Opinion
14-P-324
07-28-2015
CITY OF BOSTON v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
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 city of Boston (city) appeals from a decision and order of the Commonwealth Employment Relations Board (board) in favor of the Boston Police Superior Officers Federation (federation), an intervener in this appeal. We affirm.
In 2005, the city and the federation entered into a settlement agreement (2005 agreement) following a dispute over the assignment of the so-called "Commander, Special Police Unit, Bureau of Field Services" position to a nonunion member, Lieutenant Daniel Linskey. The 2005 agreement stated that when Linskey, whose promotion to another job was imminent, left that position, the position would revert "to a position exclusive to the Federation bargaining unit." Linskey left the position on April 12, 2006, and the city then dispersed Linskey's responsibilities to nonunion members. In response, the federation filed a charge of prohibited practice with the division of labor relations (DLR).
The violations were alleged pursuant to G. L. c. 150E, § 10(a)(5), and, derivatively, § 10(a)(1).
The division of labor relations is now the Department of Labor Relations. St. 2011, c. 3, § 36.
At the DLR hearing, the city argued, among other things, that the 2005 agreement was premised on mutual mistake because the parties had had incorrect understandings of Linskey's role and, also, that the 2005 agreement infringed on the city's nondelegable right to determine the duties and responsibilities of Linskey's position after his departure. The DLR hearing officer found that "the language of the 2005 Agreement is clear and unambiguous"; that the parties did not have "differing good faith interpretations of the 2005 Agreement"; and that "the City's action was sufficiently deliberate to constitute an unlawful repudiation.",
The DLR hearing officer also concluded that the city did not violate the law when it transferred bargaining unit work to nonbargaining unit personnel. That matter was not raised on appeal to the board, nor was it raised in this appeal from the board decision.
The DLR hearing officer also rejected the city's argument that the agreement had "contravene[d] a non-delegable right not to replace Linskey or to consolidate" two different police departments.
The city appealed the DLR decision to the board. Before the board, "[f]or the first time . . ., the City assert[ed] that, even assuming it repudiated the 2005 Agreement by not assigning certain work to bargaining unit members, the 2005 Agreement was void as a matter of Law because it required the City to unilaterally take work away from two other bargaining units . . . and give it to the [federation]." The board affirmed the DLR decision, rejecting the city's argument as improperly raised for the first time. See Anderson v. Commonwealth Employment Relations Bd., 73 Mass. App. Ct. 908, 909 n.7 (2009), citing McCormick v. Labor Relations Commn., 412 Mass. 164, 170 (1992).
Those two units were the Boston Police Detectives Benevolent Association and the Salaried Employees of North America, USW, Local 9158.
The city now appeals the board's decision, arguing, as it did before the DLR, but not the board, that the 2005 agreement was unenforceable because it interfered with the city's nondelegable rights relating to deployment of staffing or sworn personnel or, in the alternative, because the 2005 agreement was based on mutual mistake.
The city also argues that the DLR and the board decisions were arbitrary and capricious because the remedy imposed was overly harsh and punitive.
We agree that the board properly refused to consider arguments not made to the DLR. In addition, because in its challenge before the board regarding the DLR remedy, the city did not properly raise either of the arguments that it now makes to us -- mutual mistake based on incorrect understandings of Linskey's role or interference with its nondelegable rights -- we also decline to consider those arguments on appeal. See Secretary of Admn. & Fin. v. Commonwealth Employment Relations Bd., 74 Mass. App. Ct. 91, 95 (2009). See also Albert v. Municipal Ct. of the City of Boston, 388 Mass. 491, 493 (1983) ("A party is not entitled to raise arguments on appeal that he could have raised, but did not raise, before the administrative agency").
Contrary to the city's argument, the issue of nondelegable rights was not raised before the board. The city's cursory mention of the unenforceability of bargaining agreements that address the exclusive managerial authority of the employer, which was made in its supplemental statement, was not a stand-alone argument, but, rather, mentioned as an example of unenforceable agreements in violation of c. 150E and in support of the contention that the 2005 agreement is void because it unilaterally assigned work away from two other bargaining units.
Decision and order of the board affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 28, 2015.