Attorney Ian Russell Successfully Defends BPSOF Unfair Labor Practice Victory Against Challenge

The Appeals Court of Massachusetts upheld the Commonwealth Employment Relations Board's decision that the City of Boston committed an unfair labor practice when it violated a settlement agreement with the Boston Police Superior Officers Federation (BPSOF). Attorneys Ian Russell and Leah Barrault represented the BPSOF at CERB and the Appeals Court. This case establishes that a public employer's "management rights" defense is not a perennial trump card and that the public employer must make these arguments at all levels.

Here, the City and BPSOF disputed whether a certain position, a Special Police Unit Commander, could be assigned outside of the bargaining unit. To resolve the matter, the parties agreed that the position would revert back to BPSOF once the incumbent left the position. The City, however, refused to do so and effectively repudiated the agreement.

The City initially defended its repudiation by arguing that the parties made a mistake about Special Police Unit Commander duties and that the City had a right of assignment that superseded any bargaining obligations. These arguments failed to persuade a hearing officer.

The City then appealed the loss to the full CERB. The City abandoned its previous arguments and instead contended that the settlement agreement was void because it violated the City's bargaining obligations to other bargaining units that performed the work. CERB handily rejected this argument.

Despite having lost twice, the City sought relief from the Appeals Court. This time, the City reverted to its original arguments before the hearing officer. The Appeals Court ruled that the City waived arguments about its managerial rights because it failed to present them in its appeal to CERB.

While Massachusetts courts have been overly solicitous of management rights defenses from police and fire chiefs, this case supports the idea that a public employer cannot just willy-nilly assert this claim. A public employer seeking to protect its management rights defense (which is the ultimate "get out of jail free" card for police and fire chiefs) must assert this defense at every stage of a case.

Unfortunately, the BPSOF is not entitled to a reimbursement of attorneys fees for defending against these meritless appeals.