Reilly v. Local 589, Amalgamated Transit Union

• Citation: 495 N.E.2d 856,22 Mass.App.Ct. 558
• Parties: William S. REILLY v. LOCAL 589, AMALGAMATED TRANSIT UNION & another 1 (and a companion case 2 ).
• Decision Date: 03 October 1986
• Court: Appeals Court of Massachusetts

Page 856

495 N.E.2d 856

22 Mass.App.Ct. 558

William S. REILLY v. LOCAL 589, AMALGAMATED TRANSIT UNION & another ¹

(and a companion case ²).

Appeals Court of Massachusetts,

Suffolk.

Argued March 18, 1986.

Decided July 28, 1986.

Further Appellate Review Denied Oct. 3, 1986.

Carol A. Buckley (Lucille M. Ponte, Boston, with her) for Massachusetts Bay Transp. Authority.

Joseph A. Gordon, Boston, for William S. Reilly.

John J. McMahon, Boston, for Local 589, Amalgamated Transit Union & others.

Before PERRETTA, CUTTER and WARNER, JJ.

CUTTER, Justice.

These two proceedings arise out of the discipline, hereafter described, of the plaintiff in the first case, Reilly, and his later discharge on September 26, 1972, by a codefendant in the first case, Massachusetts Bay Transportation Authority (MBTA). In that case, a bill in equity brought August 3, 1973, Reilly sought to compel Local 589 (Union) "to arbitrate in good faith" his grievances against the MBTA and to require the MBTA to arbitrate them. The second proceeding, a complaint filed May 8, 1981, by the MBTA against the officers of the Union, sought (see part II of this opinion) to hold the Union responsible for, or liable to contribute to, any damages recovered by Reilly from the MBTA.

I. THE CIRCUMSTANCES OF REILLY'S

ALLEGED GRIEVANCES.

Reilly on December 3, 1971, was employed by the MBTA as a rapid transit motorman on the line then terminating at Harvard Square. He had been the motorman on a train leaving the Harvard Square subway station for Park Street (and points to the southeast) on what appears (from accounts in the record) to have been a somewhat "wild train" trip. On testimony by Reilly himself at the only hearing (that before Superior Court Judge No. 3, mentioned below) of which the record contains a transcript, it appears that Reilly was interviewed on December 10, 1971, by at least two MBTA officials about this train trip. On December 17, he was told in writing of the charges against him. On January 12, 1972, Reilly was suspended for five days, was advised that he had "shown a complete disregard for responsibilities ... assumed when ... [he] advanced to train service," and was "disqualified permanently from all train service and ... [demoted] to a [c]ollector's position." ³

Reilly, after his suspension, did not return to work in his reduced position as collector. He testified that he made at least an oral claim of a grievance to the Union on the day following receipt of notice of his five-day suspension, went home to bed sick, and was hospitalized from February 1 to March 5, 1972. Reilly's grievance concerning his suspension then followed the course set out in the margin. ⁴

The Union's executive board in August, 1972, declined to submit to arbitration Reilly's grievances relating to his suspension, demotion, and discharge. ⁵ As a consequence, the first bill in equity was filed by Reilly.

II. THE 1973 BILL IN EQUITY.

To the original 1973 bill, the defendants filed demurrers which were sustained on December 10, 1973, by a Superior Court judge (Judge No. 1). An amended complaint was filed by leave of court on August 22, 1974. Thereafter no further action is shown by the docket until May 20, 1977, when Reilly obtained leave to file a second amended complaint, which itself later was amended. The Union and the MBTA each filed an answer in June, 1977. On November 25, 1977, the affidavit objected to by Reilly) of the Union's business agent (see note 4, supra ) was filed. ⁶

A. The Reilly--Union Stipulation.

Following the conciliation report (see note 6), Reilly and the Union came to an agreement, a part of which was filed in the form of a "stipulation and agreement for judgment" on August 1, 1979. To this the MBTA was not a party. In this document Reilly and the Union stipulated "that the grievances of ... Reilly were not processed [sic ] to arbitration for reasons other than the merits of his cases;" that the Union "does not contest the allegations of [c]ounts I and II of" Reilly's second amended complaint; ⁷ and that Reilly by a letter of February 22, 1973, had made an "effective" demand for arbitration of his discharge.

B. The Partial Judgment of August, 1979.

On August 3, 1979, a Superior Court judge (Judge No. 2), on the basis of this stipulation, "expressly determined that there is no reason to delay entry of ... [j]udgment" between Reilly and the Union, and ordered that the Union (see Mass.R.Civ.P. 54[b], 365 Mass. 821 [1974] ), "proceed to arbitrate with" the MBTA "if a judgment of this court directs ... [the MBTA] to arbitrate, or said [a]uthority agrees to so arbitrate." No transcript of the hearing (or of evidence taken, if any) in connection with the order of August 3, 1979, is in the record. ⁸ Notice of Judge No. 2's action was sent by the clerk to the parties, including the MBTA, on August 8, 1979. The docket shows no action by the MBTA to claim an appeal from the order or to have it vacated in the Superior Court, until the MBTA's appeal from the judgment of February 1, 1985, by Judge No. 7. See note 14, below.

