Town of Duxbury v. Duxbury Perm. Firefighters Ass.

• Decision Date: 10 February 2000
• Docket Number: P-253
• Parties: (Mass.App.Ct. 2000) TOWN OF DUXBURY vs. DUXBURY PERMANENT FIREFIGHTERS ASSOCIATION, LOCAL 2167. 98- Plymouth County Argued:
• Court: Appeals Court of Massachusetts

737 N.E.2d 1271 (Mass.App.Ct. 2000)

TOWN OF DUXBURY vs. DUXBURY PERMANENT FIREFIGHTERS ASSOCIATION, LOCAL 2167.

98-P-253

Massachusetts Court Of Appeals

Plymouth County

Argued: February 10, 2000

Decided: November 10, 2000.

Fire Fighter, Incapacity. Public Employment, Sick leave benefits, Vacation pay. Public Policy. Arbitration, Collective bargaining, Judicial review, Award, Scope of arbitration.

Civil action commenced in the Superior Court Department on December 7, 1995.

The case was heard by Patrick F. Brady, J., on motions for summary judgment.

The case was submitted on briefs.

Howard B. Lenow & Sheila F. McCarthy for the defendant.

Robert W. Garrett for the plaintiff.

Jacobs, Rapoza, & Gelinas, JJ.

GELINAS, J.

Duxbury Permanent Firefighters Association, Local 2167 (association), on behalf of its member, David Thomas, a town of Duxbury (town) permanent firefighter, appeals from a judgment of the Superior Court granting the town's motion for summary judgment.¹ The judgment vacated a November 6, 1995, arbitration award in favor of Thomas. The arbitrator had awarded Thomas credit for all vacation and sick leave that he had accrued while he was on injured-on-duty (IOD) leave, pursuant to G. L. c. 41, 111F.² The association contends that the arbitrator's finding, that the town's past practice of giving such benefits to other firefighters, was sufficient to support his award.

We agree.

The material facts are not in dispute. The town has employed Thomas as a firefighter since April 17, 1967. The town and the association were parties to a collective bargaining agreement (CBA), effective from July 1, 1992, through June 30, 1995. The CBA established the wages, hours, terms, and conditions of employment of certain employees of the town's fire department, including Thomas. The CBA is silent on the issue whether employees on IOD status are eligible to accrue vacation benefits and thus eligible to be paid for accrued and unused vacation time.

On May 19, 1993, Thomas was injured while on duty. On May 20, 1993, the town placed him on IOD status, and Thomas began a leave, without loss of pay, pursuant to G. L. c. 41, 111F. He remained on IOD status at least through the date of the arbitration hearing.

For the period that Thomas was on IOD leave, the town neither credited him with, nor paid him for, vacation time or sick leave. On July 11, 1994, Thomas grieved the issue according to the provisions of the CBA. The town denied the grievance. Thomas and the union, again according to the CBA, moved for arbitration.

The arbitrator concluded that the town had violated the CBA in refusing to permit the accrual of vacation and sick leave while Thomas was on IOD leave, and awarded Thomas credit for all withheld vacation and sick leave accrued while he was on IOD status; the award further ordered that Thomas be paid for the accruals. The town appealed to the Superior Court pursuant to G. L. c. 150C, 11(a). The Superior Court entered judgment on July 16, 1997, vacating the arbitrator's award.

Evidence before the arbitrator showed that sixteen firefighters had been granted a total of fifty-three IOD leaves between June, 1983, and the date of the arbitration hearing. At the hearing, the town and the association stipulated that, with the exception of Thomas, all sixteen firefighters continued to accrue and be paid for vacation and sick leave during all fifty-three IOD leaves. Of the fifty-three IOD leaves, only six, including Thomas's, extended for approximately two months or more. On this evidence the arbitrator concluded that there was a significant past practice of allowing a firefighter on IOD leave to accrue and be paid for vacation and sick leave. The parties further stipulated, and the arbitrator concluded, that the parties had never bargained the accrual of sick leave or vacation time for firefighters on IOD leave.

Discussion. The town first contends, and the Superior Court found, that our decision in Rein v. Marshfield, 16 Mass. App. Ct. 519 (1983), prevents Thomas from accruing or being paid for the benefits claimed. Rein was consolidated at trial with a like claim of another Marshfield police officer; the two police officers retired after having been out on IOD leave. Marshfield did not permit them to accrue vacation or sick time during the period of their IOD leave; under their collective bargaining agreement these benefits would have been available to them had they been on active duty, but the contract was silent as to whether individuals on IOD leave were entitled to these benefits. The officers sought declaratory relief in the Superior Court, pursuant to G. L. c. 231A, 1, claiming that the language in G. L. c. 41, 111F, that they should suffer no "loss of pay," while on IOD leave, entitled them to these benefits. This court held that the statutory language, "leave without loss of pay," did not include the claimed benefits. Rein, supra at 523. Recognizing that such benefits might be available in certain circumstances, we went on to say, in dicta: "Parenthetically we observe that the provisions in the collective bargaining agreements . . . do not explicitly expand the benefits provided by [the statute]. We would be unwilling to construe a collective bargaining agreement as one overriding statutory provisions in the absence of clear language expressing that intent." Id. at 524. It is this language, the town contends, that, when read in conjunction with the association's stipulation that payment of these benefits to employees on IOD status had not been the subject of collective bargaining and were not specifically mentioned in the contract, precludes payment.

In further support of the argument, the town relies on Willis v. Board of Selectmen of Easton, 405 Mass. 159, 164-165 (1989), where the Supreme Judicial Court stated: "We are reluctant to construe a collective bargaining agreement as one which overrides statutory provisions absent clear language expressing that intent." Were this an action for declaratory judgment, we would be inclined to agree, as the CBA is silent with regard to these accrued times and payments. Because the matter reaches us through the arbitration process, however, we conclude to the contrary.

There is a "strong public policy favoring arbitration." Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. 13, 16 (1985), quoting from Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). "Arbitrators have broad discretion in interpreting collective bargaining agreements and in providing complete relief to an aggrieved party." Leahy v. Local 1526, Am. Fedn. of State, County & Mun. Employees, 399 Mass. 341, 353 (1987). "The role of courts in reviewing an arbitrator's award is limited." Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603 (2000), quoting from Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 187 (1984), and citing G. L. c. 150C, 11. As the Supreme Judicial Court has said, "[w]e do not, and cannot, pass on an arbitrator's alleged errors of law and, absent fraud, we have no business overruling an arbitrator because we give a contract a different interpretation." Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. at 15, quoting from Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. at 187. An arbitrator's award may not be vacated except for reasons set forth in G. L. c. 150C, 11. See Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Council 93, 420 Mass. at 15. Section 11(a) specifically provides that "[u]pon application of a party, the superior court shall vacate an award if . . . the arbitrators exceeded their powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law." Viewed in this context, we look only to determine if the arbitrator here exceeded his scope of reference, acted against clearly defined...