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13-P-1691 Appeals Court

CITY OF SPRINGFIELD vs. LOCAL UNION NO. 648, INTERNATIONAL 

ASSOCIATION OF FIREFIGHTERS, AFL-CIO.

No. 13-P-1691.

Hampden. September 11, 2014. - August 13, 2015.

Present: Trainor, Rubin, & Sullivan, JJ.

Fire Fighter, Appointment. Arbitration, Fire fighters, 

Authority of arbitrator, Damages. Labor, Fire fighters, 

Arbitration, Civil service, Damages. Civil Service, Fire 

fighters, Appointment. Contract, Collective bargaining 

contract. Damages, Back pay.

Civil action commenced in the Superior Court Department on 

December 14, 2011. 

The case was heard by John S. Ferrara, J., on motions for 

judgment on the pleadings; a motion for reconsideration was 

heard by him; and entry of a final judgment was ordered by him.

Albert R. Mason for the plaintiff.

Joseph G. Donnellan for the defendant.

RUBIN, J. The city of Springfield (city) appeals from a 

judgment of the Superior Court confirming a labor arbitration 

award issued in favor of a public employee union representing 
2

firefighters, Local 648, International Association of 

Firefighters, AFL-CIO (union). We affirm. 

Background. Because the arbitration award incorporated by 

reference certain legal conclusions of the Civil Service 

Commission (commission), we first summarize the commission 

proceedings, followed by the arbitration proceedings. Under the 

civil service law, G. L. c. 31, in order to fill a vacant 

position, the city may appoint either a "permanent" replacement, 

or, if the vacancy or the position is temporary, a "temporary" 

replacement. See G. L. c. 31, §§ 6-8. In either event, the 

appointment must be made through the detailed procedural steps 

set out in the civil service law. 

As the commission ultimately found, for an extended period 

of time the city's appointments to vacant positions in the fire 

department did not comply with the above requirements. Rather, 

in 2009 and 2010, the city filled certain vacancies in its fire 

department not by promoting firefighters, but by making extended 

appointments of firefighters to higher-ranking civil service 

positions on an "acting" basis. These firefighters were paid 

additional out-of-grade compensation pursuant to the terms of

art. 31 of the collective bargaining agreement (CBA) between the 

union and the city. Even with this additional out-of-grade 

amount, their compensation and other benefits fell short of that

set forth in the CBA for the positions in which they were 
3

serving. The city's justification for this discrepancy was that 

the firefighters were serving only on an "acting" basis. 

On August 20, 2010, the union filed a grievance with the 

city on behalf of firefighters who had been appointed to fill

vacant higher positions purportedly in an "acting" capacity, and 

who served in such higher positions. The grievance alleged that 

the city's appointment practice violated the terms of the CBA. 

The union sought a "make whole" award of relief, one that would 

put the firefighters in the same position as if they had been 

properly appointed permanently. The union's grievance was 

denied, and on November 15, 2010, the union timely filed a 

demand for arbitration in accordance with the provisions of 

their CBA.1

In the meantime, on September 15, 2010, the same 

firefighters who were the subject of the union grievance filed 

two appeals in their individual capacities with the commission 

under St. 1993, c. 310 (c. 310), contending that their "acting, 

out of grade" appointments violated the civil service law.

2 On 

 

1 The city sought to enjoin the arbitration proceedings, but 

a Superior Court judge denied the motion for a stay.

2 General Laws c. 150E, § 8, as amended though St. 1989, 

c. 341, § 80, provides, in part, "Where binding arbitration is 

provided under the terms of a collective bargaining agreement as 

a means of resolving grievances concerning job abolition, 

demotion, promotion, layoff, recall, or appointment and where an 

employee elects such binding arbitration as the method of 

resolution under said collective bargaining agreement, such 
4

November 18, 2010, the commission ruled on the appeals filed 

with it by the individual firefighters. The commission ruled 

that "nothing in the civil service law and rules recognizes the 

designation of 'acting' in any civil service position. . . . In 

the current scenario, there can be no question, and it does not 

appear disputed, that Springfield's use of 'out-of-grade' 

promotional assignments for extended period[s] of time such as 

those that have occurred here, have circumvented, and continue 

to circumvent the civil service law." 

