Newton v. Commissioner of the Department of Youth Services, 03-P-374 & 03-P-0375.

• Decision Date: 27 October 2004
• Docket Number: No. 03-P-374 & 03-P-0375.,03-P-374 & 03-P-0375.
• Citation: 62 Mass. App. Ct. 343,816 NE 2d 993
• Parties: CHRISTOPHER NEWTON v. COMMISSIONER OF THE DEPARTMENT OF YOUTH SERVICES & others (and a companion case).
• Court: Appeals Court of Massachusetts

62 Mass. App. Ct. 343

816 NE 2d 993

CHRISTOPHER NEWTON v. COMMISSIONER OF THE DEPARTMENT OF YOUTH SERVICES & others¹ (and a companion case²).

Nos. 03-P-374 & 03-P-0375.

Appeals Court of Massachusetts, Suffolk.

June 10, 2004.

October 27, 2004.

Present: LAURENCE, PORADA, & TRAINOR, JJ.

Paul Holtzman for Christopher Newton & another.

Matthew Q. Berge for Commissioner of the Department of Youth Services & others.

PORADA, J.

The plaintiffs, Robert Long and Christopher Newton, respectively the facility director and assistant facility director of a youth forestry camp operated by the Department of Youth Services (DYS), brought suit against their employer, DYS, in the Superior Court to recover overtime, call-back, and stand-by pay they claim due to them. For purposes of these appeals, the relevant portions of their complaints include the claims for the failure to pay overtime compensation in violation of G. L. c. 149, § 30B, and G. L. c. 149, § 148 (count four)³; for the failure to pay call-back and stand-by pay in violation of G. L. c. 149, § 148 (count five); and for their superiors' interference with their right to claim overtime compensation under G. L. c. 151, § 1A, in violation of G. L. c. 151, § 19 (count six).

The defendants filed motions to dismiss the complaints pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). A Superior Court judge allowed the motions on the grounds that the plaintiffs were required to exhaust their claims for compensation under the grievance and arbitration procedure provided by their collective bargaining agreement and the court was without jurisdiction to hear their claims for a violation of G. L. c. 151, § 19, because it was a matter to be initially determined by the Massachusetts Labor Commission. On appeal, the plaintiffs press only their claims for violations of G. L. c. 149, § 148, and G. L. c. 151, § 19. We reverse the dismissal of the claims based on a violation of G. L. c. 149, § 148, but affirm the dismissal of the counts based on a violation of G. L. c. 151, § 19.⁴

1. Violation of G. L. c. 149, § 148. The plaintiffs argue that the motion judge erred in dismissing their claims based on a violation of the prompt payment of wages law,⁵ because their right to overtime, call-back, and stand-by pay is based on a personal, nonwaivable statutory right that they are free to enforce judicially notwithstanding that their entitlement to this compensation is addressed in a collective bargaining agreement. See Rooney v. Yarmouth, 410 Mass. 485, 492 (1991) (acknowledging that there are certain "personal, substantive, nonwaivable statutory guarantees" that an employee need not submit to arbitration). See also Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 739-746 (1981) (right to minimum pay and overtime pay under the Fair Labor Standards Act is a personal, nonwaivable statutory guaranty that an employee can enforce judicially even though those subjects are covered by a collective bargaining agreement). The purpose of G. L. c. 149, § 148, is to prevent the evil of the "unreasonable detention of wages by employers." Boston Police Patrolmen's Assoc., Inc., v. Boston, 435 Mass. 718, 720 (2002). As such, it bestows upon individual workers the right to recover not only their lost wages, but also treble damages, reasonable attorney's fees, and costs. G. L. c. 149, § 150. While an individual may waive the requirements of the statute by a writing, the record does not disclose that the plaintiffs did so. Nor does their collective bargaining agreement include any reference to G. L. c. 149, § 148, or to the time when wages must be paid.

Nevertheless, the plaintiffs' collective bargaining agreement provides for overtime, call-back, and stand-by pay and allows them to file a grievance or seek alternate dispute resolution relating to the interpretation and application of the terms of the agreement. It is well-recognized that where a collective bargaining agreement exists and the subject matter of the dispute is encompassed therein, public policy favors the resolution of the dispute between an employee and employer within the framework of the grievance and arbitration procedures. See Local No. 1710, Intl. Assoc. of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417, 421-422 (1999). See also Azzi v. Western Elec. Co., 19 Mass. App. Ct. 406, 410 (1985) ("To permit employees to circumvent existing grievance and arbitration procedures, by bringing actions against their employers in the first instance, does not strike us as a commendable practice"). Nonetheless, it is also well-established that there are certain personal, statutory rights that can be enforced judicially even though they are incorporated into a collective bargaining agreement. Rooney v. Yarmouth, 410 Mass at 492. See DaLuz v. Department of Correction, 434 Mass. 40, 46-47 (2001). The mere fact that those rights may be created both by contract and by statute and may be violated by the same factual occurrence does not vitiate their distinct and separate nature. See O'Brien v. Agawam, 350 F.3d 279, 284-285 (1st Cir. 2003) (police officers were not required to exhaust the grievance and arbitration procedures in their collective bargaining agreement before bringing an action in the district court to collect overtime compensation under the Fair Labor Standards Act).

