City of Pittsfield v. Local 447 International Brotherhood of Police Officers , 480 Mass. 634 ( 2018 )

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SJC-12450
CITY OF PITTSFIELD vs. LOCAL 447 INTERNATIONAL BROTHERHOOD OF
POLICE OFFICERS.
Berkshire. May 7, 2018. - October 3, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Municipal Corporations, Police. Police, Discharge. Public
Employment, Police, Termination. Arbitration, Police,
Confirmation of award. Public Policy.
Civil action commenced in the Superior Court Department on
May 11, 2017.
The case was heard by Daniel A. Ford, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Richard M. Dohoney for the plaintiff.
Timothy M. Burke (Jared S. Burke also present) for the
defendant.
Eric R. Atstupenas, for Massachusetts Chiefs of Police
Association, Inc., amicus curiae, submitted a brief.
CYPHER, J. Dale Eason was terminated from his position as
a police officer in the Pittsfield police department on grounds
of conduct unbecoming a police officer, untruthfulness, and
2
falsifying records. His union, Local 447 International
Brotherhood of Police Officers (union), filed a grievance,
pursuant to a collective bargaining agreement between the union
and the city of Pittsfield (city). The union and city submitted
Eason's termination to arbitration with two agreed-upon issues:
(1) "Was there just cause to terminate the employment of Dale
Eason?"; and (2) "If not, what shall the remedy be?" The
arbitrator found that there was not just cause for termination
and reinstated Eason with a three-day suspension.
The city commenced an action pursuant to G. L. c. 150C,
§ 11, in the Superior Court to vacate the arbitrator's award,
arguing that it is contrary to public policy. A Superior Court
judge confirmed the arbitration award, and the city appealed.
We thereafter granted the city's application for direct
appellate review. We conclude that the arbitrator's award of
reinstatement does not violate public policy in the
circumstances of this case, where the arbitrator found that the
officer's statements were "intentionally misleading" but not
"intentionally false" and where the statements did not lead to a
wrongful arrest or prosecution, or result in any deprivation of
liberty or denial of civil rights.
Background. We recite the facts as found by the
arbitrator. The case arose from a February, 2016, incident in
which Eason responded to a reported larceny at a supermarket.
3
Eason arrested a woman, identified by supermarket security, and
placed her in the back of his police cruiser. In his arrest
report, Eason said the suspect "began thrashing her body around
in the back seat . . . . For her safety, I attempted to remove
the [suspect] from my vehicle and place her onto the ground to
control her body." He additionally noted, "Also, [supermarket]
[s]ecurity wanted to get a photo as part of their process."
The arbitrator explained that "[w]hen questioned during the
investigation, [Eason] acknowledged that he removed the
[suspect] from the back seat of his police cruiser to enable the
supermarket security to photograph her, pursuant to a practice
of photographing larceny suspects, which officers know about and
facilitate." The city terminated Eason for "conduct unbecoming
a police officer, untruthfulness, and falsifying records, based
on the reason [he] reported for removal of the [suspect],
expressed [as]: 'for her safety.'" The city also asserted that
there was no evidence that the suspect was thrashing in the
cruiser. Eason "acknowledge[d] that he removed the [suspect] to
enable the store to photograph her, according to practice" and
"also assert[ed] that the [suspect] had been out of control in
the back of the car before she was removed, but not immediately
prior to her removal. [He] denie[d] that he lied, implicitly,
because she was thrashing and they needed to photograph her,
fairly simultaneously."
4
The arbitrator held that Eason's misconduct did not amount
to just cause for termination, "a capital offense in the
employment context." The arbitrator found that "the three words
at issue were untrue, intentionally misleading, and cause for
discipline, but less than intentionally false" (emphasis in
original).1 He also found that there was "persuasive evidence
that the [suspect] acted up in the back before she was removed."
The arbitrator held that the city failed to "persuade [him] that
[Eason's] misconduct was so serious that it justified
termination without prior, corrective discipline."
