Recent Developments

Generally, a worker whose termination is reversed by an arbitrator is entitled to the wages and benefits they lost from the time they were terminated to the date they were reinstated. But, employers have succeeded in persuading arbitrators and courts that employees are not entitled to keep all their lost wages and benefits. Back pay awards, employers argue, must be reduced by the amount of pay and benefits the employees earned during the period after termination.

A collective declaration that employees have “no confidence” in their boss has been in the news lately. It is worth noting that “no confidence” votes can be protected, concerted activity under public or private sector collective bargaining law, and, if so, the employer cannot retaliate against employees who engage in such “no confidence” votes.

In Morehouse v. Weymouth Fire Department, the Civil Service Commission agreed that the statutory ban on smoking applies to fire fighters hired before the law went into effect, but who then went to work for another fire department after the law went into effect. The Commission further agreed that smoking is an offense warranting, if not compelling, termination.

The City of Boston terminated a veteran superior police officer after a civilian co-worker alleged that he sexually harassed her and created a hostile work environment. The City terminated the superior officer, even though the 16 witnesses interviewed during the City’s own investigation either contradicted or failed to corroborate any of the complaining co-worker’s allegations. A neutral arbitrator agreed with the Boston Police Superior Officers Federation that the termination was inconsistent with basic elements of just cause.

Massachusetts Police and Fire Chiefs frequently file applications for involuntary retirement against police officers and fire fighters they believe are no longer able to work as a first responder. These applications typically happen after it is clearly established that the public safety employee is permanently disabled, either from a work-related injury or hazard (known as Accidental Disability) or non-work related injury (known as Ordinary Disability). Massachusetts law technically allows public employers seek the retirement of employees who are not disabled.

The Courtyard Marriott of South Boston terminated a housekeeper/room attendant represented by UNITE HERE Local 26 because she made a short cell phone video of a co-worker. The Grievant was recording the co-worker's violation of a work rule, in order to show that Hotel was not uniformly enforcing its policies.

A hearing officer of the state labor relations agency has ruled that Chicopee Firefighters, Local 1710 IAFF, a Pyle Rome Ehrenberg, PC client, did not violate its duty of fair representation when it informed the Fire Chief that a bargaining unit member allegedly engaged in misconduct. Attorney David Rome represented the Chicopee Firefighters at the Department of Labor Relations.

U.S. District Court judge Nathaniel Gorton has dismissed claims brought by three terminated employees against their Union, UNITE HERE, Local 26. The discharged employees claimed that the Local 26 violated the duty of fair representation (DFR) toward them.

An independent arbitrator agreed with UNITE HERE Local 26, represented by Attorney Patrick Bryant, that a terminated hotel employee was entitled to the union contract's requirement of just cause for discipline.

A Federal Judge in Massachusetts recently dismissed claims under the First Amendment, Massachusetts whistleblower law, and tort law brought by a member of the Cotuit Permanent Fire Fighters, Local 3462. The case, if upheld on appeal, is a cautious reminder that the First Amendment does not provide public employees with absolute protection against adverse employment actions based upon their exercise of free speech. Plus, it cautions that not every negative action that occurs after lawful activity by an employee can support a legal claim.