NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, theref ore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran , 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22

- P

- 728

ESSEX COUNTY SHERIFF'S DEPARTMENT

vs

.

ESSEX COUNTY CORRECTIONAL OFFICERS ASSOCIATION

.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Essex County Sheriff's Department

(department), seeks to vacate an arbitration award in favor of

the defendant union, Essex County Correctional Officers

Association (union), and one of the union member s , Josef f

Messina. In 2019, the departm ent suspended Messina for three

days without pay, based on Messina's abuse of sick leave, both

during 2019, and historically. Messina grieved the suspension,

and an arbitrator overturned it, reasoning, among other things,

that the collective bargaining ag reement with the union required

the department to demonstrate that Messina had been "physically

able to work" on the dates that the department claimed he had

abused sick leave, and that the department had not carried that

burden.2

A Superior Court judge co nfirmed the arbitrator's decision

.

O n appeal to this court , the department argues that the

arbitrator "exceeded [ his ] powers," G. L. c. 150C, § 11 ( a ) (3),

in particular, by adopting a construction of the collective

bargaining agreement that is contrary t o its plain and

unambiguous language. As the department acknowledges , however,

our review of the propriety o f an arbitration award is quite

limited. See G. L. c. 150C, § 11; Sch ool Dist

. of Beverly v.

Geller , 435 Mass. 223, 228 (2001) ( Geller )

. While th ere can be

rare circumstances where an arbitrator so departs from the

language of a collective bargaining agreement that the

arbitrator has exceeded his or her authority, Geller , supra ,
that is not this case. Here, although the agreement was not a

model of clarity, the arbitrator's construction "dr aws its

essence from the collective bargaining agreement" (citation

omitted). Sch ool Comm. of Marshfield v. Marshfield Educ. Ass'n ,
84 Mass. App. Ct. 743, 755 (2014). While we may well have

reached a dif ferent conclusion as to the agreement's

construction, it is not our role under G. L. c. 150C and the

case law to substitute our judgment for the arbitrator's, even

on questions of contract interpretation. For these reasons, w e

affirm the judgment confirm i ng the award.

Background . Messina has been employe d by the department as

a correctional officer for over twenty years. A s of the time of3

his grievance, he worked at the department's Middleton

corrections facility, and had achieved the rank of sergeant.

Over his years with the department, Messina had accrued

sick leave time under the terms of the collective bargaining

agreement . Messina also ha d a rather remarkable record of using

that sick time. As of the hearing, he had accrued more than

2,200 hours of sick leave since the year 2000 , and had used all

but ten hours of that allotted tim e. The arbitrator observed,

wryly, that Messina had "made good use" of his sick time. The

department was more direct

-- in its view, Messina had compiled

"one of the mo st egregious records of sick leave abuse in the

[d]epartment's history."

Under the agreement, union members are subject to

progressive discipline for engaging in sick leave abuse: step

1, verbal counselling or a written warning; step 2, a final

written w arning; step 3, suspension without pay for up to three

day s ; and step 4, termination for "just cause. " Prior to the

hearing, Messina had been subject to step one and step two

discipline, in October and November of 2018. Thereafter, in

approximately the first seven months of 2019, Messina took

twelve days of sick leave. Also relevant here, three of

Messina's sick days occurred on Sundays , and three occurred on

days before or after Messina's scheduled days off. The

department thereafter suspended Messina for sick leave abuse in4

August 2019, eventually citing his chronic use of sick leave

(both over the course of his career and in the first seven

months of 201 9 ), his pattern of us ing sick leave on Sundays, and

his unsubstantiated use of sick days on days before or after his

scheduled days off. 1 Messina grieved the suspension, and the

grievance was submitted to arbitration.

Before the arbitrator, the question was whether the

d epartment established "just cause" for imposing the suspension.

That issue, in turn, depended on the provisions of the

collective bargaining agreement regarding "sick leave abuse."

Under Article 10 of the agreement,

"sick leave abuse shall mean any inst ance where a bargaining unit member fails to report for a regular work shift and uses a sick leave day when said member is physically able to work including but not limited to the following examples :

" 1. Unsubstantiated sick leave usage before or after scheduled days off on three (3) separate occasions within a six (6) month period;

" 2. Sick leave usage on a day where authorized time off was requested but not approved;

" 3. Sick leave usage followin g a regular pattern such as every Saturday during the summer;

" 4. Sick leave to accommodate other employment ;

1 As the arbitrator noted, the department's initial "disciplinary notice d[id] not specify the precise contractual theory on which it [was] premised

. " However, the department argued the above bases before the arbitrator

.5

" 5. Extensive sick leave usage without a serious medical illness, resulting in all, or nearly all sick days being used; and

" 6. Any other in stance of improper sick leave usage, which the Employer may identify" (emphasis added).