Discussion. A brief reminder of the history of labor
arbitration is useful to put the discussion that follows in
context. In 1935, Congress recognized that "the refusal by some
employers to accept the procedure of collective bargaining
lead[s] to strikes and other forms of industrial strife or
unrest" and enacted the National Labor Relations Act (NLRA), 29
U.S.C. §§ 151-169. 29 U.S.C. § 151. In pursuit of labor peace
and "the free flow of . . . commerce," Congress declared it to
be the policy of the United States to encourage collective
bargaining. Id. See National Labor Relations Bd. v. Allis-
Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) ("National labor
policy has been built on the premise that by pooling their
1 The arbitrator also found that the statements were
"knowingly inaccurate."
5
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"). To effectuate that
policy, Congress established a framework for representation of
private sector workers by a labor organization elected by the
majority of employees. Once that organization, often a union,
was elected and certified as the employees' exclusive bargaining
representative, it was a violation of law for an employer to
refuse to bargain in good faith to reach a collective bargaining
agreement. 29 U.S.C. § 158.
The NLRA, however, does not reach the bargaining
relationship between workers and their public employers at the
State and local level. In 1973, the Legislature established an
analog to the NLRA, G. L. c. 150E, governing bargaining between
public employers and employees. Similar to the NLRA,2 G. L. c.
150E prohibits employers from refusing to bargain in good faith
with elected employee representatives.
The Legislature further evinces its preference for the
results of collective bargaining, including the outcome of
arbitration, in G. L. c. 150E, § 7 (d), mandating that the terms
2 We have long recognized the relationship between
Congress's endorsed policy of collective bargaining and that of
the Legislature's as embodied in G. L. c. 150E. Trustees of
Forbes Library v. Labor Relations Comm'n, 384 Mass. 559, 562 n.2
(1981).
6
of collective bargaining agreements shall prevail over certain
statutes governing myriad working conditions of public
employees, including regulations promulgated by a police
commissioner. See id.; Boston v. Boston Police Patrolmen's
Ass'n, 477 Mass. 434, 441 (2017) (Williams) (noting "courts'
reluctance to allow [police commissioner's] broad discretionary
powers to subsume bargained-for provisions").
1. Standard of review. The collective bargaining
agreement between the city and the union, like many of its kind,
contains a grievance procedure. A delicate balance of both
parties' concessions and demands yielded the city's promise to
consider the union's grievances3 through a process that, if
necessary, culminates with arbitration. In any collective
bargaining context, it is the arbitrator's expertise that the
parties bargained for. United Steelworkers of Am. v. American
Mfg. Co., 363 U.S. 564, 568 (1960). The Legislature has
indorsed, and we must respect, a strong public policy favoring
arbitration. School Comm. of Pittsfield v. United Educators of
Pittsfield, 438 Mass. 753, 728 (2003) ("Public policy in the
Commonwealth strongly encourages arbitration"). "Arbitration
would have little value if it were merely an intermediate step
3 The grievance process allows the union or, pursuant to
G. L. c. 150E, individual employees to object to an action taken
by the city that is governed by the collective bargaining
agreement. Such actions include, but are not limited to, the
termination of employment, at issue here.
7
between a grievance and litigation in the courts." Id. The
Legislature has codified this priority, permitting courts to
vacate arbitration awards only in rare, statutorily enumerated
circumstances. See G. L. c. 150C, § 11.
The system of collective bargaining created and indorsed by
the Legislature necessitates deference to the bargained-for
result of an arbitrator's award. We review the trial judge's
decision to uphold the arbitration award de novo, but our
examination of the underlying award is informed by the "strong
public policy favoring arbitration" (citation omitted). See
Bureau of Special Investigations v. Coalition of Pub. Safety,
430 Mass. 601, 603 (2000). However, the relationship between a
reviewing court and the result of an arbitration is unlike the
relationship between an appellate court and the outcome of a
lower court's proceedings. Lynn v. Thompson, 435 Mass. 54, 61
(2001), cert. denied, 534 U.S. 1131 (2002). Our review of the
underlying arbitration decision is considerably more deferential
than even the abuse of discretion or clear error standards
applied to lower court decisions. Id. See Williams, 477 Mass.
at 439-440. Indeed, an arbitration award carries a presumption
of propriety because it is the arbitrator's judgment, not
necessarily an objectively correct answer, for which the parties
have bargained. United Steelworkers of Am., 363 U.S. at 568.
