Massachusetts Mun. Wholesale Elec. Co. v. Local 455, Intern. Broth. of Elec. Workers, 88-P-1217

• Decision Date: 21 December 1989
• Docket Number: No. 88-P-1217,88-P-1217
• Citation: 547 N.E.2d 945,28 Mass.App.Ct. 921
• Parties: , 115 Lab.Cas. P 56,300 MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY v. LOCAL 455, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.
• Court: Appeals Court of Massachusetts

Page 945

547 N.E.2d 945

28 Mass.App.Ct. 921, 115 Lab.Cas. P 56,300

MASSACHUSETTS MUNICIPAL WHOLESALE ELECTRIC COMPANY v. LOCAL 455, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al.

No. 88-P-1217.

Appeals Court of Massachusetts,

Hampden.

Argued Nov. 13, 1989.

Decided Dec. 21, 1989.

James O. Hall, Wellesley, for defendant.

Charles P. Lavelle, Holyoke, for plaintiff.

Before PERRETTA, KAPLAN and WARNER, JJ.

RESCRIPT.

On application of the plaintiff pursuant to G.L. c. 150C, § 2(b ), a judge of the Superior Court issued an order staying arbitration of a dispute between the plaintiff and the defendant concerning overtime assignments.

1. General Laws c. 150C, § 2(b ), inserted by St.1959, c. 546, § 1, provides in material part: "Upon application, the Superior Court may stay an arbitration proceeding commenced or threatened if it finds ... (2) that the claim sought to be arbitrated does not state a controversy covered by the provision for arbitration and disputes concerning the interpretation or application of the arbitration provision are not themselves made subject to arbitration." The defendant made no argument in the Superior Court or in this court that the collective bargaining agreement contained a provision for arbitration of disputes concerning the interpretation or application of the arbitration clause. Those portions of the agreement which are before us show no such provision. In the circumstances, the question whether there had been compliance with the time constraints of the arbitration clause so as to make the particular dispute arbitrable was for the Superior Court judge to decide. See AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418-19, 89 L.Ed.2d 648 (1986). ("Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator."); School Comm. of Southbridge v. Brown, 375 Mass. 502, 504 & n. 2, 377 N.E.2d 935 (1978); Old Rochester Regional Teacher's Club v. Old Rochester Regional Sch. Dist. Comm., 398 Mass. 695, 700, 500 N.E.2d 1315 (1986).

2. The time frames provided in the collective bargaining agreement for resolution of grievances were tightly knit and designed to move disputes rapidly through decisional stages or dispose of them for lack of prosecution. The first step called for presentment of a grievance within ten calendar days after the occasion arose; otherwise the right to grieve would be waived. The second step called for a written response by the plaintiff within seven working days. If agreement had not then been reached, there would be a meeting between representatives of the parties within ten working days of the plaintiff's written response. Another written answer was required from the plaintiff within ten working days of that meeting. If the dispute remained unresolved, as was the case here, for forty days after the date of the second step answer of the plaintiff, the agreement provided: "[E]ither party may notify the other, in writing, that the case will be referred for settlement to an impartial arbitrator ... to be appointed by mutual agreement of the [plaintiff] and the [defendant]. No matter will be submitted to an impartial arbitrator after sixty-five (65) days from the date of the incident. Should either party fail to complete its steps in the grievance procedure, that party waives its rights to invoke arbitration. If the [plaintiff] and the [defendant] cannot agree on an arbitrator after five (5) working days, the American Arbitration Association will be requested to submit a panel of five (5) or more arbitrators. If the [plaintiff] and the [defendant] cannot agree on the arbitrator from the list submitted by the American Arbitration Association, then within five (5) working days after receiving the list, either party may request the ... Association to name one of the persons on the list to serve as the arbitrator ..." (emphasis supplied).

There is no dispute about the essential facts. The incident which gave rise to the grievance occurred on November 7, 1987. The grievance was presented by the defendant on November 16, and the plaintiff's second step...