Massachusetts Labor Relations Reporter

Management Commentary

By

Leo J. Peloquin, Esq. and Joshua R. Coleman, Esq.

Collins, Loughran & Peloquin, P.C.

 

When There is Any Doubt, Honor an Employee’s Request to Have Union Representation or Risk Having the Discipline Overturned

When an Employer has an employee in its sights for discipline, it is just plain foolish to deny the employee’s request for union representation even if theentitlement is not crystal clear. UMass learned this the hard way in Board of Trustees of the University of Massachusetts-Amherst and AFSCME COUNCIL 93, AFL-CIO, 40 MLC 426 (June 27, 2014), a case involving the discharge of an employee. UMass breathed a sign of relief when the Hearing Officer found a violation of the right to representation under c. 150E, but she did not order the reinstatement of the employee. This relief was short-lived. Acting on cross-appeals, the Commonwealth Employment Relations Board (CERB) ordered the employee reinstated with back pay and established a balancing test for future cases.

The Weingarten rule, established in a 1975 NLRB decision and long ago adopted by the Labor Relations Commission, gives employees the right to beaccompanied by a union representative at an investigatory interview that the employee reasonably believes could result in discipline. In Board of Trustees of UMass, Marcie Gallo O’Connor, a night manager at a UMass cafeteria approached a cafeteria worker, Carol Taylor, who had been disciplined on several prior occasions for verbally abusive behavior toward other employees. O’Connor told her she wanted to her her side of the story in yet another such complaint. Taylor asked for union representation, but O’Connor denied it, telling her that she would “take it further” if she didn’t speak with her. Their subsequent meeting turned nasty, with Taylor raising her voice and calling O’Connor a “nobody and a nothing.”

UMass fired Taylor for “repeated inappropriate workplace conduct, most recently when you engaged in verbally abusive behavior and disrespectful behavior towards

[O’Connor] and caused disruption in the workplace…”

The Hearing Officer ruled that the meeting O’Connor insisted on was investigatory and that Taylor reasonably believed that it might result in discipline. The Hearing Officer also found that UMass had a past practice of advising bargaining unit members about their right to have a union representative present at a meeting at which Weingarten rights attached. The Hearing Officer ruled that UMass violated sections 10(a)(1) and 10(a)(5). However, the Union’s request for Taylor’s reinstatement was rejected based on the Hearing Officer’s determination that there was no link between any information that O’Connor obtained during the interview and the reasons for discharging Taylor. The Hearing Officer reasoned that ordering reinstatement under the circumstances would set the precedent that an employee forced into an interview where Weingarten rights attached but were denied, could misbehave with impunity.

The CERB saw the case as an opportunity to establish a balancing test. It agreed with the Union’s argument that the proper standard to be applied waswhether there was a nexus between the discharge and the employee’s “conduct or information obtained during the interview.” Commission of Administration and Finance and Alliance, AFSCME/SEIU Local 509, 18 MLC 1020, SUP-3319 (August 8, 1991). (underlining added). However, CERB went on to make it clear that this does not mean that an employee has free reign to behave badly during an unlawful interview:”Therefore, in determining the appropriateness of a make-whole remedy in cases like this one,where a direct link is established between an employee’s intemperate conduct at an unlawful interview and the discipline imposed, (but where there is no allegation that the employee was disciplined for asserting Weingarten rights), the Hearing Officer should undertake further analysis to determine whether the employee’s behavior did, indeed warrant the discipline imposed, even though it occurred in the context of the unlawful interview. Any such inquiry should consider the context in which the behavior took place by balancing the extent to which the behavior that formed the basis for the discipline was caused or provoked by the employer’s unfair labor practice, against the right of the employer not to be subjected to egregious, insubordinate, or profane remarks the disrupt the employer’s business or demean workers or supervisors.” This is essentially the same test for when an employee loses protected status for what is arguably protected concerted activity. The CERB reasoned that Taylor had not lost protected status for a number of reasons, including that the conduct occurred behind closed doors and in the immediate aftermath of a compelled, unlawful interview under threat of discipline. While Taylor raised her voice and made inflammatory comments–calling Gallo was a “nobody and a nothing”—she was not profane or physically threatening. Therefore, while upholding the Hearing Officer’s finding of a violation, it ordered Taylor reinstated and made whole.

