COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Richard P. Bradley,

Petitioner

v. Docket No. CR-07-396

Boston Retirement Board,

Respondent


Appearance for Petitioner:

Richard P. Bradley, pro se

8 Glenhaven Road
West Roxbury, MA 02132

Appearance for Respondent:

Edward McKenna, Esq.

66 N Street
South Boston, MA 02127

Administrative Magistrate:

Sarah H. Luick, Esq.

DECISION

Pursuant to G. L. c. 32, § 16(4), the Petitioner, Richard P. Bradley, is appealing the decision of the Boston Retirement Board, classifying his job in connection with his retirement, in Group 1 instead of Group 4. (Exs. 1 & 2) A hearing was held April 23, 2008, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G. L. c. 7, § 4H and 801 CMR 1.01, et seq. Various documents are in evidence. (Exs. 1 - 8.) One tape was used. The Petitioner testified. Both parties made arguments on the record. ("A" & "B)

FINDINGS OF FACT

1. Richard P. Bradley, d.o.b. 4/9/48, worked for the City of Boston's Property Management Department prior to his retirement from the City of Boston effective April 30, 2007. (Ex. 6. Testimony.)

2. Mr. Bradley's last job was Principal Administrative Assistant. He held this position from 1994. It was a general job title that did not address his specific duties within the Boston Property Management Department. (Ex. 6. Testimony.)

3. The duties of Mr. Bradley's last job were those of the new job created once he retired called Chief Building Construction and Repair Director. (Testimony) The job announcement for this position contained a short account of the job's "essential functions," examples of duties, and skills to possess:

Under administrative direction performs work of considerable difficulty in directing repairs, renovations and alterations to all buildings under the care and custody of Property & Construction Management requiring the application of professional engineering principals and the exercise of unreviewed and independent judgment and performs related work as required.

Supervision Received: Commissioner of Property & Construction Management & the Deputy Commissioner of Property & Construction Management.

Duties and Responsibilities include: (but not limited to)

- Responsible for all repair improvements and alterations of all buildings and property under the care of the Property & Construction Management Department.
- Supervises the daily activities of all Alteration & Repair Division personnel; receives verbal and written requests for work to be performed; evaluates the requests, inspects the site and determines the means to effectively repair or complete the improvement.
- Determines whether repairs or improvements are performed by in-house crews or outside contractors.
- Prepares written instructions, specifications, estimated costs and bid documents for repairs, alterations and improvements performed by outside contractors.
- Schedules all repairs, alterations and improvements between city Departments and in house staff and/or Contractors.
- Conducts post construction inspections to ensure proper compliance and approval of partial or final payments.
- Represents Property & Construction Management on Capital Construction projects, works with Project Managers, Architects, Engineers and various departments to successfully design and complete construction projects.
- Manages work closely with the Property & Construction Management Departments Build Systems Engineer, Building Superintendent.
- Prepares purchase orders for supplies, equipments and tools for the Alterations and Repair Division.

Knowledge, Skills and Abilities:

- Applicant must possess a working knowledge of building,
plumbing, electrical, fire and other regulatory codes. Have good understanding of MGL Chapter 149, Chapter 30 and related regulations as they pertain to awarding of contracts in the Commonwealth of Massachusetts. Must possess good writing and communications skills and have basic computer skills. (Ex. 7)

4. The job announcement for the position of Mechanical Equipment Repairman Foreman within the Boston Property Management Department, a position Mr. Bradley directly supervised, lists a requirement of five years experience in the construction trade with preference given to electrical experience, two years of "supervisory experience in the construction trade," an "ability to translate general instructions and implement construction plans," the capability "to read plans and specifications," and holding a "Builders License or Trade License" with preference given to an "Electrical License." (Ex. 7. Testimony.) The job announcement provides the "essential functions" of the position as follows:

Under general supervision of the Alterations and Repair Manager, the Mechanical Equipment Repairman Foreman is a working Foreman, supervising the day to day activities of his/her work crew.

- Takes general instruction and implements work plan to achieve desired results, orders stock and supplies to carry out projects, transports crew to job site, works with crew or independently on projects, secures equipment and supplies, secures permits from Inspectional Services Department.
- Approve/disapprove vacations and time off for crew members to insure efficiency of unit.
- Prepares and keeps calendar of jobs.
- Responds to emergencies and other duties as required.
- Operate stationery and portable power tools and equipment.
- Train staff in proper construction techniques. (Ex. 7)

5. Boston City Hall houses "electrical generating and power distribution facilities" in its basement mechanical room area. Mr. Bradley works only at City Hall, and his duties include directly supervising the licensed electricians, both City of Boston employees, as well as outside vendor electricians, who work on these facilities and electrical equipment. Mr. Bradley is not an electrician, and does no hands-on work with the electrical equipment or facilities. The two electricians he supervises come under the job title of Mechanical Equipment Repairman Foreman within the Boston Property Management Department. (Exs. 2, 4 & 8. Testimony.)

