40 Mass. App. Ct. 367 | Mass. App. Ct. | 1996
The selectmen of the town of Seekonk on August 26, 1991, eliminated the position of captain of firefighters and demoted the plaintiff, Thomas Thibodeau, then captain, to the rank of lieutenant. The plaintiff asserted that the demotion was ineffective because the town had not fol
To begin, the plaintiff was a “call” firefighter in the town from 1964 to 1970, when he became full time. He later attained the rank of lieutenant, and in November, 1987, was promoted to captain. On August 26, 1991, the town’s board of selectmen, following discussion of reducing expenses of the force, ordered the plaintiff “demoted” to the rank of lieutenant.
General Laws c. 32, dealing with “Retirement Systems and Pensions,” provides in § 16(2) (text in Appendix) that the “removal or discharge” of any member in service in group 4 (comprising firefighters) who is less then fifty-five years old but has completed twenty years or more of creditable service (the plaintiff’s situation) “shall not become effective unless and until a written notice thereof containing a fair summary of the facts upon which such action was based” has been filed with the (local) retirement board. This filing initiates an administrative procedure of hearing, if requested, and findings and decision. “Unless the board shall find that such removal or discharge was justified, such member shall forthwith be restored to his office or position without loss of compensation.”
The town, assuming that “demotion” was distinct and different from the statutory “removal or discharge,” chose not to file the fair summary commencing the § 16(2) proceeding. The plaintiff had a contrary view of the statute and on
The plaintiff’s action in Superior Court under c. 30A followed on November 18, 1993, and the administrative record was certified. While the action was pending, the Supreme Judicial Court on February 8, 1994, decided an appeal of the very Attleboro case. The court now settled authoritatively that demotion was a removal within the meaning of c. 32, § 16(2). Retirement Bd. of Attleboro v. School Comm. of Attleboro, 417 Mass. 24 (1994). The court wrote in part:
“The word ‘removal’ in § 16(2) is superfluous in conjunction with the word ‘discharge’ unless ‘removal’ means something less than a complete termination of the employment relationship. We see no reason, moreover, why the Legislature would intend to make a distinction in § 16(2) in available procedural protections between a discharge from all employment and a demotion. For the purposes of protecting retirement benefits, an unwarranted demotion to a lower-paying job is different only in degree from an unwarranted firing of an employee. In each instance, if not reversed, the challenged employment decision can adversely affect the level of the employee’s retirement benefits.”
In the present action, the Superior Court judge of course followed the Attleboro case. He allowed the plaintiff’s motion for judgment on the record and on June 20, 1994, entered an (amended) judgment declaring that the plaintiff’s removal from his position as captain had not become effective and ordering him restored in that position without loss of compensation and benefits.
The town now tries to find a possible means of escape from the impasse created by the final Attleboro disposition.
1. The town says that the Attleboro ruling leaves room for interpreting § 16(2) so as not to apply to cases where demotion (or any removal or discharge) has been occasioned by economic need: in this case, says the town, the demotion was intended in a time of stringency to save the town some $8,000 in the plaintiff’s annual salary.
The text of § 16(2) admits of no such exclusion or exception, nor does the final opinion in Attleboro intimate any. It would be out of keeping with the whole pattern of § 16(2) to allow a town or other entity to decide on its own that the particular case was within the supposed exclusion, and thereupon to avoid the statutory procedure. Rather, the town should present the fair summary and, if requested, prove its claimed justification. Relevant economic exigency may well serve to justify, cf. Shaw v. Selectmen of Marshfield, 36 Mass. App. Ct. 924, 925-926 (1994), but this is to be shown under § 16(2), not presumed to exist because of the town’s own say-so.
2. The town notes that the plaintiff’s union “grieved” the question of the plaintiff’s demotion under its collective bargaining agreement with the town. This, says the town, should preclude the plaintiff from any resort to the procedure and remedy of § 16(2).
“Upon hearing your arguments on behalf of your grievance, the Board [of Selectmen] unanimously voted to deny the grievance. It is their opinion that the elimination of the position of Captain is not an action that requires collective bargaining negotiations and therefore is not a violation of any provision of the collective bargaining agreement.”
The town was taking the view — evidently the correct view — that the elimination of a position, unrelated to the employee’s performance or conduct, was not a grievable matter; rather it lay within the town’s management prerogative, as described in art. 1, § 3, the usual reservation of “Management Rights.”
The town cites G. L. c. 150E, § 8, see appendix, post. The second sentence of § 8 allows for a possible override of § 16(2) (among other statutes), but only when the contract contains no grievance procedure specifying arbitration and the employee wants and chooses to bypass the statute. If the first condition may conceivably be deemed met here because grievance provisions, although present in the contract, did not apply to abolition of a position, the second condition is not met. The third sentence of § 8, if at all applicable, also depends on employee’s election.
In further discussion of the foregoing two points, the town refers to teacher-dismissal practice. We respond in the margin.
3. Affirmance of the judgment appealed from, restoring the plaintiff to his position of captain, does not mean that he is entitled to hold that position without limit of time. Thus, if at
“Without waiving any rights, the Town on July 27, 1993 [twelve days after' the magistrate’s decision for the plaintiff] filed with the Bristol County Retirement Board a document summarizing or clarifying the basis of its decision to eliminate the plaintiffs position and demote him to the next lowest rank of Fire Lieutenant.”
