-: SJC 13655.
City of Newton vs. Commonwealth Employment Relations Board.
-: Okay. Attorney Zawada.
-: Chief Justice and Associate Justices,
may I please the court.
My name is Jaclyn Zawada.
With me is Jennifer Kelly.
We represent the City of Newton.
I intend to elaborate on two points today.
The first being
that the record in this case specifically
did not establish an adverse action
because there was no objective evidence of
disadvantage, excuse me,
in the terms and conditions of the sergeant's employment
as a result of the transfer.
And the second point being
that per this court's prior decisions,
performing satisfactorily is part of the prima facie case
for retaliation under Chapter 151B.
And therefore, if we look at 150E and the requirement
that there be a generally good work record,
we can see that these requirements are akin to one another.
-: Can you address the work hours,
the Monday through Friday,
kind of nine to five position
versus the role of a supervisory sergeant
with the crazy schedule and the half days?
-: Absolutely,
and I'd first like to start by acknowledging that,
you know, when we look to an adverse action,
the cases make clear that we look,
I think it was the decision by this court
that makes clear that it,
we must look from the perspective
of a reasonable person in the plaintiff's shoes.
So we must consider a police officer as opposed
to somebody like myself who works nine to five.
So this is a reasonable person in the, you know,
police sergeant's shoes must consider
whether there was an adverse action.
So to your question-
Justice Gaziano: You mean, police officers don't like
to work during the daytime too?
-: Yes. -: Meaning with their families?
-: In fact, on this record,
it's an excellent question, on this record.
There was testimony specifically from a captain
who testified he was at the time of lieutenant,
no lieutenants wanted to work days.
Justice Gaziano: One of your witnesses testified to that?
-: No. A union, a witness testified
that he was forced to work days.
And when asked why, he explained no one wanted to work days.
All lieutenants wanted to work nights.
And so we cannot, this is exactly why we cannot assume
that the day versus night
or weekdays versus weekends is necessarily adverse
or advantageous for that matter, and, so.
-: When he gets up, he's not gonna recite
anything from the complainant to the contrary,
-: He is.
And you're also not giving us the framework.
The framework is the deference that is due.
So let's begin there.
So Justice Gaziano point,
you're about to tell me that,
that folks get up there
and say, oh, a lot of people want to work at night.
It's not necessarily day versus night,
but there's direct testimony from Sergeant Babcock who says,
"I've got a family, I don't have to work."
And it's not just nights.
The way the City of Newton Police Department is,
you work the last half, you go home for eight hours,
and then you come back to the second half.
So you only get eight hours between,
versus someone who for years
had a regular more humane schedule
for someone who's got a family, nine to five,
or whatever the shift may be during the day.
He didn't have to work weekends.
And he testifies to that.
So when the Board credits that
and says that was an
objective material adverse action,
and the 8% is,
and he testifies to that,
the 8% isn't necessarily important to me.
I know he said some things about I could maybe get details
and make this up and that wasn't very strong.
But the crux of his testimony,
which they credit it was, I don't wanna work nights.
I've got a family.
I don't have to work weekends,
I don't have to work holidays,
I have to work during the day.
How is that, how can we go around
that fact that they found?
-: I think how we make sense of it is that,
we must consider what the legal requirement is.
And the legal requirement for an adverse action
is that you need to have evidence,
substantial evidence needed to show a disadvantage
in the terms and conditions of employment.
And it needs to be objective.
And I think that the objectivity may be
is what we're getting at in talking about, in this case,
the sergeant, -: that's what they found
-: in this case. -: They found that,
-: Well, so in this case,
the sergeant testified that my family life was affected
and the money didn't matter so much.
But that doesn't comport with the case law.
The case law makes clear
no matter which of these cases you're looking at,
an adverse action- -: But, where is the objective
evidence that it was not an adverse action?
The fact that this lieutenant testifying?
-: The most, the strongest evidence
that this was actually advantageous
was the significant pay increase
that this sergeant received upon transfer.
There's no dispute that at the time of transfer,
he received a pay differential of 8%.
It was about $6,000, he admitted to this, you know,
during testimony there's no dispute he received it.
And we know in-
-: So if you get paid enough
to make the disadvantage tolerable,
then the objective adverse action test is not met?
