MASSACHUSETTS BAY TRANSPORTATION AUTHORITY vs. LOCAL 589, AMALGAMATED TRANSIT UNION & another.

GREANEY, C.J. This is another in a continuing series of controversies between various unions and the Massachusetts Bay Transportation Authority (MBTA) over the effect on labor agreements of legislation curtailing the MBTA's powers to bargain collectively. Here, Local 589, Amalgamated Transit Union (union), appeals from a judgment entered in the Superior Court vacating an arbitration award in its favor. The underlying dispute concerns the refusal of the MBTA to permit a union member to exercise his dropback rights [Note 1] to return to his former position as an operator after his layoff from an executive position.

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The background of the case may be summarized as follows. The employee was hired by the MBTA as an operator in March, 1970, and was promoted to a management position as an assistant project manager in May, 1973. As an operator, the employee was a member of the Local 589 bargaining unit, and he continued to pay dues to the union, even though his manager's position was on the MBTA's executive payroll and outside the bargaining unit. By letter dated March 4, 1981, the employee was notified that his position as an assistant project manager had been eliminated because of budgetary constraints and that he would be terminated from employment with the MBTA at the end of his scheduled work assignment on March 20, 1981.

By letter dated March 11, 1981, the employee requested that the union permit him to exercise his dropback rights to return to his position as an operator in the bargaining unit. The union voted to allow the employee to drop back. The employee then advised the MBTA of his intention to exercise dropback rights. By letter dated March 20, 1981, the MBTA informed the employee that it would not honor his request because the right to dropback involved an inherent and exclusive management decision.

The MBTA and the union had entered into a collective bargaining agreement which provided for binding arbitration of all grievances. That agreement terminated on December 31, 1980, but it contained a so called rollover provision which made its provisions binding upon the parties "from year to year thereafter unless changed by the parties." The union, invoking the provisions of the collective bargaining agreement, filed a grievance on behalf of the employee which ultimately led to arbitration. At the arbitration the MBTA contended: (1) that the union was prevented by G. L. c. 161A, Section 19A, from representing the interests of an executive employee; (2) that the arbitrator lacked jurisdiction over the dispute because the collective bargaining agreement had expired when the grievance arose; and (3) that, if the agreement was still in effect, the management rights statute (G. L. c. 161A, Section 19) precluded the employee's exercise of dropback rights. That

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statute, which had been amended effective December 8, 1980 (by St. 1980, c. 581, Section 8), a few weeks prior to the termination date of the collective bargaining agreement, provides, in pertinent part, that the MBTA "shall have no authority to bargain collectively and shall have no authority to enter into collective bargaining agreements with respect to matters of inherent management right." The statute defines management right as including, among others, the rights "to direct, appoint, employ, assign and promote . . . employees" and "to develop and determine levels of staffing and training."

By decision dated May 6, 1982, the arbitrator decided that the union had standing to pursue the grievance and that the collective bargaining agreement remained in effect. The arbitrator concluded that the MBTA had violated the agreement by denying dropback rights to the employee, and to other members of the union affected by similar layoffs, subject however to the possibly superseding effect of the management rights statute. The arbitrator ordered that the employee be given a position as an operator and that he receive back pay and lost benefits.

On June 15, 1982, the MBTA commenced an action in the Superior Court pursuant to G. L. c. 231A, seeking a declaration on the three grounds argued before the arbitrator. The union answered and moved to dismiss the action, asserting that G. L. c. 251 governed the arbitration and that "[Sections] 12 and 13 of [c.] 251, which provide for vacating or modifying an award, each require application to the court within 30 days of the delivery of the award" (emphasis original). A judge of the Superior Court denied the union's motion to dismiss. Both the MBTA and the union then moved for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). A second judge, sitting in the Superior Court under statutory authority, concluded that the management rights statute controlled the case and allowed the MBTA's motion. A judgment thereafter entered declaring that the arbitrator's decision had violated G. L. c. 161A, Section 19, and was a nullity. A timely appeal was taken by the union from the judgment. [Note 2]

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1. The union's motion to dismiss, which, as noted, was grounded exclusively on the alleged failure of the MBTA to challenge the award within the thirty-day time limit set forth in Sections 12 and 13 of G. L. c. 251, was properly denied. General Laws c. 251, the Uniform Arbitration Act, applies to commercial arbitration. We think it clear that c. 251 does not apply to a grievance arbitration like this one which arises under a collective bargaining agreement. [Note 3] Indeed, the last sentence of Section 1 of c. 251 expressly provides that the statute does not apply to collective bargaining agreements to arbitrate subject to G. L. c. 150C.

