Parris v. Sheriff of Suffolk County

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17-P-189 Appeals Court

EDWIN PARRIS & others1 vs. SHERIFF OF SUFFOLK COUNTY.

No. 17-P-189.

Suffolk. January 16, 2018. - September 5, 2018.

Present: Green, C.J., Trainor, Vuono, Massing, & Singh, JJ.2

Sheriff. Massachusetts Wage Act. Practice, Civil, Summary
judgment. Contract, Collective bargaining contract.
Public Employment, Collective bargaining. Labor,
Collective bargaining, Overtime compensation, Failure to
pay wages, Public employment.

Civil action commenced in the Superior Court Department on
June 10, 2014.

The case was heard by Paul D. Wilson, J., on motions for
summary judgment, and a motion for reconsideration was
considered by him.

1 Shane Bouyer, Augusta Akukwe, Christopher Popov, and Jail
Officers and Employees Association of Suffolk County. The four
lead plaintiffs seek to represent a class of 194 similarly
situated individuals.

2 This case was initially heard by a panel comprised of
Justices Trainor, Massing, and Singh. After circulation of a
majority and dissenting opinions to the other Justices of the
Appeals Court, the panel was expanded to include Chief Justice
Green and Justice Vuono. See Sciaba Constr. Corp. v. Boston, 35
Mass. App. Ct. 181, 181 n.2 (1993).
2

Dennis M. Coyne for the plaintiffs.
Janna Hansen, Assistant Attorney General, for the
defendant.

MASSING, J. The Wage Act, G. L. c. 149, §§ 148 and 150,

generally requires that all public and private employers in the

Commonwealth pay their employees' wages no more than seven days

after the end of the pay period in which the wages were earned.

Employees whose wages are detained longer than the Wage Act

permits are entitled, after filing a complaint with the Attorney

General, to initiate civil actions for injunctive relief,

damages including lost wages, mandatory treble damages, and

attorney's fees. The defendant sheriff of Suffolk County

(sheriff), as a State employer, is required to make payments in

accordance with the Wage Act to "every mechanic, workman and

laborer" he employs and to "every person employed in any other

capacity by [him] in any penal or charitable institution . . .

unless such mechanic, workman, laborer or employee requests in

writing to be paid in a different manner" (emphasis supplied).

G. L. c. 149, § 148, as appearing in St. 1960, c. 416.

In this case we must determine whether a provision in the

collective bargaining agreements (CBAs) between the sheriff and

the unions representing his employees amounts to a valid

"request[] in writing" by the employees "to be paid in a

different manner." Ibid. In addition, we must determine
3

whether the CBAs in question effectively waived the employees'

rights to judicial enforcement of claims of late payment. We

conclude that the unions had the authority, through collective

bargaining, to exercise the employees' election to request that

payment of overtime wages be made under a different schedule

than the Wage Act provides, but that the CBAs here were not

effective to waive the employees' rights to enforcement in court

of the altered Wage Act schedule.

Background. The facts, as presented in the parties' cross

motions for summary judgment, are not in dispute. The

individual plaintiffs all work or worked for the sheriff at the

Nashua Street jail between January, 2010, and July 25, 2015.3

All of the employees are members of State collective bargaining

units. Plaintiff Jail Officers and Employees Association of

Suffolk County (union) is the exclusive bargaining

representative for most of the employees; two other unions

represent the remaining employees. The sheriff recognized these

unions as the exclusive representatives of their members for the

purpose of collective bargaining. See G. L. c. 150E, § 4.

3 The plaintiffs became State employees when the Legislature
transferred the sheriff's department to the Commonwealth on
January 1, 2010. See St. 2009, c. 61, §§ 3, 4, 26; Sheriff of
Suffolk County v. Jail Officers & Employees of Suffolk County,
465 Mass. 584, 595 (2013). As State employees working at a
penal institution, the employees -- irrespective of their
various job classifications -- were covered by the Wage Act.
Contrast Newton v. Commissioner of the Dept. of Youth Servs., 62
Mass. App. Ct. 343, 348-349 (2004).
4

The sheriff and the unions entered into a series of CBAs

relevant to this litigation.4 These CBAs contained an identical

provision (art. X, § 7) reflecting the parties' agreement

concerning the timing of overtime payments: "Employees shall be

paid for overtime service within twenty-five (25) working days

following the month in which such service is performed." At all

relevant times the sheriff paid the employees their overtime

wages under the CBA twenty-five-day provision rather than under

the Wage Act's seven-day period. In some instances the sheriff

detained overtime wages beyond the twenty-five-day time frame

permitted in the CBAs.5

After obtaining authorization from the Attorney General,6

the lead plaintiffs commenced this action on behalf of

4 The record includes copies of the CBAs between the sheriff
and the three unions for the periods July 1, 2009, to June 30,
3012; July 1, 2012, to June 30, 2014; and July 1, 2014, to June
30, 2017. In the agreements for 2009 through 2012, the employer
was Suffolk County, "acting by and through the Sheriff of
Suffolk County, hereinafter called 'the Municipal Employer.'"
In the later CBAs, the employer was changed to the Commonwealth,
reflecting the transfer of the sheriff's department to the
Commonwealth. Nonetheless, the CBAs continued to refer to the
sheriff as the "Municipal Employer."

