CERB Probable Cause Affirmed-0001

Town of Winthrop · from StateReference · 9 pages · 312 KB
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April 8, 2021 
VIA EMAIL 
Harold L. Lichten, Esq. 
Thomas P. Fowler, Esq. 
Lichten & Liss-Riordan, P.C 
729 Boylston Street, Suite 2000 
Boston, MA 02115 
John Foskett, Esq. 
Valerio, Dominello & Hillman 
One University Avenue, Ste. 300B 
Westwood, MA 02090 
RE : MUP-20-7789, Town of Winthrop and Ferrucio Romeo: 
Dear Attorneys: 
Ferrucio Romeo (Romeo), a police sergeant employed by the Town of Winthrop
(Town), appeals from a Department of Labor Relations (DLR) Investigator’s dismissal of
the above-referenced charge of prohibited practice. The charge, as amended on January
15, 2020 and during the investigation, alleges that the Town violated Section 10(a)(4),
Section 10(a)(3) and, derivatively Section 10(a)(1) of M.G.L. c. 150E (the Law) by
retaliating against Romeo for his protected activity by using his in-rank seniority for shift
bidding purposes instead of departmental seniority, thereby denying him his preferred
shift. After investigating the charge on September 10, 2020, the Investigator dismissed
the charge on September 30, 2020 for lack of probable cause. Romeo filed a timely
request for review claiming that the Investigator made erroneous findings and overlooked
certain facts which, when considered in the context of Romeo’s work history and
protected concerted activity since 2014, warrant a probable cause finding. The Town
filed a response in opposition to the request. After reviewing the investigation record, the
dismissal letter and the parties’ arguments on review, the Commonwealth Employment
Relations Board (CERB) affirms the dismissal for the following reasons.

CERB Review of P.C. Dismissal (cont’d) MUP-20-7789 
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Background 1 
Termination and Reinstatement 
Romeo has worked for the Town’s Police Department (Department) as a police
officer for twenty-four years. From December 2004 until February 2015, Romeo served
as the President of MassCOP Local 421 (Union or MassCOP), which represents the
Town’s police officers and sergeants. In 2014, the Town placed Romeo on administrative
leave and in 2015, terminated him under circumstances that are the subject of the
prohibited practice charges in Case No. MUP-14-4210 and MUP-15-4652. The Union
grieved the termination as lacking just cause and processed the grievance to arbitration.
In 2016, an arbitrator issued an award finding that the Town did not have just cause to
terminate Romeo and reducing the discipline to a letter of warning. The Town appealed
the arbitration award. A Superior Court judge overturned the award, but the Union
appealed, and the Appeals Court ultimately affirmed the award in 2018. The Town
reinstated Romeo to duty as a police officer in September 2018. 
2019 Prohibited Practice Charges 
On April 11, 2019, Romeo filed a prohibited practice charge in Case No. MUP-19-
7261, alleging that the Town had retaliated against him in a variety of ways since
reinstating him. 2 The Union filed a charge on April 18, 2019 in Case No. MUP-19-7277
alleging that the Town had not complied with the arbitrator’s remedy award. The Union
withdrew that charge before investigation. 3 
Promotion to Sergeant and Assignment to Night Shift 
In October 2018, Romeo sat for a make-up promotional exam for sergeant and
passed. After an opening for permanent sergeant became available, the Town promoted 
1 A more detailed recitation of the background may be found in the Investigator’s dismissal
letter and the CERB’s rulings in Case Nos. MUP-14-4210, MUP-15-4632 and MUP-19-
7261. 
2 The same Investigator that investigated the present charge dismissed Case No. MUP-
19-7261 in its entirety. Romeo filed a request for review and the CERB affirmed two
aspects of the dismissal but found probable cause to believe that the Town failed to
reinstate certain of Romeo’s duties in retaliation for his protected, concerted activity. The
CERB remanded this aspect of the charge back to the Investigator to issue a Complaint,
which she did. That matter, along with Case Nos. MUP-14-4210 and MUP-15-4632, are
pending hearing. 
3 Romeo states that the Union did so once the Town remitted the amount it agreed to pay
him to settle the remedy portion of the Award.

