CERB Rules That Public Employer Must Offer Reinstatement to Employee Who Retired After Being Unlawfully Let Go

A Massachusetts public employer who unlawfully changes a term or condition of employment without first notifying a union and providing it a chance to bargain normally is forced to restore conditions to how they existed before the unilateral change. This remedy is known as restoring the "status quo ante." Recently, the Commonwealth Employment Relations Board (CERB) agreed with Attorney David Rome and his client SEIU Local 888 that status quo ante requires the Employer to reinstate an unlawfully laid off employee, even if the employee subsequently retired. The only exception is if the employer can establish that the employee would have retired anyway.

In the case of SEIU Local 888 v. City of Lawrence (see attached decision), the City laid off an employee and unlawfully transferred certain duties to a different bargaining unit. The laid off employee ultimately retired. The Department of Labor Relations agreed that the City's failure to provide notice and an opportunity to bargain were unlawful. But the hearing officer declined to order that the City reinstate the employee as a remedy, citing his retirement.

CERB reversed on appeal, concluding that retirement following a unlawfully provoked separation of employment does not, by itself, excuse reinstatement as a remedy. CERB basically established a presumption that retirement of an employee who was wrongfully let go is "akin to a decision to seek alternative employment so as to continue receiving a source of income." In order to deprive employee of traditional remedy of reinstatement, the Employer has the burden to rebut this presumption and to persuade the hearing officer that the adversely affected employee would have retired regardless of the unfair labor practice.