Supervisor Must be Thick-Skinned in the Face of Grievant’s Rude Behavior, But Employee Doesn’t Get Suspension Rescinded.

The employee in Commonwealth of Massachusetts and SEIU, Local 509, 40 MLC 297 (April 2, 2014) was also punished for conduct during a contentious meeting with management—this time a grievance hearing—-with a supervisor. In this instance, however, the Union won the battle but lost the war. The Hearing Officer found a c. 150E violation but declined to rescind the suspension.

In October 2011, the employee was issued a one (1) day suspension for unprofessional conduct. During the grievance hearing over the one (1) day suspension, the employee loudly and repeatedly demanded of the management representative to “be treated with respect.” There was also an animated debate over what grievance step the grievance was at. Subsequently, the Employer suspended the grievant for three (3) days for “yelling” at the management representative. The Union grieved that discipline and filed a charge that it was a 10(a)(1) violation.

The Hearing Officer ruled that, unless the employee made threatening remarks, used profanity or tried to intimidate the management representative, what the employee did was protected concerted activity. The Hearing Officer specifically noted that the employee “did not ball his fists, raise his hands or perform any gesture that could be reasonably construed as intimidating.”

The Hearing Officer found that the discipline chilled the employee’s exercise of his right to engage in the grievance proceeding, a 10(a)(1) violation., but declined to overturn the discipline, stating that the traditional remedy for such a violation was a cease and desist order and a posting and that was all he would impose.

CERB Consistent in its View That Employers Must Bargain With Current Employees Over Their Health Insurance Benefits When They Retire.

The City of Somerville continues to fight, but lose, its battle to convince the CERB that a municipal employer should not have to bargain with current employees over their health insurance benefits as retirees. City of Somerville et al and Somerville Teachers Association et al, 40 MLC 433 (June 27, 2014).

The latest dispute involved the City’s change in supplemental insurance plans offered pursuant to M.G.L. c. 32B, section 18 for employees who were eligible for the federal Medicare coverage and received their primary coverage from the federal plan. The supplemental coverage included Medex, Tufts Health Plan Medicare Preferred and Harvard Pilgrim Health Care First Seniority.

In a May 19, 2010 letter, the City notified participants in the Harvard Pilgrim First Seniority Plan that effective December 31, 2010, HP would no longer offer the First Seniority Plan but would offer in its place the Harvard Medicare Enhanced Plan. The difference in monthly cost was substantial ($235 to $393, or 67%). In addition, some co-pays increased significantly; emergency room visits went from $50 to $100. And the HP Medicare Enhanced Plan offered only one plan option, whereas First Seniority had three plan options with varying premiums and co-pays.

All of the changes were made without providing the Union with prior notice and an opportunity to bargain about the decision and impacts, as it affected future health insurance retirement benefits of current employees.

The City argued that supplemental Medicare health insurance contributions for retirees are not a mandatory subject of bargaining because of the Mayor’s authority and obligation under M.G.L. c. 32B, § 11C to negotiate the terms of supplemental Medicare coverage and because § 11C is not listed in § 7(d) of c.150E as a statute that could be superseded by the provisions of a collective bargaining agreement. The statute states in part:

Upon acceptance of this chapter as provided in section 10, the appropriate public authority of the governmental unit shall negotiate with and purchase on such terms as it deems to be in the best interests of the governmental unit and its active and retired employees and their dependents… who are eligible for coverage under the federal health insurance for the aged act (Medicare) from one or more insurance companies.a policy or policies of group general or blanket insurance to be known as optional medicare extension.

The CERB rejected the City’s argument, citing the long established c. 150E principle that changes to health insurance plans must be negotiated notwithstanding the absence of c. 32B from §7(d) because a statute not listed only prevails over contrary or conflicting provisions of a CBA is there is a material conflict. CERB found no conflict between the City’s duty under § 11C to negotiate and purchase supplemental Medicare benefits and the obligation to bargain changes.

The CERB also rejected the City’s argument that §11C fell within the category of statutes that did not implicate a bargaining obligation, Lynn v. Labor Relations Commission, 43 Mass. App. Ct. 172 (1997), because the City had never previously bargained about it. The CERB responded that that the statutory duty to bargain extends to terms and conditions of employment established by past practice, not just those included in a CBA.