-: Well. So- -: So,
you throw enough money at a problem,
it makes something that is otherwise disliked
by the average reasonable person
into something that's no longer an adverse action.
-: Well, and that's where respectfully,
I would disagree that this was disadvantageous
because on this record, yes,
we have kind of subjective testimony.
The sergeant's saying,
well, my family life was affected by this.
-: Right, -: We have other
-: contrary to the subjective -: if other witnesses-
testimony of the lieutenant.
And then you're saying that the tiebreaker,
I thought that's what your argument was.
The tie breaker is that we threw money at the problem
to make something that was otherwise unappealable
appealable.
-: Well, I would maybe disagree with the characterization
that it was, you know, that we have on this record evidence
that the reason for the money was that it was unappealing
to someone to work nights.
We don't have that in the record,
the record (faintly speaks). -: but you're relying
on the money as an objective indicator
that it was not an adverse action.
And I actually think that the fact
that the collective bargaining agreement came to
an increase of 8%
suggests that the conditions of employment
were objectively adverse in the nighttime
or this crazy schedule as Justice Georges was talking about.
-: Well, and I would say- -: Because we needed
to compensate employees that were gonna be subjected
to this environment
by an 8% bump.
-: We just don't have that on the record respectfully.
We just don't know the reason for
the negotiation, right.
The reason-
-: No, I'm just looking at it objectively. Right?
I mean, you don't pay somebody more
for a position
and it's a bargain for increase
unless you need to actually
compensate people for that position.
-: Well, I think in, again,
and this is not real on the record,
but generally speaking in the context
of collective bargaining, right?
There's a give and take,
there's many issues on the table, right?
So looking at the sort of singular night differential...
-: So what is the tiebreaker then
between -: It is.
-: the two subjective testimony.
Why can't, why is it the City of Newton's position
that it was an error to credit
the testimony of the complainant here?
-: And perhaps some splitting hairs.
I would submit, the city submits
that it is the pay increase,
that is significant, substantial evidence
of an objective advantage to this individual.
And then in the counterbalance, what do we have?
We really have his testimony saying, well,
it affected my family life.
-: Well, I think
to dovetailing what Justice Wendlandt asked you
under the CBA, doesn't the pay increase indicate
that it's an incentive
to do a worse schedule, to work nights. (chuckles)
-: Does the CBA state that?
-: Well, no, CBA,
you're given to this pay bump
to work not nine to five,
which to me was we're trying to incentivize people
to work nights in the second half, right?
-: Well, I mean certainly,
we just don't have that on this record
as to the nature of the reasons
why this number was arrived at or why,
but we do know that yes, the pay increase was given.
And so that when we look at sort of the totality
of the evidence on this record,
-: I guess that the bottom line
is whether or not the CBA is a be all end all,
like the Appeals Court decision
would have you believe. -: Right.
-: Well, and I guess I respectfully disagree
with the characterization of the Appeals Court's decision
as sort of framed by the union and the Board.
They're very confined to the facts on this case.
They note that, you know,
the Appeals Court's decision finds that,
it looks at the context, right,
which is that there is a CBA between the city
and the union here,
there was no deviation from the terms and conditions,
you know, the bargain for differential was paid
and there was no other evidence on the record before it
to show an objective disadvantage to the sergeant.
-: That's where we, I'm gonna go back again to this
because I independently, there's an issue with saying,
just because the CBA allows you to do that,
it seems to, would obviate anybody's retaliatory claims
if all we get to look at and say, can the employer do this?
But let me leave that aside for a minute.
You keep saying that there's no objective evidence. Okay.
Are you saying that the Board could not objectively say
working Monday through Friday during the day,
is objectively and materially better
than having to work nights from the last half,
go home for eight hours
and then work the second half
and that they can objectively say,
not having to work weekends
and not having to work holidays
isn't objectively and materially better
than now being somebody that can be whistled in
at night on the weekends and during the course,
even without Sergeant Babcock's testimony.
Are you saying that the Board couldn't make,
and they did make that,
because they cited those reasons for why they said
that there was a materially objective disadvantage,
irrespective of the money.
-: Sure, so there's actually two good points
I'd like to raise.
