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-123
MASSACHUSETTS DEPARTMENT OF TRANSPORTATION
vs.
UNITED STEELWORKERS, LOCAL 5696.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, United Steelworkers, Local 5696 (union),
appeals from an amended judgment entered on the pleadings in
favor of the plaintiff, the Massachusetts Department of
Transportation (department). The judgment vacated an
arbitration award of backpay and seniority rights to an employee
of the department. Because we conclude that the arbitrator did
not exceed his authority, we reverse.
Background. We recite the facts as found by the
arbitrator. Adrian Braka is employed by the department in its
Highway Operations Center (HOC) as an HOC Operator II. The HOC
provides "24/7" traffic management and emergency response for
roads and tunnels in the Commonwealth. In March 2020, following the onset of the COVID-19
pandemic, the Governor declared a state of emergency. Although
much of the department's in-person operations were shut down,
the HOC continued its operations. In August 2021, the Governor
issued an executive order requiring all executive department
employees to provide proof of vaccination against COVID-19 on or
before October 17, 2021,1 or to obtain an exemption "where a
reasonable accommodation can be reached" for employees unwilling
to receive vaccination due to sincerely held religious beliefs.
The department subsequently adopted a policy that required
employees to show proof of vaccination against COVID-19 as a
condition of employment or to submit a request for a medical or
religious exemption. Under the policy, employees who failed to
comply would face progressive discipline, beginning with a five-
day suspension without pay and culminating in termination of
employment.
On September 28, 2021, Braka submitted a religious
exemption request form to the department and attached a letter
from his pastor. On October 12, Braka was interviewed by the
department's director of equal employment opportunity programs.
This interview focused solely on Braka's religious beliefs and
1 Executive Order No. 595 (Aug. 19, 2021).
2 did not cover the subject of possible accommodations.2 The
department subsequently denied Braka's request, claiming that
granting his request would impose an undue hardship and that the
department "explored the possibility of transferring or
reassigning [Braka] to a vacant position, but no alternative
assignments" were available at that time.3
On November 5, 2021, Braka submitted an appeal, proposing
possible accommodations such as remote work, regular testing for
COVID-19, and social distancing, and further suggesting that he
could work "in a separate space at the HOC or [department]
building." The department denied the appeal, claiming that
Braka had failed to provide any new or differing information or
evidence of a mistake of fact or interpretation of law or
policy. After his request for an accommodation was denied,
Braka continued to oppose vaccination on religious grounds, and
the department proceeded with the progressive disciplinary steps
outlined in its vaccination policy. The department terminated
Braka on December 14, 2021.
2 The department determined that Braka had sincerely held religious beliefs and does not challenge the sincerity of those beliefs on appeal.
3 The department's director of human resources testified that approximately one hundred applications for exemptions were filed by department employees, but that he did not recall any accommodations being granted for religious exemptions.
3 At all relevant times, the department was party to a
collective bargaining agreement (CBA) with the union. The CBA
included, in relevant part, provisions that prohibited the
department from discriminating against employees based on
"religion" or "creed" or from discharging nonprobationary
employees "without just cause." The CBA also included a
standard grievance procedure, including "final and binding"
arbitration under G. L. c. 150C.
The union grieved Braka's termination and requested
arbitration. In the meantime, because of decreasing
transmission rates and increased level of vaccinations against
COVID-19, on October 18, 2022, the department offered to
reinstate Braka, and he returned to work. The union continued
to pursue arbitration seeking lost wages, benefits, and
seniority, and claiming that the department had failed to
reasonably accommodate Braka's sincerely held religious beliefs
and had disciplined and terminated him without just cause.4
Following a hearing, the arbitrator found that the
department failed to meet its burden of proving that it had
properly considered possible accommodations for Braka's
4 The parties agreed to the following questions for arbitration: (1) "Did [the department] deny reasonable accommodation to [Braka]?" and (2) "If so, what shall the remedy be?"
4 sincerely held religious beliefs. While the department claimed
to have considered accommodations, including reassignment to
another position at the department, remote work, or work in a
separate space at the HOC, the arbitrator found that the
department's investigation into each of these options was
"cursory." He further noted that the department's conclusions
that such accommodations were unavailable or not possible "were
only supported by conclusionary statements offered at hearing,"
and that there was "insufficient evidence that anyone looked
into lists of vacant positions, or lists of vacant rooms
available, or the specifics of what was needed for [Braka] to
work remotely." The arbitrator sustained the union's grievance
and ordered back pay, benefits, and seniority credit.
