winthrop.towndigital almanac

Winthrop memo in opposition to CP motion to revive charge post arbitration

Town of Winthrop · from StateReference · 7 pages · 159 KB
open the file ↗ · original at the source ↗

COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF LABOR RELATIONS

DLR Docket No. MUP-15-4652

FERRUCCIO ROMEO
Charging Party,
wd
TOWN OF WINTHROP,
Respondent |

RESPONDENT’S MEMORANDUM IN OPPOSITION TO FERRUCCIO
ROMEO’S REVIVAL MOTION

On March 2, 2016, Ferruccio Romeo filed a “Request to Revive the Charge” in
which the Respondent opposes for the reasons stated below.

In determining whether the allegations in the Charge should be deferred to
arbitration, the Department of Labor Relations (DLR) considers if: 1) the issues posed by
the Charge are essentially a question of contract interpretation; 2) the statutory issues
raised by the case are well settled; and 3) the resources of the DLR and the parties can be
conserved through deferral. Town of Ware, 17 MLC 1565 (1991) (citing Whittier
Regional School Committee, 13MLC 1325 (1986)). Also, the arbitration award must
dispose of the substantially identical issue presented to the commission. City of
Cambridge, 7 MLC 2111, 2112 (1981).

When the Department of Labor Relations defers a case to arbitration, the DLR
retains jurisdiction over the allegations in the Charge and may act under any of the

following circumstances: a) if the grievance is not resolved with reasonable promptness

by the grievance-arbitration process; b) if the grievance and arbitration procedures have
not been fair or regular; or c) if the result of the grievance and arbitration procedure is
repugnant to 150E. Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955).

On February 28, 2016, Arbitrator Bruce Fraser determined that there was no just
cause for the termination of Officer Ferruccio Romeo. The Arbitrator also ordered that
Officer Romeo be given a Letter of Warning for failing to receive authorization for an

alternative location for performing the Pump Detail on November 24, 2014, prior to

working the detail. Additionally, the Arbitrator awarded Officer Romeo shall be made
whole for all lost wages and benefits.

After reviewing the arbitration agreement, the Respondent opposes the Motion to
Revive the charge because the standard necessary to revive a Charge is not present in this
case. To start, the grievance was resolved with reasonable promptness by the grievance-
arbitration process. On March 5, 2015, based on the evidence presented, the Investigator
dismissed the Charge and the parties were notified of the decision. On March 16, 2015,
Officer Romeo filed the “Charging Party Ferruccio Romeo’s Request for Review of the
March 5, 2015 Dismissal of the Charge of Prohibited Practice” pursuant to Section 11 of
the Law wherein he also moved for deferral of the matter to arbitration. Following
Officer Romeo’s request, the Employer filed “Respondent Town of Winthrop’s Response
to Review of the March 5, 2015 Dismissal of Charge of Prohibited Practice” on April 1,
2015 requesting affirmation of the dismissal and arguing against the motion to defer the
charge to arbitration. After reviewing the request and response, the Department of Labor
Relations deferred the Charge of Prohibited Practice to Arbitration on May 21, 2015.

Lastly, on February 28, 2016, there was a timely arbitration award issued in favor of

Officer Romeo. Therefore, there was reasonable promptness throughout the grievance-
arbitration process without any undue delay.

Secondly, the grievance and arbitration procedures were both fair and regular.
The Board suggests following the long and successful functioning arbitration process that
has been used to resolve the underlying dispute and make it unnecessary for either party
to follow the more formal, and sometimes lengthy, combination of administrative and
judicial litigation provided under the National Labor Relations Act. Collyer Insulated
Wire, 192 NLRB 837, 843 (1971). The rationale behind the deferral policy is not to
compel parties to agree to arbitrate disputes arising during a contract term, but instead is
intended to merely give full effect to their own voluntary agreements to submit all such
disputes to arbitration, rather than permitting such agreements to be sidestepped and
permitting the substitution of our processes, a forum not contemplated by their own
agreement. Collyer Insulated Wire, 192 NLRB 837, 842 (1971).

The Commonwealth Employment Relations Board (CERB) frequently looks to
National Labor Relations Board (NLRB) decisions for guidance in construing similar
statutory provisions. Salem School Committee, 35 MLC 199 (2009); Plainridge Race
Course, Inc., 28 MLC 185, 186 (2001) (citing Greater New Bedford Infant Toddler
Center, 12 MLC 1131, 1155 n.42 (1985), aff'd 13 MLC 1620 (1987)).