C. The 1980 Order to Arbitrate.

On March 10, 1980, the MBTA filed a motion to dismiss Reilly's complaint. Reilly moved to strike that motion. Trial of the case began the next day before a Superior Court judge (Judge No. 3). Judge No. 3 (after hearing direct examination of Reilly but not any cross-examination) ordered on March 12, 1980, that Reilly's grievances be submitted to arbitration under the collective bargaining agreement and that Reilly's equity proceeding be stayed pending the arbitration award. This action was taken after Judge No. 3 had pointed out to the MBTA's counsel that he was "leaving all ... [the MBTA's] avenues open ... as far as staying this action and ... [dealing with the MBTA's] motions." ⁹ The MBTA filed on April 10, 1980, notice of appeal. Judge No. 3 allowed Reilly's motion to strike as premature this appeal on April 28. ¹⁰

D. The 1980-1981 Arbitration Proceedings.

Reilly's grievances then were submitted to arbitration. The arbitrator made note that, before him, the MBTA contended that no sufficient proof had been offered of the Union's breach of its duty of fair representation. He stated, however, that "presumably that is a matter that the Superior Court ha[d] already considered," and that the Union had not contested Reilly's claim that the Union's failure to represent him was arbitrary and in bad faith. He construed the Superior Court's order as meaning that the parties were to proceed directly to arbitrate the merits of Reilly's grievances without allowing the MBTA to claim that the Union had not presented the grievances to the MBTA in timely fashion. ¹¹ He then ruled that the grievances were arbitrable.

On the merits of Reilly's grievances the arbitrator ruled (a) that, for the train episode, Reilly had not been shown to have committed "any offenses worthy of discipline," and (b) that Reilly's discharge had been carried out by the MBTA in "wholesale disregard of" § 104(A) of the collective bargaining agreement and that the discharge must be set aside.

The arbitrator ruled that it was beyond his authority, (because that matter was not covered by a provision of the collective bargaining agreement subject to his interpretation) to make a determination on the question of apportionment of damages between the MBTA and the Union. He returned "this element of the case to the Superior Court for disposition."

The arbitrator's award was dated January 14, 1981. Copies of it were received by all parties on January 16, 1981. The docket in Reilly's equity case shows no motion by the MBTA to vacate the arbitrator's award within thirty days thereafter.

On February 23, 1981, Reilly filed a motion to confirm the arbitrator's award which was allowed ¹² on March 20, 1981, by a Superior Court judge (Judge No. 4), who then ordered the arbitrator to assess the damages to Reilly "without respect to the question of apportionment." ¹³

E. Post-Arbitration Proceedings.

A motion by Reilly to confirm the arbitrator's award and for judgment, filed April 12, 1983, finally was allowed in late January, 1985, by a Superior Court judge (Judge No. 7), after hearing. Judgment ¹⁴ was entered on February 1, 1985, that Reilly recover $189,278.67 ¹⁵ with interest from December 20, 1982 (the date of the denial by Judge No. 6 of Reilly's motion to vacate the award).

III. THE MBTA'S 1981 ACTION.

The MBTA's complaint in its 1981 action against the Union's officers recited, in general, facts stated above with respect to Reilly's 1973 bill in equity up to the date of the 1981 complaint. That complaint also asserted that the Union had violated the collective bargaining agreement to the prejudice of the MBTA (a) by the Union's conduct on Reilly's grievances, and (b) by entering into the stipulation with Reilly which led to the partial judgment of August, 1979. The MBTA sought judgment that the Union was "liable to ... [the MBTA] either in indemnity or the whole amount of any judgment for damages against" the MBTA or "for contribution" toward all or an apportioned share of any such damages. On March 7, 1984, the Union (with the assent of the MBTA) obtained leave of Judge No. 7 to serve on Reilly a third-party complaint by the Union which recited in terms the indemnity agreement of June 22, 1979 (see note 8, supra ).

A. The "Agreed Statement of Facts".

On March 7, 1984, the MBTA, Reilly, and the Union filed a document entitled "Agreed Statement of Facts," which set out much of the past history of Reilly's grievances and of this litigation. The statement, however, does not appear to have been more than an agreement concerning evidence ¹⁶ which the judge could consider, rather than a "case stated" of all pertinent facts from which the judge might draw inferences. See Mollahan v. McGrath, 357 Mass. 229, 232, 257 N.E.2d 430 (1970). Compare the statements considered in Quintin Vespa Co. v. Construction Serv. Co., 343 Mass. 547, 548,...