6. The area within Boston City Hall where these facilities and electrical equipment are housed is off-limits to all city employees except the electricians and others accompanying such as Mr. Bradley in connection with his work. This is because of "the dangerous nature of the switchgear." The electricity in this area of the basement is distributed to "the many circuit breaker panels throughout" City Hall. There is also "a large emergency generator, which supplies emergency power" within City Hall when there is a power outage. The City Hall mechanical room equipment and facilities power the "elevators, emergency lighting and other critical components in City Hall." There are "40 electrical rooms in City Hall that are served, and the emergency generator also services Faneuil Hall. (Exs. 1 & 4. Testimony.)

7. The Boston Property Management Department "operates and maintains a large "trailer-mounted generator … [that] is used to produce electricity for events" in Boston including "the Boston Marathon, the Big Apple Circus, the North End Festivals, the Neighborhood Concerts and Movie Nights, and numerous other events throughout the City." The work of electricians involved in these uses of the trailer-mounted generator are supervised by Mr. Bradley. (Exs. 4 & 7. Testimony.)

8. The job functions Mr. Bradley supervised from 1994, involved at least eight positions including; two licensed electricians, unlicensed electrical helpers, one plumber, and one locksmith. Mr. Bradley had to travel to his staff's worksites which included about forty-six buildings across Boston. Mr. Bradley had experience in the construction trade and wrote contract specifications, including for electrical jobs. In terms of the City Hall electrical equipment and facilities, there was an inspection of them about once very two weeks. He relied on the knowledge of his City of Boston electricians to determine if there was a need for a repair or a need to install new equipment, and whether an outside electric services vendor would be needed. (Ex. 7. Testimony)

9. Boston City Hall is not a municipal lighting department created and governed by the provisions of G. L. c. 164. (Testimony)

10. When Mr. Bradley sought retirement, he received a Group 1 job classification from the Boston Retirement Board. As a result, Mr. Bradley petitioned the Board by letter of April 25, 2007 to request a Group 4 job classification because he supervised two electricians who were responsible for maintaining the Boston City Hall electrical facilities and equipment. (Ex. 3. Testimony.)

11. By letter of decision of April 30, 2007, the Boston Retirement Board denied Mr. Bradley's request. The Board relied on an opinion it had from "Steven Crosby, Assistant Director" of the Boston Property Management Department that there is no electrical generating and distribution plant within Boston City Hall. The Board found that even if Mr. Bradley supervised the two electricians who repaired and maintained the electrical equipment and facilities within City Hall, that would not be sufficient to receive a Group 4 classification. In the letter of decision, the Board provided Mr. Bradley with his appeal rights, including the time limit for filing an appeal with DALA, explaining he had fifteen days from his "receipt of this notice," and including where to file the appeal. (Ex. 2)

12. The address listed in the Boston Retirement Board's letter of decision on where to file the appeal, was an out of date address for DALA. Mr. Bradley wrote a letter of appeal and mailed it to the no longer used address. The letter was post-marked April 15, 2007. The mailing envelope was stamped not deliverable by the post office and returned to Mr. Bradley. As a result, the Boston Retirement Board, by letter of May 25, 2007, forwarded Mr. Bradley's undelivered and returned letter of appeal to the proper address. In the letter, the Board sought an extension of time for the filing of Mr. Bradley's letter of appeal. The Board explained:

Through no fault of his own, he mailed the correspondence
to your former address, which caused a delay in the submittal
of his request for a hearing …. (Ex. 1)

The letter of appeal was received on May 29, 2007. (Ex. 1)

Conclusion and Recommendation

Timeliness of Appeal

I conclude that Mr. Bradley's appeal letter is timely filed. The reason it was not received timely upon his mailing of it on May 15, 2007, is because the address the Boston Retirement Board gave him for where to send the appeal was an old address for DALA. The envelope he mailed shows the letter was not delivered. Thereafter, the Boston Retirement Board mailed it to the proper address for DALA with the Board's letter of explanation that the appeal should be accepted due to its error in providing an incorrect address for Mr. Bradley to use. The appeal was not received until twenty-nine days after the date of the Board's letter of decision. Nevertheless, this reason for its late filing is sufficient to find the Board was basically reissuing its decision letter on May 25, 2007 to make timely the filing done by May 29, 2007. I conclude this was the intention of the Board in issuing this May 25, 2007 letter.

Further support for finding Mr. Bradley made a good faith effort to file a timely appeal is in the case of Falmouth v. Civil Service Commission & Deutchmann, 447 Mass. 814 (2006). The Supreme Judicial Court found it fair to assume once the decision letter was mailed, that it took a few days, two to five, for it to reach Mr. Deutchmann. The Court upheld the Civil Service Commission's use of the postmark rule as controlling on the timeliness of the G. L. c. 32, § 43 appeal with the Civil Service Commission, and noted how a number of statutes and some regulations contain "presumptions that mail delivery takes between two and five days." Id. at 816 at Footnote 3.

For these reasons, I find Mr. Bradley's appeal to have been timely filed.

SO ORDERED.