The commission ordered that the city bring its practices 

"into compliance with all civil service law and rules by 

eliminating all 'acting' out-of-grade assignments." The order 

further stated, among other things, "[t]he Commission encourages 

the parties to agree as to the terms of any other relief that 

may be appropriate to the Appellants or any other persons, 

including but not limited to retroactive seniority dates. The 

Commission will retain jurisdiction to receive the parties[']

joint motion for Chapter 310 relief,[3] or, alternatively, any 

 

binding arbitration shall be the exclusive procedure for 

resolving any such grievance, notwithstanding any contrary 

provisions of sections thirty-seven, thirty-eight, forty-two to 

forty-three A, inclusive, and section fifty-nine B of chapter 

seventy-one." As neither party relies on § 8, we do not address 

it.

3 "If the rights of any person acquired under the provisions 

of chapter thirty-one of the General Laws or under any rule made 

thereunder have been prejudiced through no fault of his own, the 

civil service commission may take such action as will restore or 
5

party's motion to reconsider whether to grant Appellants other 

or further relief, for which the time to so move will be tolled 

until January 30, 2010." No motions described in that portion 

of the order were filed prior to that deadline. 

On November 21, 2011, the arbitrator, relying on the 

commission's finding that the city had violated the civil 

service laws, found that the city had also violated the CBA, 

which provides that the city "shall recognize and adhere to all 

Civil Service Laws."4 He ordered a make-whole remedy consisting 

of lost wages and benefits, retroactive to August 8, 2010.5 In 

December, 2011, the city filed the instant suit to vacate the 

arbitration award.

Subsequently, the city moved jointly with the individual 

employees before the commission pursuant to c. 310 to grant 

retroactive seniority to each such firefighter, each to a date 

prior to August 8, 2010. This motion was allowed by the 

commission on March 8, 2012. 

 

protect such rights, notwithstanding the failure of any person 

to comply with any requirement of said chapter thirty-one or any 

such rule as a condition precedent to the restoration or 

protection of such rights." St. 1993, c. 310. 

4 He found that the grievance was procedurally arbitrable.

5 Although the commission found that the improper acting 

promotions dated to at least 2009, no grievance was filed until 

August 20, 2010. The arbitrator limited back pay to August 8, 

2010, in accordance with the CBA, which provided that a 

grievance was only timely as to contract violations going back 

twelve days before the filing of the grievance. 
6

In October, 2012, a judge of the Superior Court entered 

judgment in the city's favor, but on reconsideration, in July, 

2013, the judge vacated that judgment and affirmed the 

arbitration award. It is from this judgment that the city now

appeals. 

Discussion. In challenging the arbitrator's award, the 

city makes three arguments why it was in excess of the 

arbitrator's authority. The first two related arguments go to 

the arbitrator's authority to order the remedy he did. The 

third challenges the authority of the arbitrator to hear the 

matter in the first place.

The city's first argument is that in ordering the city to 

provide the individual employees back pay, overtime, and 

vacation pay commensurate with the positions they were required 

to fill on an unlawful "acting" basis, the arbitrator 

effectively appointed them to those positions, in violation of 

the civil service laws. The remedy, according to the city, thus 

exceeded his authority.

For its argument, the city relies on Somerville v.

Somerville Mun. Employees Assn., 20 Mass. App. Ct. 594 (1985)

(Somerville). In that case, the city of Somerville, like the 

city of Springfield in this matter, attempted to avoid the 

financial consequences of filling vacant positions through the 

procedure set out in the civil service law by appointing 
7

employees to fill vacant higher positions on an acting basis. 

The union grieved this practice as a violation of the CBA, and 

the arbitrator ordered that for the time they had served, and 

would in the future serve in these acting positions, the 

employees had to be paid, not at the rate specified for out-ofgrade work, but at the salaries provided in the CBA for the 

higher positions.

