A Presentation to the
Massachusetts Municipal Association
Annual Meeting

January 19, 2018

By

Philip Collins, Esquire

 

JLMC:  Process, Substance, Success

A.   Process Issues: What Gets Certified for Arbitration

  • On vs. Off The Record . . . Topics vs. Proposal

B.   Substantive Issues: Keys To Success At Arbitration

  • Settle Other Units
  • Know The Landscape Of Settlements Within Comparable Communities
  • External Comparability Data
  • — Do It Comprehensively, Including Overall Compensation Analysis
  • — Get It Right
  • ‘Police’ The Union’s Data
  • — Especially In Fire Cases
  • Make A Reasonable, Defensible Offer On Wages, Consistent With Other City/Town Settlements
  • Complicated Management Proposals?
  • Do We Need 5 Issues, Too?
  • Be Careful What You Wish For
  • Pay The Price For Defending Reasonable Settlements

C.  Successful Results

  • Worcester Fire
  • Woburn Police (Patrol & Superiors)
  • Haverhill Police (Patrol)

D.  After the Arbitration

 

DLR:  Superintending The Bargaining Process

The DLR: Abuse of Discretion In Superintending The Bargaining Process

Is A Beneficial Impact Subject to Impact Bargaining?

The City of Boston implemented a voluntary mediation program for citizen complaints against police officers, and its two police unions filed a Charge of Prohibited Practice at the Department of Labor Relations (DLR) for failing to bargain over the decision and the impacts.  In a DLR hearing officer decision the City successfully argued that it had the right to decide to have a mediation program for citizen complaints against police officers, but the hearing officer found that the City had not fulfilled its duty to bargain to impasse about the impact.

And what is the impact?  The City’s mediation program impacts employee discipline because citizen complaints that are successfully resolved through the mediation process do not progress to an [Internal Affairs Division (IAD)] investigation and potential discipline.  The DLR nevertheless ordered the rescission of the mediation program for any new citizen complaints against Union members until the City fulfills its bargaining obligation.

The hearing officer determined that no impasse was reached even though the mediation program was implemented over two years after it was proposed, and after nine meetings.  She did so in part because the City did not make alternative proposals to respond to the Union’s concerns that the selection of cases for voluntary mediation could be marred by favoritism.  In short she required the City to bargain the impact of unsubstantiated imaginary concerns.  In doing so, she ignored the fundamental doctrine, expressed in c. 150E and federal labor law, that the duty to bargain does not require an employer to make a proposal or a concession.

And the decision to order rescission of the program badly failed to balance the right of management to carry out its lawful decision.

Understandably, this case is on appeal to the Commonwealth Employment Relations Board.

When Impacts Are Certain, The Decision To Exercise A Core Managerial Decision Will Stand Even If The Impact Bargaining Obligation Was Not Fulfilled.

In Town of Natick and Natick Patrol Officers Association, 43 MLC 178 (2017), Hearing Officer Kathleen Goodberlet held that the Town did not have to bargain over the decision to implement a NARCAN policy because it was a core managerial decision, but did have to bargain over its impact.

The Town claimed that the administration of NARCAN was no different than a patrol officer administering CPR or any other first responder duties and involved minimal training. The Hearing Officer held that NARCAN impacted officers’ workload including: administering medication, evaluating whether a victim should receive NARCAN, the amount they should receive, offering medical advice to those who refuse medical treatment and receiving specialized training.  Administering NARCAN was a greater safety threat than performing CPR and defibrillation, according to the Hearing Officer, so the Town failed to satisfy its impacting bargaining obligations.[1]

The Hearing Officer did not order that the NARCAN Policy be rescinded, only that the Town bargain over the impacts of the policy to resolution or impasse.  While the Union did not demand a status quo ante order, the Hearing Officer noted: “This remedy is appropriate in cases such as this where the effects of an employer’s decision are certain, and the union’s efforts to impact bargain cannot substantially change, but only ameliorate, those effects.”

This result is certainly an improvement from the LRC’s decision in the Town of Arlington case, 21 MLC 1125,1132 (1994), where the remedy for the Town’s failure to bargain to impasse about installation of defibrillators on fire engines was to order the Town to cease and desist using defibrillators pending fulfillment of the bargain obligation.

