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."