Nina Pattison vs. Labor Relations Commission (and a companion case)
Case Details
- Citation
- 30 Mass. App. Ct. 9
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Labor Relations Commission found the union breached its duty of fair representation by discriminatorily and arbitrarily failing to process the employee's grievance; Pattison prevailed on the DFR claim and is entitled to back-pay damages subject to offset, but the Commission properly dismissed her separate complaint against the employer for alleged bargaining violations as she lacked standing to bring it independently of her union representative.
Excerpt
Nina Pattison vs. Labor Relations Commission (and a companion case). Nos. 89-P-383 & 89-P-384. Suffolk. September 13, 1990. January 24, 1991. Present: Dreben, Kaplan, & Porada, JJ. Labor Relations Commission. Labor, Fair representation by union, Collective bargaining, Damages. Damages, Fair representation by union. Contract, Collective bargaining contract. In a proceeding before the Labor Relations Commission on an employee’s charge of prohibited practice under G. L. c. 150E, § 10 (¿0(1), against a union alleging breach of its duty of fair representation, the commission was warranted in concluding that the union had failed to give equal representation to all members of the bargaining unit and that the union had acted arbitrarily in handling the employee’s grievance. [15-17] In a proceeding before the Labor Relations Commission in which an employee established that a union, as her collective bargaining representative, had breached its duty of fair representation in that it failed arbitrarily to press a grievance on her behalf, the commission, in determining whether the employee was entitled to material relief, properly adopted the policy that the employee must first establish that the grievance was not clearly frivolous and that the burden then shifts to the union to demonstrate that the employee could not have succeeded if arbitration had taken place; in the circumstances, where the record showed confusion as to this rule on burdens of proof, the union, on remand, was to be afforded an opportunity to offer additional evidence. [17-21] Where an order of the Labor Relations Commission awarded back pay damages to an employee against a union which, as her collective bargaining representative, had failed arbitrarily to press a grievance against her employer for wrongful termination, the union’s responsibility was to be mitigated by any amount recovered from the employer, either by arbitration or by a court action in the employee’s name. [21-23] In a proceeding before the Labor Relations Commission, an employee, acting separately from her exclusive collective bargaining representative, did not have standing to charge her employer with a prohibited practice under G. L. c. 150E, § 10 (a)(5) & (6), for alleged failure to carry out a collective bargaining obligation. [23-24] Appeals from a decision of the Labor Relations Commission. Alan J. McDonald for Nina Pattison. Jean Strauten Driscoll for Labor Relations Commission. David F. Grunebaum for the employer. Robert M. Schwartz for Quincy City Employees Union, H.L.P.E. Quincy City Employees Union, H.L.P.E. vs. Labor Relations Commission. Kaplan, J. On March 18, 1985, Nina Pattison, a public employee serving at the Quincy City Hospital as director of volunteer services, received a letter from Margaret Corbett, on behalf of the employer Hospital, “terminating” her. She wished to “grieve” her dismissal but, she asserts, her relevant collective bargaining agent, Quincy City Employees Union, H.L.P.E, failed arbitrarily to press the grievance on her behalf and ultimately to request arbitration, thus encompassing violations of its duty of fair representation (DFR). In undertaking litigation, Pattison would have done well to seek a forum that would allow her to join both the union and the employer, for those parties putatively committed related wrongs. The decisional law in 1985, before the ruling in Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341 (1987), left unsettled (and largely unthought of) the question whether or to what extent the Labor Relations Commission (Commission) had “primary jurisdiction” in DFR cases. So Pattison’s attorney might have considered choosing between starting an action in Superior Court and bringing charges before the Commission. There would be little difficulty in joining the two parties in the court action. Attempting to charge both in Commission proceedings would encounter difficulties, as will appear. Pattison’s counsel chose the Commission route. On August 29, 1985, Pattison filed a charge of prohibited practice under G. L. c. 150E, § 10(b)(1), against the union by reason of its breaches of DFR (Charge MUPL-2883). Recognizing, apparently, that an employer’s breach of a “just cause” provision of a labor contract is not itself cognizable as a prohibited practice under the statute, Pattison, with some ingenuity, attempted instead to charge the employer with a prohibited practice under G. L. c. 150E, § 10(a)(5) and (6) for failing to carry out an alleged collective bargaining obligation. This was framed as an obligation to refrain from changing unilaterally the terms and conditions of employment, including changes in the