Can An Employer’s Subcontracting Proposal, A Mandatory Subject of Bargaining, Itself Constitute Evidence Of Surface Bargaining Or Bad Faith?

A number of years ago the Newton School District contracted out its school cafeteria operations.  Recently its proposal to contract out certain school custodian operations has been the subject of lengthy hearings claiming that its negotiators engaged in ‘surface bargaining.’  While the case has not been fully heard, the CERB has allowed a motion to amend the complaint to include the substance of the School Committee’s proposal, in order to litigate the question whether the substance of the proposal, on a mandatory subject of bargaining, can support a conclusion of bad faith bargaining. 

Discrimination Law Highlights

Reasonable Accommodation By Extended Leaves Under The ADA

The 12 week leave accorded under the FMLA is not by itself determinative of what a reasonable accommodation is under the ADA.  In Echevarria v. AstraZeneca Pharmaceuticals, 856 F.3d 119 (1st Cir. 2017) an employee diagnosed with severe depression and anxiety sought 12 months additional leave, after 5 months of FMLA leave, because her psychiatrist estimated the period of incapacity to be 12 months.  However, because the doctor didn’t provide any documentation that the employee could return and perform the essential functions of her jobs, the requested accommodation was not “facially reasonable.”  While the Court cited other decisions that leaves of that duration, and even shorter leaves, have been deemed facially unreasonable, it left the door open for similar claims with variations in the fact pattern.

Reasonable Accommodation Under The ADA: Transfer To Another Position

In Audette v. Town of Plymouth, 858 F.2d 13 (1st Cir. 2017), a police officer injured on the job and unable to perform the essential duties of her position sued the Town for failure to transfer her to a data entry position, but that claim failed for lack of proof there was an available data entry position.

Medicalizing Bad Behavior: Timing Is Key

In Germanowski v. Harris, 854 F.3d 68 (1st Cir. 2017), the Court upheld the dismissal of an employee’s claim that her discharge was motivated by her request for time off. At the time she was told not to return to work, she had not informed the employer (the Registry of Deeds) of her psychiatrist’s advice to take time off.  The discharge was precipitated by an altercation with her supervisor when he expressed concerns about whether she would carry a pistol, given as a gift by her husband, to work.

Sometimes Age Discrimination Cases Are Pretty Simple

In Massasoit Indus. Corp. v. MCAD, 91 Mass. App. Ct. 208 (2017), the employee was fired because he was an “on call/no show” for work.  But he proved he did notify the employer of the reason for his absence — a heart attack — and thus the stated reason for discharge was shown to be a pretext.  In such cases, the Appellate Court will not review findings based on credibility determinations.  The Appeals Court also ruled that it is not necessary for the plaintiff to prove “a widespread pattern of hostile age animus”; it was enough for this 74-year-old custodian to show he was replaced by a younger employee.

In Sexual Harassment Cases Courts Continue To Bend Statutory Filing Deadlines When There Is A Continuing Course Of Conduct Which Extends Into The Filing Period

And rightly so.  In Heyward v. Buckley, a Superior Court judge applied the “continuing violations doctrine” where the State Police sergeant’s complaint alleged sexual advances and continuous talk of a sexual nature, as well as adverse retaliatory action after she reported the harassment. . . transfer to the midnight shift, denial of training opportunities, and undermining her in front of subordinates.

Challenges To Civil Service Promotion Tests Continue

Twenty-three years after two minority police officers filed MCAD complaints challenging the validity of the 1992 Civil Service Sergeants promotion exam, their claims, as supported by the MCAD, have been dismissed.  City of Worcester v. MCAD, Worcester Superior Court (January 11, 2018).  The Court did so essentially because other federal court litigation, which these plaintiffs joined, had upheld the validity of another Civil Service test validated in the same way as the 1992 Sergeants’ test.  Lopez v. City of Lawrence, et als., 823 F.3d 102 (1st Cir. 2016), a case the U.S. Supreme Court refused to review

