Massachusetts Legislature creates new rights for Public Sector Unions

Recently, the Massachusetts Legislature enacted House Bill 3854, over the Governor’s veto. This brand new law was passed specifically to respond to the U.S. Supreme Court’s decision in Janus v. AFSCME. The legislation allows unions to require non-dues paying members to pay in advance for expected costs and attorneys fees in certain matters brought on behalf those non-dues payers. Importantly, the bill went further to create new union rights, including the right to:

• Meet with employees on the employer’s premises during the workday to investigate and/or discuss work related issues, grievances, etc.

• Conduct worksite meetings during breaks and before and after the workday to discuss workplace issues, collective bargaining negotiations, the administration of collective bargaining agreements and other matters related to internal union matters;

• Meet with newly hired employees without charge to the pay or leave time of the employees for a minimum of 30 minutes (i.e. can be longer) within the first ten (10) calendar days after the date of hire, during new employee orientation or, if the employer does not have a new orientation, at individual or group meetings;

• Use public employer email systems for union-related matters, provided doing so does not create an unreasonable burden on network capability or system administration (remember there remains no expectation of privacy, however); and

• Use government buildings and other facilities that are owned or leased by government entities to conduct meetings with members regarding collective bargaining negotiations, the administration of collective bargaining agreements, the administration of any investigation of grievances, other workplace related complaints and issues and internal union matters involving governance or business of the union.

Public employer’s that refuse to allow unions the above rights and benefits will be in violation of the collective bargaining law, GL c. 150E, for failing to bargain in good faith.

Another day, another Union Official indicted for misuse of union funds. Are you prepared to respond to a subpoena?

Are your union financial books in order?

2019 has seen a flurry of labor union indictments and investigations into labor union financial records. Police and other labor unions around the Commonwealth, and accross the country, have been the subject of grand jury subpoenas resulting in indictments of leadership officials. In the past week alone we saw:

  • the indictment of the State Police Union president;
  • a leader of a major trade union indicted;
  • In June, an office, a Methuen Police Patrolman's Union official indicted;
  • Earlier this year, it was reported that the Somerville Police Union may be the victim of $50,000-$90,000 funds embezzled by a union official.

Of course, we are aware of other active investgations that are ongoing.

It is difficult and time consuming to monitor and reconcile financial records, credit card statements, expense receipts, income statements, etc. - but it must be done. It is harder to see red flags when treasuries are flush with cash - no bounced checks, missed payments, etc. However, the fact that plenty of money is in the treasury is when a treasury may be most vulnerable to misuse.

With all the recent attention on union funds, take this opportunity to get your union's books in good shape:

  • Put together a group of people to share the work and to provide more sets of eyes on the information
  • Look for red flags in credit card statements, checks written, expense reports (if you read the paper, you can see that is what investigators are looking at)
  • Address and resolve any concerns or questions
  • Document everything properly so you can avise your members (and anyone else that might be compelling information)
  • consider hiring a bookeeper or professional if the project is too cumbersome or complicated.

BODY CAMERA NEGOTIATION BULLETIN

NP Attorney Gary Nolan spent a couple of days last week immersed in training about forensic examination of video evidence. For us, two primary issues with video are (1) use in disciplinary / use of force cases and (2) negotiation of body worn camera policies. Many area police investigators were in the seminar, and it's safe to say most of us were blown away by the potential for video to tell a completely inaccurate story. That is not to say it cannot be very helpful, but storage and replay issues can make the video be extremely misleading. The instructor, a nationally recognized expert/FBI instructor, told us that calling video a "silent witness" is an extremely dangerous concept. We have been challenging such technical issues in cases, but only recently have fact finders begun to question the reliability of video.

For example, did you know that digital video is made up of a series of still snapshots pieced together (think about the old cartoon flip-books)? A surveillance video might take 15 snap shots per second, which is very low and unreliable when trying to determine speed or force, or small movements, etc. The scary thing is that with digital video, many of the snap shots are not actually real, but are computer generated predictions - so it is not uncommon for the image to not reflect reality. Think of the dangers in a use of force case where a prediction frame is missing data of someone moving.

We also learned about how data is compressed for storage purposes, or is significantly altered when playing video on something other than the original software that recorded it (like a VLC player downloaded from the web). Frames and data may be removed from the original, altering speed and appearance. This increases the appearance of force and speed. We were shown a video where a police officer was charged criminally for slamming a suspect's head off of the ground extremely hard and fast. After a public outcry to fire and charge the officer, a forensic video review was conducted. The video was fixed back to its original form - and amazingly showed the officer literally placing the suspect gently onto the ground - and it was clear that the head never even came into contact with the ground. Insane.

I am attaching a recent article from the Int. Assoc. of Police Chiefs addressing some of these issues. A couple of thoughts that occurred to us about bargaining: as a threshold issue, unions should propose that (1) all original data be preserved and produced the union upon request, and (2) that the Department have any such video reviewed and certified as accurate by a forensic video analyst prior to any charging decisions relative to the officer, and in order to be used as evidence against the officer. Anyone who educates themselves as to these issues, including prosecutors and police management, would have difficulty arguing with any of this, as it really protects everyone - police, municipalities and citizens.

Article is attached here.

USE OF FORCE BULLETIN: Court rules Boston Police liable for bystander's injuries during pat-frisk shootout - a must read (unfortunately).

The Supreme Court told us years ago that split-second decisions regarding uses of force must not be second guessed in the calmness of the judge's chambers - so much for that. Second guessing based on compressed and often flawed video has become the new normal. Add to that this recent Appeals Court case and it is more than apparent why stress levels of police officers are on the rise.