The department filed a complaint in the Superior Court
pursuant to G. L. c. 150C, § 11, seeking to vacate the
arbitration award on the ground that the arbitrator had exceeded
his authority in issuing an award that "violates public policy"
in that it "imperils the safety of the traveling public and
[department] employees by limiting [the department's] ability to
provide essential public safety services." In his memorandum of
decision and order on cross-motions for judgment on the
pleadings, the Superior Court judge agreed with the department
and found that the arbitrator's award interfered with the
5 department's nondelegable rights under its enabling statute,
G. L. c. 6C, § 3 (6). Section 3 (6) grants the department, in
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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-123
MASSACHUSETTS DEPARTMENT OF TRANSPORTATION
vs.
UNITED STEELWORKERS, LOCAL 5696.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, United Steelworkers, Local 5696 (union),
appeals from an amended judgment entered on the pleadings in
favor of the plaintiff, the Massachusetts Department of
Transportation (department). The judgment vacated an
arbitration award of backpay and seniority rights to an employee
of the department. Because we conclude that the arbitrator did
not exceed his authority, we reverse.
Background. We recite the facts as found by the
arbitrator. Adrian Braka is employed by the department in its
Highway Operations Center (HOC) as an HOC Operator II. The HOC
provides "24/7" traffic management and emergency response for
roads and tunnels in the Commonwealth. In March 2020, following the onset of the COVID-19
pandemic, the Governor declared a state of emergency. Although
much of the department's in-person operations were shut down,
the HOC continued its operations. In August 2021, the Governor
issued an executive order requiring all executive department
employees to provide proof of vaccination against COVID-19 on or
before October 17, 2021,1 or to obtain an exemption "where a
reasonable accommodation can be reached" for employees unwilling
to receive vaccination due to sincerely held religious beliefs.
The department subsequently adopted a policy that required
employees to show proof of vaccination against COVID-19 as a
condition of employment or to submit a request for a medical or
religious exemption. Under the policy, employees who failed to
comply would face progressive discipline, beginning with a five-
day suspension without pay and culminating in termination of
employment.
On September 28, 2021, Braka submitted a religious
exemption request form to the department and attached a letter
from his pastor. On October 12, Braka was interviewed by the
department's director of equal employment opportunity programs.
This interview focused solely on Braka's religious beliefs and
1 Executive Order No. 595 (Aug. 19, 2021).
2 did not cover the subject of possible accommodations.2 The
department subsequently denied Braka's request, claiming that
granting his request would impose an undue hardship and that the
department "explored the possibility of transferring or
reassigning [Braka] to a vacant position, but no alternative
assignments" were available at that time.3
On November 5, 2021, Braka submitted an appeal, proposing
possible accommodations such as remote work, regular testing for
COVID-19, and social distancing, and further suggesting that he
could work "in a separate space at the HOC or [department]
building." The department denied the appeal, claiming that
Braka had failed to provide any new or differing information or
evidence of a mistake of fact or interpretation of law or
policy. After his request for an accommodation was denied,
Braka continued to oppose vaccination on religious grounds, and
the department proceeded with the progressive disciplinary steps
outlined in its vaccination policy. The department terminated
Braka on December 14, 2021.
2 The department determined that Braka had sincerely held religious beliefs and does not challenge the sincerity of those beliefs on appeal.
3 The department's director of human resources testified that approximately one hundred applications for exemptions were filed by department employees, but that he did not recall any accommodations being granted for religious exemptions.
3 At all relevant times, the department was party to a
collective bargaining agreement (CBA) with the union. The CBA
included, in relevant part, provisions that prohibited the
department from discriminating against employees based on
"religion" or "creed" or from discharging nonprobationary
employees "without just cause." The CBA also included a
standard grievance procedure, including "final and binding"
arbitration under G. L. c. 150C.
The union grieved Braka's termination and requested
arbitration. In the meantime, because of decreasing
transmission rates and increased level of vaccinations against
COVID-19, on October 18, 2022, the department offered to
reinstate Braka, and he returned to work. The union continued
to pursue arbitration seeking lost wages, benefits, and
seniority, and claiming that the department had failed to
reasonably accommodate Braka's sincerely held religious beliefs
and had disciplined and terminated him without just cause.4
Following a hearing, the arbitrator found that the
department failed to meet its burden of proving that it had
properly considered possible accommodations for Braka's
4 The parties agreed to the following questions for arbitration: (1) "Did [the department] deny reasonable accommodation to [Braka]?" and (2) "If so, what shall the remedy be?"
