NAGE wins retro pay raise---zero percent! Dues increase pending!

NAGE continues their role as leader in the race to the bottom. They just settled a contract for zero percent and it's retro active for one year.
The latest contract is a disgrace.... merely continuing a long history of selling out the members by "leadership."

How long have the NAGE shills been feeding us the same tired old litany..... "Well, it's not a GREAT contract, but its all we can get during these tough times....." Whether the Commonwealth is racking up record surplus revenues, or as now when the economy is in the crapper.... it's always the same from NAGE..... there's nothing for you.....but from you we expect your dues
How long can it be before NAGE is looking for yet another dues increase, everytime they sellout on a lousy contract they raise the dues.

Together We Can... Fire some Republican Managers

According to the Globe (see article below), Gov. Patrick has convened a "star chamber" of advisers who, among other things, will accelerate the brooming of republican appointed state employee managers. So watch out you high paid do-nothing managers appointed by Weld-ducci, Swift and especially Willard Romney..... your days are apparently numbered.

Well, well, well..... not since the cultural revolution under Mao or the killing fields under Pol Pot have we heard such talk.....

Got to make room for the Partrick "supporters".... make way for squadrons of "dewy-eyed" togother we can cultists.... should be interesting....

Post your nominees (for firing) here.... you know who they are..... name names! Turn them out before they turn you in!.... it's every man for himself......

Patrick forms team to help market agenda

Group will offer advice on governing, policy

By Frank Phillips, Globe Staff | April 20, 2007

Governor Deval Patrick has assembled a small group of seasoned political and media strategists to informally advise him on how to market his agenda and deal with the heated political world of Beacon Hill, another sign that the first-time leader is being forced to embrace the traditional kind of governing style he often denounced during the campaign.

At the governor's direction, Patrick's new chief of staff, Doug Rubin, gathered the group for its first meeting Wednesday night at a private downtown office, where they agreed on a major priority: to crack the whip on the administration's lagging efforts to replace Republican-appointed government managers with a team loyal to Patrick.

The push for new agency leaders, regulators, and commissioners reflects the frustration of many Patrick supporters and Democratic leaders, who believe that the governor has not acted swiftly enough to take control after 16 years of Republican rule.

"It became clear that the first thing we had to do was to get the administration to reflect the campaign that the governor ran," said one of those at the meeting. "It cannot be a government which is made up of managers who were part of the administrations of Republican governors who had a completely different vision of what state government should be."

The group, which will meet monthly, includes Ronald Homer, former head of the Bank of Commerce, who spearheaded the drive for new blood in key government positions; former attorney general Scott Harshbarger; veteran political strategist John Marttila; pollster Tom Kiley; Democratic political consultant Michael Goldman; state Democratic Party chairman John Walsh, who served as Patrick's campaign manager; and Dennis Kanin, former political adviser to the late senator Paul E. Tsongas.
Rubin told the group Wednesday that the meeting was part of Patrick's outreach to supporters and advisers from his gubernatorial campaign who may feel disconnected from what the governor has been doing on Beacon Hill. While many of Patrick's campaign advisers have continued to offer him guidance, some Democrats have criticized him for not following through on their counsel.
"There's been a disconnect, and the governor realizes that and he wants to correct it," said another participant in the meeting, who did not want to be identified because of the confidential nature of the gathering.
After stumbling several times during his first months in office, Patrick is working to rebuild his senior staff with a team steeped in politics and media relations.
Patrick, whose campaign challenged the political establishment and eschewed traditional political and media strategies, tried to bring that philosophy to the State House.
But within the first few months, as he focused nearly exclusively on the state budget, he faced a furor caused by several controversial decisions: to upgrade his state car to a Cadillac, to buy expensive furnishings for his office, and to call a major financial institution on behalf of a subprime lender, Ameriquest Mortgage, where he had recently served as a board member.
His critics and supporters also said he had failed to use the traditional honeymoon period to dramatically champion several well-defined initiatives, an important political step for any new governor.
Rubin, who at 39 is a veteran of state politics, was brought on last week to replace Patrick's initial choice for chief of staff, the politically inexperienced Joan Wallace-Benjamin. Several weeks earlier, Patrick bolstered his senior staff with Joseph Landolfi, a veteran State House press aide, and David Morales, a policy aide to former Senate president Robert E. Travaglini.
The new group of advisers is reminiscent of the kitchen Cabinet that Governor Michael S. Dukakis assembled when he returned to office in 1983 to help him avoid the mistakes that contributed to his defeat in 1978. The Dukakis team consisted of several politically savvy advisers who met regularly with his chief of staff, John Sasso.
Patrick's group, however, could be a little more unwieldy, with more than 15 members attending the first meeting.
One participant in the meeting said the group, while large, will break down into smaller units to deal with specific areas.
Rubin declined to comment in detail on the meeting, saying he wanted to keep the discussions confidential. But he confirmed he assembled the group from advisers who helped in the campaign.
Others in the group are Jon Jennings, who heads US Senator John F. Kerry's Boston office; Michael Kineavy, chief of policy and planning for Mayor Thomas M. Menino; Bill Wasserman, a former North Shore newspaper publisher and early Patrick supporter; Liz Morningstar, executive director of the Patrick political committee; Steve Wright, a Boston lawyer; and Larry Carpman, a former press secretary to Kerry and a media consultant to Patrick.

SOME of You folks... DO GET IT !!!

WELL... you're not ALL SHEEPLE !!!!

Anonymous left a very astute post (see it quoted below).
He (or she) said:

"I called the Mass Labor Board. Our one-year contracts expire June 30, 2007. So we needed to get 50 percent of our fellow members to sign cards/petitions to get out of NAGE and file them at the Mass Labor Board by January 31st. Since we didn't do that, we couldn't file again until after the contract is signed.


So we need to get another union, collect 50 percent of the cards/signatures and we need to NOT vote if they come out with another crappy deal to shove down our throats. Anyone else in?"

He (or she) is right on the money. This is precisely the problem.

Here's how NAGE will play it when the low ball piece of bleep contract proposal comes out as a result of the SHAM NEGOTIATIONS that are now taking place........

NAGE/Holway, after painting a gloomy a budgetary picture (ever notice how it's ALWAYS terrible for state employees whether its a state revenues feast or famine?), including that perennial threat that "unless you accept a below-the-rate-of-inflation contract, with no retro, witches and goblins be loosed on the world" (you know, the usual threats, you MAY be subject to layoff.... blah, blah, blah....)

NAGE WILL LIE TO YOU about this because if the piece of crap contract, (that they will no doubt put before the members) is REJECTED!, then they will drop back into that very short period of vulnerability when the members actually have a slim chance of voting their greedy behinds out of their uncontested right to steal your dues money (thanks to weak state laws).

HOLWAY is scared to death that enough of you might wake up, and take away the easy money ($250k graft/salary) that he sucks out of your dues.... while giving you no fair representation of YOUR interests in return

Without even seeing it, I can tell you folks to VOTE NO, on the piece of crap contract that will inevitably be put before you.... if nothing else it will send a message to Holway and the Burgin Parkway bandits that their days are numbered.....