Merits

Mr. Bradley's job duties included, not performing any licensed electrician work himself, but directly supervising the work of two licensed City of Boston electricians as well as any outside electrical vendors as they maintained and provided repairs to the mechanical room containing all the dangerous electrical switchgears, and to the emergency generator that services Boston City Hall and Faneuil Hall. These persons were also directly supervised by Mr. Bradley as they worked on the trailer-mounted generator used across the City for various events.
The provision of G. L. c. 32, § 3(2)(g) that Mr. Bradley has to satisfy concerning his last job worked in order to gain a Group 4 classification for retirement purposes, is the following provision:

Group 4 - … employees of a municipal gas or electric
generating or distribution plant who are employed as
linemen, electric switchboard operators, electric maintenance
men, steam engineers, boiler operators, firemen, oilers,
mechanical maintenance men, and supervisors of said
employees who shall include managers and assistant managers; ….

Mr. Bradley directly supervises licensed electricians who perform electric maintenance work. What there is no proof of is that Boston City Hall's mechanical room and emergency generator along with the trailer-mounted generator constitute a municipal electric lighting enterprise created and governed by G. L. Chapter 164. If it must be that in order to satisfy Group 4 criteria, then even though Mr. Bradley has shown his work entailed the direct supervision of "electric maintenance men," he cannot prevail in his claim.

In Tabroff v. Contributory Retirement Appeal Board and Peabody Retirement Board, 69 Mass. App. Ct. 131 (2007), the Appeals Court addressed whether supervision of Group 4 employees during non-business hours or during emergencies is sufficient to satisfy being a Group 4 supervisor. Mr. Tabroff's job title was Supervising Electrical Engineer. He worked under the supervision of a manager and assistant manager who during normal work hours directly supervised the Group 4 employees. Mr. Tabroff's job description did not address having a regular duty of supervising Group 4 employees, but noted this duty existed during an electrical emergency due to his need to be on-call twenty-four hours a day. In Gaw v. CRAB, 4 Mass. App. Ct. 250, 256 (1976), the employee's title or job description was found to be largely controlling in determining whether or not a Group 4 classification was warranted. Mr. Gaw only occasionally directly supervised Group 4 employees, and he was not found to be employed as a supervisor of Group 4 employees to gain a Group 4 classification based on his job description not containing such a provision. Id. at 252-253. Mr. Tabroff, in contrast, had a provision in his job description that recognized he would be directly supervising Group 4 workers during emergencies so he was entitled to the Group 4 classification. Tabroff, 69 Mass. App. Ct. at 136-137.

Although his job title does not support a finding that Mr. Bradley supervised Group 4 employees, the job description information in the record does. The work of the persons he called electricians who now hold the job title of Mechanical Equipment and Repair Foreman, do hands-on electrical repair and maintenance work as licensed electricians at City Hall and with the trailer-mounted generator. The job description information in the record for Mr. Bradley's last job with the Boston Property Management Department does have him directly supervising the work of these Mechanical Equipment and Repair Foremen. This is sufficient to satisfy at least the Group 4 requirement to be a direct supervisor of persons who work on electrical maintenance and repair of electrical equipment and facilities.

The remaining issue is whether Boston City Hall's electrical equipment and facilities are what the Group 4 language intends to encompass. I conclude they are not. Rather, I conclude that they are not created and operated under the provisions of G. L. Chapter 164, so that Mr. Bradley cannot prevail in his claim. In Donnelly v. Boston Retirement Board, CR-02-164 (DALA, 3/31/03) (No CRAB Decision), even though Mr. Donnelly was a licensed electrician maintaining equipment needed for emergency electricity needs of the Boston Police Headquarters and for the District Police Stations, he could not gain a Group 4 job classification. NSTAR Electric was the primary supplier of electricity to the Headquarters and District Stations, so the Boston Police Department was found not to be operating a municipal lighting department under G. L. Chapter 164, and was not generating or distributing electrical power for use by or for sale to customers outside of the Boston Police Department. This reasoning also applies to Mr. Bradley's circumstances. No evidence was presented on what outside company supplies the main electrical power to City Hall, but that does not mean I can conclude Boston City Hall's electrical equipment and facilities operate as a municipal lighting department under Chapter 164. No evidence was presented that there are any paying customers and no evidence was presented to show that electricity from City Hall's mechanical room spread across the city buildings, just that the emergency generator serviced City Hall and the close by Faneuil Hall. I conclude this is not the kind of operation contemplated by the language in Section 3(2)(g) Group 4 for "electrical generating and distribution plant."

Further support for this conclusion is found in the Section 3(2)(g) Group 4 provision that makes only employees of Massport's electrical operations eligible under Group 4, presumably, even though Massport's electrical operations are not a Chapter 164 municipal lighting department. This is an exception to the general rule that reaches the Boston City Hall's electrical facilities. The provision states:

[E]mployees of the Massachusetts Port Authority who are
employed as licensed electricians, utility technicians, steam engineers, watch engineers, boiler operators, or steam firemen, and supervisors of said employees, at an electrical generating or distribution plant.

For these reasons, the decision of the Boston Retirement Board classifying Mr. Bradley's job in Group 1 is affirmed.

SO ORDERED.

DIVISION OF ADMINISTRATIVE
LAW APPEALS


/s/ Sarah H. Luick, Esq.
Administrative Magistrate

DATED: March 13, 2009