8
We therefore "uphold an arbitrator's decision even where it
is wrong on the facts or the law, and whether it is wise or
foolish, clear or ambiguous." Boston v. Boston Police
Patrolmen's Ass'n, 443 Mass. 813, 818 (2005) (DiSciullo).
"Because the parties have contracted to have disputes settled by
an arbitrator chosen by them rather than by a judge, it is the
arbitrator's view of the facts and of the meaning of the
contract that they have agreed to accept." United Paperworks
Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37–38 (1987)
(Misco). Where the arbitrator allegedly engaged in
"improvident, even silly, factfinding," we are nonetheless bound
by those facts. Major League Baseball Players Ass'n v. Garvey,
532 U.S. 504, 509 (2001), quoting Misco, supra at 39. See Lynn,
435 Mass. at 62, quoting Delta Air Lines, Inc. v. Air Line
Pilots Ass'n, Int'l, 861 F.2d 665, 670 (11th Cir. 1988), cert.
denied, 493 U.S. 871 (1989) ("An arbitrator's result may be
wrong; it may appear unsupported; it may appear poorly reasoned;
it may appear foolish. Yet, it may not be subject to court
interference"). An award cannot be disturbed even if an
arbitrator's findings are so confusing or unclear that, in order
to evaluate the merits of an award, we would have to confront
conflicting inferences. See Misco, supra at 44 ("A refusal to
enforce an award must rest on more than speculation or
assumption," and it was "inappropriate" for lower court to infer
9
connection between arbitrator's facts and public policy at
issue); Sheriff of Suffolk County v. Jail Officers & Employees
of Suffolk County, 451 Mass. 698, 701-703 (2008) (arbitrator's
factual findings were "far from a model of clarity" but "it
would not be appropriate to vacate the arbitrator's award based
on possibly incorrect factual inferences we might draw from his
ambiguous findings").4
2. Public policy exception. Bound by the facts as
explicitly found by the arbitrator, we evaluate the city's
argument that public policy prohibits the enforcement of the
arbitration award. The city cites a public policy that requires
police officers "to be truthful in all of their official
dealings," which is necessary for "the police to gain and
preserve the public trust [and] maintain public confidence"
(citation omitted). The city finds the root of this public
4 Although we attempted to remand for clarification of facts
in Sheriff of Suffolk County v. Jail Officers & Employees of
Suffolk County, 451 Mass. 698, 702 n.5 (2008), remand was not
possible due to the arbitrator's death, so we were left to
wrestle with the facts as found. See United Steelworkers of Am.
v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598 (1960)
("Arbitrators have no obligation to the court to give their
reasons for an award. To require opinions free of ambiguity may
lead arbitrators to play it safe by writing no supporting
opinions. This would be undesirable for a well-reasoned opinion
tends to engender confidence in the integrity of the process and
aids in clarifying the underlying agreement" [footnote
omitted]).
10
policy in G. L. c. 268, § 6A,5 prohibiting "false written reports
by public officers or employees."6
"[T]he judiciary must be cautious about overruling an
arbitration award on the ground that it conflicts with public
policy" (citation omitted). Bureau of Special Investigations,
430 Mass. at 604. "[W]e apply a stringent, three-part analysis"
to determine whether the public policy exception applies to the
otherwise mandated enforcement of an arbitration award
(quotation and citation omitted). Williams, 477 Mass. at 442.