5 The plaintiffs allege that overtime payments were made
"from one to eight months or more after the regular bi-weekly
pay period ended." The sheriff admits "that there were a de
minimus number of payments, representing a mere fraction of all
of the payments in this case, that eclipsed the 25 day payment
term."

6 Under G. L. c. 149, § 150, the Attorney General may
institute civil or criminal actions to enforce § 148. In
5

themselves and other similarly situated employees. They alleged

that the sheriff violated the Wage Act by, among other actions,

failing to pay overtime wages within seven days.7 Acting on

cross motions for summary judgment, a judge of the Superior

Court held that the employees, "having approved a written

request in the CBA that they be paid in a different manner, have

waived their right to enforce the schedule set out in the Wage

Act." On the plaintiffs' timely motion for reconsideration, the

judge further concluded that to the extent the sheriff exceeded

the twenty-five-day time limit, the plaintiffs were required to

exhaust the CBA's grievance procedures. Judgment entered for

the sheriff, the plaintiff's complaint was dismissed, and this

appeal ensued.

Discussion. 1. Request to deviate from Wage Act payment

schedule. "The purpose of G. L. c. 149, § 148, is to prevent

the evil of the 'unreasonable detention of wages [by

employers].'" Newton v. Commissioner of the Dept. of Youth

Servs., 62 Mass. App. Ct. 343, 345 (2004), quoting from Boston

Police Patrolmen's Assoc., Inc. v. Boston, 435 Mass. 718, 720

(2002). See American Mut. Liab. Ins. Co. v. Commissioner of

addition, individual employees aggrieved by Wage Act violations
may file civil suits on their own behalf ninety days after
filing a complaint with the Attorney General or sooner if the
Attorney General gives her written assent.

7 The plaintiffs have voluntarily dismissed all claims
except their claim for untimely payment of overtime wages.
6

Labor & Indus., 340 Mass. 144, 147 (1959) (Wage Act was adopted

"primarily to prevent unreasonable detention of wages"). "We

have consistently held that the legislative purpose behind the

Wage Act . . . is to provide strong statutory protection for

employees and their right to wages." Crocker v. Townsend Oil

Co., 464 Mass. 1, 13 (2012). Accordingly, waiver of Wage Act

protections is strongly disfavored. See, e.g., Melia v.

Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting from Camara v.

Attorney Gen., 458 Mass. 756, 760-761 (2011) ("An agreement to

circumvent the Wage Act is illegal even when 'the arrangement is

voluntary and assented to'").

The fundamental public policy against forfeiture of Wage

Act protections is rooted in the "special contract" provision of

the statute, originally inserted in 1896, Melia, supra, which

states, "No person shall by a special contract with an employee

or by any other means exempt himself from this section or from

[G. L. c. 149, § 150]." G. L. c. 149, § 148, as appearing in

St. 1956, c. 259. Public employees, however, have long been

explicitly granted the ability to make written requests to alter

the manner of their payments. The ability to make this election

predates the special contract provision. Indeed, as early at

1887, city employees were entitled to payment of wages every

seven days, "unless such employee shall request in writing to be

paid in some different manner." St. 1887, c. 399, § 1.
7

While the Wage Act has consistently given the individual

public employee the ability to make a written request for a

different manner of payment, the statute does not expressly

permit an employee's collective bargaining representative to

make such a written request on the employee's behalf. The first

question we must decide, therefore, is whether a collective

bargaining representative has the authority to exercise the

individual employees' election through collective bargaining.

An interpretation of the Wage Act requiring individual

employees personally to make this election would create a

conflict with the public employee labor relations law, G. L.

c. 150E. Under c. 150E, the relevant unions are the employees'

"exclusive representative of all the employees . . . for the

purpose of collective bargaining," G. L. c. 150E, § 4, inserted

by St. 1973, c. 1078, § 2, and are empowered to act on the

employees' behalf "with respect to wages, hours, standards or

productivity and performance, and any other terms and conditions

of employment," G. L. c. 150E, § 6, inserted by St. 1973,

c. 1078, § 2. The employees' status as union members limits the

sheriff's ability to deal directly with them. Rather, the

unions possess the right to speak exclusively for all the

employees on mandatory subjects of collective bargaining. See

Service Employees Intl. Union, AFL-CIO, Local 509 v. Labor

Relations Commn., 431 Mass. 710, 714 (2000). Direct
8

communications between the sheriff and the employees regarding

changes to the statutory payment schedule would have been a

prohibited practice. See id. at 715; Service Employees Intl.

Union, Local 509 v. Department of Mental Health, 469 Mass. 323,

333 & n.10 (2014).

Public employee collective bargaining was first authorized

by statute long after the Wage Act was in place. See Somerville

v. Commonwealth Employment Relations Bd., 470 Mass. 563, 568-569

(2015) (discussing Commonwealth's recognition in 1958 of right

of public employees to organize and to bargain collectively).

"We assume that the Legislature was aware of existing statutes

when enacting subsequent ones." Green v. Wyman-Gordon Co., 422

Mass. 551, 554 (1996). See Everett v. Revere, 344 Mass. 585,

589 (1962), quoting from Walsh v. Commissioners of Civil Serv.,

300 Mass. 244, 246 (1938) ("A statute is to be interpreted with

reference to the preëxisting law. . . . If reasonably

practicable, it is to be explained in conjunction with other

statutes to the end that there may be an harmonious and

consistent body of law"); 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)

("When possible, we attempt to read [statutes] and the

collective bargaining law, as well as the agreements that flow

from the collective bargaining law, as a 'harmonious whole'").
9

To harmonize the Wage Act with c. 150E, we hold that the

unions may act on behalf of their members to exercise the

employees' election under the Wage Act to alter the timing of

the overtime payments. We emphasize that the provision of the

CBAs at issue here did not represent a waiver of individual

rights under the Wage Act. Rather, the provision represents a

negotiated version of a different time period for payment,

elected by the employees as permitted by the terms of the Wage

Act, through their collective bargaining representatives.

Accordingly, to the extent that the sheriff paid the employees'

overtime wages within twenty-five days of the end of the month

in which they were earned, the sheriff was in compliance with

what the unions, on behalf of the employees, agreed was timely

payment under the Wage Act.

2. Judicial remedies. Having held that the parties

validly negotiated for the employees to be paid according to a

different schedule than the Wage Act provides, we must determine

whether the CBAs preclude the employees from judicial

enforcement of their right to prompt payment under the

negotiated Wage Act schedule. We conclude that they do not.

"[T]he prompt payment of wages statute creates an independent

statutory right that can be enforced judicially even when a

collective bargaining agreement addresses the subject matter of

compensation." Newton, 62 Mass. App. Ct. at 347.
10

Unlike the exercise of the Wage Act election to be paid in

a different manner, we deal here with the purported waiver of an

individual statutory right. "Although a union has the power to

waive statutory rights related to collective activity, rights

. . . which are of a personal, and not merely economic, nature

are beyond the union's ability to bargain away." Blanchette v.

School Comm. of Westwood, 427 Mass. 176, 183 (1998) (protections

of antidiscrimination law, G. L. c. 151B, not waivable through

collective bargaining). The Wage Act rights at issue here fall

into this category: "The statutory right to the timely payment

of wages does not involve the collective rights of employees

but, rather, is designed to insure that each individual is paid

promptly the wages due him or her." Newton, supra at 346.8

No Massachusetts appellate decision has ever upheld the

waiver of individual statutory rights through a CBA. In Newton,

even though the CBA included provisions concerning overtime,

call-back, stand-by pay, and a grievance procedure "relating to

8 Because claims under the Wage Act, like claims under the
antidiscrimination law, concern individual rather than
collective rights and are protected by a strong, statutorily
expressed public policy, the case law concerning waiver of
antidiscrimination claims is uniquely applicable here. These
statutory rights are "unlike . . . the right to receive a
financial reward beyond his base salary for advancing his
education and job training," at issue in Rooney v. Yarmouth, 410
Mass. 485, 492 (1991) (contrasting Rooney's rights under Quinn
Bill with "right to minimum wage and overtime pay" under the
Fair Labor Standards Act and "right to equal employment
opportunities").
11

the interpretation and application of the terms of the

agreement," we held that the agreement did not waive the

plaintiffs' "right to the timely payment of wages" under the

Wage Act. Ibid. "While an individual may waive the

requirements of the statute by a writing, the record does not

disclose that the plaintiffs did so. Nor does their collective

bargaining agreement include any reference to G. L. c. 149,

§ 148, or to the time when wages must be paid." Id. at 345.

The United States Supreme Court, in Barrentine v. Arkansas-

Best Freight Sys., 450 U.S. 728, 745 (1981), similarly held that

the grievance procedures of a CBA could not waive an individual

employee's right to bring an action in Federal court alleging a

violation of the minimum wage provision of the Fair Labor

Standards Act (FLSA). The Court stated that employees' rights

under the FLSA "devolve on petitioners as individual workers,

not as members of a collective organization. They are not

waivable." Ibid.

More recently, in a sharply divided decision, the United

States Supreme Court held for the first time that Federal law

permits enforcement of a provision in a CBA that compels

arbitration of individual employees' statutory age

discrimination claims, but only by way of "a provision . . .

that clearly and unmistakably requires union members to

arbitrate claims arising under the Age Discrimination in
12

Employment Act of 1967." 14 Penn Plaza LLC v. Pyett, 556 U.S.

