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Commonwealth of Massachusetts

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SUPERIOR COURT

BARNSTABLE) 55.

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PHONE: (508) 375-6684 Hearings: Dianne '508-375-6867 (Direct Lin~)

MESSAGE:

ENDORSEMENT(S) DC] tJ1erm/'l:1lldd/Jl" ~

HEARING NOTICE [ ]

RESCHEDULED HEARING NOTICE [ ]

TRACKING ORDER [ ]

OTHER: [Xj dem/ed Oqoy '10 f/lPw6y pos!:

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COMMONWEALTH OF MASSACHUSETTS

JAMES M. CUM:MINGS1

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SUPERIOR COURT

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C~VIL ACTION

NID. 2009-782

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BARNSTABLE, ss.

BARNSTABLE COUNTY CORRECTIONAL OFFICERS UNION

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MEMORANDUJ.\II OF DECISION & ORDER

ON THE PLAINTIFF'S MOTION FOR SUMMARY .ruDGMENT I

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The plaintiff, James M. Cummings, Barnstable County Sheriff, has moved for summary I

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judgment seeking a stay of the defendant, Barnstable County Correctional Officers' Union's

("Union's") request to arbitrate the termination of its member, Joanne Fergu~ln ("Ferguson~').

The Barnstable County Sheriffs Office employed Ferguson as a correctionallofficer on January

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5, 2004. During the course of her employment, Ferguson was repeatedly latel for work and

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progressively disciplined by her employer in accordance with the Union's Collective Bargaining

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Agreement ("CBA') i

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On December 12~ 2008, Ferguson agreed to sign a Last Chance Agreement ("LCA") to I

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avoid the further discipline prescribed under the CBA.2 The LCA provided that Ferguson "will

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be placed on strict probation (one [1] year in length) in regards to issues related to her being late I

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for work." According to the LeA, Ferguson "shall be considered late if she doters the facility I

(the building itself) after her shift begins ... [or] [ijf'she calls in sick after nlso ... [but] being I

late to ron can shall not constitute being late." The LeA established a Slidin~ scale of discipline

1 Barnstable County Sheriff

2 The Union bargained for and approved the terms of the LeA.

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applicable to violations of these conditions. Ferguson's first late arrival to wbrk would result in a

tift d . h d thirty d i . d h hi d . I. .

1 een ay suspension, er secon a ay suspension, an er t r tn termination. When

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entering into the LeA, Ferguson signed a waiver of '

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all rights to me a grievance according to t~e terms of her collective bargaining agreement (CBA) regarding her on going kd progressive discipline ahd the terms

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of this Agreement. Discipline up to and including termination under this

agreement will be final and ineligible for grievance or arbitration according to

tenus of the employee's CBA or private lawsuit. :

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She also "agreed to waive any legal rights and forgo any legal action against 1Ihe Sheriff's Office

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as a result of the discipline and this Last Chance 19reement and the circumst~ces and events

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surrounding such." I

Ferguson did not show up for her shift for ;the first time on March 18, !2009.

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Then,on

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Apri127, 2009, Ferguson did not show up for her shift again. Finally, on October 7, 2009,

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Ferguson was late for roll call and did not call thei Sheriffs Office until midnight. Based on

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these facts, the Union concedes that Ferguson wa~ late on March 18,2009 auF October 7,2009.

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However, the Union contests that Ferguson was late under the terms of the U(A on April 27,

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2009, and requests arbitration l:im.ited to this issue;' !