CERB Review of P.C. Dismissal (cont’d) MUP-20-7789 
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Romeo to sergeant on December 8, 2019. 4 Ten days later, on December 18, 2019,
Deputy Chief Goodwin issued General Order 19-09 (GI-19-09) to the sergeants regarding
“Shift bids.” The Order stated in part: 
Sergeant shift bidding will start on Wednesday, December 18, 2019 at 4 pm
and conclude on Thursday, December 26, 2019 at 4PM. 
All Sergeants not assigned to a special assignment shall bid their shift
according to in rank seniority. 
As of this bid, although Romeo had the most departmental seniority, he had the
lowest in-rank seniority. Thus, because the Town used in-rank seniority for shift bidding,
he was placed on the night shift, which was not his preferred shift. 
Seniority 
Collective Bargaining Agreements 
Article XXXIII of the Town’s and MassCOP’s 2011-2014 CBA, Seniority, stated in
pertinent part: 
Seniority is defined as the length of continuous full-time employment in the
Winthrop Police Department. 
The Employer recognizes the principle of seniority in layoffs due to lack of
work, provided that the senior employee is available and qualified to do the
remaining work. 
The Employer, in recognition of seniority, shall allow an employee to bid for
a vacancy on a different work shift which is caused by death or retirement
as long as it is of comparable duty and rank and does not involve a
specialty. 5 
4 The record and both parties’ submissions on review correct what appears to be a
typographical error in the dismissal letter and indicate that Romeo was promoted on
December 8, 2019. 
5 The final paragraph of this provision appears to still be in draft form. It states, verbatim: 
That the seniority provisions of the contract relative only to job bidding for
vacancies on a different work shift? [sic] would provide a clause that would
allow aggrieved members of the Bargaining unit to appeal any seniority
decision made by the Chief of Police to the Town Manager, the Town
Manager’s decision shall be final and binding on both parties. Seniority shall
be broken by: 
A) Resignation

CERB Review of P.C. Dismissal (cont’d) MUP-20-7789 
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This seniority provision remained in successor CBAs through 2018, but, as
described below, in May 2020, the Town and MassCOP signed a memorandum of
agreement for the years July 1, 2018 through June 30, 2019 that deleted Article XXXIII
and replaced it with language specifying that shift bidding would be in-rank. 
Police Department Rules and Regulations 
Section 1.7.5 of the Winthrop Police Department’s Rules and Regulations states: 
Seniority : Seniority shall be determined first by rank, second by continuous
service in the rank. When more than one appointment is made in any rank
on any one day, seniority will be determined by the order of appointment. 
1. Where two or more Members are assigned to an investigation, case, or
a detail and one is designated in charge by a Member having the authority
to make the designation, they shall be considered as having seniority for
command purposes over other Members assigned to the investigation,
detail, or case. 
2. In case of several sworn Members of equal rank present at any
emergency, the senior Departmental Member at the scene shall command
in the absence of a supervisor. 
Shift Bidding and the Dalrymple Grievance 
Since 2006, the bidding process for officers to select their shifts has taken place
either once or twice a year. The shift bidding memos that the Department issued from
2007-2009 state that officers would pick their shifts “according to” or “in order of” seniority.
Unlike GI-19-09, however, the memos did not specify that the seniority for shift bidding
purposes would be determined by an officer’s rank. 
The investigative record contains no documentary evidence regarding shift
bidding between 2010-2013 and the parties dispute whether shift bidding seniority was
determined by rank or department in this time frame. The Town contends that it has used
in-rank seniority since 2006. Romeo contends that the Department used departmental
seniority until 2014, when Officer Nancy Dalrymple (Dalrymple) was promoted to sergeant
pursuant to a decision that the Massachusetts Commission Against Discrimination
(MCAD) issued in January 2014. The MCAD held that the Town had unlawfully refused
to promote Dalrymple to sergeant based on her gender and in retaliation for her prior
complaints against the Town and ordered the Town to promote her as a remedy. 
In April 2014, after being promoted and assigned to the night shift, in April 2014,
Dalrymple filed a grievance alleging that “during the recent shift bid,” she was prevented 
B) Layoff due to lack of work for a period of sixty (60) days. 
C) Discharge for just cause

