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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CANO. 7 _ 13Y8
DANIEL BERG, ANDREW FERRARA, )
LOCAL S-28, INTERNATIONAL | )
ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, )
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and LOCAL S-29, INTERNATIONAL | )
ASSOCIATION OF FIRE FIGHTERS, AFL-CIO)
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Cc ‘OMPLAINT FOR SPECIFIC PERFORMANCE OF STATUTE
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I INTRODUCTION
1 This is a civil action seeking enforcement of M.G.L.c 33 § 59, which provides for
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paid leave for employees of the Commonwealth of Massachusetts who are absent to attend to
military obligations. Pursuant to MGLc 33 § 59, employees of the Commonwealth are entitled
to up to 40 days per year of paid leave for annual training and weekend drills. The
Commonwealth of Massachusetts has refused to provide this leave to its firefighters, who work
24-hour shifts, claiming that each “day” 1 onl ly entitles these employees to a fraction of their shift.
The statute, however, specifically defin "s day as any 24-hour period.
u. PARTIES
2. Plaintiff Daniel Berg is a resident of Hampden, Massachusetts, and is currently
employed by the Commonwealth of Massachusetts as a firefighter and member of Local S-29,
LA.F.F., at Barnes Air Force Base. {
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3 Plaintiff Andrew Ferrara is'a resident of Norton, Massachusetts, and is currently
employed by the Commonwealth of Massachusetts as a firefighter and member of Local S-28,
LA.F.F., at Joint Base Cape Cod.
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4 Plaintiff, Local S-29, LAER, is the duly certified collective bargaining agent for
uniformed firefighters and officers employed by the Commonwealth of Massachusetts at Barnes
Air Force Base. This Local represents its members with respect to wages, terms, and conditions
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of employment, including military leave and pay.
5 Plaintiff, Local S-28, LAP, is the duly certified collective bargaining agent for
uniformed firefighters and officers employed by the Commonwealth of Massachusetts at Joint
Base Cape Cod. This Local represents its members with respect to wages, terms, and conditions
of employment, including military leave'and pay.
6. The Defendant, the Commonwealth of Massachusetts is a state within the United
States of America and a public employer of firefighters at Barnes Air Force Base and Joint Base
Cape Cod.
Ti. FACTS
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7 Daniel Berg (“Berg”) began working as a firefighter for the Commonwealth of
Massachusetts (“Commonwealth” or “Defendant”) on February 19, 2017, at Barnes Air Force
Base (“Barnes”).
8 Berg enlisted in the United States Air Force December 3", 2014, and honorably
discharged from the Air Force December 3", 2020.
9 Andrew Ferrara (“Ferrara”) began working as a firefighter EMT for the
Commonwealth, in August 2011 at Joint Base Cape Cod (“JBCC”).
10. Ferrara enlisted in the United States Army National Guard in 2009 and remains a
Reservist in the Army National Guard.
“U. In August 2018, the Commonwealth of Massachusetts enacted the Act Relative to
Veterans’ Benefits, Rights, Appreciation, Validation and Enforcement (the “BRAVE Act”),
which amended M.G.L.c. 33, § 59. [St. 2018, ch. 218, §§ 6 to 8.]
12. The BRAVE Act amended, among other things, the number of days of military
leave to which employees are entitled and added a definition of the word “day.” [Id.]
13. The law now provides that Commonwealth employees are entitled to up to forty
days of military leave in each federal fiscal year without loss of pay and includes that “[flor
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purposes of this subsection, ‘day’ shall mean any 24-hour period regardless of calendar day.”
GL. c. 33, § 59a). t
14. Ferrara and Berg (collectively, “Plaintiff Firefighters”) work 24-hour shifts, from
7am to 7am the next day.
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15. Local $-29 members at Bames work a two-week cycle of four twenty-four hour
shifts and one ten-hour shift, resulting in an average of fifty-three hours per week for members
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over eight weeks. |
16. Local S-28 members at IBCC work one twenty-four-hour shift on, followed by
two shifts off, followed by one shift on, followed by four shifts off. This pattern repeats for eight
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weeks, resulting in an average of forty-two hours of work per week over eight weeks.
