SINAPAH v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Sylvie Sinapah, timely appeals from two final decisions and orders of the Commonwealth Employment Relations Board (board) affirming the dismissal of her prohibited practice charges, and from orders denying her motions for permanent and indefinite impoundment of the entire record in both cases. We affirm.

Background. Pursuant to a one-year appointment commencing on February 2, 2014, the plaintiff, a French citizen, worked as a paid postdoctoral research associate in the laboratory of Derek Lovley, a professor in the microbiology department of the University of Massachusetts at Amherst (university). As a participant in an exchange visitor program, she held a J-1 visa. The employment relationship was troubled almost from the start. Conflicts arose with both Lovley and another professor in the laboratory assigned by Lovley to supervise the plaintiff's work. By the end of her employment, the plaintiff had accumulated a thirty-day suspension without pay for “continued unsatisfactory job performance and unacceptable personal conduct,” two letters of reprimand, and two involuntary placements on paid “administrative” and investigatory leave.

In the beginning of April 2014, the plaintiff first turned to her union, the United Auto Workers AFL-CIO Local 2322/Postdoctoral Researchers Organization (union), for help.⁴ Representatives from the union negotiated a settlement proposal before formal discipline was imposed on April 30, 2014, and a second proposal in the fall of 2014.⁵ The terms and language of the proposed agreements were ultimately not acceptable to the plaintiff.

At the plaintiff's request, the union filed a grievance of the suspension, and pursued it unsuccessfully through the second step of the grievance process.⁶ The union filed a second grievance on the plaintiff's behalf in connection with one of the letters of reprimand. The union's joint council subsequently voted not to take the plaintiff's first grievance to arbitration, a decision affirmed in a fifty-two page decision by the union's international executive board.⁷ The second grievance did not progress to a formal meeting. By letter dated September 26, 2014, Lovley notified the plaintiff that her appointment would not be renewed beyond February 1, 2015.

On February 10, 2015, the plaintiff informed Nancy Condon, the university officer responsible for the J-1 program, that faculty member Alexander Ribbe was interested in offering her an unpaid research position.⁸ Condon referred Ribbe, through the plaintiff, to Kenneth Reade, the director of the international programs office. Reade denied the request to extend the university's sponsorship of the plaintiff's visa “because it was too late under federal regulations” and any request for a change in status had to be submitted before the plaintiff's appointment ended. On February 27, 2015, the university transferred the plaintiff's J-1 record to another university that had offered her an unpaid position.

In March 2015, the plaintiff, proceeding pro se, filed two separate prohibited practice charges at the Department of Labor Relations (DLR), the first against the union pursuant to G. L. c. 150E, § 10 (b) (1), and the second against the university pursuant to G. L. c. 150E, § 10 (a) (3), and derivatively, G. L. c. 150E, § 10 (a) (1). Following in-person investigative conferences, the same DLR investigator issued letters in both actions dismissing the charges for lack of probable cause. See G. L. c. 150E, § 11. On January 29, 2016, the board issued separate decisions affirming the dismissal of the charges. While the plaintiff's appeals from those decisions were pending in this court, she filed in both cases motions for permanent and indefinite impoundment of all DLR records. In separate rulings issued on the same day, the board denied her motions without holding any hearings.

Discussion. 1. Standard of review. General Laws c. 150E, § 11, “vests substantial discretion in the [board] in its disposition of prohibited practice charges.”⁹ Quincy City Hosp. v. Labor Relations Comm'n, 400 Mass. 745, 748 (1987). Judicial review of prehearing dismissals is “limited.” Id. at 749. The proceedings in this court are governed by G. L. c. 30A, § 14, “insofar as applicable.” G. L. c. 150E, § 11 (i). In the course of our review, we must “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as the discretionary authority conferred upon it.” Massachusetts Nurses Ass'n v. Commonwealth Employment Relations Bd., 77 Mass. App. Ct. 128, 132 (2010), quoting Quincy City Hosp., supra at 749. We will not set aside a finding of the board unless the administrative record “points to an overwhelming probability of the contrary” (quotations and citation omitted). Anderson v. Commonwealth Employment Relations Bd., 73 Mass. App. Ct. 908, 910 (2009). The charging party has the burden of demonstrating that the board's decision was invalid. See Quincy City Hosp., supra.

