Boston Firefighters Union, Local 718, International Association of Fire Fighters, AFL-CIO v. City of Boston

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SJC-13347
BOSTON FIREFIGHTERS UNION, LOCAL 718, INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, AFL-CIO, & others1 vs. CITY OF BOSTON
& another.2
Suffolk. January 6, 2023. - March 30, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Injunction. Practice, Civil, Preliminary injunction, Injunctive
relief. Labor, Collective bargaining, Public employment,
Police, Fire fighters. Municipal Corporations, Collective
bargaining, Mayor, Police, Fire department. Public
Employment, Collective bargaining.
Civil action commenced in the Superior Court Department on
January 3, 2022.
A motion for a preliminary injunction was heard by Jeffrey
A. Locke, J.
A proceeding for interlocutory review was heard in the
Appeals Court by Sabita Singh, J. The Supreme Judicial Court on
its own initiative transferred the case from the Appeals Court.
John Foskett for the defendants.
1 Boston Police Superior Officers Federation and Boston
Police Detectives Benevolent Society.
2 Mayor of Boston.
2
Patrick N. Bryant for Boston Police Superior Officers
Federation.
Leah M. Barrault for Boston Firefighters Union, Local 718,
International Association of Fire Fighters, AFL-CIO.
Scott W. Dunlap, for Boston Police Detectives Benevolent
Society, was present but did not argue.
The following submitted briefs for amici curiae:
Larry H. James, of Ohio, & Joseph G. Donnellan for National
Fraternal Order of Police.
John M. Becker & Ian M. Collins for Massachusetts Coalition
of Police.
Matthew D. Watts for International Association of Fire
Fighters.
CYPHER, J. The plaintiffs, the Boston Firefighters Union,
Local 718, International Association of Fire Fighters, AFL-CIO
(Local 718); the Boston Police Detectives Benevolent Society
(BPDBS); and the Boston Police Superior Officers Federation
(federation), filed a verified complaint in the Superior Court,
challenging the defendants' unilateral amendment of the COVID-19
vaccination policy for all city of Boston (city) employees. In
the complaint, the plaintiffs sought declaratory and injunctive
relief for the defendants' alleged violations of both the prior
memoranda of agreement between the parties, and the defendants'
collective bargaining obligations as public employers, pursuant
to G. L. c. 150E. The plaintiffs' motion for injunctive relief
was denied by a judge of the Superior Court. The plaintiffs
appealed, pursuant to G. L. c. 231, § 118, to a single justice
of the Appeals Court, who reversed the judge's denial of the
plaintiffs' motion for a preliminary injunction and ordered the
3
entry of a preliminary injunction restraining the defendants
from enforcing their December 2021 amended COVID-19 vaccination
policy. The defendants appealed from the order of the single
justice to this court. This case now presents the question
whether the single justice of the Appeals Court abused her
discretion in reversing the denial of the plaintiffs' motion for
a preliminary injunction. For the reasons stated below, we
conclude that the single justice abused her discretion in
enjoining the defendants from enforcing their December 2021
amended COVID-19 vaccination policy, and we reverse the order of
the single justice of the Appeals Court and vacate the
injunction.3
Background. Each of the three plaintiffs is an employee
organization within the meaning of G. L. c. 150E, § 1, serving
as the exclusive bargaining representative for various police
officers and firefighters employed by the defendants, the city
and Michelle Wu, in her official capacity as mayor of the city.4
The federation is the exclusive bargaining representative of 250
sworn sergeants, lieutenants, and captains of the Boston police
3 We acknowledge the amicus briefs submitted by the National
Fraternal Order of Police, the Massachusetts Coalition of
Police, and the International Association of Fire Fighters in
support of the plaintiffs.
4 The defendants are public employers within the meaning of
G. L. c. 150E, § 1.
4
department (BPD). BPDBS serves as the exclusive bargaining
representative of all BPD patrol detectives, detective
superiors, and those assigned to the forensic unit within BPD.
