State Agency Agrees With Atty Bryant that Boston Violated Labor Law By Unilaterally Implementing New Mediation Policy

August 29, 2018

The Commonwealth Employment Relations Board (CERB), the state agency that is the ultimate authority about the public sector collective bargaining law, found that the City of Boston violated the law when it unilaterally implemented a new mediation policy for citizen complaints against police officers. Patrick Bryant represented the Boston Police Superior Officers Federation (Federation) throughout bargaining and litigation. CERB ordered the City to rescind the policy as to patrol officers represented by the Boston Police Patrolmen's Association, Inc. (BPPA), and superior officers represented by the Federation.

Prior to this policy, all citizen complaints against a police officer were processed through the Internal Affairs Division or through the Commander of the station or unit. Complaints that the Department sustained obviously could lead to discipline or worse for police officers. But even citizen complaints that resulted in the officer being exonerated of charges could adversely affect the officer, by subjecting them to additional scrutiny merely for being the victim of a bad complaint. Prior to this new policy, the Department had no informal alternative dispute resolution to resolve citizen complaints.

The Boston Police Department sought to implement a mediation policy to allow for citizens and police officers to informally resolve low-level disputes, primarily relating to discourtesy, without the need for an investigative or adversarial process. If the complaint was successfully resolved to the satisfaction by all parties, the police officer would suffer no adverse consequences, including increased scrutiny or supervision.

The Federation supported the policy but had concerns about the criteria used by the Department to determine which complaints could be mediated and which complaints could not. The Federation was concerned that the Department would use mediation to assist or help friends of the Command Staff and to punish perceived adversaries of the Command Staff. The Federation sought a process where the criteria was clear, transparent and uniformly applied, without favor or bias. The Federation also sought assurances that mediation was truly confidential and overseen by professional, unbiased mediators.

After several meetings, the Department kept changing the policy - first agreeing to clear written rules and then proposing vague standards that defied oversight. The Department refused to meet with the Federation unless the Federation itemized its concerns in writing before the meeting.

A Hearing Officer found that the Department violated the law and ordered the City to rescind the policies, at least as to sworn officers represented by the BPPA and Federation (in other words, just detectives would be subject to the policy). The City appealed, and the CERB rejected the City's arguments in full

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