-: SJC-13347, Boston Firefighters Union Local 718 and others,
the City of Boston and another.
-: Okay, Attorney Foskett.
-: Yeah.
Madam Chief Justice, may it please the court,
John Foskett for the City of Boston and its mayor.
Before you is a review of an injunction
entered by the single justice
which enjoined the city's vaccine mandate
by finding all four of the required elements
for injunctive relief.
We say that findings on all of those
are an abuse of discretion within the standard of review
regarding this sort of order entered by the single justice.
Regarding likelihood of success on the merits,
last week, the Relations Board
actually decided that issue
in a proceeding that had been brought by the unions
got simultaneously with this lawsuit.
And in that decision,
which has been submitted under Rule 16-l,
the Relations Board made the following rulings.
It ruled that the city
had the non-delegable managerial power to establish,
make the decision to establish the vaccine mandate.
It further ruled that the city could engage
in expedited impact bargaining
regarding implementation of the vaccine mandate.
It ruled that the city had not violated two MOAs
that had been entered into with two of these unions
regarding testing in August, September of 2021.
And it steered one issue,
left one issue to be developed by at a hearing.
And that was not whether the city could impact bargain
the vaccine mandate,
but whether the city's establishment of the deadline
in that impact bargaining reflected proper public policy.
-: Can I ask, is it the same...
Sorry, is it the same case or is it a different case?
That confused me a little bit.
'Cause I thought the CERB's decision is very sophisticated
and it seems to be pawing
an impact bargaining analysis correctly.
So is, if we think that's a good decision,
is that actually the same case as this one
or is it a different one?
-: What I'm saying is that that decision
decides the finding here
on likelihood of success on the merits for the unions.
Because what the single justice did
was rule without specifying any details,
ruled that the city had violated
its bargaining obligations under the statute.
-: I had a little trouble understanding what she did.
Did she decide this
on decision bargaining or impact bargaining?
-: That's, if you read the ruling,
it doesn't differentiate.
Justice Kafker: Right.
-: It simply says,
the city violated its bargaining obligations.
So all you can do is look to the arguments
that were made to her by the unions.
And they-
-: And she refers to Judge Locke's decision,
which is an impact bargaining analysis, right?
-: That's correct, which she...
And that's a little complicated too.
What Judge Locke did was,
said he's not deciding
the likelihood of success on the merits.
He then made what he called an observation
and was focused at a minimum on impact bargaining.
I believe she cites that in a footnote.
Justice Kafker: So that-
-: So can I ask you a question on the CERB decision
that you started off with?
Does that moot this case?
I'm trying to understand
what the impact of that case is on our case.
-: The connection.
-: Suggests that it's binding in some way, I don't know.
-: The connection is,
what happened was, simultaneously
after the December 20th announcement of the vaccine mandate,
the unions filed unfair labor practice charges in the DLR
and brought this lawsuit.
That they were simultaneous proceedings
basically making the same allegations,
which are that the city
has violated its bargaining obligations.
The unions in both cases
have specified decision bargaining, impact bargaining.
And two of these unions had testing MOAs
that had been entered into in fall of 2021,
and they claimed those were repudiated.
-: So these were parallel tracks.
So what is the impact of the CERB decision
on the case that is before the SJC now?
-: Well, one way to look at it
is one of the amicus briefs
that has been submitted on the side of the unions
basically says that the injunction should stay in place
until the CERB's final decision.
And we have a final decision.
That goes of the four elements for an injunction,
that goes to likelihood of success on the merits.
Again, she did not specify whether her ruling
was based on impact bargaining, decision bargaining,
repudiation of the MOAs or any specifics.
Simply said bargaining obligations.
-: So, and you didn't quite respond
to Justice Wendlandt's question though.
So your position is not that the CERB decision
makes this issue moot,
it's reasoning just augments
your likelihood of success argument?
-: Correct, in other words,
what they have done
is apply this court's Worcester decision,
which we've relied on,
which talks about the general rules
establishing a non-delegable
employer policy impact bargaining, et cetera.
They've taken that and they've taken this case,
meaning, when I say this case,
I mean this vaccine mandate and its implementation.
And they have said again that a,
this is the decision to issue the vaccine mandate
was a non-delegable authority of the city.
It could engage in expedited impact bargaining
and it did not repudiate the two MOAs that are at issue.
So they are-
-: But it doesn't, it reaches or diff...