Local 718 is the exclusive bargaining representative for all
uniformed employees of the city's fire department.
On March 10, 2020, the Governor declared a state of
emergency in response to the spread of COVID-19. Christie v.
Commonwealth, 484 Mass. 397, 398 (2020). The next day, COVID-19
was declared a global pandemic by the World Health Organization
(WHO). Id. at 398-399. To date, according to the WHO, COVID-19
remains a pandemic, and continues to be "a dangerous infectious
disease with the capacity to cause substantial damage to health
and health systems." See World Health Organization, Statement
on the fourteenth meeting of the International Health
Regulations (2005) Emergency Committee regarding the coronavirus
disease (COVID-19) pandemic (Jan. 30, 2023), https://www.who.int
/news/item/30-01-2023-statement-on-the-fourteenth-meeting-of-
the-international-health-regulations-(2005)-emergency-committee-
regarding-the-coronavirus-disease-(covid-19)-pandemic
[https://perma.cc/3YL8-8FAN]. Vaccination against COVID-19,
however, has served as an important tool in achieving higher
levels of immunity among the population as the pandemic
continues, see id., because individuals who are vaccinated
5
against COVID-19 are significantly less likely to develop
serious health complications from COVID-19.
On August 12, 2021, in an effort to combat the spread of
COVID-19, the defendants announced the "Vaccine Verification or
Required Testing for COVID-19 Policy" (COVID-19 policy),
generally requiring all city employees either to verify they are
vaccinated against COVID-19, or, alternatively, to submit proof
of a negative COVID-19 test every seven days. The city executed
a memorandum of agreement (MOA) with both the federation and
Local 718 memorializing this policy.5
Throughout the lifespan of the pandemic, however, COVID-19
has continued to evolve genetically, giving rise to numerous
variants of concern. Among the COVID-19 variants of concern was
the Omicron variant during the fall and winter of 2021.
According to Dr. Bisola Ojikutu, the executive director of the
city's public health commission, the Omicron variant likely was
to spread so significantly and rapidly that the continued
practice of allowing employees to go through weekly testing, as
an alternative to vaccination, was insufficient to combat the
spread of COVID-19.
5 At the time of the MOA with the federation and Local 718,
the city also was involved in negotiations with BPDBS.
6
Thus, on December 20, 2021, Mayor Wu unilaterally amended
the COVID-19 policy for the city's employees, to mandate that
all city employees be vaccinated against COVID-19 as a condition
of employment (amended COVID-19 policy).6 The failure to verify
one's vaccination status resulted in discipline for city
employees, beginning with unpaid leave from employment, and
ultimately progressing to termination for those employees who
refused to comply with the new amended COVID-19 policy. The
amended policy required unvaccinated city employees to verify
that they had received at least one dose of the COVID-19 vaccine
by January 15, 2022, and verify full vaccination status by
February 15, 2022.7
Each plaintiff objected to the defendants' unilateral
amendment of the COVID-19 policy. Local 718 contacted Mayor Wu,
asking her to consider a continuation of the in-station testing
program under the previous COVID-19 policy; its efforts were
unsuccessful. The federation demanded the defendants adhere to
the existing MOA and met with the defendants to discuss the
defendants' bargaining obligations related to the vaccination
6 The defendants notified the plaintiffs of the policy
change in the days prior to December 20, 2021, when Mayor Wu
unilaterally amended the policy.
7 The defendants extended the effective date of the policy
by two weeks.
7
policy. Finally, BPDBS requested that the defendants refrain
both from implementing the amended COVID-19 policy and from
making further unilateral changes to the COVID-19 policy.
