She has been a corrections officer/deputy sheriff for the Suffolk CountySheriff'sDepartment since October of 2002. Her record at the Department is unblemished; she has never been disciplined, has received high scores in her performance evaluations, comducted every six months, and has never received a poor rating related to judgment or decision-making.
Suffolk CountySheriffsDepartment, 27 MLC 155, MUP-1498 (June 4, 2001). To establish a prima facie case of retaliation, a charging party must show that: 1) the employee engaged in Section 2 protected, concerted activity; 2) the employer knew about it; 3) the employer took adverse action against the employee; and 4) a desire to penalize or discourage the protected activity motivated the employers action.
Suffolk CountySheriffsDepartment, 30 MLC 1 (2003); I & R Mechanical, Inc. v. Hazelton Mfg. Co., 62 Mass. App. Ct. 452, 455 (2004); Vieira v. First American Title Ins. Co., 668 F. Supp. 2d 282, 288 (D. Mass. 2009). Simply put, if the evidence is insufficient to find a meeting of the minds and that an agreement existed between the parties, no repudiation of the contract can be found to have occurred.
Suffolk CountySheriffsDepartment, 29 MLC 63, 68, MUP-01-2979 (October 9, 2002). Here, the Union has requested information specific to the Police Department's determination that reasonable suspicion existed to order Officer Doe to take a drug test.
Suffolk CountySheriffsDepartment, 30 MLC 1 (2003); Town of Ipswich, 11 MLC 1403 (1985). The DLR considers the totality of the circumstances in evaluating whether parties have reached a meeting of the minds. Town of Ipswich, 11 MLC 1403 (1985). The authority to act for and to speak on behalf of an employer is governed by the principles of agency. Lawrence School Committee, 33 MLC 90 (2006).
Suffolk CountySheriffsDepartment, 30 MLC 1, 6, MUP-2747 (August 19, The Board has long recognized that a meeting of the minds can occur without an agreement being Administration and reduced to writing Management or signed by either party. of the Trial Court, 35 MLC 171, Chief Justice 173, for SUP-04-5150 (January 30, 2009) (an oral agreement between a public employer and a union is effective and enforceable under the Law Employees International
The Town further relies on Suffolk County SheriffsDepartment, 27 MLC 155, MUP-1498 (June 4, 2001) arguing that counseling about job duties, without more, does not constitute adverse action and that Curran counseled, rather than reprimanded Kivlan. | am not persuaded by the Towns arguments. First, it is well settled that a disciplinary reprimand rather than a counseling session, constitutes adverse action.
Suffolk CountysheriffsDepartment, 27 MLC 155, 159 (2001). Circumstantial factors may include: the timing of the adverse action in relation to the protected activity, Town of Somerset, 15 MLC 1523, 1529 (1989); the insubstantiality of the reasons given for the adverse action, Commonwealth of Massachusetts, 14 MLC 1743, 1749 (1988); or the employer's divergence from longstanding practices, Everett Housing Authority, 13 MLC 1001, 1006 (1986).
Suffolk CountySheriffsDepartment, 27 MLC 155, 159 (2001). Circumstantial factors may include: the timing of the adverse action in relation to the protected activity, Town of Somerset, 15 MLC 1523, 1529 (1989); the insubstantiality of the reasons given for the adverse action, Commonwealth of Massachusetts, 14 MLC 1743, 1749 (1988); or the employer's divergence from longstanding practices, Everett Housing Authority, 13 MLC 1001, 1006 (1986).
Suffolk CountySheriffsDepartment, 27 MLC 155, 159, MUP-1498 (June 4, 2001). Finally, if the employer produces one or more lawful reasons for taking the adverse action against the employee, the charging party must establish that but for the protected activity, the employer would not have taken the adverse action. Id. Here, the Union satisfies the first three prongs of a Section 10(a)(4) case.
Suffolk CountySheriffsDepartment, 47 MLC 173 (Hearing Officer 2021). However, where the change is more than a slight departure, the CERB will not find the complained of action to be de minimis. Suffolk County SheriffsDepartment, 47 MLC 173 (Hearing Officer 2021). IV.
Compare Wakefield School Committee, 27 MLC at 10 (CERB noting that it is not uncommon for unions to file labor practice charges while actively pursuing the alleged contractual violation involving the same conduct through the parties grievance process.) with Suffolk CountySheriffsDepartment, 27 MLC 155, 159, MUP-1498 (June 4, 2001) (CERB holding that charge was not time-barred because the employers alleged adverse conduct punished employee on a dayto-day
Compare Cambridge Health Alliance, 35 MLC 157, 161 (2009) (continuing violation), and Suffolk CountySheriffsDepartment, 35 MLC 155, 158-59 (2001) (same), with Boston School Committee, 35 MLC 277, 285-86 (2009) (discrete and finite violation), and Town of Wakefield, 27 MLC 9, 10 (2001) (same); see also Boston Police Superior Officers Federation v. LRC, 410 Mass. 890, 893-94 (1991) (BPSOF) (laying foundational principles for the distinction).