17. From August 2018 and December 2020, when Berg was honorably discharged
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from the Air Force, Berg was a member of Local S-29 and worked as a firefighter at Bares
Airforce Base. As a result, Daniel Berg was absent from work on various occasions, including a
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minimum of two weeks each year for annual training and one weekend each month for weekend
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drills for military commitments. 1
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18. From August 2018 to date, Ferrara has been a member of Local S-28, worked as a
firefighter EMT at JBCC, and served as a Reservist for the Army National Guard. As a result,
Ferrara has been absent from work on various occasions, including a minimum of two weeks
each year for annual training and one weekend each month for weekend drills for military
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commitments.
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19. Plaintiff Employees yearly military obligations often exceeded the minimum
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commitment depending upon state activations and deployment overseas.
20. Prior to the passage of the BRAVE Act in August 2018, Commonwealth
Employees received military pay pursuant to the version of M.G.L. c. 33, § 59 that existed at the
time, which did not define a “day” and was administered as one-fifth of the average week.
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21. The Commonwealth of Massachusetts has failed to apply the changes enacted by
the BRAVE Act. It continues to administer military leave exactly how it was administered prior
to 2018.
22. In 2019, while deployed, Danie Berg contacted his employer and exchanged e-
mails with Marcia Hiatt, Personnel Analyst IIL, to clarify how the BRAVE Act applied to him
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while deployed.
23. Hiatt informed Berg thatthe BRAVE act did apply and that he was entitled to
10.6 hours for each day, for a total of 424 hours of military leave time each year.
24. In a December 3, 2020, é-mail, from Assistant Chief of Operations Larry Buell to
employees at Barnes Airforce Base, Buell explained that firefighters were allowed to be absent
‘
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for the entire 24-hour shift but would be required to use their accrued time if they wanted to be
paid for the whole shift.
25. Buell explained that firefighters on weekend drills would be given ten hours of
military pay and required to use fourteen hours of other accrued time for the remainder of their
24-hour-shift. For annual training and other active duty, firefighters would receive seventeen
hours of military leave time and seven hours of other accrued leave to cover the remainder of
their shift.
26. In 2020, Andrew Ferrara suffered a serious injury during military training. Ferrara
was placed on military orders to rchabiltte his injury following surgery on February 25, 2021.
27. On April 27, 2021, Hiatt ‘sent Ferrara an email informing him he had only twenty-
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four hours of military leave time remaining in the fiscal year and requesting communication on
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whether he would be using accrued leave or pay differential for the rest of his orders.
28. Tn response to a request for clarification of the time he used, Hiatt asserted that a
“day” at JBCC is 8.4 hours thus the BRAVE Act only entitled him to 336 hours of military leave
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time each year. |
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COUNT I
(DECLARATORY JUDGMENT)
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29. Plaintiff's incorporate by; reference the allegations contained in paragraphs 1
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through 28. I
30. _ By failing and refusing to provide up to forty days of leave without loss of pay
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and without use of other accrued time for weekend drills and annual training, the Commonwealth
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has violated M.G.L. c. 33, § 59.
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31. Plaintiffs seeks a declaration from this Court that the Commonwealth’s
firefighters who could not or cannot work their scheduled 24-hour shift because of weekend
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drills or annual training for the military are entitled to leave without loss of pay and without use
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of other accrued time as one “day” of military leave pursuant to G.L. c. 33, § 59(a).
WHEREFORE, Plaintiff respectfully requests that this Honorable Court:
1. Enter judgment according to the declaratory relief sought;
2. Order the Commonwealth to pay Daniel Berg and Andrew Ferrara and any other~
Local S-28 or S-29 members the difference between the military leave actually
provided and what the law requires for any qualifying absence from August 2018 to
date.
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| Respectfully submitted,
DANIEL BERG, ANDREW FERRARA, LOCAL
S-28, INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS, and LOCAL S-29,
INTERNATIONAL ASSOCIATION OF FIRE
FIGHTERS
By their attorneys,
Qhans
Jarfes Hykel
Mybh Leone
Pyle, Rome, Ehrenberg, P.C.
