Grievance Procedure Excludes Challenges To Terminations

The collective bargaining agreement between the City of Lowell, Massachusetts and the Lowell Police Association contains a grievance procedure that culminates with binding arbitration. Paragraph 4 in the grievance procedure states that “any matter which is subject to the jurisdiction of the Civil Service Commission, or any retirement board established by law, shall not be a subject of arbitration.” Paragraph 3 of the grievance procedure states that “grievances involving disciplinary action on behalf of officers shall be processed beginning at the second step. The arbitrator shall have the power to suggest a resolution to the grievance up to and including the restoration of the job with all compensation and privileges that would have been due the employee.”

After being terminated from his job as a Lowell police officer, Dararith Ung filed an appeal with the Civil Service Commission. When the Association filed a separate request for arbitration, Ung voluntarily withdrew his appeal to the Commission.

The City opposed the Association’s request for arbitration and sought a declaratory judgment in court. The City maintained that under the express terms of the collective bargaining agreement, the termination was not arbitrable because it was subject to the jurisdiction of the Civil Service Commission.

The Appeals Court of Massachusetts agreed with the City. The Court observed that “the Union would explain away the unfriendly language of Paragraph 4, which excludes from arbitration matters subject to the jurisdiction of the Commission, as an inartful expression of intent to create a right to elect between arbitration or appeal to the Commission in resolving disputes regarding certain disciplinary actions. We reject the Union’s contention that the City’s interpretation of the contract would render Paragraphs 3 and 4 inconsistent with each other. We discern no inconsistency between Paragraph 3, which retains the grievance and arbitration procedure for lesser forms of discipline, and Paragraph 4, which reserves greater forms of discipline for resolution before the Commission. While nothing in state law prohibits the parties from agreeing to arbitrate even matters subject to the Commission’s jurisdiction, they did not do so in the governing collective bargaining agreement. To the contrary, Paragraph 4 expressly excludes from arbitration those matters subject to the jurisdiction of the Commission such as Ung’s termination. Accordingly, the contract renders the matter of Ung’s termination non-arbitrable.”

City of Lowell v. Lowell Police Association, Inc.,922 N.E.2d (Mass. App. Ct. 2010).

This article appears in the April 2010 issue