O’Brien v. New England Police Benevolent Association, Local 911 (Lawyers Weekly No. 11-038-13)

FECTEAU, J.  The plaintiff, the city manager of the city of Worcester (city), appeals from a judgment of the Superior Court allowing the defendant’s motion to confirm an arbitration award.  After hearing, the arbitrator, having found that a police officer’s actions were reasonable and did not justify his termination “for cause,” ordered the city to reinstate and make whole the officer, who had been terminated for actions that the city alleged constituted gross misconduct.  The plaintiff contends that the arbitrator’s decision infringes on the city’s managerial prerogative and otherwise violates public policy by requiring the city to retain an officer who (i) violated three teenagers’ constitutional rights and (ii) engaged in felonious conduct by assaulting the teenagers without cause.  The plaintiff also argues that the arbitrator exceeded his authority under the applicable collective bargaining agreement (CBA) by improperly interpreting and applying various statutory, regulatory, and other administrative rules incorporated therein.  The judge was not persuaded that the arbitrator’s decision to reinstate the officer amounted to a violation of public policy and confirmed the arbitration award.  We affirm.

Background.  From the arbitrator’s decision we draw the following facts, in summary fashion.  On the evening of April 7, 2007, Worcester police Officer David Rawlston, who was on injury leave and in his home on Tory Fort Lane in Worcester with his wife and child, received a telephone call from his neighbors informing him that they had seen three unidentified teenagers lurking about his house and his driveway, looking into his automobiles, and moving toward his backyard.  Rawlston retrieved his department-issued handgun and a flashlight.  After searching the interior of his house, Rawlston met his neighbors outside in his driveway, where they pointed out several teenagers a few houses up the street and identified those individuals to Rawlston as the ones they had earlier seen outside Rawlston’s home.  The teenagers then began walking back down the street toward Rawlston, and as Rawlston attempted to illuminate them with his flashlight, they “fanned out” so that they could not all be seen at the same time.  Based on his training and experience, Rawlston perceived the oncoming teenagers as a threat to himself and his neighbors; he raised his gun, identified himself as a police officer, and ordered the teenagers to drop to the ground and lie on their stomachs.  The teenagers complied.  As Rawlston was securing one of the teenagers, he inadvertently hit the teenager in the back of the head with his revolver.  He may also have kicked, presumably inadvertently, another of the teenagers.  There were no injuries.  At that point, the police arrived, having been summoned earlier by the neighbors.  The additional officers interviewed the teenagers and released them.

Rawlston grieved the termination decision as authorized by the then-operative CBA, which allowed for an employee’s election between arbitration and a hearing before the civil service commission under G. L. c. 31.  The arbitrator, in a lengthy and thorough decision, disagreed with every general fact and legal conclusion of significance on which the decision to terminate Rawlston was based.  Among other things, the arbitrator concluded that the teenagers lied about why they were in the residential area and that they intended mischief; that Rawlston reasonably feared for his and his neighbors’ safety when the teenagers “fanned out”; that Rawlston had good cause to draw his weapon; that Rawlston’s hitting one teenager in the back of the head with his weapon and possibly kicking another were accidental and resulted in no injuries; that Rawlston did not use unnecessary force or assault the teenagers; that Rawlston’s stopping the teenagers, ordering them to the ground, and searching them was based on good cause suspicion; that Rawlston never “lied” to his superiors and that the superiors simply misunderstood his statements; and that, in short, the city did not demonstrate that Rawlston engaged in misbehavior or that there otherwise existed “good cause” for his termination.  As the arbitrator summarized:

“In conclusion, I am satisfied that the evidence and testimony presented to me warrant the conclusion that the version of events advanced by Officer Rawlston and supported by other witnesses should be accepted.  I am further satisfied that Officer Rawlston did not precipitate the events of that confrontation, but rather responded to the provocative movements of those three individuals back down Tory Fort Lane toward their victims.  Officer Rawlston, by virtue of those circumstances, was denied the full spectrum of equipment and image that is inherent in the expectation of a continuum of force.  I am satisfied that he applied his scant resources in a reasonable manner given the fact that he was outnumbered and had no reason to believe that these persons had engaged in merely a trespass.  While he had no proof of a felony, he had no reason to rule out that option until an investigation revealed otherwise.  Given the above, I am satisfied that the City has failed to meet its burden with respect to all alleged violations of rules and regulations.

“. . .

“My findings in this case are substantially at odds with the findings of the Hearing Officer and, hence, with the decision of the [plaintiff] who adopted those findings.  I am satisfied that there was not just cause for the termination of Officer Rawlston, and he is to be reinstated with full back pay and benefits, less any and all outside earnings or unemployment compensation.”