"First, the policy at issue must be well defined and dominant,
and is to be ascertained by reference to the laws and legal
precedents and not from general considerations of supposed
5 "Whoever, being an officer or employee of the commonwealth
or of any political subdivision thereof or of any authority
created by the general court, in the course of his official
duties executes, files or publishes any false written report,
minutes or statement, knowing the same to be false in a material
matter, shall be punished by a fine of not more than one
thousand dollars or by imprisonment for not more than one year,
or by both such fine and imprisonment." G. L. c. 268, § 6A.
6 The city also notes that in May, 2017, after Eason had
been terminated, the district attorney for the Berkshire
district sent the Pittsfield police chief a letter stating that
he would not call Eason "to testify on behalf of the
Commonwealth in any criminal matter, whether presently pending
or in the future." Although very troubling, this was not part
of the evidence considered by the city when firing Eason or by
the arbitrator when making his decision. It therefore has no
bearing on our consideration of the propriety of the
arbitrator's decision. However, although it is required to
abide by the results of this arbitration, the city is, of
course, not prohibited from pursuing any additional appropriate
discipline based on the district attorney's letter or any other
newly acquired information.
11
public interests" (quotations and citation omitted). Id.
Second, the exception must not merely address "disfavored
conduct, in the abstract" but must target "disfavored conduct
which is integral to the performance of employment duties"
(emphasis in original). Id., quoting Massachusetts Highway
Dep't v. American Fed'n of State, County, & Mun. Employees,
Council 93, 420 Mass. 13, 16 (1995). Third, we inquire whether
an award reinstating the employee violates public policy.
Williams, supra at 442-443. The burden is on the party seeking
vacation of the award, the city, to demonstrate that the award
satisfies each of these prongs.7 DiSciullo, 443 Mass. at 819.
We have already held that public policy supports
terminating police officers for lying and that such a public
policy satisfies the first two prongs. Id.8 We turn our
attention to the third prong of this test, whether the award
violates public policy. It is crucial to note that "[t]he
7 The city erroneously argues that "the burden ought to be
on the party arguing against the mandatory termination of an
officer who lies about a material matter in a police report to
proffer some authority for that position" (emphasis in
original). We decline to shift the burden from the party
seeking judicial intervention in the arbitration process.
8 Unlike in Boston v. Boston Police Patrolmen's Ass'n, 443
Mass. 813, 819 (2005), the union here does not concede any
element of this test. The city and the union dispute whether
Eason's alleged misconduct constituted knowingly false
statements about a "material" matter in violation of G. L.
c. 268, § 6A. Neither party cites any authority for its
contention that the disputed aspect of the report was or was not
"material."
12
question in the third prong is not whether the employee's
behavior violates public policy," but whether the award itself
does. Williams, 477 Mass. at 442-443.
In the rare circumstances where Massachusetts reviewing
courts have exercised the power to vacate an arbitration award
on public policy grounds, there was no ambiguity in the material
underlying factual findings. See Massachusetts Bay Transp.
Auth. v. Boston Carmen's Union, Local 589, Amalgamated Transit
Union, 454 Mass. 19, 24-26, 29-30 (2009) (arbitrator's award
removing seniority from employee who won settlement as result of
discrimination violated public policy); School Dist. of Beverly
v. Geller, 435 Mass. 223, 224 (2001) (vacating arbitration award
where arbitrator reinstated teacher who had used physical force
against students); Boston v. Boston Police Patrolmen's Ass'n, 74
Mass. App. Ct. 379, 380-382 (2009) (reinstatement of officer who
admitted to sufficient facts for assault by means of dangerous
weapon when off duty and whose case was continued without
finding violated public policy).
In DiSciullo, 443 Mass. at 814, which the city argues is
controlling, we vacated an arbitrator's award reinstating an
officer who was found to have behaved with "egregious dishonesty
and abuse of [an] official position." In that case, DiSciullo
filed an incident report and a statement of criminal charges
falsely alleging disorderly conduct, assault and battery on a
13
police officer, and resisting arrest. Id. at 815. Thus, the
factual findings established a clear nexus between the officer's
dishonesty and the arrest and charges. Our decision to vacate
the arbitrator's award in DiSciullo was based on our conclusion
that the specific factual findings of the arbitrator concerning
the officer's egregious dishonesty and abuse of official
position mandated dismissal of the officer. Id. at 819-820.