FMLA Double Damages: Calling Counsel Is A Sign Of Good Faith

Haste makes waste when discharging an employee for failing to give notice of illness, because if the illness itself is FMLA qualifying, the statute gives the employee leeway in complying with notice requirements.  Having incurred a jury verdict of $142,000 for lost wages and benefits, the employer in Goodic v. Center For Human Development, 2017 WL Y181347 (D. Mass. 2017) incurred liquidated damages in the same amount, for three reasons:

  • It did not seek legal counsel or other advice about the FMLA’s notice requirements,
  • Its decision-makers had no training about the FMLA; and
  • It did not reconsider the termination decision when it became abundantly clear the employee had given adequate information after being released from the hospital;

The Court contrasted Pagan-Colon v. Walgreens of San Patricio Inc., 697 F.3d 1 (1st Cir. 2012) where good faith was shown by the employer consulting its attorney several times about is obligations under the FMLA before taking action. 

 

Civil Service Commission:  The Tug Of War Continues

Hiring Bypass Cases: Must We Believe In Redemption?

No: Superior Court Overturns The Commission In Two Boston Police Case

— In Daniel Zaiter v. Boston Police Department, the Superior Court overturned the Civil Service Commission’s decision and held that the Boston Police Department had a reasonable justification to bypass Zaiter for a position as a Boston police officer, based on a guilty plea to an assault and battery and a fatal motor vehicle accident, both over 20 years earlier, while he was a student at Randolph High School.  In the meantime Zaiter had served with distinction as a police officer, in Randolph, for eight years.

The Civil Service Commission overturned the bypass for several reasons, including that the background investigator misled the interview panel concerning the scope of Zaiter’s involvement in the 1995 fight and motor vehicle accident.

The Superior Court reversed, finding that the Commission improperly substituted its “judgment of a candidate’s respective strengths and weakness for the judgment of the Appointing Authority itself” by “reweighing” Zaiter’s application.  The Court ruled it “immaterial” whether the Commission or the Court would have arrived at the same conclusion as the BPD.  This decision is an important reminder that employers may have grounds to bypass candidates for offenses that occurred long ago, provided it does a reasonably thorough and independent review of the information.

— In Gannon v. Boston Police Department, Case No. 2015 CV03462-B (March 13, 2017), the Superior Court reversed the Civil Service Commission’s decision that had allowed Gannon’s appeal and had ordered the Boston Police Department to place his name at the top of the current or future certifications for permanent police officers.

Gannon’s “indiscretion” was testing positive for cocaine (a result confirmed three times) in a prior pre-employment drug test.  He filed a bypass appeal, but withdrew it, opting instead to take the next Civil Service exam.  Though he passed the drug test on his second application, he was bypassed based on the prior positive drug test.  The Superior Court chided the Commission for relying on cases involving tenured employees, ruling that a failed drug test can be the sole basis for bypassing a candidate.

— In Owens v. Boston P.D. (January 5, 2018) the Commission upheld a 2016 bypass based on the Appellant’s repeated bullying of a classmate, with homophobic slurs – while in middle school – and a bullying incident in high school (2001, 2005).  Key to the decision was the background investigators’ finding and interviewing the victims.

Maybe, But It Is Only ‘Dicta”

In Dolbrus v. City of Everett, 30 MCSR 74 (2017), a bypass was upheld based on the failure of a fire fighter candidate to list in his application a discharge from prior employment (which he had listed in a prior application to be an Everett police officer).  As an aside, what lawyers call “dicta,” Commissioner Stein opined that a failed drug test 8 years before was “of limited relevance.”

  • Yes, if there’s a shortfall in process, but, the case is on appeal

The Mass Police Chief Reports, News Highlights, Issue 10, January, 2018, describes the decision in Strano v. Mansfield P.D. as follows:

Civil Service Commission Shows Odd Affection For Bypassed Police Officer Candidate With Criminal Boyfriends And No Interview Skills

In Strano v. Mansfield, P.D., 30 MCSR 419 (2017), a 3-2 majority granted a bypass appeal by a candidate shown to have had a history of associating with (boyfriending) known criminals and substance abusers.  In addition, Strano’s interview, which was videotaped, was variously described by two police lieutenants as “painful,” “difficult to watch,” and “one of the worst ever.”  But alas, the successful candidate’s interview was partially taped over.  That fact, and the notion that the presence of two superior officers on the panel who had prior contact with  the appellant during her ‘years of making bad choices’ may have made her “uncomfortable”, was enough for Commissioner Stein to allow the appeal.