The brief filed on behalf of BCRB states that it had “recently” held a “justification hearing” regarding the plaintiffs demotion, but no details were provided.
The late resort by the town to § 16(2) cannot result in validating the plaintiffs demotion retroactively to any earlier date than July 27, 1993. It may, however, have consequences for the subsequent period in regard to the plaintiffs status and entitlement to compensation and benefits. Accordingly, the case will be remanded to the Superior Court to hear the parties on this matter and to take any useful measures to speed the conclusion of the controversy.
The judgment is affirmed, and the case is remanded to the Superior Court for consideration as indicated in this opinion.
So ordered.
Appendix.
General Laws c. 32, § 16(2), as amended through St. 1982, c. 630, § 21, provides in full: “The removal or discharge of any member in service clasr sifted in Group 1, Group 2 or Group 4 who has attained age fifty-five and has completed fifteen or more years of creditable service, or any member so classified who has not attained age fifty-five but who has completed twenty or more years of creditable service, or any such member who is a veteran and has completed ten or more years of creditable service, shall not become effective unless and until a written notice thereof containing a fair summary of the facts upon which such action was based has been filed with the board. The procedure set forth in subdivision (1) [providing such notice to the employee as well] relative to delivery of copies, statement of service thereof, notice, hearing if requested, and the filing of a certificate of findings and decision, so far as applicable, shall apply to all proceedings involving such removal or discharge. Unless the board shall find that such removal or discharge was justified, such member shall forthwith be restored to his office or position without loss of compensation.”
General Laws c. 71, § 42, as amended through St. 1972, c. 464, § 2, provided in part at the time of the Boston Teachers Union, Haskell, and Martin teachers’ cases: “[A] teacher ... or superintendent employed at discretion [i.e., with tenure, see G. L. c. 71, § 41] under section forty-one . . . shall not be dismissed, except for inefficiency, incapacity, conduct unbecoming a teacher . . . , insubordination or other good cause, nor unless at least thirty days, exclusive of customary vacation periods, prior to the meeting at which the vote is to be taken, he shall have been notified of such intended vote; nor unless, if he so requests, he shall have been furnished by the committee with a written charge or charges of the cause or causes for which his dismissal is proposed; nor unless, if he so requests, he has been given a hearing before the school committee which may be either public or private at the discretion of the school committee and at which he may be represented by counsel, present evidence and call witnesses to testify in his behalf and examine them; nor unless the charge or charges have been substantiated; nor unless, in the case of a teacher . . . the superintendent shall have given the committee his recommendations thereon. The change of marital status of a female teacher or superintendent shall not be considered cause for dismissal under this section. Neither this nor the preceding section shall affect the right of a committee to dismiss a teacher whenever an actual decrease in the number of pupils in the school of the town renders such an action advisable” (emphasis added).
General Laws c. 32, § 16(5), as amended through St. 1985, c. 188, § 9, provides in part: “The provisions of this section [c. 32, § 16] relative to the right of any member to a hearing or to the right of review by the district
Attleboro Retirement Board & another vs. Attleboro School Committee & another, Bristol County Superior Court, No. 91-01721 (May 12, 1992).
As BCRB’s brief indicates, the notice to the local board under § 16(2) serves important record-keeping and other administrative functions in the retirement and pension system regardless of the cause of a demotion or the like.
We consider the town’s defense on these lines although it appears to have been abandoned. There was reference to the bargaining contract and possible preclusion in the material before DALA, but the administrative magistrate ignored any such defense and rested on her interpretation of § 16(2). Besides a passing reference to the DALA record, the town did not
The record indicates that the union complained to the Labor Relations Commission about the town’s failure to bargain before eliminating the position of captain. The commission agreed with the town: “It is well established that the decision to eliminate a position is a level of services decision within the exclusive management prerogative of the employer, and the employer need not bargain about such a decision. See School Committee of Newton v. Labor Relations Commission, 388 Mass. 557, 564 (1983).”
1. Contending that it need not comply with § 16(2) upon its own unilateral assertion that the demotion was due to economic need, the town points out that a school committee need not afford a teacher notice and hearing when his or her dismissal is occasioned by a reduction in force. This, however, came about through explicit provision in G. L. c. 71, § 42, whereby the teacher had no entitlement to continued employment, no property right in the job. See Martin v. School Comm. of Natick, 395 Mass. 461, 466 (1985). See also Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197, 215 (1982); Haskell v. School Comm. of Framingham, 17 Mass. App. Ct. 628, 631 (1984). We are not aware of any counterpart statute or doctrine applicable to the present case.
It may be noted that legislation of 1985 amending G. L. c. 32, § 16(5) (Appendix), cut back on the possible recourse of senior teachers to § 16(2). The details in the complex of teachers’ statutes need not be pursued.
2. The teacher cases go no further than to suggest that, where the collective bargaining agreement makes certain disputes grievable and arbitrable, the union’s taking the grievance route in such a dispute may preclude it from recourse to a statutory alternative. See Martin v. School Comm. of Natick, 395 Mass. at 467-469 & n.10. Compare Fogarty v. School Comm. of Palmer, 15 Mass. App. Ct. 1008, 1008-1009 (1983). We need not examine whether the suggested teacher preclusion derives from G. L. c. 150E, § 8, for, as we have seen, the grievance procedure in the firefighters’ contract did not apply to the abolition of the position of captain resulting in his demotion.