DocketNumber: No. 07-P-1286
Citation Numbers: 73 Mass. App. Ct. 908, 899 N.E.2d 901
Filed Date: 1/23/2009
Status: Precedential
Modified Date: 10/18/2024
Plaintiffs, a number of retired members of the International Association of Firefighters, Local 718, AFL-CIO (union), appeal from a final order of the Commonwealth Employment Relations Board (board) dismissing their charges that the union committed a breach of its duty of fair representation in violation of G. L. c. 150E, § 10(b)(1). We affirm.
1. Background. The plaintiffs are more than ninety retired union members who filed a claim with the board alleging that the union committed a breach of its duty of fair representation in violation of G. L. c. 150E, § 10(b)(1),
“[T]he City agrees that on a one-time basis, for those employees . . . on the Department payroll as of September 1, 2001, he/she shall receive seventy-two (72) hours of sick time credited to his/her sick leave bank for each calendar year or fractions thereof ... of actual service, commencing on his/her date of appointment to the Department.
“Notwithstanding the effective date of this Article, the Sick Leave Redemption at Retirement or Death Provision shall be effective September 1, 2001.”
The plaintiffs all retired before September 1, 2001. They contend that the quoted provision disadvantages them because they, unlike active duty firefighters, cannot receive the extra seventy-two hours of sick leave. The plaintiffs claim that the provision discriminates against them on the basis of age or disability and that the union violated its duty of fair representation in negotiating it.*
The board dismissed the plaintiffs’ charge without a hearing, citing lack of probable cause to believe that the union violated G. L. c. 150E, § 10(A)(1).
b. The board properly dismissed for lack of probable cause. “A union has a duty to represent its members fairly in connection with issues that arise under a collective bargaining unit.” National Assn. of Govt. Employees v. Labor Relations Commn., 38 Mass. App. Ct. 611, 613 (1995). See Vaca v. Sipes, 386 U.S. 171, 177 (1967). This duty does not require a union to treat each member identically. A union has “room for discretion, consideration of the interests of the over-all union membership in relation to that of the individual aggrieved member, and even for honest mistake .... That fairly generous scope for inaction is exceeded when the union’s conduct is arbitrary, discriminatory, in bad faith, or . . . grossly negligent.” National Assn. of Govt. Employees v. Labor Relations Commn., supra.
As the board concluded, the plaintiffs provided no evidence that the union “did not act primarily for the collective good of all bargaining unit members” in negotiating the CBA or that it “acted in a manner that was arbitrary, perfunctory or demonstrative of inexcusable neglect.” The board was also correct to point out that a union may treat different classes of employees differently with respect to wages without violating G. L. c. 150E, § 10(b)(1), absent evidence of unlawful motivation. Alliance, AFSCME SEIU, 6 M.L.C. 1170, 1172 (1979).
The plaintiffs nevertheless claim that they satisfied their burden with circumstantial evidence. Cf. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005) (plaintiff in an employment discrimination case may establish discriminatory intent through indirect or circumstantial evidence). Specifically, they contend that “a cut-off date by which such a large number of elderly and infirm employees were denied benefits received by the remainder of the bargaining unit” gives rise to a reasonable inference that the union intended to discriminate against them based on age or disability during the negotiation process. This argument fails because active duty members of the union are not necessarily younger or more able-bodied than retired members. It is uncontested that because twenty years of service triggers retirement eligibility, voluntary retirees could range in age from thirty-eight to sixty-five. Disability retirees, of course, could be much younger.
Furthermore, the sick leave provision makes an entirely rational distinction between retired and active-duty members.
Finally, while the union may not have obtained every benefit the plaintiffs would have liked, it did act reasonably in negotiating the CBA for all its members and, as the board pointed out, gained for the plaintiffs an approximately four percent retroactive pay increase and the consequential upward adjustment of their retirement benefits. In short, nothing in the record suggests that the union acted in an unfair, arbitrary, discriminatory, or otherwise prohibited manner. Lacking such a suggestion, we cannot find that the board’s decision was unsupported by substantial evidence.
Order denying charge affirmed.
Order denying request for review affirmed.
Oeneral Laws c. 150B, § 10(b)(1), inserted by St. 1974, c. 589, § 2, makes it a prohibited practice for a union to “ [¡Interfere, restrain, or coerce any employer or
The plaintiffs further argue that the union’s constitution, which provided that retired members could maintain active membership in the union but could not vote on collective bargaining agreements, likewise violates the duty of fair representation to the extent that it denied them the right to vote. The board correctly concluded that it had no jurisdiction to address the plaintiffs’ voting claim, a purely internal matter. See Switzer v. Labor Relations Commn., 36 Mass. App. Ct. 565, 567-568 (1994).
The board did not address the question whether the union owed the plaintiffs a duty of fair representation.
The plaintiffs tried to bolster their argument by claiming that the union encouraged one member to delay retirement until after the sick leave cutoff date, yet did not give other members the same “inside information.” The board did not consider this claim due to a policy not to consider information raised for the first time in a request for reconsideration. We, too, decline to consider it. See McCormick v. Labor Relations Commn., 412 Mass. 164, 170 (1992) (holding that a party “cannot raise on appeal arguments that she failed to raise before the commission”). Even if we were to consider it, we would agree with the board that one case of delayed retirement does not suggest discriminatory intent on the union’s part.
Cf. Trinque v. Mount Wachusett Community College Faculty Assn., 14 Mass. App. Ct. 191, 199 (1982) (“[L]ack of a rational basis for a union decision and egregious unfairness or reckless omissions or disregard for an individual employee’s rights” may amount to a denial of fair representation).