Chutzpah

Chutzpah

Jacob Schlitt

Later version of "Chutzpah" (c. 2009)

2010-08-24

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en

1994/1997

CHUTZPAH_Edit

CHUTZPAH

Part I

I went to work for the Fair Labor and Business Practices Division of the Office of the Attorney General of the Commonwealth of Massachusetts in January 1995. It took a lot of hustling (and chutzpah) to land the job. I was 67 years old. The title of my new job was “Industrial Safety and Health Inspector I.” I really didn’t know very much about being an industrial safety and health inspector. For the previous seven and a half years, I had been at the Board of Review of the Massachusetts Department of Employment and Training, and for 21 years before that, at the US. Commission on Civil Rights.

When my position at the Board of Review was eliminated, I realized that all I needed was two and a half more years of State employment to get a State pension and health insurance. I was ready to take anything. It was in July 1994, while still with the Board of Review, that I learned there might be an opening in the Attorney General’s Fair Labor Division. There were no other jobs around. As I had done in 1965 in Washington, and 21 years later, in Boston, I lined up all my contacts to support my bid for the job. Armed with letters of recommendation, and a crash course in Massachusetts General Laws 149, I went after the job with a vengeance, calling and writing Division Chief Brian Burke.

A remarkable coincidence: One of Fran’s cousins was married to a man who had been an Inspector with the Fair Labor and Business Practices Division for many years. I called him and invited him to lunch. I explained that I am applying for a position in his Division and asked him what the job entailed. He hemmed and hawed, and told me absolutely nothing. I did more digging and learned of a lawyer working for the Division who was a friend of a friend. I called her and she gave me a detailed picture of the job.

The Inspector’s position was finally posted on September 19.( My job had ended the month before and I was collecting unemployment benefits.) Primary duties: Inspect equipment, materials, operations, buildings, motor vehicles, drawbridges and machinery at various worksites; review accident reports; grant hearings to aggrieved parties and determine the need for further investigation relative to safety and wage and hour violations; attend and arrange meetings, conferences and seminars to educate the public in the principles and techniques of industrial safety etc. Requirements: At least two years of professional or technical experience in safety engineering, or in the regulation of safety/health, or in enforcement of occupational health laws etc. Substitutions: A Bachelor’s Degree with a major in the field of engineering.

It wasn’t exactly me, but in my previous work, I did reviews and analyses of reports involving discrimination and illegal firings. I conducted hearings and undertook investigations, I was involved with occupational health and safety issues, as well as minimum wage and overtime pay, which the position also called for. I submitted my application, and didn’t give Brian Burke a moment’s rest until I had the first interview November 22. A second interview took place December 9. I was offered the position, and started my new career January 23, 1995—Grade 19, Step 1, $611.56 per week. I couldn’t have been happier. However…

Part II

The salary was a rather modest one. Even though I said (see above) I was ready to take anything, now that I had the job, I felt that I shouldn’t have to start at Step 1, nor receive a two-week Step 1 vacation. I figured that it took chutzpah to get the job, and perhaps more chutzpah will get me more money and more vacation time. Within a week after being hired, I met with the Personnel Director about moving me up a few steps and getting a three-week vacation. The Personnel Director rejected my request. I turned to my new union to do what it can. I loved my new union’s name: MOSES (Massachusetts Organization of State Engineers and Scientists). Two months later, I was told by the union that, based on a 1985 arbitrator’s award recognizing prior employment, I would get my third week vacation, but no Step increase.

When I completed my six-month trial period, I asked Brian if my salary could be adjusted upward. He told me to write to the Attorney General’s Chief of Staff, and Director of Operations. I wrote a lovely memo, explaining how pleased I was to have been selected for the position, what a great job I am doing, and when, at the Board of Review, I called to their attention the difference between my old Federal salary and my first step State salary, it was adjusted upward. There was precedent.

I was told, a couple weeks later, that, “in accordance with the contract,” I would have to wait until my anniversary date. Perhaps I should have dropped the matter. I was lucky to have a job. But I was intrigued by management citing the contract. I obtained a copy of the contract a month later (not easy to come by) and found Article 12, Section 7: “…employees who are reinstated or reemployed within three years of their involuntary separation, from the Commonwealth’s payroll, because of layoff/displacement shall receive rates of pay based on credit for their previous years service for the Commonwealth.” I reasoned: I am an employee. I was reemployed within three years of having been involuntarily separated. Therefore I should receive a rate of pay based on credit for my previous years of service for the Commonwealth.

Part III

In September, I called the union, asking them to file a grievance on my behalf. In October, the union filed a step one grievance with the Division Chief, but did not inform me. When it was rejected, a step two grievance was filed, this time with the Attorney General’s Chief of Staff. Again, I was not informed. On January 12, 1996, 11 days short of my first year on the job, a step three grievance was filed, reluctantly, by the union on my behalf. I had earlier spoken to the union president who said that the contract provision on which I am basing my grievance does not apply to me. (I received my step 2 salary on my anniversary. I figured out that my salary for my first year at step 1 was $31,801. If I had been paid at a step 7, I would have received $40,453. My last Board of Review salary was $44,980.)

