WEBVTT
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SJC 13655.
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City of Newton vs. Commonwealth Employment Relations Board.
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Okay. Attorney Zawada.
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Chief Justice and Associate Justices,
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may I please the court.
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My name is Jaclyn Zawada.
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With me is Jennifer Kelly.
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We represent the City of Newton.
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I intend to elaborate on two points today.
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The first being
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that the record in this case specifically
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did not establish an adverse action
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because there was no objective evidence of
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disadvantage, excuse me,
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in the terms and conditions of the sergeant's employment
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as a result of the transfer.
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And the second point being
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that per this court's prior decisions,
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performing satisfactorily is part of the prima facie case
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for retaliation under Chapter 151B.
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And therefore, if we look at 150E and the requirement
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that there be a generally good work record,
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we can see that these requirements are akin to one another.
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Can you address the work hours,
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the Monday through Friday,
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kind of nine to five position
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versus the role of a supervisory sergeant
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with the crazy schedule and the half days?
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Absolutely,
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and I'd first like to start by acknowledging that,
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you know, when we look to an adverse action,
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the cases make clear that we look,
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I think it was the decision by this court
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that makes clear that it,
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we must look from the perspective
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of a reasonable person in the plaintiff's shoes.
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So we must consider a police officer as opposed
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to somebody like myself who works nine to five.
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So this is a reasonable person in the, you know,
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police sergeant's shoes must consider
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whether there was an adverse action.
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So to your question-
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You mean, police officers don't like
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to work during the daytime too?
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Yes.
Meaning with their families?
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In fact, on this record,
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it's an excellent question, on this record.
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There was testimony specifically from a captain
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who testified he was at the time of lieutenant,
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no lieutenants wanted to work days.
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One of your witnesses testified to that?
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No. A union, a witness testified
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that he was forced to work days.
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And when asked why, he explained no one wanted to work days.
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All lieutenants wanted to work nights.
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And so we cannot, this is exactly why we cannot assume
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that the day versus night
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or weekdays versus weekends is necessarily adverse
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or advantageous for that matter, and, so.
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When he gets up, he's not gonna recite
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anything from the complainant to the contrary,
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He is.
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And you're also not giving us the framework.
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The framework is the deference that is due.
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So let's begin there.
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So Justice Gaziano point,
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you're about to tell me that,
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that folks get up there
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and say, oh, a lot of people want to work at night.
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It's not necessarily day versus night,
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but there's direct testimony from Sergeant Babcock who says,
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"I've got a family, I don't have to work."
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And it's not just nights.
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The way the City of Newton Police Department is,
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you work the last half, you go home for eight hours,
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and then you come back to the second half.
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So you only get eight hours between,
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versus someone who for years
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had a regular more humane schedule
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for someone who's got a family, nine to five,
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or whatever the shift may be during the day.
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He didn't have to work weekends.
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And he testifies to that.
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So when the Board credits that
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and says that was an
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objective material adverse action,
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and the 8% is,
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and he testifies to that,
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the 8% isn't necessarily important to me.
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I know he said some things about I could maybe get details
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and make this up and that wasn't very strong.
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But the crux of his testimony,
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which they credit it was, I don't wanna work nights.
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I've got a family.
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I don't have to work weekends,
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I don't have to work holidays,
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I have to work during the day.
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How is that, how can we go around
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that fact that they found?
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I think how we make sense of it is that,
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we must consider what the legal requirement is.
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And the legal requirement for an adverse action
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is that you need to have evidence,
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substantial evidence needed to show a disadvantage
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in the terms and conditions of employment.
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And it needs to be objective.
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And I think that the objectivity may be
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is what we're getting at in talking about, in this case,
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the sergeant,
that's what they found
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in this case.
They found that,
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Well, so in this case,
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the sergeant testified that my family life was affected
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and the money didn't matter so much.
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But that doesn't comport with the case law.
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The case law makes clear
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no matter which of these cases you're looking at,
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an adverse action-
But, where is the objective
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evidence that it was not an adverse action?
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The fact that this lieutenant testifying?
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The most, the strongest evidence
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that this was actually advantageous
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was the significant pay increase
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that this sergeant received upon transfer.
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There's no dispute that at the time of transfer,
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he received a pay differential of 8%.
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It was about $6,000, he admitted to this, you know,
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during testimony there's no dispute he received it.
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And we know in-
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So if you get paid enough
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to make the disadvantage tolerable,
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then the objective adverse action test is not met?
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Well. So-
So,
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you throw enough money at a problem,
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it makes something that is otherwise disliked
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by the average reasonable person
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into something that's no longer an adverse action.
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Well, and that's where respectfully,
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I would disagree that this was disadvantageous
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because on this record, yes,
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we have kind of subjective testimony.
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The sergeant's saying,
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well, my family life was affected by this.
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Right,
We have other
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contrary to the subjective
if other witnesses-
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testimony of the lieutenant.
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And then you're saying that the tiebreaker,
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I thought that's what your argument was.
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The tie breaker is that we threw money at the problem
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to make something that was otherwise unappealable
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appealable.
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Well, I would maybe disagree with the characterization
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that it was, you know, that we have on this record evidence
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that the reason for the money was that it was unappealing
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to someone to work nights.
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We don't have that in the record,
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the record (faintly speaks).
but you're relying
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on the money as an objective indicator
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that it was not an adverse action.
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And I actually think that the fact
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that the collective bargaining agreement came to
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an increase of 8%
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suggests that the conditions of employment
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were objectively adverse in the nighttime
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or this crazy schedule as Justice Georges was talking about.
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Well, and I would say-
Because we needed
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to compensate employees that were gonna be subjected
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to this environment
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by an 8% bump.
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We just don't have that on the record respectfully.
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We just don't know the reason for
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the negotiation, right.
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The reason-
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No, I'm just looking at it objectively. Right?
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I mean, you don't pay somebody more
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for a position
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and it's a bargain for increase
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unless you need to actually
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compensate people for that position.
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Well, I think in, again,
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and this is not real on the record,
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but generally speaking in the context
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of collective bargaining, right?
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There's a give and take,
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there's many issues on the table, right?
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So looking at the sort of singular night differential...
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So what is the tiebreaker then
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between
It is.
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the two subjective testimony.
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Why can't, why is it the City of Newton's position
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that it was an error to credit
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the testimony of the complainant here?
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And perhaps some splitting hairs.
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I would submit, the city submits
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that it is the pay increase,
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that is significant, substantial evidence
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of an objective advantage to this individual.
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And then in the counterbalance, what do we have?
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We really have his testimony saying, well,
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it affected my family life.
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Well, I think
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to dovetailing what Justice Wendlandt asked you
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under the CBA, doesn't the pay increase indicate
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that it's an incentive
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to do a worse schedule, to work nights. (chuckles)
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Does the CBA state that?
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Well, no, CBA,
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you're given to this pay bump
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to work not nine to five,
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which to me was we're trying to incentivize people
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to work nights in the second half, right?
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Well, I mean certainly,
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we just don't have that on this record
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as to the nature of the reasons
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why this number was arrived at or why,
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but we do know that yes, the pay increase was given.
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And so that when we look at sort of the totality
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of the evidence on this record,
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I guess that the bottom line
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is whether or not the CBA is a be all end all,
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like the Appeals Court decision
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would have you believe.
Right.
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Well, and I guess I respectfully disagree
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with the characterization of the Appeals Court's decision
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as sort of framed by the union and the Board.
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They're very confined to the facts on this case.
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They note that, you know,
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the Appeals Court's decision finds that,
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it looks at the context, right,
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which is that there is a CBA between the city
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and the union here,
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there was no deviation from the terms and conditions,
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you know, the bargain for differential was paid
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and there was no other evidence on the record before it
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to show an objective disadvantage to the sergeant.