Members, we have it be in it for the long haul.... if we're not able to prevail this time, we'll be ready the next time.... these thieving scum must go! ( I call it thievery when they take your dues, vote themselves obscene undeserved salaries, and party- hardy from Cambridge to Vegas, all the while ducking their constitutional duty to hold regular membership meetings to serve YOU ! )

Consider me IN anonymous!.... spread the word members....

..... VOTE NO .... on the insulting contract proposal you'll soon find in your mail box, with no prior opportunity for debate or discussion.....).... stop making it so easy for these cowardly scum to give you the shaft whilst picking your pockets..... you can do better!.... the Legislature has been signaling us that we should get rid of these bums.... voting NO is the 1st step....

"85-15" Protected in Governor Patrick's Budget ? Not so fast!

NAGE's Lying Propaganda website reports.....

"Contending with a $1.3 billion spending gap to close, Governor Deval Patrick filed House 1, officially putting into the record his FY2008 budget recommendation for the Commonwealth. Although his spending plan calls for sweeping cuts across the state, at least one significant budget item remains protected—the 85-15 employer/employee split for state employee health-care premiums."

Don't start congratulating yourself yet, Holway.... As we've all found out in recent years, there's more than one way to skin a cat. The 85-15 premium contribution is only one part of the equation. Increases in co-pays, reductions in service, increases in deductibles are other ways to shift the financial burden of formerly covered health care cost to employees.... let's wait and see what the "Benefit Guide" tells about the hidden costs to employees..... AND What about the huge cut in the GIC line item?

NAGE prevaricating Propagandists report.....

"It's obviously a huge victory for us [NAGE members], given that the governor had to close a budget gap of more than a billion dollars," said National President David J. Holway.

Somebody get me a tissue..... boo hooo, poor governor Patrick has to close a 1.3 billion budget gap..... and I suppose we've got help out by accepting another-below the rate of inflation contract, right Dave?

Here we go again .... NAGE is starting already to soften everybody up and get them prepared for a yet another low-balled insulting contract..... Judas Goat Holway is leading us down the ramp to the slaughterhouse....

NAGE Propaganda website reports.....

When NAGE discovered that Governor Patrick had issued a memo to his Cabinet secretaries directing them to identify ways to cut their annual budgets by up to 10 percent, NAGE lobbyists immediately got to work to make sure that 85-15 would be protected.
"We knew Governor Patrick would be looking at every way possible to cut the budget, so we immediately set up meetings with his officials and with Lt. Governor [Tim] Murray," said NAGE Legislative Director Ray McGrath. "We're definitely pleased that 85-15 remained untouched, and we will continue to keep its protection at the top of our priority list."

Well let's hope that do-nothing, layabout, Ray McGrath ($165,000/ year of YOUR DUES MONEY) at least got a meeting... by the way, People are saying that McGrath is persona non gratis in Therese Murray's office...(the new Senate President) (remember this guy, the idiot that fumbled the funding for the last paltry raise we got? ....and then tried to Blame it on the Senate Way's & Means Committee (Where Therese Murray was Chairwoman?)

..... Do you think we'll be getting another "message" from the Legislature they they've grown tired of Holway's arrogance????

You can review Govenor Patrick's full budget recommendation at http://budget.mass.gov/budget/

When will Unit 6 ever have a membership meeting?

According to the NAGE constitution, such as it is (a piece of bleep), we members are entitled to have a general membership meeting once a year:

SECTION 8.
All Local Units shall have at least one general membership meeting annually.

But do we get one?..... NOoooo. Now one would think with there being so much to discuss (Contract negotiations, outrageous dues increases, the Governor's Budget....), that our duly elected Local Officers would be scheduling one..... but don't hold you breath.

I want the Unit 6 membership meeting to be held at Jasper White's in Cambridge....not some shithole-in-the wall NAGE Regional office at 70 Elm St. in Worcester! I understand Jasper's is quite the place!.... NAGE Headquarters has spent over $25,ooo there on parties for itself in the last two years (no members...) .... one has to surmise that the budget for the staff Xmas party is $12,500 per year and the budget to fund membership meetins is $$$ZERO!!!!! folks we can't keep putting up with this crap!

I think it's about time they started spending some of my dues money on ME and my fellow members! How about it?

And I can suggest how to fund the effort? .... here's how:
STOP squandering our dues money on the social engineers at SIEU national with their outrageously expensive and unsuccessful efforts to do, God only knows what, with their ridiculous fight for the future boondoggle.

Here is a suggested agenda for the meeting, when and if it is held.

Unit 6 General Membership Meeting Agenda-2007:

1st order of business: to set the time and place for next general membership meeting (and those to be scheduled for the rest of the year)
Don't let these skunks keep getting away with hiding from us while they squander our dues and get us nothing in return! Let's start calling these over-paid layabouts to account !......on a regular meeting basis!

Other business to be taken up AND VOTED by the members: (you all understand what voting is, right?.... that's what is supposed to happen in democratic organizations....something the sheeple in NAGE never get a chance at...)

1. To see if the Members will vote to require that Mandatory general membership meetings be increased to 6 times per year
2. To see if the Members will vote to direct the "leadership" to see that meeting minutes are taken and published on the website
   
3. 
   
   To see if the Members will vote rescind (or approve) the recent dues increase foisted upon them by the "nationals".
   
   
   
4. To see if the Members will vote to limit the rate of future dues increases to be less than or equal to salary rate increases achieved by NAGE for members through contract negotiations (the recent increase in dues is approx 22%, while the recent salary increase is only 3%)
5. To hear the NAGE Financial report: Total Dues collected from members-by local and by agency, detailed expenditure report of same, proposed salary increases for NAGE officers and Employees.
6. To hear the report of the Grievance Committee: How many grievances have been filed, by agency and by issue. What is the current status of grievances, what was the outcome of settled grievances? How many grievances were handled by professional legal counsel, how many by unpaid volunteer stewards? What is the average length of time taken from grievance filing to settlement?
   
7. Election report: what was the precise tally, by candidate, for the recent election (every election gives the tally by candidate---except for NAGE and Iraq under Saddam Hussein)

NEPBA gives Holway a well deserved bashing...

New England Police Benevelovent Assoc....news

..... from the NEPBA Website..... these folks are well organized, and active. Take a look at what a little competition will do for disclosure..... we SHEEPLE in the pathetic cash-cow State Locals UNits 1, 3 &6 should learn a few lessons from these guys....
Check out their website.... there are plenty more editorials about NAGE's underhanded dirty-dealing tactics....

HOLWAY’S RAGE DANCE CONTINUES
AS NAGE TRUSTEE’S DOC CAPTAIN’S

The secret of life is honesty and fair dealing. If you can fake that, you've got it made.
Groucho Marx (1890-1977)

February 16, 2007 – Instead of addressing the failures of his once promising reign as King of Organized Labor, the enraged tyrant of Burgin Parkway has once again shown his true colors. He continues to place locals in trusteeship because they simply have filed decertification petitions to leave the sinking ship known throughout the region as the S.S. NAGE. Like most tyrants, he has a multitude of titles including, National President of NAGE, IBPO, IBCO, IAEP and so on and so on….but, apparently his most powerful position is that of Supreme Trustee of Corrections.