2. Procedural issues. The investigator treated the plaintiff's various requests and objections as postinvestigation motions to modify the records, and denied them. We agree with the board that the plaintiff failed to demonstrate any prejudicial error in the investigator's handling of the evidence. First, the record does not support her claims that the investigator arbitrarily excluded her exhibits. As the board noted in her case against the university, the plaintiff failed to expressly identify the specific documents that were improperly excluded; failed to provide copies of these documents to the board; and failed to provide argument about their relevance to her charge. There was thus no basis for the board to find any abuse of discretion or error. Next, the board was justified in rejecting the plaintiff's claim that the investigator improperly modified the exhibit list “a posteriori” to admit two exhibits (the collective bargaining agreement [CBA] and a certain letter from the union's attorney to her). The investigator informed the plaintiff that according to his notes from the conference, she had submitted the letter and the university had submitted the contract as exhibits; he also reminded her about the respective arguments made concerning this evidence. When the plaintiff continued to protest, the investigator stood by his list of admitted exhibits since it was “very clear.” Finally, as the board noted, in her request for review, the plaintiff failed to explain the basis for her objection to the CBA; failed to recognize that the action taken by the investigator was inclusion of the exhibits in the record; and failed to argue the issue of prejudice. The board's rejection of the plaintiff's procedural claims was supported by the record. The plaintiff's contentions regarding the biased rulings and inadequate review are unsupported.

In her case against the union, the investigator excluded one of the plaintiff's exhibits (e-mails showing a change in funding of the plaintiff's position within a few days of her arrival), finding it irrelevant.¹⁰ As the board noted, even if the investigator abused his discretion, the exclusion of the particular evidence was not so prejudicial as to justify the reversal of the investigator's ultimate conclusion that the union had fulfilled its fair representation duties. See Zabin v. Picciotto, 73 Mass. App. Ct. 141, 151-152 (2008). In her request for review, the plaintiff did not identify the “vast majority” of her exhibits that were “arbitrarily” excluded by the investigator. We discern no error in the investigator's refusal to admit the statements contained in the plaintiff's Massachusetts Commission Against Discrimination (MCAD) complaint for the truth of the matters asserted. See Willis v. Selectmen of Easton, 405 Mass. 159, 167 (1989).

The investigator was neither required to list every exhibit he relied on in assessing probable cause nor to attach a list to his dismissal letters. In evaluating the investigator's lack of probable cause findings, the board was neither required to consider new evidence offered by the plaintiff nor to hold evidentiary hearings. See G. L. c. 150E, § 11 (e) (“review by the board ․ may be made upon the record”).

3. Fair representation charge against the union. A union violates the duty of fair representation if its actions toward the member are “arbitrary, discriminatory, or in bad faith” (quotations and citation omitted). Graham v. Quincy Food Serv. Employees Ass'n & Hosp., Library & Pub. Employees Union, 407 Mass. 601, 606 (1990). “[A]n aggrieved employee, notwithstanding the possible merits of [her] claim, is subject to a union's discretionary power to pursue, settle, or abandon a grievance, so long as its conduct is not improperly motivated, arbitrary, perfunctory or demonstrative of inexcusable neglect” (quotations omitted). Baker v. Local 2977, State Council 93, Am. Fed'n of State, County & Mun. Employees, 25 Mass. App. Ct. 439, 441 (1988) (dismissal of complaint charging breach of duty of fair representation proper where union made discretionary decision not to pursue grievance to arbitration and no evidence in record that union was other than “honest”). “[A]lthough ordinary negligence may not amount to a denial of fair representation, lack of rational basis for a union decision and egregious unfairness or reckless omissions or disregard for an individual employee's rights may have that effect” (quotations and citations omitted). Office & Professional Employees Int'l Union, Local 6, AFL-CIO v. Commonwealth Employment Relations Bd., 96 Mass. App. Ct. 764, 768 (2019).