The result is still up in the air, right?
The ultimate result
of whether the impact bargaining was complied with-
-: [Attorney Foskett] The one issue-
-: Is still uncertain, right?
-: The one issue Justice Kafker has to do
not with whether the city
could engage in expedited impact bargaining,
but whether the deadline it set,
the original deadline was reasonable.
And what they've done is they said they're not ruling on it.
They are sending that limited issue to hearing
for the hearing officer
to determine whether policy considerations, et cetera,
made that reasonable.
-: I get that, but it's a related question
the one Justice Lowy asked though,
is this whole thing moot though?
Because the city pulled the policy for the other employees,
they didn't require vaccination.
And then circumstances have now changed again.
So even if the CERB rules
that the city should have done more impact bargaining
both pre and post or post,
it doesn't resolve anything, does it?
I mean, I'm trying to understand
what what's really at stake still.
-: Well, it does resolve the decision bargaining issue.
-: It resolves whether this past circumstance with the policy
that it's not clear the city's still planning on enforcing
was consistent with their Labor Law obligations, right?
-: That's correct.
That's the policy that is still in place at the moment.
-: Is there a policy in place?
-: [Attorney Foskett] Yes.
-: Meaning the city
would like to vaccinate the employees or not?
-: The city still has in place this vaccine policy
for the primary series.
This has all been the subject of litigation.
We're a year away from when the city announced the policy,
but the city does still have the policy in place.
-: I just wanna make sure
that's what confuses me a little bit
because again,
the mayor withdrew the application of vaccines
to all employees
after the injunction went into place, right?
-: What's happened is pending decision,
they have engaged in bargaining issues
that can maintain the status quo more or less.
-: Is there a mandatory vaccination policy currently?
-: [Attorney Foskett] Pardon?
-: Is there a mandatory vaccination
that would apply to these employees currently?
-: It's in place and it applies to all employees.
What they've been doing is moving the deadline,
if I can put it that way.
-: What is the current deadline?
-: The current deadline is pending the result here.
Initially, if you read the CERB decision
regarding these unions,
the deadline was pushed back a couple of times,
that's when observation the CERB made.
So the point being that taking into account the input,
the expert input
of the Public Health Commission's executive director,
the city's been balancing that by pushing the deadline.
They have not lifted it as to all employees.
-: Okay, so this is...
When I say this is a moving target,
the pandemic is a moving target,
and this litigation is a moving target.
And so if you could help me out here
because of what we're deciding,
because you have Judge single justice decision,
Judge Locke's decision,
what we're looking at is impact bargaining, exigency.
What's reasonable?
Hold on, my question's coming.
What's reasonable, so that's all moving.
-: The one thing that's not moving
is the establishment of the policy.
In other words, that policy is still in place.
The CERB has pointed out that that,
the wisdom of that policy
is not something that courts
or the agency should get into.
What's moving is the bargaining process.
-: And what's reasonable is different
depending on the moment of the pandemics.
-: And again, the only example I can give
is that even right after this was initiated
engaging in impact bargaining,
the city moved the deadline two times.
So yes, that's moving because here we are the,
as we all know,
this pandemic comes and goes and comes and goes.
The implementation, sitting down and bargaining at the table
is going to be based on the public health commissions.
-: I guess I'm having a hard time
because I don't really understand
what it is the SJC is deciding
and whether or not that's moot.
You keep talking about the policy,
but this amorphous moving deadline
dependent on our decision
as to what the single justice did.
Is that where we are at?
-: What you're at is there's an injunction
that essentially says until final resolution of this matter,
the city can't do any of this.
They can't have the mandatory vaccine policy.
They can't impact bargain in this manner
regardless of where that leads or how it goes,
and they've repudiated the two MOAs.
That's what you have in front of you
because that's what she has said the city can't,
they can't adopt the policy,
they can't do any of this.
And what I'm saying is that the two things
that the CERB has said the city can do
are this policy, they can adopt,
the city can adopt this policy,
and the city can engage
in expedited impact bargaining of this policy.
-: But we clarify legal issues.
So I mean, I take it we can clarify one,
that this is an impact bargaining decision,
not a decision of, right?
This is an impact decision,
not a decisional bargaining issue, right?
I take it, is that still up in the air for us?
-: Again, the only thing up in the air,
I keep going back to the CERB's decision
because as we all know, they're the primary-
-: Well, we get to say what the law is.