On September 11, 2006, the Middlesex Sheriffs filed a decertification petition with the Massachusetts Labor Relations Commission in order to choose between their current exclusive representative and the New England PBA, Inc., I.U.P.A., AFL-CIO. However, before most of the local had even realized that the S.S. NAGE had hit an iceberg and was sinking faster than the Titanic, “Captain Chaos” Holway pulled up the row boats and tossed the Middlesex Sheriff’s Executive Board overboard.

But, that wasn’t enough – he also tried to have their president walk the plank by attempting to file FALSE criminal charges against him, which were ultimately rejected by the Nashua, NH Police Dept.

Now, “Captain Chaos” has repeated his arrogant ways by also placing the Massachusetts DOC Captain’s in trusteeship – ONE DAY AFTER they too have filed a petition with the Labor Relations Commission to join the New England PBA, Inc., I.U.P.A. Local 9000, AFL-CIO. But, the similarities don’t end there “Captain Chaos” also took over their treasury and drummed up more false charges against some of the most respected members of the DOC Captain’s, including President William Ryan and Vice President Shawn Dewey. NAGE also refuse to return over $30,000 in overage monies due the DOC Captain’s.

Apparently, “Captain Chaos” has forgotten the last history lesson which the Newton Police gave NAGE several years ago. NAGE lost that case too! The New England PBA has offered their legal services to the DOC Captain’s in order to remove the trusteeship and to return the $30,000 in overage dues to its rightful owners, but maybe NAGE just need the money to make payroll this week. Whatever the case we will keep you updated, because as Ken Lyons said, “We Tell It Like It Is – Isn’t that the Best Way!

How Low will NAGE go on the next Contract?

Let's see, I'm guessing NAGE will settle for 1%, 1% and 1.5% COLA over the next three years....

Oh, and we'll see off-setting increases in our health insurance co-pays and premiums, along with service reductions (previously covered services-no longer covered.... ) Governor DeVille chooses to call them "reforms" in his new budget..... rather than cuts to benefits, which is what they are.....

NEWS FLASH!!!!!
The Group Insurance Premium and Plan Costs Line item for state employees in the new Governor De Ville Budget has been reduced by over $269 million for next year (due to "reforms", yeah, right!).... if reforms mean higher premiums and less coverage, I guess that's right....


I also note that the Insurance Premiums line item for teachers is going UP by $5million..... what do you read into that?

Here are some of the "reforms" were likely to see from the Group Insurance Commission:

......more Tiered- "Select and Save" plans ..... (in english it means THEY'VE selected a diluted health care coverage plan that will put the screws to YOU, so it will save THEM money)

..... one REALLY EXCITING new GIC Select and Save Plan you may be offerred in this years "Benefit Guide" provides that if you're willing to select a veterinarian for your primary care Doctor, and Angel Memorial Veterinary Clinic as your family hospital.... then your out of pocket costs will be held to only a 50% increase this year WOOF!..... hey with NAGE looking out for you how can you lose?

My advice is, that if you've been putting off an operation or other medical procedure..... do it now before things get any worse.... you could wind up bankrupted, or worse, if you wait till next year.... oh and try not to get sick.......

Believe me, Prez for Life Holway and the rest of Burgin Parkway Bandits don't care whether you get a fair contract, they have only one concern:
........keeping the flow of your dues into their pockets!

How much longer will it be before (when out of the blue, with no opportunity for public debate or discussion) we get the ballot asking us to vote for yet another insulting contract?

You know how it always goes, NAGE will once again be telling us....

Well.... it's not a GREAT contract,... ahhh, it's not even a GOOD contract,... in fact it's downright lousy contract..... but the Commonwealth can't afford to give you a fair cost of living adjustment.... just look at the projected deficit.....

Hmmmm.... too bad Holway and NAGE were selling you all down the river for 1.5% to 2% COLAS for all those years......when the Commonwealth was enjoying record high surplus revenues!....

If we'd had a union run by members, instead of self-serving swine interested only in their own obscene salaries, perhaps those contracts would have kept pace with inflation instead taking serious losses in inflation adjusted constant dollars.....

.......put another way, you're worse off today financially than you were 10-15 years ago, thanks to NAGE..... and by the time NAGE gets through "negotiating" the new contract, you'll be still worse off.....

Holway is warming up to do it again with his Judas Goat routine.... where he leads all the other unions to slaughter by settling for a dirt poor contract..... get ready to be sold down the river by NAGE headquarters, once again.....

NAGE will then publish a self-congratulatory piece in their in-house rag, the NAGE Reporter, bragging to the members that they the were the first union to settle! ..... what's really sad is that the SHEEP-LE in units 1&6 will eat this BS right up (hey I'll give a little credit to Unit 3, they at least had a case of temporary sanity when they voted the NAGE scum out in favor of MOSES (a real democratic union that accounts for every penny to their members.)
Alas they soon reverted to form with the rest of the pathetic sheep...

Stay posted and hang onto you wallets.

Governor De ville Patrick is beholden to the teacher's union and the municipalities.... He's got to provide health insurance for illegal aliens..... He's got to pay for those promises somehow.....

By the way, did I mention how tight Dave Holway is with Deval Patrick?.... he'll do real well for us.....

I can just picture it when they sit down to negotiate our contract: ... "Oh hi, Dave Holway, hmmmm... yeah I remember you now.... you're the guy who was busting my ass over the ambassador to the Netherlands... (that reminds me... screw you AND your members.... ")

NAGE thumbs nose at LMRDA Annual Report Deadline .... again

The NAGE LM-2 (Financial Disclosure) report is due at the Department of Labor 90 days after the close of the reporting union's fiscal year.

The NAGE fiscal year closed on August 31, 2006 making the LM-2 report due by November 29, 2006.

It's filed electronically, on-line and can be downloaded on the DOL Public disclosure web site.

The NAGE Report is not yet available.... what a surprise. I'm sure they've been too busy getting ready for this year's staff Xmas party...to bother with the federally mandated reporting... The Burgin Parkway Bandits didn't get around to filing last year, until May......... what's that? six months late?

Let's see what the scoff-laws do this year, how late will it be?..... well, you'd almost think they have something to hide....

What Things may we find out from the LM-2 (when it's finally filed)...hmmmm?

1) What did it cost us in hard earned dues to throw a good time for the "hardly -workin" NAGE HQ staff at THEIR (as opposed ot OUR) Xmas party ?...., (it was $12,400 for a good time at Jasper White's in 2005..... do you think Cambridge Dave was able to out-do that soiree in 2006 ?)

2) What was the Tab for the NAGE support of Level 4 Reilly, the NAGE endorsed candidate for governor in the democratic primary.... how much did we dump supporting Reilly while idiot Holway was going out of his way to insult Governor-elect Deval Patrick..... way to go Holway, you dope....
....by the way, would you please confine yourself to worrying about getting me a decent contract for a change and leave things like who's going to be ambassador to Netherlands up to the real big-shots in Washington.... you tomato-nosed fly-weight! And don't pull your usual Judas Goat Act, low-balling the NAGE members and leading the bargaining units in race to the bottom....

3) How much did it cost us to pay for Holway's defense in DC as result of that fracas started by the wronged local?.... no award of legal fees to NAGE because the Judge couldn't really conclude that that the charges made by the aggrieved local were frivolous (unlike the some of the cases filed by NAGE HQ)

4) How obscene were the raises Pres for life Holway granted to himself and his cronies (I'm gonna stick my neck out here and guess he didn't sell himself and his toadies down the river for 2% raises, with off-setting cuts in Health benefits and increases in premiums to boot.... like he did to the State Employees)

5) How many more settlements (pay-offs) did NAGE have make in response to lawsuits like the mystery of the $100K it cost us for a pay-off to Celia Olaes and William F. Sink in Honolulu, HI in 2005.....

