The Massachusetts Teachers Association (MTA) recently won a hard-fought arbitration over the termination of a paraprofessional employee (also known as a “para”) in the Ashburnham-Westminster Public Schools. After five days of hearing, Arbitrator Gary Altman ruled that the School District did not have just cause to discharge the MTA member. Following the ruling, the School District reinstated the para in accordance with the arbitrator’s instructions. The MTA was represented in the arbitration proceeding by Sandulli Grace attorney John M. Becker. He was assisted by Local Union President Beth Wojnas and MTA Uniserv consultant Paul Ryan.
The case arose at the end of the 2009-2010 school year when, after several successful years as a para in a difficult special needs program that uses applied behavioral analysis (ABA), the para received a scathing end-of-year evaluation that recommended she be terminated from her employment. This came as a shock because: (1) the Union had negotiated the evaluation as a tool for improvement and growth, not discipline and (2) this para had not received any prior discipline or otherwise been warned that her performance was not satisfactory. Furthermore, the para disputed the truthfulness and accuracy of her supervisor’s criticisms. In many cases, the para’s supervisor criticized her for behavior that had been reported (inaccurately) to the supervisor from third parties.
At the arbitration, the Union introduced evidence that (1) the allegations against the para were false; and (2) the employer failed to use progressive discipline. The arbitrator issued a decision based on the second theory, in a stirring endorsement of the principle that employers must value their employees and give them opportunities to improve, instead of blindsiding them:
[W]hen an employee has been discharged for being unable to perform in a satisfactory manner, arbitrators consider whether the employee was offered a reasonable opportunity to demonstrate satisfactory performance, or whether the steps of progressive discipline have been followed. The purpose of progressive discipline for performance related problems is to put the employee on notice to improve his or her performance, and if the employee is unable to perform in a satisfactory manner, to then impose more severe discipline. In the present case there was absolutely no progressive discipline.
As a remedy, the arbitrator ordered the School District to reinstate the employee to a paraprofessional position. The discharged para had been earning a higher salary as an ABA para, so the Union had asked for her to be reinstated to an ABA position, but the arbitrator did not restrict the School District to ABA positions, thus allowing the School District to reinstate the para to a lower paying position, at least until contractual bumping rights allow the para to bump into an equivalent job. Despite this glitch, this award overturning a discharge was a significant victory for the employee and for the MTA.
Arbitrator Nancy Peace recently issued an arbitration award reversing disciplinary action issued to a Concord police sergeant. In the award, Arbitrator Peace found that the sergeant – who had a spotless 20 year record with the Concord Police Department – did not commit the offense he was accused of. The case includes some important language regarding the nature of insubordination, an offense that often leads to employee discipline. The Union was represented by Sandulli Grace attorney John M. Becker
The case involves the police department’s planning for a large public event in Concord. Sgt. Joseph Connell was not involved in the planning, but two other sergeants were. Sgt. Connell and his Union – the Concord Police Association, Local 260 of the Massachusetts Coalition of Police – understood these sergeants to be acting on a voluntary basis. At one point, the Police Chief asked Sgt. Connell to help with the planning on a voluntary basis. Sgt. Connell provided some assistance, but eventually e-mailed the Chief stating that there was nothing more to do. The Chief e-mailed back, “I want you to handle the scheduling for us.” Sgt. Connell responded (also by e-mail) that he did not want to volunteer to work on the planning, and he expressed concerns that the process had begun so late. The next thing Sgt. Connell knew, he was brought in to the Chief’s office and issued a written reprimand for insubordination. He was also reassigned from his midnight shift to the day shift where he would allegedly undergo training for an undetermined period. As it turned out, he was reassigned for seven weeks and received very little training. Interestingly, Sgt. Connell was required to take part in the event planning during his reassignment.
Sgt. Connell and the Union grieved the discipline and the reassignment and the grievance proceeded to arbitration before Arbitrator Nancy Peace. After hearing testimony from Sgt. Connell, Union President Chuck DiRienzo, the Police Chief and others, the Arbitrator ruled in the Union’s favor. According to the Arbitrator, insubordination must be determined by looking at the understanding of the person receiving the alleged order. Here, while the Chief may have believed he was giving an order, Sgt. Connell, based on all the facts, believed he was being asked to volunteer. The Arbitrator reasoned, “It is the responsibility of a superior officer to insure that his or her orders are clear and have been received. Where there is any indication that there may be some confusion or misunderstanding, as there certainly was here, it is the responsibility of the superior officer to investigate and clarify.” The Arbitrator concluded, “This grievance and arbitration could have been avoided had Chief Neal responded to Sgt. Connell’s August 25, 7:59 a.m. e-mail by clarifying that he was not asking Connell to volunteer to handle the scheduling; he was ordering or directing him to do so.”
Arbitrator Peace found that the Town violated the just cause provision of the collective bargaining agreement between the Town and the Union by issuing the discipline and reassigning Sgt. Connell to the day shift. She ordered the discipline removed from Sgt. Connell’s record and ordered him compensated for financial losses as the result of the reassignment.
Read the decision…
On Thursday, May 27, Sandulli Grace attorney Amy Laura Davidson appeared on the WGBH show “Greater Boston” to discuss municipal health insurance and collective bargaining with Geoff Beckwith of the Mass Municipal Association. Atty. Davidson is a recognized expert in dealing with health insurance issues on behalf of her clients, including the Massachusetts Coalition of Police (MCOP) and the Boston Police Patrolmen’s Association.
On the show, she vigorously defended municipal unions against the blanket accusation that they are deaf to the pleas of cities and towns that they are being overwhelmed by health insurance costs. The shibboleth of the “$5 Co-Pay” was held out as the norm in the public sector. Atty. Davidson spoke the truth: unions in dozens of municipalities have made significant concessions in health care negotiations, including significant increases in co-pays and deductibles. Contrary to public perception fed by ill-informed media, the $5 co-pay is an “anomaly,” Atty. Davidson explained. She argued, forcefully but intelligently, against the MMA bill currently pending at the Legislature which would eliminate bargaining over health plan design and allow municipalities to unilaterally change health benefits. As Ms. Davidson eloquently stated: “Health insurance essentially is wages.” If employers can just unilaterally make employees pay more to go to a doctor or hospital without having to negotiate with their unions, we might as well just let them reduce employees’ wages without bargaining.
Those who watch the show will note one bogus argument advanced by Mr. Beckwith: that there is something unique about the requirement that cities and towns in Massachusetts bargain with unions over the structure of the health insurance plans that cover their employees. While it is true that Massachusetts state employees and federal employees do not have the right to negotiate over their health insurance plans, those workers make up a very small percentage of the total workforce. In fact, the more than 7,000,000 workers in private sector unions throughout the country have virtually exactly the same collective bargaining rights as Massachusetts municipal employees: to bargain over the design of their health insurance plans.
Here’s a link to the show: