In Massachusetts Bay Transportation Authority (MBTA) v. Boston Carmen’s Union, Local 589, the SJC reviewed two separate arbitration awards and held that a public employer may act contrary to the terms of a collective bargaining agreement (CBA) in order to remedy illegal discrimination.

The first case involved a hearing-impaired job applicant whom the MBTA did not hire because he could not pass a physical exam. The applicant was not permitted to wear his hearing aid during the examination. He filed a disability discrimination claim with the Massachusetts Commission Against Discrimination (MCAD). The MCAD found probable cause to believe that discrimination had occurred, and the MBTA chose to settle the matter by hiring the applicant, granting him retroactive seniority under the CBA, and setting his rate of pay at the top of the CBA’s pay scale. The MBTA never sought the Union’s approval of the settlement.

The Union filed a grievance, seeking an order prohibiting the MBTA from negotiating with individual employees to establish terms or conditions of employment without its consent. An arbitrator concluded that a private settlement cannot deviate from the terms of a CBA without the Union’s consent absent an adjudication of discrimination. The Superior Court affirmed the arbitrator’s decision.

The SJC vacated the arbitrator’s award on public policy grounds, holding that there was a “substantial basis” to believe that the MBTA had discriminated against the applicant because the MCAD had found probable cause and the remedy provided in the settlement was the remedy “awarded presumptively” after a finding of discrimination in hiring.

In the second case, the MBTA discovered that women and minorities were being excluded from its “spare inspector” list and issued a new list, resulting in some employees losing seniority to more junior employees. An arbitrator concluded that the MBTA had a right to place employees’ names on the list but could not remove names from the list without Union authorization. The Superior Court affirmed the arbitrator’s decision.

This time the SJC confirmed the award. The SJC found that the employees on the list had acquired seniority rights under the CBA, and the MBTA could not strip those rights in the circumstances because no one had come forward with a claim of discrimination and the MBTA had failed to prove at arbitration that it had discriminated against anyone when it initially populated the list. Thus, the SJC concluded that public policy concerns were not implicated, and therefore the MBTA should have negotiated with the Union to remedy any improper appointments.

The SJC’s holding suggests that public employers with unionized workforces may only act unilaterally to correct discriminatory practices if they can point to evidence of discrimination, such as a probable cause finding. Otherwise, public employers should negotiate with Union representatives to remedy any alleged discriminatory practices. It is unclear whether the Court would have reached the same result with a private employer because federal labor law generally displaces inconsistent state laws.