The arbitrator concluded that the suspension was

un supported by just cause

. To do so, the arbitrator first had

to construe the above language , to determine what constituted

"sick leave abuse," and how it could be proved. Although the

arbitrator recogniz ed that the agreement's examples of sick

leave abuse "seemingly .

. . do [] not consider .

. . whether the

employee was sick," he interpreted tho se examples to be

"subordinate " to the agreement's general definition of sick

leave abuse

-- that is, using a "sick leave day when [an

employee] is physically able to work ." Th e arbitrator

accordingly determined that to prove sick leave abuse , the

departm ent had to " demonstrate [] that the employee used sick

leave when physically capable of working , " and that the

department had not met that burden in attempting to prove sick

leave abuse under examples three and six, supra

. Nor, in the

arbitrator's view, wa s the suspension supported under example

one
-- "[u] n substantiated" use of sick leave before or after

scheduled days off

-- because in his view the department

unjustifiably refused to credit telehealth doctors' notes that6

Messina submitted to verify certain absences. 2 Finally, the

arbitrator rejected the department's argument that Messina's

"[e]xtensive sick leave usage without a serious medical illness"

provided just cause for the suspension (example five) , reasoning

(in part) that the department o ffered no evidence that Messina's

leave s had occurred "without a serious medical illness."

Discussion

. T he department urges that the award must be

vacated, because the arbitrator "exceeded [ his ] powers " and

authority by misconstruing the collective barga ining agreement ,
citing G. L. c. 150C, § 11 ( a ) . In particular, the department

argues that the arbitrator ignored or flagrantly misconstrued

the agreement's language by imposing on the department the

burden of proving that Messina was well enough to work on the

2 It is somewhat unclear whether th e arbitrator 's conclusion that the department was required to prove Messina's physical ability to work applied to each of the six example s , or whether t he arbitrator construed example one not to include that requirement

. T he arbitrator described example o ne as "stand [ing] on a different contractual footing

. " Nonetheless,
t he department apparently interprets the arbitrator's award as placing on it " the burden of proving Messina was physically able to work," regardless of example, and f rames its argument in that light (a s does the u nion )

. S uch a construction is supported by the arbitrator's description of the "examples" as " subordinate
to " the "intro ductory" contractual language that he interpreted as requiring the department to prove Messina's physical ability to work. We will address the issue as it is framed by the parties

-- that is, whether the arbitrator exceeded his authority by holding that t he department was required to prove Messina's physical ability to work under each of its advanced theories

-- although our conclusion would be unaffected if the arbitrator had construed example one not to require proof of physical ability to work

.7

days that he was absent. Instead , the department argues , proof

that meets any one of examples one through six in the

agreement's definition of sick leave abuse constitutes

conclusive evidence of sick leave abuse. Put differently, the

department ar gues that all it was required to show wa s what is

described in those examples, and not also that Messina was

physically able to work when he took the leave

. Thus , the

department argues that where it showed the factual basis of

example number five

-- "[e] xtensive sick leave usage without a

serious medical illness, resulting in all, or nearly all sick

days being used "

-- it showed sick leave abuse regardless of

whether it showed that Messina was physically able to work on

each day

. Indeed, a s the departmen t points out, requiring it to

prove that an employee was physically capable of working on each

day of his or her "[e]xtensive sick leave usage" would saddle it

with a difficult if not impossible burden

.
Were it not for our standard of review, we might wel l agree

that the department's construction is the better one , in that it

more sensibly expresses the agreement as a whole . But here t he

parties contracted for an arbitrator to decide the issues

arising under their collective bargaining agreement, includin g

issues of contractual interpretation , making our scope of review

"very narrow." See School Comm

. of Norton v. Norton Teachers'

Ass 'n , 23 Mass. App. Ct. 1002, 1003 (1987), citing G. L.8

c. 150C, § 11 ( a ). Absent allegations of fraud, we do not

address th e correctness of the arbitrator's factual or legal

conclusions, but only whether the arbitrator exceeded his

authority. See id . To be sure, an arbitrator exceeds his

authority by "ignor[ing] the plain words of [a] contract"

(citation omitted). Sheriff o f Suffolk County v. AFSCME Council

93, Local 419 , 67 Mass. App. Ct. 702, 706 (2006) . But if " there

is room for doubt or interpretation on the question, then the

issue properly lies within the broad authority conferred upon

arbitrators of civil disputes." Grobet File Co. of Am

. , Inc . v.

RTC Sys., Inc ., 26 Mass. App. Ct. 132, 134

- 135 (1988). In such

circumstances, " a n arbitrator's award is entitled to judicial

respect insofar as it draws its essence from the collective

bargaining agreement. " School Comm. of Needham v. Needham Educ.

Ass 'n , 398 Mass. 709, 713 (1986).