CERB Review of P.C. Dismissal (cont’d) MUP-20-7789 
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from bidding for the shift by department seniority in violation of the parties’ CBA. The
second paragraph of the grievance stated: 
I am not the Supervisor with the lowest seniority . . . In the past and currently
supervisor’s [sic] within the [Winthrop Police Department] have been
interchangeable without regard to rank. The positions have mirrored each
other. 
Romeo signed the grievance in his capacity as Union president. Later in April 2014, the
Town’s police chief and the Town, respectively, denied the grievance at steps 2 and 3 of
the grievance procedure, citing Section 1.7.5 of the Department’s Rules and Regulations.
The Town also disagreed that the CBA addressed shift bidding. 
On June 2, 2014, Sgt. Stephen Rogers issued a memo (Rogers Memo) regarding
“Procedure for the July/August 2014 shift bid,” which stated that the shift bidding would
run from June 2 to June 9 and that, “in order to expedite the process every officer not
assigned to a specialty shall bid their shift according to in rank seniority as soon as
possible.” It further stated that all officers who had not picked a shift by the deadline,
June 9, 2014, would be “contacted in order of in rank seniority to pick the shift they would
like.” 
On June 12, 2014, Dalrymple filed a second grievance, in which she again
protested that she had been prevented from bidding for a shift during the most recent shift
bid in “the proper order of my departmental seniority, as specified under the contract.”
Dalrymple also stated that “I, as well as other Sergeants within the Department, was not
given the opportunity to bid in order of seniority for the created Administrative Sergeant’s
Position.” The Police Chief and Town administrator denied the grievances. 
In November 2014, the Union advanced Dalrymple’s grievance to arbitration,
alleging that the Town had assigned her to the night shift in violation of the CBA and
seniority rules in order to discriminate against her. 6 In December 2014, the Town placed
Romeo on administrative leave under circumstances that are the subject of his charges
in Case Nos. MUP-14-4210 and MUP-15-4632. 
In 2015, Dalrymple filed another MCAD complaint against the Town alleging that
the use of in-rank seniority for shift bidding was discriminatory. After investigation, the
MCAD dismissed the complaint for lack of probable cause, finding that the Town had
“provided a legitimate, nondiscriminatory reason for the reassignment . . . When 
6 The record is not clear as to whether the Union advanced Dalrymple’s April or June
2014 grievance to arbitration.