4 sincerely held religious beliefs. While the department claimed
to have considered accommodations, including reassignment to
another position at the department, remote work, or work in a
separate space at the HOC, the arbitrator found that the
department's investigation into each of these options was
"cursory." He further noted that the department's conclusions
that such accommodations were unavailable or not possible "were
only supported by conclusionary statements offered at hearing,"
and that there was "insufficient evidence that anyone looked
into lists of vacant positions, or lists of vacant rooms
available, or the specifics of what was needed for [Braka] to
work remotely." The arbitrator sustained the union's grievance
and ordered back pay, benefits, and seniority credit.
The department filed a complaint in the Superior Court
pursuant to G. L. c. 150C, § 11, seeking to vacate the
arbitration award on the ground that the arbitrator had exceeded
his authority in issuing an award that "violates public policy"
in that it "imperils the safety of the traveling public and
[department] employees by limiting [the department's] ability to
provide essential public safety services." In his memorandum of
decision and order on cross-motions for judgment on the
pleadings, the Superior Court judge agreed with the department
and found that the arbitrator's award interfered with the
5 department's nondelegable rights under its enabling statute,
G. L. c. 6C, § 3 (6). Section 3 (6) grants the department, in
relevant part, the authority to "direct, coordinate and
supervise the administration of the department to promote
economy and efficiency."
The judge stated that this "admittedly very broad" grant of
authority "encompasses the [department's] obligation to ensure
public safety," and found that "staffing decisions taken in
furtherance of efficient and effective operation of the command
and control functions of the HOC, particularly during the COVID-
19 pandemic, are nondelegable powers reserved to the
[department]." In vacating the award, the judge held that the
arbitrator had exceeded his authority by substituting his
judgment that there were "possible accommodations" in place of
"the opposite conclusion reached by the department." The union
appealed.
Discussion. "We review a decision affirming or denying a
motion for judgment on the pleadings . . . as well questions of
statutory interpretation, de novo." Hovagimian v. Concert Blue
Hill, LLC, 488 Mass. 237, 240 (2021). See Boston Teachers
Union, Local 66 v. School Comm. of Boston, 494 Mass. 519, 521-
522 (2024).
6 "A reviewing court generally accords deference to the
decision of an arbitrator in a collective bargaining dispute
governed by the provisions of G. L. c. 150C, §§ 1-16." Chaloff
v. Westwood Pub. Sch., 105 Mass. App. Ct. 13, 15 (2024), citing
School Comm. of Lexington v. Zagaeski, 469 Mass. 104, 110
(2014). "Unlike our review of factual findings and legal
rulings made by a trial judge, we are strictly bound by an
arbitrator's findings and legal conclusions, even if they appear
erroneous, inconsistent, or unsupported by the record at the
arbitration hearing." Lynn v. Thompson, 435 Mass. 54, 61
(2001), cert. denied, 534 U.S. 1131 (2002). With limited
exceptions, the parties "cannot ordinarily obtain judicial
relief if they disagree with the decision rendered by the
individual whom they have empowered to adjudicate the
controversy." Boston Police Patrolmen's Ass'n v. Boston, 60
Mass. App. Ct. 672, 674 (2004). However, "the question whether
the arbitrator[] acted in excess of the authority conferred on
[him], as [found by the Superior Court judge] in the present
case, is always open for judicial review" (citation omitted).
Higher Educ. Coordinating Council/Roxbury Community College v.
Massachusetts Teachers' Ass'n/Mass. Community College Council,
423 Mass. 23, 27 (1996).
7 The union argues that the judge erred in finding that the
department's enabling statute grants it a nondelegable public-
safety management right and in determining that the arbitrator's
award interfered with that right.5 While these arguments may
have some heft,6 we need not decide them, as we agree with the
union that, even if the department has such a nondelegable right
and the arbitration award somehow impinges on that right, the
doctrine of nondelegation must give way to the constitutional
prohibition on religious discrimination.7 See Blue Hills
5 In its brief, the department defines the scope of its authority under the relevant portion of its enabling statute as the "nondelegable managerial duty to maintain a safe workplace and to provide critical safety services to the public in the specific context of making decisions regarding staffing during a surge in the COVID-19 pandemic."
6 Statutes that confer only "general" management authority on an employer ordinarily "must yield to the obligation to engage in collective bargaining." Board of Higher Educ. v. Commonwealth Employment Relations Bd., 483 Mass. 310, 319 (2019). Here, the department relies on statutory language that defines the scope of its management authority in the broadest of terms, empowering it to "direct, coordinate and supervise the administration of the department to promote economy and efficiency." G. L. c. 6C, § 3 (6). The department cites no case that has interpreted comparably broad language to give an employer nondelegable powers over all staffing decisions, even those that might violate an antidiscrimination provision of the CBA.
