Massachusetts Lawyer's Weekly, the leading legal newspaper in the Commonwealth, recently did an in-depth, front page article on one of our cases - NEPBA Local 20 v. Town of Chelmsford, where the Town's agents were found to have participated in illegal ex-parte communications with a JLMC arbitration panelist, and where it was determined that the Town's Manager mislead his own Town Meeting and Finance Committee in violation of the law. The case was a huge win for NEPBA and for public safety unions across Massachusetts.
Nolan Perroni wins major Labor Board cases for NEPBA & Chelmsford Police Sergeants
The Massachusetts Department of Labor Relations this week issued a 50-page stinging rebuke of the Town of Chelmsford’s municipal management, finding that its Town Manager and Counsel unlawfully communicated with an arbitration panel member in an attempt to gain confidential information in order to influence an arbitration award, and also by misleading the Town’s Finance Committee and Town Meeting, among many other violations of law. NP partners Gary Nolan and Peter Perroni represented the NEPBA and the Chelmsford Police Sergeant’s Union (NEPBA Local 20) in this long-running legal battle.
This very important decision thoughtfully addresses the good faith bargaining requirements of parties and arbitration panelists during a contract arbitration proceeding before the JLMC, both during the hearings and all the way through the contract funding process.
This Department of Labor Relations decision comes more than a year after it concluded eight (8) days of testimony in this case, in addition to adjudicating related litigation and appeals involving subpoena issues. This decision - reached in favor of the Chelmsford Police Sergeant’s Union - sustained three (3) different Prohibited Practice Complaints issued against the Town of Chelmsford.
Allegations
The union alleged that during a previous contract arbitration (JLMC) proceeding, the Chelmsford Town Manager, together with Town Counsel, had illegally communicated in secret with an arbitration panelist, Andrew Flanagan (Andover Town Manager), in an attempt to ensure that the 2016-2019 contract arbitration award (which was favorable to the union) was defeated at Town Meeting. The union alleged that Flanagan unlawfully leaked the award to the town before its release, and then allowed the Town to secretly influence the arbitration panel’s confidential deliberations, and then – when that effort failed – to draft a negative “dissenting opinion” to attach to the arbitration award, which Flanagan had agreed to pass-off as his own. That negative opinion was the Town’s basis to reject the favorable contract during Town Meeting. The Town Manager, however, never disclosed that he and Town Counsel were actually responsible for the negative dissenting opinion.
DLR Findings
Based on multiple unlawful and inappropriate communications between the Town’s Counsel, Town Manager and the JLMC Panel Member Flanagan, the DLR determined that the Town of Chelmsford violated the law in many ways. Some examples are below.
Unlawful Conduct During JLMC Contract Arbitration Proceeding
The DLR found:
• The sworn testimony of Andrew Flanagan (JLMC Panel Member) was not credited.
• The Town acted in bad faith when Town Counsel engaged in ex-parte communications with Flanagan with the intent to gain information about the arbitration panel’s confidential deliberations and influence the award.
• Paul Cohen, Chelmsford’s Town Manager, participated in the unlawful conduct; Cohen knew that Town Counsel was communicating with Flanagan; Cohen was informed of the contents of the communications; and Cohen reviewed the dissent, and understood it would be incorporated into the arbitration award.
• The Town is responsible for the unlawful conduct of Cohen.
• Through its unlawful conduct, the Town gained an unfair advantage by receiving information about the panel’s confidential deliberations before the award was issued.
• The Town acted in bad faith when Town Counsel engaged in ex-parte communications with Flanagan with the intent to influence the panel and modify the arbitration award.
• The Town knowingly engaged in the unlawful conduct in order to influence the arbitration award.
• The Town acted in bad faith when Town Counsel drafted a Dissenting Opinion for Flanagan, with the intent and knowledge that the dissent would be incorporated into the arbitration award.
• As a result of the Town’s unlawful conduct, both the Finance Committee and the Town Meeting voted not to appropriate funding for the arbitration award.
• The Town violated the legal requirement to participate in good faith contract arbitration procedures.
Unlawful conduct during funding process: the Town Manager misled the Town Meeting prior to its funding vote
The DLR found that:
• The Finance Committee was heavily influenced by the Dissenting Opinion, which is indicative of the Town’s bad faith during the arbitration panel’s deliberation period.
• The Town Manager misled the Finance Committee and Town Meeting by leading them to believe that the Award was independently reached by the panel of arbitrators.
• The Town Manager was aware that Town Counsel had communicated with JLMC Panel Member Flanagan in an attempt to influence the award throughout the deliberation period and knew that Town Counsel had drafted the dissenting opinion which was incorporated into the award.