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That's where we, I'm gonna go back again to this
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because I independently, there's an issue with saying,
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just because the CBA allows you to do that,
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it seems to, would obviate anybody's retaliatory claims
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if all we get to look at and say, can the employer do this?
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But let me leave that aside for a minute.
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You keep saying that there's no objective evidence. Okay.
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Are you saying that the Board could not objectively say
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working Monday through Friday during the day,
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is objectively and materially better
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than having to work nights from the last half,
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go home for eight hours
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and then work the second half
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and that they can objectively say,
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not having to work weekends
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and not having to work holidays
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isn't objectively and materially better
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than now being somebody that can be whistled in
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at night on the weekends and during the course,
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even without Sergeant Babcock's testimony.
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Are you saying that the Board couldn't make,
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and they did make that,
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because they cited those reasons for why they said
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that there was a materially objective disadvantage,
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irrespective of the money.
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Sure, so there's actually two good points
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I'd like to raise.
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The first is that I respectfully,
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the Appeals Court's decision is confined to these facts.
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They never, and I think they even state,
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I'm not saying-
I'm not talking
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about their decision,
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I'm talking about the Board's decision.
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Certainly.
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So I think it might help to compare to some other facts,
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00:10:59.820 --> 00:11:00.653
in other cases,
271
00:11:00.653 --> 00:11:01.890
I think the Friedman case is cited
272
00:11:01.890 --> 00:11:05.640
at certain points by the Appeals Court by my brother
273
00:11:05.640 --> 00:11:08.490
in the briefs Friedman Ginger.
274
00:11:08.490 --> 00:11:10.830
Those are actually cases that are cited to,
275
00:11:10.830 --> 00:11:13.710
for this premise of, you know, the daytime work,
276
00:11:13.710 --> 00:11:15.930
the weekday work is preferable.
277
00:11:15.930 --> 00:11:19.320
However, we need to look in those cases
278
00:11:19.320 --> 00:11:20.610
for the evidence that they considered,
279
00:11:20.610 --> 00:11:22.290
which was tied to terms and conditions
280
00:11:22.290 --> 00:11:23.643
of employment in Friedman,
281
00:11:24.600 --> 00:11:27.720
the complaint was that yes, he had to work a night shift,
282
00:11:27.720 --> 00:11:28.950
but why did that affect him?
283
00:11:28.950 --> 00:11:32.580
He alleged that the training he received,
284
00:11:32.580 --> 00:11:35.160
on that shift, was by inexperienced technicians
285
00:11:35.160 --> 00:11:37.110
and people working the days got better training,
286
00:11:37.110 --> 00:11:39.480
better education, I think is what the court frame did as.
287
00:11:39.480 --> 00:11:41.670
Similarly in the Ginger case,
288
00:11:41.670 --> 00:11:42.780
those are the police officers
289
00:11:42.780 --> 00:11:45.270
who were forced to go from a straight night shift
290
00:11:45.270 --> 00:11:46.593
to a rotating shift.
291
00:11:48.120 --> 00:11:50.310
They mentioned, you know, change in their schedule,
292
00:11:50.310 --> 00:11:52.110
but really the court again tied that
293
00:11:52.110 --> 00:11:53.670
to the terms and conditions of employment.
294
00:11:53.670 --> 00:11:55.200
They tied that too, well,
295
00:11:55.200 --> 00:11:57.210
once they had these rotating shifts overnight,
296
00:11:57.210 --> 00:11:58.950
they couldn't sustain part-time work
297
00:11:58.950 --> 00:12:00.360
outside of their police job.
298
00:12:00.360 --> 00:12:02.370
And they tied it to other elements
299
00:12:02.370 --> 00:12:04.290
that really affected their bottom line, their income,
300
00:12:04.290 --> 00:12:06.060
their salary, their ability to have jobs.
301
00:12:06.060 --> 00:12:07.424
What about family life?
302
00:12:07.424 --> 00:12:08.670
That was not considered.
303
00:12:08.670 --> 00:12:12.160
And again, I think that was not a factor in
304
00:12:13.020 --> 00:12:14.992
the conclusion that it was an adverse action.
305
00:12:14.992 --> 00:12:15.960
But, our.
It always leads back
306
00:12:15.960 --> 00:12:17.970
to the workplace and the work environment.
307
00:12:17.970 --> 00:12:21.090
But our review isn't to compare and contrast
308
00:12:21.090 --> 00:12:23.850
what they did or found in another case.
309
00:12:23.850 --> 00:12:26.100
This is a substantial evidence case.
310
00:12:26.100 --> 00:12:28.080
And so we're looking to,
311
00:12:28.080 --> 00:12:30.180
whether or not there's substantial evidence
312
00:12:30.180 --> 00:12:32.190
to support the Board's decision.
313
00:12:32.190 --> 00:12:34.920
And I don't wanna lose you before your time is gone,
314
00:12:34.920 --> 00:12:39.060
but so I understand that and you were in the courtroom
315
00:12:39.060 --> 00:12:41.100
and I think you know what our feeling is,
316
00:12:41.100 --> 00:12:43.470
about citing footnotes in cases,
317
00:12:43.470 --> 00:12:45.090
as the holding of them,
318
00:12:45.090 --> 00:12:49.840
like you do in for this notion that you've gotta show
319
00:12:51.164 --> 00:12:52.050
a good employment history
320
00:12:52.050 --> 00:12:53.610
in order to make a prima facie case
321
00:12:53.610 --> 00:12:56.610
relying on the last sentence of a footnote
322
00:12:56.610 --> 00:13:00.660
in a case from, so you know how we feel about that.
323
00:13:00.660 --> 00:13:03.330
But you mentioned about the collective bargaining agreement
324
00:13:03.330 --> 00:13:06.840
about why we don't know the basis for the 8% bump.
325
00:13:06.840 --> 00:13:07.680
There's another reason,
326
00:13:07.680 --> 00:13:09.660
there's another thing we don't know the basis for.
327
00:13:09.660 --> 00:13:12.990
And that's if you follow the progression of the test
328
00:13:12.990 --> 00:13:15.150
and assume they make the prima facie case,
329
00:13:15.150 --> 00:13:17.970
assume the city offers its reasons
330
00:13:17.970 --> 00:13:21.510
for why this was a legitimate employment decision.
331
00:13:21.510 --> 00:13:23.370
Let's go to the other part, right?
332
00:13:23.370 --> 00:13:27.570
So you have this part about where the city,
333
00:13:27.570 --> 00:13:28.860
at least to the Board,
334
00:13:28.860 --> 00:13:31.380
at least to the, as you went up the flagpole,
335
00:13:31.380 --> 00:13:35.640
did not make a showing that these reasons were legitimate.
336
00:13:35.640 --> 00:13:37.920
And the way that the city was going
337
00:13:37.920 --> 00:13:40.170
was by cobbling all of these different things
338
00:13:40.170 --> 00:13:42.060
and said, oh, it could have been the fight
339
00:13:42.060 --> 00:13:44.640
with the lieutenant about the detail.
340
00:13:44.640 --> 00:13:46.110
It could have been with Crowley,
341
00:13:46.110 --> 00:13:48.330
it could have been this, it could have been that.
342
00:13:48.330 --> 00:13:51.270
Wouldn't it be just easier to have an affidavit
343
00:13:51.270 --> 00:13:54.180
or testimony from Chief MacDonald
344
00:13:54.180 --> 00:13:56.940
about this is the reason why I did this.
345
00:13:56.940 --> 00:13:59.890
And there was no evidence
346
00:14:00.960 --> 00:14:04.320
to substantiate that this was legitimate.
347
00:14:04.320 --> 00:14:06.060
I mean, that would've been the easiest thing
348
00:14:06.060 --> 00:14:09.030
in the world to do and that wasn't there.