The first is that I respectfully,
the Appeals Court's decision is confined to these facts.
They never, and I think they even state,
I'm not saying- -: I'm not talking
about their decision,
I'm talking about the Board's decision.
-: Certainly.
So I think it might help to compare to some other facts,
in other cases,
I think the Friedman case is cited
at certain points by the Appeals Court by my brother
in the briefs Friedman Ginger.
Those are actually cases that are cited to,
for this premise of, you know, the daytime work,
the weekday work is preferable.
However, we need to look in those cases
for the evidence that they considered,
which was tied to terms and conditions
of employment in Friedman,
the complaint was that yes, he had to work a night shift,
but why did that affect him?
He alleged that the training he received,
on that shift, was by inexperienced technicians
and people working the days got better training,
better education, I think is what the court frame did as.
Similarly in the Ginger case,
those are the police officers
who were forced to go from a straight night shift
to a rotating shift.
They mentioned, you know, change in their schedule,
but really the court again tied that
to the terms and conditions of employment.
They tied that too, well,
once they had these rotating shifts overnight,
they couldn't sustain part-time work
outside of their police job.
And they tied it to other elements
that really affected their bottom line, their income,
their salary, their ability to have jobs.
Justice Gaziano: What about family life?
-: That was not considered.
And again, I think that was not a factor in
the conclusion that it was an adverse action.
-: But, our. -: It always leads back
to the workplace and the work environment.
-: But our review isn't to compare and contrast
what they did or found in another case.
This is a substantial evidence case.
And so we're looking to,
whether or not there's substantial evidence
to support the Board's decision.
And I don't wanna lose you before your time is gone,
but so I understand that and you were in the courtroom
and I think you know what our feeling is,
about citing footnotes in cases,
as the holding of them,
like you do in for this notion that you've gotta show
a good employment history
in order to make a prima facie case
relying on the last sentence of a footnote
in a case from, so you know how we feel about that.
But you mentioned about the collective bargaining agreement
about why we don't know the basis for the 8% bump.
There's another reason,
there's another thing we don't know the basis for.
And that's if you follow the progression of the test
and assume they make the prima facie case,
assume the city offers its reasons
for why this was a legitimate employment decision.
Let's go to the other part, right?
So you have this part about where the city,
at least to the Board,
at least to the, as you went up the flagpole,
did not make a showing that these reasons were legitimate.
And the way that the city was going
was by cobbling all of these different things
and said, oh, it could have been the fight
with the lieutenant about the detail.
It could have been with Crowley,
it could have been this, it could have been that.
Wouldn't it be just easier to have an affidavit
or testimony from Chief MacDonald
about this is the reason why I did this.
And there was no evidence
to substantiate that this was legitimate.
I mean, that would've been the easiest thing
in the world to do and that wasn't there.
And so the Board said,
we don't believe the reasons you've advanced.
Why is that something that isn't entitled to deference?
-: Well, and I would first alert the court to
this understanding that
the city could produce evidence
consistent with Forbes, right?
The burden on the city was to produce evidence,
not to persuade that ultimately rested
with the charging party, the union,
but it could rely on circumstantial or direct evidence.
And this desire that the Board expressed, you know,
that they wished they'd heard
from the police chief, did not,
it wasn't a requirement that we produced him.
And so what we do have on this record though,
is significant circumstantial evidence, right?
We have the credibility of the eye officer
who did testify,
which the Hearing Officer relied on heavily,
who also then testified further that he investigated,
he spoke with the police chief.
He actually read the letter
that ultimately came from the police chief
and read back and forth- -: But with all these things
we're asking them to read tea leaves
because they're saying,
it could be this and it could be that.
And you put it all together and it equals that.
There's no direct testimony
because the only time that,
the only direct interaction we have is when Sergeant Babcock
asked the chief, why are you doing this?
And he says essentially, because I can.
-: And that is on the record,
that conversation occurred.
But we have other circumstantial evidence,
from which we could infer.
And actually the Hearing Officer did infer
that it was reasonable
and therefore the city's reasons were the correct ones,
were the real ones, right?
The reason for the transfer
was that these two people could not work together anymore.
They'd had this altercation
and it was highly credible in the Hearing Officer's mind.
