It all began in December, 1999, when the Sheriff of Suffolk County wrongfully terminated a jail officer who, it claimed, failed to report two other jail officers for using excessive force on a prisoner.  After 14 years and half a dozen court decisions, the Jail Officers and Employees Association of Suffolk County (JOEASC), with the legal assistance of Attorney John M. Becker of Sandulli Grace, P.C., have finally succeeded in obtaining the officer’s back wages for all the years he was kept out of work.

The officer’s Union filed a grievance over his termination, which proceeded to arbitration in 2000.  In 2001, the Arbitrator found that the Sheriff did not have just cause for the termination and issued an award reducing the termination to a six-month suspension and reinstating the jail officer with back pay.  But instead of returning the officer to work, the Sheriff did what so many public employers do when confronted with an arbitration decision they don’t like – they appealed to court under G.L. c. 150C, § 11.  It was here, in the courts, that the officer’s ordeal truly began.  Because although the Union kept winning, the jail officer couldn’t go back to work.

First, the Sheriff asked the Superior Court to vacate the arbitrator’s award.  The parties filed briefs, the judge heard oral arguments and then, applying the rule that judges are supposed to be extremely deferential to labor arbitrators, the Superior Court upheld the arbitrator’s decision.  See Sheriff, County of Suffolk v. AFSCME, Council 93, AFL-CIO, Local 1134, 2002 WL 33966764 (Aug. 9, 2002) and 2002 WL 339966765 (Oct. 25, 2002).  Now it’s 2002.  Not satisfied, the Sheriff appealed the decision to the Appeals Court.  Once again, the parties filed briefs and the Court held oral arguments, after which the Appeals Court affirmed the Superior Court’s decision upholding the arbitrator’s award.  See Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 62 Mass. App. Ct. 915 (2004).  Now it’s 2004.

The Sheriff then asked the Supreme Judicial Court to review the case, arguing that the case deserved further appellate review because it involved “substantial reasons affecting the public interest or the interests of justice.” Mass. R. App. P. 27.1.  The SJC disagreed, but it did remand the case in light of its decision in City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), which overturned an arbitration award because it violated public policy. So once again the parties filed briefs and argued before the Appeals Court, and once again the Appeals Court affirmed the arbitrator’s award.  See Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 68 Mass. App. Ct. 903 (2007).  Now it’s 2007.  Again, the Sheriff asked the SJC to grant further appellate review and this time the SJC said yes.  So the parties went to the highest court in the Commonwealth to plead their case and, lo and behold, the SJC affirmed the arbitration award.  See Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698 (2008).  (For those keeping score at home, this is the fourth time a court has affirmed the arbitrator’s 2001 award.)

Finally, in August, 2008, the Sheriff allowed the long-suffering jail officer to go back to work and earn a regular paycheck.  But it was not over yet.  The Sheriff also owed the officer back pay for the 8 ½ years he was out of work.  So the Sheriff wrote up a list of the pay he would have earned, and subtracted certain items (unemployment compensation, for example) and asked the officer to sign off on the total, which he did.  But then the Sheriff decided that the officer might have earned more money while he was out of work and refused to pay anything.  The Sheriff refused to believe the officer’s statement that he never looked for another full-time job because he every time the case went to court, he won, and every time he won, he thought he was getting his job back.

JOEASC decided that this had gone on long enough and it asked its attorneys (Joe Sandulli and me) to take legal action.  Joe and I filed a motion for contempt in Superior Court on August 24, 2009 to force the Sheriff to pay.  The parties engaged in discovery and then went through a mini-trial on how much money the officer earned while waiting to go back to work.  The Superior Court judge ultimately agreed with the Union, and on April 12, 2011, he ordered the Sheriff to pay the amount based on the jail officer’s testimony.  The Sheriff, of course, could not accept this ruling, and went once again to the Appeals Court.  This time, the SJC, perhaps acknowledging the inevitable, took the case from the Appeals Court and heard it directly.  Once again, the parties filed briefs and, on February 4, 2013, argued before the seven justices of the SJC.  The legal issues before the Court were: (1) whether the jail officer had a duty to mitigate damages while out of work; (2) whether the Sheriff had waived the issue of mitigation; (3) whether the Sheriff had proved the jail officer had failed to mitigate; and (4) whether the Sheriff was subject to interest on the back pay award.  Ultimately the SJC ruled that the officer did have a duty to mitigate damages by looking for similar work but that: the Sheriff should have brought up the issue before the arbitrator and now it was too late; and even if the Sheriff didn’t waive the issue, it failed to show that there were similar jobs available for the officer to apply for.  The court also found that the Sheriff had sovereign immunity from interest awards.  See Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 365 Mass. 584 (2013). .   Reading between the lines of the legal analysis, the takeaway from the SJC’s decision was that the Sheriff now – finally – had to pay the jail officer the back pay he was owed.  Now it’s 2013 – and  the damage that began with an improper termination in 1999 has finally been undone.  But has it, really?

From my perspective, there is something wrong with a system that allows, perhaps even encourages employers to challenge arbitration awards with such impunity.  First of all, to the extent that the monarchial-based doctrine of sovereign immunity has any lasting merit in today’s world, it should not apply to arbitration awards.  The failure to award interest means that public employers have little to lose by delaying reinstatement and back pay awards through fruitless appeals or other tactics.  The first goal of the interest doctrine is not to compensate those who have been deprived of the use of their money but to create an incentive for those with the obligation to pay to do so promptly.  Second, the Courts have been too willing to delve into the underlying merits of arbitration awards in recent years.  While reverentially reciting the deferential standard, the Courts’ analyses too often betray the presence of more hands-on standards like those used for administrative appeals under G.L. c. 30A.  As this former SJC law clerk can tell you, the standard of review is often where the case gets decided.  The implications for the entire labor arbitration system are serious.  Each arbitration award that is vacated because an arbitrator allegedly exceeded her authority or because the award violated public policy encourages other public employers to challenge the next loss (I say ‘employers’ deliberately because although unions have just as much right to appeal their losses, they very rarely do.).  In time, the words ‘final and binding’ in the collective bargaining agreements become more and more meaningless and ‘labor peace’ becomes something that is fought over by lawyers in the courts, instead of by the parties (and, yes, sometimes their lawyers) at the bargaining table.  And that would be a shame.