349
00:14:09.030 --> 00:14:10.440
And so the Board said,
350
00:14:10.440 --> 00:14:13.140
we don't believe the reasons you've advanced.
351
00:14:13.140 --> 00:14:18.140
Why is that something that isn't entitled to deference?
352
00:14:18.660 --> 00:14:22.350
Well, and I would first alert the court to
353
00:14:22.350 --> 00:14:24.150
this understanding that
354
00:14:24.150 --> 00:14:27.030
the city could produce evidence
355
00:14:27.030 --> 00:14:28.290
consistent with Forbes, right?
356
00:14:28.290 --> 00:14:29.970
The burden on the city was to produce evidence,
357
00:14:29.970 --> 00:14:31.740
not to persuade that ultimately rested
358
00:14:31.740 --> 00:14:34.200
with the charging party, the union,
359
00:14:34.200 --> 00:14:37.350
but it could rely on circumstantial or direct evidence.
360
00:14:37.350 --> 00:14:40.320
And this desire that the Board expressed, you know,
361
00:14:40.320 --> 00:14:41.520
that they wished they'd heard
362
00:14:41.520 --> 00:14:45.510
from the police chief, did not,
363
00:14:45.510 --> 00:14:47.520
it wasn't a requirement that we produced him.
364
00:14:47.520 --> 00:14:49.140
And so what we do have on this record though,
365
00:14:49.140 --> 00:14:51.390
is significant circumstantial evidence, right?
366
00:14:51.390 --> 00:14:54.090
We have the credibility of the eye officer
367
00:14:54.090 --> 00:14:54.990
who did testify,
368
00:14:54.990 --> 00:14:58.080
which the Hearing Officer relied on heavily,
369
00:14:58.080 --> 00:15:00.510
who also then testified further that he investigated,
370
00:15:00.510 --> 00:15:01.920
he spoke with the police chief.
371
00:15:01.920 --> 00:15:02.970
He actually read the letter
372
00:15:02.970 --> 00:15:03.982
that ultimately came from the police chief
373
00:15:03.982 --> 00:15:05.640
and read back and forth-
But with all these things
374
00:15:05.640 --> 00:15:07.950
we're asking them to read tea leaves
375
00:15:07.950 --> 00:15:09.120
because they're saying,
376
00:15:09.120 --> 00:15:10.377
it could be this and it could be that.
377
00:15:10.377 --> 00:15:12.870
And you put it all together and it equals that.
378
00:15:12.870 --> 00:15:14.580
There's no direct testimony
379
00:15:14.580 --> 00:15:16.470
because the only time that,
380
00:15:16.470 --> 00:15:20.610
the only direct interaction we have is when Sergeant Babcock
381
00:15:20.610 --> 00:15:23.160
asked the chief, why are you doing this?
382
00:15:23.160 --> 00:15:25.533
And he says essentially, because I can.
383
00:15:26.400 --> 00:15:27.750
And that is on the record,
384
00:15:27.750 --> 00:15:28.830
that conversation occurred.
385
00:15:28.830 --> 00:15:31.470
But we have other circumstantial evidence,
386
00:15:31.470 --> 00:15:32.400
from which we could infer.
387
00:15:32.400 --> 00:15:34.590
And actually the Hearing Officer did infer
388
00:15:34.590 --> 00:15:35.670
that it was reasonable
389
00:15:35.670 --> 00:15:38.970
and therefore the city's reasons were the correct ones,
390
00:15:38.970 --> 00:15:40.050
were the real ones, right?
391
00:15:40.050 --> 00:15:41.190
The reason for the transfer
392
00:15:41.190 --> 00:15:43.620
was that these two people could not work together anymore.
393
00:15:43.620 --> 00:15:44.910
They'd had this altercation
394
00:15:44.910 --> 00:15:48.030
and it was highly credible in the Hearing Officer's mind.
395
00:15:48.030 --> 00:15:49.470
After hearing all of the witnesses,
396
00:15:49.470 --> 00:15:51.780
both Sergeant Babcock and the eye officer,
397
00:15:51.780 --> 00:15:53.430
she credited the city's reason
398
00:15:53.430 --> 00:15:55.860
and it was on ultimately on the union
399
00:15:55.860 --> 00:15:57.330
to persuade her, right?
400
00:15:57.330 --> 00:15:59.460
And so ultimately they did not do that
401
00:15:59.460 --> 00:16:01.650
because actually the Hearing Officer found, well,
402
00:16:01.650 --> 00:16:04.620
the union's evidence was really temporal proximity.
403
00:16:04.620 --> 00:16:06.360
You know, she found
404
00:16:06.360 --> 00:16:08.250
that basically there was protective activity
405
00:16:08.250 --> 00:16:10.350
and then soon after this transfer occurred,
406
00:16:10.350 --> 00:16:11.310
but in the counterbalance,
407
00:16:11.310 --> 00:16:13.620
she had lots of circumstantial evidence to rely on.
408
00:16:13.620 --> 00:16:15.000
And that rang true to her.
409
00:16:15.000 --> 00:16:16.770
Whether it was, you know, the eye officer
410
00:16:16.770 --> 00:16:19.740
and the letter combined with frankly admissions
411
00:16:19.740 --> 00:16:22.170
from the sergeant that he knew things weren't going well
412
00:16:22.170 --> 00:16:23.010
with this individual.
413
00:16:23.010 --> 00:16:26.040
He was on a speaking basis with this person.
414
00:16:26.040 --> 00:16:28.650
In so many words, they couldn't work together anymore.
415
00:16:28.650 --> 00:16:31.470
So I'm seeing that I'm out of time.
416
00:16:31.470 --> 00:16:33.510
I would just like to very quickly alert the court
417
00:16:33.510 --> 00:16:35.940
to two citations, if I may,
418
00:16:35.940 --> 00:16:38.490
relating to that generally good work record.
419
00:16:38.490 --> 00:16:42.813
The first is Psy-Ed Corp v. Klein at page 707,
420
00:16:44.352 --> 00:16:45.993
What year is that?
Psy-Ed Corp v. Klein,
421
00:16:48.715 --> 00:16:50.340
that is,
You've got some
422
00:16:50.340 --> 00:16:52.320
really old cases here to come up
423
00:16:52.320 --> 00:16:56.100
with this standard 380 case of cases.
424
00:16:56.100 --> 00:16:59.550
Is this a, we've actually used this language
425
00:16:59.550 --> 00:17:00.930
in the modern era.
426
00:17:00.930 --> 00:17:03.960
So Psy-Ed Corp v. Klein was a 2011 case.
427
00:17:03.960 --> 00:17:06.750
It was a 151B retaliation claim.
428
00:17:06.750 --> 00:17:08.340
And it's actually cited to by the Appeals Court,
429
00:17:08.340 --> 00:17:09.630
which is why I bring it up.
430
00:17:09.630 --> 00:17:12.300
It's an SJC case?
Correct.
431
00:17:12.300 --> 00:17:15.600
And it's a 2011 case?
Yes.
432
00:17:15.600 --> 00:17:19.983
What's the full site?
It's 459 Mass.
433
00:17:21.060 --> 00:17:22.680
It's in the brief
697.
434
00:17:22.680 --> 00:17:23.700
It is in the brief,
Yes.
435
00:17:23.700 --> 00:17:25.440
And at page 707,
436
00:17:25.440 --> 00:17:27.150
that court lays out the prima facie case
437
00:17:27.150 --> 00:17:29.310
for retaliation under 151B,
438
00:17:29.310 --> 00:17:31.680
which includes a causal connection
439
00:17:31.680 --> 00:17:33.900
between protected activity and adverse action.
