MacLean Holloway Doherty & Sheehan, P.C. 8 Essex Center Drive Peabody, MA 01960 Mark Hickernell, Esq.

One Essex Green Drive, Suite No. 2 Peabody, MA 01960 (978) 531-5080 jpslatterylaw@gmail.com 3

The Committee contends that because the Saltonstall teachers were receiving a differential for the extra time, the reduction of that differential on a per diem basis does not violate the law. 147 Russell Street Peabody, MA 01960 (978) 532-2060 BBO# 21880 Dated: CERIFICATE OF SERVICE I, Daniel B.

Kulak 147 Russell St., Peabody, MA 01960 978-532-2060 ;7 Method of Service In hand First Class Mail Other (specify): Telephone Num / Z Seti elt 13-93 7~ The Division does not discriminate on the basis of disability in access to its services. Inquiries, complaints or requests, including requests for auxiliary aids and information regarding access features should be directed to the ADA Coordinator (617) 626-7132.

See e.g., City of Peabody, 28 MLC 281, 284-285, MUP-2162 (March 6, 2002) (in the absence of evidence that a counseling letter is punitive, warns the employees of adverse action, or otherwise negatively impacts employees wages, hours or other terms and conditions of employment, it is not an adverse action sufficient to satisfy the requisite element of a prima facie case of unlawful discrimination).

City of Peabody, 28 MLC 284 (2002)(citing Town of Dracut, 25 MLC 131, 133 (1999) and Suffolk County Sheriff's Department, 27 MLC 155, 159 (2001)). According to the CERB, there must be a significant detriment to [the workers] career, job benefits or salary. City of Boston, 2009 WL 1740195 at *6, MUP-04-4077 (May 20, 2009).

Maiden MA 42 Draper Ave [Mansfield MA 726 Akhter Farida $5,436.00 240 Charlesbank Way Waltham MA jBabatunde Joseph $10,490.00 186 2 Reed Road Peabody MA jean Jonathan $5,436.00 240 370 Amory St Jamaica Plain MA = Abdoul Alpha $5,436.00 240 15 Desmarais Ave Pawtucket RI fearreiro Carlos $5,436.00 240 1#3 Dorchester MA [Bowers Dorothy $3,052.92 78 85 Esmond St.

Town of Bolton, 32 MLC 20, 25 (2005), citing, Town of Dennis, 29 MLC 79, 83 (2002); City of Peabody, 25 MLC 191, 193 (1999). In City of Peabody, the city's agent threatened to suspend an employee if that 23 employee brought union representation to the agent's office again in the future. Id. at 192. The CERB found that the remark by the city's agent clearly conveyed displeasure with the employee's decision to exercise Section 2 rights.

In City of Holyoke, 9 MLC 1876 (1983), MUP- 3 4955 (May 27, 1983), the CERB determined that an employers threat to discipline an employee 4 if he sent a proposed letter to third parties regarding working conditions violated Section 10(a)(1). 5 Similarly, in City of Peabody, 25 MLC 191, 193, MUP-9861 (May 21, 1999), the CERB 6 determined that a statement by an agent of the city that an employee would be suspended if he 7 ever brought a union representative

City of Fitchburg, 22 MLC 1286, 1292 (1995); City of Peabody, 25 MLC 191, 193 (1999). The union has the burden to demonstrate a violation of Section 10(a)(1) by a preponderance of the evidence. Town of Winchester, 19 MLC 1591 (1992). The MMEA has not and cannot meet its burden to demonstrate interference, restraint, or coercion in this case.

See, e.g., City of Peabody, MUP-09-5739 (H.O. 2/5/2003). As reviewed in detail in the Section III (FACTS) above, the practice, whether the Citys managers chose to notice the MMEA employees wearing jeans on Fridays, was nonetheless well established and reaffirmed with each contract. In addition, it is important to note the evidence of intentional ignorance. For example, Ms. Elliss 2004 interaction with Ms. Monfalcone demonstrates that Ms.

City of Peabody, 9 MLC 144, MUP-4750 (November 17, 1982). Here, the Union argues that the Employer's failure to provide the Union with its own office is a unilateral change in a mandatory subject of bargaining. The Employer continues to provide the Union with meeting space on Mondays and a space for the Union to keep its files.

City of Peabody, 28 MLC 281, 284, MUP-2162 (March 6, 2002). Similarly, Chief Towle questioning Green regarding a work assignment does not constitute an adverse action. Chief Towle asked Green about the status of the district wide emergency plan, which Green was responsible for drafting.

City of Peabody, 9 MLC 1447, 1452 (1982); City of Leominster, 3 MLC 1582 (1977). The duty to bargain extends both to conditions of employment established through past practice and to conditions of employment that are established through a collective bargaining agreement. Town of Lexington, 37 MLC 227 (2011).