This one is on appeal, and rightly so.

Hiring Bypass Cases After Civil Service Revocation

In Puopolo v. Town of Millis, 30 MCSR 463 (2017), the Commission heard this appeal and on the merits ruled against the Appellant, but because of the time taken to render a decision, the Commission also opined that the appeal was moot because the subsequent revocation of civil service by the Town meant there could be no eligibility list for the appellant’s placement if his appeal had merit.  See also Miller v. Marlborough Fire Department (2017)

Promotion Bypass: Weighing The Assessment Center Component

In Connor v. Andover P.D., 30 MCSR 439 (2017), a slim Commission majority overturns a promotional bypass for two reasons:  (1) the outside interview panel didn’t weigh the assessment center scores, and (2) the panel’s assessment of interview performance could not be considered because the interview was not recorded.  The dissenting minority (Commissioners Bowman and Ittleman) would have sustained the bypass because there was enough credible evidence about the interview performance and because the selected candidate had more varied experience.

Discipline Cases: The Beat Goes On

Can Post-Termination Conduct, Similar To The Conduct Causing A Discharge, Be Considered In Deciding An Appeal?

-and-

Does The Issuance Of A Domestic Violence Restraining Order (A 209A Order) Against A Fire Fighter Have A Nexus To His Employment?

In Lavery v. Town of North Attleborough, 30 MCSR 373 (2017), the Commission upheld the discharge of a fire fighter when it concluded from physical evidence of red marks on the neck of the employee’s pregnant female friend that he had used an unreasonable degree of force, during a physical altercation, which put her at risk of serious harm.

Buttressing this conclusion, the hearing commissioner also considered an incident which occurred one month after the discharge decision.  The incident resulted in the employee entering into an admission to sufficient facts of domestic violence against another woman, a CWOF (continued without a finding), and probation.

However, in upholding the dismissal the hearing commissioner (Paul Stein) concluded that the existence of the 209A Order did not provide a nexus to the efficient performance of a fire fighters duties.  In a concurring opinion, agreeing with the denial of the appeal, the other four commissioners expressed the view that the domestic violence restraining order had an adequate nexus to the employment, and that the later admission, while not acted on by the Board of Selectmen, further undermined the credibility of his commission testimony.

Can You Give Me Some Time To Get Back The License I Need To Do My Job?

In Trowbridge v. City of Fall River, 30 MCSR 267 (2017), the Commission upheld the discharge of a firefighter/paramedic whose Authorization To Practice was indefinitely suspended by the Medical Director of the Affiliated Hospital (with the concurrence of the Department’s Medical Director).  By the time of the Commission’s decision, over a year had passed with no evidence that reinstatement of the authorization was imminent.  The fact that the State Agency (OEMS) did not revoke his Paramedic Certification did not matter.

These cases call for immediate action, often by the department head in civil service communities, to respond without pay as a status suspension.  Recall City of Cambridge v. Civil Service Commission and David Diamond, Superior Court (1997).  The question becomes how long is too long to wait for an employee to get the license or certification restored.  By analogy, the Commission has upheld a discharge of a police officer for psychological incapacity, with no prospect for return, after only seven months absence.  Vinard v. Town of Canton, 29 MCSR 399 (2016).

The Limits of Last Chance Agreements

Imagine a situation where an employee with considerable service commits an offense which is clearly dischargeable, and seeks to avoid discharge by entering into a Last Chance Agreement.  In Emma v. D.O.C., 30 MCSR 287 (2017), the Commission unanimously refused to enforce an LCA which waived appeal rights to the Commission, ruling that such waivers violate the public policy of having the Commission determine just cause.

The Commission endorsed the findings of the D.O.C. about Ms. Emma’s many attendance issues, but nevertheless reduced her discharge to a 15 day suspension.  It did so because another correction officer with an LCA for calling in sick — to play golf — repeated that same offense and was given only a 15 day suspension and second LCA.  What about the statute?

