NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

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-of-

grade 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 so-

called 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 make-

whole 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.
