Home VICTOR ORTIZ vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY

383 Mass. 881

April 30, 1981.

Daniel S. Hendrie for the plaintiff.

George J. Mahanna, Assistant Attorney General, for the defendant.

The claimant filed his request for a hearing more than ten days but less than thirty days following his receipt in hand of notice of his disqualification for unemployment compensation. In such a situation, under G. L. c. 151A, Section 39 (b), the claimant was entitled to a hearing only if he had good cause for failing to request a hearing within ten days of his receipt in hand of notice of the adverse determination. A review examiner, after a hearing, ruled that the claimant did not show good cause for the delay; the board of review denied an application for review, thus affirming the decision of the review examiner. A District Court judge affirmed the decision of the board. On report to this court, we affirm the decision of the District Court.

There is no evidence that any employee of the Division of Employment Security misled the employee concerning his right to a hearing. Cf. Walker v. Director of the Div. of Employment Security, 382 Mass. 361 , 364 (1981). The transcript is not so deficient that we are unable to determine whethere there was substantial evidence to support the review examiner's finding. There was such evidence. The notice of disqualification stated in English that a request for a hearing must be made within ten days. The employee agreed that the notice he received instructed him in Spanish that the notice affected his rights and obligations and that it should be translated immediately. The notice was constitutionally sufficient. See DaLomba v. Director of the Div. of Employment Security, 369 Mass. 92 , 97-98 (1975). The claimant simply folded thenotice and put it away without reading it. The board was warranted in concluding that the employee did not have good cause for his delay in claiming a hearing concerning the denial to him of unemployment compensation benefits.

Decision of District Court affirmed.

Home SCHOOL COMMITTEE OF MARSHFIELD vs. MARSHFIELD TEACHERS ASSOCIATION

383 Mass. 881

May 1, 1981

Judith Girard, a teacher employed by the School Committee of Marshfield (committee), sustained an injury in the course of her employment and was temporarily disabled. The committee refused to pay her "full salary . . . less the amount of any workmen's compensation award" pursuant to a collective bargaining agreement then in effect between the committee and the Marshfield Teachers Association (association). The association invoked the arbitration provision of the collective bargaining agreement on behalf of Girard and other aggrieved professional employees. The arbitrator upheld the grievance and awarded Girard the withheld payments. Upon the committee's application pursuant to G. L. c. 150C, Section 11 (a) (3), the Superior Court vacated the award. We affirm the judgment of the Superior Court.

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Payments of salary in excess of workmen's compensation benefits, as provided by the collective bargaining agreement and the arbitration award are expressly prohibited by G. L. c. 152, Section 69. We are unpersuaded by the association's argument on policy grounds that the disputed terms of the collective bargaining agreement are not inconsistent with the statutory prohibition. If the Legislature intended to except parties from the clear prohibition of G. L. c. 152, Section 69, it has demonstrated that it will do so expressly. See e.g., St. 1970, c. 800, entitling certain employees of Boston and Suffolk County to payments in excess of workmen's compensation benefits "[n]otwithstanding the provisions of [G. L. c. 152, Section 69]."

General Laws c. 152, Section 69, is not among the statutes listed in G. L. c. 150E, Section 7; therefore the terms of the statute must prevail over conflicting terms of the collective bargaining agreement. See Bruno v. Chief Administrative Justice of the Trial Court, 380 Mass. 128 , 131 (1980); Berkshire Hills Regional School Dist. Comm. v. Berkshire Hills Educ. Ass'n, 375 Mass. 522 , 527-528 (1978). The arbitrator's award therefore exceeded his powers and was properly vacated. See School Comm. of Hanover v. Curry, 369 Mass. 683 , 685 (1976); G. L. c. 150C, Section 11 (a) (3).

Judgment affirmed.