7 The department contends that the union has waived any argument that an exception for constitutional discrimination applies in this case because the union only "flatly asserted" the constitutional proscription against religious discrimination in its filings. This argument is unavailing, as the union did invoke constitutional proscriptions against religious
8 Regional Dist. Sch. Comm. v. Flight, 383 Mass. 642, 644 (1981).
See also Framingham v. Framingham Police Officers Union, 93
Mass. App. Ct. 537, 546 n.11 (2018) ("The doctrine of
nondelegation generally must give way to the constitutional and
statutory prohibitions on invidious discrimination").
In Flight, 383 Mass. at 644, the Supreme Judicial Court
carved out an exception to the doctrine of nondelegation for
cases where a grievant raises claim that implicate
constitutional and statutory prohibitions on invidious
discrimination by a public employer. See id. The court
reasoned that a "[d]ecision by an arbitrator in such a case is
no more intrusive than [a] decision by an independent
commission, and does not unreasonably trespass on the managerial
authority of the employing agency." Id. Here, the arbitrator
determined that the department failed to satisfy its burden of
sufficiently investigating potential religious accommodations.
Consequently, the award at issue does not unreasonably trespass
on the department's authority because the same result could have
been attained in an administrative proceeding. See Stonehill
discrimination below and the arbitrator's finding that the department failed to meet its burden to consider religious accommodations clearly implicates the proscription against such discrimination under the First Amendment to the United States Constitution and art. 46, § 1, of the Massachusetts Declaration of Rights.
9 College v. Massachusetts Comm'n Against Discrimination, 441
Mass. 549, 567, 570-576 (2004), quoting G. L. c. 151B, § 5 (on
finding of employment discrimination, Massachusetts Commission
Against Discrimination [MCAD] has broad authority to take
"affirmative action, including but not limited to, hiring,
reinstatement or upgrading of employees, with or without back
pay"). See also New York and Mass. Motor Servs., Inc. v.
Massachusetts Comm'n Against Discrimination, 401 Mass. 566, 568,
584 (1988) (affirming finding that employee was discriminated
against on basis of religion and remanding for recalculation of
award of back pay).8
The department does not contest that the same result could
have been obtained in an administrative proceeding and instead
argues that the exception to the doctrine of nondelegation
articulated in Flight has been narrowed. The cases cited by the
department, however, merely follow precedent in declining to
extend this exception to allegations of discrimination on the
basis of union membership, a category that is not similarly
constitutionally protected. See Department of State Police v.
Massachusetts Org. of State Eng'rs and Scientists, 456 Mass.
8 The department does not contend that Braka was not qualified for his position as HOC Operator II. Indeed, the department voluntarily reinstated Braka to that position in October 2022.
10 450, 459 (2010) ("Flight's restricted exception to the
nondelegability doctrine does not cover . . . discrimination
claim based on [grievant's] union membership and activities").
See also Sheriff of Middlesex County v. International Bhd. of
Correctional Officers, Local R1-193, 62 Mass. App. Ct. 830, 834
(2005) (Flight exception was not triggered where discrimination
claim was based on union membership and not membership in
constitutionally protected category such as gender or race).
While Flight does not specifically restrict its holding to cases
alleging constitutionally proscribed discrimination, we are
satisfied that the arbitrator's findings here implicate
statutory and constitutional proscriptions against religious
discrimination, and that the circumstances of this case fall
within the narrow exception announced in Flight.9
9 Because we find that this case falls within the narrow exception to the nondelegability doctrine articulated in Flight, 383 Mass.at 644, we need not reach the union's argument that even if the department had the nondelegable staffing authority it claims, the arbitrator's award of back pay, benefits, and seniority credit could not impermissibly interfere with such authority. See, e.g., Higher Educ. Coordinating Council/Roxbury Community College, 423 Mass. at 33 (award of damages within scope of arbitrator's powers "so long as the damages were in an amount that would not have the effect of compelling reinstatement" [quotation and citation omitted]).
11 Conclusion. The judgment is reversed, and a new judgment
shall enter confirming the arbitration award.
So ordered.
By the Court (Vuono, Shin & Smyth, JJ.10),
Clerk
Entered: April 10, 2026.
10 The panelists are listed in order of seniority.