CERB Review of P.C. Dismissal (cont’d) MUP-20-7789 
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determining placements, Respondents utilized a bid-shifting [sic] arrangement that has
been in place since 2005, whereby rank and seniority are considered.” 7 
In December 2016, after Romeo was terminated, but before he was reinstated, the
Union, operating under different leadership, withdrew its demand to arbitrate Dalrymple’s
2014 grievance. 
Neither party submitted shift bidding memos or other documentary evidence
concerning the type of seniority that would be used for shift bidding purposes between
2014 and 2019, other than the 2014 Rogers Memo and GI-19-09. There is no evidence,
and Romeo does not contend, however, that the Town ceased using in-rank seniority for
shift bidding purposes in this time frame. Instead, similar to what Dalrymple stated in her
April 2014 grievance, Romeo contends that before his December 2019 shift bid, the type
of seniority used for shift bidding was not an issue, because there was no difference
between officers with the highest in-rank seniority and the highest departmental seniority. 8 
CBA Changes to Definition of Seniority 
At the end of May 2020, the Town and the Union entered into a Memorandum of
Agreement that extended the terms of their July 1, 2017 to June 30, 2018 CBA with certain
changes, including a new seniority provision. Although the provision initially continued to
define seniority “as the length of continuous full-time employment in the Winthrop Police
Department,” and to “recognize[] the principle of seniority in layoffs,” the provision’s
second paragraph stated that “[s]eniority for purposes other than layoffs shall be
determined first by rank, second by continuous service in the rank.” 
Dismissal and Request for Review 
The Investigator dismissed the charge in its entirety. After accurately setting forth
the four elements of a prima facie case of discrimination under Section 10(a)(3) and
10(a)(4) of the Law, she found that although Romeo had established the first two elements
- that he had engaged in protected, concerted activity and that the Town knew of this
activity, he had not established the third and fourth elements - that his assignment to the
night shift constituted an adverse action in accord with prior CERB caselaw or that the
Town’s decision to use in-rank seniority for shift bidding was motivated by a desire to
penalize or discourage his protected, concerted activity. Town of Carver, 35 MLC 29, 47, 
7 The MCAD dismissal is cited only as part of the history of Dalrymple’s challenge to the
June 2014 shift bidding procedure and not for the truth of the MCAD’s findings regarding
the use of in-rank seniority for shift bidding before 2014. 
8 The 2015 MCAD lack of probable cause finding quotes a letter from Dalrymple indicating
that she was nearing retirement. If that is the case, then she would no longer have been
the exception to in-rank seniority being equal to departmental seniority for the other
sergeants.

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MUP-02-3094 (June 30, 2008). Using the burden-shifting analysis set forth in Trustees
of Forbes Library v. Labor Relations Commission, 384 Mass. 559 (1981), the Investigator
further found that, even assuming that Romeo had established a prima facie case, the
Town had presented legitimate, non-discriminatory reasons for assigning him to the night
shift, and Romeo had not demonstrated that, but for his protected activity, the Town
would not have taken the same action. Athol-Royalston Regional School Committee, 28
MLC 204, 214, MUP-2279 (January 14, 2002). 
On review, Romeo argues that the Investigator erred when she determined that
being assigned to the night shift was not an adverse action. With respect to motivation,
Romeo contends that the Investigator failed to contextualize the Town’s use of in-rank
seniority for shift bidding. Romeo claims that the Town first used it as means of
discriminating and retaliating against Dalrymple by assigning her to the night shift after
the MCAD ordered her promotion, followed by the Town applying in-rank seniority in the
same retaliatory manner towards him after an arbitrator reinstated him and he was
subsequently promoted to sergeant. Romeo also posits that there is a connection
between the Town’s using in-rank seniority for Dalrymple and for him. He notes that
Dalrymple’s efforts to challenge her night assignment through arbitration were thwarted
when the Town fired him after he advanced her grievance to arbitration, and that the
CERB recently found probable cause to believe that the Town terminated and took other
adverse action against him in retaliation for his protected, concerted activity, which
included his efforts on Dalrymple’s behalf. Romeo finally asserts that given the fact-
intensive nature of retaliation cases, he should be given the opportunity at hearing to
prove the claims he asserts here. 
We affirm the dismissal on grounds that Romeo has failed to establish a prima
facie case of discrimination, and even if he had, there is not probable cause to believe
that the Town would not have assigned him to the night shift had he not engaged in
protected, concerted activity. 
We start with the prima facie case, focusing on the fourth element, unlawful
motivation. In cases where , as here, there is no direct evidence of unlawful discrimination,
unlawful motivation may be established through circumstantial evidence and reasonable
inferences drawn therefrom. Town of Carver, 35 MLC at 48. As the Investigator correctly
stated, several factors may suggest unlawful motivation, including the timing of the
alleged discriminatory act in relation to the protected activity, triviality of reasons given by
the employer, disparate treatment, an employer’s deviation from past practices or
expressions of animus or hostility toward a union or the protected activity. Id. Romeo’s
arguments on review rest largely on the fact that the CERB has previously found probable
cause to believe that the Town discriminated against him. However the fact that the
CERB has found probable cause to believe that the Town’s actions were discriminatorily
motivated in other contexts does not mean that it will do so in all future actions that Romeo
perceives to be adverse in the absence of direct or circumstantial evidence that the
conduct was discriminatorily motivated.

