Opinion
10-P-1507
08-16-2011
CITY OF WORCESTER v. LOCAL 1009, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS.
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
An arbitrator interpreted the collective bargaining agreement (CBA) between the plaintiff (city) and the defendant (union) to mean that firefighters on injured-on-duty status (IOD) were entitled to accrue vacation leave. A judge of the Superior Court, mindful of the narrow scope of review afforded to arbitration awards, confirmed the award. Before us is the city's appeal. We affirm.
The arbitrator's decision. The arbitrator found that there were some instances in the past where the city had paid accrued vacation leave to firefighters who had been on IOD status, as well as other instances in the same time period where the city had not paid accrued vacation leave. In view of this conflicting evidence, the arbitrator concluded that there was no 'binding past practice'; however, he took note of the stipulated issue presented to him, observing that its phraseology 'certainly implies a change whereby firefighters on IOD did receive their accrued vacation leave and now, of course, they do not.'
'Did the City violate the Collective Bargaining Agreement when it altered the practice of members accruing vacation leave while on IOD?'
The arbitrator then consulted the CBA and, in particular, the provisions pertaining to vacation leave. He concluded that nothing contained therein suggested that firefighters on IOD would not accrue vacation leave. Significantly, schedule A provided that vacation and miscellaneous leave were to be regulated and administered under the provisions of chapter 3 of the revised ordinances of 1997, while the city's claim that there was no accrual of vacation leave was based upon the revised ordinances of 1999, which were not incorporated into the CBA, and which, the arbitrator concluded, were not applicable to firefighters. On the basis of this analysis, the arbitrator determined that the city had violated the CBA by denying firefighters on IOD status the accrual of vacation leave, and directed the city to 'make whole' those affected by the violation.
Discussion. The city argues that, in the absence of either an explicit term in the CBA providing for the accrual of vacation leave by firefighters on IOD, or a binding past practice of providing such benefits, the award exceeded the arbitrator's authority and cannot stand. We disagree.
This is not a case where the arbitrator exceeded his authority by directing the city to engage in conduct that is contrary to law or in violation of a well-defined, dominant public policy. As recognized in Rein v. Marshfield, 16 Mass. App. Ct. 519, 523 (1983), even though G. L. c. 41, § 111F, has been construed not to require the accrual of vacation leave during periods of injury leave, 'public employees and public employers may, by collective bargaining agreement, come to terms at variance with [that statute].' Furthermore, as we held in Duxbury v. Duxbury Permanent Firefighters Assn., Local 2167, 50 Mass. App. Ct. 461, 466 (2000) (Duxbury), an arbitrator's award does not violate public policy when it enforces a collective bargaining agreement that conflicts with G. L. c. 41, § 111F, '[w]hether that conflict arises because of clear language in the agreement, or as a result of an arbitrator's interpretation of the contract.'
Nor is this a case where the arbitrator exceeded the authority granted to him by the CBA. To be sure, an 'arbitrator may not ignore the plain words of [a] contract.' Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass. App. Ct. 702, 706 (2006) (Sheriff of Suffolk County), quoting from Grobet File Co. of America, Inc. v. RTC Sys., Inc., 26 Mass. App. Ct. 132, 134-135 (1988) (Grobet File Co.). 'However, '[if] there is room for doubt or interpretation on the question, then the issue properly lies within the broad authority conferred upon arbitrators of civil disputes." Sheriff of Suffolk County, supra, quoting from Grobet File Co., supra at 135. '[A]n arbitrator's award is entitled to judicial respect insofar as it draws its essence from the collective bargaining agreement. That is to say, the award will be upheld unless the arbitrator's interpretations and conclusions are substantially irrational or implausible.' School Comm. of Needham v. Needham Educ. Assn., 398 Mass. 709, 713 (1986).
Here, the award does not contravene any language in the agreement. Indeed, the difficulty confronted by the arbitrator was that there was no language in the CBA that spoke directly to the issue at hand. Compare School Comm. of Hanover v. Hanover Teachers Assn., 435 Mass. 736, 741 (2002). Furthermore, the city has not shown that the arbitrator's interpretation was substantially irrational or implausible. Notably, the city has failed to include in the record appendix copies of the ordinances on which the arbitrator relied in reaching his decision. See Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997). In any event, it is evident from the arbitrator's decision that he did not pull his decision out of thin air, as the city contends; rather, he looked to relevant provisions of the CBA and the ordinances referenced therein to interpret the agreement. Thus, this case falls squarely within the usual rule that, when an arbitrator's decision concerns construction of the contract, the 'courts have no business overruling him,' even if their own interpretation would be different. Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 68 Mass. App. Ct. 222, 226 (2007), quoting from United Steel Workers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599 (1960).
Contrary to the city's position, the arbitrator was not required to interpret the CBA only with reference to the existence or nonexistence of a clear past practice. There is nothing in Duxbury, 50 Mass. App. Ct. at 466, that precludes an arbitrator from using conventional tools of contract interpretation in order to ascertain the meaning and intent of a CBA.
There is no merit to the city's remaining argument that the award should not have been confirmed because the union's posthearing memorandum contained inappropriate material. Any objection to the union's submission should have been directed to the arbitrator; it was the arbitrator to whom procedural questions were reserved. See generally Bedford v. AFSCME Council 93, Local 1703, 69 Mass. App. Ct. 110, 112 (2007).
Conclusion. The judgment is affirmed. 'We decline to grant [the union's] passing request for fees and costs pursuant to G. L. c. 150C, § 13. . . . [The union] may pursue such a request in the Superior Court.' School Comm. of Lowell v. Robishaw, 456 Mass. 653, 665 n.12 (2010). So ordered.
By the Court (Kantrowitz, Cohen & Green, JJ.),