Massachusetts Department of Transportation v. United Steelworkers, Local 5696.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties

and, therefore, may not fully address the facts of the case or the panel's

decisional rationale. Moreover, such decisions are not circulated to the entire

court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-123

MASSACHUSETTS DEPARTMENT OF TRANSPORTATION

vs.

UNITED STEELWORKERS, LOCAL 5696.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, United Steelworkers, Local 5696 (union),

appeals from an amended judgment entered on the pleadings in

favor of the plaintiff, the Massachusetts Department of

Transportation (department). The judgment vacated an

arbitration award of backpay and seniority rights to an employee

of the department. Because we conclude that the arbitrator did

not exceed his authority, we reverse.

Background. We recite the facts as found by the

arbitrator. Adrian Braka is employed by the department in its

Highway Operations Center (HOC) as an HOC Operator II. The HOC

provides "24/7" traffic management and emergency response for

roads and tunnels in the Commonwealth.

In March 2020, following the onset of the COVID-19

pandemic, the Governor declared a state of emergency. Although

much of the department's in-person operations were shut down,

the HOC continued its operations. In August 2021, the Governor

issued an executive order requiring all executive department

employees to provide proof of vaccination against COVID-19 on or

before October 17, 2021,1 or to obtain an exemption "where a

reasonable accommodation can be reached" for employees unwilling

to receive vaccination due to sincerely held religious beliefs.

The department subsequently adopted a policy that required

employees to show proof of vaccination against COVID-19 as a

condition of employment or to submit a request for a medical or

religious exemption. Under the policy, employees who failed to

comply would face progressive discipline, beginning with a five-

day suspension without pay and culminating in termination of

employment.

On September 28, 2021, Braka submitted a religious

exemption request form to the department and attached a letter

from his pastor. On October 12, Braka was interviewed by the

department's director of equal employment opportunity programs.

This interview focused solely on Braka's religious beliefs and

1 Executive Order No. 595 (Aug. 19, 2021).

2

did not cover the subject of possible accommodations.2 The

department subsequently denied Braka's request, claiming that

granting his request would impose an undue hardship and that the

department "explored the possibility of transferring or

reassigning [Braka] to a vacant position, but no alternative

assignments" were available at that time.3

On November 5, 2021, Braka submitted an appeal, proposing

possible accommodations such as remote work, regular testing for

COVID-19, and social distancing, and further suggesting that he

could work "in a separate space at the HOC or [department]

building." The department denied the appeal, claiming that

Braka had failed to provide any new or differing information or

evidence of a mistake of fact or interpretation of law or

policy. After his request for an accommodation was denied,

Braka continued to oppose vaccination on religious grounds, and

the department proceeded with the progressive disciplinary steps

outlined in its vaccination policy. The department terminated

Braka on December 14, 2021.

2 The department determined that Braka had sincerely held

religious beliefs and does not challenge the sincerity of those

beliefs on appeal.

3 The department's director of human resources testified

that approximately one hundred applications for exemptions were

filed by department employees, but that he did not recall any

accommodations being granted for religious exemptions.

3

At all relevant times, the department was party to a

collective bargaining agreement (CBA) with the union. The CBA

included, in relevant part, provisions that prohibited the

department from discriminating against employees based on

"religion" or "creed" or from discharging nonprobationary

employees "without just cause." The CBA also included a

standard grievance procedure, including "final and binding"

arbitration under G. L. c. 150C.

The union grieved Braka's termination and requested

arbitration. In the meantime, because of decreasing

transmission rates and increased level of vaccinations against

COVID-19, on October 18, 2022, the department offered to

reinstate Braka, and he returned to work. The union continued

to pursue arbitration seeking lost wages, benefits, and

seniority, and claiming that the department had failed to

reasonably accommodate Braka's sincerely held religious beliefs

and had disciplined and terminated him without just cause.4

Following a hearing, the arbitrator found that the

department failed to meet its burden of proving that it had

properly considered possible accommodations for Braka's

4 The parties agreed to the following questions for

arbitration: (1) "Did [the department] deny reasonable

accommodation to [Braka]?" and (2) "If so, what shall the remedy

be?"

