Opinion
20-P-1320
12-08-2021
CITY OF BOSTON v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2017, the city of Boston (city) issued a memorandum regarding the accrual of vacation time of its employees. Alleging that the city's adoption of the policy was a departure from the applicable collective bargaining agreement (CBA), the Salaried Employees of North America, Local 9158 (union), filed an administrative charge against the city with the Department of Labor Relations (DLR). The charge contended that, by unilaterally instituting such a policy change without subjecting the issue to collective bargaining, the city engaged in a "prohibited practice" in violation of G. L. c. 150E, § 10 (a.) (5), and, derivatively, § 10 (a.) (1) . After investigation, an administrative complaint issued. A DLR hearing officer eventually agreed with the union, and the Commonwealth Employee Relations Board (board) affirmed on appeal. Before us now is the city's appeal from the board's decision. We affirm.
1. Background.
Article XVI of the 2010-2016 CBA between the city and the union set forth the applicable vacation accrual policies. Under § 2 of that article, employees were awarded their eligible annual vacation time on January 1 of each year, unless the provisions of § 4 of that article applied. In turn, § 4 stated, "Any employee on an authorized leave of absence shall accrue or not accrue vacation time in accordance with the [c]ity's Family and Medical Leave Policy or Military Leave Policy, whichever is applicable." Hence, the only stated exception to the January 1 vacation "drop date" applied where the employee was on family, medical, or military leave. If the employee recently had taken such a leave, the city could extend the vacation drop date (thus delaying when the employee was eligible to take accrued vacation time). In contrast, the 2006-2010 CBA was not as limited and addressed a wider variety of situations in which the vacation drop date could be delayed, including where an employee had been out on an unauthorized leave.
In 2017, the city issued a memo entitled "vacation eligibility provisions." This memo (2017 memo) purported to establish that vacation eligibility could be postponed based on a wide variety of recent absences, not just authorized leaves taken pursuant to the city's family, medical, and military leave policies. According to the city, the 2017 memo was not in fact a change in the city's policies, a claim the city sought to bolster by arguing that it would be nonsensical to delay the vacation drop date for authorized leaves, but not for unauthorized ones. The hearing officer and the board rejected such arguments.
2. Discussion.
By statute, our review of the board's decision is limited. Pursuant to G. L. c. 150E, § 11 (i), our review is governed by G. L. c. 30A, § 14. We may reverse the board's decision only if we determine that the "substantial rights of any party may have been prejudiced because the [board's] decision is
"(a.) In violation of constitutional provisions; or
"(b) In excess of the statutory authority or jurisdiction of the agency; or
" (c) Based upon an error of law; or
"(d) Made upon unlawful procedure; or
" (e) Unsupported by substantial evidence; or
" (f) Unwarranted by facts found by the court on the record as submitted or as amplified under paragraph (6) of this section, in those instances where the court is constitutionally required to make independent findings of fact; or
" (g) Arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law."
G. L. c. 30A, § 14 (7) . Under subsection (e), "substantial evidence" is defined as "evidence [that is] of a character that 'a reasonable mind might accept as adequate to support a conclusion.'" Anderson v. Commonwealth Employment Relations Bd., 73 Mass.App.Ct. 908, 910 (2009), quoting G. L. c. 30A, §1(6). We "may not displace [the] board's choice between two fairly conflicting views, even [where we might] justifiably have made a different choice had the matter been before [us] de novo." Brookfield v. Labor Relations Comm'n, 443 Mass. 315, 321 (2005) .
Viewing the board's decision against these standards, we discern no error. In short, we agree with the board that the city is bound by the unambiguous language used by the CBA that it executed with the union, regardless of whether such language in fact fully captured the city's actual intent. Because it is undisputed that vacation eligibility is a mandatory subject of bargaining -- see Dedham v. Dedham Police Ass'n (Lieutenants & Sergeants), 46 Mass.App.Ct. 418, 420 (1999), citing G. L. c. 150E, § 2 -- the city's efforts to make a unilateral change to its vacation eligibility provisions readily constituted a prohibited practice. See Everett v. Labor Relations Comm'n, 416 Mass. 620, 626-627 (1993).
The additional arguments that the city makes in its appellate brief were not raised before the board and therefore are waived. See Anderson, 73 Mass.App.Ct. at 909 n.7, citing McCormick v. Labor Relations Comm'n, 412 Mass. 164, 170 (1992). The same is true of the city's argument -- which it raised for the first time during oral argument -- that the meaning of the CBA had to be resolved through arbitration.
Although we do not reach the merits of this issue, we note the following language in G. L. c. 150E, § 11 (b), with regard to the range of options that a DLR investigator has at his or her disposal: "The investigator may issue an order dismissing the complaint, deferring any complaint which is the subject of a pending grievance or arbitration, referring any complaint to one of the department's mediators, or directing that a hearing take place."
Decision and order affirmed.
By the Court
The panelists are listed in order of seniority.