Massachusetts Labor Relations Reporter
Management Commentary
Leo J. Peloquin, Esq. & Joshua R. Coleman, Esq.
Collins Loughran & Peloquin, P.C.


Settlement Agreement Bars Union’s Claim for Accrual of Vacation Time.
In Town of Millbury and Millbury Police Association, 43 MLC 253, Arbitrator James Sunkenberg held the Union’s grievance concerning the accrual of vacation time while on administrative leave was not arbitrable, where the Town and Union’s prior settlement agreement regarding the employee’s misconduct contained a complete waiver of all claims.

In December 2015, the Millbury Police Department discovered that a handgun was missing from the armory after a gun exchange program, which had allegedly been removed by Officer Belliveau without authorization.

In April 2016, the Union President sent a letter to the Millbury Police Chief Donald Desorcy, noting that Officer Belliveau, who was still on paid administrative leave had exceeded his vacation cap and requested permission to cash in five vacation days immediately. The Town denied the request to cash-in the accrued unused vacation days.

In May 2016, the Department issued a notice of termination for conduct unbecoming an officer. In June 2016, Belliveau and the Union agreed to a six month suspension. The settlement agreement states in relevant part:

In consideration of the terms herein, the Union and Officer Belliveau agree to waive any and all rights they may have to file or assert any claim, complaint, or other action in any forum of any kind, including a grievance and demand for arbitration under the Collective Bargaining Agreement…..related to, arising out of, and/or incident to Officer Belliveau’s conduct on December 20, 2015, discipline related to Officer Belliveau’s conduct on December 20, 2015, and/or the Town’s Notice of Proposed Termination directed to Officer Belliveau.

In September 2016, the Union grieved the accrual of vacation time which was denied. The Union filed for arbitration, alleging the settlement agreement was limited to the officer’s alleged conduct on December 20, 2015, not the accrual of vacation time while on administrative leave. The Union claimed the grievance is arbitrable, because the settlement agreement did not expressly waive the Union’s claim for vacation time.

The arbitrator upheld the Town’s denial of the grievance. The arbitrator found that “[u]nder the plain meaning of the words at issue, his claim for vacation time lost while out on administrative leave directly relates to, arises out of and is incident to his conduct on December 20, 2015 and the discipline related to his conduct.”

Arbitrator Uphold’s Employer’s Right to Not Select Candidate Who is Not Qualified When the Position Is Filled.
In City of Quincy and MA Public Employee Council, (43 MLC 231), Arbitrator Kerry Bonner held the City did not violate the contract in not selecting Michael Moody as the Working Foreman, because he did not meet the minimum qualifications when the vacancy was filled.

In May 2016, the City posted the Working Foreman Heavy MEO position in the Parks Department, which required a Commercial Driver’s License (CDL). On May 27, 2016, when the grievant Moody was interviewed, he did not have a Commercial Driver’s license. Moody was scheduled to take the exam within 4-5 days and subsequently obtained his CDL shortly after the interview. Willy Parsons had the required CDL when he was interviewed for the vacancy and the Town awarded him the job.

The Union filed a grievance alleging the City acted unreasonably in filling the vacancy, as Moody could have performed most of the job duties without a CDL, which he got a few days later. The contract provides in part, “Where any vacancy is to be filled by management and the qualifications of the applicants are equal, seniority shall prevail. Qualifications shall include, but not be limited to, experience, skills and ability, job performance, work habits, attendance and recommendations….The City agrees that in selection for promotion where all other qualifications are equal, seniority will be a predominant factor in the selection for purpose of promotion.”

The Arbitrator agreed with the City that the two candidates were not equally qualified as Moody did not have a CDL, at the time of filling the position. The arbitrator found the Union did not offer any credible evidence to support its claim the Town had a practice of conditionally promoting employees to allow them to obtain their CDL within a certain time period. The arbitrator held “there is nothing in the CBA that would require the City to hold a position open in order for a candidate to attempt to meet the requirements of the position.”

Town’s Actions Preserved Union’s Right to Contest Payroll Conversion at a Later Date
In Town of Millbury and Massachusetts Laborers’ Public Employee Council, Local 272, (43 MLC 240), the Union filed a grievance on September 2, 2016 when Town changed from weekly to biweekly payroll. The Town denied the grievance as untimely, as the change to bi-weekly payroll had been made a year and a half earlier. The Union then filed for arbitration.

The Union had previously filed a grievance on October 7, 2014 in response to a memorandum from the Town Treasurer dated September 30th informing all employees of the upcoming change to bi-weekly payroll. The Town and Union agreed to hold the grievance in abeyance pending the outcome of a similar grievance filed by the Police Association. The Police Association arbitrated the matter and the arbitrator ordered the Town to revert the Police Association bargaining unit to a weekly payroll.

After this arbitration decision, the Town did not return the Laborers Union to a weekly payroll and the Union filed a new grievance, “reactivating” its challenge to the payroll conversion. The arbitrator found the Town was bound by its prior agreement to hold the grievance in abeyance and the Union’s grievance was arbitrable.

Procedural Issues Regarding Prohibited Practice Charges

Union is not Bound by its Admissions in a Related Prohibited Practice Charge.
In an interlocutory appeal decision, the CERB affirmed the Hearing Officer’s decision in SEIU, Local 888 and City of Lawrence, (43 MLC 243), finding that the Hearing Officer did not abuse her discretion by not relying upon findings that a DLR investigator made when dismissing a related prohibited practice charge. In MUPL-16-5631, the City filed a prohibited practice charge and the Investigator issued a complaint for the Union’s failure to support a successor collective bargaining agreement it had entered into with the City.

In the related case, MUP-16-5649, the Investigator dismissed a charge, in which the Union alleged that the City had committed a prohibited practice by refusing to engage in any further bargaining after the Memorandum of Agreement was signed, despite claims by the Union that the Union’s ratification vote was flawed because the Union’s representative was not aware of the terms of the agreement he signed. The Investigator dismissed the case, finding that the Union’s inexplicable failure to read the agreement was not a mutual mistake that excused the collective bargaining agreement’s implementation.

In motions for judgment on the pleadings, the City argued that the Investigator’s findings in the related case (MUP-16-5649), had a preclusive effect in this case (MUPL-16-5631). The City’s claimed that the Investigator’s findings in the companion case, demonstrated that the parties had entered into an agreement that the Union was obligated to support. The Hearing Officer denied the City’s motions and held that despite the findings by the Investigator in the previous case (MUP-16-5649), the Union’s denial in the current case (MUPL-16-5631) that the parties agreed to a successor CBA raised a material dispute of fact. Furthermore, the Hearing Officer pointed out “that any facts that the parties may have presented in the investigation of MUP-16-5649 were not before her because she was required to base her decision upon the evidence that the parties introduced at hearing for MUPL-16-5631.” There were no stipulations regarding the agreement to a successor CBA and the Union’s denial of the City’s allegation was the only evidence before her.

The DLR has declined to treat findings made at the initial probable cause investigation stage as satisfying the charging party’s burden of proving by a preponderance of the evidence at hearing. As the DLR role in examining prohibited practice charges is both investigatory and adjudicatory, the prior investigation did not satisfy the City’s burden of proof of proving by a preponderance of the evidence. The different burdens of proof in the two proceedings render the doctrine of collateral estoppel inappropriate, especially where in an initial DLR investigation witnesses are not sworn and there is no direct examination. Therefore, the Union’s admission in one case was not given preclusive affect in the second case.