When Mayor Wu declined to acquiesce to the plaintiffs'
requests, after the unilateral implementation of the amended
COVID-19 policy, the plaintiffs filed prohibited practice
charges with the Department of Labor Relations, alleging that
the defendants violated G. L. c. 150E, § 10 (a) (1), (5).8 The
federation also filed a grievance, alleging that the amended
vaccination policy violated the MOA with the city. Most
importantly for the purposes of this appeal, the plaintiffs also
filed a verified complaint in the Superior Court seeking both
declaratory and injunctive relief as a result of the defendants'
unilateral amendment of the COVID-19 policy. The plaintiffs
alleged that the defendants' actions repudiated the MOAs and
8 All but one of the allegations in these charges were
dismissed by a Department of Labor Relations investigator. See
City of Boston & Boston Police Superior Officers Fed'n,
Commonwealth Employment Relations Bd. (CERB), Nos. MUP-21-9008,
MUP-22-9238, at 1 & n.1 (Dec. 29, 2022). The plaintiffs timely
requested review of the dismissals by CERB. Id. at 1 n.1, 2.
CERB recently affirmed the dismissal of the repudiation and
decision bargaining allegations but remanded the matters on a
limited issue concerning the defendants' alleged violation of
their impact bargaining obligations. See id. See also City of
Boston & Boston Police Detective Benevolent Soc'y, CERB, No.
MUP-21-9004, at 2 (Dec. 29, 2022); City of Boston & Boston
Firefighters, IAFF Local 718, CERB, Nos. MUP-21-9002, MUP-22-
9310, at 2 (Dec. 29, 2022).
8
violated the bargaining obligations of G. L. c. 150E.9 Following
a hearing on the plaintiffs' motion for a preliminary
injunction, the judge denied their request for injunctive
relief. The plaintiffs filed a petition pursuant to G. L.
c. 231, § 118, for a single justice of the Appeals Court to
review the denial of their motion for a preliminary injunction.
In her decision, the single justice reversed the denial of
the plaintiffs' motion for a preliminary injunction and enjoined
the defendants from implementing the amended COVID-19 policy,
pending a final resolution of the matter. The single justice
held that the defendants' failure to bargain on the decision to
implement the amended COVID-19 policy, prior to its
implementation, was sufficient for the plaintiffs to have
demonstrated a likelihood of success on the merits of the case.
9 The parties dispute whether the defendants fulfilled their
bargaining obligations after the announcement of the amended
COVID-19 policy. The defendants met separately with the
plaintiffs' bargaining teams on January 5, 6, and 7, 2022,
before the Department of Labor Relations mediation hearing that
was scheduled on January 11, 2022, for the plaintiffs'
prohibited practice charges. The plaintiffs take issue with the
fact that this was more than three weeks after the amended
COVID-19 policy was announced, and only one week before the
initial deadline for employees to comply with the amended COVID-
19 policy's first dose requirement. At the hearing for a
preliminary injunction, the plaintiffs reported that the city
only agreed to one hour of mediation at the January 11 mediation
session and sent a representative with no decision-making
authority.
9
Moreover, the single justice disagreed with the motion judge
that the plaintiffs failed to demonstrate irreparable harm.
The single justice recognized that potential termination
from employment generally does not satisfy the element of
irreparable harm. See Sampson v. Murray, 415 U.S. 61, 91-92
(1974). See also Hull Mun. Lighting Plant v. Massachusetts Mun.
Wholesale Elec. Co., 399 Mass. 640, 643 (1987) (economic loss
alone generally insufficient for irreparable harm). However,
where the plaintiffs alleged that the COVID-19 vaccine involved
issues of bodily integrity and self-determination, the single
justice held that this case was distinguishable from the more
common case where an employee seeks to enjoin termination from
employment. Furthermore, where there were only 450 remaining
unvaccinated union members, who could continue to be tested
regularly under the existing policy, the enjoinment of the
amended COVID-19 policy still would provide the defendants with
the ability to effect public health measures to minimize the
spread of COVID-19. Thus, the single justice held that the
balance of harms favored the plaintiffs.10
10The order enjoins the defendants from enacting their
amended COVID-19 policy only as to employees represented by the
plaintiff unions. However, the defendants have represented to
this court that the policy has been suspended for all city
employees pending the final resolution of this matter.
10
The defendants appealed from the order of the single
justice, and we transferred the case to this court sua sponte.
