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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 23-P-0959main content

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STEPHEN A. BORDEN vs. COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
4/24/2024
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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
23-P-959
STEPHEN A. BORDEN
vs.
COMMONWEALTH EMPLOYMENT RELATIONS BOARD & another.
1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Stephen A. Borden, appeals from a decision
by the defendant, the Commonwealth Employment Relations Board
(CERB), affirming the dismissal of his charge of prohibited
practice filed pursuant to G. L. c. 150E against the Boston
Police Patrolmen's Association (BPPA).
2
We affirm.
The Boston Police Department (BPD) employed Borden from
1982 to 1989. In 1989, Borden was arrested and charged with
drug trafficking. Borden called BPPA seeking assistance with
his case, but BPPA did not return his calls. Borden was
convicted of a misdemeanor and did not return to work at BPD.
During the years since Borden was convicted, he has periodically
1
Boston Police Patrolmen's Association.
2
BPPA, the respondent to Borden's charge of prohibited
practice, intervened in this appeal.
2
contacted BPPA, which has either acknowledged his reinstatement
request, told him that they had no record of his employment, or
not responded. Borden stated that he "was aware as far back as
1992 that his efforts to have the BPPA return his calls [were]
futile."
In November 2022, Borden filed a charge of prohibited
practice against BPPA, alleging that it failed both to represent
him in his 1989 criminal case and to acknowledge his phone calls
and written request. In February 2023, a Department of Labor
Relations (department) investigator conducted an investigation
into the allegations and dismissed the charge as untimely.
Borden appealed the decision to CERB, which affirmed the
dismissal on the same grounds.
We review CERB's decision in accordance with G. L. c. 30A,
§ 14(7). "A final administrative agency decision will be set
aside if, among other grounds, it is [u]nsupported by
substantial evidence, . . . or [a]rbitrary or capricious, an
abuse of discretion, or otherwise not in accordance with law"
(quotations and citations omitted). Commonwealth v.
Commonwealth Employment Relations Bd., 101 Mass. App. Ct. 616,
622 (2022). "A commission's decision must be based on
substantial evidence, i.e., such evidence as 'a reasonable mind
might accept as adequate to support a conclusion.'" North
3
Attleboro v. Labor Relations Comm'n, 56 Mass. App. Ct. 635, 638
(2002), quoting G. L. c. 30A, § 1(6).
"Except for good cause shown, no charge shall be
entertained by the Department based upon any prohibited practice
occurring more than six months prior to the filing of a charge
with the Department." 456 Code Mass. Regs. § 15.04 (2016). The
limitations period runs from the time that the plaintiff's
"apprehension should reasonably have been aroused . . . when he
heard nothing from the [defendant]." Felton v. Labor Relations
Comm'n, 33 Mass. App. Ct. 926, 928 (1992). "A wrong . . . is
not inherently unknowable if the injured party, in the exercise
of reasonable diligence, should have known of the factual basis
for the wrong." Id. at 927-928.
Borden contends that he has shown good cause for his late
filing because he made "continued attempts to seek redress." We
disagree. "Upon its own motion or upon good cause shown by any
of the parties to the proceeding, the Department may extend the
time for the filing of such request for review." 456 Code Mass.
Regs. § 15.05 (2016). "The commission has appropriately
construed its rule [on the six-month time limitation to file a
claim] to apply when the charging party knew or should have
known of the alleged violation . . . and it is a generally
recognized principle that lack of knowledge of a potential
remedy does not excuse a procedural misstep -- especially where
4
it is in the nature of a jurisdictional prerequisite" (quotation
and citation omitted). Miller v. Labor Relations Comm'n, 33
Mass. App. Ct. 404, 408 (1992).
Here, Borden acknowledged that he was aware of the futility
of his efforts as early as 1992, over thirty years before he
filed. Borden was entitled to present a claim to CERB at any
time during the ensuing six months. See Miller v. Bd. of
Regents of Higher Educ., 405 Mass. 475, 480 (1989). His
periodic attempts to contact BPPA during that time period do not
constitute good cause for filing his charge over thirty years
late.
3
Thus, CERB properly affirmed the department's dismissal
of Borden's charge. See Felton, 33 Mass. App. Ct. at 928
(commission acted within discretion by dismissing plaintiff's
3
Borden also asserted that he received threats and was under
duress from unnamed police officers, causing him to be unaware
of the department and thus delaying his filing. Borden does not
demonstrate any relationship between the alleged threats and his
ignorance of the department. Thus, this argument does not rise
to the level of adequate appellate argument. See Commonwealth
v. Beverly, 485 Mass. 1, 16 (2020), citing Mass. R. A. P. 16(a)
(9) (A), as appearing in 481 Mass. 1628 (2019).
5
charge filed ten months after he received no response from his
union).
Decision and order of the
Commonwealth Employment
Relations Board affirmed.
By the Court (Green, C.J.,
Englander & Brennan, JJ. ),
4
Assistant Clerk
Entered: April 24, 2024.
4
The panelists are listed in order of seniority.