MONEY CAN’T BUY LOVE, according to the saying. It also can’t buy an employer the right to take action against a worker that, on its own, would qualify as illegal retaliation.  

That is the essence of a Supreme Judicial Court ruling issued Thursday in a dispute between the City of Newton and a sergeant on the city’s police force. 

A state board correctly concluded that transferring a Newton police sergeant, who also serves as a union leader, to night and weekend shifts was illegal retaliation for his union activities, the state’s high court ruled. It can be retaliation, the SJC said, even though the officer had a blemished work history and the new position came with a pay raise. 

John Babcock was transferred from his six-year position as a specialty sergeant working regular daytime hours with weekends and holidays off to a sergeant position working irregular nighttime hours, weekends, and holidays.  

 This transfer, in 2018, came after union-related activities lead to some disputes with city’s chief of police, David MacDonald. 

The city argued, and a lower court agreed, that the shift change came with a “significant” pay raise in line with the union’s collective bargaining agreement, so it doesn’t count as an adverse employment action – or something an employer does that negatively impacts terms or conditions of employment.  

In its opinion and during arguments in March, the SJC skewered that logic. It was a shift from a “more humane schedule” for a man with a family, as Justice Serge Georges Jr. put it, to a “crazy schedule with half days” according to Justice Frank Gaziano. 

“We decline to adopt a rule that would allow an employer that takes such materially disadvantageous action against an employee in retaliation for union activity to evade the protections [of state law], because the employer also complies with the terms bargained for as part of a collective bargaining agreement,” wrote Justice Dalila Wendlandt for a unanimous SJC on Thursday. 

Babcock’s history with department leadership was messy, as laid out by the court’s decision.  

He was promoted up through the traffic division over the decades while serving in leadership positions with local police unions, finally receiving promotion to sergeant specialist in the traffic bureau in 2012. Babcock became union negotiator for city contracts and then president of the superior officers union, while MacDonald was an executive officer and later chief of police for the city. Over the years, the court noted, the two had “several disputes.” 

On the union side, contract negotiations got heated, the two clashed over a proposed change to special leave policy, and Babcock challenged MacDonald’s authority to place a bargaining unit member on paid administrative leave and immediately order the member to take a psychological test. The city failed to properly bargain over the fitness requirements that could have involved an on-the-spot psychological test, an appeals court declared in 2021 when reviewing the case. 

While the union’s challenge to the psychological test continued, Babcock was running into issues with his role overseeing paid details, where off-duty police officers are hired for vendors in the city.  

Citing overstaffing problems, MacDonald removed Babcock from detail staffing, but Babcock continued to “cause confusion in the detail system and to overstaff police details” according to the city’s brief, and continued offering opinions on detail staffing even when told expressly to refrain from doing so. The city provided no evidence that Babcock continued to be involved in traffic details after the order, the SJC wrote. 

Babcock also got into a verbal altercation with a subordinate, according to the court, yelling at a parking control officer and bringing her to tears. MacDonald issued a letter of reprimand in late March 2018, warning that “further misconduct by you may result in additional discipline.” 

A month later, MacDonald informed Babcock he would be transferred to the patrol bureau working night shifts with an 8 percent pay raise. 

The police union filed a charge arguing that the transfer was retaliatory and barred by law. While a hearing officer agreed that Babcock had made a case for retaliation, the officer dismissed the claim because the city had produced evidence of Babcock’s insubordination and misconduct as a reason for the transfer.  

But the Commonwealth Employment Relations Board (CERB) disagreed on appeal, deciding that the city had not provided enough evidence to support a reasonable conclusion that Babcock was transferred because of the poor conduct. The board concluded the union proved its case, and ordered Babcock reinstated to his day shift position.  

The Appeals Court, reviewing the board’s decision, considered whether the union had to prove that Babcock had a generally good work record, whether the pay increase defeated the claim of an adverse employment action, and whether the city proved that the motive for Babcock’s transfer was because of work performance and not union activity. 

A unanimous Appeals Court decision written by Justice Gabrielle Wolohojian – now a justice of the SJC who did not participate in Thursday’s opinion – concluded that the good work record showing was not necessary, but the board should not have allowed the claim to go forward because the transfer came with the pay raise negotiated under the union’s collective bargaining agreement. Further, she wrote, the city offered “circumstantial evidence” to prove that the transfer was for lawful reasons. 

A lateral transfer can be considered an adverse employment action if it results in material differences in “any term or condition of employment.” Since the night shift move came with the pay raise laid out under the union’s collective bargaining agreement, the union did not prove that the transfer was a significant departure from the terms of the agreement. 

“We, of course, do not minimize the importance of family life or the effect that a change in work schedule may have on it,” Wolohojian wrote. “But that is not the question here, which instead turns on whether the union established an objective material change in the terms and conditions of Babcock’s employment.” 

She said it is also important to consider “the inherent authority of police chiefs to assign officers to duties and schedules as they see fit to preserve public safety.”  

Other police unions balked. 

“If the Appeals Court’s decision is permitted to stand,” the Boston police officers union wrote to the high court in support of the transferred officer, “it will grant public employers with license to retaliate against employees who engage in concerted, protected activity by transferring them to undesirable assignments involving non-traditional hours of work and effectively eviscerate the ability of public employees and/or their exclusive bargaining representatives to prove that the employer’s actions were unlawfully motivated.” 

The SJC disagreed with Wolohojian’s logic. The collective bargaining agreement may have made the day-to-night transfer “more palatable,” Wendlandt wrote, but there is still clearly a material disadvantage to being forced to work nights and weekends when previously working day shifts with weekends off. 

A transfer that complies with the collective bargaining agreement, she wrote, can still cause legal harm. The difference between these shifts is underlined, she noted, because transferring a sergeant or lieutenant from a specialty assignment had never been done before in the Newton Police Department.  

That there was misconduct is only relevant if it is concretely tied to the decision to transfer the officer, Wendlandt noted. Nothing in the court’s history, she wrote, shows “that an employer is free to retaliate against an employee for union activities because the employee’s employment record is blemished.” 

The city did show that there was a history of insubordination by Babcock, the SJC agreed, but it offered no evidence that the incidents factored into the decision to transfer him, even after the incident with the parking control officer.  

“The city produced no evidence of any misconduct by Babcock following the letter of reprimand,” Wendlandt wrote. “The only evidence in the record related to MacDonald’s transfer decision was that when Babcock asked MacDonald for an explanation, Babcock did not receive one.”