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Michael V. O'BRIEN vs. NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, LOCAL 911
Michael V. O'BRIEN [FN1] vs. NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, LOCAL 911. No. 12-P-155. Suffolk. December 10, 2012. - March 1, 2013. Arbitration, Police, Collective bargaining, Authority of arbitrator. Public Policy. Municipal Corporations, Police, Collective bargaining. Police, Discharge, Collective bargaining. Public Employment, Police, Termination, Collective bargaining. CIVIL ACTION commenced in the Superior Court Department on August 13, 2009. The case was heard by Kimberly S. Budd, J. Tim D. Norris for the plaintiff. Peter J. Perroni for the defendant. Present: Berry, Fecteau, & Carhart, JJ. FECTEAU, J. The plaintiff, the city manager of the city of Worcester (city), appeals from a judgment of the Superior Court allowing the defendant's motion to confirm an arbitration award. After hearing, the arbitrator, having found that a police officer's actions were reasonable and did not justify his termination "for cause," ordered the city to reinstate and make whole the officer, who had been terminated for actions that the city alleged constituted gross misconduct. The plaintiff contends that the arbitrator's decision infringes on the city's managerial prerogative and otherwise violates public policy by requiring the city to retain an officer who (i) violated three teenagers' constitutional rights and (ii) engaged in felonious conduct by assaulting the teenagers without cause. The plaintiff also argues that the arbitrator exceeded his authority under the applicable collective bargaining agreement (CBA) by improperly interpreting and applying various statutory, regulatory, and other administrative rules incorporated therein. The judge was not persuaded that the arbitrator's decision to reinstate the officer amounted to a violation of public policy and confirmed the arbitration award. We affirm. Background. From the arbitrator's decision we draw the following facts, in summary fashion. On the evening of April 7, 2007, Worcester police Officer David Rawlston, who was on injury leave and in his home on Tory Fort Lane in Worcester with his wife and child, received a telephone call from his neighbors informing him that they had seen three unidentified teenagers lurking about his house and his driveway, looking into his automobiles, and moving toward his backyard. Rawlston retrieved his department-issued handgun and a flashlight. After searching the interior of his house, Rawlston met his neighbors outside in his driveway, where they pointed out several teenagers a few houses up the street and identified those individuals to Rawlston as the ones they had earlier seen outside Rawlston's home. The teenagers then began walking back down the street toward Rawlston, and as Rawlston attempted to illuminate them with his flashlight, they "fanned out" so that they could not all be seen at the same time. Based on his training and experience, Rawlston perceived the oncoming teenagers as a threat to himself and his neighbors; he raised his gun, identified himself as a police officer, and ordered the teenagers to drop to the ground and lie on their stomachs. The teenagers complied. As Rawlston was securing one of the teenagers, he inadvertently hit the teenager in the back of the head with his revolver. He may also have kicked, presumably inadvertently, another of the teenagers. There were no injuries. At that point, the police arrived, having been summoned earlier by the neighbors. The additional officers interviewed the teenagers and released them. Rawlston grieved the termination decision as authorized by the then-operative CBA, which allowed for an employee's
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election between arbitration and a hearing before the civil service commission under G.L. c. 31. The arbitrator, in a lengthy and thorough decision, disagreed with every general fact and legal conclusion of significance on which the decision to terminate Rawlston was based. [FN2] Among other things, the arbitrator concluded that the teenagers lied about why they were in the residential area and that they intended mischief; that Rawlston reasonably feared for his and his neighbors' safety when the teenagers "fanned out"; that Rawlston had good cause to draw his weapon; that Rawlston's hitting one teenager in the back of the head with his weapon and possibly kicking another were accidental and resulted in no injuries; that Rawlston did not use unnecessary force or assault the teenagers; that Rawlston's stopping the teenagers, ordering them to the ground, and searching them was based on good cause suspicion; that Rawlston never "lied" to his superiors and that the superiors simply misunderstood his statements; [FN3] and that, in short, the city did not demonstrate that Rawlston engaged in misbehavior or that there otherwise existed "good cause" for his termination. As the arbitrator summarized: "In conclusion, I am satisfied that the evidence and testimony presented to me warrant the conclusion that the version of events advanced by Officer Rawlston and supported by other witnesses should be accepted. I am further satisfied that Officer Rawlston did not precipitate the events of that confrontation, but rather responded to the provocative movements of those three individuals back down Tory Fort Lane toward their victims. Officer Rawlston, by virtue of those circumstances, was denied the full spectrum of equipment and image that is inherent in the expectation of a continuum of force. I am satisfied that he applied his scant resources in a reasonable manner given the fact that he was outnumbered and had no reason to believe that these persons had engaged in merely a trespass. While he had no proof of a felony, he had no reason to rule out that option until an investigation revealed otherwise. Given the above, I am satisfied that the City has failed to meet its burden with respect to all alleged violations of rules and regulations. "... "My findings in this case are substantially at odds with the findings of the Hearing Officer and, hence, with the decision of the [plaintiff] who adopted those findings. I am satisfied that there was not just cause for the termination of Officer Rawlston, and he is to be reinstated with full back pay and benefits, less any and all outside earnings or unemployment compensation." The matter then proceeded to the Superior Court where, in a well-reasoned memorandum of decision, the judge confirmed the award. In essence, the judge was not persuaded that the arbitration award "contravenes public policy" and invades managerial prerogative, observing that such contentions rely upon assumptions that Rawlston, in fact, engaged in serious misconduct toward the teenagers on that night and then interfered with the ensuing investigation by making untruthful statements--assumptions that were specifically rejected by the arbitrator. Instead, the arbitrator neither found, as a matter of fact, nor concluded, as a matter of law, that Rawlston had engaged in misconduct. Accordingly, in confirming the arbitration award, the judge concluded, properly, that she lacked the authority to "second guess" the arbitrator's factual findings or legal conclusions. Discussion. Pursuant to art. 14,

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