8 Mass. App. Ct. 58 | Mass. App. Ct. | 1979
In May of 1974, the plaintiff school committee of Holyoke (school committee), and the defendants, the members of the Holyoke Teachers’ Association (teachers), entered into a contract concerning the employment of teachers in the city of Holyoke. The contract was the result of collective bargaining and was in effect from January 1,1974, through June 30,1976. It provided, inter alia, that the school committee would contribute sixty-five percent of the teachers’ health insurance premiums. In late June of 1975 the mayor of Holyoke notified the city treasurer to reduce the contributions to fifty percent, because the city had never accepted the provisions of G. L. c. 32B, § 7A. The mayor also notified the school superintendent, and, as of July 1,1975, the contributions were reduced to fifty percent. As a result of this reduction the teachers commenced grievance proceedings pursuant to the collective bargaining agreement, and after a hearing the arbitrator found in the teachers’ favor, ordering that the school committee reimburse the teachers the fifteen percent additional contribution they had bargained for but not received from July 1, 1975, through June 30, 1976.
We dispose of a procedural issue raised by the teachers before reaching the merits of the matter. The school committee timely filed its application to vacate the arbitrator’s award, G. L. c. 150C, § 11(b), but it did not serve the teachers pursuant to Mass.R.Civ.P. 4, as amended, 369 Mass. 997 (1976), until almost seven months later. Because of the delay in service the teachers moved to dismiss the application under Mass.R.Civ.P. 12(b)(4) and (5), 365 Mass. 755 (1974) (insufficiency of process and insufficiency of service of process), and Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974) (failure to prosecute). The judge denied the motion; the teachers now argue that the application should have been dismissed as matter of law.
Although the comparable Federal rules, Fed.R.Civ.P. 4 and 41(b), are not identical in language, they obviously share the identical purpose and intent. Federal case law regarding dismissal due to a delay in service or a failure to prosecute provides pertinent instruction (see Martin v. Hall, 369 Mass. 882, 884 [1976]), and it establishes the principle that a dismissal under either rule 4 or rule 41(b) is a matter within the sound discretion of the judge. When there is a delay in service of the summons, a judge under rule 4 is to be guided by the circumstances of each case, absent a specific directory or mandatory rule. See e.g., Rule 28 of the United States District Court for the District of Maine (1977). Fed.R.Serv., Federal Local Court Rules (Callaghan & Co., 1979) (if process has not been served within three months of the commencement of the action, the clerk notifies the plaintiff that the action shall be dismissed if the defendants are not served within the next thirty days). The mere passage of time does not require a dismissal (Ashland Oil & Ref. Co. v. Hooker Chem.
Turning now to the substantive issue of the appeal, we are faced with the question whether the arbitrator exceeded his powers when he awarded the teachers reimbursement in the amount equal to the difference between the sixty-five percent contribution called for by the agreement and the fifty percent premium payment actually made. Whether the arbitrator exceeded the scope of his powers is an issue always open for review (Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 467 [1976]; School Comm. of West Springfield v. Korbut, 373 Mass. 788, 792 [1977]), but that review is confined to the award itself because, in the absence of fraud, the manner in which the arbitrator reached the decision is of no relevance. Trustees of the Boston & Me. Corp., v. Massachusetts Bay Transp. Authy., 363 Mass. 386, 390 (1973). Korbut, supra at 793.
There is no question that the sixty-five percent contribution was improper. The teachers argue that the payment of health insurance premiums is a legitimate item for inclusion in collective bargaining agreements, and they rely upon Kerrigan v. Boston, 361 Mass. 24, 28 (1972), and Brooks v. School Comm. of Gloucester, 5 Mass. App. Ct. 158, 160 (1977). However, there is nothing in either of those cases to suggest that a governmental unit agreeing to make premium payments can do so in violation of G. L. c. 32B.
General Laws c. 149, § 1781, as well as the agreement,
The teachers argue that the award is one for money damages due to two violations of the agreement and is not an order to perform an illegal act. The two violations they cite are the reduction in the contribution percentage and the school committee’s failure to attempt to secure acceptance of § 7A by the board of aldermen.
In regard to the first issue, money damages could not be awarded to the teachers on the basis of the school committee’s action in reducing its contributions to the insurance premiums. The school committee could not legally contribute more than fifty percent, and the arbitrator could not order it to commit an illegal act. It would be anomalous to award damages to the teachers because the school committee would not violate the law. "[A]n arbitrator has no power to make an award which requires a municipality to pay funds for a purpose for which municipal funds may not be expended.... We do not suggest that no award could be made in these circumstances .... The problem here is that damages were awarded for a purpose for which public funds could not be expended.” Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. at 467-468.
The second basis that the teachers cite for an award of money damages is the school committee’s failure to abide by that phrase of the agreement which required it to "take such other action as may be necessary in order to
Because the arbitrator could neither order the school committee to pay the contributions nor award damages which would have the effect of contravening the declared municipal policy of the city of Holyoke, he exceeded the scope of his powers, and his award was properly vacated.
Judgment affirmed.
The city had still not accepted G. L. c. 32B, § 7A, as of the expiration date of the contract, June 30, 1976.
Counsel for the school committee filed an affidavit in opposition to the teachers’ motion in which he stated that when he filed the application he misunderstood advice received from the clerk’s office and believed that notice to the teachers was sufficient and service by summons was not required. He contacted the teachers’ attorney and advised him of the filing of the application. He also mailed him a copy of the application. There is nothing in the record to indicate that the teachers dispute the facts set forth in this affidavit.
The sixty-five percent contribution had been made since 1971, as it was also part of the prior collective bargaining agreement between the parties.
The collective bargaining agreement states, "The arbitrator shall be without power or authority to make any award which requires the commission of an act prohibited by law.”
This is not to say that a school committee or like body could not obligate itself in a collective bargaining agreement to use its best efforts to persuade the appropriate governing body to accept § 7A, provided that it were clear that no consequences would attach to the failure by a school committee or like body to achieve the desired result. The school committee can be an advocate for, but not the guarantor of, the adoption of a municipal policy.