Opinion
12-P-1738
11-08-2013
TOWN OF ATHOL v. PROFESSIONAL FIREFIGHTERS OF ATHOL, LOCAL 1751, I.A.F.F.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The professional firefighters of Athol, Local 1751, I.A.F.F. (union) appeals from a Superior Court judgment vacating a portion of an arbitration award concerning the town of Athol's (town) unilateral decision to increase the union member's contribution rates for health insurance coverage. On cross motions for summary judgment, the judge affirmed that portion of the award compelling the parties to collectively bargain changes to the copayment rates charged to union members for various health care services, and vacated the remainder of the award requiring the town to reinstate the prior copayment rates pending negotiations and to reimburse union members for economic losses caused by the rate change. We affirm.
For background and undisputed facts, we refer to the judge's September 28, 2012, memorandum of decision and order on the parties' cross motions for summary judgment. At issue on appeal is whether the judge correctly applied a provision in G. L. c. 32B, § 7A, requiring uniformity in contribution rates for health care plans among all employees of a governmental unit, to prohibit the arbitrator from ordering that the town provide more favorable copayment rates to the union members than to other town employees. See Watertown Firefighters, Local 1347, I.A.F.F., AFL-CIO v. Watertown, 376 Mass. 706, 712 (1978) (arbitration panel's mandate for town to contribute more toward health insurance premiums for firefighters than for other town employees held invalid because it offended § 7A's uniformity requirement). See generally Everett v. International Bhd. of Police Officers, Locals 633 & 634, 44 Mass. App. Ct. 671, 676 (1998) (arbitrator may not award relief that requires a result contrary to an express statutory provision). The union argues that the judge failed to take into account that the uniformity requirement of § 7A does not apply to the type of health care plans offered by the town. According to the record, the town's employees could choose between two Blue Cross Blue Shield plans, Blue Choice and HMO Blue. The union maintains that both were health maintenance organization (HMO) plans (nonindemnity plans), and that, accordingly, the judge should have applied G. L. c. 32B, § 16, which governs contribution rates for HMO plans and does not require uniformity among employees. See, e.g., Yeretsky v. Attleboro, 424 Mass. 315, 322-323 (1997).
The town counters that the applicability of § 16 was not sufficiently raised in the Superior Court, and we agree. The union's only references as to this issue are two passing comments in its summary judgment memorandum, once in a footnote and once in the text, that § 7A applies only to indemnity plans and not to the HMO plans involved here. In both instances, the statements served as a mere aside to the union's other arguments and were unaccompanied by citation to authority or by any mention whatsoever of § 16. See, e.g., Sugarman v. Board of Registration in Med., 422 Mass. 338, 347 (1996); Cooper v. Regional Administrative Judge of the Dist. Ct. for Region V, 447 Mass. 513, 520 (2006).
At oral argument, counsel for the union stated that § 16 was discussed at the summary judgment hearing, however, the union did not provide this court with a transcript of the hearing. 'It was the appellant's burden to provide us with an adequate record demonstrating that the issue had been preserved.' Parks v. Johnson, 46 Mass. App. Ct. 905, 906 (1998).
Contrary to the union's suggestion, it was not for the judge to 'raise the issue [as to § 16] and develop a complete record on which the issue could be properly evaluated.' Salem v. Bureau of Special Educ. Appeals of the Dept. of Educ., 444 Mass. 476, 486 (2005). Nor was it self-evident that § 7A, on its face, was inapplicable to the plans here, particularly without referring to § 16. Indeed, in Yeretsky v. Attleboro, supra at 319, the Supreme Judicial Court observed that § 7A and § 16 should be construed together, to understand the distinction between indemnity plans and HMO plans with respect to the contribution rates to be paid by different groups of employees within a governmental unit.
We question, as well, whether the summary judgment record established that both plans offered by the town fell within § 16 in any event. Blue Choice is described in the record as offering 'both the cost-effectiveness of a health maintenance organization, and the flexibility of a traditional major medical indemnity plan,' providing the insured 'the flexibility to self-refer and receive benefits associated with a traditional indemnity plan with more out-of-pocket expense.' See, e.g., Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 801-802 n.7 (2003) (where issues not raised below, their resolution required further development of the record)).
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The union additionally argues that even if the uniformity requirement of § 7A applied to the health care plans in this case, the town could comply with the portion of the arbitration award that required reinstatement of prior copayment rates, without violating the statute, by reinstating the prior copayment rates for all town employees. Again, we do not find this argument in the summary judgment record. In any event, the cases relied upon by the union do not provide that the arbitrator, in deciding the parties' rights under the collective bargaining agreement, could, in effect, set contribution rates for employees who are not members of the union. See Everett v. International Bhd. of Police Officers, Locals 633 & 634, 44 Mass. App. Ct. at 676 (citation omitted) (arbitrator may not 'transcend[] the limits of the contract of which the agreement to arbitrate is but a part'). This court's observation in Brooks v. School Comm. of Gloucester, 5 Mass. App. Ct. 158, 160 n.4 (1977), regarding the likely impact of the uniformity requirement on collective bargaining, did not extend the authority of an arbitrator to employees outside the bargaining group. See, e.g., Swampscott Educ. Assn. v. Swampscott, 391 Mass. 864, 867- 868 (1984).
Finally, the union argues that nothing in § 7A prohibited the town from bargaining with the union prior to increasing the copayment rates, as is required by the union's collective bargaining agreement with the town. While this is true, the town's failure to do so did not authorize the arbitrator to fashion a remedy that would require the town to violate the uniformity requirement of § 7A. See Watertown Firefighters, Local 1347, I.A.F.F., AFL-CIO v. Watertown, 376 Mass. at 712. See also Middleborough Gas & Elec. Dept. v. Middleborough, 48 Mass. App. Ct. 427, 430 (2000) ('[I]f there is a conflict between a collective bargaining agreement and c. 32B, the statute prevails').
The town, for its part, presses us to revisit the issue of whether a change in health benefit copayment rates is properly the subject of collective bargaining. Having failed to file a cross appeal, the town is precluded from obtaining a more favorable judgment. See Fortin v. Ox-Bow Marina, Inc., 408 Mass. 310, 323 (1990).
Judgment affirmed.
By the Court (Cypher, Vuono & Meade, JJ.),