247, 251 (2009). The Court distinguished Barrentine on the

ground that "the arbitration provision under review in

Barrentine did not expressly reference the statutory claim at

issue." Id. at 263.

We need not determine whether Massachusetts law permits a

union to waive represented employees' rights and remedies under

the Wage Act9 because we conclude that the CBAs before us do not

include such a waiver. The Commonwealth's fundamental public

policy "to provide strong statutory protection for employees and

their right to wages," Crocker, 464 Mass. at 13, would require,

at the minimum, a clear and unmistakable waiver. The CBAs here

do not meet this high standard.

The case of Warfield v. Beth Israel Deaconess Med. Center,

Inc., 454 Mass. 390 (2009), like the case before us, considered

the specificity necessary to waive judicial enforcement of an

important public policy protection. The question in Warfield

was whether a clause in an individual's employment agreement

providing for arbitration of "[a]ny claim, controversy or

dispute arising out of or in connection with" the contract

9 In Warfield v. Beth Israel Deaconess Med. Center, Inc.,
454 Mass. 390, 401 n.17 (2009), the court noted the sharp
disagreement among the justices in 14 Penn Plaza LLC regarding
whether "a collective bargaining agreement could waive an
individual's right to court access for individually based
statutory claims."
13

applied to an employment discrimination claim under G. L.

c. 151B. Warfield, supra at 392. Both the Federal Arbitration

Act (FAA) and the Massachusetts Arbitration Act explicitly

permit written agreements to submit to arbitration any

controversy between the parties. Id. at 394-395. Moreover,

Federal law allows for arbitration of Federal employment

discrimination disputes, and the court assumed without deciding

that Massachusetts law likewise would permit arbitration of

employment discrimination claims under G. L. c. 151B. Warfield,

supra at 395. In addition, both Federal and State law and

policy favor arbitration, creating a rebuttable presumption of

arbitrability. Id. at 396.

Nonetheless, relying on the Commonwealth's "overriding

governmental policy proscribing various types of discrimination,

set forth in G. L. c. 151B," Warfield, supra at 398, quoting

from Massachusetts Bay Transp. Authy. v. Boston Carmen's Union,

Local 589, 454 Mass. 19, 26, 29 (2009), the court held that "an

employment contract containing an agreement by the employee to

limit or waive any of the rights or remedies conferred by G. L.

c. 151B is enforceable only if such an agreement is stated in

clear and unmistakable terms." Warfield, supra.10

10 To the extent our dissenting colleagues assert that the
presumption of arbitrability overrides the need for a clear and
unmistakable waiver, the Supreme Judicial Court considered that
issue at length, see Warfield, supra at 397-401, and concluded
14

Similarly in Blanchette, 427 Mass. at 183, after

determining that the plaintiff's individual judicial remedies

could not be waived by her union's collective bargaining

agreement, the court considered whether she had waived those

remedies by her own actions. The court assumed that the

plaintiff "may have been able explicitly and voluntarily to

waive her right to pursue her statutory civil rights claim in a

judicial forum," but held that "there is no evidence that [she]

made such an explicit and voluntary waiver." Id. at 184.

Finally, in Crocker, 464 Mass. at 12, the court considered

whether a general release agreement made in settlement of an

employment dispute could insulate an employer from Wage Act

liability. Resolving the tension between the Wage Age, which

generally prohibits any agreement to circumvent its protections,

and "the contravening public policy favoring the enforceability

of general releases," id. at 14, the Crocker court created a

limited exception to the "special contract" prohibition. Melia,

462 Mass. at 170 (citation omitted). To protect against the

possibility "that the strong protections afforded by the Wage

that "[t]he interpretive rule we state here is not inconsistent
with the presumption of arbitrability embedded in the FAA." Id.
at 399. Post at . The court emphasized that the case
concerned "an 'overriding' statutorily expressed, public
policy," calling for "distinct treatment," Warfield, supra at
400 n.16 (citation omitted) -- as does the case before us. It
was in this context that the court further observed that an
employment contract need not "specifically list every possible
statutory claim that might arise." Ibid.
15

Act could be unknowingly frittered away under the cover of a

general release in an employer-employee termination agreement,"

the court held that such an agreement "will be enforceable as to

the statutorily provided rights and remedies conferred by the

Wage Act only if [it] is stated in clear and unmistakable

terms." Crocker, supra. "In other words, the release must be

plainly worded and understandable to the average individual, and

it must specifically refer to the rights and claims under the

Wage Act that the employee is waiving." Ibid.

Thus, even if Massachusetts were to allow a provision of a

CBA to waive represented employees' individual rights and

remedies under the Wage Act, the fundamental public policy to

prevent employees' unwitting waiver of their individual rights

would require "establishing a relatively narrow channel through

which waiver of Wage Act claims can be accomplished," id. at 15

-- that is, a clear and unmistakable statement. The CBAs here

do not meet this high standard.