440
00:17:33.900 --> 00:17:36.270
But I bring this up 'cause at 707
441
00:17:36.270 --> 00:17:38.970
actually the court explains that causal connection
442
00:17:38.970 --> 00:17:41.190
can be inferred where among other things
443
00:17:41.190 --> 00:17:44.070
the employee is performing satisfactorily,
444
00:17:44.070 --> 00:17:45.450
which I would argue is akin
445
00:17:45.450 --> 00:17:47.310
to the generally good work record here.
446
00:17:47.310 --> 00:17:48.660
Which brings me to my second citation.
447
00:17:48.660 --> 00:17:50.430
If the court would just humor me
448
00:17:50.430 --> 00:17:54.420
and look at footnote for in the Forbes case.
449
00:17:54.420 --> 00:17:58.770
That is where this court, again, it is a 1982 case,
450
00:17:58.770 --> 00:18:00.867
I believe, and it is a footnote
451
00:18:00.867 --> 00:18:01.800
81.
But the court,
452
00:18:01.800 --> 00:18:03.840
does mention that again,
453
00:18:03.840 --> 00:18:05.760
they're analogizing to the Title VII
454
00:18:05.760 --> 00:18:07.500
and the (indistinct) process.
455
00:18:07.500 --> 00:18:08.700
And they're talking about
456
00:18:08.700 --> 00:18:11.910
how under Title VII a plaintiff must be qualified.
457
00:18:11.910 --> 00:18:13.620
That's part of his prima fascia case.
458
00:18:13.620 --> 00:18:14.700
And by analogy,
459
00:18:14.700 --> 00:18:16.170
that's why they have required the generally good
460
00:18:16.170 --> 00:18:18.311
work record under 150E, so and-
461
00:18:18.311 --> 00:18:19.765
And we said might.
462
00:18:19.765 --> 00:18:20.598
It said, might,
Might,
463
00:18:20.598 --> 00:18:22.920
and then respectfully in Southern Worcester County,
464
00:18:22.920 --> 00:18:24.990
they held that the teachers affirmatively proved
465
00:18:24.990 --> 00:18:26.140
their prima fascia case
466
00:18:27.102 --> 00:18:29.010
because they approved it, general for worker of record.
467
00:18:29.010 --> 00:18:30.930
So thank you for your time.
468
00:18:30.930 --> 00:18:31.763
Thank you.
469
00:18:33.420 --> 00:18:35.030
Okay, Attorney Sunkenberg.
470
00:18:42.417 --> 00:18:45.540
Good morning Chief Justice, Associate Justices.
471
00:18:45.540 --> 00:18:46.560
My name is James Sunkenberg.
472
00:18:46.560 --> 00:18:47.490
I'm appearing on behalf
473
00:18:47.490 --> 00:18:49.830
of the Commonwealth Employment Relations Board this morning.
474
00:18:49.830 --> 00:18:52.800
I'd like to bring us back directly into 150E
475
00:18:52.800 --> 00:18:55.650
and I'd like to start by noting that sections,
476
00:18:55.650 --> 00:18:59.280
not just Section 6, Sections 1, 2, and 6
477
00:18:59.280 --> 00:19:02.730
of Chapter 150E expressly identify hours of work
478
00:19:02.730 --> 00:19:05.100
as a term and/or condition of employment.
479
00:19:05.100 --> 00:19:08.190
It's been specifically carved out by the legislature.
480
00:19:08.190 --> 00:19:09.930
The only other term and/or condition
481
00:19:09.930 --> 00:19:11.970
that is expressly identified in all three sections
482
00:19:11.970 --> 00:19:13.080
are wages.
483
00:19:13.080 --> 00:19:15.270
So wages and hours.
484
00:19:15.270 --> 00:19:18.000
We know under 158 are terms and conditions
485
00:19:18.000 --> 00:19:19.860
of employment changing them in the way
486
00:19:19.860 --> 00:19:21.840
that's been changed here, significantly,
487
00:19:21.840 --> 00:19:23.640
from the day shift Monday through Friday,
488
00:19:23.640 --> 00:19:25.020
as we're talking about to the last half,
489
00:19:25.020 --> 00:19:26.610
first half overnight.
490
00:19:26.610 --> 00:19:29.280
That's objectively and materially a change to terms
491
00:19:29.280 --> 00:19:30.360
and conditions of employment,
492
00:19:30.360 --> 00:19:33.360
regardless of what the collective bargaining agreement says.
493
00:19:33.360 --> 00:19:34.860
I think then what we have to consider
494
00:19:34.860 --> 00:19:37.080
is whether it's objectively disadvantageous
495
00:19:37.080 --> 00:19:40.020
to a reasonable employee in that position.
496
00:19:40.020 --> 00:19:43.200
That's a sergeant who's got 30 plus years of service
497
00:19:43.200 --> 00:19:46.440
to his community, who is on the back end of his career,
498
00:19:46.440 --> 00:19:48.660
who has positioned himself for six years prior
499
00:19:48.660 --> 00:19:50.250
to the adverse action
500
00:19:50.250 --> 00:19:52.830
to work himself days, Monday through Friday.
501
00:19:52.830 --> 00:19:55.260
And as we've noted, that's a schedule that's conducive
502
00:19:55.260 --> 00:19:56.550
to a stable family life.
503
00:19:56.550 --> 00:20:00.060
And the change that he's been put is just not,
504
00:20:00.060 --> 00:20:01.770
so the Board's position is that,
505
00:20:01.770 --> 00:20:03.930
it's subjectively disadvantageous.
506
00:20:03.930 --> 00:20:06.900
Let me ask you, maybe this is an add-on to that.
507
00:20:06.900 --> 00:20:09.510
There's a, the argument about the special assignment
508
00:20:09.510 --> 00:20:13.170
that he's the traffic guy, that's a subjective.
509
00:20:13.170 --> 00:20:14.880
I.
I don't
510
00:20:14.880 --> 00:20:15.960
the specialty assignment.
511
00:20:15.960 --> 00:20:18.810
Yeah, I mean I don't think the Board hung their hat on that.
512
00:20:18.810 --> 00:20:20.495
I think they're more focused
513
00:20:20.495 --> 00:20:21.328
on the change,
I hope not.
514
00:20:21.328 --> 00:20:22.530
but it is a part of the change.
515
00:20:22.530 --> 00:20:24.013
Yeah. He's going from a specialty assignment.
516
00:20:24.013 --> 00:20:27.760
Right, but that seems to me a smack of some subjective
517
00:20:29.550 --> 00:20:32.940
view of their job as opposed to wage and hour.
518
00:20:32.940 --> 00:20:35.580
Yeah, well, I'm trying to focus on the hours.
519
00:20:35.580 --> 00:20:37.500
I know, for good reason.
(Attorney Sunkenberg chuckles)
520
00:20:37.500 --> 00:20:38.580
Yeah, I don't think,
521
00:20:38.580 --> 00:20:39.900
and I don't think for good reason as well,
522
00:20:39.900 --> 00:20:42.270
I don't think the Board was particularly hung up
523
00:20:42.270 --> 00:20:45.060
on the specialty assignment aspect of it.
524
00:20:45.060 --> 00:20:47.853
It is there and he's going to patrol,
525
00:20:48.870 --> 00:20:51.090
but we're really focused on the hours themselves
526
00:20:51.090 --> 00:20:54.150
constituting the change to his terms and conditions.
527
00:20:54.150 --> 00:20:56.580
As far as the collective bargaining agreement,
528
00:20:56.580 --> 00:20:58.430
which obviously we have to deal with,
529
00:20:59.268 --> 00:21:01.560
I respectfully suggest that the rule
530
00:21:01.560 --> 00:21:03.900
that's been announced in the Appeals Court's decision
531
00:21:03.900 --> 00:21:07.470
that we have to measure whether it's a change
532
00:21:07.470 --> 00:21:10.710
against the contract is untenable.