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As a preliminary matter, the court finds th~ LeA between the BaInstaple Counrty

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Sheriffs Office and Ferguson is binding and enforceable. The question before the court, then, is

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whether the waiver provisions of the LCA preclude arbitration of the narrow issue of Fer gus on's

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comp lance WI e terms of the LeA on Apn 27,2009. It appears that no Massachusetts court

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has addressed the scope and validity of a waiver or appeal provision contained in a LeA. As

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3 The Union filed a grievance on July 13,2009, as to the second instance of Fer gus on's lateness, but this action fell

outside of the CBA'::; grievance time standard and was dismissed for being untimely. I

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such) the court is guided by the familiar principles of contract construction; prb1ic policy strongly

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favoring arbitration of employment disputes, see City of Boston v, Boston pdlice Patrohnen's

Ass )n, 443 Mass 813, 818 (2005); and caselaw from other jurisdictions. I

"[Wlhen a settlement agreement bars arbitration of the penalty for vJlating it, yet fails to

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specify who is to determine whether a violation has occurred, we decline to infer that the parties

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intended to exclude this threshold question from arbitration." In Re Von Rol1 Tsola USA, 304

A.d.2d 934,934 (N.Y. App. Div. 2003) (concluding that waiver in emPlOye)IS last chance agreement as to "any right to grieve the action'tonly applied to the penalty oftennination~ and

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that arbitration was still available on the Darrow issue of whether the employee violated the

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provisions of the last chance agreement), quoting United Steelworkers of Amlerica v: Lukens, 969 I

F.2d 1468, 1478 (Fed. Cir. 1992),

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See also Smith v. ITT Standard, 834 F.Supp. 612, 618 (W.D. N.Y, 1993) ("While a last

chance agreement may well place issues beyond the reach of arbitrators issuel that might provide I

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the basis of relief ... it is also clear that the employee does not waive his right to an arbitrator's I

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determination of whether the disputed conduct actually constitutes a violation of the

agreement."); Stewart v. US. Postal Serv., 926 F.2d 1146, (Fed. Cir. 1991) (there employee

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entered into last chance agreement based on history of absenteeism and raised non-frivolous I

factual issue as to compliance with agreement, court determined that employJe had limited right I

of review as to compliance "With agreement despite waiver of his appeal rightJ); Elkouri &

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Elkouri, How Arbitration Works, p. 971 (2003 ed.) ("After determining that the last-chance

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agreement is enforceable, the arbitrator's role is limited to determining Whi the employee) or

in some cases, the employer) violated the terms of the agreement."), citing Ingersoll-Dresser

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Pump Co.~ 114 LA 297 (Bickner, 1999). See generally Marjorie A. Shields, Annotation,

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Enforceability of Waiver of Right to Appeal in Federal Employees' Last Chance Agreement, 16

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Here, the waiver provision of Ferguson's LCA unequivocally bars re~iew of its specified

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progressive penalties, the discipline leading up to Ferguson's assent to the LGA, and any legal I

action against the Sheriffs Office based on the LCA; however, the LCA is siient as to review of I

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factual issues regarding compliance with its terms. As such, the LeA does n~t bar the limited I

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review that Ferguson seeks. Accordingly, the arbitrator's role in this case is limited to deciding

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whether Ferguson was late for work on Apri127~ 2009, as a result of (1) enteiing the Barnstable

County Sheriff's Office facility after her shift began or (2) calling in sick after 11:30, but not

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because of being late to roll call. If the arbitrator finds that Ferguson was notllate under the LCA

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on April 27, 2009, then the terms ofthe LeA remain in place with two outstanding violations;

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A. L. R. 2d 593 (2007).4

otherwise, Ferguson's termination stands.

ORDER

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For the reasons stated above, the Plaintiff's Motion for Summary Judgment is DENIED,

the action is DISMISSED, and the parties may proceed to arbitration as spec~fied above,

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May 12, 2010

Robert C. Rufo i Justice of the Su~erior Court I

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4 But see Monahan v. Girouard, 911 A.2d 666, 672-673 (R.L 2006) (finding that absence of language about

determining violations under the LeA did not render the agreement ambiguous and waiver o~ appeal precluded employee's right to a hearing to determine whether a violation occurred under the LeA; recognizing limited review, however, by stating that employer's decision as to employee's LCA violation was not arbitrary or capricious).

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