the state, and is a “must attend” for all attorneys who practice in this area.

Amy Davidson has been appointed to the Division of Labor Relations Advisory Council. The Division of Labor Relations is the newly-formed consolidated  agency with jurisdiction over unfair labor practice cases, arbitrations and the Joint Labor Management Committee.

The Advisory Council is charged with responsibility for advising the new Division of Labor Relations concerning policies and practices that it might implement to better discharge its labor relations duties. The Council will be interviewing and vetting candidates for vacancies in the positions of Director and Board members (formerly known as Labor Relations Commissioners). The Council will submit the names of successful candidates to the governor for appointment.

The Advisory Council is comprised of thirteen members including five representatives of public sector unions, five representatives of public sector management and three non-affiliated members. The Director of Labor, the Chair of the Commonwealth Employment Relations Board and the Director of the Division of Labor Relations will all serve as non-voting members of the Advisory Council.

Press Release

In a brief opinion, the Supreme Judicial Court upheld the right of the joint labor management committee (JLMC), the state agency that resolves bargaining disputes involving police or fire unions, to issue an award including a type of shift, such as 24-hour shifts for firefighters. This decision in Local 2071, Int’l Assn of Firefighters v. Town of Bellingham (Dec. 7, 2007) affirms the well-established notion that public safety employers generally do not have a managerial right to change shifts. Sandulli Grace, PC filed friend-of-the-court arguments on behalf of Boston Police Patrolmen’s Association, Inc. and the Massachusetts Coalition of Police, AFL-CIO in support of the firefighter local.

In this case, an arbitration panel convened by the JLMC awarded 24-hour shifts as the firefighters’ local requested. This award did not change the number of hours worked by firefighters or the number of firefighters per shift. Nonetheless, the Town appealed, claiming that the award infringed upon its inherent managerial rights. After losing at Superior Court, the Town again appealed. The Town did the same after the Appeals Court eventually agreed with the Union.

Although the case dealt exclusively with firefighter shifts, the stakes were significant. If the SJC upheld the Town’s basis for appeal, then Fire and Police Chiefs could change standard hours of work, including the “4&2,” whenever the Chief saw fit and without having to negotiate changes with the Union.

Read the decision

The legislature passed a bill that reorganizes the three state agencies with jurisdiction over public sector employees – the Labor Relations Commission, the Board of Conciliation and Arbitration and the Joint Labor Management Committee.

Amy Laura Davidson served as Chair of the Mass Bar Association’s Labor Liaison Committee to the Secretary of Labor’s office. She was involved in the discussions that lead to the formulation of the new law.

Chapter 145 of the Acts of 2007 became law on November 15, 2007. The bill merges the Labor Relations Commission, the Joint Labor Management Committee (JLMC) and the Board of Conciliation and Arbitration (BC&A) into one multifunctional agency, thereby increasing the staff available to resolve our disputes.  We anticipate that the bill will expedite the processing of our unfair labor practice cases.  Some of the pertinent features of the bill are:

• The Commission, BC&A and the JLMC will be consolidated into one agency known as the Division of Labor Relations.
• The Division of Labor Relations will be managed by a Director, whose role will be to establish performance standards to ensure that disputes between unions and public employers are promptly and effectively resolved.
• The Director and the Labor Relations Commissioners will be vetted by an advisory council comprised of five representatives of labor, five representative from management and three neutrals.  The advisory council sends the successful nominees to the Governor who ultimately selects the candidate.  [Under current law, the governor selects whomever he chooses without any nominating process or input from the parties].
• The Commission will have one full-time Chairperson and two per diem Commissioners, who will come in on an as needed basis to determine unfair labor practice cases. [Currently there are positions for three full-time Commissioners earning six figures each]  The legislature will take the money saved as a result of the reduction in full-time Commissioners to invest in additional hearing officers and mediators/arbitrators
• Division Staff, while assigned primarily to one of three areas, will be re-assigned to function as hearing officers, mediators and arbitrators as needed.
• The Division will re-institute the in-person investigation procedure that existed prior to 1992.  Under the current process, parties file costly and lengthy briefs of legal arguments and sworn affidavits.  Under the in-person investigation procedure, the Commission holds an evidentiary hearing soon after a charge is filed.  The hearing officer tries to determine if the case can be solved through mediation.  If the case remains unresolved after this step, the hearing officer then determines whether to issue a complaint and schedule a formal hearing.
• The legislation re-institutes the procedure of having decisions first issued by hearing officers. Currently, the Commissioners must review and decide every case, leading to an enormous backlog of decisions, including several involving the BPPA.  Under the proposed legislation, the hearing officers will decide cases first, enabling decisions to be issued more quickly. 

As with any reform effort, only time will tell whether this legislation ultimately results in speedier and fairer resolution of labor disputes.  At least we have a new administration and a Secretary of Labor with an interest in making the labor agencies more responsive to its constituents, namely unions and public employers.

In January 2000, the Chief of Police in the Town of Oxford ordered all police officers to remove their MCOP Union Pins. The Oxford Police Association, MCOP Local 173, filed a prohibited practice charge at the Labor Relations Commission, arguing that the Massachusetts collective bargaining law guaranteed the right to wear a union pin, even for police officers. The case went to hearing in 2001. Leigh Panettiere of Sandulli Grace, P.C., represented MCOP Local 173 in the case. In August 2005, the Labor Relations Commission finally issued its decision, in the Union’s favor (LRC Case No. MUP-2659). The Town of Oxford appealed. On November 14, 2007, the Town withdrew that appeal, officially ending the case. It is now a settled matter of law that police officers in Massachusetts have the right to wear a union pin.

Download the decision

In a decision issued October 12, 2007, the Labor Relations Commission resolved a year-long election dispute in favor of the Massachusetts Coalition of Police over the objection of the incumbent union. Last July, MassCOP filed a petition to represent police officers in the Town of Lee, after receiving support from nearly every member of the bargaining unit. The practical effect of the Commission’s decision in favor of MassCOP is to let full-time police officers determine who represents them at the bargaining table.