Pattison v. Labor Relations Com'n

• Decision Date: 25 March 1991
• Docket Number: 89-P-384,Nos. 89-P-383,s. 89-P-383
• Citation: 565 N.E.2d 801,30 Mass.App.Ct. 9
• Parties: , 136 L.R.R.M. (BNA) 2815 Nina PATTISON v. LABOR RELATIONS COMMISSION (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 801

565 N.E.2d 801

30 Mass.App.Ct. 9, 136 L.R.R.M. (BNA) 2815

Nina PATTISON v. LABOR RELATIONS COMMISSION (and a companion case¹).

Nos. 89-P-383, 89-P-384.

Appeals Court of Massachusetts Suffolk.

Argued Sept. 13, 1990.

Decided Jan. 24, 1991.

Further Appellate Review

Denied March 25, 1991.

Alan J. McDonald, Newton, for Nina Pattison.

Jean Strauten Driscoll, Boston, for Labor Relations Com'n.

David F. Grunebaum, Boston, for employer.

Robert M. Schwartz, Boston, for Quincy City Employees Union, H.L.P.E.

Before DREBEN, KAPLAN and PORADA, JJ.

KAPLAN, Justice.

On March 18, 1985, Nina Pattison, a public employee serving at the Quincy City Hospital as director of volunteer services, received a letter from Margaret Corbett, on behalf of the employer Hospital, "terminating" her. She wished to "grieve" her dismissal but, she asserts, her relevant collective bargaining agent, Quincy City Employees Union, H.L.P.E., failed arbitrarily to press the grievance on her behalf and ultimately to request arbitration, thus encompassing violations of its duty of fair representation (DFR).

In undertaking litigation, Pattison would have done well to seek a forum that would allow her to join both the union and the employer, for those parties putatively committed related wrongs. The decisional law in 1985, before the ruling in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341, 504 N.E.2d 602 (1987), left unsettled (and largely unthought of) the question whether or to what extent the Labor Relations Commission (Commission) had "primary jurisdiction" in DFR cases. ² So Pattison's attorney might have considered choosing between starting an action in Superior Court and bringing charges before the Commission. There would be little difficulty in joining the two parties in the court action. Attempting to charge both in Commission proceedings would encounter difficulties, as will appear.

Pattison's counsel chose the Commission route. On August 29, 1985, Pattison filed a charge of prohibited practice under G.L. c. 150E, § 10(b )(1), against the union by reason of its breaches of DFR (Charge MUPL-2883). ³ Recognizing, apparently, that an employer's breach of a "just cause" provision of a labor contract is not itself cognizable as a prohibited practice under the statute, Pattison, with some ingenuity, attempted instead to charge the employer with a prohibited practice under G.L. c. 150E, § 10(a )(5) and (6) ⁴ for failing to carry out an alleged collective bargaining obligation. This was framed as an obligation to refrain from changing unilaterally the terms and conditions of employment, including changes in the progressive disciplinary procedures for employees and in the just cause standard for dismissal (Charge MUP-6037). When the Commission proceedings were already under way, as described below, Pattison, for better assurance, on December 31, 1985, did commence an action in Superior Court against the union and the employer; the action remains at issue but has not proceeded further.

After investigation, the Commission issued complaints corresponding to the charges (although, as to the collective bargaining complaint, the Commission was doubtful of its own jurisdiction). Initially the Commission ruled that the complaints should be "bifurcated," but it soon changed its mind and ordered them to be consolidated and tried together. Trial before two Commissioners ⁵ occurred in ten installments over a period of eight months, from August, 1986 to April, 1987. On January 24, 1989, the Commission filed its "Decision" upholding the DFR complaint but dismissing the collective bargaining complaint. The union appeals to this court from the former disposition (appeal No. 89-P-384), Pattison from the latter (No. 89-P-383). See G.L. c. 150E, § 11, par. 4.

To sum up our views. In No. 89-P-384: (1) Pattison had the full burden to establish that the union discriminated against her or acted with egregious disregard of her rights as a grievant. The Commission's findings for Pattison on these issues are well supported by substantial evidence, G.L. c. 30A, § 14(7)(e ). (2) As to Pattison's right to a material remedy, ⁶ burdens of proof are adjusted in the light of the union's delinquency, which aborted the arbitral process: Pattison had to show that her claim of dismissal without just cause was not clearly frivolous; once she did so, the burden shifted to the union to show that the grievance was clearly nonmeritorious. The Commission's findings that Pattison made her prima facie showing, and the union failed in its opposition, are also well supported by substantial evidence. (3) Pattison, having thus succeeded on the facts, was entitled to a "provisional make whole remedy" against the union (the only defending party properly before the Commission), that is, recovery for wrongful dismissal, which, however, is subject to offset by the union. Among other things, this may take the form of a division of the liability between the union and the employer.