The only good news for the City was that, because it has since enrolled in the Group Insurance Commission pursuant to the Massachusetts Health Insurance Act of 2011, there was only a closed period of damages. CERB ordered the City to make whole those bargaining unit members who retired after July 1, 2010 from the date they retired until January 1, 2012, the date the City started with the GIC.

The City has appealed this decision. It is already challenging a prior CERB decision that found that the City violated c. 150E when it unilaterally reduced its retire health insurance premium contribution percentage without bargaining over the decision and impacts on the future retirement benefits of currentemployees. Oral argument in that case, now before the Supreme Judicial Court, is tentatively scheduled to take place in October 2014. See City of Somerville v. CERB, SJC Docket 11620.

Isn’t This Just Good and Legal Bargaining Strategy?Hearing Officer Rules That It Is Retaliation For Employer To Exercise An Economic Management Right After Union Refuses Economic Concession If Employer Waived The Right.

Employers should shudder about the astonishing decision in City of Northampton and International Brotherhood of Police Officers, Local 390, 40 MLC 409 (June 16, 2014) which indicates that an Employer can be punished by using a clear contractual economic management right as a bargaining chip. More than two decades ago, the City had negotiated with its Patrol Officers Union protective language in case the Commonwealth underfunded the Quinn Bill. The language was clear: “It is further agreed that, should state funding for the “Quinn Bill” fall below the 50% reimbursement rate, the City of Northampton shall only be responsible for reimbursing eligible employees the City’s share.” The City had declined to exercise the right even after, in recent years, state funding for Quinn Bill benefits fell well below 50%.

Facing a $6 million budget shortfall for FY 2010, due in part to a 21 percent increase in health insurance, the Mayor began to lay the groundwork for placing a Proposition 2 1/2 override on the ballot. She announced to non-union employees that there would be a wage freeze for FY10. She asked unionized employees to forego the wage increase called for in their collective bargaining agreements, including asking the Patrol Officer so waive their negotiated 3% increase. The City Solicitor proposed that if the Patrol Officers would give up the 3%, and steps, for FY 2010, the City would agree not to layoff four employees and to continue to fully fund Quinn Bill benefits even without anywhere near the 50% reimbursement from the state. The Union voted the proposal down. In contrast, other unions representing police officers accepted a similar offer.

Ultimately, there were no layoffs because the override passed. However, the City exercised its right under the protective language in the CBA and paid only its 50% share of Quinn Bill in FY 2010. The Union learned that the City had paid other officers, including the Chief, 100%. When the Union inquired about the second half of payment for patrol officers, the response from the City’s Director Labor Relations was, “The Mayor confirmed that her position remains unchanged; [the Union] understood that by taking 3% and their steps, the second half year Quinn payment was not going to be available…”

Meanwhile, in negotiations for a July 1, 2010 – June 30, 2012 CBA, the City offered to pay 100% of Quinn Bill for the term of the Contract if the Union accepted two years with no percentage wage increase. Shortly after the email informing the Union that there would be no additional FY 2010 Quinn Bill payments, the Union accepted the City’s 2010- 2012 CBA proposal, including language that made it clear that its obligation to pay 100% Quinn Bill beyond June 30, 2012 “shall be the subject of future negotiations.”

Then, in October 2010, the Union sent a letter to the City demanding the City pay the second half 50% Quinn Bill payment that it did not pay in FY 2010.

The Hearing Officer viewed what the City did as retaliating against the Union for engaging in concerted protected activity-i.e., refusing to agree to forego the 3% wage increase and steps in the last year of their 2007-2010 Contract. The Hearing Officer stated that “The City’s divergence from its longstanding practice [of paying 100%] leads me to conclude that that the City’s non-payment of [the Quinn payment] was motivated by animus.” She agreed that the contract language gave the City a legitimate, non-discriminatory reason for doing what it did, but then concluded that the City would not have taken the action but for the Union’s protected concerted activity. She relied on the fact that other unionized police officers had been paid full Quinn in FY 10, in return for wage concessions.

