Opinion
No. 12–P–852.
2013-07-3
Bertram SWITZER v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
The board reaffirms these observations in its final order. Our own review of the record has uncovered no evidence to contradict the board's conclusions. To the extent that the plaintiff's largely unsubstantiated claims to the contrary pass for reasoned appellate argument, they are not convincing. 6 The board's decision is supported by substantial evidence and so withstands appellate scrutiny. 7
By the Court (BERRY, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a final order of the Commonwealth Employment Relations Board (board) that dismissed, without a hearing, the plaintiff's prohibited labor practices charges against the intervener, Somerville Municipal Employees Association (union). Specifically, the plaintiff charged that the union violated its duty of fair representation under G.L.c. 150E, §§ 10( b ) (1) and (3),
by failing to pursue on his behalf three grievances he had filed against his former employer, the city of Somerville (city). We affirm.
These sections provide: “(b) It shall be a prohibited practice for an employee organization or its designated agent to: (1) Interfere, restrain, or coerce any employer or employee in the exercise of any right guaranteed under this chapter; ... (3) Refuse to participate in good faith in the mediation, fact finding and arbitration procedures set forth in sections eight and nine.” G.L.c. 150E, §§ 10( b )(1) & (3), as amended by St.1974, c. 589, § 2.
1. Background. The grievances concerned incidents where the plaintiff, previously a foreman in the city's department of public works, was disciplined
for failing to ensure that graffiti was removed from a public park prior to a scheduled event (grievance 513); for failing to exercise good judgment by calling in a snow removal crew when there was no snow (grievance 515); and for committing a series of poor management decisions, including the failure to install a certain “no dogs allowed” sign and, in another instance, sending an employee with two days left until retirement to a training on new equipment (grievance 516). The plaintiff also filed a grievance for the denial of overtime pay on the day that he called in the snow crew (grievance 517). After a hearing on grievance 513, the union's grievance committee, which had conducted an investigation into the incident, voted not to pursue grievance 513 on the plaintiff's behalf. Upon the plaintiff's request, the union provided him with detailed reasons for this denial. After a hearing on the remaining grievances, the committee indicated it wanted to obtain more information on the circumstances. When informed of the union's intent to obtain more information, the plaintiff and the union president (who was a member of the grievance committee) exchanged heated words. The union president consequently recused himself from all further proceedings concerning the plaintiff's grievances. After conducting its further investigation, the grievance committee voted to deny grievances 515 and 516.
All told, the plaintiff received a verbal warning, a written warning, and a one-day suspension for conduct detailed in the text.
At a later date, the union voted to pursue grievance 517 on the plaintiff's behalf. However, before any additional action was taken, the plaintiff negotiated a settlement agreement with the city that provided for the plaintiff's early retirement and barred the union from pursuing any grievances on the plaintiff's behalf. The union thus ended its pursuit of grievance 517.
The plaintiff then commenced this action against the union with the board. The board initially dismissed the charge against the union in a short decision. When the plaintiff filed a request for reconsideration, the board issued a more detailed decision affirming its dismissal. The second decision reiterated the board's reasons for concluding that the union processed his grievance properly and rejected many of the plaintiff's arguments as not supported by the facts.
The board also clarified that it did not address the plaintiff's claims under G.L.c. 150E, § 10( b )(3), because the plaintiff, as an individual union member, lacked standing to bring such a claim. The plaintiff's brief makes only fleeting reference to this aspect of the board's decision. In doing so, the plaintiff offers no reasoned appellate argument and fails to cite to any relevant authority. Accordingly, we decline to address this particular aspect of the board's decision. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also Berman v. Linnane, 434 Mass. 301, 305 (2001).
2. Discussion. The plaintiff argues, in general terms, that the board “wrongfully determined” that the union had fairly represented his interests. We disagree.
“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). “[A] union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion. Unions are permitted a wide range of reasonableness in representing the often-conflicting interests of employees; hence, unions are vested with considerable discretion not to pursue a grievance, as long as their actions are not improperly motivated, arbitrary, perfunctory or demonstrative of inexcusable neglect.” Goncalves v. Labor Relations Commn., 43 Mass.App.Ct. 289, 293 (1997) (internal quotations and citations omitted).
“On review, we are ‘limited to an examination of the record to ascertain if the [board's] findings are supported by substantial evidence.” ’ Id. at 295, quoting from Babcock v. Labor Relations Commn., 14 Mass.App.Ct. 650, 652 (1982). “Substantial evidence is evidence that ‘a reasonable mind might accept as adequate to support a conclusion.” ’ Alliance to Protect Nantucket Sound, Inc. v. Department of Pub. Utils. (No.1), 461 Mass. 166, 177 (2011), quoting from G.L.c. 30A, § 1(6). “We will only set the board's decision aside if the record ‘points to an overwhelming probability of the contrary.” ’ Anderson v. Commonwealth Employment Relations Bd., 73 Mass.App.Ct. 908, 910 (2009), quoting from New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981). This is not such as case.
As the board states in its initial decision:
“[T]he Union investigated and considered each of these three grievances in accordance with the Union's internal practices and procedures. Additionally, the Union involved the [plaintiff] in its investigation process and kept him informed at all times. Thus, there is no evidence that the Union acted in an arbitrary or perfunctory manner; nor did the evidence suggest that the Union was unlawfully motivated or demonstrated inexcusable neglect. In fact, after the Union President and the [plaintiff] exchanged heated words, the President recused himself from the process.”
The board reaffirms these observations in its final order. Our own review of the record has uncovered no evidence to contradict the board's conclusions. To the extent that the plaintiff's largely unsubstantiated claims to the contrary pass for reasoned appellate argument, they are not convincing.
The board's decision is supported by substantial evidence and so withstands appellate scrutiny.
We note that in the entirety of the plaintiff's brief, he cites only a single case from a Massachusetts State court. That case is of marginal relevance, at best.
We have considered the plaintiff's various additional arguments. To the extent that they can be discerned, they have no merit. These include the following contentions: that the union misunderstood the distinction between grievances 513 and 517, as evidenced by collectively referring to them as the “snow grievances”; that the union's actions forced the plaintiff to resign his position; that the board erred in refusing to permit the plaintiff to submit a late additional filing because it had permitted the union to submit a late response; that the plaintiff was denied due process by the board; that, because the underlying union investigation relied on unidentified witnesses, and because union representatives spoke to management in his absence, the plaintiff therefore had the right to call those witnesses and have them testify under oath before the board; and, finally, the plaintiff cites a litany of alleged wrongs committed by the board, which he claims violated his State and Federal constitutional rights. In accordance with G.L. c. 150E, § 11, final paragraph, we have examined all contentions under the standard of the Administrative Procedure Act, G.L.c. 30A, § 14(7)( c ), ( d ), ( e ), and ( g ), respectively, and find that the appellant has failed to carry his burden of demonstrating an error of law or procedure, lack of substantial evidence, or action arbitrary, capricious, or abusive of discretion. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass.App.Ct. 470, 474 (1989).
Order dismissing charges affirmed.