Here, the arbitrator's findings about Eason's misconduct do not
describe conduct that rises to the level of misconduct that
necessitated termination of the officer in DiSciullo. We
cannot, in these circumstances, substitute our judgment for that
of the arbitrator's in determining the appropriate discipline.
See W.R. Grace & Co. v. Local Union 759, Int'l Union of the
United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S.
757, 765 (1983) ("Regardless of what our view might be of the
correctness of [the arbitrator's] contractual interpretation,
the Company and the Union bargained for that interpretation. A
. . . court may not second-guess it").
In Sheriff of Suffolk County, 451 Mass. at 701, we
considered an arbitrator's decision where "the factual findings
. . . [were] far from a model of clarity." There, "the
arbitrator concluded that [the jail officer] filed reports with
the sheriff's internal investigation officers that were
incomplete or false or misleading, but does not attempt to
14
distinguish among these three possibilities" (emphasis added).
Id. at 701-702. We stated that "[i]n a situation where a jail
officer actually witnesses fellow officers assault an individual
who is held in the sheriff's custody, and then lies about this
fact and files false reports that memorialize the falsity, we
have little doubt that established public policy would condemn
such conduct and would require the discharge of such an
officer." Id. at 702. In that case, therefore, there was a
nexus between the misconduct of the jail officer and the harm to
the prisoner. We concluded, however, that "the arbitrator's
findings [were] not sufficiently clear on what [the officer]
witnessed, or on the character of his reports and participation
in the sheriff's investigation -- that is, did he supply false
information, or was he simply less than complete?" Id. In
light of the "strong public policy . . . that favors
arbitration," we determined that "it would not be appropriate to
vacate the arbitrator's award based on possibly incorrect
factual inferences we might draw from his ambiguous findings."
Id. at 702-703.
In Williams, 477 Mass. at 436-437, 445, we were constrained
to approve the reinstatement of an officer who used a choke hold
on someone who "testified that he could not breathe and began to
lose consciousness," because the arbitrator found that the
officer did not use excessive force and was "not untruthful" in
15
reporting the incident. We held that it was not a violation of
public policy to reinstate an officer who, as found by the
arbitrator, did not use excessive force and did not lie. Id. at
445.
The distinction between a statement that is "intentionally
misleading" but not "intentionally false" is, at best, elusive.9
We need not dwell on the meaning of the arbitrator's factual
findings, however, because the arbitrator found that the officer
made a statement that was both "knowingly inaccurate" and
"intentionally misleading" -- and this finding alone is
sufficient to raise a question whether the arbitrator's award
reinstating him is contrary to public policy. Undoubtedly, were
we to conduct a de novo analysis we would not draw the same
distinction between an "intentionally misleading" and an
"intentionally false" statement, as did the arbitrator. See
Williams, 477 Mass. at 444. See Misco, 484 U.S. at 38 ("an
arbitrator must find facts and a court may not reject those
findings simply because it disagrees with them"). "The question
. . . is not whether [Eason's] conduct justified termination,
but whether it required termination, such that any lesser
sanction would violate public policy" (emphasis in original).
Williams, supra at 445. We have drawn the public policy
Logically, if a statement is not only "untrue" but also
9
"knowingly inaccurate" and "intentionally misleading," it must
also be "intentionally false."
16
exception quite narrowly because "[w]e cannot purport to
encourage arbitration and yet devise ways to undermine an
arbitrator's authority." School Dist. of Beverly, 435 Mass. at
248 (Cowin, J., dissenting). Obligated to credit the
arbitrator's conclusion that a phrase in Eason's report was no
more than misleading and that termination was not permissible
under the collective bargaining agreement, we must uphold the
award. See Concerned Minority Educators of Worcester v. School
Comm. of Worcester, 392 Mass. 184, 187 (1984) ("we have no
business overruling an arbitrator because we give a contract a
different interpretation").
