Jacobo Matthews v. Commonwealth Employment Relations Board.

• Court: Massachusetts Appeals Court
• Decided: July 16, 2026
• Docket: 25-P-0868
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-868

JACOBO MATTHEWS1

vs.

COMMONWEALTH EMPLOYMENT RELATIONS BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Jacobo Matthews seeks review of a decision of the

Commonwealth Employment Relations Board (CERB) affirming a

Department of Labor Relations (DLR) investigator's decision to

dismiss, for lack of probable cause, Matthews's prohibited

practice charge against the Commonwealth's Department of

Transitional Assistance (employer). Matthews argues that CERB's

decision was legally erroneous and unsupported by substantial

evidence. We vacate that decision in part and remand the case

to CERB for further consideration. We otherwise affirm CERB's

decision and also affirm a single justice's orders denying

1Matthews's first name is variously spelled "Jacobo" or "Jacob" in the record. Consistent with our practice, we spell the name as it appears on the prohibited practice charge. Matthews's motions for sanctions against opposing counsel and

for reconsideration.

Background. We recite the relevant procedural history and

facts as set forth in CERB's decision, reserving certain details

for later discussion. Matthews was hired by the employer on

April 23, 2023, subject to a nine-month probationary period

during which his employment could be terminated without cause.

In August 2023, Matthews complained to his supervisors and

several coworkers that a security officer had yelled at him.

Months later, in November or December, Matthews complained to

his supervisors about a different coworker who he said was

harassing him and creating a hostile work environment. He

complained about the same coworker (and another coworker) on

December 20, 2023, for similar reasons.

Also on December 20, 2023, one of Matthews's supervisors

spoke to the latter two coworkers, who were women. They each

reported that Matthews had made inappropriate comments and had

begun acting rudely after they rejected his separately asking

them on dates. The next day, December 21, the supervisor placed

Matthews on paid administrative leave, citing "concerns," but

not informing Matthews of his coworkers' allegations.

The employer was subject to a collective bargaining

agreement, and Matthews was a member of the bargaining unit.

After being placed on leave, he contacted his union for

2 assistance. The union and the employer were in contact about

Matthews's having been placed on paid administrative leave, but,

despite its request, the union was not informed of the

allegations that prompted the leave.

On January 4, 2024, the employer held an investigative

interview to ascertain further information about the allegations

against Matthews. Matthews attended the interview with two

union representatives also present on his behalf. At the

interview, Matthews and the union learned for the first time the

nature of the allegations that had led to Matthews's being

placed on leave.

Neither union representative asked Matthews any questions

during the interview. At the conclusion of the interview, the

employer found the allegations credible. By letter dated

January 9, 2024, the employer terminated Matthews's employment

based on his having "engaged in inappropriate behavior"

rendering him "unable to perform [his] job functions."

Matthews filed a charge of prohibited practice with DLR,

alleging that the employer had violated his rights under

National Labor Relations Bd. v. J. Weingarten, Inc., 420 U.S.

251, 252 (1975) (Weingarten), and thus under G. L. c. 150E,

§ 10 (a) (1). Matthews later filed an amended charge alleging

that the employer had retaliated against him for engaging in

protected concerted activity, in violation of G. L. c. 150E,

3 § 10 (a) (3). After investigation, a DLR investigator dismissed

the charge for lack of probable cause. Matthews appealed from

the dismissal to CERB, which affirmed it.2 Matthews then filed

this action for judicial review.3

Discussion. "We review the board's decision in accordance

with the standards set forth in G. L. c. 30A, § 14 (7),

governing appeals from final administrative agency decisions."

Somerville v. Commonwealth Employment Relations Bd., 470 Mass.

563, 567-568 (2015), citing G. L. c. 150E, § 11 (i). A decision

by CERB "will be set aside if . . . it is '[u]nsupported by

substantial evidence,' . . . or '[a]rbitrary or capricious, an

abuse of discretion, or otherwise not in accordance with law.'"