After hearing all of the witnesses,
both Sergeant Babcock and the eye officer,
she credited the city's reason
and it was on ultimately on the union
to persuade her, right?
And so ultimately they did not do that
because actually the Hearing Officer found, well,
the union's evidence was really temporal proximity.
You know, she found
that basically there was protective activity
and then soon after this transfer occurred,
but in the counterbalance,
she had lots of circumstantial evidence to rely on.
And that rang true to her.
Whether it was, you know, the eye officer
and the letter combined with frankly admissions
from the sergeant that he knew things weren't going well
with this individual.
He was on a speaking basis with this person.
In so many words, they couldn't work together anymore.
So I'm seeing that I'm out of time.
I would just like to very quickly alert the court
to two citations, if I may,
relating to that generally good work record.
The first is Psy-Ed Corp v. Klein at page 707,
-: What year is that? -: Psy-Ed Corp v. Klein,
that is, -: You've got some
really old cases here to come up
with this standard 380 case of cases.
Is this a, we've actually used this language
in the modern era.
-: So Psy-Ed Corp v. Klein was a 2011 case.
It was a 151B retaliation claim.
And it's actually cited to by the Appeals Court,
which is why I bring it up.
-: It's an SJC case? -: Correct.
-: And it's a 2011 case? -: Yes.
-: What's the full site? -: It's 459 Mass.
-: It's in the brief -: 697.
It is in the brief, -: Yes.
-: And at page 707,
that court lays out the prima facie case
for retaliation under 151B,
which includes a causal connection
between protected activity and adverse action.
But I bring this up 'cause at 707
actually the court explains that causal connection
can be inferred where among other things
the employee is performing satisfactorily,
which I would argue is akin
to the generally good work record here.
Which brings me to my second citation.
If the court would just humor me
and look at footnote for in the Forbes case.
That is where this court, again, it is a 1982 case,
I believe, and it is a footnote
-: 81. -: But the court,
does mention that again,
they're analogizing to the Title VII
and the (indistinct) process.
And they're talking about
how under Title VII a plaintiff must be qualified.
That's part of his prima fascia case.
And by analogy,
that's why they have required the generally good
work record under 150E, so and-
Justice Georges: And we said might.
-: It said, might, -: Might,
-: and then respectfully in Southern Worcester County,
they held that the teachers affirmatively proved
their prima fascia case
because they approved it, general for worker of record.
So thank you for your time.
-: Thank you.
Okay, Attorney Sunkenberg.
-: Good morning Chief Justice, Associate Justices.
My name is James Sunkenberg.
I'm appearing on behalf
of the Commonwealth Employment Relations Board this morning.
I'd like to bring us back directly into 150E
and I'd like to start by noting that sections,
not just Section 6, Sections 1, 2, and 6
of Chapter 150E expressly identify hours of work
as a term and/or condition of employment.
It's been specifically carved out by the legislature.
The only other term and/or condition
that is expressly identified in all three sections
are wages.
So wages and hours.
We know under 158 are terms and conditions
of employment changing them in the way
that's been changed here, significantly,
from the day shift Monday through Friday,
as we're talking about to the last half,
first half overnight.
That's objectively and materially a change to terms
and conditions of employment,
regardless of what the collective bargaining agreement says.
I think then what we have to consider
is whether it's objectively disadvantageous
to a reasonable employee in that position.
That's a sergeant who's got 30 plus years of service
to his community, who is on the back end of his career,
who has positioned himself for six years prior
to the adverse action
to work himself days, Monday through Friday.
And as we've noted, that's a schedule that's conducive
to a stable family life.
And the change that he's been put is just not,
so the Board's position is that,
it's subjectively disadvantageous.
-: Let me ask you, maybe this is an add-on to that.
There's a, the argument about the special assignment
that he's the traffic guy, that's a subjective.
-: I. -: I don't
-: the specialty assignment.
Yeah, I mean I don't think the Board hung their hat on that.
I think they're more focused
on the change, -: I hope not.
-: but it is a part of the change.
Yeah. He's going from a specialty assignment.
-: Right, but that seems to me a smack of some subjective
view of their job as opposed to wage and hour.
-: Yeah, well, I'm trying to focus on the hours.
