On February 2, the Appeals court in an unpublished opinion reinstated the arbitration award for the Greenfield Police union in TOWN OF GREENFIELD vs. INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, LOCAL 469 UNIT A MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 # 10-P-944. Arbitration awards are seldom overturned, as the standard is very difficult to satisfy. That being said, the case presents some reasons why even though its an unpublished opinion.
In deciding the case the court stated “The union appeals from a judgment vacating an arbitrator’s award in its favor. The arbitrator determined that the town acted in violation of the collective bargaining agreement (CBA), that the violation was ongoing, and that the union’s grievance (though filed several months after the town first violated the CBA) was timely. A judge of the Superior Court determined that the arbitrator exceeded his authority, that the explicit language of the CBA required that the grievance be filed within seven days, and that the grievance, filed several months after the union was on notice of the alleged violation, was untimely. We reverse.
In April, 2004, Denis Menard, a police officer in Greenfield, was injured while on duty. Thereafter, Menard received, in addition to his injured-on-duty benefits, roll call pay as provided for in section 8 of the CBA. In April, 2006, the town unilaterally ceased paying Menard the additional roll call pay. In June, 2006, the union objected to the discontinuance of Menard’s roll call pay; the town responded with its view that roll call pay was available only to active officers, not those on long term medical leave. In October, 2006, the union filed the grievance which is the subject of the parties’ dispute. The town denied the grievance as untimely under the CBA. The union sought arbitration, and the town agreed, reserving its right to dispute arbitrability.
The arbitrator determined that the grievance was arbitrable on the ground that the grievance concerned an ongoing violation of the CBA. Interpreting the agreement, the arbitrator also determined that the town violated the CBA when it developed and implemented a new policy no longer to include roll call pay in the injured-on-duty benefits paid to officers who were medically incapable of returning to work. The town then filed a complaint to vacate the arbitrator’s award; the union counterclaimed seeking confirmation of the award.
On the parties’ cross motions for summary judgment, a Superior Court judge concluded that the arbitrator exceeded his authority in determining that the grievance was arbitrable, because the clear language of the CBA required that the grievance be filed within seven days of the event giving rise to the grievance. In addition, since the union was on notice of the town’s contrary position as of June 8, 2006, she concluded that the union’s failure to file a grievance until October constituted a waiver under the plain language of the CBA.
Whether a grievance is timely filed is considered a procedural question within the province of the arbitrator. See Bedford v. AFSCME, Council 93, Local 1703, 69 Mass. App. Ct. 110, 112 (2007). Accordingly, it is subject to a very narrow scope of review. See Duxbury v. Rossi, 69 Mass. App. Ct. 59, 61- 62 (2007). Generally, ‘[p]rocedural arbitrability comprehends questions such as allegations of waiver, delay, failure to comply with time limits, notice, laches, estoppel, questions that the parties would likely expect an arbitrator to decide as a gateway matter.’ Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 75 Mass. App. Ct. 340, 342 n.3 (2009). ‘Only when arbitration clauses explicitly exclude such gateway procedural disputes will a judge decide those procedural issues.’ Ibid. See Massachusetts Hy. Dept. v. Perini Corp., 444 Mass. 366, 376 (2005), quoting from Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator, to decide; gateway issue of timeliness of request for arbitration held not a limitation on board’s authority — it is for the arbitrator to decide ‘whether a condition precedent to arbitrability has been fulfilled’).
In addition, the arbitrator was within his authority to conclude that the incident upon which the grievance was based was ongoing and that the town’s violation of the agreement was a continuing one. See Leahy v. Local 1526, Am. Fed. of State, County & Mun. Employees, 399 Mass. 341, 354 (1987) (grievance filed beyond ten day period not untimely where miscalculation of member’s seniority and resulting underpayment was ongoing harm, not isolated incident); Graham v. Quincy Food Serv. Employees Assn. Hosp., Library & Pub. Employees Union, 407 Mass. 601, 608 (1990) (same).
Moreover, given the limited nature of our review, we would be constrained to uphold the arbitrator’s decision in the present case even were we to agree with the town that it rests on an error of law. See Everett v. International Bhd. of Police Officers, Locals 633 & 634, 44 Mass. App. Ct. 671, 676 (1998) (absent fraud, errors of law or fact not sufficient to set aside arbitration award).
The judgment is reversed, and a new judgment shall enter confirming the arbitrator’s award. So ordered.”
This is a Rule 1:28 decision, which 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 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.
Attorney Ronald A. Sellon