Commissioner of Admin. & Fin. v. Commonwealth Employment

Relations Bd., 477 Mass. 92, 95 (2017), quoting G. L. c. 30A,

§ 14 (7) (e), (g).

1. Deprivation of Weingarten rights. Massachusetts

follows the principle that an employee, upon request, has a

2 CERB subsequently denied Matthews's request to reconsider.

3 CERB's decision recognized that other remedies were available that might afford Matthews some relief. The union had filed two separate grievances on Matthews's behalf; one concerned his termination and the other concerned the employer's asserted failure to investigate his discrimination complaints. The employer denied both grievances, the union requested arbitration, and those requests were pending at the time the DLR investigator dismissed Matthews's c. 150E complaint. In addition, Matthews had filed G. L. c. 151B claims against the employer at the Massachusetts Commission Against Discrimination.

4 right to have a "union representative . . . present at an

investigatory interview which the employee reasonably believed

might result in disciplinary action." Weingarten, 420 U.S. at

252. See Massachusetts Correction Officers Federated Union v.

Labor Relations Comm'n, 424 Mass. 191, 193 (1997) (MCOFU). An

employer's deprivation of an employee's Weingarten rights

restrains the employee's right under G. L. c. 150E, § 2, "to

engage in lawful, concerted activities for the purpose of

collective bargaining or other mutual aid or protection," and

thus violates G. L. c. 150E, § 10 (a) (1). See MCOFU, supra at

193-194.

All parties agree that Matthews was entitled to union

representation at his investigative interview, that he asked for

such representation, and that he had two union representatives

present on his behalf. Matthews argues, however, that because

neither he nor the union representatives were informed in

advance of the specific allegations against him, the union was

functionally silenced, and his right under Weingarten to union

representation was rendered meaningless. He therefore argues

that CERB erred in finding no evidence of a Weingarten

violation.

To the extent that Matthews argues that he individually (as

opposed to the union representatives) had a right to know the

subject matter of the interview prior to its occurrence, he

5 cites no authority to support this position. He has offered us

no basis to rule that CERB erred on this point.4

The question regarding what information the employer

provided to the union is another matter. CERB's decision

acknowledged that it has previously viewed an employer's

"fail[ure] to provide the union with information that is

relevant and reasonably necessary to its duties of

representation, including information about disciplinary

allegations against a bargaining unit member," as a violation of

G. L. c. 150E, § 10 (a) (5). Here, although a union

representative initially asked for an explanation of why

Matthews had been placed on leave, and the employer did not

immediately furnish one, nowhere in the union's subsequent

communications with the employer did the union assert that the

employer's response was inadequate or that the union still

needed the information before the hearing. On this basis, CERB

concluded that the evidence did not rise to the level of a

"fail[ure] to respond to the [u]nion." CERB added in a footnote

that if the union had wanted to press the issue, it could have

filed a prohibited practice charge under § 10 (a) (5), but that

4 Matthews's reply brief makes the further argument that his Weingarten rights were violated because he did not caucus with the union during the interview. But he cites no evidence that he or the union sought to engage in such a caucus, let alone that they were prevented from doing so.

6 it did not do so, and that an individual employee such as

Matthews lacks standing to file a § 10 (a) (5) charge.

CERB did not explain, however, why Matthews could not

pursue this claim under § 10 (a) (1). As CERB's decision here

acknowledged, it has previously recognized the denial of

Weingarten rights as a violation of § 10 (a) (1). So have the

reviewing courts. See MCOFU, 424 Mass. at 193-194. Matthews's

prohibited practice charge alleged that the employer had

violated his Weingarten rights and § 10 (a) (1) by, among other

things, failing to inform the union of the subject of the

investigatory interview in advance of that interview.