The agreement here is sufficiently ambiguous that , as is

eviden t from the arbitrator's reasoning, one cannot say that he

ignored the language of the contract. On the one hand, "sick

leav e abuse" is defined as " any instance where a bargaining unit

member

. . . uses a sick leave day when said member is

physically able to work "

-- thereby suggesting that to prov e

sick leave abuse , the department is required to show an

employee's physical abi lity to work (emphasis added). On the

other hand , an employee's ability to work seemingly does not9

factor into the "examples" of sick leave abuse listed in the

agreement. Example three, for instance, appear s to consider

only whether sick days " follow [] a regular pattern ," regardless

of whether an employee was well enough to work on those days.

And under example five

-- " [e]xtensive sick leave usage without

a serious medical illness, resulting in all, or nearly all sick

days being used"

-- it similarly appears not to matter whether

the employee was able to work on each day that leave was taken.

There accordingly is a conflict between the agreement's general

definition of sick leave abuse and the examples incorporated

therein

-- that is, there is "room f or doubt or interpretation "

as to w hat the department must show

. Grobet File Co. of Am

. ,

Inc ., 26 Mass. App. Ct. at 135.

Where the interpretation of the sick leave abuse provision

was properly before the arbitrator, the question on appeal is

not "whethe r the arbitrator [ ' s ] interpretation of the collective

bargaining agreement was correct , " School Comm

. of W

.
Springfield v. Korbut , 373 Mass. 788, 792 (1977) , but w hether

the award draws its essence from the agreement , School Comm

. of

Waltham v. Waltham Edu cators Ass 'n , 398 Mass. 703, 706

- 707

(1986). Here, the arbitrator's award meets that requirement.

The arbitrator did not ignore "clear and unequivocal language"

in the agreement. Contra st Sch ool Comm. of Hanover v. Hanover

Teachers Ass'n , 435 Mass. 736, 741 ( 2002 ). Nor did the10

arbitrator read language into the agreement

. Contra st Sheriff

of Suffolk County , 67 Mass. App. Ct. at 706. Instead, the

arbitrator looked to the language of the agreement, determined

that there was a tension between the gene ral definition of sick

leave abuse and the enumerated examples, and construed Article

10 of the agreement , as "a whole , " to mean that an employee's

physical ability to work is an element of sick leave abuse.

That interpretation was not " substantially impl ausible or

irrational." School Comm

. of Needham , 398 Mass. at 713

. In

short, while we may have construed the agreement differently,

"t he arbitrator's [award] shows that he was faithful to his

obligations ," and "[h] is conclusion is not so implausible as to

justify our overturning it. " Concerned Minority Educators of

Worcester v. School Comm

. of Worcester , 392 Mass. 184, 188

(1984).

Our decision should in no way be construed as approving of

or justifying sick leave abuse by public employee s. Even

putting aside the issue of the agreement's language, however, we

note that the department could have aided its position by

presenting a more fulsome case. For one thing , the department

did not articulate which theory of sick leave abuse justified

Messina's suspension until late in the disciplinary process,

which, as the arbitrator noted, rendered the " precise basis [of

the suspension]

. . . somewhat of a mystery and in some11

respects,

. . . a moving target. " The department also fell

short by summa rily reject ing as illegitimate certain doctors'

notes that Messina provided to validate some of his absences,

rather than taking some fairly obvious steps to investigate the

notes' a uthenticity. Moreover, when Messina claimed that he had

timely substantiated absences occurring in March and July of

2019 by providing doctors' notes to certain of his supervising

officers ( who allegedly had then "lost" the notes ) , the

department failed to call those officers at the hearing to rebu t

Messina's claim

. Finally, with respect to example five, the

department did not focus on showing that Messina's historical

sick leave had been taken "without a serious medical illness"

--

a requirement that existed even had the arbitrator not construed

t he agreement as requiring proof of Messina's physical ability

to work. 3

3 We see no merit to the department's contention that the arbitrator's award violates public policy here. While public policy is a ground on which an arbitrator's award may be vacated, that exception is "narrow ." See O'Brien v. New Eng land Police Benevolent Ass' n, Local 911 , 83 Mass. App. Ct. 376, 381 ( 2013 ). It should be evident from our discussion above that the department did not prove a sufficiently compelling case for one to conclude that the arbitrator's decision sanction ed "fraudulent" use of sick leave by a public employee. Cf. Lynn

v. Thompson , 435 Mass. 54, 64 ( 2001 ).12

For the foregoing reasons, and in light of our standard of

review, we affirm.

Judgment affirmed

. 4

By the Court (Blake, Englander & Walsh, JJ. 5 ),

Clerk

Entered: May 9, 2023.

4 We deny the union's request for appellate fees and costs. See Fronk v. Fowler , 456 Mass. 317, 326

- 327 (2010) ("t he Appeals Court has considerable discre tion over when to award appellate fees and costs ")

. 5 The panelists are listed in order of seniority.