Appeals Court Reaffirms Requirement to Exhaust Grievance Procedures in Collective Bargaining Agreements
In Tortolano v. Lemuel Shattuck Hospital, No. 17-P-631 (2018), the Appeals Court has reiterated that employees covered by a collective bargaining agreement (“CBA”) and its respective grievance procedure must exhaust that procedure before bringing a breach of contract claim. Additionally, the Appeals Court held employees challenging overtime wages pursuant to M.G.L. c. 149, § 30B have no private right of action to bring a claim.
The plaintiff, a physician’s assistant at Lemuel Shattuck Hospital (“Hospital”), was a State employee and member of the local Union. The CBA between the State and the Union entitled the plaintiff to overtime pay for time spent “on call” while at home. In the fall of 2014, plaintiff’s Union representative filed a grievance against the hospital for failure to pay for “on call” overtime. The Hospital did not respond to the grievance, and plaintiff nor her Union representative took any further action. Plaintiff then filed a complaint with the Attorney General alleging nonpayment of wages and overtime pay violations. In a letter to plaintiff, the Attorney General’s office declined to take any enforcement action on the complaint, but advised plaintiff that a private suit would be proper, and that there were “private right[s] of action for employees who believe they are victims of certain violations of the state wage laws.”
The plaintiff then filed a lawsuit in Superior Court against the Hospital for several wage violations including M.G.L. c. 149, § 30B, and breach of contract. Plaintiff sought overtime wages pursuant to § 30B, and argued that the Hospital breached the CBA by ignoring her grievance. The Hospital, in its motions to dismiss, argued that plaintiff’s breach of contract claim must be dismissed for failure to exhaust the grievance procedure in the parties’ CBA, and the overtime wage claim under § 30B must be dismissed where the statute tenders no private right of action. The Superior Court agreed, granting the Hospital’s motions to dismiss and giving rise for plaintiff’s appeal.
In addressing plaintiff’s breach of contract claim, the Appeals Court relied on established law that where a CBA includes a grievance procedure, failure to pursue that procedure bars suit against the employer. Here, the grievance procedure included a provision that if the Hospital “exceeds any time limits for responding, the employee or the union may assume that the grievance has been denied and may invoke the next step of the procedure…” Therefore, the Appeals Court concluded, when the Hospital did not respond to the grievance in the prescribed time period, the grievance was deemed denied, permitting either plaintiff or the union to move the grievance to the next step, which they failed to do. The Appeals Court stated further that plaintiff could have progressed her grievance without the Union’s assistance, and by failing to do so, she did not exhaust the grievance procedure. Consequently, the Appeals Court denied plaintiff’s breach of contract claim.
The Appeals Court then addressed plaintiff’s overtime wage claim pursuant to § 30B. There is no express private right of action within the statute, so the Appeals Court evaluated whether to infer such a right. In looking at other provisions of c. 149, several provided express private rights of action but none with respect to § 30B. The Appeals Court thus reasoned that “the many express private rights of action in c. 149 demonstrate that the Legislature knows how to confer a private right of action when it so intends, and the c. 149 provisions are a strong indication that no further private rights of action should be inferred.” Accordingly, the Appeals Court refused to infer a private right of action as to plaintiff’s § 30B overtime wage claim. The plaintiff additionally argued that where the Attorney General has authority to enforce a § 30B claim, the Attorney General’s letter to plaintiff passed on enforcement power to her. The Appeals Court refused to accept this argument where “the Attorney General cannot create an alternative enforcement mechanism by unilaterally conferring…a private right of action on an individual.”
This decision serves as an important reminder for employers to be familiar with its obligations under collectively bargaining grievance procedures. Additionally, employers should take care to properly pay wages due their employees.
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This update is provided for informational purposes only and should not be considered legal advice.