With respect to the grievance procedure, the CBAs state in

art. VII, "Only matters involving the question whether the

[sheriff] is complying with the written provisions of this

Agreement shall constitute grievances under this Article." This

provision does not even mention, let alone clearly and

unmistakably state, that the employees have waived their rights

to judicial enforcement of Wage Act violations. See Wright v.
16

Universal Maritime Serv. Corp., 525 U.S. 70, 80 (1998) (general

arbitration clause, providing for arbitration of "[m]atters

under dispute," effective as to contractual, but not statutory,

claims; "a union negotiated waiver of employees' statutory right

to a judicial forum" must be "clear and unmistakable").

Even though the unions agreed to an extended period for the

timely payment of wages under the Wage Act, the unions did not

waive the employees' Wage Act remedies with respect to payments

withheld longer than the negotiated standard permits. The

twenty-five-day payment window is both a provision of the CBAs

and a requirement that the sheriff must meet to comply with the

Wage Act.11 "[I]t is . . . well-established that there are

certain personal, statutory rights that can be enforced

judicially even though they are incorporated into a collective

bargaining agreement. The mere fact that those rights may be

created both by contract and by statute and may be violated by

the same factual occurrence does not vitiate their distinct and

separate nature." Newton, 62 Mass. App. Ct. at 346 (citations

omitted). "[W]e agree with the plaintiffs that the right to

timely payment of wages is a distinct, independent statutory

11 Our dissenting colleagues erroneously contend that the
twenty-five-day provision is solely a creature of the CBAs.
Post at . To the contrary, it represents a "request[] in
writing," made under the provisions of the Wage Act, "to be paid
in a different manner." G. L. c. 149, § 148, as appearing in
St. 1960, c. 416.
17

right that can be enforced judicially even though the subject

matter of overtime . . . is incorporated in the plaintiffs'

collective agreement." Ibid.

The cases of Machado v. System4 LLC, 471 Mass. 204 (2015),

and Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271

(2009), two decisions that enforced individually negotiated

agreements to submit Wage Act claims to arbitration without

requiring explicit reference to the Wage Act in the arbitration

clause,12 are not to the contrary. Neither of those cases

concerned a purported waiver of individual rights in a CBA, a

distinction explicitly relied upon in Dixon. See Dixon, supra

at 277 & n.8.

Moreover, both cases reasoned that the arbitration

provisions at issue did not implicate the employees' substantive

rights under the Wage Act or "exempt" the employer from the Wage

Act's operation, "but solely dictate[d] the forum in which the

plaintiffs' right to recovery will be determined." Machado,

supra at 217-218. See Dixon, supra at 275 & n.5. Here,

however, not all of the statutory remedies available to the

12In Dixon, supra at 277 n.8, we rejected the employee's
argument that she did not waive her right to litigate her claim
because her waiver was not made "explicitly and voluntarily,"
citing Blanchette, 427 Mass. at 184. In Machado, supra at 216-
217, the court declined to extend the rule in Crocker "and hold
that the arbitration clause does not apply to [the plaintiffs']
Wage Act claims given that it makes no explicit mention of such
claims."
18

employees in court would be available to them under the CBAs.

The grievance procedure under the CBAs is limited "[o]nly [to]

matters involving the question whether the [sheriff] is complying

with the written provisions of [the CBA]." The CBAs do not

provide contractual remedies of treble damages or attorney's

fees, which are purely Wage Act terms. Indeed, the sheriff

asserts in his brief that "any alleged violation with respect to

the timing of overtime pay would be a violation of that CBA

provision, and not the Wage Act," and that the plaintiffs "are

not entitled to damages, treble or otherwise, since there is no

Wage Act violation."13 Even if the CBAs were considered

ambiguous as to the availability of Wage Act remedies, that

ambiguity alone would demonstrate why an express reference to

Wage Act rights is essential. The CBAs here do not include

sufficiently clear and unmistakable language to waive the

employees' individual judicial remedies contained in G. L.

c. 149, § 150.

13Justice Singh, in her dissent, asserts that "[b]y
agreeing to arbitrate a statutory claim, a party does not forgo
the substantive rights afforded by the statute," quoting from
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S.
614, 628 (1985). Post at . While this statement may be true,
it presupposes both an agreement to arbitrate and an arbitration
provision that incorporates the full range of statutory
remedies. See Barrentine, 450 U.S. at 745 ("Under the FLSA,
courts can award actual and liquidated damages, reasonable
attorney's fees, and costs. 29 U.S.C. § 216[b]. An arbitrator,
by contrast, can award only that compensation authorized by the
wage provision of the collective-bargaining agreement").
19

Conclusion. The plaintiff employees' election, through the

CBAs and authorized by the Wage Act, that payment of overtime

wages would be considered timely if made "within twenty-five

(25) working days following the month in which such service is

performed" is effective to supplant the Wage Act's seven-day

requirement. The plaintiffs did not waive their Wage Act

remedies for payment of wages beyond the twenty-five-day period.