533
00:21:10.710 --> 00:21:12.330
It's unworkable.
534
00:21:12.330 --> 00:21:14.910
First of all, the cases that are cited,
535
00:21:14.910 --> 00:21:17.160
Yee, Note 8, and Somerville.
536
00:21:17.160 --> 00:21:20.160
Somerville's a bargaining case about retiree benefits
537
00:21:20.160 --> 00:21:22.260
and the pages that are cited even include
538
00:21:22.260 --> 00:21:23.610
a discussion of the interplay
539
00:21:23.610 --> 00:21:26.700
between Chapter 32B, Section 9E
540
00:21:26.700 --> 00:21:30.750
and the conflicts section of 150E Section 7D.
541
00:21:30.750 --> 00:21:35.550
It's just doesn't have anything to do with adverse actions.
542
00:21:35.550 --> 00:21:37.560
It doesn't contemplate it at all.
543
00:21:37.560 --> 00:21:39.120
And then I think it's worth considering,
544
00:21:39.120 --> 00:21:41.550
I would ask the court to just consider
545
00:21:41.550 --> 00:21:44.253
how we would apply this rule going forward.
546
00:21:45.450 --> 00:21:48.120
How does it apply to a just cause scenario?
547
00:21:48.120 --> 00:21:49.890
Just cause provisions are protections,
548
00:21:49.890 --> 00:21:50.723
there are benefits
549
00:21:50.723 --> 00:21:52.533
that are negotiated into contracts.
550
00:21:54.060 --> 00:21:57.210
Does the fact that the parties have negotiated a benefit?
551
00:21:57.210 --> 00:21:59.850
It it directly limits an employer's ability
552
00:21:59.850 --> 00:22:01.050
to take adverse action?
553
00:22:01.050 --> 00:22:04.650
Does that make a just cause discharge not adverse?
554
00:22:04.650 --> 00:22:05.970
I think the rule starts to,
555
00:22:05.970 --> 00:22:07.710
it starts to run into some trouble
556
00:22:07.710 --> 00:22:09.810
and we try to push on it a little bit.
557
00:22:09.810 --> 00:22:11.760
We know from the Board of Selectmen of Natick case,
558
00:22:11.760 --> 00:22:13.530
which is cited in the materials
559
00:22:13.530 --> 00:22:16.980
that a just cause discharge does not preclude an inquiry
560
00:22:16.980 --> 00:22:20.250
into whether there's been a statutory retaliation.
561
00:22:20.250 --> 00:22:22.020
And that's kind of what we're dealing with here.
562
00:22:22.020 --> 00:22:24.780
The execution of this differential is not a waiver
563
00:22:24.780 --> 00:22:26.490
of a statutory right.
564
00:22:26.490 --> 00:22:28.350
And that would seem to be,
565
00:22:28.350 --> 00:22:29.850
regardless of whether it's intended or not,
566
00:22:29.850 --> 00:22:31.680
I think that's the implication
567
00:22:31.680 --> 00:22:34.170
of what the Appeals Court has done here.
568
00:22:34.170 --> 00:22:38.874
And so we respectfully disagree with that.
569
00:22:38.874 --> 00:22:40.350
Could you move to the next two?
570
00:22:40.350 --> 00:22:42.330
Sure.
So say you win,
571
00:22:42.330 --> 00:22:45.420
say you win on the adverse employment action.
572
00:22:45.420 --> 00:22:47.490
So we've got these two other arguments.
573
00:22:47.490 --> 00:22:50.940
The second one is satisfactory performance.
574
00:22:50.940 --> 00:22:54.660
And there is language in Mole,
575
00:22:54.660 --> 00:22:58.110
which is relied on in the Psy-Ed thing about, you know,
576
00:22:58.110 --> 00:23:00.420
there's some psy, there's some,
577
00:23:00.420 --> 00:23:01.770
although they're usually talking about, you know,
578
00:23:01.770 --> 00:23:03.750
you've got a terribly performing employee
579
00:23:03.750 --> 00:23:04.950
and they get fired afterwards.
580
00:23:04.950 --> 00:23:07.380
We're not gonna, you know,
581
00:23:07.380 --> 00:23:10.680
read this requirement into the,
582
00:23:10.680 --> 00:23:12.390
we're not going to do this,
583
00:23:12.390 --> 00:23:15.840
but what do we do with this satisfactory language?
584
00:23:15.840 --> 00:23:17.610
Well I think it's,
585
00:23:17.610 --> 00:23:19.713
as we've noted in the discussion already,
586
00:23:20.610 --> 00:23:22.800
it's never been required.
587
00:23:22.800 --> 00:23:24.720
There's the footnote in Forbes
588
00:23:24.720 --> 00:23:27.900
that I guess this all springs from, it's been,
589
00:23:27.900 --> 00:23:31.350
that note has been reiterated multiple times,
590
00:23:31.350 --> 00:23:33.720
but it's never been elaborated on.
591
00:23:33.720 --> 00:23:35.100
And I would note that we do have
592
00:23:35.100 --> 00:23:36.390
a decision from this court,
593
00:23:36.390 --> 00:23:39.990
town of Brookfield, 2005 decision, I think,
594
00:23:39.990 --> 00:23:41.410
in which one of the discriminatees,
595
00:23:41.410 --> 00:23:43.710
there were three in that case.
596
00:23:43.710 --> 00:23:46.320
The one who there was direct evidence of his,
597
00:23:46.320 --> 00:23:48.240
his name was Graupner, Sergeant Graupner
598
00:23:48.240 --> 00:23:51.510
his work record was considered as part of the stage two
599
00:23:51.510 --> 00:23:54.660
of a direct evidence analysis in that case by the court.
600
00:23:54.660 --> 00:23:57.063
It's commented on in the decision.
601
00:23:58.020 --> 00:24:00.120
It's just, it's never been required,
602
00:24:00.120 --> 00:24:04.113
if it were, I mean it just hasn't been,
603
00:24:05.310 --> 00:24:07.080
as far as that aspect of the case goes.
604
00:24:07.080 --> 00:24:09.090
As far as the other aspect,
605
00:24:09.090 --> 00:24:10.740
the second part of your question,
606
00:24:11.640 --> 00:24:13.440
the Board correctly applied the standard
607
00:24:13.440 --> 00:24:15.390
as is articulated in Forbes,
608
00:24:15.390 --> 00:24:17.280
in all of the progeny from it,
609
00:24:17.280 --> 00:24:20.160
actual motive, it's a two part test per stage two,
610
00:24:20.160 --> 00:24:23.655
actual motive, there's gotta be evidence of something.
611
00:24:23.655 --> 00:24:24.488
I respectfully disagree
612
00:24:24.488 --> 00:24:26.670
that with the Appeals Court's characterization
613
00:24:26.670 --> 00:24:29.190
that the Board was requiring direct evidence.
614
00:24:29.190 --> 00:24:30.720
It never said it required it,
615
00:24:30.720 --> 00:24:33.690
it did reference testimony or documents,
616
00:24:33.690 --> 00:24:36.480
but it's entirely conceivable that a situation could arrive.
617
00:24:36.480 --> 00:24:39.690
We're trying to understand where we are.
618
00:24:39.690 --> 00:24:41.640
If we agree with you on point one.
619
00:24:41.640 --> 00:24:44.400
that there's been an adverse employment action,
620
00:24:44.400 --> 00:24:46.949
Then the prima facie case-
bear with me for a second
621
00:24:46.949 --> 00:24:47.970
Oh, I'm sorry.
and we even agree with you
622
00:24:47.970 --> 00:24:51.450
that the satisfactory language is sort of vague
623
00:24:51.450 --> 00:24:52.503
and not really,
624
00:24:53.580 --> 00:24:55.110
but then we get to the,
625
00:24:55.110 --> 00:24:57.400
was there a legitimate reason posed
626
00:24:59.040 --> 00:25:02.490
and the Appeals Court may have gotten that correct in the,
627
00:25:02.490 --> 00:25:05.223
that it's just a burden of production,
628
00:25:07.350 --> 00:25:10.383
but the Board doesn't do that, right?