Here, we conclude that the board did not exceed the bounds of its considerable discretion in affirming the prehearing dismissal of the charge.¹¹ The board found no evidence from which a fact finder could reasonably conclude that the union deviated from its obligations in investigating and processing her grievance. See Vaca v. Sipes, 386 U.S. 171, 177 (1967). It found the plaintiff's allegations of “hostility, dishonesty, ignorance, and incompetence,” and discrimination and “collusion” unsubstantiated. These determinations were amply supported by the record.

Our review establishes that the union devoted significant time and effort attempting to help the plaintiff resolve her grievances and many employment-related disputes. The board analyzed the union's decision-making from the beginning of the representation to the end. Given the serious allegations lodged against the plaintiff by the university in April 2014, the board could justifiably have determined that the union made a reasoned decision to enter into settlement negotiations in order to mitigate the potential impacts of any discipline.¹² Moreover, the union's decision to file a grievance challenging the plaintiff's suspension and its pursuit of settlement even after the plaintiff rejected the university's offer, the board could reasonably have found, demonstrated that the union did not act arbitrarily or with inexcusable neglect.

The record also supports the board's determination that the union did not unlawfully threaten the plaintiff or engage in coercive tactics in order to force her to accept an inadequate settlement offer. The board was warranted in finding that there was no persuasive evidence that the decision not to press the plaintiff's case to arbitration was made in bad faith, lacked a rational basis, was improperly motivated, or otherwise unlawful. See Felton v. Labor Relations Comm'n, 33 Mass. App. Ct. 926, 927 (1992) (“union could rationally have concluded that [employee's] unfair discharge claim was not a winner and that pressing it would squander the union's resources and credibility”). Neither the investigator nor the board was compelled to draw an inference of bad faith from the union's timeline of events.

In sum, the record supports the board's determination that the plaintiff presented no legal or factual grounds requiring it to overturn the investigator's lack of probable cause finding. The board provided her with an appropriate decision containing a detailed analysis of the procedural and the factual issues before it, and the essential grounds for its decision. In her briefs, the plaintiff mainly rehashes the same arguments made to the board. She failed to provide us with any cases in which a breach of the duty of fair representation was found on similar facts. The plaintiff has not met her burden of showing that the board's decision was invalid.

4. Discrimination charge against the university. The plaintiff claims that the university retaliated against her for engaging in protected activity by failing to extend its sponsorship of her J-1 visa.¹³ See G. L. c. 150E, § 10 (a) (3). The university defended its actions on the ground that the plaintiff's request was untimely, and that furthermore, as a matter of policy, and consistent with Federal regulations, the university did not permit changes in status from one category to another, particularly where the appointment had ended.

We conclude that the board did not abuse its discretion in affirming the dismissal of the plaintiff's charges of discrimination against the university after a finding by the investigator that those charges lacked probable cause.¹⁴ In his dismissal letter, the investigator concluded that the plaintiff's claim failed on the fourth element of her prima facie case of discrimination. See Fowler v. Labor Relations Comm'n, 56 Mass. App. Ct. 96, 97-98 (2002) (charging party must produce sufficient evidence to support finding that “the adverse action was motivated by the employer's desire to penalize or discourage the protected activity”). In concluding that the plaintiff's evidence of unlawful motivation was insufficient, the investigator reasoned that the plaintiff failed to produce evidence of a difficult or contentious relationship between the union and the university. He further found that while the adverse action followed relatively closely after the union activity, temporal proximity standing alone was inadequate to establish unlawful motivation. See City of Malden, 5 M.L.C. 1752, 1764 (1979). Next, the investigator found that the plaintiff had not proved any deviation from past practice.¹⁵ Finally, the investigator found that the university's reasons for denying her request were not “trivial,” but rather lawful.¹⁶ The board, noting that the investigator considered the appropriate factors, concurred with the investigator's analysis and lack of probable cause finding. Based on our review, we conclude that the evidence in the record supports the board's ultimate determination that the plaintiff failed to meet her burden of establishing a prima facie case of retaliation against the university.¹⁷ The board was not compelled to infer from the record the existence of any “collusion” between the union and the university or “shifting and inconsistent” reasons for the adverse action. As we note, infra, the plaintiff was not entitled to an evidentiary hearing before the board. The board's decision contained sufficient findings and rulings to provide for meaningful judicial review. To the extent that the plaintiff questions the weight and credibility determinations, these are matters beyond our limited review. See Alexander v. Labor Relations Comm'n, 404 Mass. 1005, 1005 (1989). In short, none of the multitude of arguments presented on appeal provide grounds justifying the invalidation of the board's decision.

