City of Newton v. Commonwealth Emp't Rel. Bd.

235 N.E.3d 304

104 Mass.App.Ct. 203

CITY OF NEWTON

v.COMMONWEALTH EMPLOYMENT RELATIONS BOARD.¹

No. 23-P-455

Appeals Court of Massachusetts, Suffolk.

Argued January 12, 2024

Decided May 22, 2024

Commonwealth Employment Relations Board. Employment, Retaliation. Labor, Police, Unfair labor practice. Practice, Civil, Prima facie case, Presumptions and burden of proof. Municipal Corporations, Police, Unfair labor practice. Public Employment, Police, Transfer. Police, Assignment of duties.

Appeal from a decision of the Commonwealth Employment Relations Board.

Jaclyn R. Zawada, Assistant City Solicitor, for the plaintiff.

Lan T. Kantany, Springfield, for Commonwealth Employment Relations Board.

Alan H. Shapiro, Boston, for the intervener.

Present: Vuono, Wolohojian, & Ditkoff, JJ.

WOLOHOJIAN, J.

₂₀₃This appeal involves a claim of retaliation for ₂₀₄engaging in union activity, in violation of G. L. c. 150E, § 10 (a) (3).² More specifically, the Newton Police Superior Officers Association, MassCOP Local 401 (union) claims that a sergeant in the Newton police department (department), John Babcock, was transferred from a day shift in the traffic bureau to a night shift in the patrol division in retaliation for his participation in protected union activities. After a three-day evidentiary hearing, a hearing officer of the Department of Labor Relations (DLR) found that the union failed to prove that the city of Newton (city) would not have transferred Babcock but for his protected activity. Instead, the hearing officer found that the city’s primary reason for transferring Babcock was his unprofessional conduct in having a verbal altercation with a subordinate, together with earlier issues concerning Babcock’s performance. The union appealed the hearing officer’s decision to the Commonwealth Employment Relations Board (CERB). CERB reversed on the ground that the city failed to meet its burden of producing evidence of a nonretaliatory reason for the transfer. In other words, CERB concluded that the city failed to meet its burden of production at the second stage of the familiar burden-shifting framework used in cases where, such as this one, there is no direct evidence of retaliatory motive. See Trustees of Forbes Library v. Labor Relations Comm’n, 384 Mass. 559, 561, 428 N.E.2d 124 (1981) (Forbes). On that basis, CERB did not reach the question whether the union met its burden of proving that Babcock would not have been transferred but for retaliation.

The city has appealed CERB’s decision and raises three issues. First, the city argues that at the first (prima facie) stage of the burden-shifting analysis, the union was required to establish, among other things, that Babcock had a generally good work record, see Forbes, 384 Mass. at 565 n.4, 428 N.E.2d 124, and that the union failed to meet that burden. Second, the city argues that Babcock’s transfer from a day shift to a night shift was not an adverse employment action because it carried an increase in pay. Third, the city argues that CERB erred in finding that the city failed to ₂₀₅prove that its lawful reason for the transfer was a motive for Babcock’s transfer.

We conclude that CERB correctly determined that the union was not required to prove a generally good work record at the prima facie stage of a retaliation claim under G. L. c. 150E. The correct legal standard at the prima facie stage of a c. 150E retaliation claim is that (1) the employee engaged in concerted protected activity, (2) the employer knew of that activity, (3) the employer took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse action. But we also conclude that CERB mistakenly applied the wrong standard for determining what constitutes an "adverse employment action" in c. 150E cases. We also conclude that CERB erroneously overlooked the significance of the terms of the collective bargaining agreement (CBA) between the city and the union in determining whether Babcock’s transfer to a night shift constituted an "adverse employment action." In claims brought under c. 150E by public employees who are union members, such as this one, the terms and conditions of employment must be assessed in the context of those conditions as negotiated in the CBA. Here, Babcock received the negotiated pay raise associated with assignment to a night shift as provided for in the CBA, and he did not prove any other change to the terms and conditions of his employment. Although we do not foreclose the possibility that a union member’s reassignment from a day shift to a night shift (or vice versa) may, upon an appropriate factual showing, constitute an adverse employment action, no such showing was made here. Finally, CERB erred in concluding that the city failed to meet its stage two burden of production on the ground that the city did not come forward with direct evidence of the reasons for Babcock’s transfer. The city could -- and did -- meet its stage two burden by producing circumstantial evidence. We accordingly reverse.