We could say that the CERB is wrong.
-: You beat me to it.
Yeah, I was going to say
that they are the primary applier of the law.
You folks ultimately decide questions of law.
But my point being-
-: But if we think their analysis is correct
and the place they are is correct,
which is that this last issue about,
okay, again, it's an impact bargaining decision,
there is an exigency,
but the city may not have complied
with its bargaining obligations,
and that issue is now before the CERB,
actually the administrative judge again.
What do we do?
-: And again, that limited issue
is simply whether the specific deadline
in this case at the time was reasonable.
-: That raises Justice Lowy's issue,
which is are we deciding something
that's of no import anymore
because the world has,
the level of infection has changed.
We don't know what the city's planning on doing.
-: The problem is that the city can't do anything right now.
-: Well, this is really for next time, right?
This-
-: Pardon?
-: This is really for the next time
the city needs to implement a policy.
-: It's for now
because the city can't even have this policy
under the decision.
-: But the city may not want this policy
by the time that every, I mean given where we are.
-: [Attorney Foskett] But they're barred from,
they're actually barred from- -: No, I understand.
-: [Attorney Foskett] Having this-
-: And that's why you need to know
whether it's okay going forward-
-: [Attorney Foskett] Right, right.
-: To implement what you're saying.
-: But you have to know
whether the single justice's decision is wrong.
But if we wrote simply that the single justice
decide this on decision bargaining, not impact bargaining,
that was incorrect for the reason stated by the CERB,
are you happy, is this over for you?
-: If we're, in other words, if the-
-: If the injunction was improperly issued,
but these other issues are still alive and to be decided,
is that fine by you?
-: I get, Justice Kafker, we need to know which issues?
-: Well, again, the injunction is before us.
-: [Attorney Foskett] Right.
-: It appears that it's a decision bargaining
rather than an impact bargaining decision.
But I don't know if that's-
-: I think it's all because again, the impact bargaining,
they've cited a case that says that impact bargaining
has to take place in success or negotiations.
So again, all I can say is the CERB has said
what decision can be made here,
it has said what type of impact bargaining can occur.
The sole reservation is to- -: But again,
-: The original (indistinct)-
-: We could just say this,
that's not co...
We could take the single justice's decision
and explain what we think the law is.
And it could be inconsistent with what the CERB-
-: It could be, it could be.
I'm simply saying that's what we have right now
on this decision.
-: Let me try the question a different way
if you could just to help us out on what we're deciding.
We've gotta hear the other side of this.
-: [Attorney Foskett] Sure.
-: But for the purpose of my question,
assume that the single justice Appeals Court's decision
was decisional bargaining.
And assuming for the sake of this question, that's wrong,
why would we be chiming in right now
on what's reasonable impact bargaining
back when the pandemic was in a different place?
-: Again, that's why I go to what the CERB said.
The specific issue here
is the deadline that was imposed here.
The concept is that the city
can engage in expedited impact bargaining
with all of its employees subject to this,
wherever that leads.
Including as the CERB has suggested,
reasonable deadlines,
and impact bargaining as you know,
can result in all sorts of different-
-: I know, but here-
So what's an exigency, what's reasonable?
All of those things
depend on the moment of the pandemic, right?
-: They're tied to it.
-: Oh okay, so then why is it,
again, I have no idea where we're gonna come out on this,
but if it's decisional bargaining and that's wrong,
why are we going to try and analyze what was reasonable
as it relates to impact bargaining and deadlines?
-: I'm not sure you have to drill down
to that level of detail.
Justice Lowy: That's what what I'm saying.
-: On the impact bargaining.
I'm just stating the general rule that they've come up with.
-: But how do we...
You want us to reverse the single justice, right?
'Cause that's...
You're saying that the single justice
is an impediment for the city to move forward,
but the single justice decision
could be right for the wrong reasons too, right?
We don't know in the end of the day
whether the city
has violated its impact bargaining obligations
even under the CERB, right?
We don't know that, right?
-: We don't know that. Justice Kafker: Right.
-: But again, in terms-
-: But, so okay, we're looking at the time,
Justice Lowy is right.
But we have to decide at that time,
do we have to decide that at that time
back in January or December, whether that was an error?
-: That's why I'm saying that the limited issue
that's being sent back for hearing
is so specific to that specific deadline
that I'm not sure you have to decide that.