Accordingly, we vacate the judgment dismissing the plaintiffs'

complaint. The plaintiffs may proceed to enforce their claims

for late payment in the Superior Court under G. L. c. 149,

§ 150.

So ordered.
SINGH, J. (dissenting, with whom Trainor, J., joins). I

agree with the majority that the provision of the collective

bargaining agreement (CBA) setting forth a twenty-five-day time

limit for the payment of overtime wages, rather than a seven-day

time limit as set forth in the Wage Act, is enforceable as a

"request[] in writing to be paid in a different manner,"

exercised by the unions on behalf of the employees. G. L.

c. 149, § 148, as appearing in St. 1960, c. 416. It follows

therefore that any dispute arising out of this provision of the

CBA must first be pursued within the grievance procedure

provided for in the CBA. See Azzi v. Western Elec. Co., 19

Mass. App. Ct. 406, 408 (1985) (before bringing action against

employer for violation of CBA, employee required to exhaust

grievance procedure), citing Vaca v. Sipes, 386 U.S. 171, 184

(1967). To the extent that the majority allows employees to

elect a judicial remedy in the first instance, bypassing the

contractual remedies provided for in the CBA, I dissent.

The CBA provides that "matters involving the question

whether the [sheriff of Suffolk County (sheriff)] is complying

with the written provisions of this Agreement shall constitute

grievances" and sets out a detailed grievance procedure to be

followed, ultimately concluding in binding arbitration. The

employees' claim to have not been paid overtime wages within

twenty-five days as required by the CBA unquestionably falls
2

within the definition of a grievance. The employees were

therefore required to pursue and to exhaust their contractual

remedies through the grievance procedure; election of a judicial

remedy in the first instance was not permissible. See Malden

Police Patrolman's Assn. v. Malden, 92 Mass. App. Ct. 53, 59

(2017) ("Employees may not simply disregard the grievance

procedures set out in a collective labor contract and go

direct[ly] to court for redress against the employer"), quoting

from Balsavich v. Local Union 170 of the Intl. Bhd. of

Teamsters, Chauffeurs, Warehousemen & Helpers of America, 371

Mass. 283, 286 (1976).

Relying primarily on cases involving claims of employment

discrimination,1 the majority contends that the CBA must state in

"clear and unmistakable" terms that employees waive the right to

bring a Wage Act claim in court for claims arising out of the

CBA provision requiring overtime wages to be paid within twenty-

five days. Ante at . Yet, there is a presumption of

arbitrability in contracts containing arbitration clauses. See

Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 666 (2002)

1 See Blanchette v. School Comm. of Westwood, 427 Mass. 176
(1998) (retaliation based on sexual harassment claim);
Massachusetts Bay Transp. Authy. v. Boston Carmen's Union, Local
589, 454 Mass. 19 (2009) (handicap discrimination); Warfield v.
Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390 (2009)
(gender discrimination); Wright v. Universal Maritime Serv.
Corp., 525 U.S. 70 (1998) (disability discrimination); 14 Penn
Plaza LLC v. Pyett, 556 U.S. 247 (2009) (age discrimination).
3

(arbitration of particular claim "should not be denied unless it

may be said with positive assurance that the arbitration clause

is not susceptible of an interpretation that covers the asserted

dispute. Doubts should be resolved in favor of coverage").

Thus, there is no need for the CBA to "list every possible

statutory claim that might arise." Warfield v. Beth Israel

Deaconess Med. Center, Inc., 454 Mass. 390, 400 n.16 (2009).

In the employment discrimination cases, the courts were

concerned that individual statutory rights to be free from

discrimination may be unwittingly waived through general

arbitration clauses in agreements making no mention of

discrimination. See id. at 402 (statutory gender discrimination

claim could be pursued in court, despite arbitration clause in

employment contract, where there was "no contractual term

dealing with discrimination"). That concern is not present here

where the claim arises out of an explicit term of the CBA

concerning the time period within which overtime wages must be

paid.

Additionally, the rationale for not applying the

presumption of arbitrability in employment discrimination cases

has no applicability here. See Wright v. Universal Maritime

Serv. Corp., 525 U.S. 70, 78-79 (1998) (noting that presumption

of arbitrability is rooted in rationale that arbitrators are in

better position than courts to interpret terms of CBAs, court
4

explained that presumption does not have force in employment

discrimination context where arbitrator would be called upon to

interpret discrimination statutes). The claim in this case does

not require arbitrators to interpret the Wage Act but, rather,

to interpret the CBA as negotiated by the parties.