629
00:25:12.090 --> 00:25:13.770
Does the Board do what the,
630
00:25:13.770 --> 00:25:16.080
Appeals Court says the Board got that wrong
631
00:25:16.080 --> 00:25:18.060
and they treated it as a burden
632
00:25:18.060 --> 00:25:20.883
of persuasion requirement.
633
00:25:22.110 --> 00:25:23.820
So then this is a remand.
634
00:25:23.820 --> 00:25:25.650
I'm just trying to get a sense of,
635
00:25:25.650 --> 00:25:27.723
if we agree with you on point one,
636
00:25:28.830 --> 00:25:31.560
and we agree with you on point two,
637
00:25:31.560 --> 00:25:36.270
that the satisfactory language is being taken outta context,
638
00:25:36.270 --> 00:25:39.270
but we agree that the Appeals Court was right,
639
00:25:39.270 --> 00:25:42.510
that it's dealt with the second stage
640
00:25:42.510 --> 00:25:44.460
and it's a burden of production point alone.
641
00:25:44.460 --> 00:25:46.350
Is this what happens? What, what?
642
00:25:46.350 --> 00:25:49.320
Well, if it's a case where the Board got that wrong
643
00:25:49.320 --> 00:25:51.470
and I don't agree that we did get it wrong.
644
00:25:52.740 --> 00:25:56.430
Yeah, then I mean Fowler, the Fowler case was a remand
645
00:25:56.430 --> 00:25:58.500
where they said you don't have to require-
646
00:25:58.500 --> 00:26:00.350
So are you saying the Board didn't,
647
00:26:02.640 --> 00:26:06.450
did the burden of persuasion production thing correctly?
648
00:26:06.450 --> 00:26:08.347
Because I thought it is a two part.
649
00:26:08.347 --> 00:26:10.320
[Attorney Sunkenberg] So I have the language right here.
650
00:26:10.320 --> 00:26:13.323
Okay.
Let's see,
651
00:26:14.497 --> 00:26:17.760
"The Forbes analysis state a lawful reason for its decision
652
00:26:17.760 --> 00:26:19.860
and produce supporting facts indicating
653
00:26:19.860 --> 00:26:23.070
that this reason was actually a motive in the decision."
654
00:26:23.070 --> 00:26:24.450
But that's-
Actual motive
655
00:26:24.450 --> 00:26:25.283
is what we're,
656
00:26:25.283 --> 00:26:26.250
is what the Board is looking for.
657
00:26:26.250 --> 00:26:27.720
That's what they're saying, there's no evidence
658
00:26:27.720 --> 00:26:28.553
it's lawful.
659
00:26:28.553 --> 00:26:31.080
Usually stage three analysis
660
00:26:31.080 --> 00:26:32.858
that requires a jury.
661
00:26:32.858 --> 00:26:34.860
[Attorney Sunkenberg] Stage three is there's no jury,
662
00:26:34.860 --> 00:26:35.980
but four.
I understand,
663
00:26:35.980 --> 00:26:36.813
but I understand that.
664
00:26:36.813 --> 00:26:40.590
But isn't this normally left to the, well, maybe not. Okay.
665
00:26:40.590 --> 00:26:43.110
I'm thinking of the employment discrimination context.
666
00:26:43.110 --> 00:26:44.910
Yeah, it's important to keep in mind
667
00:26:44.910 --> 00:26:46.260
we are under 150E
668
00:26:46.260 --> 00:26:48.300
and although there's some overlap,
669
00:26:48.300 --> 00:26:50.100
you know, they are separate.
670
00:26:50.100 --> 00:26:53.520
Stage two is the employer's burden of production.
671
00:26:53.520 --> 00:26:56.370
Th Board has not attempted to shift that.
672
00:26:56.370 --> 00:26:58.080
And we do have discussion of this
673
00:26:58.080 --> 00:27:00.180
in the School of Boston case that's cited.
674
00:27:01.020 --> 00:27:03.180
They are not saying you have to persuade us,
675
00:27:03.180 --> 00:27:05.340
they're saying there must be some evidence
676
00:27:05.340 --> 00:27:07.080
and they're not requiring direct evidence.
677
00:27:07.080 --> 00:27:09.510
They're saying there must be some evidence.
678
00:27:09.510 --> 00:27:11.550
And the evidence that the hearing,
679
00:27:11.550 --> 00:27:13.410
what they're saying is that the Hearing Officer
680
00:27:13.410 --> 00:27:14.880
incorrectly applied the facts
681
00:27:14.880 --> 00:27:17.580
that she found to the standard.
682
00:27:17.580 --> 00:27:19.920
They're saying your credibility determination
683
00:27:19.920 --> 00:27:22.740
about Lieutenant McMains, that he was truthful,
684
00:27:22.740 --> 00:27:25.050
that he didn't harbor anti-union animus
685
00:27:25.050 --> 00:27:28.740
just does not bear on MacDonald's decision making.
686
00:27:28.740 --> 00:27:31.140
He wasn't the decision maker in this process.
687
00:27:31.140 --> 00:27:33.300
And it's important, I think to keep in mind
688
00:27:33.300 --> 00:27:34.590
that in the labor context,
689
00:27:34.590 --> 00:27:38.100
discipline is not doled out in a piecemeal faction.
690
00:27:38.100 --> 00:27:41.130
There is an incident that happened, the Crowley incident,
691
00:27:41.130 --> 00:27:42.720
there's an investigation,
692
00:27:42.720 --> 00:27:44.790
there's a personnel action that's taken.
693
00:27:44.790 --> 00:27:46.380
There was a reprimand.
694
00:27:46.380 --> 00:27:49.260
The transfer was not part of that personnel action.
695
00:27:49.260 --> 00:27:51.420
It came later, a month later
696
00:27:51.420 --> 00:27:53.520
and as the Appeals Court appears to have overlooked,
697
00:27:53.520 --> 00:27:57.510
there was an intervening instance of a display
698
00:27:57.510 --> 00:28:01.920
of anti-union animus on April 9th in the response to
699
00:28:01.920 --> 00:28:04.923
the March 30 grievance, which the chisel grievance,
700
00:28:07.350 --> 00:28:08.580
All of it taken together.
701
00:28:08.580 --> 00:28:10.620
I mean it, they're saying there's no evidence
702
00:28:10.620 --> 00:28:14.460
of actual motive, whether direct or circumstantial.
703
00:28:14.460 --> 00:28:16.170
It is possible to conceive
704
00:28:16.170 --> 00:28:19.470
of a situation in which say testimony
705
00:28:19.470 --> 00:28:21.690
about a pattern of practice in the bat.
706
00:28:21.690 --> 00:28:22.920
We always transfer people
707
00:28:22.920 --> 00:28:24.720
when there's an altercation with a subordinate.
708
00:28:24.720 --> 00:28:26.070
That would be circumstantial evidence
709
00:28:26.070 --> 00:28:28.290
that would likely meet the burden of production.
710
00:28:28.290 --> 00:28:29.190
It's not met here.
711
00:28:31.680 --> 00:28:33.000
Okay.
Thank you.
712
00:28:33.000 --> 00:28:33.833
Thank you.
713
00:28:37.110 --> 00:28:38.313
Attorney Shapiro.
714
00:28:40.763 --> 00:28:43.557
So made it.