What the CERB,
again, I keep saying the CERB is-
-: Can we reverse the single justice
without deciding that issue?
That's what I'm not sure I understand.
-: Again, the city's enjoined from going forward today
in terms of impact bargaining
and setting reasonable deadlines.
So whether that specific two-week window,
and it is a two-week window if you read the decision.
I don't think you have to resolve that.
I think you just resolve the notion
that the city can engage
in the expedited impact bargaining decision,
and it can make the decision without bargaining.
I see my time is up,
so we'll rest on our briefs.
-: Thank you very much.
Okay, Attorney Bryant.
-: Thank you Madam Chief Justice, may I please the court?
I'm Patrick Bryant,
on behalf of the Boston Police Superior Officers Federation.
We're splitting our time today.
I'm available to answer questions on any subject.
My intent is to focus my time on the bargaining obligations
or likelihood of success issue.
My sister counsel
will be focusing on the harms and the balance of harms issue
under the analysis.
I think this case can be decided.
-: You start with the mootness issue.
Is it moot or not?
Attorney Bryant: I believe it is.
-: Well, I mean legally.
-: Yes, because what I think needs to be clear is,
the injunction applies only to 15% of the workforce.
There are 18,000 employees.
The city of Boston has abandoned the policy
as to 87, 85% of the employee workforce.
There is, if the policy exists, it exists on paper.
So there is no purpose that is served
I think by going further on this case
and deciding the decision.
-: The mootness doesn't depend
on percentages of employees affected.
It depends on whether or not there's a live issue left.
So it seems what you just said
suggests that at least for some population of employees,
this is still a live issue.
-: For some population of employees, yes.
Well-
Justice Kafker: Well, for your client.
-: No, it's not a live issue as to anyone
because the policy's not being applied as to anyone.
-: Is that because of the injunction?
Attorney Bryant: No. -: Oh, okay.
-: It's the...
So again, the standard,
this can be decided based on the standards
that the city set forth.
-: Isn't Mr...
I don't know if Mr. Foskett said this,
but isn't the point,
the argument is, the city wasn't gonna apply it to 85%
if it couldn't apply it to the critical 15%
who are public safety employees,
and that's why they backed down.
Or is that not true?
-: That I think is,
it doesn't make logical sense.
Because for one,
there are many public safety employees
including patrol officers
of which they're nearly 2000, including paramedics.
The people who are most acute
in responding to the vulnerable population they identify.
You also have teachers,
they talk about in their brief
the concern about vulnerable children
and how they might be exposed.
Teachers, paraprofessionals, clerical staff,
all of those individuals
who spend six to eight hours a day with individuals
are not required to be vaccinated,
are not required to test.
But now the city is claiming
it is hamstrung by this injunction.
The standard that the city set forth
at page 19 of its reply brief
is the mayor did what any responsible leader
would have and should have done.
And what she did do is not apply this policy.
What she did do was abandon this policy.
She had the right, arguably
in December 20th when this was announced,
if they actually thought
that unvaccinated asymptomatic employees
were a threat to vital public safety services,
they could have removed them from service
pending any bargaining obligations.
-: Does that mean that the CERB case is moot too?
The one you're trying to win there?
-: It's not moot in the sense of it,
is still an issue whether at the time
the city violated its legal bargaining obligations.
-: But so isn't that the same issue that's before us?
At the time the city did this,
did it violate its obligation?
-: Yes, and in the context of an appeal from-
-: And I take it that some people got vaccinated
who didn't wanna get vaccinated.
Attorney Bryant: Correct.
-: So is it really moot?
I mean, it may be,
but it just seems to me that it's not so much moot
is that it's shifted locations in time.
The past issue was being dealt with by the CERB
and the future issue, we can't resolve
'cause it's, as Justice Lowy said,
it's so fact-specific.
-: I think that plays a number of different ways.
One of which is that it is fact-specific.
And at the time that this was announced,
the city was not acting consistently with it's statements
in terms of how it was addressing employees.
Moreover, to the degree it had some non-delegable right
which is a judicially created doctrine
that's to be decided by the courts.
-: Well, but it's..
Again, we tend to like expert agencies to weigh in first.
And the CERB is an expert employment.
They're expert at this
and it seems like they're applying our law
the way we set it out,
which is drawing distinctions
between impact and decisional bargaining.
And then in exigencies,
you only have to do a certain amount
of pre-implementation bargaining.
