Opinion
No. 11–P–1899.
2012-06-26
TOWN OF WEYMOUTH v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL–CIO, LOCAL 1616.
By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, the town of Weymouth (town), filed the present action against the defendant, International Association of Firefighters, AFL–CIO, Local 1616 (union), seeking to vacate an arbitrator's ruling in favor of the union. A judge of the Superior Court summarily affirmed the award. The town appeals, arguing that the arbitrator exceeded the scope of his authority and that the award violates public policy. We affirm.
Background. The town and the union are parties to a collective bargaining agreement (CBA) that provides, in relevant part, as follows:
“ARTICLE IV. FILLING OF VACANCIES
“...
“B. Whenever a vacancy occurs in any bargaining unit position other than one of those that is enumerated in Section C below ... employees in that compensation grade with more than three (3) years of experience in the Fire Suppression Force who wish to be transferred to the vacant group and/or station assignment may bid for it. The bidder with the greatest seniority shall be assigned to the vacancy immediately upon the closing of the posting period. “C. Whenever a vacancy occurs in any of the positions that are enumerated below ... employees in the bargaining unit who wish to be transferred to that particular vacancy may bid for it. The Chief shall consider the respective qualifications and seniority of the bidders before filling a vacancy in any one of the following positions immediately upon the closing of the posting period: ... Training Officer....”
In 2008, the position of training officer became vacant and was posted in accordance with the provisions of the CBA. Two employees applied or “bid” for the position. The chief of the town fire department (chief) scored the applicants based on three criteria: an interview, a self-evaluation form, and a sample lesson plan completed by each bidder. The chief appointed the bidder with the higher score to the position.
Lieutenant Lauren Forrest was qualified to bid for the vacant training officer position, but did not receive notice of it while on military leave, as required by the CBA. When the chief learned of the error, he interviewed Forrest and reviewed her submitted materials. Although Forrest was senior to the two other candidates, and highly qualified to fill the position, the chief awarded her a lower overall score than each of her colleagues and chose to retain the individual he had previously appointed as training officer.
Forrest thereafter filed a grievance, and the matter eventually proceeded to arbitration. Hearings were held before an arbitrator on two dates in June and July of 2010. Based on his review of the evidence, the arbitrator concluded that the chief had violated Article IV of the CBA by failing to appoint Forrest to the training officer position. In essence, the arbitrator found that the chief's subjective method of scoring candidates allowed him “virtually unlimited” discretion, in contravention of the provision in Article IV requiring him to consider both objective and subjective criteria in making an appointment. If the chief had appropriately “cabin[ed] his discretion,” the arbitrator found that he would have had no choice but to appoint Forrest to the position. As a remedy, the arbitrator accordingly ordered Forrest to be instated to the training officer position, and made whole in all respects, including back pay.
Discussion. Generally, and particularly in the context of collective bargaining agreements, public policy favors the arbitration of disputes; we accordingly follow “the rule that the arbitrator's decision should be upheld.” Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 700 (2008). If, however, the arbitrator exceeds the scope of his authority, or decides the matter based on “fraud, arbitrary conduct, or procedural irregularity in the hearings,” the court is obliged to vacate the award. Plymouth–Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), quoting from Marino v. Tagaris, 395 Mass. 397, 400 (1985). Thus, “errors of law or fact are not sufficient grounds to set aside an award.” Ibid.
On appeal, the town claims that the arbitrator impermissibly substituted his discretion for that of the chief's in ordering the town to appoint Forrest to the position of training officer. In particular, the town argues that the language in Article IV(C) stating that “[t]he Chief shall consider the respective qualifications and seniority of the bidders before filling a vacancy,” creates an nondelegable authority to make appointments under that section of the CBA. See School Comm. of Danvers v. Tyman, 372 Mass. 106, 114–115 (1977) (arbitrator is free to “fashion a remedy which falls short of intruding into the school committee's exclusive domain”). We disagree.
The town does not challenge the arbitrator's conclusion that the chief violated Article IV of the CBA.
In this case, the town and the union bargained and agreed upon the criteria to be used to evaluate candidates bidding for vacant positions under Article IV of the CBA, namely seniority and qualifications. Because the CBA specifies the manner of appointment, rather than vesting complete discretion in the chief, the grievance was arbitrable. See Fall River v. Teamsters Union, Local 526, 27 Mass.App.Ct. 649, 654 (1989) (decision to fill a post at all is not delegable to arbitration, but making an appointment to a position that the appointing authority has determined to fill is subject to the provisions of a collective bargaining agreement). Because nothing in the CBA, or the reference before the arbitrator, curbed his ability to instate an employee to a position, the remedy ordered did not exceed the scope of the arbitrator's authority. See Lynn v. Council 93, Am. Fed. of State, County, & Mun. Employees, Local 193, 51 Mass.App.Ct. 905 (2001). Any remaining challenge to the instatement of Forrest on the weight of her qualifications and seniority goes to the arbitrator's findings of fact or conclusions of law, matters we may not review on appeal.
The parties stipulated to the following reference: “What shall be the disposition of the grievance? If the grievance is substantiated in whole or in part, what shall be the remedy?”
Neither does the present case fall within the narrow public policy exception to the ordinary finality of an arbitrator's decision. As the town raises no public policy that is “well defined and dominant, ... ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest,” Lynn v. Thompson, 435 Mass. 54, 63 (2001) (citation omitted), its claim on this ground necessarily fails.
The town vaguely refers to the fact that Forrest has not returned to work since the remedy was ordered, but supplies no further details about Forrest's leave from her employment.
Judgment affirmed.