Moreover, the clear and unmistakable standard has never

been required to permit Wage Act claims to be submitted to

arbitration. To the contrary, in Machado v. System4 LLC, 471

Mass. 204, 216-217 (2015), the court considered a broad

arbitration clause that required any claim arising out of the

parties' franchise relationship to be submitted to arbitration.2

Relying on Crocker v. Townsend Oil Co., 464 Mass. 1 (2012), as

the majority does here, the plaintiffs argued that their Wage

Act claims were not arbitrable because the arbitration clause

made no mention of the Wage Act. Machado, supra. Rejecting

this argument, the court explained that an arbitration agreement

"does not permit an employer to thwart or exempt itself from

Wage Act obligations, but solely dictates the forum in which the

2 Although the arbitration clause in Machado was contained
within individual franchise agreements, as opposed to a CBA,
"[n]othing in the law suggests a distinction between the status
of arbitration agreements signed by an individual employee and
those agreed to by a union representative." 14 Penn Plaza LLC
v. Pyett, supra at 258.
5

plaintiffs' right to recovery will be determined."3 Id. at 217-

218. Thus, despite the absence of clear and unmistakable

language indicating waiver of a judicial forum for Wage Act

claims, the plaintiffs were required to submit their claims to

arbitration as provided in the CBA. See Dixon v. Perry &

Slesnick, P.C., 75 Mass. App. Ct. 271, 275-276 (2009) (Wage Act

claim required to be submitted to arbitration pursuant to

general arbitration clause with no reference to Wage Act).

Given that the provision of the CBA setting forth a twenty-

five-day time limit for the payment of overtime wages is

enforceable, any claim that the sheriff violated this provision

must be resolved, in the first instance, through the mechanism

provided for in the CBA. I would affirm the judgment in its

entirety.

"By agreeing to arbitrate a statutory claim, a party does
3

not forgo the substantive rights afforded by the statute; it
only submits to their resolution in an arbitral, rather than a
judicial, forum. It trades the procedures and opportunity for
review of the courtroom for the simplicity, informality, and
expedition of arbitration." Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985).
TRAINOR, J. (dissenting). I, like my dissenting colleague,

also agree with the majority that the twenty-five-day time limit

for the payment of overtime wages is enforceable as a "request[]

in writing to be paid in a different manner" than the seven-day

payment requirement contained in the Wage Act. See G. L.

c. 149, § 148, as appearing in St. 1960, c. 416. However, I do

not believe it was necessary to "harmonize the Wage Act with

c. 150E" as the majority holds. Ante at . Collective

bargaining agreements (CBAs) are not the kind of contracts from

which the Wage Act was attempting to protect workers.1,2 See

1 "During the period preceding World War I, in which [the
Illinois version of the Wage Act] was originally enacted, many
State legislatures outlawed and forbade certain and various
kinds of individual contracts between the employer and
individual employees in the belief that 'employers had an unfair
economic advantage over individual wage earners because of their
superior economic power, including the present control over the
means of livelihood in an industrial system and took advantage
of such wage earners' absolute necessity to make a living on any
terms available." Pullman Co. v. Cummins, 10 Ill. 2d 454, 467-
468 (1957) (citation omitted).

2 "The national policy favoring collective bargaining and
industrial self-government was first expressed in the National
Labor Relations Act of 1935, 29 U.S.C. § 151 et seq. (the Wagner
Act). It received further expression and definition in the
Labor Management Relations Act, 1947, 29 U.S.C. § 141 et seq.
(the Taft-Hartley Act). Predicated on the assumption that
individual workers have little, if any, bargaining power, and
that 'by pooling their economic strength and acting through a
labor organization freely chosen by the majority, the employees
of an appropriate unit have the most effective means of
bargaining for improvements in wages, hours, and working
conditions,' . . . these statutes reflect Congress'
determination that to improve the economic well-being of
workers, and thus to promote industrial peace, the interests of
2

Rooney v. Yarmouth, 410 Mass. 485, 492-494 (1991); Crocker v.

Townsend Oil Co., 464 Mass. 1, 13-15 (2012).

I dissent, however, from the majority holding that

employees subject to the CBA may elect to enforce its provision

for the payment of overtime wages by employing the judicial

remedy contained in the Wage Act. Ante at . The appropriate

forum for the remedy is arbitration, as stated in the CBA.

In 1974, the town of Yarmouth (town) voted to accept the

provisions of G. L. c. 41, § 108L (the Quinn Bill).3 Rooney,

supra at 487. Sometime after the town's acceptance, the town

and the union representing police officers adopted § 108L as a

provision of their CBA, including "[a]mendments passed by the

State legislature, now and in the future." Rooney, supra at 487

some employees in a bargaining unit may have to be subordinated
to the collective interests of a majority of their co-
workers. . . . The rights established through this system of
majority rule are thus 'protected not for their own sake but as
an instrument of the national labor policy of minimizing
industrial strife "by encouraging the practice and procedure of
collective bargaining." 29 U.S.C. § 151.'" Barrentine v.
Arkansas-Best Freight Sys., 450 U.S. 728, 735 (1981).

