In this Brockton Arbitration Award the arbitrator enforced contractual language notwithstanding a twelve year contrary past practice.

The grievance challenged the City’s twelve-year practice of compensating Animal Control Officers for overtime based upon a forty (40) hour work week rather than a thirty-five (35) hour work week. The City challenged the grievance both on arbitrability timeliness grounds and on the merits.
The arbitrator found that the grievance was arbitrable, notwithstanding the City’s timeliness defense, holding that the union had no knowledge that Animal Control Officers were being paid on a forty (40) hour workweek until just prior to filing the grievance. In addition, the arbitrator found the grievance to be a continuing violation.

The arbitrator also enforced the thirty-five (35) hour work week language of the contract, notwithstanding the fact that the City had a twelve-year practice of paying Animal Control Officers based upon a forty (40) hour work week.

Accordingly, the arbitrator held that the City violated the contract by calculating Animal Control Officer overtime based upon a forty (40) hour work week rather than a thirty-five (35) hour work week. As a remedy, the arbitrator ordered the City to make the Animal Control Officers whole for all losses retroactive to ten (10) days prior to filing the grievance. In addition, she ordered the City to prospectively compensate Animal Control Officers and the Animal Control Supervisor an hourly/overtime rate based upon a thirty-five (35) hour workweek.

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In two recent cases, the Massachusetts Appeals Court has flatly rejected efforts by public employers to overturn arbitrator awards in favor of unions representing criminal justice system employees.

It is a basic principle of Massachusetts labor law that courts generally cannot overturn an arbitrator’s decision except under very exceptional circumstances. It is similarly well established a court won’t overturn awards even it if believes the arbitrator made mistakes in interpreting the law or in determining the facts.

Despite the exceptionally high threshold, Massachusetts public employers routinely waste public time and resources by refusing to accept an arbitrator’s decision as binding and final. Public employers may feel encouraged – wrongly so – by the Court’s decision in by the Boston v. Boston Police Patrolmen’s Assn., 443 Mass. 813 (2005) (aka DiSciullo). This case involved highly exceptional circumstances of when an award reinstating a police officer was reversed, because reinstatement of an officer found to have repeatedly lied under oath and filed false criminal charges (both felonies) would violate state law prohibiting felons from being police officers.

For detailed information see the following:

Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 03-P-1154 (Feb. 1, 2007)

Sheriff of Suffolk County v. AFSCME Council 93 (Feb. 13, 2007)

Many police chiefs and public employers have misinterpreted the DiSciullo decision (perhaps willfully) to claim that they must fire law enforcement officers who make any lie or misstatement. A recent decision shows that once again, public employers have it wrong.
In Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 03-P-1154 (Feb. 1, 2007), the Appeals Court affirmed its previous decision that resulted in the reinstatement of a corrections officer. The Suffolk County Sheriff terminated a corrections officer after it found that he observed a scuffle between fellow officers and a pretrial detainee, failed to report these observations and then lied about the matter to investigators. On appeal, the arbitrator found that punishment of the corrections officer warranted no more than a six-month suspension. The arbitrator specifically found that the corrections officer failed to "file some form of a report of an unusual and significant event (i.e., the assault) and that he did not cooperate with the investigation and filed incomplete, misleading or false reports."

The Sheriff appealed. The Appeals Court expressly rejected the suggestion that the arbitrator’s award was illegal under DiSciullo.

In the Boston Police case, DiSciullo was the original perpetrator of bad acts, who then went on to "shroud his own misconduct in an extended web of lies and perjured testimony." In contrast, Upton’s conduct was the result of trying to cover up the misdeeds of his fellow correction officers, and not the result of trying to cover up his own misconduct. Such conduct, while condemnable, and requiring substantial discipline, did not compel termination, as it did not "present one of those ‘rare instances’ in which an arbitrator’s award must be vacated as contrary to ‘an explicit, well-defined, and dominant public policy.’ "
While this case involved a corrections officer, it seems to have equal application to police officers. As such, this decision should make public employers reconsider their threats of termination when they assert that police officers have lied in the course of an internal affairs investigation.

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In another case involving the Suffolk County Sheriff, Sheriff of Suffolk County v. AFSCME Council 93 (Feb. 13, 2007), the Massachusetts Appeals Court rejected another effort to void a public employer’s attack on an arbitrator’s award of reinstatement.
This case dealt with a corrections officer terminated for excessive sick leave – sick leave, incidentally, caused by a work-related injury (restraining an unruly prisoner). The arbitrator interpreted the sick leave policy and found that, contrary to the Sheriff’s claims, the absences were not “undocumented” as the officer provided supporting medical documentation. The arbitrator ordered reinstatement.

The Sheriff appealed under the principle that an arbitrator cannot ignore the contract’s plain language. In essence, the arbitrator claimed that an erroneous interpretation is tantamount to ignoring contract language. The Appeals Court rejected this contorted logic.

In this case, there is no doubt that the arbitrator focused on the correct language in the [policy], but his interpretation of that language, that an employee who lacked sufficient accrued sick leave could avoid being charged with an "undocumented" sick day by providing appropriate medical documentation, may have been incorrect. The judge essentially ruled that the arbitrator’s interpretation was erroneous. In short, the arbitrator may simply have got it wrong. The sheriff’s argument, therefore, boils down to a claim that the arbitrator exceeded his authority by erroneously interpreting the contract provision. If that were the test for vacating an arbitration award, G. L. c. 150C, § 11 … would be drained of any meaning, so that any and all awards would be vulnerable to attack, merely on a complaint by a party who claims error on the part of an arbitrator in interpreting the particular contract language at hand. The settled rule, however, is that a court has "no business overruling an arbitrator because [it] give[s] a contract a different interpretation."

In a world guided by logic, this decision should caution public employers from frivolously challenging arbitration losses. Of course, if only all public employers inhabited such a world.

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