On May 12, Superior Court Judge Robert C. Rufo denied the Barnstable County Sheriff’s Motion for Summary Judgement in a lawsuit regarding the termination of a Barnstable County Corrections Officer.
The plaintiff, Sheriff James M. Cummings, moved for summary judgment seeking a stay of the Barnstable County Correctional Officer’s Union’s request to arbitrate the termination of Correction Officer Joanne Ferguson.
Ferguson signed a Last Chance Agreement (LCA) on December 12, 2008 after repeatedly arriving late to work. Previously, the Department had progressively disciplined Ferguson in accordance with the Collective Bargaining Agreement. Ferguson signed the LCA to avoid further discipline. The Union bargained for and approved the LCA. The LCA provided that Ferguson “will be placed on strict probation (one  year in length) in regards to issues related to her being late for work.” According to the LCA, Ferguson “shall be considered late if she enters the facility (the building itself) after her shift begins…[or] [i]f she calls in sick after 11:30…[but] being late to roll call shall not constitute being late.”
The LCA provided a sliding scale of discipline applicable to violations of these conditions. Ferguson’s first late arrival to work would result in a 15 day suspension, her second a 30 day suspension, and a third in termination. When entering into the LCA, Ferguson signed a waiver of
“All rights to file a grievance according to the terms of her collective bargaining agreement (CBA) regarding her ongoing and progressive discipline in the terms of this agreement. Discipline up to and including termination under this agreement will be final and ineligible for grievance arbitration according to terms of the employees CBA or private lawsuit.”
Ferguson also “agreed to waive any legal rights and forgo any legal action against the Sheriff’s office as a result of the discipline and this last chance agreement and the circumstances and events surrounding such.”
Ferguson did not show up for her shift for the first time after entering into the agreement on March 18, 2009. Then, on April 27, 2009, Ferguson did not show up for a shift again. Finally, on October 7, 2009, Ferguson was late for roll call and did not call the Sheriff’s office until midnight. Based on these facts, the union concedes that Ferguson was late on March 18, 2009 and October 7, 2009. However, the union contends that Ferguson was not late under the terms of the LCA on April 27, 2009, and requests arbitration limited to this issue.
Preliminarily, the court addressed the issue of whether the LCA between the Barnstable County Sheriff’s office and Ferguson is binding and enforceable. The question before the court was whether the waiver provisions of the LCA preclude arbitration of the narrow issue of Ferguson’s compliance with the terms of the LCA on April 27, 2009.
The court found that no Massachusetts court had addressed the scope and validity of a waiver of appeal provision contained in a LCA. Because of that, the Court determined that it is guided by the “familiar principles” of contract construction; public policy strongly favoring arbitration of employment disputes, and case-law from other jurisdictions.
“[W]hen a settlement agreement bars arbitration of the penalty for violating it, yet fails to specify who is to determine whether a violation has occurred, we decline to infer that the parties intend to exclude this threshold question from arbitration.” In Re Von Roll Isola USA, 304 A.d.2d 934, 934 (N.Y. App. Div. 2003)
The court stated that “the waiver provision of Ferguson’s LCA unequivocally bars review of its specified progressive penalties, the discipline leading up to Ferguson’s ascent to the LCA, and any legal action against the Sheriff’s office based on the LCA; however, the LCA is silent as to review of the factual issues regarding compliance with its terms. As such, the LCA does not bar the limited review that Ferguson seeks.”
The court determined that the arbitrators rule in this case is limited to deciding whether Ferguson was late for work on April 27, 2009, as a result of (one) entering the Barnstable County Sheriff’s office facility after her shift began or (two) calling in sick after 11:30, but not because of being late to roll call.
If the arbitrator finds that Ferguson was not late on April 27, 2009 under the terms defined in the LCA, then the terms of the LCA remain in place with two outstanding violations. If, however, the arbitrator finds that Ferguson did violate the terms of the LCA on that date, Ferguson’s termination stands.
-Attorney John J. MacLaughlan