City of Somerville v. Somerville Municipal Employees Ass'n

870 N.E.2d 632, 69 Mass. App. Ct. 583, 2007 Mass. App. LEXIS 820
CourtMassachusetts Appeals Court
DecidedJuly 23, 2007
DocketNo. 06-P-1299
StatusPublished
Cited by1 cases

This text of 870 N.E.2d 632 (City of Somerville v. Somerville Municipal Employees Ass'n) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Somerville v. Somerville Municipal Employees Ass'n, 870 N.E.2d 632, 69 Mass. App. Ct. 583, 2007 Mass. App. LEXIS 820 (Mass. Ct. App. 2007).

Opinion

Cypher, J.

The city of Somerville (city) appeals from a judgment of the Superior Court affirming an arbitrator’s award in favor of the Somerville Municipal Employees Association (union). The arbitrator found that the city had violated the collective bargaining agreement applicable to unit B employees (CBA) by failing to appoint Paul Nelson, a city employee within unit B of the union, to the position of director of veterans’ services and instead appointing Frank P. Senesi, an “outside” candidate.1 [584]*584Although the city concedes that the veterans’ services director is a union position within unit A, it claims that the authority granted to the mayor by G. L. c. 115, § 10, to appoint a veterans’ services director is exclusive and nondelegable, and therefore not a proper subject for collective bargaining and arbitration.2 We conclude that because no material conflict exists between the CBA and G. L. c. 115, § 10, the selection process was a proper topic for the CBA and subject to arbitration, and the Superior Court judge properly affirmed the arbitrator’s award.

Background. In October, 2003, the city sought candidates for the then vacant position of veterans’ services director. Eight persons applied and were interviewed and evaluated by the city’s director of personnel, who recommended that Senesi be appointed to that position by the newly-elected mayor in January, 2004. The union, on behalf of Nelson, an unsuccessful applicant and a unit B member of the union, filed a grievance claiming that the city had violated article VH of the CBA in the appointment of Senesi.3 Pursuant to the CBA, which provided for final and binding [585]*585arbitration of disputes arising under the CBA, the grievance proceeded to arbitration.

After a hearing, the arbitrator determined that Nelson possessed qualifications “at least substantially equal” to Senesi, a candidate not covered by the CBA or a union member, and directed the city to appoint Nelson to the position of veterans’ services director. The city does not dispute the arbitrator’s findings or conclusions respecting the qualifications of Senesi or Nelson.4

The city filed an action in the Superior Court seeking to vacate the arbitrator’s award, pursuant to G. L. c. 150C, § 11(a)(3). The union counterclaimed for confirmation of the award, pursuant to G. L. c. 150C, §§ 10 and 11 (d). Based on the pleadings, a judge entered judgment affirming the arbitrator’s award.

Discussion. Judicial review of matters submitted to arbitration is limited fundamentally to a determination of whether the arbitrator exceeded his authority. See Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), and cases cited. The city argues that the judge erred in affirming the arbitrator’s award because the arbitrator exceeded his authority by ruling contrary to what the city claims is the intent of G. L. c. 115, § 10, to keep the appointment of a veterans’ services director within the exclusive authority of the mayor and outside the collective bargaining process.

The judge concluded that the arbitrator did not exceed his authority, reasoning that whether the mayor can appoint a veterans’ services director is not an issue for the CBA or arbitration, however, the procedures to be followed in making that appointment could be, and were, within the CBA and thereby open to arbitration.

[586]*586We must determine whether the mayor’s appointment authority under G. L. c. 115, § 10, is in conflict with the CBA. Such a determination ultimately is for the courts. Fall River v. AFSCME Council 93, Local 3177, AFL-CIO, 61 Mass. App. Ct. 404, 406 (2004). There are no relevant appellate decisions interpreting G. L. c. 115, § 10, and it is not among the statutes listed in G. L. c. 150E, § 1(d), which provides that where an enumerated statute conflicts with a collective bargaining agreement, the terms of the collective bargaining agreement shall prevail.

“Despite earlier intimations that the absence of a statute from the list of laws enumerated in G. L. c. 150E, § 1(d), revealed the intention of the Legislature that a collective bargaining agreement must yield to that statute, see School Comm. of Danvers v. Tyman, 372 Mass. 106, 109 (1977), more recent decisions of the Supreme Judicial Court and this court have focused on the question whether there exists a material conflict between the agreement and the unenumerated statute. In the absence of a material conflict with a statute not enumerated in § 1(d), the agreement may be enforced.” Leominster v. International Bhd. of Police Officers, Local 338, 33 Mass. App. Ct. 121, 124-125 (1992).

There long has been a “[r]ecognition in the public sector of areas of management prerogative reserved from the collective bargaining process.” Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172, 175 (1997). While uncertainties about mandated bargaining subjects in G. L. c. 150E (the public employee collective bargaining statute) are “inevitable . . . , the framework for analysis has emerged with workable clarity over time. The reported decisions seem to cluster broadly into three categories, depending on the type of authorizing statute or other law under which the public manager purports to act. We differentiate three categories: (1) specific authorizing laws and regulations that are listed in G. L. c. 150E, § 1(d), including all ‘municipal personnel ordinances[s], by-law[s], rule[s] or regulation[s]’; (2) general authorizing statutes; and (3) specific authorizing statutes not included in § 7(d).” Id at 177.

1. Specific authorizing laws and regulations listed in G. L. c. 150E, § 7(d). The city does not rely on any municipal authority in support of its claim that the appointment of a veterans’ services director is not subject to arbitration. No argument is [587]*587made that any ordinance, regulation, or policy prohibited the application of the CBA to this position. Contrast Somerville v. Labor Relations Commn., 53 Mass. App. Ct. 410, 411-412 (2001) (where determination of whether collective bargaining rights were applicable to certain employees depended on statutes and provisions of city code).

2. General authorizing statutes. “[Wjhile an underlying decision may be reserved to the exclusive prerogative of the public employer . . . , the public employer may be required to arbitrate with respect to ancillary matters, such as procedures that the employer has agreed to follow prior to making the decision.” Lynn v. Labor Relations Commn., 43 Mass. App. Ct. at 179. Beyond the requirement that the veterans’ services director be a veteran and be appointed by the mayor, G. L. c. 115, § 10, is silent on the process of selecting a veterans’ services director. In addition, the city concedes that the position is a union position within unit A, and that no language in the CBA excludes the position from being covered by the CBA. There is no reason apparent on the record that the terms of the CBA should not be applied to the selection process.

The grievance filed by the union concerned the application of article VII(h)2 of the CBA. That provision requires that, under certain limited circumstances, a preference be given to a qualified, senior union member. See note 3, supra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Somerville v. Somerville Municipal Employees Ass'n
887 N.E.2d 1033 (Massachusetts Supreme Judicial Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
870 N.E.2d 632, 69 Mass. App. Ct. 583, 2007 Mass. App. LEXIS 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-somerville-v-somerville-municipal-employees-assn-massappct-2007.