City of Somerville v. Somerville Municipal Employees Ass'n, 80 Mass. App. Ct. 686

Background

Pefine, a non-civil service employee, worked in a two-person clerical office under a CBA between the city and the association.
Pefine repeatedly performed duties of her higher-paid civil service coworker, Pickett, when Pickett was absent, and received out-of-grade pay under Article XX, §7 of the CBA prior to 2008.
Since February 2008, the city denied out-of-grade pay requests for Pefine for work performed in Pickett’s position, prompting the association to file a grievance that proceeded to arbitration.
The arbitrator ruled in the association’s favor, remanding remedy to the parties, and the Superior Court denied the city’s motion to vacate the award.
The central legal question is whether the arbitrator’s award requiring out-of-grade pay violated G. L. c. 31 §71 or otherwise exceeded his powers.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the arbitrator’s award violate civil service law by compensating for service in a civil service position?	Pefine was not in a civil service position and thus §71 prohibits such compensation.	The CBA authorizes out-of-grade pay for fill-in work and can be harmonized with civil service law.	No conflict; award upheld; no civil service violation.
Did the arbitrator exceed powers by enforcing out-of-grade pay when it conflicts with civil service appointment requirements?	Argues the award would circumvent appointment procedures and violate §71.	The award falls within arbitration of CBA terms and does not force improper appointments.	Arbitrator did not exceed powers; award within scope of CBA.
Is Article XX §7 compatible with G. L. c. 31 §71 when Pefine filled in for a civil service coworker?	§71 prohibits payment for service in a civil service position absent roster; Pefine was not appointed to a civil service position.	Article XX §7 operates within the CBA and does not contradict §71 because it addresses temporary fill-ins.	No §71 violation; terms harmonizable with civil service law.

Key Cases Cited

Fall River v. AFSCME Council 93, Local 3177, AFL-CIO, 61 Mass. App. Ct. 404 (Mass. App. Ct. 2004) (strong public policy favoring arbitration in public employment disputes; conflict only where statutes are violated by award)
Fall River v. AFSCME Council 92, Local 3177, AFL-CIO, 61 Mass. App. Ct. 409 (Mass. App. Ct. 2004) (no conflict where provisional employee rights are balanced with civil service rules)
Somerville v. Somerville Mun. Employees Assn., 451 Mass. 493 (Mass. Supreme Judicial Ct. 2008) (reading civil service and collective bargaining as harmonious; arbitration favored)
Dedham v. Dedham Police Assn. (Lieutenants & Sergeants), 46 Mass. App. Ct. 418 (Mass. App. Ct. 1999) (CBAs do not trump civil service provisions when there is direct conflict)
G. L. c. 31 § 71 case law references, (various) (N/A) (statutory prohibitions on paying for civil service service absent roster; distinguishes appointments and temporary fill-ins)
Somerville v. Somerville Mun. Employees Assn., 20 Mass. App. Ct. 594 (Mass. App. Ct. 1985) (violations occur when arbitrator encroaches on civil service appointment procedures)
Secretary of Admin. v. MOSES, 408 Mass. 837 (Mass. 1990) (limits of combining civil service law with administrative agency actions)
Mayor of Lawrence v. Kennedy, 57 Mass. App. Ct. 904 (Mass. App. Ct. 2003) (vacancy and appointment concepts in civil service context)
Callanan v. Personnel Administrator for the Commonwealth, 400 Mass. 597 (Mass. 1987) (defines original vs promotional appointments and vacancy prerequisites)
Eastham v. Barnstable County Retirement Bd., 52 Mass. App. Ct. 734 (Mass. App. Ct. 2001) (temporary appointments duration considerations)
Boston v. Boston Police Superior Officers Fedn., 52 Mass. App. Ct. 296 (Mass. App. Ct. 2001) (emergency appointments duration and requirements)
Sholock v. Civil Serv. Comm’n., 348 Mass. 96 (Mass. 1964) (principles on civil service and competitive merit)