Weingarten rights are aimed at least in part at allowing

the union to "assist the employer by eliciting favorable facts,

and save the employer production time by getting to the bottom

of the incident occasioning the interview." MCOFU, 424 Mass. at

193, quoting Weingarten, 420 U.S. at 263. A union

representative is present at an investigatory interview "to

assist the employee, and may attempt to clarify the facts or

suggest other employees who may have knowledge of them"

(citation omitted). Weingarten, supra at 260. We do not

currently see how a union representative can perform these

functions on behalf of the employee if the representative,

despite asking beforehand, is kept in the dark about the

allegations underlying the interview. Nor is it obvious why the

7 employer need not respond to a union's request for such

information until the union has repeated that request several

times.

In sum, CERB did not explain why an employer's lack of

response to such a request by a union is not a violation of

§ 10 (a) (1) that may be pursued by an individual employee, as

Matthews sought to do here. Although we owe deference to CERB's

specialized knowledge and expertise in the field of public

employee labor relations, see Commonwealth v. Commonwealth

Employment Relations Bd., 101 Mass. App. Ct. 616, 623 (2022),

CERB has not directly addressed Matthews's argument. A remand

is therefore necessary, for CERB to reconsider whether there was

probable cause that Matthews's Weingarten rights were violated.

2. Retaliation for engaging in concerted activity.

Matthews separately contends that CERB's decision affirming the

investigator's dismissal of the retaliation charge "ignore[ed]

overwhelming prima facie evidence." To make out a prima facie

case under G. L. c. 150E, § 10 (a) (3), Matthews must "produce

evidence to support the conclusion that (1) [he] engaged in

concerted activity as defined by G. L. c. 150E, § 2; (2) the

employer knew of this activity; (3) the employer took adverse

action against [him]; and (4) the adverse action was motivated

by the employer's desire to penalize or discourage the protected

8 activity" (citation omitted). Fowler v. Labor Relations Comm'n,

56 Mass. App. Ct. 96, 97-98 (2002).

Matthews identifies two different categories of assertedly

protected concerted activities that he claims led to

retaliation. We first address his claim that the employer

retaliated against him for seeking the union's assistance after

he was placed on leave on December 21, 2023. As to this claim,

both the DLR investigator and CERB concluded that there was

evidence of the first three elements of the prima facie case,

but not the fourth. That is, although (1) seeking the union's

assistance was protected concerted activity, (2) of which the

employer became aware, and (3) the employer's termination of

Matthews constituted adverse action, (4) there was no probable

cause to believe that the termination was motivated by the

employer's desire to penalize or discourage the protected

activity.

On appeal, Matthews does not argue that there is any

evidence of a direct causal link between his request for union

assistance alone and his being fired.5 Rather, he points to the

5 CERB did not err in declining to consider, as additional evidence of retaliatory motive, Matthews's account of an April 21, 2025 chance encounter with one of the employer's supervisory employees in a retail store. The reported incident occurred more than fifteen months after the employer terminated Matthews, and more than six months after the DLR investigator dismissed Matthews's prohibited practice charges for lack of probable cause. CERB correctly ruled that its review of the dismissal

9 second (albeit chronologically earlier) category of assertedly

protected activity: his complaints to the employer in August,

November, and December of 2023 about mistreatment or harassment

by the security guard and two female coworkers. Matthews claims

that these complaints prompted the employer to retaliate against

him by placing him on leave, and that his subsequent request for

union assistance caused the employer to "compound[] its

retaliation."

CERB, however, relying on decades of its precedents

including Town of Southborough, 21 M.L.C. 1242, 1249 (1994),

concluded that Matthews's earlier complaints were not protected

concerted activity, because they did not "focus[] on generally

applicable terms and conditions of employment that impact the

collective bargaining unit as a whole." CERB saw no evidence

that Matthews was "acting with other employees, or on the

authority of other employees, rather than acting out of self-

interest," or "had contacted the [u]nion regarding the

complaints."

Although Matthews contests CERB's conclusion that his

earlier complaints were not protected concerted activity, he

cites no evidence in the record that undermines that conclusion.

order was based on the record available to the DLR investigator, not based on incidents postdating that investigation. See G. L. c. 150E, § 11 (b), (e).