6) More general financial evidence proving that NAGE is operated for the benefit of of Holway and his merry band (at the expense of the membership), and that the interests of the dues paying members are the furthest things from their minds and their expense accounts.

I'll keep you posted........

NAGE screwed brother Moshkovitz.....

AND they'll screw YOU too!

Here's what brother M got from NAGE in his time of need, and here's what you can expect to get from the self-serving ingrates at NAGE ... in return for your hard earned and ever increasing dues:

This sad story comes as no surprise to any of us who've taken the time to look into the shadowy, secretive and self-dealing practices of the scallywags at NAGE.

Hey, they may need our dues to pay for their exorbitant salaries, their expense accounts, their fancy banquets and x-mas parties,.... oh and don't forget the million$ they ship directly to the social engineers and legends-in-their-own-minds at SEIU international for their irrelevant causes.....

....and, They don't mind spending your dough trying to organize illegal immigrants, but they've got nothing for you dues payers, when you need it.....

.....These self-serving scum don't want to spend a nickel on the interests of the members who are actually paying them ... "representational expenses" in NAGE-speak means paying obscene salaries to do-nothing "officers", lay-abouts and their relatives at NAGE headquarters, but does not apparently include prosecuting the individual rights of dues paying members..... well not if it takes any real effort or costs any money!!!!

In fact, based on this case, one can conclude that NAGE isn't willing to spend any of it's due$ hoard DEFENDING the rights of individual members, but they are only too willing to spend it, big time, on legal fees in attempts to the trample the rights of their own members under bargaining agreements and state law...

......but anyway on with the Ballad of Herbert M ....

Laid off and abandoned by NAGE

Herbet Moshkovitz, was a tax examiner and a NAGE member "in good standing." He was laid off from his position at DOR.

He filed,with NAGE, two grievances and a request to exercise his bumping and transfer rights under the collective bargaining agreement. Herb found out that being a member of NAGE, is more like being bent over a chair with your shorts on backwards, than being "in good standing". Unfortunately brothers and sisters, you're likely to suffer same fate if you put your faith in NAGE....

NAGE never responded to Moshkovitz, and, indeed, NAGE conceded (in court and Labor Relations Commission proceedings) that it never investigated, or even evaluated his grievances, letters,or requests for representation !.... sound familiar?

The scum!, after taking his dues for years, they chose simply to ignore his pleas for representation.... Hey, his usefulness to the Burgin Parkway Bandits was at an end after all.... he'd been laid off and his dues were no longer being deducted from his pay check. It was Probably the first time brother M ever asked anything of the NAGE , they just gave him the brush-off.... I ask you folks, can a Union go any lower than that?.... (by the way this was one of the cases that inspired Judge Brown's rant about NAGE.)

NAGE tried the old flim-flam.... but Herb Moshkovitz out-smarted them.

Herb was smart cookie, all his dealings with NAGE were IN WRITING, TIMELY and sent REGISTERED MAIL...... Moshkovitz probably had good reason to think he'd better put everything in writing and keep copies...... having been a NAGE UNION STEWARD , no doubt he knew the kind of underhanded treatment he could expect .... scallywags would likely have just denied, denied, denied..... look how these dissembling scum handled things even when Herb had them dead to rights!

SO, LESSON NUMBER ONE learned from Herb's resounding victory, is when your dealing with these slippery weasels ....don't trust them and put things in writing, and send them registered, return receipt requested so you have proof you sent it (and of course you need to keep copies of everything.)

LRC -Labor Relations Commission

Armed with copies of his correspondence, grievances and the proof they had been filed with NAGE in timely fashion, he charged unfair labor practice with the Mass Labor Relations Commission.

NAGE's lame defense before the LRC was that Moshkovitz had failed to follow the correct procedure for filing a grievance and that he had no meritorious grievance. (And the guy had been a STEWARD for Christ's sake, can you imagine the run-around an ordinary member would have gotten?)

The LRC found that Moshkovitz's notices of grievances were sent registered mail in timely fashion to all persons required to receive them at NAGE and DOR. NAGE did not elaborate why it thought Moshkovitz's grievance letters inadequate.

Neither the LRC nor the Appeals Court were persuaded by NAGE's lame arguments that since Moshkovitz's grievances were not written on the correct "form" or letter head that they were "procedurally" flawed and therefore NAGE was entitled to ignore them...(what crap!). As to the merits of his grievances, the LRC determined that Moshkovitz had an arguable complaint on both the issue of promotion and the issue of how DOR went about selecting who was to be laid off.

NAGE, the LRC found, had done worse than decline consciously to represent Moshkovitz in his grievances; it simply ignored him. The union made no effort to advise Moshkovitz about how to proceed with his grievances after, by reason of his lay-off, he had ceased being a union steward. The LRC further found that an arbitrator might reasonably have found Moshkovitz entitled to a remedy on the basis of the two grievances he had alleged.

Frivolous APPEAL

In a fruitless and mean-sprited attempt to crush Moshkovitz and trample his rights (by using his own dues money against him) NAGE appealed the finding of the LRC.

The appeals court disposed of the frivolous appeal with tongue planted firmly in cheek and noted in relevant part:

In light of NAGE's undertaking to represent its members and avowed skill in so doing, the defense of improper processing by its member is redolent of afterthought, rather than a rational policy related to legitimate union purpose. See Pattison v. Labor Relations Commn., 30 Mass. App. Ct. at 16-17 (union's justification of technical processing failures by employee rejected). Similarly an apparent afterthought is NAGE's argument that it would be burdensome to process grievances when many members have, as here, been laid off. Apart from the remarkable suggestion that grievances may be ignored because it is hard work to process them, NAGE has conceded that it simply neglected Moshkovitz's grievance. The LRC was warranted, on the substantial evidence, in concluding that NAGE had violated its fair duty of representation to Moshkovitz by failing to process his grievance.


Once the LRC had made its findings and rulings, there was no reasonable expectation of reversal by an appellate court. The appeal was frivolous. Acting under Mass.R.A.P. 25, as amended, 376 Mass. 949 (1979), we order that NAGE pay to the LRC just damages of $2,000, and that its counsel on appeal pay to the LRC just damages of $1,000. See Allen v. Batchelder, 17 Mass. App. Ct. 453, 457-458 (1984).

If you'd like to read the whole case here it is.....

NATL. ASSN. OF GOVT. EMP. v. LABOR REL. COMMN., 38 Mass. App. Ct. 611 (1995)
650 N.E.2d 101


NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES vs. LABOR RELATIONS COMMISSION.


No. 94-P-354.


Appeals Court of Massachusetts.


Suffolk.


February 7, 1995.


May 26, 1995.




Present: BROWN, KASS, & GREENBERG, JJ.


Labor, Fair representation by union, Action against labor union. Contract, Collective bargaining contract. Labor Relations Commission.


