SECRETARY OF ADMINISTRATION & FINANCE vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another. [Note 1]

KATZMANN, J. The Secretary of the Executive Office of Administration and Finance (A & F) appeals from a decision and order of the Commonwealth Employment Relations Board (board). [Note 2] In its July 27, 2007, decision the board found that A & F had

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repudiated the terms of a memorandum of understanding (memorandum) with the Massachusetts Correction Officers Federated Union (union or MCOFU) when A & F did not use appropriated funds [Note 3] to pay for costs associated with mediation and dispute resolution but, instead, used those funds to pay existing employees of the human resources division of the Office of Employee Relations (OER). [Note 4], [Note 5]

We address first the contention that A & F's appeal should be dismissed because it failed to comply with the filing requirements for judicial review. We then consider whether the union's charge of repudiation of the memorandum by A & F was filed within the six-month limitations period. [Note 6]

Discussion. A. Filing requirements for A & F's appeal. The union, as intervener, argues that the Appeals Court does not have

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authority to consider this case because A & F did not comply with the filing requirements of G. L. c. 150E, § 11 (§ 11). The relevant portion of § 11, as amended by St. 1981, c. 351, § 245 (1981 amendment), stated:

"Any party aggrieved by a final order of the commission may institute proceedings for judicial review in the appeals court within thirty days after receipt of said order. The proceedings in the appeals court shall, insofar as applicable, be governed by section 14 of chapter thirty A." [Note 7]

Here, the board issued its decision on July 27, 2007. Pursuant to the board's instructions, [Note 8] A & F filed its notice of appeal with the board on August 27, 2007. The union argues that "[s]uch a filing of the notice of appeal with the [board] has no effect; the proper procedure is a petition for judicial review directly with the Appeals Court within thirty days of the [board's] decision, which was never done." We disagree.

As originally drafted in 1973, and as amended before 1981, G. L. c. 150E, § 11, contained no specific provision for review of the board's decisions. See St. 1973, c. 1078, § 11. Appeals from the board could first be brought in Superior Court pursuant to G. L. c. 30A, § 14 (§ 14). See Labor Relations Commn. v. Everett, 7 Mass. App. Ct. 826 , 828 (1979). In 1981, however, the Legislature added the language to G. L. c. 150E, § 11, previously quoted (the 1981 amendment), specifically providing for judicial review in the Appeals Court. Subsequent to the 1981 amendment, the appeals pursuant to § 11 were only governed by § 14 "insofar as applicable."

The 1981 amendment does not explicitly address whether § 14 governs the procedure for filing appeals. The Massachusetts

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Rules of Appellate Procedure, however, specifically "govern procedure in appeals to an appellate court." Mass.R.A.P. 1(a), 365 Mass. 844 (1974). [Note 9] These rules were promulgated in 1974 and thus were in effect in 1981 when § 11 was amended. We presume that the Legislature was aware of the Massachusetts Rules of Appellate Procedure when it enacted the 1981 amendment to change the appeal of board decisions from the Superior Court to the Appeals Court. See Paquette v. Commonwealth, 440 Mass. 121 , 130 (2003) ("The Legislature is presumed to be aware of existing statutes when it amends a statute or enacts a new one"). We also presume that the Legislature did not provide specific procedures in § 11, knowing that the Appeals Court had detailed appellate procedural requirements in place in the form of the rules that already existed when the 1981 amendment was enacted. In sum, we conclude that in specifying the Appeals Court as the proper forum for § 11 review, the Legislature intended to leave procedural details, such as filing requirements, to the existing Massachusetts Rules of Appellate Procedure. [Note 10] See Carpenter's Case, 456 Mass. 436 , 446 (2010), quoting from Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 749 (2006) ("Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense").

Consistent with the Massachusetts Rules of Appellate Procedure, the appropriate court with which to file a notice of appeal is governed by Mass.R.A.P. 3(a), as amended, 378 Mass. 927 (1979) (rule 3[a]), which states that "[a]n appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4." [Note 11] Massachusetts Rule of Appellate Procedure 1(c),

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365 Mass. 844 (1974), states that "[a]s used in these rules: . . . 'lower court' means the . . . board, commission, or other body whose decision is the subject of an appeal" (emphasis added). Thus, pursuant to these rules, the board is the "lower court" for the purpose of rule 3(a). In keeping with these rules, the board, when it issues a final decision, notifies the parties of their rights to appeal and advises that any notice of appeal must be filed with the board, and not with the Appeals Court. See note 8, supra (quoting the instructions provided to the parties). In short, A & F complied with the filing requirements for judicial review, and dismissal is not appropriate. [Note 12] We thus proceed to A & F's appeal.

B. Limitations period. On appeal, "[o]ur review of the [board's] decision is governed by the principles of G. L. c. 30A, § 14. See G. L. c. 150E, § 11. See also Worcester v. Labor Relations Comm'n, 438 Mass. 177 , 180 (2002). Therefore, we 'accord deference to the [board's] specialized knowledge and expertise, and to its interpretation of the applicable statutory provisions.' Id. We will set the [board's] decision aside only if it is '[a]rbitrary or capricious, an abuse of discretion, or otherwise

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not in accordance with law.' G. L. c. 30A, § 14(7)(g)." Boston v. Commonwealth Employment Relations Bd., 453 Mass. 389 , 395 (2009).