The Hearing Officer summarily dismissed the City’s obvious defense that it did not pay full Quinn in FY 2010, because the express language in the CBAdidn’t require it to— even though she agreed that the language gave the City that very right. She also acknowledged the SJC’s Quinn Bill decision in Adams v. City of Boston, 461 Mass. 602 (2012) in which the Court ruled that the Quinn Bill statute only required a municipality to pay 50% plus whatever the Commonwealth provided for a reimbursement, but that a municipality could choose to pay more. She also made it clear that her decision was affected by her determination that the City had the money to pay because the override had passed. In the end, she said that the City’s failure to pay the Patrol Officers 100% was punitive and ordered the City pay the 50% Quinn Bill payment that it didn’t pay in FY 2010, with interest. .

City Manager is Required to Continue to Press For Funding of a JLMC Award Even When The City Council Is Against It.

In City of Chelsea and Chelsea Firefighters, 40 MLC 353 (May 29, 2014), the CERB affirmed the Hearing Officer’s decision that the City Manager failed to support funding for the cost items in the Joint Labor Management Committee (JLMC) Firefighters Contract awards CFaward, when the City Council voted on a resolution to go back to the bargaining table for further contract negotiations after the JLMC award was issued.

On February 7, 2013, the JLMC issued its Firefighters Contract award. On February 25, 2013, the City Manager supported the award by submitting a request to the City Council to fund the award. On March 11, 2013, the Council asked the Manager what their options were concerning the JLMC award. He that they could vote to fund the Award, not fund the Award or “do something in between.” On March 14, 2013, the Manager advised the Union that the Council would be considering a resolution to meet to negotiate a new contract which did not include a financial order to fund the contract. At the Council Meeting on March 18, 2013, the Council approved a resolution to the bargaining table without funding the award. The Manager did not speak further in support of the award.

The Hearing Officer and CERB found that the Manager had an obligation to speak up again in support of funding at the meetings in which the Council was considering and voting on a resolution not to fund the award. The DLR cited a Worcester School Committee, 5 MLC 1080 (1978) where the former Labor Relations Committee held that once a School Committee was informed that the legislature would not likely fund the contract, the committee’s failure to seek alternative methods of funding violated Section 10(a)(5). The Hearing Officer noted, “the obligation to seek funding is not static; it requires more than token efforts, and it compels employers to take affirmative steps, indeed, all steps necessary – to obtain funding to implement the cost items of an agreement.”

Ultimately, before the case was hear, the Council voted to fund the award. But the DLR rejected the City’s argument that the issue was moot because, “even though the conflict giving rise to the unfair labor practice may have ceased, the cessation of the City’s unlawful conduct cannot be attributed to the parties’ conduct, especially given that the [City Manager] never corrected his actions or acknowledged wrongdoing….changed circumstances that make a need for a complaint less urgent than when first issued do not automatically moot a complaint.”

School District Required to Honor Past Practice of Granting Pay Raises After Contract Expired.

The decision in Stoughton School Committee and Stoughton Teachers Association, 40 MLC 322 (May 21, 2014), provides a reminder to Employers that, where there is an established past practice of granting step increases after a contract expires, even where the CBA has no evergreen clause, an Employer must bargain to change the practice.

From 1981 through 2011, with the exception of two rounds of bargaining, the Committee had continued to grant step increases after the prior CBA had expired. In the one instance when it did not, the Union had filed a charge which was later withdrawn when the Contract was settled, with retroactive step increases included in the settlement. In the face of that history, the Committee refused to provide step increases when the 2010-2013 contracts expired.

The DLR noted that, “[e]stablished terms and conditions of employment in effect at the time that a contract expires constitute the status quo, which an employer cannot change without satisfying its bargaining obligation.” Town of Chatham, 28 MLC 56 (2001). The Hearing Officer found that the employer violated Chapter 150E and ordered the school district to restore the past practice of advancing eligible bargaining unit members on the salary grid and awarded retroactive pay with interest.

This decision was part of a nasty dispute between the Committee and the Union, and the Town, during which the Union filed a lawsuit against the Committee and the Town Manager that included a claim for treble damages and attorneys’ fees. Fortunately, the parties settled the Contract, and all of the attendant litigation, in early July, 2014. The reported settlement included a waiver of the interest ordered in this decision.