Background. With the exception of one finding regarding the amount of the pay differential (which we set out in the margin),³ neither side argues that any of the hearing officer’s extensive written findings was not sufficiently supported by the evidence. See Brookfield v. Labor Relations Comm’n, 443 Mass. 315, 321, 821 N.E.2d 51 ₂₀₆(2005). Indeed, our own independent review of the hearing transcript and exhibits confirms that all of the hearing officer’s subsidiary findings (with the exception of that same finding) were amply supported by the evidence adduced during the three-day evidentiary hearing she conducted. Those findings were based not only on the evidence, but also on the hearing officer’s observation of the demeanor of the witnesses. With that background in hand and reserving certain facts for later discussion, we summarize the hearing officer’s findings, supplemented by certain undisputed facts, pertaining to the charge that Babcock was transferred to the patrol division in retaliation for his union activity.

Babcock was hired as a patrol officer in 1987, and some time thereafter, he was assigned to the traffic bureau. On October 6, 2009, Babcock was promoted to the rank of sergeant in the traffic bureau,⁴ where (among other things) he supervised safety officers, traffic officers, and civilian employees who worked within the traffic bureau. Over time, Babcock worked different shift schedules. That said, from 2016 to 2018, Babcock worked a 7 a.m. to 3 p.m. shift, Monday through Friday, with weekends off.

The traffic bureau handles special events, such as road races, as well as road construction projects. From 2012 to 2017, Babcock was involved in contacting the detail office to staff officers for police details relating to special events. However, in 2017, after there were issues with this arrangement, the chief of police, David MacDonald, appointed Lieutenant Daniel Walsh to oversee all details.⁵ As part of this change, Babcock was instructed to direct detail staffing questions to Walsh and not to offer opinions on the staffing of details. Notwithstanding these instructions, Babcock had a conversation with a contractor about an upcoming line painting project. Babcock contended that the conversation pertained solely to whether the street should be closed during the painting project. On the other hand, the contractor said that Babcock made a recommendation regarding the number of detail officers to use for the project. Walsh informed Babcock that ₂₀₇Babcock’s staffing plan unnecessarily increased the number of detail officers and had a negative effect on the day shift. In addition, Walsh reminded Babcock that recommendations for detail staffing were to come to him (Walsh). In November 2017, Babcock was reminded again of these instructions, although it is not clear what prompted the need for the reminder at that time.

Approximately four months later, on March 9, 2018, Parking Control Officer Dorothy Crowley requested to speak with Babcock, who was her supervisor. Crowley wished to speak with Babcock about a past incident relating to the vandalization of her bicycle, which she believed was caused by someone at the department. She also alleged that her coworkers had vandalized her car by carving "rat" into a side panel. During the interaction, both Babcock and Crowley raised their voices and became upset. The verbal altercation was loud enough that it could be heard in some detail by those who were present in the traffic bureau at the time and disrupted the workplace. Ultimately, Crowley left in tears and was placed on administrative leave. She has never returned to work.

When informed of this episode, the police chief instructed Lieutenant George McMains to inquire further and to collect statements from all officers who had been present when the exchange between Babcock and Crowley took place. McMains followed this instruction and collected numerous statements including ones from Babcock and Crowley. Crowley stated that she asked Babcock why he had not written a report about the past incidents, and he then raised his voice and yelled at her, "Don’t put this on me, that was your decision, not mine." Crowley went on to write that she told Babcock, "I can’t go or working where I don’t feel safe and without help from my bosses. I’m working in a police station. I should feel safe here and I don’t." Crowley told Babcock that she was "done and could not take this anymore."

McMains wrote an investigative report, dated March 23, 2018, in which he concluded that Babcock had violated the department’s code of conduct concerning courtesy ⁶ because, as a supervisor, he could have conducted the discussion in private out of ₂₀₈earshot of other employees but had instead allowed the disruptive behavior to take place with no regard for the fact that other employees could hear the interaction.

One week later, on March 30, 2018, the police chief wrote a...