KEEFFE v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from a final decision and order of the defendant, Commonwealth Employment Relations Board (CERB), dated March 28, 2019, striking as untimely her notice of appeal from a CERB order dated December 28, 2018, and dismissing her appeal. We affirm.

Background. In 2014, the plaintiff was terminated by her employer, the school committee of Boston. See O'Keeffe v. School Comm. of Boston, 92 Mass. App. Ct. 1117 (2017). After her union's demand on her behalf for arbitration was dismissed as untimely, the plaintiff sought redress through the Department of Labor Relations (DLR). The DLR awarded the plaintiff compensation for damages she suffered as a result of the union's failure to make a timely demand for arbitration.

Dissatisfied with the timeframe that the DLR hearing officer used to determine the amount of that compensation, the plaintiff appealed to CERB. On December 28, 2018, after a hearing, CERB affirmed the DLR's award in a written decision. That decision included a notice of the parties' right to appeal the December 28, 2018 decision to this court, citing to G. L. c. 150E, § 11, and stated, “To claim ․ an appeal, the appealing party must file a notice of appeal with the Commonwealth Employment Relations Board within thirty (30) days of receipt of this decision.”

The plaintiff's e-mail correspondence with CERB shows that she received CERB's decision by December 30, 2018, and was aware of a “30 day window” in which she could seek judicial review of the December 28, 2018 decision. Furthermore, DLR informed the plaintiff that she had until January 28, 2019, to file an appeal. Nonetheless, the plaintiff did not request an appeal ³ until February 27, 2019, and although she filed a “motion to seek appellate review,” that filing (dated February 25, 2019) was not made until February 28, 2019.⁴

The union filed a motion, dated March 4, 2019, to strike as untimely the plaintiff's notice of appeal. The plaintiff did not oppose the union's motion and, on March 28, 2019, CERB allowed the motion to strike and dismissed the plaintiff's appeal. This appeal followed.

Discussion. Our consideration of CERB's orders are governed by G. L. c. 30A, § 14. See G. L. c. 150E, § 11 (i). Accordingly, we review CERB's decision to dismiss the plaintiff's appeal using a substantial evidence standard. See Brookfield v. Labor Relations Comm'n, 443 Mass. 315, 321 (2005).

We begin by noting that although the plaintiff has appealed only from CERB's decision to allow the union's motion to strike her appeal as untimely, her arguments, to the extent that we are able to discern them from her briefing, focus either on the merits of CERB's December 28, 2018 decision (which is not a subject of this appeal) or on other issues unrelated to the dismissal of her appeal.⁵ That fact, alone, would be an adequate basis on which to affirm CERB's decision to dismiss the appeal. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm'n, 464 Mass. 38, 55 (2013) (where appellant referenced, but did not argue, issue in its brief, appellate court need not reach it). See also Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

Additionally, we note that because the plaintiff did not object to the union's motion to strike her appeal, she waived her right to appeal CERB's decision to allow it. See Donovan v. Gardner, 50 Mass. App. Ct. 595, 597 n.5 (2000).

Even were we to consider the merits of an argument that the plaintiff's appeal should not have been dismissed as untimely -- an argument which, as we note, the plaintiff has not made -- we would affirm CERB's decision. The plaintiff was on notice, based on the explicit reference in CERB's order to her appellate rights, that pursuant to G. L. c. 150E, § 11, she had thirty days within which to file her notice of appeal. See G. L. c. 150E, § 11 (i). The plaintiff's correspondence shows that she received CERB's decision, and that she was aware of the thirty-day deadline. As the appeal period was statutory, it could not have been enlarged. See DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 169 & n.6 (2018). There was no error in CERB's striking and dismissing the appeal.

The decision and order of the CERB striking the plaintiff's appeal as untimely is affirmed.

So ordered.

affirmed

FOOTNOTES

3.   Our record does not include a notice of appeal filed by the plaintiff. CERB does not dispute that on February 27, 2019, the plaintiff communicated to it her request for appellate review.

4.   The correspondence between the plaintiff and counsel for the DLR and CERB includes the plaintiff's questions whether a cross appeal brought by the union and later dismissed at the union's request impacted the deadline for her own appeal. In response, the plaintiff was redirected to authority including G. L. c. 150E, § 11.

5.   The plaintiff dedicates a single sentence to the dismissal of her appeal, requesting that we “overturn the dismissal of the [a]ppeal request filed by the [a]ppellant with the C.E.R.B. in 2018.” This statement, which the plaintiff has not supported with any legal authority, does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).