Opinion
10-P-1712
09-28-2011
TOWN OF FRAMINGHAM v. FRAMINGHAM POLICE OFFICERS UNION.
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
The union appeals from a judgment declaring that a police officer did not have the right, under the relevant collective bargaining agreement (CBA) and in the circumstances presented, to grieve his one-day suspension. After an investigation, the police chief suspended Officer Rivera for one day for inappropriate use of sick time. Although Rivera received proper notice and could have appealed the discipline to the Civil Service Commission, he chose not to do so. Instead, the union, on Rivera's behalf, attempted to file a grievance and move the matter to arbitration. The police chief, citing CBA Art. 5, § 1, responded that the matter was not subject to grievance or arbitration because Rivera's sole remedy was to appeal to the Civil Service Commission. The town then filed this action, seeking declaratory relief and an injunction prohibiting any further attempts to arbitrate.
See G. L. c. 31, § 41, generally providing, as relevant here, that
'[a] civil service employee may be suspended for just cause for a period of five days or less without a hearing prior to such suspension. . . . [The employee so suspended] may, within forty-eight hours after receipt of such notice, file a written request for a hearing before the appointing authority on the question whether there was just cause for the suspension.'See also G. L. c. 31, § 43, as amended by St. 1981, c. 767, § 20, providing, as relevant here, that
'[i]f a person aggrieved by a decision of an appointing authority made pursuant to section forty-one shall, within ten days after receiving written notice of such decision, appeal in writing to the commission, he shall be given a hearing before a member of the commission or some disinterested person designated by the chairman of the commission.'
Article 5, § 1, defines grievances as
'any dispute arising out of the interpretation, application, violation, or meaning of [the CBA], but shall not include any matter as to which an employee shall have the right of appeal or review under Civil Service Laws.'
The union argued, in its summary judgment motion, that because use of sick leave is governed under CBA Art. 13, and because matters arising under the CBA are generally subject to arbitration, the present matter is subject to grievance and arbitration. The union went on to argue that the prohibition provided by Art. 5, § 1, is inherently ambiguous and, if interpreted to remove the present matter from the grievance process, conflicts with the CBA's general provision for arbitration. As such, the union argued, Art. 5, § 1, cannot be interpreted to prohibit grievance and arbitration of the present matter. The motion judge correctly concluded otherwise:
'If the CBA's general provision for arbitration conflicted with Article 5, § 1, so as to create an ambiguity, then Article 5, § 1 would be meaningless. The purpose of Article 5, § 1 is to carve out an exception to the general CBA rule requiring arbitration; it only makes sense for Article 5, § 1 to apply to subject matter that would otherwise be governed by the CBA's general arbitration provision. To interpret the contract otherwise would render Article 5, § 1 a nullity . . . and would depart from the courts' task of construing contracts as rational business instruments . . . .
'Because the terms of Article 5, § 1 expressly exempt the dispute concerning Rivera's use of sick time from the general arbitration of the CBA, the Town is entitled to judgment as a matter of law.'
For the reasons stated by the motion judge, we affirm.
Judgment affirmed.
By the Court (Kafker, Green & Grainger, JJ.),