• By presenting the Award to Town Meeting and the Finance Committee and not disclosing to either that Town Counsel had drafted the opinion, the Town misled the Town Meeting and Finance Committee into believing that the Award was reached by an independent arbitration panel after a full and fair hearing and an unadulterated deliberation process.
• By his unlawful conduct at Town Meeting, the Town Manager failed to bargain in good faith in violation of the law (i.e., failed to bargain with honesty, integrity or an open or fair mind).
Conclusion and Remedy
The Department of Labor Relations concluded:
• The Town of Chelmsford violated the law when, through counsel, it (1) engaged in ex-parte communications with JLMC Panelist Flanagan with the intent to gain information about the arbitration panel’s confidential deliberations, influence the opinion of the panel and modify the award, and (2) by drafting the dissenting opinion for Flanagan with the intent and understanding that it would be incorporated into the award.
• The Town violated the law by failing to participate in the JLMC process in good faith.
• The Town violated the law when it misled the Town Meeting and Finance Committee into believing that the award was issued by an independent arbitration panel after a full and fair hearing and unadulterated deliberation process.
• The Town withheld directly relevant and necessary information from the union in violation of the law.
• The Town’s unlawful conduct substantially impaired the collective bargaining and JLMC arbitration process.
• As an unfortunate consequence of the Town’s conduct, the arbitration panel issued an award, portions of which were heavily influenced by the Town’s unlawful ex-parte communications.
• The Town’s unlawful conduct resulted in the Finance Committee’s vote not to recommend funding of the award.
Ordered Remedy
The DLR has ordered the Town to take the following actions:
• Resubmit the request to fund the arbitration award to the Finance Committee and Town Meeting within 30 days of September 6, 2022 (at a regular or special Town Meeting).
• No less than 14-days before the Town Meeting vote, as it is essential that Finance Committee Members and Town Meeting Representatives be informed of the Town’s conduct, a copy of the DLR order, decision and notice must be delivered to all Finance Committee Members and Town Meeting Representatives.
In addition, the Town was issued a lengthy Cease and Desist Order, and also a Notice of its Wrongful Conduct which must be posted alerting employees of the findings.
The full decision can be read by clicking the link below.
NP Wins Sick Time Buy-Back Arbitration for NEPBA's Rochester, NH Local
NP Attorney Peter Perroni recently won an important arbitration decision on behalf of NEPBA Local 23 (Rochester, NH Police Patrol Officers’ Union). NEPBA’s member, a police officer who was vested in the NH retirement system, but not yet eligible due to age, was denied contractual sick-time buyout based on the fact that he had to defer his pension to a later time. The NEPBA appealed to arbitration, and the arbitrator ruled that the NEPBA officer was nonetheless still entitled to receive contractual sick leave buyout. According to the arbitrator, by ordering the employer to pay the sick time buyout at the same time the employee begins to collect pension payments, both the intent and purposes of the CBA’s sick-time buyout clause are met, despite any particular contractual language included in the agreement.
Court says POST Questions 6 & 7 are Unconstitutional - NEPBA granted partial injunction
In response to a consolidated lawsuit filed by Nolan | Perroni on behalf of the NEPBA (and the Worcester Police Patrol Officers and President Dan Gilbert, NEPBA's representative local union), and other unions, the Suffolk Superior Court today enjoined POST from requiring officers to answer two of the most objectionable questions on the recertification questionnaire.
The Court held that Question 6, regarding social media posts that could be perceived as biased, was, as NEPBA argued, unconstitutional and in violation of the First Amendment's protections of Free Speech. In striking down Question 6, the Court stated "grounding these questions in wholly subjective, indiscernible standards does not comport with Constitutional requirements."
Also, the Court rejected Question 7, which requires disclosure of membership in certain organizations, as an unconstitutional invasion of the right to privacy of association and belief protected by the First Amendment. As argued by the NEPBA, the Court noted that "Question Number 7 makes no effort to limit disclosure to the type of membership that might actually indicate some bias ... but, rather, seeks information that by and large is irrelevant..."
The Court Ordered that POST may not ask officers Questions 6 and 7 as part of the recertification process and that officers that have not yet responded to the Questionnaire need not respond to Questions 6 and 7. For Officers that have already responded to the Questionnaire, the court ordered that their answers to Questions 6 and 7 may not be used, directly or indirectly, as a basis for denial of recertification.
The court considered several other arguments advanced by the unions but only ordered that Questions 6 & 7 were unconstitutional and appropriate for the extraordinary relief in the form of an injunction.
This case, and the ongoing effort to protect the constitutional rights of law enforcement officers, is extremely important to the entire NEPBA Executive Committee. We are still analyzing this decision together with the NEPBA. In the meantime, a copy is attached below.
