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, therefore, 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 members, Joseff

Messina. In 2019, the department 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 agreement 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 confirmed the arbitrator's decision. 

On 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 to its plain and 

unambiguous language. As the department acknowledges, however, 

our review of the propriety of an arbitration award is quite 

limited. See G. L. c. 150C, § 11; School Dist. of Beverly v.

Geller, 435 Mass. 223, 228 (2001) (Geller). While there 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 "draws its 

essence from the collective bargaining agreement" (citation 

omitted). School Comm. of Marshfield v. Marshfield Educ. Ass'n, 

84 Mass. App. Ct. 743, 755 (2014). While we may well have 

reached a different 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, we 

affirm the judgment confirming the award.

Background. Messina has been employed by the department as 

a correctional officer for over twenty years. As of the time of 
3

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 had 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 time. 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 most 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 warning; step 3, suspension without pay for up to three 

days; 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 in 
4

August 2019, eventually citing his chronic use of sick leave

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

months of 2019), his pattern of using 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 

department 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 instance 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 following 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 instance of improper sick leave usage, which 

the Employer may identify" (emphasis added).

The arbitrator concluded that the suspension was 

unsupported 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 recognized that the agreement's examples of sick 

leave abuse "seemingly . . . do[] not consider . . . whether the 

employee was sick," he interpreted those 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." The arbitrator

accordingly determined that to prove sick leave abuse, the 

department 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, was the suspension supported under example 

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

scheduled days off -- because in his view the department 

unjustifiably refused to credit telehealth doctors' notes that 
6

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 offered no evidence that Messina's

leaves had occurred "without a serious medical illness."

Discussion. The department urges that the award must be 

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

authority by misconstruing the collective bargaining 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 the arbitrator's conclusion that 

the department was required to prove Messina's physical ability 

to work applied to each of the six examples, or whether the 

arbitrator construed example one not to include that 

requirement. The arbitrator described example one as 

"stand[ing] on a different contractual footing." Nonetheless, 

the 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 frames its argument in that 

light (as does the union). Such a construction is supported by 

the arbitrator's description of the "examples" as "subordinate 

to" the "introductory" 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 the 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 argues that all it was required to show was 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, as the department 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 well agree 

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

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

parties contracted for an arbitrator to decide the issues 

arising under their collective bargaining agreement, including 

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 the 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 of 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, "an 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 

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

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

leave 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 prove

sick leave abuse, the department is required to show an 

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

other hand, an employee's ability to work seemingly does not 
9

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

agreement. Example three, for instance, appears 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 for doubt or interpretation "

as to what 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 "whether the arbitrator['s] interpretation of the collective 

bargaining agreement was correct," School Comm. of W.

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

the award draws its essence from the agreement, School Comm. of 

Waltham v. Waltham Educators 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. Contrast School Comm. of Hanover v. Hanover

Teachers Ass'n, 435 Mass. 736, 741 (2002). Nor did the
10

arbitrator read language into the agreement. Contrast 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 general 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 implausible or 

irrational." School Comm. of Needham, 398 Mass. at 713. In

short, while we may have construed the agreement differently,

"the 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 employees. 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 some
11

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

short by summarily rejecting 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' authenticity. 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 rebut

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

the 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 England

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 sanctioned 

"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) ("the Appeals

Court has considerable discretion over when to award appellate

fees and costs").

5 The panelists are listed in order of seniority.