Zessin January 28, 2011 VIA FACSIMILE 617-626-7157 and FIRST CLASS MAIL Edward Srednicki, Executive Secretary Commonwealth of Massachusetts Division of Labor Relations 19 Staniford Street, 1 Floor Boston, MA 02114 RE: Holyoke Firefighters Assoc. and City of Holyoke DLR No: MUP-10-6102 Dear Mr, Srednicki: The parties have resolved this matter and the Union hereby withdraws the charge from the Division.

City of Holyoke, 35 MLC 153, 156, MUP-05-4503 (January 9, 2009). Once the charging party establishes a prima facie case, if the employer provides lawful reasons for the alleged discriminatory conduct, the charging party must then prove that but for the protected activity, the employer would not have taken the adverse action. Trustees of Forbes Library, 384 Mass. 559, 565-566 (1981).

City of Holyoke, 35 MLC 153, 156 (2009). To establish a prima facie case the Charging Party "must show that: (1) The employee engaged in concerted activity protected by section 2 of the Law; (2) the employer knew of the concerted, protected activity (3) the employer took adverse action against the employee; and (4) the employer's action was motivated by a desire to penalize or discourage the protected activity."

City of Holyoke, 35 MLC 153, 156, MUP 05-4503 (January 9, 2009). Even assuming Baker could establish the first three prongs of the necessary showing, there simply is no evidence in this case of unlawful motivation, as the Investigator found. The Investigator correctly stated that to establish this element, a charging party may rely on direct evidence or circumstantial evidence and reasonable inferences drawn from that evidence. Id. at 156.

City of Holyoke, 35 MLC 153, 156, MUP-04-4503 (Jan. 9, 2009); Town of Carver, 35 MLC 29, 47, MUP-03-3094 (June 30, 2008); City of Boston, 35 MLC 289, 291, MUP-04-4077 (May 20, 2009); Town of Clinton, 12 MLC 1361, 1365, MUP-5659 (Nov. 9, 1985). 9 Complaint and Partial Dismissal (cont'd) MUP-19-7777 1.

City of Holyoke, 35 MLC 156 (2009). 153, Here, the Union has met the first two elements of its prima facie case. Roche complained that the Commonwealth failed to provide call back pay and later filed a Complaint and Partial Order of Dismissal (cont'd.) SUP-13-3200 and SUP-14-3394 grievance with the Union on the matter. There is no dispute that the Commonwealth knew of these activities.

See City of Holyoke, 9 MLC 1876, MUL- 4955 (May 27, 1983), Further the Commonwealth Employment Relations Board has found that changes to the assignment of outside or non municipal details directly impacts "wages and hours" and are, therefore mandatory subjects of bargaining. Town of Winthrop, 28 MLC 200, MUP-2288 (January 4, 2002).

See City of Holyoke, 9 MLC 1876, MUL- 4955 (May 27, 1983), Further the Commonwealth Employment Relations Board has found that changes to the assignment of outside or non- municipal details directly impacts "wages and hours" and are, therefore mandatory subjects of bargaining. Town of Winthrop, 28 MLC 200, MUP-2288 (January 4, 2002).

See City of Holyoke, 9 MLC 1876, MUL- 4955 (May 27, 1983), Further the Commonwealth Employment Relations Board has found that changes to the assignment of outside or non- municipal details directly impacts wages and hours and are, therefore mandatory subjects of bargaining. Town of Winthrop, 28 MLC 200, MUP-2288 (January 4, 2002). See Notice of Dismissal dated November . 13. 2014 attached hereto as Exhibit D.

City of Holyoke, 35 MLC 153, 156, MUP-04-4503 (January 9, 2009). There is no dispute that Horsman participated in protected, concerted activity in his role as Union Vice President and by providing testimony at a hearing at the Department. Additionally, there is no dispute that the Commonwealth knew of this activity.

City of Holyoke, 35 MLC 153, 156 (2009). To establish a prima facie case the Charging Party must show that: (1) The employee engaged in concerted activity protected by section 2 of the Law; (2) the employer knew of the concerted, protected activity (3) the employer took adverse action against the employee; and (4) the employers action was motivated by a desire to penalize or discourage the protected activity.

City of Holyoke, 35 MLC 133 (1999). 153, 156 (2009) (citing Town of Dracut, 25 MLC 131, Massport simply asked Mr. Emerson questions regarding overtime, customer service, and the images of Officer Taylor; it did not take any adverse action against Mr. Emerson on January 25, 2012. Furthermore, Mr. Emerson does not assert that Massport interviewed him in retaliation for filing a charge with the Board. In fact, Mr.

City of Holyoke, 35 MLC 133 (1999). 153, 156 (2009) (citing Town of Dracut, 25 MLC 131, Massport simply asked Mr. Emerson questions regarding overtime, customer service, and the images of Officer Taylor as part of a lawful and necessary employer investigation into a variety of workplace activities by a variety of unit personnel; it did not take any adverse action against Mr. Emerson on January 25, 2012. Mr. Emerson cannot '?

City of Holyoke, 35 MLC 153, 156 (2009) (citing Town of Dracut, 25 MLC 131, 133 (1999)). With respect to the motivational element, the charging party must demonstrate in its prima facie case that protected activity played some role in causing the adverse action. Adrian Advertising, 13 MLC 1233, 1261 (1986), affd sub nom., Despres v. Labor Relations Commission, 25 Mass. App. Ct. 430 (1988); Boston City Hospital, 11 MLC 1065, 1071 (1984).

City of Holyoke, 29 MLC 97, 98 (2002). Deferral has been found to be appropriate where the alleged conduct is potentially both a violation of the law and a contractual violation, and where the parties have established mutually agreeable procedures for resolving such disputes. National Association of Government Employees, Local 495, 39 MLC 247, 249 (2013).

City of Holyoke, 35 MLC 153, 156, MUP-05-4503 (January 9, 2009); Quincy School Committee, 27 MLC 83, 92, MUP-1986 (December 29, 2000); Trustees of Forbes Library v. Labor Relations Commission, 384 Mass. 559, 565-566 (1981). A charging party may establish unlawful motivation through direct evidence, or circumstantial evidence and reasonable inferences drawn from that evidence. City of Holyoke, at 156.

City of Holyoke, 35 MLC 153, 156, MUP-05-4503 (January 9, 2009). Once the charging party establishes a prima facie case, if the employer provides lawful reasons for the alleged discriminatory conduct, the charging party must then prove that but for the protected activity, the employer would not have taken the adverse action. Trustees of Forbes Library, 384 Mass. 559, 565-566 (1981). Complaint and Partial Dismissal (cont.)