Opinion
15-P-561
03-09-2016
TOWN OF PLYMOUTH & another 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 town of Plymouth (town) argues that the Commonwealth Employment Relations Board (CERB) erred by affirming the Department of Labor Relations (DLR) hearing officer's findings that the town's decision to implement a cellular telephone policy was not a "core" managerial decision and that the American Federation of State, County, and Municipal Employee Council 93, Local 2824 (union) did not waive its right to bargain over the proposed policy. We affirm the decision of the CERB.
A. Discussion. Pursuant to G. L. c. 30A, § 14, judicial review of an administrative decision is limited to the record. Pentucket Manor Chronic Hosp., Inc. v. Rate Setting Commn., 394 Mass. 233, 234 n.3 (1985). The appellant carries the burden of proving the decision was invalid. Merisme v. Board of Appeals on Motor Vehicle Liab. Policies and Bonds, 27 Mass. App. Ct. 470, 474 (1989). We must determine whether there is "[s]ubstantial evidence in the record [that] supports that the [CERB] properly concluded that the [town] violated G. L. c. 150E, § 10(a)(1) and § 10(a)(5). Even if the evidence of record might have warranted a contrary conclusion, we decline to substitute our judgment for that of the [CERB]." Commonwealth v. Labor Relations Commn., 404 Mass. 124, 128 (1989) citing School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557, 573 (1983). "We review the [CERB]'s decision in accordance with the standards set forth in G. L. c. 30A, § 14 (7), governing appeals from final administrative agency decisions. . . . The [CERB]'s decision will be set aside only if it is '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.'" Somerville v. Commonwealth Employment Relations Bd., 470 Mass. 563, 567-568 (2015), quoting from G. L. c. 30A, § 14 (7)(g). Providing considerable deference to the CERB'S disposition and reexamining the key legal questions asserted by the town, we do not hold any portion of the CERB's decision as "arbitrary or capricious, an abuse of discretion, or not otherwise in accordance with the law." Id. at 568. Therefore, we affirm the CERB's decision.
Decision and order of the Commonwealth Employment Relations Board affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 9, 2016.