We’re not sure what to make of the Supreme Judicial Court’s decision to re-examine two decisions upholding labor arbitration awards, but there is no question that the SJC continues to show a strong interest in these matters, not always to the advantage of unions and their members. On October 31, 2007, the SJC granted further appellate review in the case of City of Somerville v. Somerville Municipal Employees Association, which was decided by the Appeals Court in July. (The citation is 69 Mass.App.Ct. 583.) The case involves a collective bargaining agreement that prescribes the method for assigning someone to a particular position in case of a vacancy. With skills and qualifications being equal, the contract says, the City must choose the internal candidate over an external one. When the City ignored this provision, the union grieved. An arbitrator agreed with the union and ordered the City to follow the procedure it had agreed to use and assign the internal candidate. Instead the City appealed, first to the Superior Court, where it lost, then to the Appeals Court, where it lost again. It could have ended there, but Massachusetts law provides for ‘further appellate review’ for litigants dissatisfied with the decision of the Appeals Court. Upon request, the SJC may (but doesn’t have to) choose to re-examine decisions of the Appeals Court. The City sought further appellate review and the SJC granted it.

An unscientific survey of further appellate review (FAR) requests shows that the SJC only grants a small percentage (maybe 10%). Of those cases taken on further appellate review, fewer than half are civil cases, most are criminal. So when the SJC grants FAR on a case involving labor arbitration, it is not an everyday occurrence.

While it was unusual for the SJC to grant FAR to City of Somerville, it is even more remarkable when we know that, on March 29, 2007, the SJC granted FAR in the case of Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County. (The Appeals Court citation is 68 Mass.App.Ct. 903 (2007).) This case involves a disciplinary matter, in which an arbitrator ordered the employer to reinstate an employee who had been discharged for misconduct. The employer argued that the reinstatement would violate public policy. This argument has been a popular one for employers ever since the SJC’s decision in City of Boston v. Boston Police Patrolmen’s Association, 443 Mass. 813 (2005). In that case, the SJC decided that the reinstatement of a police officer who was found to have misused his police powers to take away the rights of citizens and repeatedly lied about it violated public policy and vacated the arbitrator’s award. The SJC described the case as a ‘rare instance’ in which the public policy exception applied, but employers seem to find rarities whenever an arbitrator rules against them.

Sheriff of Suffolk County involves an application of the public policy doctrine. City of Somerville is another one in a long line of cases in which public employers have invoked their inherent management rights to ignore any provision of the contract they don’t like. And these are not the only labor arbitration decisions decided over the past year – see Todino v. Town of Wellfleet, 448 Mass. 234 (2007), upholding a pro-union arbitration award. The SJC recently heard oral arguments in Local 2071, IAFF v. Town of Bellingham, 67 Mass.App.Ct. 502 (2006), which involves the power of an interest arbitrator under the auspices of the Joint Labor Management Committee for Police and Fire to award a 24-hour shift.

The Appeals Court, which, unlike the SJC, cannot pick the appeals it wishes to hear, has heard numerous labor arbitration cases in the past year, almost always upholding the award against an employer appeal. (Notice how the employer is always the one appealing? That’s because unions understand what ‘final and binding arbitration’ means.) In addition to the Somerville, Suffolk County, and Bellingham cases mentioned above, Appeals Court decisions included: Town of Duxbury v. Rossi, 69 Mass.App.Ct. 59 (2007), School Committee of Hull v. Hull Teachers Association, MTA/NEA, 69 Mass.App.Ct. 860 (2007), Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 68 Mass.App.Ct. 222 (2007), Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass.App.Ct. 706 (2006). The Appeals Court upheld the arbitrator’s award in all but the last case. Two other arbitration awards were upheld by the Appeals Court (both public policy cases), but the decisions were not officially published and cannot be used as precedent.

The question is, why the SJC is so interested in these aspects of Massachusetts labor law? Do the justices feel that arbitrators are out of control and need to be reined in? Do they believe the Appeals Court decisions are inconsistent and they need to provide guidance? Do they feel that they have a special responsibility to look out for the interest of the citizens served by public employers and employees? We don’t know. No decision has been issued by the SJC in either the Suffolk County, Somerville or Bellingham case. Plus, the fact that the SJC granted FAR does not necessarily mean it will ultimately disagree with the Appeals Court decision. In another unscientific study, I reviewed decided civil cases in which the SJC had granted FAR. Of 17 cases decided in 2007, the SJC agreed with the Appeals Court in eight cases, slightly less than half. In six cases, the SJC agreed with parts of the Appeals Court decision, and disagreed with other aspects. In only three of 17 cases reviewed did the SJC completely reverse the decision of the Appeals Court. So there is hope yet.

In LeMaitre vs. Mass. Turnpike Authority (November 5, 2007) [http://socialaw.org/slip.htm?cid=17603&sid=119], the Appeals Court ruled that a nonunion civil engineer is entitled to sick leave buyback under the public employer’s buyback policy in place for the majority of his employment.

Plaintiff’s benefits as a nonunion employee were governed by the Authority’s Personnel Manual. During the nearly 30 years that the Plaintiff worked for the Authority, he used only 14.5 sick leave days. For the majority of his employment, the Manual stated that he could receive 50 percent reimbursement for unused sick leave upon retirement. In 1996, the Authority unilaterally reduced this sick leave incentive to 20 percent of unused sick leave. Upon retirement, the Plaintiff received 20 percent for his 28 years of accumulated sick leave.

The Appeals Court agreed with the Plaintiff that the Authority should have applied the buyback percentage in force at the time the Plaintiff accrued the leave (50 percent for days accrued prior to 1996; 20 percent for days accrued thereafter). The Appeals Court found that the terms in the Personnel Manual constituted a binding contract, once the Plaintiff accepted and complied with the terms. The Court rejected arguments that the Manual permitted the Authority to reduce or eliminate previous terms in the contract. The decision does not prohibit an employer’s retroactive changes to terms or conditions for nonunion employees. An employer may reduce benefits so long as its Manual contains conspicuous and detailed disclaimers. The Court ruled, “Moreover, had the authority intended to make no legally binding promises, it should have included in the personnel manuals ‘in a very prominent position . . . an appropriate statement that there is no promise of any kind by the employer contained in the manual; that regardless of what the manual says or provides, the employer promises nothing . . . .’”