Discussion. 1. Standard of review. Where a single
justice of the Appeals Court reverses the decision of a motion
judge, and issues a preliminary injunction following a petition
pursuant to G. L. c. 231, § 118, we review the single justice's
decision to issue the injunction for an abuse of discretion, as
if it were an identical order by the motion judge considering
the matter in the first instance.11 See Aspinall v. Philip
Morris Cos., 442 Mass. 381, 389-390 (2004), citing Jet-Line
Servs., Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645,
646 (1988). See also King v. Shank, 92 Mass. App. Ct. 837, 839
n.3, S.C., 480 Mass. 7 (2018) (reviewing single justice's order
11In her order, the single justice stated that her review
of the motion judge's denial of the motion for injunctive relief
was for an abuse of discretion. Her order does not reflect
review for an abuse of discretion; instead, the single justice's
decision more closely reflects de novo review. The single
justice had the right to review the denial of the preliminary
injunction de novo, as she could review the same factors as the
motion judge, see Lieber v. President & Fellows of Harvard
College (No. 2), 488 Mass. 816, 821 (2022), and draw her own
conclusions from the record, where the motion judge's order "was
predicated solely on documentary evidence," Packaging Indus.
Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980). See Manfrates
v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412
n.4 (1996) (single justice may review order concerning
preliminary injunction de novo). Whether the single justice
reviewed the motion judge's denial of injunctive relief for an
abuse of discretion, or de novo, does not alter our holding
because, for the reasons discussed infra, the issuance of the
preliminary injunction was erroneous.
11
to issue preliminary injunction "in the same manner as if it
were an identical order by the trial judge considering the
matter in the first instance). Cf. Fordyce v. Hanover, 457
Mass. 248, 256 (2010) (where single justice vacates motion
judge's decision to issue preliminary injunction, pursuant to
G. L. c. 231, § 118, appellate court reviews for whether motion
judge abused discretion in issuing preliminary injunction). In
making this determination, "we decide 'whether the judge applied
proper legal standards and whether there was reasonable support
for his [or her] evaluation of factual questions.'" Id.,
quoting Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741
(2008). Any such conclusions of law, however, "are subject to
broad review and will be reversed if incorrect." Fordyce,
supra, quoting Packaging Indus. Group, Inc. v. Cheney, 380 Mass.
609, 616 (1980).
"[A] party seeking a preliminary injunction must show '(1)
a likelihood of success on the merits; (2) that irreparable harm
will result from denial of the injunction; and (3) that, in
light of the [moving party's] likelihood of success on the
merits, the risk of irreparable harm to the [moving party]
outweighs the potential harm to the [nonmoving party] in
granting the injunction.'" Garcia v. Department of Hous. &
Community Dev., 480 Mass. 736, 747 (2018), quoting Loyal Order
of Moose, Inc., Yarmouth Lodge # 2270 v. Board of Health of
12
Yarmouth, 439 Mass. 597, 601 (2003). "Where a party seeks to
enjoin government action, the judge also must determine that the
requested order promotes the public interest, or, alternatively,
that the equitable relief will not adversely affect the public."
Foster v. Commissioner of Correction, 488 Mass. 643, 650 (2021),
quoting Garcia, supra.
2. Decision bargaining. The city and the mayor argue that
the single justice abused her discretion in holding that the
plaintiffs had established a likelihood of success on the merits
of their claim, i.e., that the amended COVID-19 policy violated
the defendants' mandatory decision bargaining obligations and
prior MOAs between the parties. We agree.
"Pursuant to G. L. c. 150E, § 6, public employers must
negotiate in good faith with respect to wages, hours, standards
or productivity and performance, and any other terms and
conditions of employment" (quotation omitted). Worcester v.
Labor Relations Comm'n, 438 Mass. 177, 180 (2002). The single
justice held that the plaintiffs' claim revolves around the
city's duty to bargain over the vaccine mandate policy. Where
it failed to bargain over the decision to amend the COVID-19
policy to eliminate the testing alternative to vaccination and
require vaccination against COVID-19 as a condition of
employment, the single justice held that the plaintiffs have
established a strong likelihood of success on their essential
13
claim, i.e., that the defendants likely violated both their
decision and impact bargaining obligations under G. L. c. 150E,
as well as the MOAs with Local 718 and the federation.