progressive disciplinary procedures for employees and in the just cause standard for dismissal (Charge MUP-6037). When the Commission proceedings were already under way, as described below, Pattison, for better assurance, on December 31, 1985, did commence an action in Superior Court against the union and the employer; the action remains at issue but has not proceeded further. After investigation, the Commission issued complaints corresponding to the charges (although, as to the collective bargaining complaint, the Commission was doubtful of its own jurisdiction). Initially the Commission ruled that the complaints should be “bifurcated,” but it soon changed its mind and ordered them to be consolidated and tried together. Trial before two Commissioners* occurred in ten installments over a period of eight months, from August, 1986, to April, 1987. On January 24, 1989, the Commission filed its “Decision” upholding the DFR complaint but dismissing the collective bargaining complaint. The union appeals to this court from the former disposition (appeal No. 89-P-384), Pattison from the latter (No. 89-P-383). See G. L. c. 150E, § 11, par. 4. To sum up our views. In No. 89-P-384: (1) Pattison had the full burden to establish that the union discriminated against her or acted with egregious disregard of her rights as a grievant. The Commission’s findings for Pattison on these issues are well supported by substantial evidence, G. L. c. 30A, § 14(7)(e). (2) As to Pattison’s right to a material remedy, burdens of proof are adjusted in the light of the union’s delinquency, which aborted the arbitral process: Pattison had to show that her claim of dismissal without just cause was not clearly frivolous; once she did so, the burden shifted to the union to show that the grievance was clearly nonmeritorious. The Commission’s findings that Pattison made her prima facie showing, and the union failed in its opposition, are also well supported by substantial evidence. (3) Pattison, having thus succeeded on the facts, was entitled to a “provisional make whole remedy” against the union (the only defending party properly before the Commission), that is, recovery for wrongful dismissal, which, however, is subject to offset by the union. Among other things, this may take the form of a division of the liability between the union and the employer. To revert to the point that the union failed in its burden of overcoming a prima facie case, the union has claimed that the policy of the Commission in imposing that burden was not made clear in the course of the hearings, with the consequence that the union was unsure about the weight of the evidence it had to present. Upon a reading of the whole record, we think the complaint is justified, and will therefore remand the case to the Commission if the union expresses an election to offer additional proof. No. 89-P-383: We agree with the Commission’s dismissal of the complaint. Pattison, as employee, could not complain of the alleged bargaining violation on the part of the employer. No. 89-P-384 — Duty of Fair Representation (1) Union’s violations. From the inordinately extended record, the Commission has abstracted the following statement, which we consider to be a fair summary of the basic facts. “Nina Pattison was hired on or about August 14, 1984, as the Director of Volunteer Services at Quincy City Hospital. Her duties were to direct and administer the Hospital’s program of volunteer services, including recruiting, orienting, assigning, supervising and evaluating volunteer workers. Her direct supervisor, Margaret Corbett, became dissatisfied with Pattison’s progress in recruiting new volunteers, organizing a program to orient volunteers to the Hospital, and decentralizing the volunteer program. In weekly meetings with Pattison, Corbett discussed these problems and finally met with Pattison and Corbett’s supervisor, Doris Sincevich, the Director of Nursing, in January of 1985 about Pattison’s progress. After Corbett failed to see sufficient improvement in Pattison’s performance, Corbett recommended to Sincevich in March, 1985, that Pattison be terminated. Early in March Corbett met with Pattison, told her she was considering Pattison’s termination, and asked her to think about resigning. The following day Corbett told Pattison that she was going to recommend to the Director of Human Resources, James Tzamos, that Pattison be terminated unless she agreed to resign. Corbett did so and her recommendation that Pattison be terminated for poor performance was accepted. During the meeting between Tzamos and Corbett, Tzamos noted that Pattisori’s probationary period had already expired and stated that they would have to discuss the termination with the Union. “The Hospital’s disciplinary guidelines provide a progressive system for discipline based on ‘poor performance,’ beginning with a verbal warning, then a written warning, then a suspension and finally termination. Pattison had not received either a formal written warning or a suspension before she was terminated. “Corbett and Tzamos met with a Union representative and told her that Pattison was to be terminated and that she had been employed for several days beyond the six-month probationary period. The Union representative told Corbett and Tzamos