LOCONTO v. COMMONWEALTH EMPLOYMENT RELATIONS BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The employee, Michael Loconto, appeals from a decision and order of the Commonwealth Employment Relations Board (board) dismissing his prohibited practice complaint under G. L. c. 150E, § 10, on the grounds of untimeliness and lack of probable cause. Concluding that the board's decision was supported by substantial evidence, we affirm.

1. Standard of review. We have jurisdiction to review a decision of the board under G. L. c. 150E, § 11 (i). See Secretary of Admin. & Fin. v. Commonwealth Employment Relations Bd., 81 Mass. App. Ct. 81, 83 (2012). A prehearing dismissal is a final, reviewable order. See Massachusetts Nurses Ass'n v. Commonwealth Employment Relations Bd., 77 Mass. App. Ct. 128, 131 (2010). A decision of the board is reviewed “in accordance with the standards laid out in G. L. c. 30A, § 14 (7), which provides that a final administrative agency decision will be set aside if, among other grounds, it is ‘[u]nsupported by substantial evidence,’ G. L. c. 30A, § 14 (7) (e), or ‘[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law,’ G. L. c. 30A, § 14 (7) (g).” Commissioner of Admin. & Fin. v. Commonwealth Employment Relations Bd., 477 Mass. 92, 95 (2017). “We ‘give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as the discretionary authority conferred upon it.’ ” Board of Higher Educ. v. Commonwealth Employment Relations Bd., 483 Mass. 310, 318 (2019), quoting G. L. c. 30A, § 14.

2. Selection of a health care provider to assess fitness to return to work. The employee's main complaint is that his employer, and not he, was responsible under the collective bargaining agreement to select (and, presumably, to pay) the health care provider who would determine whether he was fit to return to work. This claim fails, because failure to comply with a collective bargaining agreement is not a prohibited practice under G. L. c. 150E, § 10 (a). See Pattison v. Labor Relations Comm'n, 30 Mass. App. Ct. 9, 11 (1991). That claim had to be brought by the employee's union (as, apparently, it was), which has an enforceable “duty to represent its members fairly in connection with issues that arise under a collective bargaining unit.” Anderson v. Commonwealth Employment Relations Bd., 73 Mass. App. Ct. 908, 910 (2009), quoting National Ass'n of Gov't Employees v. Labor Relations Comm'n, 38 Mass. App. Ct. 611, 613 (1995).

3. Retaliation claim. Retaliation for union activity, on the other hand, is a prohibited activity under G. L. c. 150E, § 10 (a). See Fowler v. Labor Relations Comm'n, 56 Mass. App. Ct. 96, 97-98 (2002). The employer consistently took the position that it was not obligated to provide a health care provider to assess fitness unless it wanted a second opinion. The board determined that there was no evidence that the employer treated the employee differently in this respect from any other employee. It is undisputed that the employee did not provide medical evidence that he was fit to return to work. The employer stated that it terminated the employee for this reason. The board determined that there was no evidence that this was not the actual reason for the termination. As the employee presents no argument why either of the board's determinations was erroneous, substantial evidence supports the board's conclusion that there was no evidence that the employee suffered from prohibited retaliation.

Regarding the claim that the employee was initially placed on involuntary leave for retaliatory reasons, such a charge had to be filed with the Department of Labor Relations within six months, absent good cause to file late. See 456 Code Mass. Regs. § 15.04. Accord Secretary of Admin. & Fin., 81 Mass. App. Ct. at 86. Here, the record shows that the employee was placed on involuntary leave more than eighteen months before he filed his complaint, and the employee makes no argument that he demonstrated good cause for a late filing. Accordingly, substantial evidence supported the board's conclusion that this claim was time barred.

Decision of the Commonwealth Employment Relations Board affirmed.