Opinion
15-P-846
04-22-2016
ROBERT GAGNE 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
Robert Gagne, acting pro se, appeals from a decision and order of the Commonwealth Employment Relations Board (Board) affirming the dismissal by a Department of Labor Relations (DLR) investigator of Gagne's charge that the Union breached its duty of fair representation. We affirm.
Background. In 2010, Gagne was employed as a lieutenant in the University of Massachusetts Lowell (UMass Lowell) police department. The UMass Lowell police are members of the Union. The Union's relationship with UMass Lowell is governed by a collective bargaining agreement, which provides that an employee cannot be discharged "for disciplinary reasons without just cause." "Just cause" is defined to include "[d]emonstrated incompetence in the performance of duties," "[w]illful dishonesty in the performance of duties," and "[v]iolent behavior."
On May 4, 2010, Gagne used profanity toward two other campus police officers while the parties were in a public space. Later, the three were in the campus police station when Gagne, who was the senior officer, removed his badge and service belt and approached one of the officers "in a threatening manner with chest puffed out and clenched fists." Gagne asked the officer, "Is this what you want, a piece of me?" An independent consultant conducted an investigation into the incidents and found, by a preponderance of the evidence, that Gagne had engaged in criminal conduct (assault), conduct unbecoming an officer, discourtesy, incompetence, and untruthfulness. On July 2, 2010, following a hearing, Gagne was terminated.
On July 13, 2010, Gagne filed a grievance alleging that his termination was unjust. A hearing on the grievance took place before UMass Lowell's vice chancellor for administration and finance, who "determined that the University acted appropriately" in terminating Gagne. The Union planned to moved forward with the grievance, until counsel for the Union advised of its "opinion that the Union would not prevail at arbitration." On October 12, 2010, the Union notified Gagne that it would not be taking his grievance to arbitration because it did not believe it would prevail.
On February 23, 2011, Gagne filed a charge with DLR alleging that the Union had breached its duty of fair representation in violation G. L. c. 150E, § 10(b)(1) and (3). On October 14, 2011, following an in-person investigation pursuant to G. L. c. 150E, § 11, a DLR investigator dismissed Gagne's charge, finding "[no] probable cause to believe that the Union violated [G. L. c. 150E, § 10(b)(1),] in the manner alleged," and that individual employees do not have standing to allege a violation of § 10(b)(3). Gagne appealed, and, on January 20, 2012, the Board affirmed the order of dismissal.
Discussion. Gagne's appeal is properly before us, and we review under the standards set forth in G. L. c. 30A, § 14. See G. L. c. 150E, § 11(i); Lyons v. Labor Relations Commn., 397 Mass. 498, 502 (1986). Thus, we will not overturn the Board's decision unless it is "in violation of constitutional provisions, in excess of the statutory authority or the jurisdiction of the [Board], or made on unlawful procedure, or [is] arbitrary, capricious, or constitute[s] an abuse of discretion." Id. at 503.
Gagne does not argue that the Board's decision is invalid for any of those reasons. Instead, his "allegations on appeal amount to a belabored reiteration of [his] arguments to [DLR and the Board] along with conclusory statements which, at most, question the weight and credibility of the evidence." Alexander v. Labor Relations Commn., 404 Mass. 1005, 1006 (1989). Our review "is limited to a determination whether [DLR] acted invalidly in dismissing the charge." Plymouth Police Bhd. v. Labor Relations Commn., 417 Mass. 436, 440 (1994). Here the investigator dismissed the charge after concluding that there was no probable cause to believe that the Union had committed an unfair labor practice when it refused to take Gagne's grievance to arbitration. The record supports the conclusion by the investigator, who "ha[d] broad discretion under the statute to resolve [the] complaint[]" by dismissing it. Alexander v. Labor Relations Commn., supra at 1005. See G. L. c. 150E, § 11(b). The Board correctly affirmed the investigator's determination. See Lyons v. Labor Relations Commn., supra at 503 (DLR "decisions which legitimately fall within its discretionary powers will be sustained on review"). Gagne has failed to sustain his burden. See Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987); Alexander v. Labor Relations Commn., supra at 1005.
Decision and order of the Commonwealth Employment Relations Board affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 22, 2016.