LORI CONVEY v. COMMONWEALTH OF MASSACHUSETTS & Another.

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

22-P-930

LORI CONVEY1

vs.

COMMONWEALTH OF MASSACHUSETTS & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises from a dispute over whether compensation

is owed pursuant to a collective bargaining agreement (CBA).

The plaintiffs, who are adult education teachers employed by the

Department of Correction (DOC), were represented by their union

in labor negotiations with the defendants. Those negotiations

resulted in a CBA (2016 CBA) that governed the plaintiffs'

employment as educators, in part by setting forth an annual

schedule of work and vacation. Under the 2016 CBA, the

plaintiffs worked a forty-week school year and enjoyed a summer

1Individually and on behalf of all others similarly
situated.

2 Commissioner of Department of Correction.
break from approximately mid-June through Labor Day.3 In August

2016 however, prior to the expiration of the 2016 CBA or the

start of the 2016-2017 school year, the union executed a

memorandum of understanding (MOU) with the defendants that

altered the schedule for the upcoming 2016-2017 school year so

that DOC could transition to a full-year academic program. The

parties subsequently agreed to a new CBA that incorporated the

changes contemplated in the MOU (2017 CBA). Among the changes

from the 2016 CBA, the 2017 CBA eliminated four weeks of

vacation time from the summer of 2017.

In light of the changes, the named plaintiff filed a

complaint in the Superior Court under the Wage Act, G. L.

c. 149, §§ 148, 150, on behalf of herself and others similarly

situated, arguing that they had been denied earned wages that

were due to them on a prorated basis from July 1 to September 6,

2017.4 The parties subsequently filed cross motions for summary

judgment, and, after a hearing, a judge of the Superior Court

3 The 2016 CBA also required that "[a]side from the summer
break, academic teachers are required to take the period between
Christmas Day and New Year's Day off."

4 Prior to filing the complaint in Superior Court, the named
plaintiff attached her signature to a grievance report alleging
that the defendants had implemented a transitional school year
that overlapped with "earned time off with pay" and sought nine
weeks of owed salary or to be credited with nine weeks of
compensatory leave. During arbitration proceedings, many of the
teachers who worked during the transitional year accepted a
settlement, but the named plaintiff did not.

2
denied the plaintiffs' motion for summary judgment and granted

judgment for the defendants. The plaintiffs appealed. We

vacate the judgment of the Superior Court.

Discussion. "Summary judgment is appropriate where there

is no material issue of fact in dispute and the moving party is

entitled to judgment as a matter of law."5 HSBC Bank USA, N.A.

v. Morris, 490 Mass. 322, 326 (2022). "Our review of a decision

on a motion for summary judgment is de novo." Id., quoting

Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021).

"Originally enacted in 1879, the purpose of the Wage Act is

'to protect employees and their right to wages.'" Mui v.

Massachusetts Port Auth., 478 Mass. 710, 711 (2018), quoting

Electronic Data Sys. Corp. v. Attorney Gen., 454 Mass. 63, 70

(2009). According to the Wage Act, "[e]very person having

employees in his service shall pay weekly or bi-weekly each such

employee the wages earned by him. . . . The word 'wages' shall

include any holiday or vacation payments due an employee under

an oral or written agreement." G. L. c. 149, § 148, first par.

As we explained in Parris v. Sheriff of Suffolk County, 93

Mass. App. Ct. 864, 867 (2018):

"The purpose of G. L. c. 149, § 148, is to prevent the evil
of the unreasonable detention of wages by employers. We
have consistently held that the legislative purpose behind
the Wage Act is to provide strong statutory protection for

5 We agree with the plaintiffs that "[t]he facts of this
case are not in dispute."

3
employees and their right to wages. Accordingly, waiver of
Wage Act protections is strongly disfavored. (Quotations,
citations, alteration, and punctuation omitted.)

"The fundamental public policy against forfeiture of Wage
Act protections is rooted in the 'special contract'
provision of the statute, . . . 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."