Our decision does nothing to limit the ability of police
chiefs to terminate officers for lying where the arbitrator
agrees that such conduct occurred. Nor does this decision
change the public policy exception that bars the reinstatement
of officers, as was the case in DiSciullo, whose lies have
restricted other's liberty. Even a statement which is
"intentionally misleading . . . but less than intentionally
false" that resulted in arrest, prosecution, loss of liberty, or
a violation of civil rights would justify, on public policy
grounds, the decision of a police chief to terminate an officer.
General Laws c. 268, § 6A, which makes it a crime for a
police officer in the course of his or her official duties to
file or publish "any false written report, minutes[,] or
17
statement, knowing the same to be false in a material matter,"
and G. L. c. 268, § 13B, which makes it a crime for anyone to
wilfully mislead another person who is a judge, prosecutor, or
police officer "with the intent to impede, obstruct, delay,
harm, punish or otherwise interfere thereby" with a criminal
investigation or any criminal, juvenile, or civil proceeding "or
do so with reckless disregard," reflect the Legislature's
embrace of the important public policy interest that our police
officers speak and act with integrity.10 Had Eason's wilfully
misleading statement constituted a crime under § 13B, meaning
that it was made with the intent to impede, obstruct, or
otherwise interfere with a criminal investigation or any
criminal, juvenile, or civil proceeding, then the third prong
would have been met and public policy would have required that
we set aside an award reinstating him. But the suspect here was
not charged with any conduct related to her removal from the
police cruiser -- she was charged only with larceny, not with
assault and battery on a police officer or disorderly conduct.
Therefore, the officer's "knowingly inaccurate" and
"intentionally misleading" statement in his police report was
not made with the intent to impede, obstruct, or otherwise
10In contrast with § 6A, a violation of § 13B does not
require a knowing false statement; it suffices that the
statement "directly or indirectly, willfully . . . misleads
. . . another person."
18
interfere with any criminal investigation or proceeding; the
arbitrator's factual findings indicate instead that the officer
made this statement solely in an attempt to avoid discipline for
removing the suspect from his police cruiser for the purpose of
allowing supermarket personnel to photograph her.11
In making these employment decisions, police chiefs who are
responsible for maintaining the integrity of their departments
and for preserving public trust in their officers need clear
lines. It requires commitment and courage for a police chief to
terminate the employment of a police officer; it is generally
easier to avoid doing so. Termination of an officer's
employment means that the police department almost invariably
will need to incur the expense of arbitration, including the
substantial attorney's fees from litigating such an arbitration.
And if the arbitrator disagrees with the decision to terminate,
the officer will be reinstated and the police department will be
required to make the officer whole with respect to lost benefits
under the collective bargaining agreement, including back pay,
compensation for lost income from overtime and details, and the
return of seniority rights. If there are no clear public policy
lines supporting termination, it is extremely difficult for a
11The arbitrator wrote, "I believe the [officer] wanted to
conceal the real reason for removing the [suspect] by falsely
reporting that it was safety-related . . . [and that] the
[officer] referred to safety to deflect the readers of his
report away from his bad judgment."
19
police chief to risk such a decision where it might be undone by
an arbitrator whose decision cannot be reversed by a court even
when it is plainly wrong as a matter of fact or as a matter of
law.
Where a police chief decides to terminate an officer in
circumstances in which the officer's false statements violated
G. L. c. 268, § 6A or 13B, or which otherwise resulted in an
unjustified arrest or prosecution, or in a deprivation of
liberty or denial of civil rights, an arbitration award finding
no just cause for such a dismissal and reinstating the officer
would violate public policy. We affirm the arbitrator's award
here only because it did not cross this public policy line.
Judgment affirmed.