On appeal, the union argues that the MBTA's action must be dismissed because it was not filed within the thirty-day time limitation imposed by G. L. c. 150C, Section 11(b), on proceedings to vacate or modify an arbitration award made pursuant to a collective bargaining agreement. The MBTA responds that, as a political subdivision of the Commonwealth, it is not subject to c. 150C and that, if it is subject to c. 150C its claims, if shown to be late-filed, must still be considered because they demonstrate that the arbitrator lacked jurisdiction, a question which, according to the MBTA, is "always" open.

We think c. 150C applies to the MBTA. Section 1 of c. 150C provides, in reasonably expansive language, that written collective bargaining agreements to arbitrate between labor organizations and employers are valid and enforceable. See Boston Lodge 264, Intl. Assn. of Machinists v. Massachusetts Bay Transp. Authy., 389 Mass. 819, 820 n.1 (1983). The MBTA maintains, however, that because Section 1 of c. 150C, inserted by St. 1959, c. 546, Section 1, specifically refers to G. L. c. 150A, Section 2(5), for the definition of a "labor organization," this court

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must refer to G. L. c. 150A, Section 2(2), as amended through St. 1964, c. 576, Section 2, for the definition of an "employer." The latter provision excludes the Commonwealth and its political subdivisions from the definition of "employer." The obvious difficulty with the MBTA's argument lies in the fact that the Legislature in c. 150C, Section 1, incorporated only the definition of a "labor organization" which appears in c. 150A, Section 2(5), and made no corresponding mention of the definition of the term "employer" in c. 150A, Section 2(2). Had the Legislature intended that the term "employer" in c. 150C, Section 1, be defined in accordance with the definition of that word appearing in c. 150A, Section 2(2), we think it would have expressly said so. Cf. First Natl. Bank v. Judge Baker Guidance Center, 13 Mass. App. Ct. 144, 153 (1982). In keeping with accepted principles of statutory construction, we conclude that the term "employer" in c. 150C, Section 1, is to be given its ordinary meaning, which would include an employer such as the MBTA. See, e.g., County of Middlesex v. Newton, 13 Mass. App. Ct. 538, 542 (1982).

There is also nothing in G. L. c. 161A, the statute governing the MBTA's operations, which indicates a legislative intent to exclude the MBTA's collective bargaining agreements to arbitrate from the coverage of G. L. c. 150C. The MBTA has been expressly given the authority to include in its collective bargaining agreements a grievance procedure which culminates in final and binding arbitration. G. L. c. 161A, Section 19. The management rights statute, which establishes definitive requirements for interest arbitration of MBTA collective bargaining agreements, specifically provides that it does not limit a labor organization's right to submit grievances to arbitration in accordance with the governing collective bargaining agreement. G. L. c. 161A, Section 19C. Chapter 150C merely makes written collective bargaining agreements to arbitrate enforceable and establishes efficient, fair, and uniform procedures for the conduct of arbitration under such agreements and for resolving questions relating to the validity of resulting awards. Since such agreements are not subject to the procedures of G. L.