An Arbitrator’s Authority to Modify Teacher Discipline Where Employer Proves Facts Supporting Discipline May be a Problem of the Past.

In Millbury School Committee and Millbury Teacher’s Association, 40 MLC 342 (May 23, 2014), a DLR arbitrator reduced a four (4) day suspension to a written warning even though the Arbitrator found the teacher engaged in inappropriate and discourteous conduct. But school employers may not have to live with decisions like this, in the wake of the recently issued Supreme Judicial Court decision in Zagaeski v. Lexington School Committee, 469 Mass. 104 (July 14, 2014).

In the Millbury case, a long-term teacher observed a student running by her in the hallway while on the way to report to an assembly regarding student elections. The students were noisy and excited and one (1) student said “Yahoo!.” As another student rushed from the back of the classroom to the front, she yelled in the teacher’s face loudly, “Yahoo!” The teacher put his hand out to detain the student and briefly wrapped his right hand around the student’s wrist to stop her. The teacher said, “why do you always have to act foolish and be the loudest.” The student walked away, but reported the incident to her parents. The principal interviewed the teacher who admitted to touching the student.

The school district suggested that the parent and teacher sit down together to discuss the incident. After the parent refused to meet and instead filed a written complaint, the school district commenced a full investigation and interviewed several students who witnessed the interaction. The principal recommended that the teacher be suspended for two (2) days citing another teacher receiving the same discipline for pushing a student’s hands down for making raccoon eyes. After the teacher rejected a two (2) day suspension to resolve the matter, the district issued a four (4) day suspension.

The Arbitrator found that the teacher engaged in misconduct which provided “sufficient reason to impose discipline” for violation of the Handbook which requires teachers to demonstrate a “professional, cooperative, knowledgeable and courteous demeanor in all interactions with student.” However, the Arbitrator reduced the suspension for several reasons. The School District improperly relied on a non-precedential settlement agreement with another employee. An employee’s decision to reject a settlement offer is not grounds for either disciplinary action or increasing the level of the suspension (from two days to four days). And, the Arbitrator found that the district’s initial decision to conduct an informal meeting between the parent and teacher suggested that they were “underwhelmed” by the incident and the district only chose to pursue disciplinary action, after the parent filed a complaint.

We question whether this Arbitrator’s decision would be upheld on appeal. In the Supreme Judicial Court’s (SJC) recent decision in Zagaeski to Lexington School Committee, a long-term male teacher admitted that, on two separate occasions he had made inappropriate remarks to a female high school student to the effect that it would take sexual favors for the student to get a better grade The Superintendent dismissed the teacher for conduct unbecoming a teacher. An Arbitrator found that the misconduct had occurred but reduced the dismissal to a written warning because of the teacher’s long service record and his determination that it was nominal misconduct. In reinstating the dismissal, the SJC held that the Arbitrator exceeded the scope of his authority under M.G.L. c. 71, § 42 because the Arbitrator found that the teacher had engaged in conduct unbecoming, one of the grounds enumerated in the statute for dismissal. While Zagaeski involved statutory arbitration, we would argue that the same standard should apply to teacher misconduct arbitrated under the provisions of a CBA. In addition, to the extent that the Arbitrator’s decision in this case relied on anything discussed in settlement discussions violates the well-established principle that settlement discussions are not admissible.

Managerial Rights Don’t Allow Change in Work Conditions While Negotiating a Contract With a New Bargaining Unit.

The DLR rejected the Boston School Committee’s argument that it could add job duties to a newly formed bargaining unit of Applied Behavioral Analysis Specialists (“ABA Specialists”) between the time the unit was certified and before the parties had negotiated their first CBA. Ironically, the job duties added were also performed by a separate bargaining unit of paraprofessionals into which the Union had sought to have the ABA Specialists accreted. The Committee had successfully objected to the accretion petition on the basis that it was contract barred.

The Committee assigned some of the ABA Specialists to perform classroom paraprofessional duties for part of the school day, something it had not previously done. The Committee relied on the “Managerial Conditions of Employment” which had governed the ABA Specialists when they were not in a Union. The “Managerial Conditions” required them to perform “other duties and assignments as requested by supervisors.” The Committee further argued that paraprofessional work was already part and parcel of ABA Specialists’ job duties.

