City of Boston v. Boston Police Superior Officers Federation

• Decision Date: 15 April 1980
• Citation: 402 N.E.2d 1098,9 Mass.App.Ct. 898
• Parties: CITY OF BOSTON v. BOSTON POLICE SUPERIOR OFFICERS FEDERATION.
• Court: Appeals Court of Massachusetts

Page 1098

402 N.E.2d 1098

9 Mass.App.Ct. 898

CITY OF BOSTON v. BOSTON POLICE SUPERIOR OFFICERS FEDERATION.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 21, 1979.

Decided April 15, 1980.

Gerard S. McAuliffe, Quincy, for defendant.

Dennis G. Austin, Asst. Corp. Counsel, Boston, for plaintiff.

Before ARMSTRONG, ROSE and KASS, JJ.

RESCRIPT.

The defendant appeals from a judgment of the court vacating the arbitrator's award of differential back pay to the defendant ¹ on the ground that the arbitrator had exceeded his authority. G. L. c. 150C, § 11(a) (3). We affirm. The issue was whether the following question was a proper dispute for arbitration: whether the police commissioner for the city of Boston (commissioner) had the power to assign a police lieutenant (promoted provisionally to the rank of captain under G. L. c. 31, § 15F, as in effect prior to St. 1978, c. 393, § 11) for temporary service as acting captain in District 15 because his busing experience was deemed a necessary qualification for the job, rather than promoting a lieutenant from that district as provided in art. XIII, § 3, of the parties' collective bargaining agreement. The defendant argues that the arbitrator's award was within the scope of the reference submitted to him. We think the judge was correct in ruling that the matter was made nonarbitrable by statutory provisions.

In assigning the police officer to District 15, the commissioner exercised his inherent managerial power to assign and transfer superior officers. The commissioner's authority is derived from St. 1906, c. 291, as amended by St. 1962, c. 322, § 1 (Boston v. Boston Police Patrolman's Assn., Inc., 8 Mass.App. ---, --- ^a, 392 N.E.2d 1202 (1979)), in particular, c. 291, § 10, which grants the commissioner "authority to appoint . . . and organize the police . . . (and to) appoint . . . captains and other officers as he may from time to time deem proper," and, § 11, giving the commissioner "cognizance and control of the government, administration (and) disposition . . . of the department . . . ." Although G.L. c. 150E, § 7(d ), gives collective bargaining agreements precedence over certain enumerated statutes, c. 291 is not among those listed. Therefore, the provisions of c. 291 prevail over art. XIII, § 3, which purports to limit the commissioner's authority to assign superior officers by delineating the procedure for promoting officers from a district in which a temporary vacancy occurs and for which no civil service list exists, based on qualifications, ability, and seniority. See Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. ---, --- ^b, 377 N.E.2d 940 (1978). In light of the statutory...