So they seem to be doing just what we say.
-: And I think what they did in this case
that is pertinent to this case,
again, needing to go no further
than the standard they set forth,
the city set forth,
they have an impact bargaining obligation, they admit that.
The city said the SPAM decision
decided by the CERB should apply.
CERB applied that SPAM decision in the context of this case.
Instead, the city,
the evidence shows the city violated
its impact bargaining obligations.
So for purposes of-
-: I don't think they went that far.
They said that this,
they're sending it back
because the administrative judge
made a determination
that it had complied with it
and they weren't sure whether it had or it hadn't, right?
-: It was an investigator, not an administrative law judge.
So the investigator issues a complaint,
it will then go before an administrative law judge
who will hear evidence
and then decide whether the evidence establish it.
But what is most important is,
the CERB decided that on the evidence that was produced,
the evidence that's also before you,
that the city violated,
the evidence shows the city violated
its impact bargaining obligations.
It was unable to establish an affirmative defense
that the deadline set was reasonable and necessary.
And the CERB specifically cited the fact
that the city has abandoned its policy
with regard to all employees.
Once the single justice implemented the temporary stay
at the end of January,
the city said no patrol officers, no teachers,
no paramedics, no clerical staff, no janitors,
no one else is going to be subject to
and required to be vaccinated as a condition of employment.
That goes to the heart of the city's argument
that this is non-delegable
because it's vital to public safety services.
It cannot be that this is essential and vital
to public safety services,
and yet those same public safety services
can be provided by unvaccinated asymptomatic employees.
The city-
-: I'm reading the last sentence of the order.
"Remand this matter to the investigator
"to issue a complaint to allege."
Have they made a finding that they violated it or no?
-: No, they've sent it back to the investigator
who decides whether a hearing will be heard.
And so in the other case, in the SPAM case,
they said no,
the evidence was really beyond dispute
based upon the facts
as they were determined by the investigator,
it was reasonable and necessary in the context of SPAM.
-: How can we...
Is the single justice's decision inconsistent with this,
and therefore should be reversed?
-: It's not inconsistent with it at all.
I view the single justice as-
-: Doesn't do any of the analysis.
She doesn't interpret any of this.
She just says it's a decision.
I mean, I don't know if it's a decision or impact,
but she doesn't do any of the analysis
including all of the analysis that CERB says is correct.
She just says the city is wrong altogether,
but she doesn't go through the steps,
four or five of which
the CERB says the city did properly.
-: Because she was relying on the Superior Court decision.
I disagree with my brother counsel.
I think the Superior Court decision
is extremely clear about its finding
on the likelihood of success.
It didn't need to reach the issue.
But it says the city unequivocally
has an obligation under Chapter 150E
to engage in collective bargaining
regarding the impact of that mandate.
Because the city failed to do so prior to December 20th,
the plaintiffs have established a likelihood of success
on the merits at least
does that cause-
-: That short circuits the analysis too
because there's,
again, there's the exigency
and there's the pre and the post bargaining.
That just looks at it as all impact bargaining
has to be done before, right?
That's the suggestion-
-: Generally speaking, impact bargaining
has to be done before, but-
-: In an exigency,
some has to be done before,
but then we move to the post
because it can't await resolution
because that's what an exigency is.
-: But that's where the CERB decision
becomes highly relevant,
which is to say when the agency
that you believe has the expertise
and here to which we should defer,
when they look at the issue in a way,
they decided the way that the city did,
the evidence establishes subject to a hearing,
but the evidence shows a likelihood of success
that the city, based upon its disparate conduct here,
violated its bargaining obligations
and was unable to establish
its deadline was reasonable and necessary.
-: What if we can't do the last part of this?
What if we can't determine
whether the city did or did not do
the amount of pre-implementation bargaining that's required?
What if we can't do that from here?
We're not fact finders.
And what should we do in that context
where we agree with basically the approach
that the CERB has set out,
but there's a factual issue that it hasn't resolved either
on that time period.
What should we do?
-: I think it should be, defer to the agency process
for that fact finding to occur
to the degree that you believe
it should be attendant to an injunction.
There would need to be some kind of evidentiary hearing
based upon that.
But I think the evidence is also,
again, on the facts that the city can't dispute
that it would've made this announcement,
people were still required to work
despite being asymptomatic and unvaccinated,
that the city did not offer bargaining dates
for nearly two weeks
until after this announcement came.
