Opinion
23-P-797
07-19-2024
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, UNIT 6 v. COMMONWEALTH OF MASSACHUSETTS.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff union appeals from a judgment on the pleadings entered against it in the Superior Court on its complaint to vacate an arbitrator's decision. The arbitrator determined that the union's grievance was not arbitrable under the terms of its collective bargaining agreement (CBA) with the defendant, the Commonwealth. The Superior Court judge agreed and confirmed the arbitrator's award. We affirm.
Background.
The union filed a grievance on behalf of David Taillefer, a food services supervisor at the Department of Mental Health's Worcester Recovery Center and Hospital (center). Taillefer had applied for a promotion to the vacant position of director of food services. He was one of sixty internal and external applicants, one of nine candidates selected for the first round of interviews, and one of three finalists for the position. After a second round of interviews, an external candidate was selected for the job; Taillefer was notified that he had not been selected. The union then filed a "promotion bypass grievance" on his behalf, "asserting the promotion process suffered from procedural defects."
Article 23, section 23.2, of the CBA sets forth a four-step grievance procedure. A Step III hearing was held, and we infer from the record that the Commonwealth's Human Resources Division (HRD) denied relief. The grievance was then submitted to arbitration, Step IV of the procedure. The arbitrator held a hearing over two dates and ultimately concluded that the grievance was "substantively not arbitrable." She added that if she could reach the merits, she "would, at the least, find that, because of flaws in the system, the process would have to be redone."
The flaws cited by the arbitrator were lack of "transparency and careful documentation" to show that "the requirements of Article 14 [concerning consideration of internal candidates] had been met," and the center's "total ambiguity as to the workings of the second [interview] panel."
The union filed a complaint in the Superior Court to vacate the arbitrator's award, arguing that the arbitrator's determination that the grievance was not subject to arbitration exceeded her authority and was against public policy. Acting on cross motions for judgment on the pleadings, the judge allowed the Commonwealth's motion and confirmed the arbitrator's decision.
Discussion.
Article 23 of the CBA, "Grievance Procedure," is a broad provision applying to "any dispute concerning the application or interpretation of the terms of this Collective Bargaining Agreement." It sets forth a four-step grievance procedure and states that grievances not resolved at Step III "may be brought to arbitration" by the union. However, section 14.1 of Article 14, "Promotions," contains language that limits the grievance procedure when an external candidate is hired over an employee who is a member of the bargaining unit. After affirming that the hiring department or agency may receive job applications from external candidates, and that the department or agency may hire external candidates "after all applicants within the Appointing Authority have been considered," section 14.1 allows for grievances as follows:
In the event a person is hired from outside the Department/Agency, or bargaining unit[,] such action shall be subject to the grievance procedure through Step III as provided by Article 23 of the Agreement if the Union alleges such employee does not meet the minimum requirements for the vacancy as determined by the Chief Human Resources Officer.
The plain language of this provision states that if an external candidate is hired, the union may grieve the hiring decision, but only to Step III, the HRD level, and only if the union claims that external candidate did not meet the minimum requirements for the position. Such a grievance, if denied by HRD, is not subject to arbitration.
This provision does not directly address whether the union may grieve management's decision to hire a qualified external candidate based on alleged violations of the CBA. The Commonwealth argues that provision clearly implies that the union may not grieve the hiring of an external candidate if the candidate does meet the minimum requirements, and that no grievance of any decision to hire an external candidate may ever go beyond Step III to arbitration. The union contends, conversely, that the provision's silence as to other situations implies that a grievance concerning the hiring of an external candidate based on a reason other than the external candidate's failure to meet the minimum requirements is not only permitted, but is allowed to advance to Step IV, arbitration. Therefore, the union contends, it was entitled to file a grievance on behalf of Taillefer -- and advance to arbitration -- based on its claim that the hiring procedures that resulted in selection of the external candidate over Taillefer violated the CBA.
Although we normally defer to both the factual findings and legal conclusions of an arbitrator, even if they are wrong, see Lynn v. Thompson, 435 Mass. 54, 61-62 (2001), cert. denied, 534 U.S. 1131 (2002), all agree that the threshold question of substantive arbitrability presented in this appeal is for the courts to decide. See Chelsea v. New England Police Benevolent Ass'n, Inc., Local 192, 491 Mass. 426, 431 (2023); Falmouth Police Superior Officers Ass'n v. Falmouth, 80 Mass.App.Ct. 833, 838 (2011). The meaning of an arbitration clause of a CBA is a matter of contract interpretation. See Kauders v. Uber Techs., Inc., 486 Mass. 557, 571 (2021); Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 75 Mass.App.Ct. 340, 342 (2009). "The question . . . is to be resolved by reading and construing the whole contract 'in a reasonable and practical way, consistent with its language, background, and purpose.'" Sheriff of Suffolk County, supra, quoting USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass.App.Ct. 108, 116 (1989). We address the question de novo. See Sheriff of Suffolk County, supra at 341.