Under G. L. c. 150E, unions are the "exclusive

representative of all the employees . . . for the purpose of

collective bargaining 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" (quotations and citations omitted). Parris, 93

Mass. App. Ct. at 868. "[T]he unions possess the right to speak

exclusively for all the employees on mandatory subjects of

collective bargaining." Id. However, "[t]he 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

v. Commissioner of Dep't of Youth Servs., 62 Mass. App. Ct. 343,

346 (2004). "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." Parris, supra at 869, quoting

4
Blanchette v. School Comm. of Westwood, 427 Mass. 176, 183

(1998).

Here, the defendants' obligations to the plaintiffs are set

forth in the various agreements to which both are party. The

2016 CBA set forth an annual schedule in which the school year

would begin after Labor Day, include forty weeks of work, and

conclude at some point in June. A summer break then followed

for approximately nine weeks before the annual academic cycle

would repeat. We conclude that the 2016 CBA, therefore,

represented an agreement between the parties that the 2016-2017

school year would begin on September 6, 2016, and continue until

June 30, 2017, at which point a nine-week summer break would

commence before school would resume on September 5, 2017. We

further conclude that, at the time the plaintiffs completed the

work required of them under that agreement, the nine weeks of

vacation promised under the 2016 CBA became protected under the

Wage Act as "wages earned by [them]."6 G. L. c. 149, § 148,

first par. See generally Electric Data Sys. Corp., 454 Mass. at

67-71 (discussing Wage Act protection of promised vacation

time).

6 The defendants argue that "[v]acation time can form the
basis of a claim under the Wage Act only if it is due under an
agreement," but, here, we conclude that the claimed vacation
time was due to the plaintiffs under the 2016 CBA.

5
The question that remains is whether, as the defendants

contend, the union effectively bargained away the plaintiffs'

2017 summer vacation by agreeing to the MOU and subsequent 2017

CBA. The defendants argue that, because the union agreed to the

MOU and 2017 CBA, the agreements governing the plaintiffs'

employment during the period in question did not include the

claimed vacation time. We conclude, however, that, to the

extent these agreements abrogated the plaintiffs' right to their

earned wages in the form of the nine weeks of vacation in

question, they are "special contracts" proscribed by the Wage

Act and are therefore unenforceable. Parris, 93 Mass. App. Ct.

at 869. As we have explained, the Wage Act expressly prohibits

special contracts abrogating its protections with respect to

individual rights. G. L. c. 148, § 148, sixth par. See Parris,

supra at 867. Earned wages are one such right protected by this

clause, and the plaintiffs' union was not empowered to bargain

away the plaintiffs' right to the vacation time they earned by

completing the work due from them during the 2016-2017 school

year. Id. at 869. To do so constituted the disposal of

individual rights under the Wage Act, which our precedent

prohibits. Id.; Newton, 62 Mass. App. Ct. at 347.

We are unpersuaded by the defendants' argument that the

cases on which we have relied to reach this conclusion are

inapposite because they deal with the right to earned wages, as

6
opposed to vacation time, because vacation time due under a

contract counts as wages per the express language of the

statute. G. L. c. 149, § 148, first par. As we explained

supra, the vacation time at issue here was due under the terms

of the 2016 CBA. Accordingly, the judgment of the Superior

Court is vacated. The case is remanded for a determination of

damages owed to the plaintiffs under the Wage Act.7

So ordered.

By the Court (Rubin,
Massing & Desmond, JJ.8),

Assistant Clerk

Entered: May 14, 2024.

7 The defendants also argue that the plaintiffs are
collaterally estopped from arguing that they are owed nine weeks
of vacation under the 2016 CBA because an arbitrator already
determined that issue in a final judgment to which the
plaintiffs' union was a party. However, the payment of earned
wages is an individual right that can be enforced judicially,
notwithstanding grievance procedures set forth in a CBA. See
Parris, 93 Mass. App. Ct. at 869; Newton, 62 Mass. App. Ct. at
346. Nor do we agree with the defendants that the union's
acceptance of a settlement agreement bound the named plaintiff
and all other class members to the terms of that agreement. It
is undisputed that the named plaintiff did not sign the
settlement agreement. We decline to enforce the settlement
agreement against the named plaintiff or any other member of the
class who did not sign on. See Parris, supra.

8 The panelists are listed in order of seniority.

7