JOSEPH T. MAGUIRE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

The plaintiff, a journeyman electrician, was employed in 1977 by the Massachusetts Bay Transportation Authority (MBTA). He is a member of the International Brotherhood of Electrical Workers, Local 103 (union). As a member of the union, the plaintiff was covered by a collective bargaining agreement between the MBTA and the Building and Construction Trades Council of the Metropolitan District. That agreement required that "[a]ny grievance, dispute or difference arising under the terms of th[e] Agreement . . . shall be subject to a [grievance and arbitration] procedure." The plaintiff brought an action in the Superior Court, contending that after the MBTA improperly placed him on involuntary leave of absence status and rejected his requests made, pursuant to G. L. c. 31, Section 46E (as in effect prior to St. 1978, c. 393, Section 11 [Note 1]), for a partial leave of absence, it refused his request

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for arbitration. In his complaint he sought an order compelling arbitration pursuant to G. L. c. 150C, Section 2(a), [Note 2] or, in the alternative, for damages for breach of contract and violation of statutory duties. [Note 3] Both the plaintiff and the MBTA moved for summary judgment. The MBTA in its motion for summary judgment asserted, among other things, that the claims which the plaintiff sought to have arbitrated did not state a controversy as defined in the arbitration portion of the agreement. After a hearing a judge denied the plaintiff's motion and allowed the MBTA's motion, ruling that the plaintiff's claims were not arbitrable. The plaintiff has appealed, and we reverse.

The following facts are taken from the materials submitted to the judge in regard to the motions. [Note 4] The plaintiff was continuously employed as a wireman by the MBTA and its predecessor from October 1, 1956, until January 19, 1977. His duties as a wireman did not include any supervisory authority, or the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees. In November, 1976, the plaintiff was elected to the Legislature as representative from the Eleventh Middlesex District, and was sworn in to that office on January 3, 1977. On January 19, 1977, he received a telephone call at his home from a representative of the MBTA informing him that he was being placed on an involuntary leave of absence because of his election to the General Court. At that time his hours were 8:00 A.M. to 4:00 P.M., five days per week, Friday through Tuesday.

The plaintiff, on January 20, 1977, and at other times requested that the MBTA grant him a partial leave of absence pursuant to G. L. c. 31, Section 46E. His requests were refused. The plaintiff then invoked the grievance and arbitration procedure set out in the collective bargaining agreement. He filed a grievance with the MBTA in regard to his "involuntary leave of

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absence" status and the denial of his requests for a partial leave of absence. Later he filed a request for arbitration. The MBTA refused to select an arbitrator or to submit a joint request to the Board of Conciliation and Arbitration. [Note 5] The plaintiff completed his two-year term and returned to work at his former position in August, 1978.

The MBTA argues that the plaintiff's claims are not a "grievance, dispute or difference arising under the terms of [the] Agreement" because it was required as matter of law to place the plaintiff on an involuntary leave of absence when he was sworn into the office of State representative. It points to G. L. c. 31, Section 46E, as then in effect, as support for its contention. The MBTA's argument is without merit. That statute authorized an appointing authority to grant a leave of absence to an office holder for a period of up to fourteen days. After that period, the appointing authority could grant a longer leave of absence, for a period of up to three months, only upon the written request of the employee. Here, the MBTA, without any written request from the plaintiff, placed him on involuntary leave of absence status for the entire period that he served as State representative. We also note that the statute specifically provided that any person holding an elective State office and who was employed on a permanent basis by a public authority could not be suspended from that job as a result of his election. Therefore, contrary to the contentions of the MBTA, there is nothing in G. L. c. 31, Section 46E, that reduced the plaintiff's claims to nonarbitrable status, and there does not appear to be anything in G. L. c. 30, Section 21, or in G. L. c. 268A, Section 4, that would prevent arbitration of these matters.

In sum, we are persuaded that the plaintiff's claims are subject to arbitration under the collective bargaining agreement. Because he has shown that there is no genuine issue as to any material fact, he is entitled to have summary judgment granted. Therefore, we order that the judgment entered for the defendant be reversed and that an order be entered directing the parties to proceed to arbitration.

So ordered.