4

sincerely held religious beliefs. While the department claimed

to have considered accommodations, including reassignment to

another position at the department, remote work, or work in a

separate space at the HOC, the arbitrator found that the

department's investigation into each of these options was

"cursory." He further noted that the department's conclusions

that such accommodations were unavailable or not possible "were

only supported by conclusionary statements offered at hearing,"

and that there was "insufficient evidence that anyone looked

into lists of vacant positions, or lists of vacant rooms

available, or the specifics of what was needed for [Braka] to

work remotely." The arbitrator sustained the union's grievance

and ordered back pay, benefits, and seniority credit.

The department filed a complaint in the Superior Court

pursuant to G. L. c. 150C, § 11, seeking to vacate the

arbitration award on the ground that the arbitrator had exceeded

his authority in issuing an award that "violates public policy"

in that it "imperils the safety of the traveling public and

[department] employees by limiting [the department's] ability to

provide essential public safety services." In his memorandum of

decision and order on cross-motions for judgment on the

pleadings, the Superior Court judge agreed with the department

and found that the arbitrator's award interfered with the

5

department's nondelegable rights under its enabling statute,

G. L. c. 6C, § 3 (6). Section 3 (6) grants the department, in

relevant part, the authority to "direct, coordinate and

supervise the administration of the department to promote

economy and efficiency."

The judge stated that this "admittedly very broad" grant of

authority "encompasses the [department's] obligation to ensure

public safety," and found that "staffing decisions taken in

furtherance of efficient and effective operation of the command

and control functions of the HOC, particularly during the COVID-

19 pandemic, are nondelegable powers reserved to the

[department]." In vacating the award, the judge held that the

arbitrator had exceeded his authority by substituting his

judgment that there were "possible accommodations" in place of

"the opposite conclusion reached by the department." The union

appealed.

Discussion. "We review a decision affirming or denying a

motion for judgment on the pleadings . . . as well questions of

statutory interpretation, de novo." Hovagimian v. Concert Blue

Hill, LLC, 488 Mass. 237, 240 (2021). See Boston Teachers

Union, Local 66 v. School Comm. of Boston, 494 Mass. 519, 521-

522 (2024).

6

"A reviewing court generally accords deference to the

decision of an arbitrator in a collective bargaining dispute

governed by the provisions of G. L. c. 150C, §§ 1-16." Chaloff

v. Westwood Pub. Sch., 105 Mass. App. Ct. 13, 15 (2024), citing

School Comm. of Lexington v. Zagaeski, 469 Mass. 104, 110

(2014). "Unlike our review of factual findings and legal

rulings made by a trial judge, we are strictly bound by an

arbitrator's findings and legal conclusions, even if they appear

erroneous, inconsistent, or unsupported by the record at the

arbitration hearing." Lynn v. Thompson, 435 Mass. 54, 61

(2001), cert. denied, 534 U.S. 1131 (2002). With limited

exceptions, the parties "cannot ordinarily obtain judicial

relief if they disagree with the decision rendered by the

individual whom they have empowered to adjudicate the

controversy." Boston Police Patrolmen's Ass'n v. Boston, 60

Mass. App. Ct. 672, 674 (2004). However, "the question whether

the arbitrator[] acted in excess of the authority conferred on

[him], as [found by the Superior Court judge] in the present

case, is always open for judicial review" (citation omitted).

Higher Educ. Coordinating Council/Roxbury Community College v.

Massachusetts Teachers' Ass'n/Mass. Community College Council,

423 Mass. 23, 27 (1996).

7

The union argues that the judge erred in finding that the

department's enabling statute grants it a nondelegable public-

safety management right and in determining that the arbitrator's

award interfered with that right.5 While these arguments may

have some heft,6 we need not decide them, as we agree with the

union that, even if the department has such a nondelegable right

and the arbitration award somehow impinges on that right, the

doctrine of nondelegation must give way to the constitutional

prohibition on religious discrimination.7 See Blue Hills

5 In its brief, the department defines the scope of its

authority under the relevant portion of its enabling statute as

the "nondelegable managerial duty to maintain a safe workplace

and to provide critical safety services to the public in the

specific context of making decisions regarding staffing during a

surge in the COVID-19 pandemic."

6 Statutes that confer only "general" management authority

on an employer ordinarily "must yield to the obligation to

engage in collective bargaining." Board of Higher Educ. v.

Commonwealth Employment Relations Bd., 483 Mass. 310, 319

(2019). Here, the department relies on statutory language that

defines the scope of its management authority in the broadest of

terms, empowering it to "direct, coordinate and supervise the

administration of the department to promote economy and

efficiency." G. L. c. 6C, § 3 (6). The department cites no

case that has interpreted comparably broad language to give an

employer nondelegable powers over all staffing decisions, even

those that might violate an antidiscrimination provision of the

CBA.