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c. 161A, Sections 19C through 19G, we perceive no conflict between those provisions and c. 150C. [Note 4]

However, for at least two reasons, we need not decide whether the MBTA's action was time-barred by reason of the thirty-day limitation imposed by Section 11(b) of c. 150C. First, Section 11(b) was not clearly raised in the Superior Court as a basis for dismissing the action, and that statute appears not to have been expressly considered by the judge who passed on the motion to dismiss. [Note 5] In our view, this is not an appropriate case to consider an issue that was not raised and considered below. [Note 6]

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Second, the union had the burden of proving that the MBTA's action was filed more than thirty days after the date of the delivery of the award. [Note 7] There is nothing in the record which establishes the date of the receipt of the award. [Note 8] Since, if the MBTA missed the relevant thirty-day deadline at all, it missed it by only a few days we think it should be given the benefit of the doubt on the issue of the timeliness of its challenge in the absence of proof by the union establishing the critical date of the award's receipt. Cf. Sheahan v. School Comm. of Worcester, 359 Mass. 702, 709-710 (1971). We turn, therefore, to the merits of the MBTA's claims.

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2. (a) Section 19A of c. 161A, inserted by St. 1970, c. 514 makes the provisions of G. L. c. 150A, Section 5, which govern the formation of collective bargaining units, applicable to MBTA employees but specifically excludes from units so formed any "executives." Since the employee here was an executive employee at the time he was laid off, the MBTA contends that the union had no right to represent his interests. We disagree.

The arbitrator determined that the union had standing to file a grievance over this dispute because it was representing the employee with respect to his right to dropback to a position contained within the bargaining unit, for which the union serves as the exclusive representative. The status of that position, in which the union has a direct concern, constituted the core of the arbitration. Moreover, the employee was not an executive employee when he became a member of the bargaining unit pursuant to G. L. c. 150A, Section 5, and he had already been laid off from his executive position when the union represented him in this arbitration. The question whether the employee could retain his union seniority while on a leave of absence to take a management position thus presented a purely contractual issue arising out of the provisions of the collective bargaining agreement, and involving their interpretation, which fell within the scope of the arbitrator's authority. See Boston Lodge 264, Intl. Assn. of Machinists v. Massachusetts Bay Transp. Authy., 389 Mass. at 821. Even if error exists in the manner in which the arbitrator resolved the question, we would, in these circumstances, honor the arbitrator's conclusion that the union had standing to press the grievance. See Greene v. Mari & Sons Flooring, 362 Mass. 560, 563 (1972).

(b) There was, at the relevant times, an existing agreement to arbitrate disputes arising under the collective bargaining agreement. That agreement's rollover provision provided that after the agreement's expiration date all prior provisions of the agreement were to remain in effect until a new agreement should be negotiated. In a similar case, arising subsequent to the 1980 revision of c. 161A, Section 19, the Supreme Judicial Court ordered arbitration of a grievance arising after the collective bargaining agreement had expired but during the period of a

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rollover provision which required the payment of quarterly cost-of-living adjustments during "any period of negotiations." Boston Lodge 264, Intl. Assn. of Machinists v. Massachusetts Bay Transp. Authy., 389 Mass. at 821. As the court stated in that decision, "The fact that the term of a collective bargaining agreement has expired does not mean there can be no duty to arbitrate issues arising out of that agreement, where the agreement includes obligations extending beyond its term and where there is a broadly expressed agreement to arbitrate grievances arising out of that agreement." Ibid. We think this principle applies to the situation before us, where the provisions of the collective bargaining agreement, which incorporated the right claimed by the employee, explicitly extended beyond the agreement's stated expiration date. Accordingly, this grievance, which arose within the first three months of the rollover period, was arbitrable. [Note 9]

(c) The management rights statute does not prohibit the MBTA from complying with the arbitrator's award. That statute is concerned only with interest arbitration and the terms of future collective bargaining agreements and does not prohibit grievance arbitration of disputes arising under valid preexisting agreements. Boston Lodge 264, Intl. Assn. of Machinists v. Massachusetts Bay Transp. Authy., 389 Mass. at 822. See

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Local Div. 589, Amalgamated Transit Union v. Massachusetts, 666 F.2d 618, 640 (1981). This arbitration falls within the latter category. [Note 10] As G. L. c. 161A, Section 19, as amended by St. 1980, c. 581, Section 8, does not control the dispute, it follows that the arbitrator did not exceed his authority in making the award.

3. The order of this court dismissing the appeal is vacated. The judgment of the Superior Court is reversed. A new judgment is to be entered declaring that the arbitration award is lawful and is to be enforced. So ordered.