The Hearing Officer found that, while there may have been an overlap in duties in some discrete scenarios in the past, the ABA Specialists had never been required to perform paraprofessional work exclusively. With respect to the “Managerial Conditions of Employment,” the Hearing Officer ruled that they could not be relied on to trump the principle that an Employer is required to maintain the status quo while the parties negotiated their first contract.”

Better Late Than Never Isn’t a Defense When it Comes to Union Information Requests.

The Boston School Committee got scolded twice in a week in separate decisions for its long delays in responding to information requests by the Boston Teachers Union. There was no dispute that the information was relevant and necessary for the Union to perform its function as the exclusivebargaining representative. In Boston School Committee and Boston Teachers Union, 40 MLC 402 (June 13, 2014), the delay was 15 months. In Boston School Committee and Boston Teachers Union, 40 MLC 384 (June 9, 2014), the delay was five months, and produced only a few days before the hearing. The Committee had also failed to provide some information requested by the Union on the basis that the employee asked for it did not have it. In finding a 10(a)(5) violation, the Hearing Officer stated that it was “simply not plausible” that the information that was not produced was not within the Committee’s control even if the individual employee to whom the request was made did not have it. Further, the Committee’s delayed production of information that it did have did not comply with its obligation to provide information that is relevant and reasonably necessary to a union in the performance of its duties.

City’s Personnel Director Does Have the Authority To Accrete a School District Employee into a Joint Department Without the School District’s Approval

In City of Gloucester and AFSCME, Council 93, 40 MLC 359 (May 30, 2014), the DLR Hearing Officer ruled that an agreement between the City’s Personnel Director and the Union to accrete a school district employee into a bargaining unit of City employees is not binding on the school district.

The Manager of School Transportation (“MST”) has always been a school district position. In 2010, the School Committee, City and Union entered into an agreement that transferred responsibility for the cleaning, maintenance and repair of school buildings and grounds from being an exclusive function of the school district to a centralized facilities and maintenance department under the City’s jurisdiction. The MST position was not transferred to this centralized department as part of this agreement.

In 2012, the Union alleges that the Personnel Director agreed to include the MST position in the centralized maintenance department. In response, the Superintendent advised the Union that the school district would not agree to accrete the MST position into this department. The Union then filed a petition with the DLR to accrete the MST position into the City unit

The DLR held that, as a matter of law, the City’s Personnel Director is not an agent of the School Committee and did not have the authority to bind the Committee. The school district is the employer for the MST in accordance with G.L. Ch. 150E Section 1.

Employer Must Bargain Before Requiring Computer Operator to Take Even A Short Walk to a Second Work Location.

In City of Lynn and AFSCME, Council 93, 40 MLC 405 (June 13, 2014), the School Committee posted and filled a computer operator position (Personnel Office) that would be assigned work at two different sites. It had been several years since the computer operator position had actually worked at two different job sites. The last time any employee had been in a dual site computer operator position was 2009 and that position had been abolished. But in early 2012, the City posted a computer operator position that would be based primarily in the Personnel Office, but could also be required to work in the Data Center. From February 2012 to August 2013, the employee had to make the five minute walk across the street from the Personnel Office to the Data Center about 10 times. In August 2013, the Personnel Office moved to a different location that was a 20 minute walk from the Data Center but, at the time of the DLR hearing, the computer operator had never had to walk to the Data Center.

The City argued that it did not actually change the work location for the computer operator position. Rather, it had simply established a new position. But the DLR found that the Committee had unilaterally changed a practice by requiring the newly hired computer operator to work in two locations. It ordered the City to stop requiring the computer operator to change work locations until it had met its bargaining obligation.

Pro Se Employee Proves to DLR that Employer Discriminated Against Her for Engaging in Protected Concerted Activity and Forces the Posting of A Position That Fits Her.

You don’t see this everyday. The petitioner in Somerset School Committee and Lorrie Pierce, 40 MLC 333 (May 22, 2014) disproved the saying that anyone who serves as their own lawyer has a fool for a client. Lorrie Pierce prevailed in her claim against the Committee that the school district had retaliated against her for filing a grievance.