5. Denial of impoundment. The plaintiff sought the same relief in both DLR cases: the permanent impoundment of all board records “with procedural documents included.” We discern no abuse of discretion or other error of law in the rulings denying the plaintiff's motions. See New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 83-84 (2012). The plaintiff admittedly first sought impoundment of DLR's records twenty-two months after the board's final decisions. She also admitted that she did not request the impoundment of a limited portion of the records. In fact, she argued to the board that the unproved, “highly defamatory,” and “foreign/non-immigrant status” allegations were so pervasive that “a simple redaction” was “inconceivable.”¹⁸ As the board recognized, neither G. L. c. 150E nor DLR regulations required it to impound the entirety of its investigation records. The board was justified in concluding that the plaintiff's requests were overbroad. Given the plaintiff's all or nothing approach, the board cannot be faulted for not considering whether particular documents in the investigatory records should have been impounded. Moreover, her requests for indefinite impoundment were inconsistent with rule 8(b) of the Uniform Rules on Impoundment Procedure (URIP), Trial Court Rule VIII (2015), which requires orders of impoundment to be limited in time.¹⁹ See Republican Co. v. Appeals Court, 442 Mass. 218, 223-224 (2004).

We also discern no error or abuse of discretion in the board's conclusion that the plaintiff failed to show good cause here for restricting the public's right of access. See Republican Co., 442 Mass. at 222-223. Her “good cause” argument for indefinitely shielding the records from public view could be raised in almost any DLR case involving employee discipline or retaliation that has not yet been litigated. By bringing prohibited practice charges against the union and the university, the plaintiff placed the facts relating to her discipline and the adverse action in issue. The union and the university were entitled to present evidence and argument in their defense. If the board impounded all of its completed investigatory records containing this type of information, the good cause exception would swallow up the rule. We agree with the board that impoundment would violate our public policy supporting free and open access to government records. Cf. id. at 223 (“power to deny public access to judicial records is to be strictly construed in favor of the general principle of publicity” [quotations and citation omitted] ).

The plaintiff's other claims of error with respect to the rulings are unpersuasive. Her allegations of bias, like those raised in her other appeals, are unsupported. At most, she has shown some inconsequential factual inaccuracies in the board's rulings. She has provided no authority to support her argument that the board was required to take testimony or to hold hearings on the motions.²⁰ In evaluating good cause, the board was only obligated to consider relevant factors. The board provided her with reasoned explanations of its rulings supported by the facts and the law. A separate analysis under the First Amendment to the United States Constitution was not required. See Republican Co., 442 Mass. at 223 n.8. The board was not subject to the Federal Freedom of Information Act, 5 U.S.C. § 552.²¹

The decisions and orders of the board dismissing the charges of prohibited practices in DLR Case Nos. SUPL-15-4357 and SUP-15-4454 are affirmed. The orders denying the plaintiff's motions for impoundment are affirmed.

So ordered.

Affirmed

FOOTNOTES

4.   Over the course of her one-year tenure, the plaintiff also sought assistance from a number of university and student organizations. She also filed three complaints at the Massachusetts Commission Against Discrimination.

5.   The prediscipline offer secured by the union called for four and one-half months of severance pay, no record of discipline, a neutral recommendation from Lovley, and access to the university's electronic resources for use in her search for a new position.

6.   After the step one grievance meeting, the university's associate dean for faculty and research found just cause for the suspension, compliance with progressive discipline, and no violation of the union contract. After two step two meetings, the associate chancellor of the university reached the same conclusions, finding that the plaintiff did not dispute Lovley's assertion that he repeatedly warned her that he was dissatisfied with her work and interactions, and that “continuing on in this way” was unacceptable. The associate chancellor further found that the plaintiff's own testimony regarding the “unfounded” criticisms of her “high quality” work and her academic judgment that was “more sound” than that of her supervisors established that she had been warned on a number of occasions about her unsatisfactory performance and given opportunities to correct it.