Contrary to the decision of the single justice, the
defendants need not have bargained over the decision to amend
the COVID-19 policy to remove COVID-19 testing as an alternative
to vaccination. Certain managerial decisions are exempted from
collective bargaining obligations where such decisions, as a
matter of public policy, must be reserved to the public
employer's discretion. Worcester, 438 Mass. at 180. "The
crucial factor in determining whether a given issue is a
mandatory subject of bargaining is whether resolution of the
issue at the bargaining table is deemed to conflict with
perceived requirements of public policy" (alteration and
citation omitted). Id. at 181. Such inquiry aims to define
"the boundary between subjects that by statute, by tradition, or
by common sense must be reserved to the sole discretion of the
public employer so as to preserve the intended role of the
governmental agency and its accountability in the political
process." Id., quoting Lynn v. Labor Relations Comm'n, 43 Mass.
App. Ct. 172, 178 (1997). See Local 346, Int'l Bhd. of Police
Officers v. Labor Relations Comm'n, 391 Mass. 429, 437 (1984)
("in instances where a negotiation requirement would unduly
impinge on a public employer's freedom to perform its public
14
functions, G. L. c. 150E, § 6, does not mandate bargaining over
a decision directly affecting the employment relationship").
In December 2021, as the Omicron variant ran rampant
throughout the Commonwealth, vaccination against COVID-19 was
viewed as the only effective means by which the city and the
mayor could combat the virus while still performing their public
functions. According to the executive director of the city's
public health commission, the continued practice of testing as
an alternative to vaccination against COVID-19 would be
insufficient to contain the spread of COVID-19 following the
emergence of the Omicron variant. The defendants' policy
decision to amend the COVID-19 policy was based on concerns not
only for the health of their employees, but also for the
residents of the city, for whom the defendants were obligated to
provide continued access to public safety services.
Given the unique circumstances of the COVID-19 pandemic and
its threat to the health and safety of the public, the decision
to remove the testing alternative in the defendants' COVID-19
policy constituted a nondelegable policy decision that could not
be the subject of decision bargaining because any such
requirement would have impinged directly on the defendants'
ability to provide essential public safety services to city
residents. See Boston v. Boston Police Superior Officers Fed'n,
29 Mass. App. Ct. 907, 908 (1990) (certain core managerial
15
decisions, affecting city's ability to provide essential safety
services, exceed bounds of mandatory bargaining because "[t]he
demands of public safety and a disciplined police force
underscore the importance of management control over matters
such as staffing levels, assignments, uniforms, weapons, and
definition of duties" [citation omitted]). See also Local 346,
Int'l Bhd. of Police Officers, 391 Mass. at 439-440 (police
chief may require officers suspected of criminal conduct to take
polygraph examination without mandatory bargaining because
integrity and credibility of police departments is indispensable
to effective public law enforcement); Framingham v. Framingham
Police Officers Union, 93 Mass. App. Ct. 537, 543 (2018) (police
chief's authority to assign officers to particular duties
concerns public safety and constitutes policy judgment in
allocation and deployment of law enforcement resources); Saugus
v. Saugus Police Superior Officers Union, 64 Mass. App. Ct. 916,
916-917 (2005) (police chief's involuntary assignment of
officers to overtime shifts, which were required for public
safety, was within his core managerial prerogatives and was not
subject to mandatory bargaining).
Whether there were possible alternatives to the amended
COVID-19 policy that could have allowed the defendants to
maintain the ability to provide these essential safety services
to city residents without going so far as mandating vaccination
16
against COVID-19 for all city employees, such as continued
testing for COVID-19 for unvaccinated employees, is not the
issue when identifying core managerial prerogatives. See
Worcester, 438 Mass. at 183 ("A public employer need not defend
the wisdom of a policy choice that it has made in order to have
that choice recognized as a core managerial prerogative. It is
the fact that the public employer's choice is one of policy, not
the merits of the choice the employer makes, that renders the
choice an inappropriate subject of mandatory bargaining").