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Romeo also asks the CERB to make a connection between the Town’s using in-
rank seniority to assign Dalrymple to the night shift, which he claims was discriminatory,
with his assignment to the night shift under similar circumstances. This argument,
however, rests on the assumption that Dalrymple’s assignment was the result of unlawful
discrimination arising under Chapter 151B. However, Romeo’s charge concerns him, not
Dalrymple, and it is beyond the scope of this charge and the CERB’s jurisdiction for the
CERB to make this determination. 9 
Further, despite what Romeo claims are the discriminatory roots of the in-rank
seniority practice, Romeo provided no evidence that the Town ever ceased using in-rank
seniority as the basis for shift bidding after 2014, when the Rogers Memo issued, or that
he was treated differently than other similarly-situated employees for shift bidding
purposes. Rather, because Romeo claims that until he was promoted in 2019, the officers
with the highest departmental seniority also had the highest in-rank seniority, in-rank
seniority only became an issue after he was promoted in December 2019. This scenario
explains both the need and the timing for the Department to issue GI-19-09, i.e., to notify
staff, as it did in 2014, that in-rank seniority would be the basis of determining who was
assigned to what shift. 10 Romeo has thus not shown that he was treated differently than
other similarly-situated persons or that the Employer deviated from past practice when it
applied in-rank seniority to him. Even assuming the closeness in time between the 2019
prohibited practice charges and the Town’s conduct, it is well-established that timing
alone is insufficient to establish circumstantial evidence of unlawful discrimination. City
of Malden, 5 MLC 1752, 1764, MUP-3017 (March 20, 1979). 
Finally, even assuming that Romeo established a prima face case of
discrimination, in the absence of evidence showing that the Town ceased using in-rank
seniority for shift bidding purposes since 2014, we agree with the Investigator that there
were legitimate, non-discriminatory reasons for the Town’s conduct and that Romeo did
not provide any evidence to prove that, but for his protected activity, the Town would not
have used in-rank seniority for the 2019 bidding. 
9 As noted above, our determination on this aspect of the case is not affected by the fact
that the MCAD dismissed Dalrymple’s charge on the same issue for lack of probable
cause. 
10 Based on Dalrymple’s April 2014 grievance, in which she states that in “the past and
currently supervisor’s [sic] within the [Winthrop Police Department] have been
interchangeable without regard to rank,” Dalrymple was in a similar situation.

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Conclusion 
For the foregoing reasons, we affirm the Investigator’s dismissal of the charge. 11 
Very truly yours, 
COMMONWEALTH OF MASSACHUSETTS 
COMMONWEALTH EMPLOYMENT RELATIONS BOARD 
____________________________________ 
MARJORIE F. WITTNER, CHAIR 
____________________________________ 
JOAN ACKERSTEIN, CERB MEMBER 
______________________________ 
KELLY STRONG, CERB MEMBER 
cc: Howard Greenspan, Esq. 
Ferrucio Romeo, Esq. 
APPEAL RIGHTS 
Pursuant to the Supreme Judicial Court’s decision in Quincy City Hospital v. Labor
Relations Commission, 400 Mass. 745 (1987), this determination is a final order within
the meaning of M.G.L. c. 150E, § 11. Any party aggrieved by a final order of the Board
may institute proceedings for judicial review in the Appeals Court pursuant to M.G.L.
c.150E, §11. To claim such an appeal, the appealing party must file a Notice of Appeal
with the Commonwealth Employment Relations Board within thirty (30) days of receipt of
this decision. No Notice of Appeal need be filed with the Appeals Court. 
11 Because we dismiss on these grounds, we need not address whether Romeo’s
assignment to the night shift was an adverse employment action.