-: I know, for good reason. (Attorney Sunkenberg chuckles)
-: Yeah, I don't think,
and I don't think for good reason as well,
I don't think the Board was particularly hung up
on the specialty assignment aspect of it.
It is there and he's going to patrol,
but we're really focused on the hours themselves
constituting the change to his terms and conditions.
As far as the collective bargaining agreement,
which obviously we have to deal with,
I respectfully suggest that the rule
that's been announced in the Appeals Court's decision
that we have to measure whether it's a change
against the contract is untenable.
It's unworkable.
First of all, the cases that are cited,
Yee, Note 8, and Somerville.
Somerville's a bargaining case about retiree benefits
and the pages that are cited even include
a discussion of the interplay
between Chapter 32B, Section 9E
and the conflicts section of 150E Section 7D.
It's just doesn't have anything to do with adverse actions.
It doesn't contemplate it at all.
And then I think it's worth considering,
I would ask the court to just consider
how we would apply this rule going forward.
How does it apply to a just cause scenario?
Just cause provisions are protections,
there are benefits
that are negotiated into contracts.
Does the fact that the parties have negotiated a benefit?
It it directly limits an employer's ability
to take adverse action?
Does that make a just cause discharge not adverse?
I think the rule starts to,
it starts to run into some trouble
and we try to push on it a little bit.
We know from the Board of Selectmen of Natick case,
which is cited in the materials
that a just cause discharge does not preclude an inquiry
into whether there's been a statutory retaliation.
And that's kind of what we're dealing with here.
The execution of this differential is not a waiver
of a statutory right.
And that would seem to be,
regardless of whether it's intended or not,
I think that's the implication
of what the Appeals Court has done here.
And so we respectfully disagree with that.
Justice Kafker: Could you move to the next two?
-: Sure. -: So say you win,
say you win on the adverse employment action.
So we've got these two other arguments.
The second one is satisfactory performance.
And there is language in Mole,
which is relied on in the Psy-Ed thing about, you know,
there's some psy, there's some,
although they're usually talking about, you know,
you've got a terribly performing employee
and they get fired afterwards.
We're not gonna, you know,
read this requirement into the,
we're not going to do this,
but what do we do with this satisfactory language?
-: Well I think it's,
as we've noted in the discussion already,
it's never been required.
There's the footnote in Forbes
that I guess this all springs from, it's been,
that note has been reiterated multiple times,
but it's never been elaborated on.
And I would note that we do have
a decision from this court,
town of Brookfield, 2005 decision, I think,
in which one of the discriminatees,
there were three in that case.
The one who there was direct evidence of his,
his name was Graupner, Sergeant Graupner
his work record was considered as part of the stage two
of a direct evidence analysis in that case by the court.
It's commented on in the decision.
It's just, it's never been required,
if it were, I mean it just hasn't been,
as far as that aspect of the case goes.
As far as the other aspect,
the second part of your question,
the Board correctly applied the standard
as is articulated in Forbes,
in all of the progeny from it,
actual motive, it's a two part test per stage two,
actual motive, there's gotta be evidence of something.
I respectfully disagree
that with the Appeals Court's characterization
that the Board was requiring direct evidence.
It never said it required it,
it did reference testimony or documents,
but it's entirely conceivable that a situation could arrive.
Justice Kafker: We're trying to understand where we are.
If we agree with you on point one.
that there's been an adverse employment action,
-: Then the prima facie case- -: bear with me for a second
-: Oh, I'm sorry. -: and we even agree with you
that the satisfactory language is sort of vague
and not really,
but then we get to the,
was there a legitimate reason posed
and the Appeals Court may have gotten that correct in the,
that it's just a burden of production,
but the Board doesn't do that, right?
Does the Board do what the,
Appeals Court says the Board got that wrong
and they treated it as a burden
of persuasion requirement.
So then this is a remand.
I'm just trying to get a sense of,
if we agree with you on point one,
and we agree with you on point two,
that the satisfactory language is being taken outta context,
but we agree that the Appeals Court was right,
that it's dealt with the second stage
and it's a burden of production point alone.
Is this what happens? What, what?
-: Well, if it's a case where the Board got that wrong
and I don't agree that we did get it wrong.
