383 Mass. 791 | Mass. | 1981
The plaintiff as employer sued to vacate an arbitrator’s award under a collective bargaining agreement, and the defendant union counterclaimed to confirm the award. See G. L. c. 150C, §§ 10, 11. The arbitrator awarded “allied service credit” to Anthony M. Iacozza, a probation officer, and the Superior Court confirmed the
The facts found by the arbitrator are not in dispute. Iacozza, the grievant, was appointed on May 12, 1978, as a temporary probation officer for the Superior Court in Bristol and Barnstable counties. He had worked as a counselor for the Boston Youth Activities Commission, and at least two court officials had discussed with him “allied service credit” for that work. See G. L. c. 276, §§ 83, 99B (3), authorizing such credit. Under the Court Reorganization Act, effective July 1, 1978, the appointment became subject to review by the plaintiff. G. L. c. 211B, §§ 8, 9, inserted by St. 1978, c. 478, § 110. G. L. c. 276, § 83, as amended by St. 1978, c. 478, § 290. The grievant was appointed a temporary probation officer on November 28, 1978, with a retroactive hiring date of July 24, 1978. On June 28, 1979, he was recommended for permanent appointment as a probation officer for Bristol County, and on November 26, 1979, the plaintiff approved the permanent appointment but denied the grievant’s request for allied service credit. Meanwhile, on August 21, 1979, the plaintiff and the defendant entered into a collective bargaining agreement for the period from July 1, 1978, to June 30, 1981. Before July 1, 1978, it had been the practice for the Superior Court committee on personnel to grant such credit at its discretion, but the practice ended on June 30, 1978.
The arbitrator ruled as a threshold matter that the grievance dealt with compensation rather than appointment and was therefore arbitrable. On the merits, he found that a practice of giving credit for allied service existed before July 1, 1978, sufficient to ensure that the grievant would have received such credit if the plaintiff had not terminated the practice. The practice was clearly stated and understood, maintained over a reasonable time, and accepted by both parties, and it could not be terminated unilaterally. There had been no negotiations about the practice. Hence
The collective bargaining agreement, art. V, § 5.01, defines a “grievance” as “a written dispute concerning the application or interpretation of the terms of this agreement.” Article V, § 5.04, provides for arbitration of grievances, and adds, “The arbitrator shall have no power to add to, subtract from, or modify any provision of this Agreement or to issue any decision or award inconsistent with applicable law or which interfers [sic] in any way with normal operations of the courts.” Article XXVI, §§ 26.01-26.03, under the caption “Entire Agreement,” is an “integration” or “zipper” clause, and is set forth in the margin.
Under art. XVI, “Management Rights,” § 16.01, appointment of personnel is a right “vested exclusively in the Employer.” Compensation of probation officers, however, is governed by art. X, § 10.01, and by Schedule A, setting
Once it is decided that a matter is arbitrable, we do not decide the merits. See School Comm. of Southbridge v. Brown, 375 Mass. 502, 504 (1978), and cases cited. The arbitrator’s opinion here manifests fidelity to his obligations; he did not “dispense his own brand of industrial justice.” His award “draws its essence from the collective bargaining agreement.” See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960); Morceau v. Gould Nat'l Batteries, Inc., 344 Mass. 120, 124-125 (1962). Our conclusion is not affected by the “zipper” clause, art. XXVI. That clause does not prevent interpretation and application of the agreement in accordance with past practice. Shippensburg Area Educ. Ass’n v. Shippensburg Area School Dist., 42 Pa. Commw. Ct. 128, 133-134 (1979). See Gilman, Past Practice in the Administration of Collective Bargaining Agreements in Arbitration, 4 Suffolk U.L. Rev. 689, 705 n.61 (1970); Restatement (Second) of Contracts
Judgment affirmed.
“Article XXVI. Entire Agreement. Section 26.01. This Agreement, upon ratification, constitutes the complete and entire Agreement between the parties and concludes collective bargaining for its term. No amendment to this Agreement shall be effective unless in writing, ratified, and executed by the parties.
“Section 26.02. The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subj'ect or matter not removed by law from the areas of collective bargaining, and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and the Union, for the duration of this Agreement, each voluntarily and unqualifiedly waives the right, and each agrees that the other shall not be obligated to bargain collectively with respect to: A. Any subjects or matters referred to or covered in this Agreement, or B. Any subjects or matters not referred to or covered in this Agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.
“Section 26.03. The provisions of this Article may be waived by written mutual agreement of the parties.”
Section 242 of the Restatement is to be renumbered § 216 when Restatement (Second) of Contracts is published, probably in 1981.