Here, a 911 call reported a threat to kill a victim. Officers arrived and during a pat-frisk, the suspect pulled out a gun and began shooting at the officers. During the ensuing gun fight, the suspect was killed, but a stray bullet from an officer hit another person (the party in danger to begin with) in the leg. She sued the officer's for negligence and won. The appeals court upheld - stating that there was no need to conduct a sudden unnanounced pat frisk - and that police should have known about the potential violent reaction. The jury awarded more than $250,000.00 to the plaintiff.

It is important to read the facts of this case - the court went into detail about the circumstances. It is more important than ever for officers to document the dangerous circumstances that were the basis for their actions. It is more and more clear that second guessing is happening and support of first responders is waning.

Click here to read the case

FORENSIC VIDEO SEMINAR

Because of all of the video evidence in labor cases, our lawyers will be undergoing evidence training on forensic video analysis. We have had success challenging aspect of videos in use of force cases - often they are compressed or abbreviated in ways not apparent without technical discovery.

We plan to make trainings available to local unions starting sometime in September. Please reach out if you might be interested. We will keep you posted on this.

DLR Issues Complaint against Town of Chelmsford for bad faith conduct in JLMC proceeding - alleges unlawful cooperation with arbitration panel member

After an exhaustive investigation by the NEPBA and Chelmsford Police Superior Officer's Union, the DLR found probable cause that the town violated a multitude of labor laws, including unlawful cooperation with a JLMC panel member during confidential arbitration deliberations. The DLR also charged the town with making misrepresentations to the elected Town Meeting reps. when presenting the JLMC award.

The union's investigation consisted of in-depth public records requests that produced indisputable evidence supporting its complaints, including email correspondence between the Town and the cooperating JLMC panel member, all of which can be read below.

The DLR finding and the Union's Complaint are attached here. You can also read the media coverage in our In-the-News page.

Read DLR Finding here

Read Union's Complaint and Exhibits here

NP fights for Female Firefighter - top ranked by independent Assessment Center, but skipped for promotion in favor of lower ranked male

Civil Service chiefs these days are pushing for independent assessment centers to replace the traditional civil service promotion test. They claim that the independent, in-depth panels produce the very best candidates for promotion. The City of Methuen employs about 100 sworn firefighters, only 3 of whom are women. No female firefighter is currently above the rank of private. No female has ever served as a Captain in the city's history.

Tracy Blanchette is a 25 year veteran firefighter. She is a former firefighter of the year, has a file full of advanced training and certifications and no discipline. Recently, the Methuen Chief pushed for an independent assessment center for promotions. After a grueling day-long exam process, FF Blanchette found herself at the top of the promotion list. When it came time to promote her, however, the City skipped her for a lower ranked male candidate, who it claimed performed better on a 20-minute interview with City employees, including the Fire Chief who for many years was employed as an electrician by the lower ranked male candidate. So much for the value of the thorough, independent assessment center...

Read the media report here

Peter Perroni and NEPBA get second court victory protecting NH police privacy

NP lawyer Peter Perroni recently opposed efforts by the media and the ACLU to make public certain police internal affairs files in NH. The Court sided with the union, and, quite begrudgingly, refused to compel the release of the informtion sought by the press and ACLU.

Peter represented the interests of the Salem Police Union in this case. It is the second court battle won by Peter and the NEPBA this year, earlier having prevailed in a similar matter on behalf of NEPBA Portsmouth.

READ THE FULL STORY HERE

Press Release on Worcester Police Detail Earnings

Each year, local media outlets publicize police salary information, but often leave out very important details related to those earnings. Together with NEPBA Local 911 President Dan Gilbert, we did a public records request seeking to breakdown the 2018 detail wages. Specifically, we sought to discover how much revenue the City earns from its adminstrative fees charged to private contractors. As expected, the City generates hundreds of thousands of dollars in revenue each year directly from police details, not to mention the benefit of thousands of hours of police work subsidized by private industry. This benefit is enjoyed by most municipalities. A simple public records request will provide the numbers.

Read the full press release here.

Nolan | Perroni wins significant legal ruling in promotional bypass case - Court overturns Civil Service Commission

Gary and Peter represented a long time Lowell Police patrolman in his bid for promotion to sergeant. After a negative ruling from Civil Service, NP appealed to the superior court, where a judge recently issued a strong rebuke of the City's conduct. In ruling for the officer, the court clarified the bypass process, and explained thoroughly how the City's skirting of the rules can lead to both the appearance of impropriety, as well a actual improprieties.

Click here to read the Court's decision

Nolan | Perroni wins second case for decorated Northampton Police Lt.

Attorney Gary Nolan and the NEPBA favorably resolved the second of two disciplinary cases for Northampton Police Lt. Al Borowski, both of which stemmed from a series of malicious, anonymous letters. After an arbitrator found that there was no just cause for the initial case, the City agreed to completely rescind the discipline levied in the second matter, and also vacated all of the internal affairs findings related to the case. Congratulations to Lt. Borowski on his clean sweep.

For more details on the case, click here.

Nolan | Perroni wins important court ruling protecting NH police privacy rights

Attorney Peter Perroni and the NEPBA prevailed in a showdown with City Hall and a NH newspaper, both seeking to force the release of an arbitration decision involving the Portsmouth Police Supervisor's Union. The union intervened in this important court battle to protect the privacy rights of not just its member, but to protect the rights of all unionized NH police officers and law enforcement officials.

Click here to read the full court ruling