The Labor Relations Commission's determination that a union had violated its duty of fair representation to a union member was supported by substantial evidence. [612-614] A frivolous appeal warranted this court's award of just damages to the appellee pursuant to the provisions of Mass.R.App.P. 25. [614]


APPEAL from a decision of the Labor Relations Commission.


Mark J. Dalton for the plaintiff.


Tammy Brynie for the defendant.


KASS, J.


After an evidentiary hearing and findings by the hearing examiner, the Labor Relations Commission (LRC) decided that National Association of Government Employees (NAGE) had violated its duty of fair representation to one of its members, Herbert Moshkovitz. The LRC ordered a variety of remedies to compensate Moshkovitz and, as well, ordered NAGE to post ostentatiously a notice confessing its errors and announcing that it would sin no more — at least not in the same way. NAGE has appealed. See G.L.c. 150E, § 11, par. 4. We affirm.


Moshkovitz, a tax examiner in the Department of Revenue (DOR), had been laid off in the spring of 1991, a fate he shared with eighty-seven other DOR employees. He was one of thirteen tax examiners being laid off out of twenty-three who had an original "hire date" with DOR of July 10, 1988. Page 612
The collective bargaining agreement between NAGE and DOR contained machinery allowing discharged employees with the requisite skills to bump those with less seniority but contained no provision for retention priorities among those with equal seniority. By letters dated March 25, 1991, and March 29, 1991, Moshkovitz notified NAGE of two grievances and a request to exercise certain "bump and transfer" rights. One of the two grievances protested the promotion of two employees by DOR without posting the promotion opportunity, as required by the collective bargaining agreement. The point here was that, had Moshkovitz achieved the higher position, he might have escaped the reduction in force in tax examiners. Moshkovitz's second grievance protested that his layoff had been determined in an unfairly discriminatory fashion considering his attendance, evaluations, and "other variables." Those notifications of grievance and request to the union anticipated the announced layoff. The termination ax in fact fell on Moshkovitz on April 5, 1991.
On May 10, 1991, Moshkovitz wrote to John Bent, the NAGE representative for his bargaining unit, that he had yet to hear from NAGE about his grievances and request. He added, "I am writing you with full expectation that the union will be representing me, and any others who may have similar concerns." NAGE never responded to Moshkovitz, and, indeed, NAGE concedes that it never investigated or evaluated his grievances, letters, or requests for representation.
NAGE's defense before the LRC was that Moshkovitz had failed to follow the correct procedure for filing a grievance and that he had no meritorious grievance. The LRC found that Moshkovitz's notices of grievances were sent registered mail in timely fashion to all persons required to receive them at NAGE and DOR. NAGE does not elaborate why it thought Moshkovitz's grievance letters inadequate. In its brief before us, NAGE makes invidious comparisons between those letters and grievances filed on NAGE grievance complaint forms. We are not persuaded by an argument that Moshkovitz's grievances stand or fall on whether he wrote to Page 613 the union on the right letterhead. As to the merits of his grievances, the LRC determined that Moshkovitz had an arguable complaint on both the issue of promotion and the issue of how DOR went about selecting who was to be laid off.


A union has a duty to represent its members fairly in connection with issues that arise under a collective bargaining unit. Vaca v. Sipes, 386 U.S. 171, 177 (1967). Switzer v. Labor Relations Commn., 36 Mass. App. Ct. 565, 567 (1994). In the discharge of that duty, there is room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake or negligence about whether a grievance ought to be pressed. That fairly generous scope for inaction is exceeded when the union's conduct is arbitrary, discriminatory, in bad faith, or (and this may be a variant on arbitrary conduct) grossly inattentive or grossly negligent. Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 606 (1990). Trinque v. Mount Wachusett Community College Faculty Assn., 14 Mass. App. Ct. 191, 197-202 (1982). Baker v. Local 2977, State Council 93, Am. Fedn. of State, County & Municipal Employees, 25 Mass. App. Ct. 439, 441-442 (1988). Pattison v. Labor Relations Commn., 30 Mass. App. Ct. 9, 16 (1991).


NAGE, the LRC found, had done worse than decline consciously to represent Moshkovitz in his grievances; it simply ignored him. The union made no effort to advise Moshkovitz about how to proceed with his grievances after, by reason of his lay-off, he had ceased being a union steward. The LRC further found that an arbitrator might reasonably have found Moshkovitz entitled to a remedy on the basis of the two grievances he had alleged. Reviewing courts generally accord substantial deference to determinations by the LRC, assuming, as here, settled legal standards, that a party has committed a prohibited labor practice. Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987). Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991). Pattison v. Labor Relations Page 614 Commn., 30 Mass. App. Ct. at 16. Felton v. Labor Relations Commn., 33 Mass. App. Ct. 926, 927 (1992). We are not disposed to discuss cavils of the union such as whether Moshkovitz improperly combined Step 1 and Step 2 grievances in one document. There was substantial evidence to support the LRC's underlying point that Moshkovitz properly processed his claim up to the time he was laid off and that NAGE failed entirely to continue the process thereafter. In light of NAGE's undertaking to represent its members and avowed skill in so doing, the defense of improper processing by its member is redolent of afterthought, rather than a rational policy related to legitimate union purpose. See Pattison v. Labor Relations Commn., 30 Mass. App. Ct. at 16-17 (union's justification of technical processing failures by employee rejected). Similarly an apparent afterthought is NAGE's argument that it would be burdensome to process grievances when many members have, as here, been laid off. Apart from the remarkable suggestion that grievances may be ignored because it is hard work to process them, NAGE has conceded that it simply neglected Moshkovitz's grievance. The LRC was warranted, on the substantial evidence, in concluding that NAGE had violated its fair duty of representation to Moshkovitz by failing to process his grievance.


Once the LRC had made its findings and rulings, there was no reasonable expectation of reversal by an appellate court. The appeal was frivolous. Acting under Mass.R.A.P. 25, as amended, 376 Mass. 949 (1979), we order that NAGE pay to the LRC just damages of $2,000, and that its counsel on appeal pay to the LRC just damages of $1,000. See Allen v. Batchelder, 17 Mass. App. Ct. 453, 457-458 (1984).


Decision of Labor Relations Commission affirmed.
Page 615

Judge Brown.... keepin' it real and telling it like it is...

Whoa baby!
Justice Brown of the Mass Appeals Court sure laid it on the line about the NAGE. His remarks, though somewhat indecorous for a judge, expressed his opinion of NAGE based on several cases that had come before him.

Right on judge, you hit the nail right on the head with these cracks! I couldn't agree with you more, when you said:

" I mean, when is somebody going to put their foot down?"

Justice Brown's comments included:

1. "This NAGE, whether you know it or not, is really an
outfit that's always in trouble. And that's why [the last time
NAGE's attorney] was here, the position that [inaudible] NAGE was so bad we sanctioned him and made him pay extra money for bringing
the case here."

2. "[T]he last time NAGE was here they — he had his whole
family on the payroll. And he sued the Boston Herald. And [w]e
threw the case out summarily."

3. "This [NAGE] is not one of the great American unions of
our country. And unions are important. If Judge Goodman were
here, he would be upset, one of the greatest judges ever to sit on
this court. He was a great union man. He believed in unions.
This is [a] union gone amok."

4. "If [Lyons] didn't like his job he ought to quit his
$100,000 job."