The city provided one month
instead of two months to bargain this compared to SPAM,
the city didn't have authority
when it met with the individuals,
didn't respond to the proposals.
So the evidence I think,
is sufficient on the record
to be able to decide at this stage,
look, the evidence shows
the city wasn't meeting its impact bargaining obligations
or otherwise, the deadline was not reasonable and necessary.
-: Thank you. -: Thank you very much.
-: Attorney Barrault.
-: Good morning.
It's Leah Barrault
and I represent the Boston Firefighters Union Local 718.
So the one thing
I did wanna focus on the other two arguments
being made by the city,
but just kind of in follow up to what my brother was saying
and with respect to a question
that was asked by Justice Kafker,
I do think the single justice decision
is consistent with the CERB decision,
sort of along the lines of what-
-: I find that really hard to do
because she doesn't do any of the steps
and her analysis of unharm is also complicated.
That's why I'm glad you up on-
-: [Attorney Barrault] Yes. -: Harms,
because again, she doesn't, she looks,
she just skips all of this.
I mean, and this focus on harms,
she says is very unusual the way she defines the harms.
-: And so on the first point that you're raising,
the one thing I just wanna-
-: And let me just pose the question.
So if we think this is an impact bargaining decision,
not a decisional bargaining issue,
don't the harm analysis,
that affects the harm analysis too, doesn't it?
Because again, the city is gonna be able to,
this is a management prerogative
that they can implement
if they properly do some pre-implementation,
some post-implementation.
So eventually they get to do this,
they just have to talk it through and deal with the impacts.
Isn't her harm analysis
inconsistent with an impact bargaining responsibility
as opposed to a decisional bargaining?
-: No, and maybe that's the point.
-: That I need to better understand.
-: Sure, let me try to sort of clarify it in a different way,
which I think it's important to note
that when the unions brought these charges,
they brought them as a decisional or impact obligation
that was violated.
And I think also what's important in these decisions
about non-delegable rights
is that the case law is clear
that even when you have these non-delegable rights,
there is still an impact bargaining obligation.
All of these obligations are pre-implementation.
There is a small affirmative defense.
-: It's just more complicated.
Some of it's pre-implementation,
but again, if it's an emergency, a true emergency,
and it's a management prerogative,
they don't have to bargain indefinitely.
They can do some of the bargaining beforehand
and some of it afterwards, right?
We got a lot of law on that point.
-: Yeah, which is, and it's a great point,
and I think this is where
the single justice and the CERB are consistent
in that they're saying,
in those limited situations
where the affirmative defense of exigency has been proven,
then you do have the opportunity
to do some bargaining pre and post.
What CERB has said though very clearly,
which is consistent with the single justice
and the superior court,
is that the city has not established
the affirmative defense of exigent circumstances
that hasn't been established yet.
-: Is that what they said?
Or that there is an exigency,
but they didn't necessarily set the time right
for the exigency,
meaning that they compared it to the SPAM case
where the Commonwealth gave out two months to bargain
and the city only gave a month,
and they're saying two months,
the exigency can be dealt with within two months,
but one month, you're compressing the time too much.
-: And that's a very narrow view of that decision
I think the city's pointing out.
-: Yeah, isn't that exactly what they said though?
-: No, I think what they did on the factual record,
I also think when you have to look back
at the SPAM decision with CERB,
this was a different timeframe.
It was very soon after the pandemic had started.
It was a completely unvaccinated workforce
and they did set a two-month bargaining deadline.
This is factually distinct and the CERB rules this
from what went on in Boston.
We had a policy in place in September,
it was a testing policy.
Then in December, this new mandate came into play.
At that point, 87% of the workforce was vaccinated.
It was a very different factual scenario.
And yes, they did also reference the deadlines
and the fact that those were moving targets
because to CERB the fact that they kept extending it,
rose the issue to them of is this really an emergency?
You're setting an arbitrary deadline
of four weeks to comply, yet you keep moving it out.
So therefore the circumstances-
-: Is the arbitrariness of the deadline
something that we look at
in light of what was happening in South Africa
with the number of people being subject to Omicron,
or is it something that we look at as CERB does,
which is, oh look, you moved it on.
You kept pushing it back.
It in fact didn't come to pass
that the Omicron variant was as bad as you had anticipated?