7.   The joint council did, however, authorize the local union to temporarily file for arbitration to provide leverage for the plaintiff during settlement negotiations.

8.   As a sponsor designated by the United States Department of State, the university is responsible for administering, pursuant to Federal regulations, the exchange visitor program. See 22 C.F.R. Part 62 (effective January 5, 2015). At the time, the university sponsored approximately 350 postdoctoral research scholars in both paid and unpaid positions.

9.   The board was formerly known as the Labor Relations Commission. See Massachusetts Nurses Ass'n v. Commonwealth Employment Relations Bd., 77 Mass. App. Ct. 128, 128 n.2 (2010).

10.   As the investigator noted, the change in funding occurred well before the events in issue and did not prompt the plaintiff to contact the union for assistance. In lieu of the funding document, the investigator substituted the CBA. To the extent the plaintiff claims this amounted to “a posteriori” modification of the record, as the investigator explained to her, he admitted the CBA to allow her to quote from it in her presentation. The investigator added that the union's attorney would have sought admission of the contract had she not. Any error with regard to the substitution was harmless.

11.   The result we reach would be the same under the substantial evidence test. See Massachusetts Nurses Ass'n, 77 Mass. App. Ct. at 132.

12.   We note that acting at the plaintiff's request, the union secured several extensions of time for her to consider the university's proposals and improved the separation package offered to her.

13.   The plaintiff argued that her protected activity consisted of filing her two grievances, several other complaints at the university, and her MCAD complaint against the university. Based on the investigative record before it, the board properly concluded that only the filing of the grievances here constituted concerted activity protected by G. L. c. 150E, § 2.

14.   We would reach the same conclusion under the substantial evidence test. See Massachusetts Nurses Ass'n, 77 Mass. App. Ct. at 132.

15.   Reade provided testimony at the in-person conference. The investigator found that the university had a consistent policy and practice of permitting only a single sponsorship record (either paid or unpaid), and that it did not change a visa holder's status from paid to unpaid, especially once an appointment had lapsed. The board found that although the plaintiff challenged the finding, she presented no evidence supporting her contention that the policy did not exist or that it was applied inconsistently. The plaintiff points to nothing in the record undercutting the finding.

16.   The investigator concluded that the university was responsible for administering a “complex” program under Federal regulations, and that the university's “internal control” policy disallowing movement between paid and unpaid positions once an appointment had ended was consistent with the requirements of those regulations.

17.   By her own admission, the plaintiff knew about her comparator evidence before she filed her charge against the university, yet she failed to present it with any specificity at the in-person investigation. To the extent that the board did consider the evidence, the plaintiff has not shown error in the board's conclusion that the evidence was insufficient to permit an inference that the university's application in her case was “irregular or harsh” or that the university treated other similarly situated postdoctoral researchers more favorably. The record also supports the board's determinations that (1) the plaintiff made no showing during the in-person investigation that she was treated differently pursuant to the policy; (2) the information provided by Condon before the plaintiff's appointment expired was insufficient evidence of discriminatory animus by Reade, the actual decision maker who denied her request to extend the university's sponsorship after her appointment had lapsed; and (3) the university's transfer of her record at the request of another educational institution was not evidence of a deviation from its policy to not extend already expired sponsorships within the university.

18.   The plaintiff claimed that the veracity of the allegations was the subject of an independent and incomplete investigation by the Massachusetts Attorney General's Office. However, as the board noted, the e-mails offered in support of this claim were not part of the administrative record.

19.   We cite to the Uniform Rules on Impoundment Procedure only for guidance and do not imply that they apply to the board.

20.   Rule 7 of the URIP requires a hearing only in the event that an order of impoundment for good cause is issued.

21.   We decline to consider arguments raised for the first time on appeal to this court. See McCormick v. Labor Relations Comm'n, 412 Mass. 164, 170 (1992). New arguments raised for the first time in the plaintiff's reply brief are not properly before us. See Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 795 n.15 (2016). The inappropriate argument on the merits contained in the plaintiff's postargument submission to this court is struck. See Mass. R. A. P. 22 (c), as appearing in 481 Mass. 1652 (2019). “Other points, relied on by [the plaintiff] but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).