5. "We're talking about representation. In other words, a
man or woman pay their dues for something. What do they get? For
instance, I know the people in the courthouse here who pay their
dues get absolutely nothing. Now, what do these people get for
paying their dues? They get in trouble, they get a problem, and
they expect their union to do it."

6. "I mean, they're paying big money to these unions.
They must be, because I know, I just happen to have the
case. Because Mr. Lyons and all his family are making
$200,000 a year, plus they have cars and
expense accounts. So the money is not small change. . . . So
what are they doing for the money? Here's a poor guy, and I'm
not getting to the merits, and here's a guy who's got a
legitimate complaint. And they just throw him out, saying they
don't handle this kind of stuff."
<<<<My personal favorite!!!!>>>>>
7. "The last time we were here, if you were here, I don't
know. [NAGE's counsel] was here. Same case: duty of fair
representation. They [NAGE] don't represent anybody, as far as I can see. They just take the money and keep on stepping and buy more condos and have more expense accounts and have fancy banquets. I mean, when is somebody going to put their foot down?
And if [the Labor Relations Commission is] not going to do it,
we're going to do it."

The Judge actually received a formal reprimand for his injudicious (though well deserved) remarks about NAGE..... a tip of the hat to Judge Brown for telling it like it is......

Thank you judge Brown for speaking up for all the poor members who are milked for their dues money while being denied fair representation by the miscreants at NAGE......
unfortunately,nothing has changed........ but you had the guts to tell it like it is....


read the whole record, if you like....

IN THE MATTER OF BROWN, 427 Mass. 146 (1998)
691 N.E.2d 573
IN THE MATTER OF FREDERICK L. BROWN.
SJC-07642.
Supreme Judicial Court of Massachusetts.
Suffolk.
February 6, 1998.
March 24, 1998.

Present: Wilkins, C.J., Abrams, Lynch, Greaney, & Fried, JJ.

Judge.

A public reprimand was the appropriate sanction to be imposed, in
the circumstances, on a justice of the Appeals Court for the
justice's inappropriate and unjustified comments to an attorney
at oral argument that were so intemperate, excessive and insulting
as to create an appearance of partiality in violation of S.J.C.
Rule 3:09, Canons 2(A) and 3(A)(3). [148-154]

Formal charges filed in the Supreme Judicial Court on April
22, 1997.

A hearing was held before the Commission on Judicial Conduct
and a recommendation for discipline was submitted to this court.

Henry F. Owens, III (Lawrence P. Murray with him) for
Frederick L. Brown.

Michael B. Keating (Jack W. Pirozzolo with him) for
Commission on Judicial Conduct.

BY THE COURT.

The Commission on Judicial Conduct (Commission) has issued
a report and recommended a public reprimand in the matter of
Justice Frederick L. Brown. We conclude that a public reprimand is
appropriate.

1. The facts. George Edwards sued the National Association
of Government Employees (NAGE), alleging that NAGE had breached
its duty of fair representation by not representing him in an
earlier bypass appeal. The Labor Relations Commission dismissed
his complaint against NAGE, and Edwards appealed from that
decision to the Appeals Court.[fn1] On December 4, 1995, an
Appeals Court panel that included Justice Brown heard argument
in the case of Edwards v. Labor Relations Comm'n,
39 Mass. App. Ct. 1123 (1996). During oral argument, at which Edwards
represented himself, Justice Brown made a series of comments to counsel
for the Labor Relations Commission. His comments, which we set out in
full in the Appendix, criticized NAGE, its president, Kenneth T.
Lyons, and members of his family. Justice Brown stated, among
other things, that Lyons "had his whole family on the [NAGE]
payroll," that "[t]his is a[] union gone amok," that "people in
the courthouse here who pay their dues get absolutely nothing,"
that "Mr. Lyons and all his family are making $200,000 a year,
plus they have cars and expense accounts," and that "[t]hey [NAGE]
don't represent anybody, as far as I can see. They just take the
money and keep on stepping and buy more condos and have more
expense accounts and have fancy banquets."[fn2]

On February 16, 1996, after learning of these statements,
Lyons filed a complaint against Justice Brown with the
Commission. The Commission initiated an investigation, and on
November 15, 1996, this court, at the Commission's request,
appointed special counsel. On February 10, 1997, the Commission
issued a statement of allegations against Justice Brown, and on
April 8, 1997, it filed formal charges against him. These charges
alleged that Justice Brown's conduct in the Edwards case violated
G. L. c. 211C, § 2 (5) (c), which prohibits a judge from "willful
misconduct which, although not related to judicial duties, brings
the judicial office into disrepute," as well as Canons 1, 2 (A), 3
(A)(3), and 3 (C) of the Code of Judicial Conduct, S.J.C. Rule
3:09, as appearing in 382 Mass. 808 (1981). On April 30, 1997,
this court appointed a retired judge of the Superior Court to hold
formal hearings on these charges. These hearings were held in
July and August, 1997, and on August 26, 1997, the hearing officer
issued his report and recommendations, in which he concluded that
the Commission had proven by clear and convincing evidence that
Justice Brown violated Canons 2 (A) and 3 (A) (3). He found neither
a violation of the statute nor of Canons 1 and 3 (C). The hearing
officer recommended the imposition of a private reprimand
or censure and an order that Justice Brown recuse himself in
future proceedings involving NAGE, Lyons, or any member of the
Lyons family. Both the special counsel and Justice Brown objected
to the hearing officer's final report, and on October 14, 1997,
the Commission held a hearing regarding the recommendation for
discipline. At Justice Brown's insistence, the hearing was
public. On October 30, 1997, the Commission unanimously recommended
to this court the imposition of a public reprimand in light of
previous incidents of misconduct.

2. The Canons. Canon 2 (A) provides that "[a] judge should
respect and comply with the law and should conduct himself at all
times in a manner that promotes public confidence in the integrity
and impartiality of the judiciary." Canon 3 (A) (3) states, in
relevant part, that "[a] judge should be patient, dignified, and
courteous to litigants, jurors, witnesses, lawyers, and others
with whom he deals in his official capacity . . . ." As we have
said before, "The Code of Judicial Conduct requires judges in this
Commonwealth to exhibit the highest standards of professional
conduct." Matter of Donohue, 390 Mass. 514, 518 (1983).

Justice Brown insists that in this case he was entirely
impartial and fair. Several of his fellow Justices on the Appeals
Court, including those who were on the panel in this case,
testified that integrity and impartiality characterize Justice
Brown's work as a judge not only in this case but in general. We
do not doubt that this is so. The two other Justices on the panel
in this case had the opportunity to hear his discussion in the
semble following the argument of the case. And Justice Brown and
his fellow panel members point out that the Commission's judgment
favorable to NAGE was unanimously affirmed by the panel on which
Justice Brown was a member. See Edwards v. Labor Relations
Comm'n, 39 Mass. App. Ct. 1123 (1996). Canons 2
(A) and 3 (A) (3) both, however, address matters of appearance.
It is quite possible for a judge to uphold the highest standards
of integrity and impartiality and yet violate these canons. That
is not to say that these canons therefore address only superficial
matters of etiquette and should count for little if the substance
of integrity and impartiality has obtained.