I now had a new hobby: pursuing a pay increase to which I felt I was technically entitled. I knew it was chutzpah. I should have been grateful to have the job for which I was minimally qualified, when hired. Instead, I was demanding more money, and insisting that my union fight for me. I initially asked for a step 4 increase. The top step was 7. I had convinced the Board of Review into giving me a higher step when I went to work there. Why not here?

Possibly, the Attorney General’s Personnel Director understood the definition of “chutzpah.” And possibly, the Personnel Director didn’t care what Article 12 said. And possibly, the union wasn’t interested in pursuing what they may have seen as a frivolous grievance. Everyone may have thought that I should be thankful for having gotten the job, and should stop making a pest of myself. And for the rest of 1996, I continued to make a pest of myself as far as the union was concerned. I was a dues-paying member. I expected representation.

I called and wrote the union counsel, and asked them to file a step 3 grievance with the Office of Employee Relations (OER). It took an awful lot of calling and writing. There was no response to my grievance by OER. They may also have considered it “chutzpadik.” The final step in the grievance procedure is arbitration. I have come this far; I may as well go all the way. But it is the union’s Grievance Committee that decides if a grievance should go to arbitration. From February to July 1996, I kept asking the Grievance Committee to approve my request for arbitration. In July, I learned that it had been rejected, and in August I asked for reconsideration, and for the opportunity to appear before the Committee, which was denied. In September the Committee reconsidered, and in October I learned that it was again denied.

At this point, I appealed to the union’s Board of Directors, summarizing all that transpired, and concluded that the conduct of my union has been “perfunctory and reflective of inexcusable neglect.” I have no idea where this came from. Therefore, “If my union chooses not to pursue my request for arbitration…it is in violation of Chapter 150E Sec. 10(b)3 a prohibited practice refusing to participate in good faith in the …arbitration procedures set forth in Sections 8 and 9, and will file such a charge with the Massachusetts Labor Relations Commission.
The year ended, and I didn’t hear from the Board of Directors, but I did have an exchange of correspondence with the union’s president as 1997 began. I repeated that if the union does not pursue impartial arbitration of the employer’s violation of Article 12, I will file a charge of prohibited practice etc. In February, the president wrote that the union “does not feel that this case should proceed to arbitration. Such a determination is well within the union’s rights.”

While these exchanges were taking place, I was faithfully attending the union’s General Membership Meetings, At the 175th General Membership Meeting, I introduced a “Motion Calling for MOSES to Bring the Grievance of Member Schlitt Charging Violation of Article 12 to Arbitration.” As a new member of the union, introducing such a motion was more chutzpah. Not surprisingly, it did not pass. Coincidentally, the following month, several members introduced a resolution calling for improvement of the grievance procedure, and I worked with them on its wording. Not surprisingly, it failed to pass as well.

Part IV

The months slipped by. Rather than focus on my grievance, I was focused on my retirement and plans for a trip overseas. Nevertheless, on May 6, I filed a Charge of Prohibited Practice Pursuant to GLc 150E with the Labor Relations Commission. I received an acknowledgement a week later from the Labor Relations Commission, and a week after that, I was called by Jim Norton, a labor lawyer, telling me that the union has engaged him to represent it in a step 3 hearing on my behalf. I was not sure what that meant. Wasn’t a step 3 hearing filed on Jan 12, 1996? Jim does not believe there had been. Has Jim been brought in because I filed the charge? That’s the way it looks. He moves right along to set up a step 3 hearing. It is scheduled for June 16, postponed, and rescheduled for July 22. I retired in August, having completed my ten years of State employment, getting a pension and health benefits. Now that’s chutzpah! On November 24, a decision was handed down by the Office of Employee Relations of the Human Resources Division of the Executive Office for Administration and Finance of the Commonwealth of Massachusetts. Surprise, surprise: my grievance was denied: “Since the grievant’s former positions were non-union, he was not “reinstated nor reemployed” as required…” That’s one way to look at it, but that’s not the way I looked at it. An employee is an employee, whether represented by a union or not.

The month before, on October 14, the Executive Secretary of the Labor Relations Commission of the Commonwealth of Massachusetts concluded that my position was excluded from the Commission’s jurisdiction. That’s not the way I interpreted the law. The fact is, on July 31, the union filed a lengthy response to my charge, not challenging my right to file, explaining that my grievance was still pending, and that I was represented by James Norton at a hearing on July 22, and upon receipt of a step 3 decision, the MOSES Grievance Committee will again consider whether or not to proceed to arbitration. What did the Grievance Committee do the year before? They supposedly considered and rejected my request for arbitration—twice! Now that’s chutzpah!

So, for more than two years, I managed to give lots of lawyers lots of work concerning my chutzpadik request for a step increase, initiated in July 1995, with the final denial in November 1997: Lawyers at the Attorney General’s office; lawyers at the office of MOSES; lawyers in a law firm representing MOSES; and finally, Commonwealth lawyers at the Labor Relations Commission and the Executive Office for Administration and Finance. With each decision, I thanked them, politely disagreed, but made it clear that I was not going to appeal. It was a fascinating experience. It may have cost the Commonwealth and MOSES more in lawyers’ salaries than it would have to give me the step increase, but it wouldn’t have been as much fun.

August 24, 2010

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