Section 41:  “Except for just cause . . . a tenured employee shall not be discharged . . . . without his written consent . . . .”

Why can’t an employee, as a quid pro quo for saving his or her job, consent to a future discharge if the appointing authority finds that the same offense has been committed?  Of course, short of that, a well-drafted LCA will always make it clear that the next process will be limited to the question whether the subsequent offense occurred, the penalty not being an issue.

Other Cases of Interest

Release Of Wage Act Claims In Several Agreements: How Specific Is Specific?

In Fratea v. Unitrends, the Suffolk Superior Court recently dismissed a claim for overtime under the Wage Act for non-payment of the minimum wage under the Fair Wages Act because the employee, who worked less than a year, received $1,875 as a severance payment in exchange for a release of all claims.  The release specifically mentioned the Wage Act but not the Minimum Wage Act.  Since the agreement advised the plaintiff in ALL CAPS to consult an attorney, and he was given two weeks to accept the agreement as proposed, the release was enforced.  The Court rejected the argument that the release had to specify key features of the Wage Act, like treble damages.

Public Statements About The Reasons For A Discharge Decision May Subject An Employer To Liability For Defamation

In Blanchard v. Steward Carney Hospital, 477 Mass. 141 (2017) the Supreme Judicial Court allowed a lawsuit by a group of nurses, terminated from the adolescent psychiatric unit of the hospital, to proceed based on an internal email sent to all employees by the hospital’s president that the terminated employees “have not been acting in the best interest of their patients”.

Statements made to the Boston Globe, however, in the context of an investigative report which threatened the licensure of the unit by state officials, constituted petitioning activity under G.L. c. 231, §59H which could therefore not form the basis of a defamation claim

Firefighter Alleging First Amendment Retaliation Wins One Claim, Loses Another

In Davison. v. Town of Sandwich, WL 1115154 (2017), a Sandwich firefighter reprimanded in 2012 and fired 19 months later challenged the reprimand and termination as retaliation for posting a sign on his property urging Town residents to vote “no” on a new public safety complex.  In a 38 page decision, a U.S. District Court judge kept the lawsuit alive, only against the Chief and Deputy Chief, and only concerning whether the enforcement of a rule violation leading to the reprimand was disparate treatment.  The case against the Town about the termination was dismissed in its entirety, for lack of any evidence that the reason for the termination was related to the free speech as opposed to the plaintiff’s ongoing and repeated violations of work rules about outside employment, and a threatening phone call made after receipt of a notice of contemplated termination.

 

COLLINS, LOUGHRAN & PELOQUIN, P.C.

Attorneys at Law

220 Norwood Park South, Suite 1D

Norwood, Massachusetts 02062

Tel. (781) 762-2229 ● Fax (781) 762-1803

www.collinslabor.com

 

 Appendix:  The Peloquin Plan, Foundation of a Successful Bypass*

THE FOUNDATION OF A SUCCESSFUL BYPASS

The Appointing Authority Burden and the Commission Standard of Review.

a.     Appointing Authority’s Burden:  Provide reasonable justification for bypassing an applicant, i.e.,  “…adequate reasons sufficiently supported by credible evidence, when weighed by an unprejudiced mind, guided by common sense and by correct rules of law.” City of Cambridge vs. Civil Service Commission, et al., 43 Mass. App. Ct. 300 (1997).

b.     Commission Role: To guard against political considerations, favoritism, bias, objectives unrelated to merit, and illegality; to insure neutrally applied public policy. Commission may not substitute its judgment about a valid exercise of discretion based on merit or policy considerations.

Tips To Avoid Having Your Hiring/Promotion Bypass Decision Reversed.

a.     Know The Reasons You Can’t Use.

1. For new hires, avoid the obvious.

2.  For promotions, check any promotion policy/criteria established in writing, or by practice.

*This is an excerpt from the materials of a presentation Leo J. Peloquin made at the summer conference of the Mass. Municipal Lawyers Association in August, 2017

Statutory Hiring Bar? 

a.   Police – Felony bar from working as a police officer, MGL c.41 Section 96A.

b.    Fire – Temporary bar (one year bar, but excluding certain crimes), MGL c.30 Section 50.

c.    Conviction or non-conviction: get the underlying documentation.