Where the decision to remove weekly testing as an alternative to
vaccination against COVID-19 constituted a core managerial
prerogative, we hold that the plaintiffs failed to demonstrate a
likelihood of success on the merits of their claim that the
defendants have violated their decision bargaining obligations
under G. L. c. 150E.
Notwithstanding the defendants' bargaining obligations
under G. L. c. 150E, the plaintiffs alleged that the defendants'
unilateral decision to remove the testing alternative to
vaccination against COVID-19 repudiated the MOAs between the
parties.12 In arguing that the defendants have repudiated the
MOAs, the plaintiffs point to paragraph seven of the MOA with
12Only two of the unions, Local 718 and the federation,
actually entered into an MOA with the defendants to memorialize
the COVID-19 policy.
17
Local 718, where the defendants stated their intent "to
periodically review the Policy" and agreed to "fulfill any
impact bargaining obligations associated with any proposed
substantive changes" (emphasis added). The plaintiffs also
alleged that the defendants violated paragraph four of the MOA
with the federation, where the defendants agreed that nothing in
the MOA concerning the COVID-19 policy shall "demonstrate a
practice or create a precedent for any other matter" or diminish
any of the parties' other collective bargaining rights.
Neither paragraph in the MOAs contains express language
demonstrating an agreement between the parties as to mandatory
collective bargaining on any potential future decision to
require mandatory vaccination against COVID-19. Furthermore,
any agreement to mandatory collective bargaining on an issue of
public health and safety, in light of the emergency of the
Omicron variant of COVID-19, likely would not have been
enforceable as the defendants are "not free to bargain away
certain elements of [their] nondelegable authority and
responsibility to act for the public health, safety, and
welfare," because "the public interest . . . impose[s] a
necessary limitation upon the collective bargaining process."
Chief Justice for Admin. & Mgt. of the Trial Court v.
Commonwealth Employment Relations Bd., 79 Mass. App. Ct. 374,
381 (2011). Thus, we hold that the plaintiffs have failed to
18
demonstrate a likelihood of success on the merits of their claim
that the defendants have repudiated the MOAs, insofar as the
MOAs require mandatory collective bargaining on any decision to
eliminate the testing alternative in the amended COVID-19
policy.
3. Impact bargaining. Even where an employer's decision
is not the subject of mandatory collective bargaining, if any
such decision by the employer "has [an] impact upon or affects a
mandatory topic of bargaining, negotiation over the impact is
[still] required" (citation omitted). Worcester, 438 Mass. at
185. In seeking injunctive relief from the implementation of
the amended COVID-19 policy, the plaintiffs alleged that they
have demonstrated a likelihood of success on the merits of the
defendants' alleged violations of their impact bargaining
obligations under both the MOAs and G. L. c. 150E.13
Exigent circumstances permit an employer to set a deadline
for concluding impact bargaining and implementing a change in
the conditions of employment, so long as the employer continues
to bargain over the impacts of such change thereafter.14 See
Paragraph seven of the MOA between the defendants and
13
Local 718 states: "The City . . . shall fulfill any impact
bargaining obligations associated with any proposed substantive
changes."
The parties agree that an exigency defense exists for an
14
employer with respect to impact bargaining obligations. We note
19
City of Boston & Boston Police Superior Officers Fed'n,
Commonwealth Employment Relations Board (CERB), Nos. MUP-21-
9008, MUP-22-9238, at 14 (Dec. 29, 2022). An employer relying
on an exigency defense for impact bargaining has the burden of
establishing that (1) circumstances beyond the employer's
control require the imposition of a deadline for negotiations;
(2) the bargaining representative of the union was notified of
these circumstances and the employer's deadline; and (3) the
deadline was reasonable and necessary. Id. See Secretary of
Admin. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass.