Court hears NEPBA's Motion for Injunction in POST Recertification Questionnaire Litigation
Last Friday, Attorneys Peter Perroni and Gary Nolan appeared before a Suffolk Superior Court judge in Boston where they asked that the court enjoin the POST Commission's use of the current recertification questionnaire. The NEPBA case, originally filed in Worcester, was consolidated with another lawsuit filed in Boston and the parties argued jointly in favor of the injunction. The hearing was well attended and the Court was clearly prepared to examine the important constitutional issues raised by the unions. The oral arguments lasted more than 2-hours. The Court took the matter under advisement and told the parties that this case is a top priority. All indications are that the court will issue a decision sometime in the next several days. We will continue to keep parties posted when further information becomes available.
UPDATE: NP and NEPBA file lawsuit vs. POST Commission - seek injunction relating to Questionnaire process
On behalf of the Worcester Police Patrol Officers Union, the NEPBA and its Massachusetts membership, Attorneys Peter Perroni and Gary Nolan filed a lawsuit against the POST Commission, seeking to enjoin the controversial POST questionnaire process. Our case was filed in the Worcester Superior Court, and a hearing on our motion for preliminary injunction was scheduled for 10am today (5/27). At a little after 9:00am, however, the court cancelled the hearing. The explanation is below.
Around 4:30pm yesterday, the Massachusetts Attorney General's office (representing POST) filed an emergency Motion to Stay our case in Worcester, and simultaneously filed a Motion in Suffolk County (where another case v. POST is pending) requesting that both cases be joined and moved to Suffolk. Today we received notice that the court temporarily postponed this morning's hearing and issued the following short briefing schedule:
- 6/03/22 - NEPBA to file its opposition to POST's motion to stay;
- 6/10/22 - POST to file its opposition to NEPBA's motion for injunction;
- 6/17/22 - New hearing date on plaintiff's motion for injunction.
We will continue to provide updates on this important litigation spearheaded by NEPBA, Inc., NEPBA Local 911 and its president. To read our submissions and legal arguments, click below.
WATCH VIDEO: Peter Perroni argues before the NH Supreme Court for NEPBA Fish & Game
After having secured a favorable contract arbitration, and then a favorable ULP Decision (finding bad faith on the part of the State of NH), the 3-year labor battle continued as the State appealed to its highest court for relief. Earlier this month, Attorney Perroni brought his usual zeal and strong advocacy to the Supreme Court in support of NEPBA's Fish and Game members.
NH Covid Relief Funding - List of Amounts Allocated to NH Cities and Towns
For a list of American Recovery Plan Act (ARPA) funds allocated to New Hampshire communities, click the link below.
Find out how much your City or Town received in Covid Relief Funds - Updated List
The Commonwealth of Massachusetts publishes a detailed, updated list of all Covid relief funds (not just ARPA) received by communities. If you are bargaining or discussing the application of these funds, it is easy to determine how much was allocated and claimed by your community.
The link below takes you to the Mass.gov site, which has an updated list of every city and town, and all the funds. There are two that are of particular importance:
- Coronavirus Relief Fund - Municipal Program (coded on the list as CvRf); and
- Coronavirus Local Fiscal Recovery (coded as CLFRF) - this is the ARPA funding, under which premium pay is an authorized use (American Recovery Plan Act).
So, in order to determine your communities' funding, just click the link, then scroll down to your city or town. Then, as you move to the right, looking under the columns with the above codes as headings, you can easily identify how much was allocated and how much has been claimed for each source of funds.
For example, as of today, the Town of Acton (the list is alphabetical), has received the following:
- $2,092,925 (Code CvRf-MP); and also received
- $7,072,733 (amt. allocated) (Code CLFRF - this is the ARPA funding)
- $3,536,367 (amt. claimed) (Code CLRF)
Body Camera Bargaining Update - Massachusetts Police Locals
It has been widely reported that the Commonwealth's Office of Public Safety has been actively awarding grants for BWC programs to communities. The grant program has very specific requirements in its application process, including several that concern collective bargaining and your union’s role as a necessary part of the process.
Attached below is a copy of the Massachusetts BWC Grant Application instructions - I have highlighted several terms of interest. Please take some time to read and familiarize yourself and your local with the process. This will definitely help your group understand that the union has a required role in the grant process. You will also learn the extensive amount of information that must be provided by cities and towns, much of which will be of great interest to local unions. Finally, it would be good to know what representations are being made about the status of union negotiations and proposed changes to employment practices, etc.
The second attachment is just a standard public records request for the grant information. This is one that was sent directly to the State, although it can also be directed to the employer. Groups dealing with the BWC issue should request the grant information so they can analyze and then be in a position to bargain effectively.
If your community is not one of the many that applied for the grants, then the information required by the state is a good starting point for your union to form its own informaiton request - in other words, to the extent the PD is starting a BWC program, you could ask for the same types of information as part of a GL c. 150E request to your PD.