Judges wield an awesome and final power over the liberty
and property of their fellow citizens. This power is the more
awesome because in this Commonwealth, as in the Federal
system, we are neither elected nor subject to recall or retention
elections. This power is tolerable in a democracy because judges
speak only for reason and the law. As stated in The Federalist No.
78 (Alexander Hamilton), we have "neither force nor will, but
merely judgment." For every litigation at least one-half of those
involved are likely to come away sorely dissatisfied, and every
citizen has reason to apprehend that one day he might be on the
losing side of our exercise of judgment. Therefore, this
arrangement requires an exacting compact between judges and the
citizenry. It is not enough that we know ourselves to be fair and
impartial or that we believe this of our colleagues. Our power
over our fellow citizens requires that we appear to be so as well.
How else are ordinary citizens to have the faith in us that we
have in ourselves and Justice Brown's colleagues testified that
they have in him? An impartial manner, courtesy, and dignity are
the outward sign of that fairness and impartiality we ask our
fellow citizens, often in the most trying of circumstances, to
believe we in fact possess. Surely it is arrogance for us to say
to them that we may not seem impartial, but we know we are, and so
they must submit. Precisely because the public cannot witness, but
instead must trust, what happens when a judge retires to the privacy
of his chambers, the judiciary must behave with circumspection when
in the public eye.

Finally, patience and courtesy are required of a judge toward
those he deals with in his official capacity for the additional
reason that a judge in that official capacity is granted the power
to command silence and respect in his presence. It is not
punishable to interrupt or show disrespect to a legislator, the
Governor, or even the President. But this unusual deference is
granted the judge only to allow him to do his work. When a judge
berates or acts discourteously to those before him — even if he
cannot affect their interests as litigants — he abuses his power
and humiliates those who are forbidden to speak back.[fn3] Of
course there are times when a judge must and should admonish and
express harsh judgment to those before him, but they must be
limited to the necessities of the occasion, being neither
gratuitous nor irrelevant to it.

The remarks that are the subject of this complaint violate
both Canons 2 (A) and 3 (A) (3). They express what appears to be
a strong animus against the union and its leadership, accusing
them of a general and persistent neglect of their obligations to
the membership and of self-dealing that is disgraceful if not
criminal. Such accusations go far beyond any comment appropriate
to the circumstances of this particular dispute, although of
course if Edwards's complaint were valid it might stand as an
example of the general situation Justice Brown described. In
making these remarks Justice Brown did not conduct himself "in a
manner that promotes public confidence in the integrity and
impartiality of the judiciary." It is if anything even clearer
that these remarks were the very opposite of the "patient,
dignified, and courteous" conduct required of a judge. They were
intemperate, excessive, unjustified by anything properly before
the court, and gratuitously insulting of persons directly and
indirectly implicated in the case at bar.

Justice Brown argues that these canons do not forbid the
comments that he made at the Edwards argument.[fn4] First, he
claims that Canon 3 (A) (3) applies only to comments made about
the parties and attorneys before a judge, and not about nonparties
such as Lyons, his family, or NAGE. This is incorrect.
The canon requires a judge to be patient and dignified
generally, regardless of the context or content of a judge's
speech. As to courtesy, the canon explicitly commands that it be
shown to all with whom the judge deals in an official capacity.
Justice Brown admits that his "comments were directed to the
lawyer for the Labor Relations Commission," who clearly was before
the court.[fn5] Moreover, any discourtesy or impatience in
Justice Brown's statements had implications for those in the
courtroom; the justice spoke insultingly of persons directly
Page 151
affected by the outcome of the matter before him. In any event,
the spirit and purpose of Canon 3 (A) (3) would hardly be served
by holding that a judge may act in an undignified manner while on
the bench so long as he only chooses to berate persons not present
before him. Any discourtesy to NAGE, Lyons, and Lyons's family
was clearly within the scope of Canon 3 (A) (3).

Second, Justice Brown argues that his comments are immunized
from discipline because they derived from his knowledge of
National Ass'n of Gov't Employees v. Labor Relations Comm'n,
38 Mass. App. Ct. 611 (1995) (Moshkovitz case), and Rielly v. News
Group Boston, Inc., 38 Mass. App. Ct. 909, cert. denied,
116 S. Ct. 181 (1995). Citing the "extrajudicial source" doctrine
discussed in Liteky v. United States, 510 U.S. 540, 545 (1994),
Justice Brown claims that, if a judge's statements are based on
experience in a prior case or on judicial materials, they cannot
be the basis of a disciplinary proceeding under Canon 3 (A) (3).
This misreads the canon and the Liteky case. A judge may, indeed
sometimes must, form opinions concerning those appearing before
him, Liteky, supra at 551, and at times he may choose to share
those opinions publicly. This does not, however, license a judge
to violate Canon 3 (A) (3)'s restriction on the manner in which a
judge must conduct herself. For the purposes of Canon 3 (A) (3),
the foundation of a judge's comments are largely irrelevant.

Moreover, many of Justice Brown's comments at the Edwards
argument were not based on a judicial source or on his prior
judicial experience. Nothing in Moshkovitz or Rielly supports
Justice Brown's assertions that NAGE is a union run "amok" or that
Lyons and his family take members' money and buy condos or hold
banquets. Nor do these cases support Justice Brown's comment that
he knew of union members in the courthouse who "get absolutely
nothing" for their union dues. These comments derived from
personal opinion, not judicial sources.

Third, Justice Brown argues that Canon 3 (A) (3) should only
be applied to sanction behavior that is so discourteous that it
raises sufficient doubts about a judge's impartiality to require
recusal. The Justice again points to Liteky v. United States,
supra, in which the Supreme Court interpreted the Federal statute
addressing judicial recusal, 28 U.S.C. § 455(a) (1994), and held
that "expressions of impatience, dissatisfaction, annoyance, and
even anger," id. at 555-556, do not suffice to establish the bias
or prejudice required for recusal of a Federal judge, unless "they
reveal such a high degree of favoritism or antagonism as to make
fair judgment impossible." Id. at 555. Although we have referred
to Liteky's reasoning in the recusal context, see Demoulas v.
Demoulas Super Mkts., Inc., 424 Mass. 501, 525 (1997), the case
has little relevance in the context of Canon 3 (A) (3).
Impatience, a lack of dignity, or discourtesy — the stuff of
Canon 3 (A) (3) — may not suffice to demand recusal, but the bias
and prejudice relevant in a recusal proceeding are not therefore
necessary to find a violation of Canon 3 (A) (3). We have not
previously required a showing of bias or prejudice to find a
violation of Canon 3 (A) (3),[fn6] and we do not now.

Fourth, Justice Brown argues that his conduct is somehow
excused by his position as an appellate justice, rather than a
trial judge. He argues that we should consider the "unique
dynamics of the appellate process," which compel an appellate
justice to question litigants closely and to press for the
validity of the presented arguments. All judges must exhibit
rigor in their work, and Justice Brown has done so admirably for
many years. But this does not diminish the importance or scope of
Canons 2 (A) and 3 (A) (3), which safeguard the public's
confidence in the judiciary's impartiality without which a judge's
search for truth and justice, both aims of rigorous questioning at
oral argument, would be futile. There are differences between
trial and appellate proceedings, but they do not excuse the
behavior in this case. In many respects a trial judge labors in
more difficult circumstances, seeking to control parties,
witnesses and advocates, all of whom may have an interest in
improperly swaying the minds of the jury. The appellate justice
operates in a cooler atmosphere and has less excuse for the
occasional display of temper. It is certainly appropriate for
an appellate judge in oral argument to probe counsel's arguments
for weaknesses in reasoning or factual support. By no stretch
can the remarks we have recounted be seen as serving
that function.[fn7] In any event, the canons in question
do not distinguish between trial and appellate judging, nor do we
see why they should. Although we certainly consider the context
within which a judge's alleged misconduct takes place when applying
the Code of Judicial Conduct, we are certain that the appearance of
impartiality and courtesy are as important in appellate judging as
at trial.

