Opinion
14-P-1941
02-18-2016
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL 495 v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The National Association of Government Employees, Local 495 (NAGE) appeals from a decision of the Commonwealth Employment Relations Board (the board), concluding that the city of Worcester (the city) did not violate G. L. c. 150E, §§ 10(a)(1) and (5), when it denied Sean Maher, the current NAGE president, paid leave to conduct certain union-related business. We affirm.
Effective November 12, 2007, the board became the successor to the Labor Relations Commission (LRC). See G. L. c. 23, § 9O, as amended through St. 2007, c. 145, § 5. References to the board include the former LRC.
Background. On August 8, 2007, NAGE filed a charge of prohibited practice with the Department of Labor Relations (DLR) alleging that the city had engaged in prohibited practices within the meaning of G. L. c. 150E, §§ 10(a)(1) and (5), by denying Maher's request "for permission to leave his assigned job and conduct union business in furtherance of his responsibility as President of Local 495." On May 28, 2009, the board issued a complaint of prohibited practice (complaint) alleging that: (1) prior to February 9, 2007, the city allowed Michael Lavin, the prior NAGE president, "reasonable paid time off to conduct Union business, without requiring the use of vacation or personal time"; (2) since February 9, 2007, the city has refused to allow Maher "paid time off to conduct Union business and has required instead that he use vacation or personal time to do so"; and (3) the alleged change in practice constituted an impermissible unilateral change to a mandatory subject of collective bargaining in violation of G. L. c. 150E, §§ 10(a)(1) and (5).
The Department of Labor Relations was formerly the division of labor relations (division). See St. 2011, c. 3, § 6. References to the DLR include the division.
A DLR hearing officer conducted a four-day hearing, at which NAGE sought to establish that the city developed a past practice of granting Lavin paid leave to conduct various forms of "Union business," and subsequently denied Maher's requests for paid leave to do the same. On March 2, 2012, the hearing officer issued a written decision with detailed findings as to the categories of union-related activity that Lavin and Maher had allegedly requested paid leave to attend: national conventions, negotiation meetings, national executive board meetings, city council meetings, grievance hearings, and other union-related activities. The hearing officer concluded as follows: (1) "there was a clear practice of allowing [Lavin and Maher] paid release time to attend National Convention and negotiation meetings," and found no violation because the city did not deny Maher's requests to attend these events; (2) NAGE "met its burden of showing that the city had established a consistent practice of granting Lavin paid leave to attend National Executive Board meetings and unilaterally changed this practice when it denied Maher's requests for paid leave to attend those same events [on three occasions]"; and (3) "the City established a past practice of consistently denying Lavin's requests for paid leave to attend City Council, grievance and other Union-related meetings, and maintained this past practice when it denied Maher's requests for paid leave to attend the same events."
Pursuant to G. L. c. 150E, § 11(e), both parties appealed to the board, which affirmed the hearing officer's ultimate determinations as to each category. However, the board corrected the hearing officer's finding that the city had a pre-2007 practice of denying Lavin's requests for paid leave to attend city council, grievance, and other union-related meetings, concluding that it was "inconsistent with the Hearing Officer's unchallenged Findings of Fact, which contain no facts showing that the City denied any of Lavin's requests for time off, whether paid or unpaid." Notwithstanding this inaccuracy, the board found no evidence that, prior to 2007, the city had ever granted paid leave to Lavin to attend such meetings. The board concluded that NAGE failed to meet its burden of showing that the city had established a past practice of granting Lavin paid leave to attend city council, grievance, and other union-related meetings, and thus that the hearing officer correctly found that the city did not change an existing practice. NAGE's appeal to this court followed.
The city did not appeal the board's decision.
Discussion. A. Standard of review. This court reviews the board's decision in accordance with G. L. c. 30A, § 14, and G. L. c. 150E, § 11. Worcester v. Labor Relations Commn., 438 Mass. 177, 180 (2002). "A [board] decision must be based on substantial evidence, 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' G. L. c. 30A, § 1(6)." Boston v. Labor Relations Commn., 48 Mass. App. Ct. 169, 172 (1999). "In determining whether a decision has such support, we 'give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as the discretionary authority conferred upon it.' G. L. c. 30A, § 14." Ibid. "Moreover, we cannot substitute our judgment for that of the [board], even 'on the basis of evidence in the record that might have warranted a contrary conclusion.'" Ibid., quoting from School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557, 573 (1983). Thus, "[w]e generally accord considerable deference to the [board]'s disposition of a charge," Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991), so long as it is not arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law, G. L. c. 30A, § 14.
