In Sjc’s Latest Assault On Labor Arbitration, Public Employees Lose Even When They Win

At first glance, the Supreme Judicial Court’s decision in Sheriff of Suffolk County v. Jail Officers and Employees (http://socialaw.org/slip.htm?cid=18288&sid=120, decided June 23, 2008), which upholds an arbitrator’s reinstatement of a public employee, is unremarkable. Unfortunately, the Court’s reasoning and commentary in the case signal a shift in the law away from unions and the finality of the arbitration process.

As discussed in an earlier blog entry , the SJC granted further review of an Appeals Court decision upholding an arbitrator’s award. The case involved a county jail guard who allegedly witnessed the beating of an inmate and was not fully forthcoming about the incident. After the sheriff fired the guard, his union filed a grievance and an arbitrator reduced the discipline to a six-month suspension. The sheriff appealed and lost at the Superior Court and Appeals Court levels.

The SJC upheld the award too, but only because it could not determine from the arbitrator’s award whether the arbitrator had found the officer had lied. Because the arbitrator had died, there was no way to remand for further findings. But the Court went out of its way to comment that, if the arbitrator had found that the guard had lied, then the reinstatement would have violated public policy. According to the decision, which was written by SJC newcomer Justice Margot Botsford:

In a situation where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff’s custody, and then lies about this fact and files false reports that memorialize the falsity, we have little doubt that established public policy would condemn such conduct and would require the discharge of such an officer.

Sheriff of Suffolk County, at page 3.

The SJC’s decision raises several serious concerns. First, there is no basis in the law for the Court to order a remand on the basis that the findings of fact are “ambiguous” or “not sufficiently clear.” Modification and correction of awards are allowed only under certain circumstances, such as when an award “is so indefinite or incomplete that it cannot be performed,” G.L. c. 150C, § 8, or there is “an evidence mistake in the description of any person, thing or property referred to”, or the award is “imperfect in a matter of form.” G.L. c. 150C, § 12(a). The Court may only order a rehearing under narrow circumstances, including a finding that the arbitrator has exceeded his authority. So, even if the arbitrator were still alive, a remand would have been improper.

Second, and more importantly, the Court’s casual statement of the consequences if the officer had been found to lie, if adopted as law, would expand the public policy exception dramatically. The controlling case is City of Boston v. Boston Police Patrolmen’s Ass’n, 443 Mass. 813 (2005), in which an arbitrator concluded that a discharged Boston Police officer lied about being assaulted by two citizens, brought false charges against the citizens and testified consistently (and untruthfully) that he had been assaulted. The arbitrator nonetheless reinstated the officer with a one-year suspension, based upon several factors, including the City’s treatment of officers committing similar or worse misdeeds. The SJC vacated the arbitration award on the grounds that it violated public policy. The SJC articulated the three-part test for the public policy exception: (1) the award violates a public policy that is defined by laws, regulations or statutes, not general ideas about right and wrong; (2) the employee’s conduct goes to the very heart of his employment duties; and (3) the public policy requires termination – no other discipline is sufficient. The Court in the City of Boston case held that the officer engaged in on-duty misconduct that involved multiple lies, perjuries and false reports, and that these actions amounted to several felonies under state law (even though the officer was never even charged with a crime). Because state law prohibits felons from serving as police officers, the Court determined that the public policies embodied in those statutes required termination of the officer.

In the Sheriff of Suffolk County case, the Court ignores key aspects of the test for finding a public policy exception. It appears to rely on allegations of on-the-job lying and false reports as the common link with the City of Boston case. But that is not enough under the SJC’s previous decision. The Sheriff of Suffolk County decision identified no statutes, regulations or laws that specifically define the public policy that the jail guard’s behavior violates. Worse, the Court did not show why termination was required by the public policy, as opposed to merely desired or permitted. Unlike the City of Boston case, the SJC’s decision here contains no reference to any statute requiring the termination of jail guards who commit felonies.

The SJC’s comments about the results of the public policy test are not necessarily binding on later decisions, but they may be a warning sign of things to come. As in previous cases, the SJC gives lip service to the notion that the parties have bargained for the arbitration award and it should not be touched. Unfortunately, in practice, judges are more than willing to second guess the arbitrators when a decision rubs them the wrong way.

One very practical result of the SJC’s decision is its recognition that those who witness bad behavior and engage in a cover-up are likely to be treated the same as those who commit the misconduct. Lawyers, doctors and other professionals already operate under rules that require them to report colleagues who engage in misconduct. It is not surprising, then, that these principles are being enforced in other areas. All employees, especially those in positions of public trust, should make every effort to avoid misstatements. Telling the truth, the whole truth and nothing but the truth is not only the right thing to do – it could save your job.
Of course, as Pilate famously said, “What is truth? We both have truths – are mine the same as yours?” The issue of truth vs. lies is more complicated that management might see it. Some would classify the failure to report another’s wrongdoing in a different category from the affirmative statement of a falsehood. Furthermore, not every misstatement is intentional, and not every intentional misstatement is material. (Compare these lies: “I didn’t take the money” and “I played on my high school basketball team.”) But don’t be surprised if employers cite this decision to support the idea that any misstatement (whether or not intentional, whether or not material) is grounds for termination.

Finally, a word of caution: While ‘the truth, the whole truth, and nothing but the truth’ may be the proper route in many if not most situations, the federal and state constitutions provide protections for public employees who are accused of misconduct that could lead to criminal charges. Consult with your personal or union attorney to find out when the best approach is to invoke your right to remain silent.