Yeah, then I mean Fowler, the Fowler case was a remand
where they said you don't have to require-
-: So are you saying the Board didn't,
did the burden of persuasion production thing correctly?
Because I thought it is a two part.
-: [Attorney Sunkenberg] So I have the language right here.
-: Okay. -: Let's see,
"The Forbes analysis state a lawful reason for its decision
and produce supporting facts indicating
that this reason was actually a motive in the decision."
-: But that's- -: Actual motive
is what we're,
is what the Board is looking for.
That's what they're saying, there's no evidence
it's lawful.
Jusice Kafker: Usually stage three analysis
that requires a jury.
-: [Attorney Sunkenberg] Stage three is there's no jury,
but four. -: I understand,
but I understand that.
But isn't this normally left to the, well, maybe not. Okay.
I'm thinking of the employment discrimination context.
-: Yeah, it's important to keep in mind
we are under 150E
and although there's some overlap,
you know, they are separate.
Stage two is the employer's burden of production.
Th Board has not attempted to shift that.
And we do have discussion of this
in the School of Boston case that's cited.
They are not saying you have to persuade us,
they're saying there must be some evidence
and they're not requiring direct evidence.
They're saying there must be some evidence.
And the evidence that the hearing,
what they're saying is that the Hearing Officer
incorrectly applied the facts
that she found to the standard.
They're saying your credibility determination
about Lieutenant McMains, that he was truthful,
that he didn't harbor anti-union animus
just does not bear on MacDonald's decision making.
He wasn't the decision maker in this process.
And it's important, I think to keep in mind
that in the labor context,
discipline is not doled out in a piecemeal faction.
There is an incident that happened, the Crowley incident,
there's an investigation,
there's a personnel action that's taken.
There was a reprimand.
The transfer was not part of that personnel action.
It came later, a month later
and as the Appeals Court appears to have overlooked,
there was an intervening instance of a display
of anti-union animus on April 9th in the response to
the March 30 grievance, which the chisel grievance,
All of it taken together.
I mean it, they're saying there's no evidence
of actual motive, whether direct or circumstantial.
It is possible to conceive
of a situation in which say testimony
about a pattern of practice in the bat.
We always transfer people
when there's an altercation with a subordinate.
That would be circumstantial evidence
that would likely meet the burden of production.
It's not met here.
-: Okay. -: Thank you.
Attorney Shapiro.
-: So made it. (justices chuckling)
-: May I please the court. (chuckles)
My name is Alan Shapiro,
I represent the intervener,
the Massachusetts Coalition of Police.
It's Newton Police Superior Officers Local.
I'd like to just speak to one of the issues that
to me is kind of a red herring.
The idea that an employee
has to have a clean work record
in order to be discriminated against.
Now I know the dicta in Forbes,
it's been brought out in some of the cases it's raised,
but I don't think there's any case
where a court in agency said that,
this person is a victim of discrimination,
but because they don't have a good work record,
we can't find for that person.
So I don't understand why
in Sergeant Babcock, for instance, okay,
he had a reprimand in,
as far as the record shows
in 30 years of being a police officer,
he gets a reprimand.
That's not something that can be grieved
and arbitrated under the collective bargaining agreement,
which only allows just cause protection
for suspensions, terminations, demotions,
which mirrors the civil service law
where you can only appeal a suspension, termination,
or demotion.
So
if there's just nothing
that says that you can't have
any impurities on your record
in order to be a victim of discrimination,
regardless of the context,
whether it's union discrimination, race discrimination,
whatever it may be.
Justice Georges: Attorney Shapiro,
can I ask you another question about the prima facie case?
-: Sure
-: Does the recent Supreme Court case,
I understand it's not this particular context,
is that, does that change our aperture
about finding in the prima facie case,
the adverse action here?
-: Well, -: Because they,
-: Muldrow -: the Muldrow says
-: [Attorney Shapiro] Yeah, no, I understand.
-: Yeah, the Muldrow seems
to suggest that it's not much,
but the phrase that jumped out in Muldrow to me
was that the, some disadvantage,
some disadvantageous action.
So does that make it?
-: [Attorney Shapiro] Well, I mean that of course
is decided under Title VII.
