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

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑155                                        Appeals Court   MICHAEL V. O’BRIEN[1]  vs.  NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, LOCAL 911.     No. 12‑P‑155. Suffolk.     December 10, 2012.  ‑  March 1, 2013. Present:  Berry, Fecteau, & Carhart, JJ.   Arbitration, Police, Collective bargaining, Authority of arbitrator.  Public Policy.  Municipal Corporations, Police, Collective bargaining.  Police, Discharge, Collective bargaining.  Public Employment, Police, Termination, Collective bargaining.       Civil action commenced in the Superior Court Department on August 13, 2009.   The case was heard by Kimberly S. Budd, J.     Tim D. Norris for the plaintiff. Peter J. Perroni for the defendant.     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 […]

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