Finally, Justice Brown contends that the hearing officer
erred in his application of Canon 2 (A). The hearing officer's
final report to the Commission found that Justice Brown's
"remarks were of such a nature as to create the appearance of
partiality in the minds of at least those persons against whom
they were directed." The hearing officer thus concluded that,
although Justice Brown was in fact impartial and did not lack
integrity, Justice Brown's comments failed to maintain the
appearance of impartiality required by the canon. Justice Brown
argues that this conclusion was impermissibly focused on the
subjective impression of those in the courtroom, rather than on an
objective analysis of whether a reasonable person would have found
his comments offensive to the appearance of impartiality.

The hearing officer's report did not misapply Canon 2 (A).
In context, the hearing officer's statement must be taken to mean
these remarks would have created an appearance of partiality to a
reasonable person in the situation of the person to whom they were
directed. In any event, reading them for ourselves we firmly
conclude that they create an appearance of partiality. No
reasonable person could doubt that certain of Justice Brown's
comments cast a shadow on the appearance of impartiality.
Statements that NAGE was "an outfit that's always in trouble" and
a "union gone amok" give an appearance of bias. Comments that
"[t]hey don't represent anybody, as far as I can see. They just
take the money and keep . . . buy[ing] more condos and hav[ing]
more expense accounts" were groundless, irrelevant, and
inappropriate, and would make an objective observer question the
judge's neutrality.

3. Reprimand. Several of Justice Brown's colleagues on the
Appeals Court have testified warmly on his behalf. They paint a
picture of a judge who is conscientious, learned, intelligent,
Page 154
creative, and independent. Though we do not know him as well as
they do, we know that his work exhibits these qualities. But the
conduct we review today, though largely a matter of appearances,
is unacceptable. It is, moreover, the third time that Justice
Brown has been called to order for his injudicious and intemperate
remarks — the two previous occasions (noted in the Commission's
report) having resulted in the Commission's issuing a
"confidential letter of concern" and in a confidential "informal
adjustment," in which Justice Brown acknowledged he had violated
Canons 1 and 3 of the Code of Judicial Conduct. The statements
which are the subject of this proceeding were made less than a
month after Justice Brown executed that informal adjustment.
Justice Brown must show appropriate restraint, lest he destroy his
ability to perform effectively the very great service he has over
many years rendered the people of the Commonwealth. We therefore
publicly reprimand Justice Brown for violating Canons 2 (A) and 3
(A) (3) of the Code of Judicial Conduct, and order that Justice
Brown be recused from future cases involving NAGE, Lyons, or any
member of Lyons's immediate family.

So ordered.

[fn1] Although before the Labor Relations Commission NAGE is the
defendant, on appeal from its decision the Labor Relations
Commission itself is the appellee. See generally G. L. c.
30A, § 14.

[fn2] We have listened to a tape recording of the oral argument.
Although we would hesitate to amplify our reaction to the actual
words spoken by noting their tone, we well might consider that
tone as supplying a context in which the words would not be as
offensive as they might appear in the written record. Suffice it
to say that the recording offers no mollifying or mitigating
nuance here.

[fn3] As the Judicial Conference of the United States has stated,
"[t]he robe a judge wears as he sits upon the bench is not a
license to excoriate lawyers or anyone else." J.M. Shaman, S.
Lubet & J.J. Alfini, Judicial Conduct and Ethics 61 (2d ed. 1995).

[fn4] Justice Brown points out that G. L. c. 211C, § 7 (4),
requires that the charges be proved by "clear and convincing
evidence." There are no disputed issues of fact with respect to
the two charges. They are based on comments that no one disputes
were made. The dispute relates to whether these comments may
properly be characterized as violating the canons, that is, to the
application of a legal standard to undisputed facts. In that
context the statutory burden is largely inapposite. In accord
with its spirit, however, we ask ourselves whether we are quite
certain of our conclusions on this question of application. We
are.

[fn5] Although the attorney in question has not filed a separate
complaint about Justice Brown's conduct, that does not place
discourtesy to that attorney beyond the reach of the Commission's
disciplinary proceedings. Moreover, not only did NAGE have a
substantive interest in the outcome of the Edwards case, it had
filed a brief as an intervener in the matter.

[fn6] See Matter of Donohue, 390 Mass. 514, 518 (1983). See also
Matter of Jenkins, 503 N.W.2d 425, 426 (Iowa 1993) (finding
violation of Canon 3 [A] [3] without requiring showing of bias or
partiality); Matter of Cox, 532 A.2d 1017, 1019 (Me. 1987)
(shouting and swearing at police officer in chambers violated
Canons 2[A] and 3[A][3] without requiring showing of bias or
partiality).

[fn7] Justice Brown emphasizes that Edwards was appearing pro se,
suggesting that therefore it was particularly important to probe
his opponent's arguments. That may be, but as we have said, the
remarks which are the basis of these charges probe no arguments.
They merely berate and insult.

APPENDIX.

Justice Brown's comments included:

1. "This NAGE, whether you know it or not, is really an
outfit that's always in trouble. And that's why [the last time
NAGE's attorney] was here, the position that [inaudible] NAGE was
so bad we sanctioned him and made him pay extra money for bringing
the case here."

2. "[T]he last time NAGE was here they — he had his whole
family on the payroll. And he sued the Boston Herald. And [w]e
threw the case out summarily."

3. "This [NAGE] is not one of the great American unions of
our country. And unions are important. If Judge Goodman were
here, he would be upset, one of the greatest judges ever to sit on
this court. He was a great union man. He believed in unions.
This is [a] union gone amok."

4. "If [Lyons] didn't like his job he ought to quit his
$100,000 job."

5. "We're talking about representation. In other words, a
man or woman pay their dues for something. What do they get? For
instance, I know the people in the courthouse here who pay their
dues get absolutely nothing. Now, what do these people get for
paying their dues? They get in trouble, they get a problem, and
they expect their union to do it."

6. "I mean, they're paying big money to these unions.
They must be, because I know, I just happen to have the
case. Because Mr. Lyons and all his family are making
$200,000 a year, plus they have cars and
expense accounts. So the money is not small change. . . . So
what are they doing for the money? Here's a poor guy, and I'm
not getting to the merits, and here's a guy who's got a
legitimate complaint. And they just throw him out, saying they
don't handle this kind of stuff."

7. "The last time we were here, if you were here, I don't
know. [NAGE's counsel] was here. Same case: duty of fair
representation. They [NAGE] don't represent anybody, as far as I
can see. They just take the money and keep on stepping and buy
more condos and have more expense accounts and have fancy
banquets. I mean, when is somebody going to put their foot down?
And if [the Labor Relations Commission is] not going to do it,
we're going to do it."