City of Everett v. International Brotherhood of Police Officers, Locals 633 & 634

3 Mass. L. Rptr. 630
CourtMassachusetts Superior Court
DecidedMay 29, 1995
DocketNo. 947376
StatusPublished

This text of 3 Mass. L. Rptr. 630 (City of Everett v. International Brotherhood of Police Officers, Locals 633 & 634) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Everett v. International Brotherhood of Police Officers, Locals 633 & 634, 3 Mass. L. Rptr. 630 (Mass. Ct. App. 1995).

Opinion

White, J.

Plaintiff City of Everett (the “City”) brought this action to vacate an arbitration award, pursuant to G.L.c. 150C, §11(a). The City asserts that, contrary to the arbitrator’s decision, it did not violate the collective bargaining agreement when the Chief of Police unilaterally ordered day shift police officers to remain in uniform, in radio contact, and within the jurisdiction of the city of Everett during their lunch relief. Moreover, the City argues that the matter was not the proper subject of arbitration because the public policy and public safety matters involved were nonbarginable, managerial prerogatives. Defendant International Brotherhood of Police Officers, Locals 633 and 634 (the “Union”) seeks confirmation of the award, pursuant to G.L.c. 150C, §ll(d). For the reasons set forth below, the City’s request is DENIED and the arbitration award is AFFIRMED.

BACKGROUND

The facts found by the arbitrator are summarized as follows. The City and the Union are parties to a collective bargaining agreement covering the period from July 1, 1988 through June 30, 1991 (the “agreement”).1

Prior to 1984, the day shift was nine (9) hours, one hour longer than either of the night shifts. To equalize the shifts, day shift employees were granted a one hour duty-free paid lunch period. Since approximately 1984, the Everett Police Department has operated three (3) eight (8) hour shifts; however, the contractual grant of a one hour duty-free paid lunch period was continued for the day shift.

Article 7 of the agreement governs officers’ hours of duty. Specifically, Section 7.3 provides:

7.3 Lunch/Dinner Reliefs
Employees working night shifts shall be entitled to a dinner relief during their regular work shift subject, however, to the needs of the Department.
Employees working the day shift shall receive a one (1) hour paid lunch relief, during which time they shaU. not be subject to the needs of the Department However, at least one (1) superior officer must remain on duty in charge of the shift at all times.

[631]*631(Emphasis added.)

During the day shift, the officers’ one hour lunch period is taken between 12:00 noon and 2:00 p.m. Lunch hours are staggered so that at least one-half of the officers are on duty during that time.

The evidence at the arbitration hearing established that officers, during their lunch period, have gone to their residences, have doffed uniforms to work out or jog, have traveled to gym facilities outside Everett, have shut off their car and personal radios, and have engaged in other personal business. The practice has apparently been to complete a call initiated prior to the lunch period, but not to initiate any new calls once the lunch period had commenced. Any response completed after the start of the lunch period was compensated at time and one-half rates. This lunch practice has been in effect since approximately 1981.

James Bonnell was appointed Chief of Police in October 1992. Approximately one month later, he learned of the lunch time practices of the officers. Chief Bonnell had addressed the lunch hour issue with staff during some 15 to 20 staff meetings, hoping to affect a mutually agreed upon change. Chief Bonnell believed that the officers’ practices reduced Department efficiency and created a risk to public safety and the safety of the police officers.

On February 23, 1994, Chief Bonnell issued a memorandum which provided in pertinent part:

Effective Immediately, all Officers assigned to the day shift hours will remain in their uniform of the day, will retain all issued equipment, will remain in radio contact, and will not leave the city limits during subject period unless given specific prior approval by the O.I.C.; and when they are called or do respond to an emergency they will be properly compensated as per the present contract.

Section 25.3 of the agreement states that its provisions “supersede any conflicting or inconsistent rule, regulation or order promulgated by the Chief of Police.” Thus, pursuant to Article 12.2, the Union grieved the February 23, 1994 memorandum. The officers, however, conformed to the ordered changes, responding when called during their lunch period. In such cases, they were paid time and one-half pay during such time response.

Prior to the issuance of the Chiefs memorandum, new contract negotiations had begun. On April 12, 1994, Mayor McCarthy issued a notice of termination of Collective Bargaining with the Union and of the Cily’s intent to terminate the Agreement “60 days from receipt of this notice.”

Pursuant to Article 12.3 of the agreement, this matter was arbitrated on October 3, 1994. The arbitrator rendered an Opinion and Award dated November 21, 1994. He found that the grievance was arbitrable and the City violated Section 7.3 of the agreement by the issuance of the Chiefs February 23, 1994 Memorandum. He further ordered that employees affected should “be made whole for any earnings lost.”

DISCUSSION

The scope of review of an arbitrator’s award is narrow. “Absent fraud, errors of law or fact are not sufficient grounds to set aside an award.” Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990). Nevertheless, upon application filed within thirty days after deliveiy of an award, a Superior Court judge may vacate a labor arbitration award if the “arbitrator exceeded [his] powers.” G.L.c. 150C, §11 (a)(3).

“An arbitrator exceeds his authority [if he] grantfed] relief beyond the scope of the arbitration agreement, see Royal Indemnity Co. v. Blakely, 372 Mass. 86, 87 n.2 (1977), [] award[ed] relief beyond that to which the parties bound themselves, see Local 589Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 411 (1984), [] award[ed] relief prohibited by law, see Marlborough v. Cybulski, Ohnemus & Assocs., 370 Mass. 157, 160 (1976) . . . [or] award[ed] relief of a nature which offends public policy . . . [see] Lawrence v. Falzarano, 380 Mass. 18, 28 (1980).” Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., supra at 1007. None of these factors is present in this case.

A. Arbitrability of Lunch Time Duty

The City argues that the Chiefs unilateral order, requiring day officers to remain ready for duty on their lunch hour, concerns public policy and is a managerial prerogative that is nonnegotiable and not subject to arbitration. The City therefore contends that the arbitrator, in granting the award, has exceeded his authority. The court disagrees.

Certain subjects in the public sector are beyond the scope of collective bargaining as they constitute nonbarginable and nondelegable management prerogatives, even where such terms are included in the agreement. See Boston v. Boston Police Patrolmen’s Ass’n, 403 Mass. 680 (1989); Burlington v. Labor Relations Comm’n, 390 Mass. 157, 164 (1983). Generally, public safety is one such subject that “must be left to the appropriate officials and to the political process which affects public policy.” Taunton v. Taunton Branch of the Mass. Police Ass’n, 10 Mass.App.Ct. 237, 243 (1980), quoting Boston v. Boston Police Patrolmen’s Ass’n, 8 Mass.App.Ct. 220, 226 (1979).

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3 Mass. L. Rptr. 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-everett-v-international-brotherhood-of-police-officers-locals-633-masssuperct-1995.