Boston Arbitration Award Upheld

Recently in CITY OF BOSTON vs. SALARIED EMPLOYEES OF NORTH AMERICA, LOCAL 9158 77 Mass.App.Ct. 785 (2010) tha Appeals court upheld the arbitration award which centered around so called “bumping rights” for employees when their duties were merged with the Boston Police Department.

In deciding the court stated that “This appeal from a Superior Court judgment affirming an arbitrator’s award in a labor dispute centers on the “bumping rights” provision of a contract between the city of Boston (city) and the Salaried Employees of North America, Local 9158 (union). The city claims that the arbitrator interpreted and applied the contract in a way that exceeded his powers. We disagree and affirm the judgment.

Background. The basic facts found by the arbitrator are not disputed. The city has a property and construction management department that consists of eight separate divisions, two of which are the capital construction division (construction division) and the municipal police department (police division). The police division is responsible for protecting all city buildings. In the late fall of 2005, the city decided to eliminate all armed officers from the police division and merge their functions into those of the Boston police department. That decision resulted in a number of layoffs not only of armed officers but of other police division support personnel.

In place at the time was a collective bargaining agreement (agreement) between the city and the union that contained a number of provisions dealing with layoffs. Insofar as here material, one of those provisions stated that permanent employees were to be laid off in accordance with the provisions of G. L. c. 31, which requires that permanent employees “having the same title in a departmental unit” be laid off in accordance with seniority. See G. L. c. 31, § 39. Another provision stated, again in material part, that “[n]on-permanent employees (including provisional and temporary employees) with more than six months seniority shall be designated for lay off prior to permanent employees in their job classifications in their department. Such non-permanent employees shall be designated for lay off by inverse order of seniority.”

Article XV, § 6, of the agreement dealt with “bumping rights,” that is, the right of one employee to “bump” into another position under certain circumstances, including the right to bump another employee out of the targeted position. Insofar as § 6 applied to employees who had been designated for layoff, two *787 provisions are of particular importance and lie at the heart of the present controversy. Section 6(A)(ii) provided that permanent employees had “the right provided by G. L. c. 31 to bump into a lower graded job classification within the department.” Alternatively, under § 6(A)(iii), a permanent employee was permitted to “bump laterally into a vacancy within the same job classification or an equally graded job classification that the employer has determined the employee seeking to bump laterally to be capable of performing the duties and responsibilities of the position.”
Joan Forbes-Ozella, a tenured civil service employee who worked as a grade MM-7 senior administrative assistant in the police division, was one of the employees selected for layoff as a result of the merger. Her duties included budgeting, managing the account related to paid details on which the armed officers worked, and analyzing monthly crime reports. Dorothy Baxter, a provisional employee who had been hired effective July 19, 1999, was a gradeMM-7 program analyst in the construction division. Baxter’s duties included working on various projects for the Boston public schools, assisting with construction reimbursements generated by installation of an Internet infrastructure, and working as a member of the capital planning team for the Boston school system. Faced with an imminent layoff, Forbes-Ozella elected to bump Baxter and, as a result, moved from the police division to the construction division, where she began performing the duties Baxter had performed. Baxter, in turn, was laid off. Baxter grieved her layoff and, supported by the union, claimed that the agreement only permitted lateral bumps, i.e., bumps into the same grade, when the target position was vacant. Although Baxter’s position was in the same grade, the union argued that her position was not vacant at the time Forbes-Ozella exercised her bumping rights and, thus, she had no right to displace Baxter.

The city disagreed, and the matter proceeded to arbitration under the agreement’s arbitration provisions. The arbitrator agreed with the union’s position and made an award stating that Forbes-Ozella had no contractual right to bump Baxter because Baxter’s position was not vacant. As a result, he ordered the city to “reinstate Baxter to her former position . . . and make her whole for all lost wages and contract benefits.”

The city appealed the arbitrator’s decision to the Superior Court, where it made the two principal arguments it presses here. The first is that the arbitrator’s interpretation of the bumping rights provision of the agreement would require the city to violate the seniority layoff provisions of the civil service laws. The second is that, even if the arbitrator’s interpretation of the agreement were appropriate, the reinstatement award violated a term of the agreement providing that an arbitrator “shall make no award that grants any appointment [or] reappointment . . . of any member of the bargaining unit.”

We think that the arbitrator’s reasoning is a permissible view of what the agreement permits and what it forbids. The alternative would be either that the agreement offered no protection against wrongful termination or that the only remedy for wrongful discharge was an order requiring the city to continue to pay the discharged employee the salary he or she would have received if no discharge had occurred. The former reading is hardly reasonable in view of the comprehensive job-protection provisions the agreement contains and the latter would amount to a hugely wasteful expenditure of public funds. Everett v. Teamsters, Local 380, 18 Mass. App. Ct. 137 (1984), which is relied on by the city, is not to the contrary. In that case, a provisional employee covered by a collective bargaining agreement did not contest his layoff but disputed instead the city’s failure to recall him to a position for which he was qualified when that position opened. Agreeing with the employee, an arbitrator ordered the city to recall the employee. We ordered the award vacated, observing that “[b]y law, once a provisional employee is laid off, the provisional appointment ends.” Id. at 139. Thereafter, the employee could not occupy any position in the city unless the city made a new appointment. Here, by contrast, the arbitrator ruled that Baxter was never properly laid off and, as a consequence, the city’s effort to lay her off did not in fact terminate her provisional appointment. The reinstatement award, therefore, did not require the city to appoint or reappoint her to a job she already held. Judgment affirmed.”

Attorney Ronald A. Sellon

About Attorney Ronald A. Sellon

Ronald A. Sellon is a licensed Attorney in the state of Massachusetts and U.S. District Court, Massachusetts as well as a Sergeant with a Municipal Police Department and U.S. military Veteran. Additionally, he has taught Criminal Procedure at the Massachusetts State Police Academy in New Braintree and has written a text on Criminal Procedure for police field training officer programs. He is a graduate of the FBI National Academy, was a 2008 recipient of the Massachusetts Coalition of Police (Mass C.O.P.) Presidents award and holds a Bachelors Degree in Law Enforcement, a Masters Degree in Criminal Justice Administration, and a Juris Doctor Law Degree. Questions related to content material may be directed to RSellon@PoliceLegalPromotions.com
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