STEPHEN A. BORDEN v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & Another.

• Court: Massachusetts Appeals Court
• Decided: April 24, 2024
• Docket: 23-P-0959
• Status: Unpublished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

23-P-959

STEPHEN A. BORDEN

vs.

COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Stephen A. Borden, appeals from a decision

by the defendant, the Commonwealth Employment Relations Board

(CERB), affirming the dismissal of his charge of prohibited

practice filed pursuant to G. L. c. 150E against the Boston

Police Patrolmen's Association (BPPA). 2 We affirm.

The Boston Police Department (BPD) employed Borden from

1982 to 1989. In 1989, Borden was arrested and charged with

drug trafficking. Borden called BPPA seeking assistance with

his case, but BPPA did not return his calls. Borden was

convicted of a misdemeanor and did not return to work at BPD.

During the years since Borden was convicted, he has periodically

1 Boston Police Patrolmen's Association.

2BPPA, the respondent to Borden's charge of prohibited practice, intervened in this appeal. contacted BPPA, which has either acknowledged his reinstatement

request, told him that they had no record of his employment, or

not responded. Borden stated that he "was aware as far back as

1992 that his efforts to have the BPPA return his calls [were]

futile."

In November 2022, Borden filed a charge of prohibited

practice against BPPA, alleging that it failed both to represent

him in his 1989 criminal case and to acknowledge his phone calls

and written request. In February 2023, a Department of Labor

Relations (department) investigator conducted an investigation

into the allegations and dismissed the charge as untimely.

Borden appealed the decision to CERB, which affirmed the

dismissal on the same grounds.

We review CERB's decision in accordance with G. L. c. 30A,

§ 14(7). "A final administrative agency decision will be set

aside if, among other grounds, it is [u]nsupported by

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

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

(quotations and citations omitted). Commonwealth v.

Commonwealth Employment Relations Bd., 101 Mass. App. Ct. 616,

622 (2022). "A commission's decision must be based on

substantial evidence, i.e., such evidence as 'a reasonable mind

might accept as adequate to support a conclusion.'" North

2 Attleboro v. Labor Relations Comm'n, 56 Mass. App. Ct. 635, 638

(2002), quoting G. L. c. 30A, § 1(6).

"Except for good cause shown, no charge shall be

entertained by the Department based upon any prohibited practice

occurring more than six months prior to the filing of a charge

with the Department." 456 Code Mass. Regs. § 15.04 (2016). The

limitations period runs from the time that the plaintiff's

"apprehension should reasonably have been aroused . . . when he

heard nothing from the [defendant]." Felton v. Labor Relations

Comm'n, 33 Mass. App. Ct. 926, 928 (1992). "A wrong . . . is

not inherently unknowable if the injured party, in the exercise

of reasonable diligence, should have known of the factual basis

for the wrong." Id. at 927-928.

Borden contends that he has shown good cause for his late

filing because he made "continued attempts to seek redress." We

disagree. "Upon its own motion or upon good cause shown by any

of the parties to the proceeding, the Department may extend the

time for the filing of such request for review." 456 Code Mass.

Regs. § 15.05 (2016). "The commission has appropriately

construed its rule [on the six-month time limitation to file a

claim] to apply when the charging party knew or should have

known of the alleged violation . . . and it is a generally

recognized principle that lack of knowledge of a potential

remedy does not excuse a procedural misstep -- especially where

3 it is in the nature of a jurisdictional prerequisite" (quotation

and citation omitted). Miller v. Labor Relations Comm'n, 33

Mass. App. Ct. 404, 408 (1992).

Here, Borden acknowledged that he was aware of the futility

of his efforts as early as 1992, over thirty years before he

filed. Borden was entitled to present a claim to CERB at any

time during the ensuing six months. See Miller v. Bd. of

Regents of Higher Educ., 405 Mass. 475, 480 (1989). His

periodic attempts to contact BPPA during that time period do not

constitute good cause for filing his charge over thirty years

late. 3 Thus, CERB properly affirmed the department's dismissal

of Borden's charge. See Felton, 33 Mass. App. Ct. at 928

(commission acted within discretion by dismissing plaintiff's

3 Borden also asserted that he received threats and was under duress from unnamed police officers, causing him to be unaware of the department and thus delaying his filing. Borden does not demonstrate any relationship between the alleged threats and his ignorance of the department. Thus, this argument does not rise to the level of adequate appellate argument. See Commonwealth v. Beverly, 485 Mass. 1, 16 (2020), citing Mass. R. A. P. 16(a) (9) (A), as appearing in 481 Mass. 1628 (2019).

4 charge filed ten months after he received no response from his

union).

Decision and order of the Commonwealth Employment Relations Board affirmed.

By the Court (Green, C.J., Englander & Brennan, JJ. 4),

Assistant Clerk

Entered: April 24, 2024.

4 The panelists are listed in order of seniority.