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Office And Professional Employees International Union, Local 6 v. Commonwealth Employment Relations Board

Appeals Court of Massachusetts, Suffolk

December 27, 2019

OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 6, AFL-CIO
v.
COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.

          Heard: October 11, 2019. [1]

         Appeal from a decision of the Commonwealth Employment Relations Board.

          Luke Rosseel for John F. Murphy.

          Michael Feinberg for the plaintiff.

          T. Jane Gabriel for Commonwealth Employment Relations Board.

          Present: Neyman, Shin, & McDonough, JJ.

          SHIN, J.

         After John Murphy was discharged from his position at the Worcester Division of the Probate and Family Court Department (Worcester Probate and Family Court), his union, the Office and Professional Employees International Union, Local 6 (union), filed a grievance on his behalf in accordance with the collective bargaining agreement (CBA) between the union and the employer (trial court). The trial court denied the grievance; under the CBA, this triggered a deadline of twenty working days by which the union had to file a demand for arbitration. The union missed that deadline, leading the arbitrator to rule that the grievance was not procedurally arbitrable.

         Left with no means under the CBA to challenge his termination, Murphy filed a charge with the Department of Labor Relations (department), claiming that the union committed a breach of its duty of fair representation under G. L. c. 150E, § 10 (b) (1). A department hearing officer agreed and ordered the union to make Murphy whole for the loss of compensation he suffered as a result of his termination. On the union's administrative appeal, the Commonwealth Employment Relations Board (board)[2] upheld the hearing officer's decision and also ordered the union to pay interest at the rate specified in G. L. c. 231, § 61, compounded quarterly.

         The union appeals under G. L. c. 150E, § 11 (i), arguing that the board erred in concluding that the union committed a breach of its duty of fair representation and that Murphy was entitled to a remedy. Murphy cross-appeals, arguing that the board erred in selecting the rate of interest to be paid on the award. We affirm.

         Background.

         We summarize the hearing officer's findings of fact, which were adopted by the board and are unchallenged on appeal. We reserve some details for later discussion.

         Murphy began working at the Worcester Probate and Family Court in 2005. In April 2013 Murphy's supervisor, Stephen Abraham, notified him that there would be a hearing to determine whether just cause existed to discharge or otherwise discipline Murphy based on charges that he had committed five acts of misconduct.[3] At the hearing, attended by Murphy and union business agent Richard Russell, among others, Murphy denied four of the charges and partially denied the fifth.[4] Abraham found Murphy's explanations not credible, however, and on May 14, 2013, terminated his employment.

         The union challenged the termination by filing a timely grievance with the trial court pursuant to the first three steps of the four-step grievance and arbitration procedure provided in the CBA. By agreement with the union, attorney Michael Angelini represented Murphy at the "Step 3" grievance hearing, presided over by Christine Hegarty, the trial court's manager of human resources, labor relations, and investigations. Both Angelini and Russell attended the hearing, but neither offered evidence; instead, they summarily denied the charges in anticipation of presenting a more comprehensive case at arbitration.

         On August 20, 2013, Hegarty notified the union that she had denied the grievance. This triggered "Step 4" of the grievance and arbitration procedure, which provided for submission of matters to arbitration in the following manner:

"Within 20 workdays after receiving the Step 3 response at the Union office, the Union, and not the aggrieved employee(s), shall provide written notice to the other party requesting arbitration to the American Arbitration Association or an alternative forum as agreed to by the parties. The arbitrator shall have no power to add to, subtract from, or modify any provision of this Agreement, or to issue any decision or award inconsistent with applicable law. The decision or award of the arbitrator shall be final and binding in accordance with Mass. Gen. Laws chs. 150C and 150E."

         As Russell was aware, this provision required the union to file a demand for arbitration by September 20, 2013.

         Well before that date, on August 22, 2013, Angelini wrote to the union, ...


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