Residency.

a.   Did employee satisfy one year residency requirement?

Proof of residency (e.g. lease agreement, utility bills, check with neighbors).

Employment References.

Driver’s License.

Review complete personnel file for all candidates for promotion.

More Is Usually Better: Don’t Cut Corners When Reviewing Past Performance And/Or Making Background Checks (Assume An Appeal).

a.     Use specific and documented examples to distinguish between applicants.

b.     Seeing it in writing does not always prove it happened. Go to the live source(s) and get all sides—including the applicant’s.

The “Informal” Interview Trap.  Make The Interview A Legitimate Measuring Device And Preserve The Results (Don’t Wing It!)

a.   Use standardized questions for all applicants.

b.   Use experienced interviewers (whether outside chiefs and/or HR or municipal officials).

c.      Use questions that allow the display of skills required by the job (Role playing, etc.).

d.     Use questions with answers that can be graded. Clearly, some answers are better than others.

e.      Preservation of evidence:  Keep the questions, the answers and notes.

Make Sure The Answers To The Next Two Questions Are Clearly “No”.

a.     Do the positive reasons for selecting the applicant who placed lower on the civil service list apply equally to the applicant bypassed?

b.    Do the negative reasons for bypassing the higher placed employee apply equally to the applicant selected?

It’s Ok To Consider Experience Even Though It Is Built Into Civil Service Test Scores.

Although education, seniority, training and experience are already built into the test scores (G.L. c. 31, § 22), this should not preclude an Appointing Authority from considering these factors as part of its additional review as long as it can be shown that such consideration was reasonably justified and was not used as a subterfuge for stacking the deck in favor or against any particular candidate.” Valliere v. City of Westfield, 24 MCSR 424, 431 (2011), also cited in Carlson v. Town of Burlington, 25 MCSR 129 (2012) (“The variety of the situations experienced by candidate…would not show up in a formula… [T]he Appointing Authority may simply give greater weight to the role of experience and/or education than the HRD’s formula…Just because the HRD score includes a component for education and experience does not mean that the appointing authority may not consider these factors in making their decision.” Condez v. Town of Dartmouth, 17 MCSR 40, 41 (2004); Lamothe v. West Springfield Fire Department, 7 MCSR 68, 70 (1994) (“…[L]ength of service might conceivably be relied upon to tip the balance between two candidates whose scores were only one or two points apart….”).

 Treat The Actual Appointment Vote Like It Counts For Something.

  1. Avoid the pro-forma vote by BOS.
  2. Avoid reliance on informal input.

The Bypass Letter:

“Such [bypass]statement shall include all reasons for selection or bypass on which the appointing authority intends to rely or might, in the future, rely, to justify the bypass or selection of a candidate or candidates….No reasons that are known or reasonably discoverable by the appointing authority, and which have not been disclosed to the Personnel Administrator, shall later be admissible as reasons for selection or bypass in any proceeding before the Personnel Administrator or the Civil Service Commission….”

a.   Include in the letter to HRD the deficiencies of the bypassed applicant and not just the positive attributes of the applicant selected.

b.  Characterize the behavior and deficiencies (if negative reasons).

c.    Include appeal rights in bypass letter:

  • I am obligated to advise you of your right to appeal the Appointing Authority’s decision to bypass you based on my recommendation. You have a right to appeal this determination by filing your appeal, in writing, within sixty (60) calendar days of receipt of this notice, with the Civil Service Commission, One Ashburton Place, Room 503, Boston, MA 02108. You can visit the Commission’s website at www.mass.gov/csc to download an appeal form and receive information regarding filing fees. If you appeal, you should file a copy of the Appointing Authority’s letter and this letter with the appeal.

[1] In addition, the Hearing Officer held the employer had not reached impasse before implementing its NARCAN Policy.  The Town ignored the Union’s demand to bargain, and the “duration of time spent negotiating . . . is exceptionally short in comparison to the significance of the issues.”  In addition, the DLR found unreasonable the one year delay in responding to the Union’s information request.