Opinion
11-P-612
02-13-2012
MICHAEL BYERLEY v. TOWN OF ANDOVER & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Michael Byerley, a fire fighter presently employed by the town of Andover (town), appeals from a judgment entered in favor of the town and the intervener, Andover Fire Fighters, Local 1658 (the union). Byerley claims that the judge erred in granting summary judgment on his claim that he was reduced in rank and had his pay and benefits reduced unlawfully and without notice in violation of G. L. c. 31, § 41, as a result of a settlement agreement between the town and the union. We affirm, substantially for the reasons set forth in the town's brief at pages 5 through 12.
1. Background. It is undisputed that all fire fighters employed by the town, except the fire chief, are represented by the union for purposes of collective bargaining and are covered under the terms of the governing collective bargaining agreement (CBA). Ordinarily, the wage steps for a fire fighter entering service with the town are P, A, B, and C, with newly hired fire fighters beginning employment at the P pay step and remaining there for one year. In each successive year, the fire fighter moves up one step, until after three years, he reaches the C step where he remains for the duration of his career, subject to increases not here relevant. Similarly, the CBA provides that a newly hired fire fighter does not receive vacation leave until completion of one full year of 'continuous service' with the fire department. After completion of that year, the fire fighter receives yearly vacation leave allotments in accordance with the respective years on the job.
As a result of a prior settlement agreement entered between the town and the union in 1994, the CBA included wage and vacation leave provisions that a fire fighter who transferred from another town's fire department and remained for a period of two years would, after that two-year period, receive credit for time previously employed in the other department for purposes of wage step placement, longevity, and vacation leave allotment.
In 2008, Byerley voluntarily transferred to the town from the Haverhill fire department where he began employment in 2004. Upon commencement of his employment with the town, Byerley received pay at the highest wage step, C, rather than at step P and was allotted vacation time prior to completing one year of continuous service, all contrary to the CBA.
The union filed grievance and prohibited practice charges relative to the town's grant to Byerley of wages and vacation leave benefits. In a 2009 settlement of those charges, the town and the union agreed that Byerley was to be placed at a wage step (P) and vacation leave allotment (none prior to one continuous year of service) concordant with the CBA.
The 2009 settlement specifically provided that Byerley would not be required to reimburse the town for excess wages paid from commencement of employment until the date of settlement, and that on his two-year anniversary of employment with the town he would receive credit for his years of service in Haverhill for purposes of wages, longevity, and vacation leave.
It is undisputed that Byerley is a member of the bargaining unit represented by the union. It is also not open to serious question that at all times during employment with the town, Byerley had status as a permanent fire fighter, without change to his civil service seniority, rank, or status, and that he was not required to serve a probationary period.
2. Discussion. We discern no error in the grant of summary judgment because on the undisputed facts Byerley had no reasonable expectation of proving an essential element of his claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). As recognized earlier by the same motion judge, there are two classification systems at work in this case -- the labor relations system (governed by the CBA) and the civil service system (governed by statute and on which Byerley relies). As a permanent employee in the Haverhill fire department, Byerley could, and did, avail himself of a voluntary transfer to another fire department, that of the town. See G. L. c. 31, § 35. Such transfer did not transform his civil service status from permanent to probationary within the meaning of G. L. c. 31, § 34, and the town did not contend otherwise. Nor did Byerley produce any evidence that his civil service status was so affected. Indeed, the record evidence is to the contrary. Byerley has held a civil service position and rank as a permanent and not a probationary fire fighter throughout his employment with the town.
The same motion judge previously dismissed various other claims brought by Byerley.
At the same time, nothing in the civil service scheme governs the wage, step, and vacation leave provisions of a CBA. Nor does anything in the 2009 settlement agreement, construing the terms of the CBA (as modified by the 1994 agreement) alter Byerley's employment status under civil service. As such, Byerley has no claim to a hearing under G. L. c. 31, § 41, on account of any alleged demotion or reduction in rank or status.
Similarly, Byerley's compensation was not reduced within the meaning of § 41 because under the CBA the town could not lawfully contract with Byerley to pay him a higher rate than the CBA provided. Under the express terms of G. L. c. 150E, §§ 4, 5, and 7, the union is the exclusive bargaining agent for unit members, including Byerley, and the CBA between the town and the union controls the terms and conditions of Byerley's employment, including wages and benefits such as vacation leave and longevity. See Dedham v. Dedham Police Assn. (Lieutenants & Sergeants), 46 Mass. App. Ct. 418, 420-421 (1999) (parties to CBA free to agree in CBA to governing principles for seniority as part of hours, terms, and conditions of employment). No conflict with the core principles underlying civil service law prohibits the town and the union from agreeing to wage rates for fire fighters regardless of prior service to another community. To the extent that Byerley was promised greater benefits by the fire chief, and was initially paid at that higher grade, such an agreement would be an unlawful individual agreement concerning a mandatory subject of bargaining, see Service Employees Intl. Union, AFL-CIO, Local 509 v. Labor Relations Commn., 431 Mass. 710, 714-715 (2000), and may not serve as the basis for a claim of demotion or reduction within the meaning of § 41 and its statutory right to notice and hearing.
Even were Byerley to have been entitled to notice and a hearing under § 41, he has failed to establish how the result would be different. See Mello v. Mayor of Fall River, 22 Mass. App. Ct. 974, 976 (1986). As discussed, supra, Byerley initially was placed at a higher wage and vacation leave level than that to which he was entitled under the CBA. Indeed, the 2009 settlement between the town and the union, which did not require the return of excess compensation paid, placed Byerley in a better position than that to which he otherwise was entitled.
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),