Falmouth Police Superior Officers Ass'n v. Town of Falmouth

957 N.E.2d 1107, 80 Mass. App. Ct. 833
CourtMassachusetts Appeals Court
DecidedNovember 22, 2011
DocketNo. 10-P-1664
StatusPublished
Cited by4 cases

This text of 957 N.E.2d 1107 (Falmouth Police Superior Officers Ass'n v. Town of Falmouth) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Falmouth Police Superior Officers Ass'n v. Town of Falmouth, 957 N.E.2d 1107, 80 Mass. App. Ct. 833 (Mass. Ct. App. 2011).

Opinion

Graham, J.

After being demoted and terminated from his position as a sergeant in the Falmouth Police Department, plaintiff Paul Driscoll filed a grievance with his union, Falmouth Police Superior Officers Association (union), pursuant to a collective bargaining agreement (agreement) between the town of [834]*834Falmouth (town) and the union. After pursuing the grievance process, the union demanded arbitration of Driscoll’s claim. During the arbitration proceeding, the town raised as a threshold issue the arbitrability of Driscoll’s claim, and the arbitrator concluded that the grievance was not subject to arbitration and thus declined to reach the merits of the claim.

The plaintiffs commenced an action to vacate the arbitrator’s decision, see G. L. c. 150C, § 11, on the ground that the arbitrator exceeded the scope of his authority by ignoring the language of the agreement and violating the public policy favoring arbitration as a means to resolve labor disputes. A judge of the Superior Court affirmed the decision of the arbitrator. We affirm.

Background. Driscoll worked as a civil service employee for the Falmouth police department beginning in 1985, and in 1999 achieved the rank of sergeant. Driscoll’s grievance arises out of a disciplinary process initiated in December, 2006, when the town issued a notice of contemplated discipline; an administrative hearing was convened on February 9, 2007, at the conclusion of which the hearing examiner closed the evidence. The town subsequently issued an amended notice to Driscoll that included additional charges, and a second hearing was convened. The hearing officer issued a report in August, 2007, concluding that five of the charges against Driscoll had been substantiated. Driscoll was demoted and discharged from his employment with the police department. At all relevant times, Driscoll was a member of the union and the relevant agreement was in effect.

Driscoll then filed a grievance pursuant to the procedures outlined in the agreement,2 arguing that the town lacked just cause for the disciplinary action against him and that the hearing process suffered from procedural defects. The parties completed the grievance process, and in November, 2007, the plaintiffs requested arbitration of their claims. The parties selected an arbitrator and proceeded with arbitration, submitting to the arbitrator the following question: “Did the Town of Falmouth violate the applicable collective bargaining agreement by discharging Paul Driscoll from employment? If so, what shall be the remedy?” The town argued, as a threshold matter, that Driscoll’s claim was not sub[835]*835ject to arbitration because it invoked the just cause provision of G. L. c. 31, rather than a separate term under the agreement, and that all prior disciplinary actions involving union members had been presented to the civil service commission (commission), rather than pursued through arbitration. The arbitrator deferred resolution of the issue of arbitrability and heard evidence on the merits of the claim. In an award issued January 16, 2009, the arbitrator concluded that Driscoll’s claim was not arbitrable and declined to reach the merits of the claim.

The plaintiffs filed a complaint in Superior Court seeking to vacate the award. The judge denied the plaintiffs’ motion for judgment on the pleadings and confirmed the arbitrator’s award, concluding that the arbitrator did not exceed his authority or violate public policy. This appeal followed.

Discussion. The agreement in place between the union and the town establishes a multistep procedure for addressing grievances. The final step in the grievance procedure is to submit the dispute to arbitration by an arbitrator mutually agreeable to both parties or selected by the American Arbitration Association. Article 5. IB of the agreement defines a grievance as “any dispute alleged to be in violation of the terms of this Agreement.” Article 5.2 confers on arbitrators “the authority to settle only grievances defined herein.”

The town rests its argument against arbitrability on article 6.1 of the agreement, which provides: “The [town] and the [union] shall recognize and adhere to all provisions of the Massachusetts General Laws, Chapter 31, concerning Civil Service and particularly to the provisions relating to promotions, seniority, transfers, discharges, removal and suspensions.” Chapter 31 governs civil service employment in the Commonwealth. Of particular relevance here, G. L. c. 31, § 41, added by St. 1978, c. 393, § 11, provides that no civil service employee shall be discharged or suspended “[e]xcept for just cause.” Pursuant to G. L. c. 31, § 42, amended by St. 1981, c. 767, § 19, civil service employees seeking to challenge an employer’s actions under the previous section may file a complaint with the commission, but the commission may not address issues that have already been resolved through arbitration: “In the event the commission determines that the subject matter of such complaint [836]*836has been previously resolved or litigated with respect to such employee, in accordance with the provisions of section eight of chapter one hundred and fifty E, or is presently being resolved in accordance with said section eight, the commission shall forthwith dismiss such complaint.” General Laws c. 150E, § 8, amended by St. 1989, c. 341, § 80, in turn provides that public employees and employers “may include in any written agreement a grievance procedure culminating in final and binding arbitration to be invoked in the event of any dispute concerning the interpretation or application of such written agreement.”

The arbitrator based his determination that the grievance was not arbitrable on two considerations: (1) the agreement lacks any language limiting the town’s ability to discipline or discharge union members independent of the provisions of G. L. c. 31 in article 6.1, and (2) the agreement “imposes a reciprocal obligation on the Union to ‘adhere to all provisions’ of Chapter 31,” which provides a mechanism for challenging an employer’s decision to demote or discharge an employee. Because, the arbitrator reasoned, the agreement lacks additional “language providing for an election of remedies allowing a [union] member claiming to be demoted or removed without just cause to proceed either through arbitration or before the [commission]” (emphasis in original), union members may only address their complaints to the commission and do not have the option of proceeding to arbitration. The arbitrator also noted that all prior challenges to disciplinary action have been pursued before the commission, rather than through arbitration. On review, the Superior Court judge concluded that the arbitrator did not exceed his authority or violate public policy.

It is axiomatic that the power of the court to review the decision of an arbitrator is extremely limited. See, e.g., Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass. App. Ct. 702, 705 (2006). “Arbitration has long been viewed as a particularly appropriate and effective means to resolve labor disputes. . . . For this reason the Legislature has narrowly circumscribed the grounds to vacate arbitral awards.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003). If the dispute concerns a collective bargaining agreement with an arbitration provision, the arbitrator’s decision [837]*837is subject to judicial review only as provided in G. L. c. 150C. School Dist. of Beverly v. Geller,

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Bluebook (online)
957 N.E.2d 1107, 80 Mass. App. Ct. 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falmouth-police-superior-officers-assn-v-town-of-falmouth-massappct-2011.