1. Threshold Questions
Section 8 of the Law provides that parties may include in a written agreement a grievance procedure with binding arbitration. The DLR may order binding grievance arbitration under Section 8 of the Law upon the union or employer’s request if the following criteria are met:
- There is a written collective bargaining agreement in effect at the time of the alleged event.
- There is a dispute over the interpretation or application of the written agreement.
- The agreement does not provide for final and binding arbitration.[647]
The DLR orders binding arbitration when the dispute is “arguably arbitrable.”[648]
If an employee elects to arbitrate a grievance involving a suspension, dismissal, removal, or termination, arbitration is the exclusive procedure available to the employee notwithstanding any rights the employee may have under M.G.L. c. 31 (Civil Service), M.G.L. c. 32 (Retirement Board), and M.G.L. c. 71 (Tenured Teachers).[649] Where the grievance does not involve one of these issues, the DLR may order binding arbitration even if the aggrieved employee is pursuing other remedies.[650]
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[647] M.G.L. c. 150E, Section 8; Essex County Sheriff’s Department, 29 MLC 75 (2002); cf. Town of East Longmeadow, 3 MLC 1046 (1976) (an order under Section 8 of the Law is not appropriate where there is contractual binding arbitration); Swampscott Fire Fighters, Local 1459, 8 MLC 1354 (1981) (party seeking to enforce contractual arbitration should proceed in Superior Court pursuant to M.G.L. c. 150C); see also Wales School Committee, 11 MLC 1330 (1985) and Sturbridge School Committee, 11 MLC 1037 (1984) (CERB rejects employers’ arguments that it does not have statutory authority to order binding arbitration and that Section 8 is unconstitutional).
[648] Essex County Sheriff’s Department, 29 MLC 75 (2002) (the DLR’s review is limited to whether the contract arguably covers the dispute and leaves questions concerning whether the grievance is procedurally and substantively arbitrable to the arbitrator, and whether arbitration on the subject is contrary to law or public policy to the courts).
[649] M.G.L. c. 31, Section 8.
[650] Board of Trustees of State Colleges, 1 MLC 1474 (1975).
2. Refusal to Participate or Comply with Award
Under Sections 10(a)(6) and 10(b)(3) of the Law, it is a prohibited practice for employers or employee organizations to refuse to participate in good faith in the grievance procedure agreed to by the parties or ordered by the DLR. The following are examples of Section 10 violations:
- An employer’s refusal to comply with an arbitrator’s unambiguous award, forcing other employees to serially file identical grievances.[651]
- An employer’s unreasonable delay in processing grievances to arbitration.[652]
An employer’s continued refusal to comply with the procedural grievance arbitration provisions of a duly executed contract is a per se violation of the Law.[653]
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[651]Suffolk County Sheriff’s Department, 28 MLC 253 (2002); City of Lynn, 9 MLC 1049 (1982).
[652] Everett Housing Authority, 8 MLC 1818 (1982) (employer’s conduct violated Section 10(a)(5) of the Law); cf. City of Peabody, 29 MLC 115 (2002) (employer’s duty to bargain in good faith does not compel it to settle the dispute underlying the grievance).
[653] City of Chelsea, 3 MLC 1384 (1977).
3. Waiver
An employee organization may expressly waive its Section 8 right to request binding arbitration for a specific and narrow class of disputes.[654] The waiver must be clear and unmistakable, and the absence of a binding arbitration provision in the contract does not constitute a waiver of the right to a Section 8 order.[655]
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[654] Swampscott Firefighters Local 1459, 8 MLC 1354 (1981).
[655] Town of Athol, 4 MLC 1132 (1977).