We explained there that the "arbitrator exceeded his 

authority by making an award which conflicts with the civil 

service law." Id. at 595. First, civil service law vests 

exclusive power to fill vacancies (either in a temporary or 

permanent capacity) in the appointing authority, in Somerville, 

the mayor. See id. at 597 (stating that the appointing 

authority "retains the sole power to decide whether to fill 

vacancies on either a permanent or temporary basis"). Civil 

service law also provides that the appointing authority must 

"follow the carefully prescribed requirements set forth in 

c. 31." Ibid. The purported appointments in an acting capacity 

in Somerville were made "by the chairman of the board of 

assessors, who is not the appointing authority," and were not 

made pursuant to the procedures detailed in the statute. Id. at 

603. We held that "the arbitrator's award, in effect, promotes 

[the grievants] to higher positions in violation of the civil 

service law." Id. at 599. 
8

This case, however, is inapposite. In Somerville, the 

arbitrator read the CBA to allow the city to make acting 

appointments in the future and to require the grievants to be 

paid as though they had been promoted in compliance with the 

civil service law. The arbitrator here has not allowed the city 

to continue to make "acting" appointments going forward that 

would effectively amount to permanent or temporary appointments 

that may only properly be made in compliance with G. L. c. 31; 

indeed, in its order issued prior to the arbitrator's decision, 

the commission expressly prohibited the city from making any 

further such acting appointments. Rather, the arbitrator has 

ordered back pay, overtime, and vacation pay as a remedy for 

what the commission had already determined was the unlawful 

placement of employees to serve in acting capacities in higher 

positions in the past. Rather than allowing these appointments,

this solely backward-looking remedy serves, consistent with 

civil service law, to remedy the violation of the provision of 

the CBA that requires compliance with that law. 

For the same reason, unlike the award in Somerville that 

authorized continued employment of the grievants in the higher 

positions without compliance with the procedures set out in 

c. 31, and required paying them as though they had properly been 

promoted, the remedial payment ordered by the arbitrator here is 

not "prohibited by §§ 68 and 71 of c. 31, which: (a) require 
9

that any 'change in [a civil service employee's] duties or pay'

be reported to the administrator so that a payment roster can be 

prepared, and (b) prohibit payment to a civil service employee 

whose name does not appear on the roster as lawfully in his or 

her position." Id. at 603. Again, the award here of back pay 

under the CBA amounts to compensation for actions found by the 

arbitrator to have violated the CBA. It does not require 

ongoing payments for performance of a job to which the employees 

have not properly been appointed, and on the payment roster for 

which their names do not appear. 

Indeed, although the city in essence argues that public 

policy as codified in the statutes is violated by the award, 

were we to accept the city's argument, it would provide a 

windfall for the city as a reward for its unlawful conduct and 

would incentivize cities and towns to utilize unlawful acting 

appointments for as long as they can in order to save money by 

underpaying those serving in those positions. It has been 

almost thirty years since we wrote "the administrator and Civil 

Service Commission are deeply concerned about the use of socalled unauthorized 'out-of-grade' promotional appointments, 

whether provisional or temporary, to circumvent the requirements 

of the civil service law," id. at 602, yet the practice 

apparently continues. We are loath to do anything that might 

tend to encourage it. Because the arbitrator's award in this 
10

case does not effectively appoint individuals to vacant 

positions without compliance with the civil service law, 

Somerville is not controlling, and the arbitrator's award was 

not beyond his authority. 

The city's second and related argument is that because the 

commission prohibited appointments without compliance with the 

civil service laws, the arbitrator's award creates a conflict 

between the requirements of G. L. c. 31, §§ 68 and 71, and the 

requirements of the CBA. These statutes contain mandatory 

requirements involving reporting and preparation of rosters 

attendant upon civil service appointments and promotions.

6,7 The 

 

6 "G[eneral] L[aws] c. 31, § 68, requires the appointing 

authority to report in writing to the administrator 'any 

appointment or employment, promotion, demotion, transfer, 

change in duties or pay, reinstatement,' and a host of other 

employment changes not here relevant. Based upon these 

reports, G. L. c. 31, § 71, requires the administrator to 

prepare rosters of all civil service positions, and of all 

persons who are legally employed in such positions, whether 

on a temporary or a permanent basis. The administrator files 

a copy of each roster with the municipal officer responsible 

for paying the salaries of a municipality's civil service 

employees. Section 71 expressly provides that this payment 

officer shall not pay any salary or compensation for service 

rendered in any civil service position . . . to any person 

whose name does not appear on the appropriate roster, as 

amended from time to time, as the person in such position.'" 