In this case, we agree with the plaintiffs that the right to timely payment of wages is a distinct, independent statutory right that can be enforced judicially even though the subject matter of overtime, call-back, and stand-by pay is incorporated in the plaintiffs' collective agreement. Cf. Livadas v. Bradshaw, 512 U.S. 107, 123-125 (1994) (employee's rights under a California statute requiring timely payment of wages are independent from rights under collective bargaining agreement). The statutory right to the timely payment of wages does not involve the collective rights of employees but, rather, is designed to insure that each individual is paid promptly the wages due him or her. Cf. School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 377 Mass. 392, 399 (1979) (right to equal employment opportunities under G. L. c. 151B, § 4, is an independent statutory right that cannot be bargained away by a union or employer); Blanchette v. School Comm. of Westwood, 427 Mass. 176, 180-181 (1998) (employee not barred from pursuing an action for retaliation pursuant to G. L. c. 151B, § 4(4), even though she had proceeded to arbitration on the same facts pursuant to a collective bargaining agreement).

The personal nature of this right is underscored by the provision of redress not only in the form of recovery of lost wages, but also treble the amount of the loss, reasonable attorney's fees, and costs. See Barrentine v. Arkansas-Best Freight Sys., 450 U.S. at 743-745 (in determining that the right to a minimum wage and overtime pay under the Fair Labor Standards Act may be enforced judicially notwithstanding those subjects were encompassed in a collective bargaining agreement, the Supreme Court relied in part on the limited authority and power of an arbitrator to enforce the parties' agreement rather than to afford the relief available to an individual under the act). Further, the mere fact that the collective bargaining agreement must be consulted for the rate of pay does not preclude a plaintiff from pursuing his or her claims in court. Lividas v. Bradshaw, 512 U.S. at 124-125. All that is required is calculating the amounts of compensation due according to the wage rate in the collective bargaining agreement at the time payment was due. Because this right is an independent, statutory one, which was not waived, the plaintiffs were not required to pursue administrative remedies before commencing their actions in court to recover overtime and the other wages claimed.

Having concluded that the prompt payment of wages statute creates an independent statutory right that can be enforced judicially even when a collective bargaining agreement addresses the subject matter of compensation, we turn to the issue whether the statute applies to the plaintiffs' claims in this case. The time limits set for the payment of wages under § 148 apply only to Commonwealth employees who are a "mechanic, workman or laborer" or are employed in any other capacity "in a penal or charitable institution." See note 5, supra. The words "mechanic, workman and laborer" and "penal or charitable institution" are not defined in G. L. c. 149.⁶ In construing the words "mechanic, workman and laborer," we turn to the common meaning attributed to these words in other legislation pertaining to the rights of workers in this Commonwealth.

As used in the early versions of our workers' compensation statutes, "a `laborer' ordinarily is a person without particular training who is employed at manual labor . . . while `workmen' and `mechanics' broadly embrace those who are skilled users of tools." Devney's Case, 223 Mass. 270, 272 (1916). Under this definition, a supervisory janitor whose work was not of "menial" character, White's Case, 226 Mass. 517, 521 (1917); a teacher in an industrial school, Lesuer's Case, 227 Mass. 44 (1917); and a call fireman, Randall's Case, 279 Mass. 85 (1932), were not considered to be workmen, laborers, or mechanics. But see Tracy v. Cambridge Jr. College, 364 Mass. 367, 375-376 (1973) (assistant librarian at a junior college considered a "mechanic, laborer or workman" under G. L. c. 152, § 1 (4)(a), as then in effect). Whether an individual comes within the classification of a "mechanic, laborer or workman" is dependent on the nature of the work performed by him or her. Id. at 372. Here, other than the descriptive titles of the plaintiffs, we know nothing about the nature of their duties. Consequently, we are unable to determine on this undeveloped record whether the prompt payment of wages law applies to the plaintiffs as mechanics, laborers, or workmen.

We must...