(justices chuckling)
715
00:28:43.557 --> 00:28:44.730
May I please the court. (chuckles)
716
00:28:44.730 --> 00:28:46.590
My name is Alan Shapiro,
717
00:28:46.590 --> 00:28:48.210
I represent the intervener,
718
00:28:48.210 --> 00:28:51.210
the Massachusetts Coalition of Police.
719
00:28:51.210 --> 00:28:55.053
It's Newton Police Superior Officers Local.
720
00:28:56.850 --> 00:29:00.360
I'd like to just speak to one of the issues that
721
00:29:00.360 --> 00:29:02.700
to me is kind of a red herring.
722
00:29:02.700 --> 00:29:05.100
The idea that an employee
723
00:29:05.100 --> 00:29:08.640
has to have a clean work record
724
00:29:08.640 --> 00:29:11.970
in order to be discriminated against.
725
00:29:11.970 --> 00:29:15.603
Now I know the dicta in Forbes,
726
00:29:18.281 --> 00:29:22.470
it's been brought out in some of the cases it's raised,
727
00:29:22.470 --> 00:29:25.740
but I don't think there's any case
728
00:29:25.740 --> 00:29:30.740
where a court in agency said that,
729
00:29:31.050 --> 00:29:34.950
this person is a victim of discrimination,
730
00:29:34.950 --> 00:29:39.090
but because they don't have a good work record,
731
00:29:39.090 --> 00:29:41.763
we can't find for that person.
732
00:29:42.900 --> 00:29:45.820
So I don't understand why
733
00:29:47.100 --> 00:29:50.040
in Sergeant Babcock, for instance, okay,
734
00:29:50.040 --> 00:29:52.320
he had a reprimand in,
735
00:29:52.320 --> 00:29:53.850
as far as the record shows
736
00:29:53.850 --> 00:29:57.420
in 30 years of being a police officer,
737
00:29:57.420 --> 00:29:59.400
he gets a reprimand.
738
00:29:59.400 --> 00:30:02.970
That's not something that can be grieved
739
00:30:02.970 --> 00:30:06.540
and arbitrated under the collective bargaining agreement,
740
00:30:06.540 --> 00:30:10.350
which only allows just cause protection
741
00:30:10.350 --> 00:30:14.700
for suspensions, terminations, demotions,
742
00:30:14.700 --> 00:30:18.330
which mirrors the civil service law
743
00:30:18.330 --> 00:30:23.160
where you can only appeal a suspension, termination,
744
00:30:23.160 --> 00:30:25.110
or demotion.
745
00:30:25.110 --> 00:30:25.943
So
746
00:30:27.362 --> 00:30:30.390
if there's just nothing
747
00:30:30.390 --> 00:30:33.870
that says that you can't have
748
00:30:33.870 --> 00:30:37.800
any impurities on your record
749
00:30:37.800 --> 00:30:40.560
in order to be a victim of discrimination,
750
00:30:40.560 --> 00:30:41.940
regardless of the context,
751
00:30:41.940 --> 00:30:45.240
whether it's union discrimination, race discrimination,
752
00:30:45.240 --> 00:30:46.863
whatever it may be.
753
00:30:48.060 --> 00:30:48.893
Attorney Shapiro,
754
00:30:48.893 --> 00:30:51.450
can I ask you another question about the prima facie case?
755
00:30:51.450 --> 00:30:52.283
Sure
756
00:30:54.069 --> 00:30:56.250
Does the recent Supreme Court case,
757
00:30:56.250 --> 00:30:59.790
I understand it's not this particular context,
758
00:30:59.790 --> 00:31:03.630
is that, does that change our aperture
759
00:31:03.630 --> 00:31:07.230
about finding in the prima facie case,
760
00:31:07.230 --> 00:31:10.680
the adverse action here?
761
00:31:10.680 --> 00:31:12.601
Well,
Because they,
762
00:31:12.601 --> 00:31:14.707
Muldrow
the Muldrow says
763
00:31:14.707 --> 00:31:15.540
[Attorney Shapiro] Yeah, no, I understand.
764
00:31:15.540 --> 00:31:16.650
Yeah, the Muldrow seems
765
00:31:16.650 --> 00:31:18.660
to suggest that it's not much,
766
00:31:18.660 --> 00:31:21.690
but the phrase that jumped out in Muldrow to me
767
00:31:21.690 --> 00:31:25.320
was that the, some disadvantage,
768
00:31:25.320 --> 00:31:28.350
some disadvantageous action.
769
00:31:28.350 --> 00:31:29.893
So does that make it?
770
00:31:31.178 --> 00:31:32.700
[Attorney Shapiro] Well, I mean that of course
771
00:31:32.700 --> 00:31:34.710
is decided under Title VII.
772
00:31:34.710 --> 00:31:36.130
It is, but we've talked about
773
00:31:36.130 --> 00:31:38.760
how these have kind of infused some of our-
774
00:31:38.760 --> 00:31:41.497
Certainly, we would be glad to do that,
775
00:31:41.497 --> 00:31:44.940
you know, as far as 150E,
776
00:31:44.940 --> 00:31:49.710
but candidly, I don't know that we can say
777
00:31:49.710 --> 00:31:54.710
that as a matter of law that this court is obligated to
778
00:31:55.350 --> 00:31:57.450
adopt a looser standard.
779
00:31:57.450 --> 00:31:58.419
I appreciate that.
780
00:31:58.419 --> 00:31:59.252
I just, that was something
781
00:31:59.252 --> 00:32:01.050
that people had bandied around it.
782
00:32:01.050 --> 00:32:01.883
Thank you.
783
00:32:01.883 --> 00:32:03.240
Yeah, certainly.
784
00:32:03.240 --> 00:32:05.880
One other point, I wanted to bring out
785
00:32:05.880 --> 00:32:10.880
is the Appeals Court seems to conflate two provisions
786
00:32:11.820 --> 00:32:13.533
of Chapter 150E,
787
00:32:15.540 --> 00:32:19.770
section 10a3, which is the provision
788
00:32:19.770 --> 00:32:23.520
that we're dealing with as far as, I mean,
789
00:32:23.520 --> 00:32:27.784
in discrimination adverse action says that,
790
00:32:27.784 --> 00:32:31.200
"It is a prohibited practice to discriminate in regard
791
00:32:31.200 --> 00:32:35.847
to hiring tenure or any term or condition of employment."
792
00:32:36.960 --> 00:32:40.740
So that's a pretty broad statement
793
00:32:40.740 --> 00:32:44.160
as terms of what are the areas
794
00:32:44.160 --> 00:32:46.810
where somebody can be a victim
795
00:32:49.495 --> 00:32:51.753
of discrimination.
796
00:32:52.590 --> 00:32:54.630
The court then,
797
00:32:54.630 --> 00:32:57.120
the Appeals Court, they looked at,
798
00:32:57.120 --> 00:33:00.750
Chapter 150E Section 6,
799
00:33:00.750 --> 00:33:05.560
which lays out essentially the
800
00:33:07.020 --> 00:33:10.590
what is a mandatory subject to bargaining?
801
00:33:10.590 --> 00:33:13.143
Wages, hours, terms, and conditions of employment.
802
00:33:14.910 --> 00:33:17.250
That has to do with what can we negotiate,
803
00:33:17.250 --> 00:33:20.310
what can we put into a collective bargaining agreement.
804
00:33:20.310 --> 00:33:23.520
10a3, however, is much broader than that,
805
00:33:23.520 --> 00:33:25.980
just discriminate in regard to hiring.
806
00:33:25.980 --> 00:33:28.530
Hiring is not a mandatory subject of bargaining,
807
00:33:28.530 --> 00:33:31.140
tenure, if you're dealing with teacher tenure,
808
00:33:31.140 --> 00:33:33.090
that's not a mandatory subject of bargaining,
809
00:33:33.090 --> 00:33:37.470
that's covered by Chapter 71, Section 42.