that there could be a problem, and also informed the Union steward of the discussion. “On March 8, 1985, Corbett and Tzamos met with Pattison and notified her that she was being terminated. Pattison subsequently received a letter of termination from Corbett on March 18. On March 11, Pattison had telephoned the Union’s office and spoke with John Keefe, the Executive Director. After hearing that she had not received any written warnings, Keefe told her that he thought he could get her reinstated if she wanted her job back. Pattison told Keefe she was uncertain about that, but Keefe said he would check into her case and get back to her. When Keefe called her back, he told Pattison he could find no record of her being a dues-paying member, and asked her to call the Hospital payroll department and-see what she could find out. Pattison found out that no union dues had been deducted from her paychecks, and she tried to call Keefe back on March 13, 14 and 15, and left messages for him. Keefe never returned her calls and Pattison never spoke with Keefe again about her termination. “After Pattison received the March 18 termination letter from the Hospital, she contacted the Union steward, Dorothy Wassmouth. Pattison told Wassmouth that she wanted to file a grievance about her termination. Wassmouth said, ‘You can file a grievance if we say you can file a grievance, and we’ll get back to you.’ Pattison told Wassmouth that she didn’t know why she was terminated, and Wassmouth said she would check into it. After telephoning Wassmouth several times without reaching her, Patti-son found a recorded message on her answering machine which stated, ‘You have no grievance. As far as we are concerned, you have no grievance. Everything is taken care of, and please don’t call this office again.’ This was Pattison’s last contact with any representative of her Union. “Pattison then contacted an attorney and on his advice delivered a letter to Corbett on March 25 stating that she was grieving the decision to terminate her employment. Pattison sent a copy of the letter to Keefe, with a cover letter requesting the Union’s assistance in processing the grievance and asking for a copy of the current collective bargaining agreement. On April 2, Pattison, having had no reply from the Employer, wrote to Sincevich that she was now grieving the decision at step two of the grievance procedure. Pattison also sent a copy of this letter to Keefe. After receiving no response at step two, Pattison’s attorney sent a similar letter to the Mayor on April 9, with a copy to Keefe, seeking a step three review. A meeting was eventually held between Pattison, her attorney, Tzamos and the Hospital’s attorney, but the grievance remained unresolved. On June 19, Pattison’s attorney wrote to Keefe requesting [that] he file a demand for arbitration (under the collective bargaining agreement, only the Union could demand arbitration). The Union did not respond and Patti-son’s attorney wrote a second letter on June 27. The Union received both letters but did not reply. The Union did not assist Pattison in processing her grievance and did not file a demand for arbitration.” It will be seen that union help to Pattison in forwarding her grievance stopped with the revelation that she was (unwittingly, as it turned out) not on the union roll. The Commission drew an inference of cause and effect and held that Pattison had carried her burden of demonstrating that the union was in breach of its DFR, for it is a discriminatory and illegal act for a union to fail to give equal representation in grievance and other matters to all members of the bargaining unit regardless of their union allegiance. See G. L. c. 150E, § 5, inserted by St. 1973, c. 1078, § 2: “The exclusive representative . . . shall be responsible for representing the interests of all such employees [those in the unit] without discrimination and without regard to employee organization membership.” See also Leahy, 399 Mass, at 348; Carbone v. School Comm. of Medford, 12 Mass. App. Ct. 948 (1981). The Commission likewise upheld Pattison in her submission that, putting the question of discriminatory motive to one side, the union was arbitrary — perfunctory or worse — in handling her grievance, and this likewise encompassed a violation of DFR. See Graham v. Quincy Food Serv. Employees Assn. & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 606 (1990); Trinque v. Mount Washington Community College Faculty Assn., 14 Mass. App. Ct. 191, 199 (1982). The Commission acknowledged that the level of proficiency required of union management is not an exalted one; it tolerates honest mistake or simple negligence. See Graham at 606; Trinque at 199; Baker v. Local 2977, State Council 93, Am. Fedn. of State, County & Mun. Employees, 25 Mass. App. Ct. 439, 441 (1988). See also Vaca v. Sipes, 386 U.S. 171, 190 (1967); Amalgamated Assn. of St., Elec. Ry. & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 301 (1971); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-567 (1976); Early v. Eastern Transfer, 699 F.2d 552, 555 (1st Cir. 1983). Here the union’s fault was egregious. The Commission’s decision on both scores seems to us unimpeachable even if we were to attach no significance to the respect that is due to this