10 He points to no evidence showing the content of those

complaints, any discussions he had about them with other

employees or the union, or how they related to any concerns of

other bargaining unit members. He cites almost exclusively to

his own unsworn assertions in documents filed with DLR and CERB.

The one exception -- one of his prohibited practice charges,

which he signed under the penalties of perjury -- does not

include any description or discussion of his original

complaints. Thus Matthews has not shown that CERB's view of the

complaints as not constituting concerted activity lacked

substantial evidentiary support. Accordingly, CERB did not err

in ruling that any adverse action the employer took against

Matthews based on his complaints did not show probable cause of

retaliation under G. L. c. 150E, § 10 (a) (3).

3. Due process. Matthews next argues that the employer

violated his procedural due process rights by terminating him

for alleged inappropriate behavior without affording him a name-

clearing hearing. See Fontana v. Commissioner of the Metro.

Dist. Comm'n, 34 Mass. App. Ct. 63, 67 (1993). Matthews fails

to explain how CERB has authority to adjudicate such a claim,

which does not arise under G. L. c. 150E. Even if CERB had such

authority, this claim was never made to CERB and is therefore

waived. "A party is not entitled to raise arguments on appeal

that he could have raised, but did not raise, before the

11 administrative agency." Albert v. Municipal Court of Boston,

388 Mass. 491, 493 (1983).6

4. Motion for sanctions. While this appeal was pending,

Matthews moved for sanctions against CERB's counsel after

counsel failed to timely serve CERB's brief on Matthews as

required by the appellate rules. Counsel asserted that she had

made a mistake in Matthews's e-mail address, promptly sent him a

copy of the brief, and informed this court that CERB did not

oppose enlarging the time for Matthews to file his reply brief.

A single justice denied Matthews's motion for sanctions and his

subsequent motion for reconsideration. Matthews appealed, and

that appeal was consolidated with his appeal from CERB's

decision.

"It is well settled that this court will not reverse an

order of a single justice in the absence of an abuse of

discretion or clear error of law" (citation omitted). Howard v.

Boston Water & Sewer Comm'n, 96 Mass. App. Ct. 119, 123 (2019).

We see no such abuse or error here. The single justice

exercised discretion to provide appropriate relief from

counsel's error, in the form of an extension of time for

6 We pass over Matthews's failure to offer any evidence to support other elements of his claim, such as that the allegedly false and stigmatizing charges against him were "disseminated to the public or are likely to be communicated to prospective employers." Fontana, 34 Mass. App. Ct. at 67.

12 Matthews to file a reply brief. No law or court rule required

the single justice to accept Matthews's negative

characterizations of counsel's conduct, impose sanctions, or

refer her to the Board of Bar Overseers.

The single justice acted in accordance with Mass. R. A. P.

1 (a), as appearing in 481 Mass. 1601 (2019), which requires the

appellate rules to be "construed, administered, and employed to

secure the just, speedy, and inexpensive determination of

appeals." The rules do not require that judicial resources be

spent on a full inquiry into an apparently minor and inadvertent

violation of a procedural rule that caused no material prejudice

to the opposing party. The single justice also acted in

accordance with Mass. R. A. P. 2, as appearing in 481 Mass. 1603

(2019), which, "[i]n the interest of expediting decision, or for

other good cause shown," authorizes a single justice to "suspend

the requirements or provisions of any of these rules in a

particular case, on such reasonable terms as . . . the single

justice may order."

Conclusion. So much of the decision of the Commonwealth

Employment Relations Board as affirmed the dismissal of

Matthews's charge under G. L. c. 150E, § 10 (a) (1), is vacated

and the matter is remanded for further proceedings consistent

with our decision. The remainder of CERB's decision is

affirmed. The single justice's orders of November 4 and 6,

13 2025, denying Matthews's motion for sanctions and for

reconsideration thereof, are affirmed.

So ordered.

By the Court (Rubin, Sacks & Smyth, JJ.7),

Clerk

Entered: July 16, 2026.

7 The panelists are listed in order of seniority.