3 Section 108L established a career incentive pay program
for police officers in the form of salary increases for officers
who further their education. Rooney, supra at 487.
Municipalities that accepted the provisions of § 108L would be
entitled to reimbursement from the Commonwealth of one-half of
the costs of the incentive benefits. Ibid.
3

n.2.4 The Rooney court determined that the parties intended to

make § 108L part of, and subject to, the CBA. Id. at 491. When

a dispute arose concerning the payment of certain salary

increases, an employee police officer claimed that he was not

required to arbitrate the dispute because G. L. c. 41, § 108L

(i.e., statutory rights) and constitutional rights regarding

property rights through 42 U.S.C. § 1983 were involved. Rooney,

supra at 490. The employee police officer insisted that he was

entitled to a judicial remedy and that even if the dispute were

arbitrable under the CBA, arbitration would not be an exclusive

remedy. Ibid. His failure to pursue arbitration would thus not

justify a dismissal of the action. Ibid. The Rooney court

held:

"[Section] 108L does not vest in [the employee] a personal,
substantive, nonwaivable statutory guarantee that he is
free to enforce judicially notwithstanding the
incorporation of § 108L into the [CBA]. . . . [The
employee] plainly does not have in § 108L an independent
statutory right that is unencompassed by the [CBA]. . . .
We conclude that, by agreeing to the incorporation of
§ 108L into the [CBA], the union effectively waived any
right [the employee] may have had to judicial relief based
on § 108L. [The employee's] exclusive remedy . . . was
through the grievance process provided in the agreement."

The CBA also incorporated a binding arbitration clause for
4

all disputes arising out of the agreement. Rooney, supra at
486.
4

Id. at 492, 494.5 Here, as the majority would agree, there was

no attempted waiver by the CBA of the statutory right to timely

payment of overtime wages. The CBA merely, as specifically

allowed by the Wage Act, determined what the period of time

would be for the prompt payment of overtime wages for the

employees covered by the CBA.

The cases cited by the majority to support the proposition

that this case represents a situation of a nonwaivable right are

inapposite. See Blanchette v. School Comm. of Westford, 427

Mass. 176, 183 (1998) (protections of G. L. c. 151B [anti-

discrimination law] cannot be waived through CBA); Warfield v.

Beth Israel Deaconess Med. Center, Inc., 454 Mass. 390, 398

(2009) (applied arbitration requirement to employment

discrimination claim under G. L. c. 151B; "an agreement by the

employee to limit or waive any of the rights or remedies

conferred by G. L. c. 151B is enforceable if such an agreement

is stated in clear and unmistakable terms"); Crocker, 464 Mass.

at 14 (arbitration, pursuant to agreement, "will be enforceable

5 Significantly, both for the Rooney decision and our case
here, a nonwaivable statutory right would include, for example,
the right to the statutory minimum wage, the right to overtime
pay (regardless of the timing of payment), or the right to equal
employment opportunities. See, e.g., School Comm. of Brockton
v. Massachusetts Commn. Against Discrimination, 377 Mass. 392,
399 (1979); Alexander v. Gardner Denver Co., 415 U.S. 36, 51
(1974); Barrentine v. Arkansas-Best Freight Sys., supra at 739-
746. Also, the union in Rooney incorporated the entire statute
into the CBA, including future amendments. Here, the union
created a new payment period that existed only within the CBA.
5

as to the statutorily provided rights and remedies conferred by

the Wage Act only if such an agreement is stated in clear and

unmistakable terms"); Barrentine v. Arkansas-Best Freight Sys.,

450 U.S. 728, 737-744 (1981) (right to minimum wage and overtime

pay cannot be waived through a CBA); Wright v. Universal

Maritime Serv. Corp., 525 U.S. 70 (1998) ("union negotiated

waiver of employees' statutory right to a judicial forum" in

general arbitration clause must be "clear and unmistakable").

And, finally, the majority misunderstands the holding in

Newton v. Commissioner of the Dept. of Youth Servs., 62 Mass.

App. Ct. 343 (2004). In Newton, employees of a Department of

Youth Services (DYS) forestry camp brought an action against DYS

under the Wage Act for failure to pay overtime and for other

extra pay. Id. at 344. Unlike our case, while the DYS

employees were subject to a CBA and its arbitration clause, the

CBA made no mention of the Wage Act or of any of its specific

requirements. Id. at 345. The court held that, "[w]hile an

individual may waive the requirements of the statute by a

writing, the record does not disclose that the plaintiffs did

so. Nor does their collective bargaining agreement include any

reference to G. L. c. 149, § 148, or to the time when wages must

be paid" (emphasis supplied). Newton, supra.

The Wage Act allowed the inclusion of the provision of the

CBA at issue here, and the majority agrees with this. Ante at
6

. The twenty-five-day payment requirement contained in the CBA

exists only in the CBA and not in the Wage Act. The CBA does

not and cannot amend the Wage Act. The twenty-five-day payment

requirement created by, and existing only in, the CBA can be

enforced only within the forum (i.e., arbitration) provided in

the CBA.