Under the Collyer deferral policy, deferral is appropriate where: (1) the contract
clearly provides for the grievance and arbitration of disputes, (2) the action taken by the
employer was not designed to undermine the Union and was based on a substantial claim
of contractual privilege, and (3) it appears that the arbitral interpretation of the contract

will resolve both the unfair labor practice issue and the contract interpretation issue in a

manner compatible with the law. Natick School Committee, 11 MLC 1387, 1395-96
(1985).

The Board policy is to effectuate, wherever possible, the intent of Congress
expressed in Section 203(d) of the 1947 Labor Management Relations Act, namely, "final
adjustment by a method agreed upon by the parties is hereby declared to be the desirable
method for settlement of grievance disputes arising over the application or interpretation

of an existing collective-bargaining agreement." Dubo Mfg. Corp., 142 NLRB 431, 432

(1963). In order to follow the congressional intent, the Board recognizes existing
arbitration awards and has even required parties to use that method before utilizing the
Board’s process of resolving issues. Id. It would frustrate the intent expressed by
Congress if the Board were to now allow the use of the Board's processes to enable the
parties to avoid their contractual obligations as interpreted by the court.” Id.

In the Romeo case, the parties’ utilized the grievance process, the Department of
Labor Relations properly deferred the case to arbitration, and ultimately an Arbitrator
made a decision based on the evidence presented. Therefore, the grievance and
arbitration procedures were fairly and properly applied to the matter.

Finally, the result of the grievance and arbitration procedure is not repugnant to
150E. The NLRB has announced that it will defer to arbitration awards so long as “the
contractual issue is factually parallel to the unfair labor practice issue, and...the arbitrator
was presented generally with the facts relevant to resolving the labor practice.” Olin
Corp., 268 NLRB No. 86, 115 LRRM 1056, 1058 (1984). In deciding whether an award

is “clearly repugnant” to the Act, the Board will defer even if the award is totally

inconsistent with NLRB precedent. Id. Only if the award is “palpably wrong” will the
NLRB not defer. Id.

In the past when the Commission has denied a motion to defer to arbitration, like
in Town of Ware, 17 MLC 1565 (1991), the reason for the denial was because the Town
completely opposed utilizing the arbitration process at all. As a result, the Commission
could not defer to an arbitration process, which has been enjoined. Id. at 1567. So, the
Commission stated, “as long as the Town refuses to participate in arbitration it is unlikely
that the grievance arbitration process can resolve this dispute between the parties.” Id.

The Arbitrator ruled on the issue of Officer Romeo’s disparate treatment and
severity of the discipline by awarding him with back pay and issuing a warning instead of
upholding the termination. At the arbitration, the Union argued that the termination of
Romeo was inconsistent with the commitment to progressive discipline. Winthrop Police
Local 421 v. Town of Winthrop, Massachusetts., No. 01-15-0002-6830 (AAA, Feb. 28,
2016). Furthermore, the Charging Party mentioned how the discipline against Officer
Romeo was inconsistently imposed on other officers who were previously found to be
AWOL and untruthful. Id. at 18.

For the reasons mentioned above, the Respondent, Town of Winthrop,
respectfully opposes the Charging Party, Ferruccio Romeo’s, Motion for Revival of the
unfair labor charge. The unfair labor practice charge was resolved within reasonable
promptness by the grievance-arbitration process, the procedures were fair and regular,
and the result was not repugnant to G.L.c.150E. The Arbitrator awarded Officer Romeo

lost wages and benefits in addition to reversing his termination to a warning letter. In

conclusion, the unfair labor charge was already addressed, decided, and remedied through

the arbitration process.

Dated: March 28, 2016

Respectfully submitted,

TOWN OF WINTHROP

By their attorney, L

HoWatd Greenspan, (BBO# 210420)
200 Broadway Suite 304

Lynnfield, MA 01940

Phone: (781) 598-4545

Fax: (781) 598-4579
hgreenspan@greenspanlawyers.com

CERTIFICATE OF SERVICE

A copy of the foregoing Motion By The Town Of Winthrop To Extend The Time To
Respond To The Notice To Revive has been sent via U.S. Mail, postage pre-paid this 28"
day of March, 2016 to Thomas P. Fowler, Esq., Lichten%& Liss-Riordan, P.C., 729
Boylston Street, Suite 2000, Boston, MA 02116.

/

Howard L. Greenspan