2 Liberty Square, 10th Floor
Boston, MA 02109
(617) 367-7200
Dated: August 12, 2021
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COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CANO. 7 _ 13Y8 DANIEL BERG, ANDREW FERRARA, ) LOCAL S-28, INTERNATIONAL | ) ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, ) I and LOCAL S-29, INTERNATIONAL | ) ASSOCIATION OF FIRE FIGHTERS, AFL-CIO) || ) < a Plaintiffs | on | ) Ox ae on =co re ) ao QF COMMONWEALTH OF MASSACHUSETTS a me mc ns ) Be So Am AD ) oz ae 02 Defendant ao ma ae 22 ) 2S = se nme ! ma ca Cc ‘OMPLAINT FOR SPECIFIC PERFORMANCE OF STATUTE | I INTRODUCTION 1 This is a civil action seeking enforcement of M.G.L.c 33 § 59, which provides for | paid leave for employees of the Commonwealth of Massachusetts who are absent to attend to military obligations. Pursuant to MGLc 33 § 59, employees of the Commonwealth are entitled to up to 40 days per year of paid leave for annual training and weekend drills. The Commonwealth of Massachusetts has refused to provide this leave to its firefighters, who work 24-hour shifts, claiming that each “day” 1 onl ly entitles these employees to a fraction of their shift. The statute, however, specifically defin "s day as any 24-hour period. u. PARTIES 2. Plaintiff Daniel Berg is a resident of Hampden, Massachusetts, and is currently employed by the Commonwealth of Massachusetts as a firefighter and member of Local S-29, LA.F.F., at Barnes Air Force Base. { | t 3 Plaintiff Andrew Ferrara is'a resident of Norton, Massachusetts, and is currently employed by the Commonwealth of Massachusetts as a firefighter and member of Local S-28, LA.F.F., at Joint Base Cape Cod. ~ 4 Plaintiff, Local S-29, LAER, is the duly certified collective bargaining agent for uniformed firefighters and officers employed by the Commonwealth of Massachusetts at Barnes Air Force Base. This Local represents its members with respect to wages, terms, and conditions 1 of employment, including military leave and pay. 5 Plaintiff, Local S-28, LAP, is the duly certified collective bargaining agent for uniformed firefighters and officers employed by the Commonwealth of Massachusetts at Joint Base Cape Cod. This Local represents its members with respect to wages, terms, and conditions of employment, including military leave'and pay. 6. The Defendant, the Commonwealth of Massachusetts is a state within the United States of America and a public employer of firefighters at Barnes Air Force Base and Joint Base Cape Cod. Ti. FACTS 1 7 Daniel Berg (“Berg”) began working as a firefighter for the Commonwealth of Massachusetts (“Commonwealth” or “Defendant”) on February 19, 2017, at Barnes Air Force Base (“Barnes”). 8 Berg enlisted in the United States Air Force December 3", 2014, and honorably discharged from the Air Force December 3", 2020. 9 Andrew Ferrara (“Ferrara”) began working as a firefighter EMT for the Commonwealth, in August 2011 at Joint Base Cape Cod (“JBCC”). 10. Ferrara enlisted in the United States Army National Guard in 2009 and remains a Reservist in the Army National Guard. “U. In August 2018, the Commonwealth of Massachusetts enacted the Act Relative to Veterans’ Benefits, Rights, Appreciation, Validation and Enforcement (the “BRAVE Act”), which amended M.G.L.c. 33, § 59. [St. 2018, ch. 218, §§ 6 to 8.] 12. The BRAVE Act amended, among other things, the number of days of military leave to which employees are entitled and added a definition of the word “day.” [Id.] 13. The law now provides that Commonwealth employees are entitled to up to forty days of military leave in each federal fiscal year without loss of pay and includes that “[flor | purposes of this subsection, ‘day’ shall mean any 24-hour period regardless of calendar day.” GL. c. 33, § 59a). t 14. Ferrara and Berg (collectively, “Plaintiff Firefighters”) work 24-hour shifts, from 7am to 7am the next day. | ' 15. Local $-29 members at Bames work a two-week cycle of four twenty-four hour shifts and one ten-hour shift, resulting in an average of fifty-three hours per week for members t over eight weeks. | 16. Local S-28 members at IBCC work one twenty-four-hour shift on, followed by two shifts off, followed by one shift on, followed by four shifts off. This pattern repeats for eight ‘ weeks, resulting in an average of forty-two hours of work per week over eight weeks. 