-: I think the way to look at the deadlines
is even the way to look at the circumstances
as they exist now.
When you're challenging,
when you're trying to raise an affirmative defense
that there's an emergency that's going on
that I have to implement my policy now
and do post-implementation bargaining,
again, it's showing that the circumstances are so dire
that you have to deprive the unions
of their statutory rights.
I think what CERB is pointing out is that-
-: But see, I think you're skipping over the fact
that this is a preliminary injunction.
-: [Attorney Barrault] Exactly.
-: So the snapshot is, oh my God, this guy is falling,
you need to issue this injunction right then.
And we're now a year and some odd months later.
-: Except that I think that the problem is that snapshot
even from start, has only been adopted by the city.
Every forum that has heard this argument
in terms of the context of this case coming into play,
these circumstances were very different
than the CERB decision.
At the time when this mandate came into place,
again, there had been a testing policy in place
for three months.
87% of the workforce was vaccinated.
So basically- -: Right, but then at the time
we have the lead health agency advising the city to say,
get your whole workforce vaccinated,
because it just isn't good enough to have the testing
because here it comes, Omicron is coming.
And so in that context,
is that the single justice issues the injunction.
-: I guess I would take a step back,
in the injunction was first heard by the superior court.
-: [Justice Wendlandt] Right.
-: The injunction issued by the Appeals Court in February,
at that point in time when she issued the injunction,
I think one important point is that all she did
was issue an injunction maintaining the status quo,
which means between December and February,
all unvaccinated employees in the city of Boston
were working and testing.
They kept moving the goalposts.
All she did was enjoying the status quo.
When December hit and the policy came into effect,
nobody was taken outta work.
All the unvaccinated employees
that even were beyond the deadline
were working with testing and masking.
All she did was enforce the status quo.
She has continued to enforce the-
-: I mean, this is just the definition of an injunction
that is neither here nor there.
I mean, I guess I'm trying to figure out
what you want us to do here.
-: What we want you to do here is to-
-: I mean, why not vacate that injunction?
It seems silly at this point.
-: [Attorney Barrault] Well, I think that it-
-: It's actually dealing with the merits.
-: The CERB is dealing with the merits,
but the CERB, if you vacate the injunction,
then we're back in the same place we were at before,
which means that the city then goes
and enforces the mandate.
We're gonna have 400 employees that are gonna be fired.
That is a possibility.
As the city said, the policy is in place, it's been a year.
-: Is that a real possibility or is that?
-: 100%.
The policy, as you heard from my brother,
is in place on paper.
It has not been enforced for a year for 18,000 employees.
But if you let this injunction go
a month before we get to go before CERB
and argue this impact issue,
450 people can be (indistinct), yes.
-: Is that right or is it that
because this is at the CERB,
and the CERB has already weighed in and said,
you need to establish,
you need to further develop
the exigency and bargaining requirements,
if the city were to try to impose this
before that's resolved,
wouldn't you be back before a single justice
seeking an injunction?
-: And I would just reframe what you said
'cause I think there's been a misframing
of the CERB decision by the city.
It's not that the CERB said you can impact bargain.
The CERB said you have to impact bargain.
So right now, they violated the law.
They did not impact bargain
unless they prove there's an emergency.
-: But they said they're,
again, I think, they said it's a management prerogative
and there's impact bargaining,
and the exigency issue requires further analysis.
It doesn't rule for you or against you
or for him or against him.
It basically says this exigency issue is tricky here
at that time.
And by the way, just at that time.
-: [Attorney Barrault] Yeah, I agree to that.
-: So can the city really with that out there,
if they immediately imposed a vaccination requirement
now in that context,
the law would be that they'd have to bargain it to impact
and they would need an exigency to do it.
And then the question would be back
to Justice Lowy's original question
in these new facts and circumstances
that'd be required, right?
Would they meet that definition
so they couldn't just go out and do this tomorrow,
they'd have to meet all those steps
or they'd be back enjoined, right?
-: I don't believe that is how the city views it
based on the presentation of the city
that the policy's in effect,
and the mayor has made it clear that the policy's in effect.
-: But that's just the fact, that's just the fact.
The policy is in place and there's been an injunction on it.
That doesn't mean anything
about what's gonna happen going forward
based on what's happening right now,
based on the circumstances on the ground right now.
But I don't think we have to resolve any of that right now.
Thank you so much.
-: Thank you.