We agree with the Commonwealth that construing the disputed provision of Section 14.1 in light of the contract as a whole, grievances of decisions to hire external candidates are limited to a narrow set of circumstances and do not proceed to arbitration. The CBA clearly allows the hiring of external candidates, and clearly constrains grievances in situations when an external candidate is hired who does not meet the minimum job requirements to a Step III determination by HRD. It would make little sense to provide a broader, more robust grievance procedure when the external candidate hired does possess the qualifications for the job.
The union argues that this interpretation creates an anomaly whereby the decision to promote one employee over another can proceed to arbitration, whereas the decision to hire a qualified external candidate over an employee is insulated from review, giving the employer unbounded discretion. While this may be the case, different interests are implicated when the union chooses to grieve the promotion of one bargaining unit member over another, and it is not irrational that the parties agreed to different procedures.
"Courts recognize, however, that 'a collective bargaining agreement is not an ordinary contract.'" Watertown v. Watertown Mun. Employees Ass'n, 63 Mass.App.Ct. 285, 289 (2005), quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550 (1964). When a CBA includes an arbitration clause, a presumption of arbitrability is imposed, such that arbitration should be permitted "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute" (quotations and citations omitted). Chelsea, 491 Mass. at 430. To rebut the presumption, the party opposing arbitration must show "either (1) the existence of an express provision excluding the grievance from arbitration or (2) the most forceful evidence of a purpose to exclude the claim from arbitration" (quotations and citations omitted). Sheriff of Suffolk County, 75 Mass.App.Ct. at 343.
Although the disputed provision is susceptible to the union's interpretation, we agree with the arbitrator and the Superior Court judge that Commonwealth produced "forceful evidence" to prove that the parties did not agree to arbitrate the hiring of a qualified external candidate, even if the union alleges that the hiring process violated the CBA. The evidence was twofold. First, the arbitrator found "overwhelming and binding precedent," based on decisions of other arbitrators going back to 1990, that grievances challenging the hiring of an external candidate are limited to whether the outside candidate meets minimum requirements and are not subject to arbitration. We need not address whether the prior arbitration decisions have precedential value, nor whether they are distinguishable on their facts. We consider the unbroken line of decisions simply as evidence that the CBA has long been understood not to provide for arbitration when an external candidate is hired over an internal candidate.
Although "arbitration awards are not entitled to the precedential effect accorded to judicial decisions," El Dorado Tech. Servs., Inc. v. Union Gen. De Trabajadores de Puerto Rico, 961 F.2d 317, 321 (1st Cir. 1992), arbitrators have discretion whether to give precedential effect to prior awards. See Massachusetts Correction Officers Federated Union v. Commissioner of Correction, 58 Mass.App.Ct. 832, 835 (2003).
Second, the arbitrator found that the disputed language has been included in successive versions of the CBA dating back to 1990, and that on two occasions the union sought to alter it. In negotiations held in 2013, the union proposed, unsuccessfully, to amend the CBA with language stating that "outside hires are grievable and arbitrable." In negotiations held in 2017, the union proposed, again unsuccessfully, to delete the disputed provision entirely. That the union twice attempted to amend the CBA to provide for arbitration of outside hires is evidence that it understood that the disputed language as not providing for arbitration.
Finally, the union argues that it offends public policy to interpret the CBA to deny arbitration when a qualified external candidate is hired after a selection process that the union alleges is not "fair, reasonable, and transparent." "We apply a stringent, three-part analysis to establish whether the narrow public policy exception requires us to vacate the arbitrator's decision." Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 818 (2005). The party invoking the public policy exception must establish the following three factors:
"(1) the public policy at issue must be well defined and dominant, and determined from laws and legal precedents,
not general considerations of the public interest; (2) the disfavored conduct under scrutiny must be integral to the performance of employment duties, and (3) the employee's conduct, as found by the arbitrator, would have required dismissal, and a lesser sanction would frustrate public policy" (quotations and citations omitted).Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 700-701 (2008).
As an initial matter, we are inclined to agree with the Commonwealth that the narrow public policy exception does not apply to determinations of arbitrability. The three-part test is clearly designed for scrutiny of arbitration decisions regarding the merits of employee discipline. The test is ill-suited to address the judicial interpretation of an arbitration clause. In any event, the union has not established the elements of a public policy violation. Although the union cites laws and legal precedents from various disciplines, its argument is essentially based on free-standing, "general considerations of the public interest," id. at 700, which are not sufficient. Moreover, denying arbitration here merely results in permitting the center to hire a qualified candidate who is not a union member. Such an arbitration award does not sanction disfavored conduct integral to the performance of the functions of a director of food services.
Judgment affirmed.
The panelists are listed in order of seniority.