17. From August 2018 and December 2020, when Berg was honorably discharged | from the Air Force, Berg was a member of Local S-29 and worked as a firefighter at Bares Airforce Base. As a result, Daniel Berg was absent from work on various occasions, including a i | | minimum of two weeks each year for annual training and one weekend each month for weekend I drills for military commitments. 1 | 18. From August 2018 to date, Ferrara has been a member of Local S-28, worked as a firefighter EMT at JBCC, and served as a Reservist for the Army National Guard. As a result, Ferrara has been absent from work on various occasions, including a minimum of two weeks each year for annual training and one weekend each month for weekend drills for military ' commitments. 1 19. Plaintiff Employees yearly military obligations often exceeded the minimum ' commitment depending upon state activations and deployment overseas. 20. Prior to the passage of the BRAVE Act in August 2018, Commonwealth Employees received military pay pursuant to the version of M.G.L. c. 33, § 59 that existed at the time, which did not define a “day” and was administered as one-fifth of the average week. 1 21. The Commonwealth of Massachusetts has failed to apply the changes enacted by the BRAVE Act. It continues to administer military leave exactly how it was administered prior to 2018. 22. In 2019, while deployed, Danie Berg contacted his employer and exchanged e- mails with Marcia Hiatt, Personnel Analyst IIL, to clarify how the BRAVE Act applied to him i while deployed. 23. Hiatt informed Berg thatthe BRAVE act did apply and that he was entitled to 10.6 hours for each day, for a total of 424 hours of military leave time each year. 24. In a December 3, 2020, é-mail, from Assistant Chief of Operations Larry Buell to employees at Barnes Airforce Base, Buell explained that firefighters were allowed to be absent ‘ 1 for the entire 24-hour shift but would be required to use their accrued time if they wanted to be paid for the whole shift. 25. Buell explained that firefighters on weekend drills would be given ten hours of military pay and required to use fourteen hours of other accrued time for the remainder of their 24-hour-shift. For annual training and other active duty, firefighters would receive seventeen hours of military leave time and seven hours of other accrued leave to cover the remainder of their shift. 26. In 2020, Andrew Ferrara suffered a serious injury during military training. Ferrara was placed on military orders to rchabiltte his injury following surgery on February 25, 2021. 27. On April 27, 2021, Hiatt ‘sent Ferrara an email informing him he had only twenty- | four hours of military leave time remaining in the fiscal year and requesting communication on ! whether he would be using accrued leave or pay differential for the rest of his orders. 28. Tn response to a request for clarification of the time he used, Hiatt asserted that a “day” at JBCC is 8.4 hours thus the BRAVE Act only entitled him to 336 hours of military leave | time each year. | | COUNT I (DECLARATORY JUDGMENT) | 29. Plaintiff's incorporate by; reference the allegations contained in paragraphs 1 | through 28. I 30. _ By failing and refusing to provide up to forty days of leave without loss of pay ! and without use of other accrued time for weekend drills and annual training, the Commonwealth tt has violated M.G.L. c. 33, § 59. : 31. Plaintiffs seeks a declaration from this Court that the Commonwealth’s firefighters who could not or cannot work their scheduled 24-hour shift because of weekend 1 | | | drills or annual training for the military are entitled to leave without loss of pay and without use | of other accrued time as one “day” of military leave pursuant to G.L. c. 33, § 59(a). WHEREFORE, Plaintiff respectfully requests that this Honorable Court: 1. Enter judgment according to the declaratory relief sought; 2. Order the Commonwealth to pay Daniel Berg and Andrew Ferrara and any other~ Local S-28 or S-29 members the difference between the military leave actually provided and what the law requires for any qualifying absence from August 2018 to date. '|| 1 | Respectfully submitted, DANIEL BERG, ANDREW FERRARA, LOCAL S-28, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, and LOCAL S-29, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS By their attorneys, Qhans Jarfes Hykel Mybh Leone Pyle, Rome, Ehrenberg, P.C. 2 Liberty Square, 10th Floor Boston, MA 02109 (617) 367-7200 Dated: August 12, 2021