PAX Centurion - March / April 2014

www.bppa.org PAX CENTURION • March/April 2014 • Page 5 Vice President’s Message: Ronald McGillivray, BPPA Vice President Fallen Firefighters O n behalf of the Boston Police Patrolmen’s Association we would like to extend our deepest sympathies to the families of Firefighter Michael Kennedy and Lt. EdwardWalsh including their extended kinship of firefighters across the city, state and country. By all accounts Mike and Ed made fast friends and left lasting impressions with every person they met. On March 26, 2014 the City of Boston lost 2 men who represented the best of America. Their valor, perseverance and selfless concern for others well-being will never be forgotten. Appealing Arbitrator’s Awards F or public sector grievance arbitration awards, the general rule is that they are final and cannot be appealed. In both public and private sector, arbitration is the favored method for resolving issues of contract interpretation including discipline cases. Arbitrators are afforded broad discretion in their decision making. Legal standards governing a court’s review of an arbitrator’s judgment are quite limited even when the arbitrator has made a factual or legal error. Members question why the Department/City can appeal a favor- able Union decision yet the Union is prohibited from doing the same. The City is currently appealing DavidWilliam’s favorable decision in Superior Court while on the other hand an officer was terminated for “truthfulness” and does not have an appeal. The specific grounds for appealing awards are set out in Mass. General Laws Chapter 150C, Section 11. Aside from fraud, corruption or misconduct by an arbitrator, that section contains the following basis for an appeal: “the arbitrators exceeded their powers or rendered an award requiring a person to com- mit an act or engage in conduct prohibited by state or federal law.” This is how the city tries to overturn decisions it does not like. In the Disciullo arbitration case, which we won, the arbitrator found that the officer had done some questionable things…falsely accusing, charging and testifying against civilians for things they had not done. On the other hand, when we showed the arbitrator that, at the time a number of officers had done worse things but received discipline less severe than discharge, the arbitrator reinstated the officer without back pay, on the theory that it would be disparate treatment to uphold the discharge. In overturning the award, the Supreme Judicial Court accepted the facts as found by the arbitrator. But they said that since the officer, based on the arbitrator’s findings had lied under oath, that was similar to perjury. And if someone commits the felony of perjury, s/he cannot be a police officer. Therefore reinstating the officer to the police force would be like reinstating a convicted felon and “against public policy,” thus requiring the City to “commit an act or engage in conduct prohibited by state or federal law.” That was the statutory basis for vacating the award. So the city can appeal an arbitration award but the appeal must be based on the facts as found by the arbitrator and it must show that based on those facts the City is being ordered to do something either illegal or against public policy. The City cannot appeal a decision because it does not like the result. Why can’t the Union appeal the award? Similarly, the Union can’t appeal a decision because we disagree with the result. When we lose a case, nobody is being ordered to do anything, so we do not have grounds to assert that the arbitrator either “exceeded his/her powers” or “rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law.” Grievances I nApril of 2013 an arbitrator’s award was issued concerning com- pensation for night officers’ attending court while out injured. The Union argued that in 2010 there were 105 night officers assigned to MIS (Medical Incapacitated Section) who were on IOD. Of that, 26 received court time pay on 141 different occasions and of the 141 occasions 78 were ones involving a scheduled day on and 63 were ones involving a scheduled day off. At this time it was a strong case based on the more recent practice where the contract is silent. Further argument pointed out that the assignment to MIS was administrative in nature and officers’were being denied a substantial contractual benefit that had previously been granted. The City argued and prevailed that since 1980 MIS has been involved in the process and that the recent history had been more the exception than the rule. Officers’ in the 80’s after changing from the 5 & 2 workweek to the 4 & 2 workweek started to receive pay when at- tending court on their days off while assigned to MIS. MIS administered officers’ administrative necessities such as the signing of court overtime slips since that was where they were presently assigned. As stated by the arbitrator, the question was whether or not these instances constitute an exception to the prevailing practice or represent, in fact, a new practice. The arbitrator agreed with the City that the Department had a long standing practice not to pay court time under these circumstances and that these recent examples were “inadvertent exceptions” to the practice rather than a reconstituted new practice. The arbitrator also mentions the term “mutuality” which is a required element of a binding past practice. It is simply described as a mutual understanding between the parties which in this case there was not. Another case pending involves officers attending court on their scheduled days off during their vacation period who are not being com- pensated. The Union argues that a summer vacation period has sched- uled days off that fall within the “vacation period”. The disruption of the vacation period is the issue. The practice has been that officers do not get compensated with an additional “court vacation day” while attend- ing court on their scheduled day off. Unlike the MIS case where there were many instances of a practice of being paid while out injured…the Union does not have any claims of an officer getting additional “court vacation days” for attendance on his/her days off. The Department argues that scheduled days off can’t be considered for the purpose of granting additional court vacation days off because this would provide an additional benefit. The collective bargaining agreement does not provide an interpretation of the words “summer va- cation period”. With the contract silent and no past account of a practice this is an uphill battle for this to go forward and have a chance. We’ll need live testimony showing instances of officers receiving additional “court vacation days” while attending court on their days off to prevail. Stay safe. Late Notice: OnApril 1st while returning from Lt Walsh’s wake a caravan of Plymouth Police vehicles were making their way up Rt. 3 to Mass General Hospital with Plymouth Police Officer Gregory Malo- ney who was just involved in a tragic motorcycle accident. Greg passed a short time later. Our hearts and prayers go out to the Maloney family and our brother and sister officers in Plymouth. More to follow…