Labor & Employment Law Daily Wrap Up, RETALIATION—Mass. Sup. Ct.: Involuntary shift transfer was adverse employment action despite pay raise under CBA, (May 29, 2025)

By Ronald Miller, J.D.

The fact that the CBA made a transfer from day shift to night shift more palatable by including a pay increase for the latter is a factor to consider, but it does not erase the material disadvantage of the transfer as a matter of law.

Substantial evidence supported the decision of the Commonwealth Employment Relations Board (CERB) that the City of Newton’s involuntary transfer of an employee objectively constituted an adverse employment action, despite the pay raise he received consistent with a collective bargaining agreement, ruled the Massachusetts Supreme Court. The state high court declined to adopt a rule that would allow an employer that takes materially disadvantageous action against an employee in retaliation for union activity to evade the protections provided in Mass. Gen. Laws ch. 150E, § 10 (a) (3), because the employer also complied with the terms bargained for as part of a CBA (City of Newton v. Commonwealth Employment Relations Board, No. SJC-13655 (Mass. Sup. Ct. May 22, 2025)).

In 2012, the employee applied for, and received, a promotion to a sergeant specialist position in the police department’s traffic bureau. During his six-year tenure as a traffic sergeant, the employee worked regular daytime hours Monday through Friday, with weekends and holidays off.

Union activities. Following his promotion to traffic sergeant, he continued to be active in union-related activities. In that role, over the years he had several disputes with the city’s chief of police. In 2014, the employee was elected to serve as the vice-president of the superior officers’ union and was the union’s negotiator for contracts with the city.

In 2016, the employee became the union’s president. During contract negotiations, the police chief swore at the employee and threw a document at him. A second dispute between the employee and the police chief also arose in 2016 after the chief informed the employee that he planned to change the city’s policy regarding the use of special leave. In response, the union threatened to file an unfair labor practice charge. The city did not implement the proposed change.

In 2017, the employee continued his union-related activities, leading to some disputes with the police chief. In his capacity as a union official, the employee accompanied a bargaining unit member to a meeting during which the police chief placed the member on paid administrative leave and ordered the member to take a psychological test. The employee contested the chief’s authority to order the test.

Disciplinary action. In 2018, the employee was disciplined after he engaged in a heated exchange with one of his subordinates in the vicinity of other police department employees. Following an investigation, it was determined that the employee should not have allowed or engaged in disruptive behavior in the presence of other employees.

On the same day that the reprimand was issued, the employee filed an unrelated grievance alleging that the police chief violated the CBA by delaying the process of placing a different sergeant on injury status by 42 days, failing to pay the sergeant overtime, and forcing the sergeant to work additional days.

Involuntary transfer. On April 23, 2018, the police chief involuntarily transferred the employee from his position as a specialty sergeant working regular daytime hours with weekends and holidays off to a sergeant position working irregular nighttime hours, weekends, and holidays. Pursuant to the CBA, the employee received an eight percent pay increase for working nights. At the time of the transfer, several union-related disputes between the employee and the police chief were pending.

Prohibited practice charge. The union filed a charge of prohibited practice alleging that the city violated Mass. Gen. Laws ch. 150E, § 10 (a) (3). A hearing officer determined that, while the employee’s transfer was an adverse employment action and he had shown a prima facie case of retaliation, the city had rebutted the presumption of retaliation by producing evidence of the employee’s insubordination and misconduct. Accordingly, the hearing officer concluded that the employee’s transfer was not in retaliation for his union-related activities and dismissed the complaint.

On appeal to the CERB, the Board agreed that the union had shown that the transfer was an adverse employment action and that the union had met its burden to establish a prima facie case of retaliation. However, the Board disagreed with the hearing officer’s conclusion that the city had shown that the reason for its decision to transfer the employee was his insubordination and misconduct. The CERB reversed the hearing officer’s dismissal of the complaint and ordered that the employee be placed in the same position he would have been in had the transfer not occurred. The city appealed.

Pay increase. In Newton v. Commonwealth Employment Relations Bd., 104 Mass. App. Ct. 203, 214-215 (2024), the appeals court determined that, because the employee had received the increase in compensation required under the CBA, his transfer from daytime to nighttime duty was not an adverse employment action, as a matter of law. Accordingly, the appeals court concluded that the union had not met its burden to show a prima facie case of retaliation under the first stage of the burden-shifting protocol. The CERB and the union applied for further appellate review.

Retaliation claim. Retaliation claims under Mass. Gen. Laws ch. 150E follow the three-stage, burden-shifting paradigm set forth in McDonnell Douglas. Under the three-stage framework, the charging party must first show a prima facie case of an unfair labor practice.

Prima facie case. The city raised two challenges to the union’s prima facie showing. First, it contended that the union failed to show that the employee’s transfer was an adverse employment action because he received the bargained-for pay raise under the CBA and because there was evidence that some city police officers preferred the night shift and its attendant pay raise. Second, the city maintained that the union failed to establish a prima facie case of retaliation because it did not show the employee had a generally good employment record.

Adverse employment action. “[A]n action taken by an employer is an ‘adverse employment action’ where it is ‘substantial enough to have materially disadvantaged an employee.’” Here, the Massachusetts Supreme Court disagreed with the city’s argument that an employment action that complies with the provisions of the CBA cannot be adverse, as a matter of law. The fact that the CBA made a transfer from day shift to night shift more palatable by including a pay increase for the latter shift is a factor to consider, but it does not erase the material disadvantage of the transfer as a matter of law.

The appropriate test to determine whether an employer has taken adverse employment action is an objective one: whether the action has had a “material disadvantage” affecting the “objective aspects of the work environment” that would be “objectively apparent to a reasonable person in the employee’s position.” Compliance with the CBA is not dispositive.

Good work record. The city also asserted that the union must demonstrate that the employee had a “generally good work record” to show a prima facie case of retaliation. A good work record, observed the state high court, can be helpful in meeting an employee’s burden to show that the employer took the adverse action to discourage the protected activity as part of the employee’s prima facie case. However, nothing in the court’s jurisprudence supported the proposition that an employer is free to retaliate against an employee for union activities because the employee's employment record is blemished.

Employer's burden of production. The burden then shifted to the employer, which must state a lawful reason for its decision and produce supporting facts indicating that this reason was actually a motive in the decision. The city contended that it met its burden of production by offering evidence of the employee’s insubordination. But the CERB properly concluded that the city failed to produce any evidence to support a reasonable inference that these incidents factored into the police chief’s decision to transfer him.

Because the city failed to produce evidence that the police chief considered prior work-related misconduct when he transferred the employee, the high court affirmed the CERB’s decision that the city failed to meet its burden of producing a legitimate reason for the employee’s transfer.

The case is No. SJC-13655.

Judge: Wendlandt, D.

Attorneys: Jaclyn R. Zawada, Office of City Solicitor, for City of Newton. James Sunkenberg (Law Offices of James Sunkenberg) for Commonwealth Employment Relations Board.

Companies: City of Newton; Commonwealth Employment Relations Board

Cases: Retaliation Labor UnionsMembers PublicEmployees StateLawClaims MassachusettsNews