To revert to the point that the union failed in its burden of overcoming a prima facie case, the union has claimed that the policy of the Commission in imposing that burden was not made clear in the course of the hearings, with the consequence that the union was unsure about the weight of the evidence it had to present. Upon a reading of the whole record, we think the complaint is justified, and will therefore remand the case to the Commission if the union expresses an election to offer additional proof.

No. 89-P-383: We agree with the Commission's dismissal of the complaint. Pattison, as employee, could not complain of the alleged bargaining violation on the part of the employer.

No. 89-P-384--Duty of Fair Representation

(1) Union's violations. From the inordinately extended record, ⁷ the Commission has abstracted the following statement, which we consider to be a fair summary of the basic facts. ⁸

"Nina Pattison was hired on or about August 14, 1984, as the Director of Volunteer Services at Quincy City Hospital. Her duties were to direct and administer the Hospital's program of volunteer services, including recruiting, orienting, assigning, supervising and evaluating volunteer workers. Her direct supervisor, Margaret Corbett, became dissatisfied with Pattison's progress in recruiting new volunteers, organizing a program to orient volunteers to the Hospital, and decentralizing the volunteer program. In weekly meetings with Pattison, Corbett discussed these problems and finally met with Pattison and Corbett's supervisor, Doris Sincevich, the Director of Nursing, in January of 1985 about Pattison's progress. After Corbett failed to see sufficient improvement in Pattison's performance, Corbett recommended to Sincevich in March, 1985, that Pattison be terminated. Early in March Corbett met with Pattison, told her she was considering Pattison's termination, and asked her to think about resigning. The following day Corbett told Pattison that she was going to recommend to the Director of Human Resources, James Tzamos, that Pattison be terminated unless she agreed to resign. Corbett did so and her recommendation that Pattison be terminated for poor performance was accepted. During the meeting between Tzamos and Corbett, Tzamos noted that Pattison's probationary period had already expired and stated that they would have to discuss the termination with the Union.

"The Hospital's disciplinary guidelines provide a progressive system for discipline based on 'poor performance,' beginning with a verbal warning, then a written warning, then a suspension and finally termination. Pattison had not received either a formal written warning or a suspension before she was terminated.

"Corbett and Tzamos met with a Union representative and told her that Pattison was to be terminated and that she had been employed for several days beyond the six-month probationary period. The Union representative told Corbett and Tzamos that there could be a problem, and also informed the Union steward of the discussion.

"On March 8, 1985, Corbett and Tzamos met with Pattison and notified her that she was being terminated. Pattison subsequently received a letter of termination from Corbett on March 18. On March 11, Pattison had telephoned the Union's office and spoke with John Keefe, the Executive Director. After hearing that she had not received any written warnings, Keefe told her that he thought he could get her reinstated if she wanted her job back. Pattison told Keefe she was uncertain about that, but Keefe said he would check into her case and get back to her. When Keefe called her back, he told Pattison he could find no record of her being a dues-paying member, and asked her to call the Hospital payroll department and see what she could find out. Pattison found out that no union dues had been deducted from her paychecks, and she tried to call Keefe back on March 13, 14 and 15, and left messages for him. Keefe never returned her calls and Pattison never spoke with Keefe again about her termination.

"After Pattison received the March 18 termination letter from the Hospital, she contacted the Union steward, Dorothy Wassmouth. Pattison told Wassmouth that she wanted to file a grievance about her termination. Wassmouth said, 'You can file a grievance if we say you can file a grievance, and we'll get back to you.' Pattison told Wassmouth that she didn't know why she was terminated, and Wassmouth said she would check into it. After telephoning Wassmouth several times without reaching her, Pattison found a recorded message on her answering machine which stated, 'You have no grievance. As far as we are concerned, you have no grievance. Everything is taken care of, and please don't call this office again.' This was Pattison's last contact with any representative of her Union.

"Pattison then contacted an attorney and on his advice delivered a letter to Corbett on March 25 stating that she was...