App. Ct. 91, 98 (2009) ("If the Commonwealth had agreed to
bargain and no resolution or impasse was in sight as the
implementation deadline approached, under longstanding
commission precedent, the Commonwealth could have imposed a
reasonable negotiation deadline, implemented the withholding,
and continued post-implementation bargaining without running
afoul of its obligations under G. L. c. 150E").
that CERB precedent has acknowledged such a defense, and while
we discern no published appellate court case of this
Commonwealth directly on point on the issue, the parties rely on
this CERB precedent in their briefs. See City of New Bedford,
38 M.L.C. 239, 251 (2012). This precedent also has been relied
on by the Appeals Court, albeit in an unpublished decision. See
New Bedford v. Commonwealth Employment Relations Bd., 90 Mass.
App. Ct. 1103 (2016). We owe deference to the special expertise
of CERB in this area of law. See Somerville v. Commonwealth
Employment Relations Bd., 470 Mass. 563, 567-568 (2015).
20
Here, according to Dr. Ojikutu, the emergence of the
Omicron variant presented a circumstance outside of the
defendants' control, which threatened the defendants' ability to
continue to provide essential public safety services to city
residents. Testing, as an alternative to mandatory vaccination
for city employees, was no longer considered to be a viable
alternative by medical officials like Dr. Ojikutu. In light of
the evolving circumstances with the Omicron variant, and the
belief that testing was no longer a viable alternative to
vaccination against COVID-19, the defendants notified the
plaintiffs of their intent to amend the COVID-19 policy,
mandating vaccination against COVID-19 for all city employees.
Per the amended COVID-19 policy, all city employees were
required to have at least one dose of the COVID-19 vaccine by
January 15, 2022, and verify full vaccination status by February
15, 2022. This deadline initially was extended by two weeks,
and the defendants suspended the implementation of the policy
pending the resolution of this matter. See note 10, supra.
The plaintiffs argue that where the deadline for mandatory
vaccination was pushed back multiple times, the implementation
of the amended COVID-19 policy was stayed pending resolution of
this matter, and the city permitted thousands of other
unvaccinated employees to continue to provide services to its
residents, no such exigent circumstances existed to relieve the
21
defendants of their impact bargaining obligations. Because the
Omicron variant of COVID-19 was thought to spread significantly
and rapidly throughout the city's workforce, however, the
defendants' claim, that the exigency of the COVID-19 pandemic
necessitated the swift removal of the testing alternative to
mandatory vaccination against COVID-19, was reasonable given the
expert opinions of medical officials such as Dr. Ojikutu.
Whether the initial, approximate three-week deadline
imposed by the defendants was a reasonable and necessary
deadline in light of the emergence of the Omicron variant is
less clear. The record is devoid of sufficient facts to
determine this fact-intensive issue, one that has already been
presented to CERB. See City of Boston & Boston Police Superior
Officers Fed'n, CERB, Nos. MUP-21-9008, MUP-22-9238, at 14-15.
While CERB has yet to denounce the approximate three-week
deadline as an unreasonable deadline, it did acknowledge that
the defendants' deadline was less than one-half of a comparable
two-month deadline imposed by the Commonwealth in nearly
identical circumstances, in a dispute over mandatory vaccination
against COVID-19 between the Commonwealth and the State Police
Association of Massachusetts. Id.
Whether the deadline for compliance with the defendants'
amended COVID-19 policy in fact was reasonable and necessary is
still the subject of a pending matter before an investigator of
22
the Department of Labor Relations, following a remand by CERB.
Id. at 14-15 & n.10. Nonetheless, given CERB's acknowledgement
that the defendants' initial deadline more than halved that of
another employer in similar circumstances, we conclude that the
plaintiffs have demonstrated at least some likelihood of success
on the merits of their impact bargaining claim.