Somerville, supra at 599.

7 The reporting requirements of §§ 68 and 71 are discussed 

supra. The city essentially argues that by ordering back pay, 

the arbitrator legitimized appointments made in violation of the 

procedures provided for in §§ 68 and 71. However because the 

city has retroactively promoted the employees, such argument now 

fails.
11

city notes that G. L. c. 150E, § 7, states that in case of a 

conflict between terms of CBA and the law with respect to 

certain enumerated statutes, the terms of the CBA will prevail. 

Since c. 31 is not one of the enumerated statutes, the city's 

argument goes, the statute (as it claims it was construed by the 

commission) must trump the CBA as construed by the arbitrator.

This second argument founders on the same shoals as the 

first. The premise of the argument is that the arbitrator's 

make-whole remedy amounted to an effective appointment of the 

firefighters to the jobs they had been filling in an acting 

capacity. Again, the arbitrator's compensatory award did no 

such thing. 

Next, the city argues that the commission determined that 

the civil service statute under which the employees brought an 

appeal to it -- c. 310 -- did not require back pay as a remedy 

for the violation and that the arbitrator was collaterally 

estopped from awarding such relief.

The commission, however, did not decline to order a makewhole remedy or construe the statute to prohibit one. Rather, 

upon issuing its decision it did not announce any remedy other 

than ordering the city to bring its practices into compliance 

with the civil service law. It urged the parties to reach an 

agreement on relief, retaining jurisdiction either to "receive 

the parties['] joint motion for Chapter 310 relief or, 
12

alternatively, any party's motion to reconsider whether to grant 

Appellants other or further relief, for which the time to so 

move will be tolled until January 31, 2010." This is not a 

determination that back pay is not an appropriate award.

In the absence of a holding by the commission that the 

statute affirmatively prohibits a city from including a 

provision in a CBA that provides for back pay in a case like 

this, a determination by the arbitrator that the city had 

nonetheless bound itself contractually in the CBA to provide 

such a remedy in these circumstances does not create a 

"conflict" between the statute and the CBA. Indeed, the 

decision of the commission and that of the arbitrator, who 

explicitly and exclusively relied upon that decision, are in 

harmony in finding that the city's actions violated the civil 

service law. 

Finally, the city appears to argue that the commission has 

exclusive jurisdiction with respect to any remedy for the 

violation of the civil service laws. That argument also fails. 

The city cites no authority in support of its contention that 

where a city binds itself by contract to comply with the civil 

service law, it may not be held to have breached the contract by 

failing to do so. Indeed, G. L. c. 150E, § 8, quoted supra at 

note 2, envisions just such circumstances and indicates the 

availability where they occur of both a remedy before the 
13

commission and of one under the CBA.

8 "When possible, we attempt 

to read the civil service law and the collective bargaining law, 

as well as the agreements that flow from the collective 

bargaining law, as a 'harmonious whole.'" Fall River v. AFSCME 

Council 93, Local 3177, AFL-CIO, 61 Mass. App. Ct. 404, 406 

(2004), quoting from Dedham v. Labor Relations Commn., 365 Mass. 

392, 402 (1974). To the extent the city means to argue that the 

specific order of the commission in this case meant that only 

the commission had jurisdiction to award further relief it is 

incorrect. By its terms the order merely permitted the filing 

before the commission of motions for further relief in the event 

either party chose to do so. It did not provide that the 

commission's jurisdiction over further relief was to be 

exclusive of any otherwise available forum.9 

Judgment affirmed.

 

8 Because the commission's jurisdiction is not exclusive, to 

the extent the city renews its argument that the grievances were 

not arbitrable because the commission's jurisdiction is 

exclusive, that argument also fails.

9 We decline the union's request for appellate attorney's 

fees.