B. Analysis. NAGE contends that the board's decision should be set aside because NAGE proved by a preponderance of the evidence that a past practice existed where the city granted Lavin paid leave for all reasonable union-related requests, and the city violated that past practice by denying Maher's requests for paid leave to attend city council, grievance, and other union-related meetings. We disagree. A past practice will ordinarily be considered binding on the parties only when there is "strong proof of its existence." Massachusetts Correction Officers Federated Union v. Sheriff of Bristol County, 55 Mass. App. Ct. 285, 291 (2002), quoting from Elkouri & Elkouri, How Arbitration Works 632 (5th ed. 1997). A past practice must have been "clearly stated and understood, maintained over a reasonable time, and accepted by both parties, and [one that] could not be terminated unilaterally." Massachusetts Correction Officers Federated Union, supra, quoting from Chief Administrative Justice of the Trial Ct. v. Service Employees Intl. Union, Local 254, 383 Mass. 791, 792 (1981).
Here, NAGE failed to introduce into the record any testimony or documentary evidence establishing that the city had a past practice of granting Lavin paid leave to attend city council, grievance, and other union-related meetings. Indeed, the only evidence that NAGE produced of Lavin's written requests for paid leave during his tenure as NAGE's president related to national union conventions and national executive board meetings. While Lavin testified that his requests for leave to attend to union matters were often verbal, he did not testify that such requests were for paid leave. On the contrary, the record reveals that Lavin never requested any leave at all to attend grievance meetings, and there was no evidence before the board that the city granted him paid leave to attend city council or other union-related meetings. We decline NAGE's invitation to bridge this gap in the evidence by speculating as to what the city might have done if faced with different requests from Lavin. See, e.g., Massachusetts Correction Officers Federated Union, supra, quoting from Elkouri & Elkouri, How Arbitration Works 632 (proof of past practice requires "evidence that the practice is [1] unequivocal; [2] clearly enumerated and acted upon; [and] [3] readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both Parties"). Appellate relief is not warranted here.
NAGE appears to claim that because the city routinely granted Lavin's requests for leave, all of Maher's requests for leave should similarly have been granted. This argument is unavailing. The administrative record indicates that Maher was more active in his role as union president than his predecessor Lavin, worked a different schedule than Lavin, and submitted far more requests for leave that encompassed a wider variety of union-related activities than Lavin. Maher's undertaking of different and more expansive union-related activities, and his accompanying requests for paid leave to accommodate such activities, thus presented the city with a situation that it "had not previously been confronted with" during Lavin's presidency. Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172, 184 (1997). Accordingly, the board directly compared the activities for which Lavin requested paid leave to those for which Maher requested paid leave, and determined that there was no evidence that the city had granted Lavin paid leave for city council, grievance, and other union-related meetings. Where the evidence failed to establish the existence of a past practice, there was no "unilateral change." Id. at 177. See Massachusetts Correction Officers Federated Union, 55 Mass. App. Ct. at 291. As substantial evidence supported the board's conclusions, and we find no substance to the claim that the board's findings were arbitrary, capricious, or an abuse of discretion, this court must accord them deference.
Belatedly recognizing this weakness in its argument, NAGE contends that the board engaged in "legerdemain" by inserting "an additional component to the Complaint, to wit that the time off requested must be paid." The complaint framed the issue as one involving "paid time off," and the matter was litigated as such by the parties. NAGE did not move to amend the complaint, or address this issue before the board. The contention is without merit, and in any event, has been waived. McCormick v. Labor Relations Commn., 412 Mass. 164, 170 (1992).
Additionally, NAGE argues that the board acted arbitrarily or capriciously when it found that the hearing officer's statement that the "City established a past practice of consistently denying Lavin's requests for paid leave to attend City Council, grievances and other Union-related meetings" was incorrect, but then ultimately found that the city did not change an existing past practice. The argument fails. The absence of evidence to support a negative does not automatically mean sufficient evidence exists to support the corresponding positive. Here, NAGE had the burden to establish that a past practice existed where the city granted Lavin paid leave to attend city council, grievances, and other union-related meetings, and it failed to present any evidence to satisfy that burden.
C. NAGE's remaining arguments. NAGE raises two additional contentions: (1) that the city improperly denied Maher's request for unpaid leave pursuant to art. 6.2 of the collective bargaining agreement; and (2) that the city violated G. L. c. 150E by, inter alia, interfering in the administration of NAGE, and bargaining in bad faith by rejecting a past practice clause. Because NAGE failed to raise these issues before the board, we consider them waived, and need not reach them. See McCormick v. Labor Relations Commn., 412 Mass. 164, 170 (1992) (appellant "cannot raise on appeal arguments that [it] failed to raise before the [board]").
Decision and order of the Commonwealth Employment Relations Board affirmed.
By the Court (Kafker C.J., Cypher, Cohen, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 18, 2016.