4. Irreparable harm and the harm to the public. Assuming
that the plaintiffs have demonstrated a likelihood of success on
the merits of their impact bargaining claim, i.e., that the
initial deadline for implementation of the amended COVID-19
policy in fact was neither a reasonable nor a necessary deadline
in the circumstances, the plaintiffs still were required to
demonstrate irreparable harm from the failure to enjoin the
implementation of the amended COVID-19 policy. See Garcia, 480
Mass. at 747.
The motion judge and single justice disagreed on whether
the plaintiffs had demonstrated irreparable harm. The motion
judge held that, where the failure to grant the injunction would
result in solely economic harm in the form of adverse employment
consequences including suspension without pay and eventual
termination, the plaintiffs have not demonstrated irreparable
harm. See Sampson, 415 U.S. at 92 n.68 (generally termination
from employment falls short of irreparable harm). See also Hull
Mun. Lighting Plant, 399 Mass. at 643 (economic damages alone
23
insufficient for irreparable harm). The single justice,
however, held that while potential termination from employment
ordinarily does not give rise to irreparable harm, the
circumstances of the COVID-19 pandemic and the mandate of
vaccination against COVID-19 as a condition of employment
constituted a "genuinely extraordinary situation," implicating
issues of "bodily integrity and self-determination." Thus,
according to the single justice, the plaintiffs sufficiently had
demonstrated irreparable harm warranting injunctive relief.
While the circumstances giving rise to the threat of
discharge from employment were extraordinary, i.e., the COVID-19
pandemic and mandatory vaccination against COVID-19, we conclude
that the motion judge, and not the single justice, was correct:
the harm to the plaintiffs -- the loss of employment -- is still
economic, see Hull Mun. Lighting Plant, 399 Mass. at 643, as
they could have continued to refuse to become vaccinated and
instead challenged the decision both in court and before CERB,
see Commonwealth v. Mass. CRINC, 392 Mass. 79, 87 (1984)
(irreparable harm must rise to level such that no adequate
remedy at law exists). See also G. L. c. 150E, § 11 (d) (where
employer commits prohibited practice under public employee
collective bargaining agreement, discharged employee shall be
reinstated with potential for back pay); Pittsfield v. Local 447
Int'l Bhd. of Police Officers, 480 Mass. 634, 644 (2018)
24
(officers wrongfully terminated have possibility of
reinstatement and can be made whole through back pay and
compensation for lost income from overtime, lost benefits under
collective bargaining agreement, etc.).
We must also consider the potential harm to the city and
the public in granting an injunction. Garcia, 480 Mass. at 747.
The risk of irreparable harm to the plaintiffs must outweigh
this potential harm to the city and the public. Id. Where the
plaintiffs seek to enjoin government action, the award of a
preliminary injunction must "promote[] the public interest, or,
alternatively, . . . [must] not adversely affect the public"
(citation omitted). Id.
As explained by Dr. Ojikutu, health officials at the time
had a scientific basis to believe that continuing to allow
testing as an alternative to vaccination against COVID-19 likely
was insufficient to combat the surge of the Omicron variant in
December 2021. Dr. Ojikutu opined that requiring vaccination
against COVID-19 instead of the testing alternative would reduce
the likelihood of the spread of COVID-19 to those city residents
who need emergency public safety services. In doing so,
vaccination against COVID-19 not only protected the health of
city residents, but also protected the defendants' ability to
continue to maintain a sufficiently healthy workforce during the
Omicron surge, as would be needed to deliver emergency public
25
safety services to the residents of the city. Therefore, where
awarding injunctive relief does not promote the public interest,
the single justice abused her discretion in issuing the
preliminary injunction because the potential harm to the city
and the public resulting from the spread of COVID-19 clearly
outweighed the economic harm to the employees. See LeClair v.
Norwell, 430 Mass. 328, 337-339 (1999) (where enjoining
important school construction project would harm public
interest, no error in failure to award preliminary injunction
despite plaintiffs' meritorious allegations that town violated
public construction statute and town bylaw).
Conclusion. Accordingly, we reverse the order of the
single justice of the Appeals Court, and we vacate the
preliminary injunction enjoining the defendants from enacting
the amended COVID-19 policy.
So ordered.