-: It is, but we've talked about
how these have kind of infused some of our-
-: Certainly, we would be glad to do that,
you know, as far as 150E,
but candidly, I don't know that we can say
that as a matter of law that this court is obligated to
adopt a looser standard.
-: I appreciate that.
I just, that was something
that people had bandied around it.
Thank you.
-: Yeah, certainly.
One other point, I wanted to bring out
is the Appeals Court seems to conflate two provisions
of Chapter 150E,
section 10a3, which is the provision
that we're dealing with as far as, I mean,
in discrimination adverse action says that,
"It is a prohibited practice to discriminate in regard
to hiring tenure or any term or condition of employment."
So that's a pretty broad statement
as terms of what are the areas
where somebody can be a victim
of discrimination.
The court then,
the Appeals Court, they looked at,
Chapter 150E Section 6,
which lays out essentially the
what is a mandatory subject to bargaining?
Wages, hours, terms, and conditions of employment.
That has to do with what can we negotiate,
what can we put into a collective bargaining agreement.
10a3, however, is much broader than that,
just discriminate in regard to hiring.
Hiring is not a mandatory subject of bargaining,
tenure, if you're dealing with teacher tenure,
that's not a mandatory subject of bargaining,
that's covered by Chapter 71, Section 42.
So I think there's a conflation here
of these two provisions of Chapter 158.
-: Okay, before you leave,
can you address the last paragraph of the Appeals Court,
the stage two?
It seems it's a dicta.
Court says it's dicta,
but I'm just trying to understand
how it plays out in this case, if that's correct.
-: Let me look at it. -: This is the stage two
that they've conflated what should be in stage two
versus stage three.
I just, and that CERB says that they didn't
meet their stage two burden
and the Appeals Court says that's wrong.
I'm just trying, again, I'm trying to understand
where we are at the end of this case.
-: So, I think the employer,
once the employee union makes out a prima facie case,
now the burden shifts to the employer
to come with some reasons
that it could have been the basis
for the alleged discriminatory act.
-: Right, and the Appeals Court says that this is,
that when the altercation
with the other patrol officer
-: Right. -: meets the stage two burden.
Okay. And that seems correct.
-: [Attorney Shapiro] I don't think that's correct,
-: Really? -: Because,
I think the case law says that-
-: I'm not saying it meets the final burden,
but I thought it meant the stage two burden.
But is that wrong?
-: I think that's wrong
because I think the stage two burden is not only to show
that the employer had a legitimate reason,
but also that that reason played a role
in taking the action that's alleged to be discriminatory.
I mean, that's in Forbes, that's, it isn't enough
just to say, well, Sergeant Babcock,
he argued with the lieutenant about details.
So that could have been a reason.
But you have to show that that was in fact
part of the consideration.
-: Yeah, it may be just,
I'm caught up in the pretext plus
and all the employment discrimination stuff.
It, so that, is that what's the Appeals Court has sort of
gone to that world here improperly
or is that what they're doing?
I'm just trying to figure out what we do with this.
-: I think the Appeals Court is trying
to create
a basis in which it could show
that the employer met its burden
in step two by drawing from the record,
things that could have been legitimate.
But there has to be evidence
that those things were considered and there's no evidence.
I mean, Lieutenant McMains who testified-
-: Did the timing, we often focus on timing as evidence.
And this happens right after the altercation
with that patrol officer, right?
-: It also happens at the same time
that the union had a case pending
regarding a captain who was forced
into a fitness for duty examination
where we ended up in the Appeals Court,
which affirmed the decision of the CERB
that there was an unfair labor practice committed.
So, I mean, there's a lot of antipathy in the record
between the Chief and Sergeant Babcock.
-: So in your view,
what is the result here exactly?
If we agree with you that it's an adverse employment action,
and we agree with you
that this satisfactory performance
is not what we meant to say in these earlier cases,
that it's a precondition that has to be proved,
what happens here?
-: Well, I think that the employer fails
to meet its burden in stage two, and therefore I think-
-: Then you're buying it.
I thought you said that stage,
so stage two means in your view,
has to be the way CERB said it's the actual reason for.
-: It doesn't have be the actual reason,
but it has to be shown
that a legitimate reason was considered
as part of the decision
and not just taken out of the air.