Employed since 2001 as a paraprofessional in kindergarten and first grade, Pierce was granted a medical leave of absence in for the last part of the 2009-2010 school year, returned in August, but then went was granted another medical leave in October which continued through the end of the 2010-2012 school year. The dispute arose when Ms. Pierce notified the Committee in August 24, 2012 that she wanted to return for the 2012-2013 school year to her last position as a kindergarten paraprofessional at the Wilbur School. The Committee met with her and instead offered her a paraprofessional SPED position at the Chace School and gave her until October 1 to accept it. She immediately filed a grievance with the Union over not getting the position that she sought. On September 28, 2012, she turned down the Chace School position.

After she rejected the position offered by the Committee, the Superintendent had her recorded as voluntarily resigning her employment with the school district. In July, 2013, it deleted her email account. But it kept open active email accounts of six other employees who had retired or resigned during the 2012-2013 school year. And the Administration never told Pierce of her change in status until July, 2013. The Union responded to the news by telling the Administration that it considered Pierce still employed.

From January-July 1, 2013, the District filled five (5) paraprofessional positions in various schools. Two were posted at the Wilbur School, although the postings were silent about the specific assignment. Eventually, one was filled as a SPED kindergarten assignment and one was filled as a General Education kindergarten assignment, the position Pierce had last held with the school district. But the posting for the General Education kindergarten position, filled in July, 2013, had been tweaked to add a qualification requirement that Pierce didn’t meet; the applicant had to have a “preference in working with special needs students.”

Having been shut off, Pierce was unable to access her school email account to get the two paraprofessional postings for Wilbur School. She got a look at the postings by other means, but she was confused about whether the assignment would be for a General Education kindergarten classroom, a SPED kindergarten classroom or both. She ended up missing the application deadline. She contacted the Union to protest the posting process and the Union contacted the Superintendent. The Superintendent went over the paraprofessional assignments at Wilbur School with the Union. He also informed the Union that, once a certain employee retired, the District would post that position and Pierce could bid on any job in the District. But the District did proceed to fill the General education classroom paraprofessional position at Wilbur School.

In September, 2013, the Superintendent appointed another individual to a Title I paraprofessional assignment at the Wilbur School. Again, it included a qualification of “preference in working with special needs positions.” The Union filed a grievance alleging that the position had been filled without a proper posting. In October, the Committee conceded that it had violated the posting process and it re-posted. The individual who had already been appointed to the position was among the 20 applicants.

Pierce argued that the Administration’s actions constituted adverse action against her . The District argued that there could be no adverse action against Pierce to support a retaliation claim because Pierce was not an employee of the District after she rejected the Committee’s offer of the Chace School paraprofessional assignment on September 28, 2012, when it recorded her rejection as a voluntary resignation. The District also argued there was no adverse action against her by deleting her email account and taking her name off the faculty list, because she did become aware of postings by other means.

The Hearing Officer found that the decision to change Peirce’s employment status to a voluntary resignation without notifying her in writing , and all that flowed from it (deleting her email account, taking her off the list of faculty, etc.) was adverse action, including because it made it more difficult for her to get access to postings. The Hearing Officer also concluded that, given the Superintendent’s knowledge that Pierce did not want to work in a SPED setting, the Administration’s decision to post the Wilbur School paraprofessional position with the “preference to work with SPED students” qualification was an adverse action

The Hearing Officer found the timing of the Administration’s actions more than coincidental. The Superintendent had changed Pierce’s employment status just four days after she filed a grievance over not being returned to the position she left when she went on an approved medical leave and deleted her user email directory just three days after the arbitration for that grievance. She also noted that, while it was customary to do deletions from the user email directory at the end of the school year (a low priority task), the Superintendent had specifically instructed that Pierce’s email directory be deleted ignoring the fact that accounts of other non-union former employees remained active.

According to the Hearing Officer, but for the pursuit of her grievance for not being restored to the position she left when she went on an approved medical leave, Pierce would not have suffered all of the consequences described above. The Hearing Officer ordered the Committee to rescind the Wilbur School paraprofessional posting and repost a new vacancy that excluded the SPED preference qualification and to give Pierce an opportunity to apply for that job. She also ordered the Committee to restore Pierce’s name to the faculty list and restore her email account. Fortunately for the Committee, the Hearing Officer rejected Pierce’s request for any monetary award.