7 The department contends that the union has waived any

argument that an exception for constitutional discrimination

applies in this case because the union only "flatly asserted"

the constitutional proscription against religious discrimination

in its filings. This argument is unavailing, as the union did

invoke constitutional proscriptions against religious

8

Regional Dist. Sch. Comm. v. Flight, 383 Mass. 642, 644 (1981).

See also Framingham v. Framingham Police Officers Union, 93

Mass. App. Ct. 537, 546 n.11 (2018) ("The doctrine of

nondelegation generally must give way to the constitutional and

statutory prohibitions on invidious discrimination").

In Flight, 383 Mass. at 644, the Supreme Judicial Court

carved out an exception to the doctrine of nondelegation for

cases where a grievant raises claim that implicate

constitutional and statutory prohibitions on invidious

discrimination by a public employer. See id. The court

reasoned that a "[d]ecision by an arbitrator in such a case is

no more intrusive than [a] decision by an independent

commission, and does not unreasonably trespass on the managerial

authority of the employing agency." Id. Here, the arbitrator

determined that the department failed to satisfy its burden of

sufficiently investigating potential religious accommodations.

Consequently, the award at issue does not unreasonably trespass

on the department's authority because the same result could have

been attained in an administrative proceeding. See Stonehill

discrimination below and the arbitrator's finding that the

department failed to meet its burden to consider religious

accommodations clearly implicates the proscription against such

discrimination under the First Amendment to the United States

Constitution and art. 46, § 1, of the Massachusetts Declaration

of Rights.

9

College v. Massachusetts Comm'n Against Discrimination, 441

Mass. 549, 567, 570-576 (2004), quoting G. L. c. 151B, § 5 (on

finding of employment discrimination, Massachusetts Commission

Against Discrimination [MCAD] has broad authority to take

"affirmative action, including but not limited to, hiring,

reinstatement or upgrading of employees, with or without back

pay"). See also New York and Mass. Motor Servs., Inc. v.

Massachusetts Comm'n Against Discrimination, 401 Mass. 566, 568,

584 (1988) (affirming finding that employee was discriminated

against on basis of religion and remanding for recalculation of

award of back pay).8

The department does not contest that the same result could

have been obtained in an administrative proceeding and instead

argues that the exception to the doctrine of nondelegation

articulated in Flight has been narrowed. The cases cited by the

department, however, merely follow precedent in declining to

extend this exception to allegations of discrimination on the

basis of union membership, a category that is not similarly

constitutionally protected. See Department of State Police v.

Massachusetts Org. of State Eng'rs and Scientists, 456 Mass.

8 The department does not contend that Braka was not

qualified for his position as HOC Operator II. Indeed, the

department voluntarily reinstated Braka to that position in

October 2022.

10

450, 459 (2010) ("Flight's restricted exception to the

nondelegability doctrine does not cover . . . discrimination

claim based on [grievant's] union membership and activities").

See also Sheriff of Middlesex County v. International Bhd. of

Correctional Officers, Local R1-193, 62 Mass. App. Ct. 830, 834

(2005) (Flight exception was not triggered where discrimination

claim was based on union membership and not membership in

constitutionally protected category such as gender or race).

While Flight does not specifically restrict its holding to cases

alleging constitutionally proscribed discrimination, we are

satisfied that the arbitrator's findings here implicate

statutory and constitutional proscriptions against religious

discrimination, and that the circumstances of this case fall

within the narrow exception announced in Flight.9

9 Because we find that this case falls within the narrow

exception to the nondelegability doctrine articulated in Flight,

383 Mass.at 644, we need not reach the union's argument that

even if the department had the nondelegable staffing authority

it claims, the arbitrator's award of back pay, benefits, and

seniority credit could not impermissibly interfere with such

authority. See, e.g., Higher Educ. Coordinating Council/Roxbury

Community College, 423 Mass. at 33 (award of damages within

scope of arbitrator's powers "so long as the damages were in an

amount that would not have the effect of compelling

reinstatement" [quotation and citation omitted]).

11

Conclusion. The judgment is reversed, and a new judgment

shall enter confirming the arbitration award.

So ordered.

By the Court (Vuono, Shin &

Smyth, JJ.10),

Clerk

Entered: April 10, 2026.

10 The panelists are listed in order of seniority.

12