agency with its accumulated expertness in the field. See Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987); G. L. c. 30A, § 14. See also note 5, supra. The union, with some support from the employer, has offered several possible justifications of its behavior. It sought to establish that Pattison was not in fact a member of the bargaining unit. However, her immediate predecessor in the job, although having a different title, did roughly the same work, and was admittedly a member. Then it was suggested that Pattison held a “managerial” post. But the predecessor’s position was not so characterized, and examination of Pattison’s relation to her superiors also tended to belie the characterization. These contentions have evidently been abandoned on the present appeal. The union tries to demonstrate that Pattison, in pursuing her grievance from step to step without union help, did not follow the timetable prescribed in the collective bargaining agreement, and thus forfeited any claim. Pattison says that in point of fact she did comply with the time requirements. There is evidence, too, that in practice the parties permitted considerable leeway in meeting the formal time limits of the agreement. So also there is ground for belief that the issue of timeliness is not a real one, but is interposed as an afterthought. After her dismissal, Pattison said she was not sure she wanted reinstatement, and she said repeatedly that she wanted to know why she had been fired, wherein her performance had been deficient. The union claims it acted reasonably in taking Pattison at her word and assuming that she was interested in an explanation, but not in a positive remedy. On the other hand, Pattison did proceed to “grieve,” and Wassmouth evinced an understanding that Pattison wanted more than an explanation. The attorney’s final demand upon the union to request arbitration is of course explicit to the same effect. The Commission did not err in rejecting the union’s attempted justifications. (2) Pattison’s right to a remedy. Notwithstanding the union’s breach of DFR, in logic Pattison should not be entitled to material relief if her basic grievance was in fact so weak, her performance on the job so poor, that her chances before a reasonable arbitrator were minimal or hopeless. Accordingly, in light of all the equities, the Commission has here adopted as a policy the proposition that an employee in Pattison’s position must establish that his or her grievance was not clearly frivolous; the burden then shifts to the union to demonstrate that the grievance was clearly without merit, that the employee could not have succeeded if arbitration had taken place. On the present record, the Commission could well decide that Pattison presented a prima facie case of wrongful dismissal. Whether her handling of the difficult and rather amorphous volunteer problem in the short period of her tenure was reasonably adequate, is perhaps open to debate. But it is certain that she was not given the benefit of the hospital’s progressive discipline policy nor furnished with the culminating pretermination written warning. The Commission could also hold that the union on its part did not overcome Pattison’s prima facie case and sustain its burden of countervailing proof. As noted above, the union does seem to have reason for the contention that the ground rule on burdens of proof was left in some confusion during the hearings. In fairness, if the union indicates a wish to offer additional proof, the case will be remanded to the Commission to receive and evaluate it. The Commission’s very policy or ground rule is challenged but appears quite tenable as a determination by the responsible agency with specialized knowledge and experience in the field. The Commission could hold that it would be little short of incongruous to cast on the employee the whole burden of convincing the Commission that he or she would more probably than not have succeeded before a rational arbitrator in the normal course. The opportunity to lay the matter before an arbitrator in the ordinary way has been lost precisely because the union has failed in its duty to represent the employee. Therefore, the union should bear the ultimate risk of uncertainty as to how an arbitrator would have decided the grievance. The Commission’s policy regarding the relative burdens of employee and union accords with that of the National Labor Relations Board (Board) as enunciated in United Rubber, Cork, Linoleum & Plastic Wkrs. of Am., Local 1250 (Mack-Wayne Closures), 290 NLRB No. 90 (July 29, 1988) (Mack-Wayne II). The Board said, discussing the union’s “shifted burde
Similar Rulings
Browse Related
Facing something similar at work?
Court rulings like this one are useful, but every situation is different. Take 2 minutes to see which laws may protect you — it's free, private, and no account is required to start.
This ruling information is sourced from public court records via CourtListener.com. Case outcomes, claim types, and summaries are extracted using AI analysis and may be incomplete or inaccurate. It is provided for informational and educational purposes only and does not constitute legal advice.
See something wrong, or named in this ruling and want it corrected or redacted? Request a correction.