810
00:33:37.470 --> 00:33:39.750
So I think there's a conflation here
811
00:33:39.750 --> 00:33:42.303
of these two provisions of Chapter 158.
812
00:33:43.650 --> 00:33:44.483
Okay, before you leave,
813
00:33:44.483 --> 00:33:48.540
can you address the last paragraph of the Appeals Court,
814
00:33:48.540 --> 00:33:49.863
the stage two?
815
00:33:50.910 --> 00:33:53.613
It seems it's a dicta.
816
00:33:54.810 --> 00:33:55.800
Court says it's dicta,
817
00:33:55.800 --> 00:33:56.790
but I'm just trying to understand
818
00:33:56.790 --> 00:33:59.673
how it plays out in this case, if that's correct.
819
00:34:01.950 --> 00:34:04.080
Let me look at it.
This is the stage two
820
00:34:04.080 --> 00:34:07.110
that they've conflated what should be in stage two
821
00:34:07.110 --> 00:34:08.310
versus stage three.
822
00:34:08.310 --> 00:34:13.080
I just, and that CERB says that they didn't
823
00:34:13.080 --> 00:34:14.740
meet their stage two burden
824
00:34:15.841 --> 00:34:16.674
and the Appeals Court says that's wrong.
825
00:34:16.674 --> 00:34:19.170
I'm just trying, again, I'm trying to understand
826
00:34:19.170 --> 00:34:21.150
where we are at the end of this case.
827
00:34:21.150 --> 00:34:26.150
So, I think the employer,
828
00:34:26.160 --> 00:34:31.160
once the employee union makes out a prima facie case,
829
00:34:31.590 --> 00:34:34.230
now the burden shifts to the employer
830
00:34:34.230 --> 00:34:38.440
to come with some reasons
831
00:34:39.510 --> 00:34:42.030
that it could have been the basis
832
00:34:42.030 --> 00:34:44.790
for the alleged discriminatory act.
833
00:34:44.790 --> 00:34:47.460
Right, and the Appeals Court says that this is,
834
00:34:47.460 --> 00:34:49.410
that when the altercation
835
00:34:49.410 --> 00:34:51.420
with the other patrol officer
836
00:34:51.420 --> 00:34:53.640
Right.
meets the stage two burden.
837
00:34:53.640 --> 00:34:55.786
Okay. And that seems correct.
838
00:34:55.786 --> 00:34:56.880
[Attorney Shapiro] I don't think that's correct,
839
00:34:56.880 --> 00:34:57.713
Really?
Because,
840
00:34:57.713 --> 00:35:00.083
I think the case law says that-
841
00:35:00.083 --> 00:35:02.160
I'm not saying it meets the final burden,
842
00:35:02.160 --> 00:35:04.200
but I thought it meant the stage two burden.
843
00:35:04.200 --> 00:35:06.450
But is that wrong?
844
00:35:06.450 --> 00:35:07.283
I think that's wrong
845
00:35:07.283 --> 00:35:10.710
because I think the stage two burden is not only to show
846
00:35:10.710 --> 00:35:13.380
that the employer had a legitimate reason,
847
00:35:13.380 --> 00:35:17.550
but also that that reason played a role
848
00:35:17.550 --> 00:35:21.093
in taking the action that's alleged to be discriminatory.
849
00:35:22.140 --> 00:35:26.100
I mean, that's in Forbes, that's, it isn't enough
850
00:35:26.100 --> 00:35:30.000
just to say, well, Sergeant Babcock,
851
00:35:30.000 --> 00:35:33.930
he argued with the lieutenant about details.
852
00:35:33.930 --> 00:35:35.850
So that could have been a reason.
853
00:35:35.850 --> 00:35:38.940
But you have to show that that was in fact
854
00:35:38.940 --> 00:35:40.740
part of the consideration.
855
00:35:40.740 --> 00:35:42.240
Yeah, it may be just,
856
00:35:42.240 --> 00:35:43.950
I'm caught up in the pretext plus
857
00:35:43.950 --> 00:35:46.050
and all the employment discrimination stuff.
858
00:35:46.050 --> 00:35:50.730
It, so that, is that what's the Appeals Court has sort of
859
00:35:50.730 --> 00:35:53.340
gone to that world here improperly
860
00:35:53.340 --> 00:35:54.450
or is that what they're doing?
861
00:35:54.450 --> 00:35:56.970
I'm just trying to figure out what we do with this.
862
00:35:56.970 --> 00:36:01.740
I think the Appeals Court is trying
863
00:36:01.740 --> 00:36:02.710
to create
864
00:36:06.525 --> 00:36:09.210
a basis in which it could show
865
00:36:09.210 --> 00:36:13.660
that the employer met its burden
866
00:36:14.568 --> 00:36:18.300
in step two by drawing from the record,
867
00:36:18.300 --> 00:36:22.710
things that could have been legitimate.
868
00:36:22.710 --> 00:36:25.140
But there has to be evidence
869
00:36:25.140 --> 00:36:29.970
that those things were considered and there's no evidence.
870
00:36:29.970 --> 00:36:32.070
I mean, Lieutenant McMains who testified-
871
00:36:32.070 --> 00:36:36.030
Did the timing, we often focus on timing as evidence.
872
00:36:36.030 --> 00:36:38.310
And this happens right after the altercation
873
00:36:38.310 --> 00:36:40.620
with that patrol officer, right?
874
00:36:40.620 --> 00:36:42.720
It also happens at the same time
875
00:36:42.720 --> 00:36:46.830
that the union had a case pending
876
00:36:46.830 --> 00:36:50.010
regarding a captain who was forced
877
00:36:50.010 --> 00:36:53.250
into a fitness for duty examination
878
00:36:53.250 --> 00:36:55.830
where we ended up in the Appeals Court,
879
00:36:55.830 --> 00:36:59.287
which affirmed the decision of the CERB
880
00:37:01.335 --> 00:37:05.520
that there was an unfair labor practice committed.
881
00:37:05.520 --> 00:37:09.570
So, I mean, there's a lot of antipathy in the record
882
00:37:09.570 --> 00:37:13.020
between the Chief and Sergeant Babcock.
883
00:37:13.020 --> 00:37:15.960
So in your view,
884
00:37:15.960 --> 00:37:18.870
what is the result here exactly?
885
00:37:18.870 --> 00:37:23.160
If we agree with you that it's an adverse employment action,
886
00:37:23.160 --> 00:37:24.360
and we agree with you
887
00:37:24.360 --> 00:37:27.120
that this satisfactory performance
888
00:37:27.120 --> 00:37:30.390
is not what we meant to say in these earlier cases,
889
00:37:30.390 --> 00:37:33.660
that it's a precondition that has to be proved,
890
00:37:33.660 --> 00:37:34.830
what happens here?
891
00:37:34.830 --> 00:37:37.380
Well, I think that the employer fails
892
00:37:37.380 --> 00:37:41.970
to meet its burden in stage two, and therefore I think-
893
00:37:41.970 --> 00:37:43.710
Then you're buying it.
894
00:37:43.710 --> 00:37:45.660
I thought you said that stage,
895
00:37:45.660 --> 00:37:48.210
so stage two means in your view,
896
00:37:48.210 --> 00:37:52.173
has to be the way CERB said it's the actual reason for.
897
00:37:53.130 --> 00:37:54.540
It doesn't have be the actual reason,
898
00:37:54.540 --> 00:37:56.160
but it has to be shown
899
00:37:56.160 --> 00:37:59.640
that a legitimate reason was considered
900
00:37:59.640 --> 00:38:01.060
as part of the decision
901
00:38:02.400 --> 00:38:04.413
and not just taken out of the air.