The union originally filed a claim against A & F for failing to comply with the terms of the memorandum. [Note 13] As has been noted, the union contended that A & F had violated the memorandum in using portions of a $300,000 fund -- which was "to be used to pay costs associated with mediation and dispute resolution" -- to pay salaries of existing OER employees. OER is an office that "administers and negotiates collective bargaining agreements for the Commonwealth's executive branch agency" and is involved in resolving union grievances, including through mediation. Before the board, besides arguing on the merits that it had not repudiated the memorandum and had used the fund for its stated purpose, A & F urged that the union's claims of repudiation were barred by the six-month limitations period in the relevant regulation. That regulation provides: "Except for good cause shown, no charge shall be entertained by the Division based upon any prohibited practice occurring more than six months prior to the filing of a charge with the Division." 456 Code Mass. Regs. § 15.03 (1999). The board found that because the evidence did not suggest that the union " 'knew or should have known' before April 19, 2005 [ [Note 14]] that A & F had expended the substantial amount disclosed by the evidence," the union's claims of repudiation were not barred by 456 Code Mass. Regs. § 15.03. A & F disagrees.

A & F argues that after the union received A & F's October 3, 2002, letter, [Note 15] it knew that A & F had begun spending the $300,000 appropriated for compliance with the terms of the

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memorandum. Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890 , 892 (1991) (six-month period begins to run when "complainant knew or should have known of the alleged violation," citing City of Pittsfield, 4 M.L.C. 1905, 1908 [1978]). Thus, A & F argues that by waiting seven months to file a charge on May 6, 2003, the union exceeded the limitations period.

The board erred when it found that the union's claim was not time barred by the six-month limitations period. [Note 16] Consistent with the assertions of A & F, the October 3, 2002, letter "informed the union that $3,000 of the $300,000 fund had been spent '[s]pecifically' to resolve 'more than 150 [MCOFU] grievances' 'under the contractual dispute resolution processes.' " At this time, the union was fully aware that the joint labor management committee had not been created and, therefore, that the ADR program contemplated by the memorandum could not have been implemented. See note 3, supra. Moreover, as the board found, in October, 2002, the director and assistant director of the OER told the union executive board members that A & F intended to use the $300,000 fund to pay OER salaries. Consequently, the union's "apprehension should reasonably have been aroused" when in light of the aforementioned circumstances, A & F also indicated that it had begun spending money from the very fund dedicated to pay costs associated with the unestablished program. Felton v. Labor Relations Commn., 33 Mass. App. Ct. 926 , 927-928 (1992) ("A wrong . . . is not inherently unknowable if the injured party, in the exercise of reasonable diligence, should have known of the factual basis for the wrong").

The union argues that the six-month statute of limitations

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period began to run on February 10, 2003, the date it responded to A & F's October 3 response, seeking additional information. [Note 17] The evidence does not suggest that the union acquired any additional information relative to A & F's alleged violations during the time period between October 3 and February 10, thereby rendering "the factual basis of knowledge for the wrong" on February 10 indistinguishable from that existing on October 3. Instead, the union's February 10 letter was merely a response to the "suspicious circumstances" which surfaced upon its receipt of A & F's October 3 response. Malapanis v. Shirazi, 21 Mass. App. Ct. 378 , 383 (1986). "When, as here, the parties press different events as triggering accrual, the factual inquiry focuses on which was the first event reasonably likely to put the plaintiff on notice that the defendant's conduct has caused him injury." Szymanski v. Boston Mut. Life Ins. Co., 56 Mass. App. Ct. 367 , 371 (2002). The first event reasonably likely to have put the union on notice occurred on October 3. While the union may well have received a clearer understanding of A & F's alleged repudiation of the memorandum on April 19, 2005, the earlier date triggered the running of the limitations period. Consequently,the board's determination that April 19, 2005, constituted the critical moment when the limitations period began to run is not in accordance with established precedent.

Thus, this is not a case where the complainant's delay in filing satisfies the regulation's good cause exception. 456 Code Mass. Regs. § 15.03. The board erred in determining that because the union's February 10 letter was a genuine and reasonable attempt to obtain "full and fair answers" to A & F's October 3 response, the union was not sufficiently on notice after it received A & F's

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October 3 response. Notice starting the running of the limitations period "refers not to discovery of every fact necessary to prevail on the claim" but rather to possession of facts suggesting injury by the defendant. Szymanski v. Boston Mut. Life Ins. Co., 56 Mass. App. Ct. at 371 (citations omitted). See Town of Lenox, 29 M.L.C. 51, 52 (2002) (statute of limitations began to run on the date that the employer announced its decision to increase prescription drug copayments, not on the date when the increase was actually implemented). Here, the union was alerted that the A & F commenced spending for a purpose that the union deemed inconsistent with the memorandum on October 3. Contrast Barnard Engr. Co., 295 N.L.R.B. 226, 226-227 (1989) (complainant's delay reasonable where defendant unlawfully refused to provide the requested information and fraudulently concealed key details with an intent to mislead). For the foregoing reasons, we reverse the board's determination that the union's charge was not barred by the six-month limitations period.

Conclusion. The decision and order of the board are reversed. A new order shall enter consistent with this opinion.

So ordered.