The matter then proceeded to the Superior Court where, in a well-reasoned memorandum of decision, the judge confirmed the award.  In essence, the judge was not persuaded that the arbitration award “contravenes public policy” and invades managerial prerogative, observing that such contentions rely upon assumptions that Rawlston, in fact, engaged in serious misconduct toward the teenagers on that night and then interfered with the ensuing investigation by making untruthful statements — assumptions that were specifically rejected by the arbitrator.  Instead, the arbitrator neither found, as a matter of fact, nor concluded, as a matter of law, that Rawlston had engaged in misconduct.  Accordingly, in confirming the arbitration award, the judge concluded, properly, that she lacked the authority to “second guess” the arbitrator’s factual findings or legal conclusions.

Discussion.  Pursuant to art. 14, § 1, of the governing CBA, Rawlston could not “be removed, dismissed, discharged, suspended, reprimanded or disciplined except for just cause.”  He elected binding arbitration, pursuant to art. 14, § 6, of the CBA, rather than appeal to the civil service commission.  The case of Lynn v. Thompson, 435 Mass. 54, 61-62 (2001), cert. denied, 534 U.S. 1131 (2002), instructs:

“Unlike our review of factual findings and legal rulings made by a trial judge, we are strictly bound by an arbitrator’s findings and legal conclusions, even if they appear erroneous, inconsistent, or unsupported by the record at the arbitration hearing.  A matter submitted to arbitration is subject to a very narrow scope of review.  Absent fraud, errors of law or fact are not sufficient grounds to set aside an award.  Even a grossly erroneous [arbitration] decision is binding in the absence of fraud.  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” (quotations and citations omitted).

As the foregoing quotation demonstrates, the legal standards governing a court’s review of an arbitrator’s decision are quite circumscribed.

Like the municipality in the case of Lynn v. Thompson, supra, the plaintiff here seeks to set aside the arbitration award on the ground that it violates public policy.  “We apply a stringent, three-part analysis to establish whether the narrow public policy exception requires us to vacate the arbitrator’s decision.”  Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813, 818 (2005).  It seems clear that the city’s claim meets the first two of three criteria for application of the public policy exception.  The critical issue here is the third:  whether “the arbitrator’s award reinstating the employee violates public policy to such an extent that the employee’s conduct would have required dismissal.”  Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 605 (2000).  This factor cannot be met “by the expedient of ignoring the arbitrator’s finding” that Rawlston had acted reasonably under the circumstances and had not violated the rights of the teenagers, nor used excessive or improper force, nor had improperly used his firearm.  Lynn v. Thompson, 435 Mass. at 63.

The city’s reliance on Boston v. Boston Police Patrolmen’s Assn., supra, is misplaced.  As the Supreme Judicial Court stated:  “To prevail, the city must therefore demonstrate that public policy requires that [the officer’s] conduct, as found by the arbitrator, is grounds for dismissal, and that a lesser sanction would frustrate public policy.  The question to be answered is not whether [the officer’s conduct] itself violates public policy, but whether the agreement to reinstate him does so.  If an award is permissible, even if not optimal for the furtherance of public policy goals, it must be upheld.”  Id. at 819 (quotations and citations omitted).  Furthermore, as we stated in Boston v. Boston Police Patrolmen’s Assn., 74 Mass. App. Ct. 379, 381 (2009), quoting from Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. at 603-604, “given the ‘strong public policy favoring arbitration . . . the judiciary must be cautious about overruling an arbitration award on the ground that it conflicts with public policy.’”

In Boston v. Boston Police Patrolmen’s Assn., 443 Mass. at 819, unlike the case at bar, the arbitration award was vacated as a violation of public policy because the arbitrator ordered reinstatement in spite of having made findings showing egregious conduct, including “that [the officer] had falsely arrested two individuals on misdemeanor and felony charges, lied in sworn testimony and over a period of two years about his official conduct, and knowingly and intentionally squandered the resources of the criminal justice system on false pretexts.”  See Boston v. Boston Police Patrolmen’s Assn., 74 Mass. App. Ct. at 380 (in vacating the arbitrator’s award of suspension and reinstatement instead of termination, the court considered it significant that “[t]he arbitrator concluded that [the officer’s] conduct . . . was ‘offensive, way out-of-line and worthy of substantial discipline’”).

Here, the factual and legal underpinnings necessary to the application of the public policy exception is lacking.  The arbitrator did not issue an award of reinstatement that flies in the face of factual findings of misconduct; there is no inconsistency between the findings of the arbitrator and his award of reinstatement.

Judgment affirmed.

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