City of Boston v. Boston Police Patrolmen's Ass'n Inc.

• Decision Date: 05 January 1989
• Citation: 532 N.E.2d 640,403 Mass. 680
• Parties: CITY OF BOSTON v. BOSTON POLICE PATROLMEN'S ASSOCIATION, INCORPORATED (and a consolidated case 1 ]). Supreme Judicial Court of Massachusetts
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 640

532 N.E.2d 640

403 Mass. 680

CITY OF BOSTON v. BOSTON POLICE PATROLMEN'S ASSOCIATION, INCORPORATED (and a

consolidated case ¹]).

Supreme Judicial Court of Massachusetts.

Jan. 5, 1989.

Frank J. McGee (Steven M. Guiney, Marshfield, with him), for Boston Police Patrolmen's Ass'n, Inc. et al.

Lawrence J. Ball, Boston, for the city of Boston et al.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

This appeal arises from the opposition of the Boston Police Patrolmen's Association, Incorporated (association), to the implementation by the Boston police department (department) of a patrol and deployment plan which, inter alia, provides for the assignment of one officer per marked patrol vehicle instead of two. In the first of these two consolidated actions, the city of Boston (city), pursuant to G.L. c. 150C, § 11 (1986 ed. & 1988 Supp.), filed a complaint in the Superior Court seeking to vacate a 1977 arbitrator's award on the ground that it was beyond the scope of the arbitrator's authority. The arbitrator had determined that the proposed assignment plan violated the applicable collective bargaining agreement.

The second case (injunction action) arose in 1983, when Guiney, on behalf of the association, filed a complaint not only seeking to enjoin the department's implementation of the plan but also a declaration that the city was required to submit certain aspects of the plan to binding arbitration. A judge in the Superior Court ordered that the implementation of the plan be preliminarily enjoined. The order was subsequently vacated by a single justice of the Appeals Court on interlocutory appeal. See G.L. c. 214, § 6 (1986 ed.). The Appeals Court affirmed the order of the single justice. After the preliminary injunction was vacated, the deployment plan went into effect.

The actions were then tried before a Superior Court judge, sitting without a jury, who vacated the 1977 arbitrator's award, ruling that the police commissioner's authority to assign officers constituted a management prerogative which cannot be delegated to an arbitrator. ² In the injunction action the judge ruled that the parties were not required to proceed to binding arbitration pursuant to Art. XVI, § 17, of the collective bargaining agreement, unless (a) the city council of Boston (city council) authorized the arbitration proceeding as required by G.L. c. 150E, § 9 (1986 ed.), and (b) the issues to be arbitrated were determined by the grievance procedure contained in Art. VI of the collective bargaining agreement. The association argued that Art. XVI, § 17, of the collective bargaining agreement, which provides for "binding interest arbitration" requires the city not only to arbitrate matters relating to new or successive contract negotiations, but also to arbitrate disputes arising during the term of an existing agreement. ³ After a timely appeal, we transferred the matter to this court on our own motion.

The trial judge found the following facts. The association is the certified collective bargaining representative for all department police officers below the rank of sergeant. The association and the city entered into a new collective bargaining agreement on September 17, 1982, which added the binding interest arbitration provision. On December 6, 1982, the city notified the association of the possibility of changes in staffing assignments for association members. However, the city delayed implementing the patrol and deployment plan while it met with the association to discuss the plan's "impact."

The association objected consistently to four of the plan's features: (1) the use of single officers in marked cruisers or on motorcycles to respond to "Priority Two" or "Priority Three" assistance calls, (2) the creation of "rapid response units" to respond to "Priority One" calls, (3) the plan's implicit requirement that responding officers enter buildings alone, and (4) the plan's reorganizing five existing districts of the department into two new districts.

During the discussions regarding the plan's implementation, the association maintained that the plan changed the existing agreement and involved mandatory subjects which should be put to the full collective bargaining process. The city consistently maintained that the plan's content contained exercises of management prerogative as to which no bargaining was required. The two sides discussed, but did not agree to, binding arbitration. They also discussed the possibility of a pay increase if the plan were implemented.

The collective bargaining agreement in effect when the association sought injunctive and declaratory relief contained the procedure for binding interest arbitration. However, this provision has not been submitted to, or approved by, the city council. Similarly, no request for binding interest arbitration over any aspect of the plan has been submitted to, or approved by, the city council. The grievance procedure under the collective bargaining agreement ends in arbitration. ⁴ No grievance regarding the city's refusal to arbitrate the plan's impact under the binding interest arbitration provision has been commenced.

1. Arbitration award. When the parties agreed to submit their dispute to an arbitrator in 1977, they stipulated that the issue for arbitration was: "Is it a violation of the collective bargaining Agreement for the City to assign one uniformed police officer to a marked police vehicle performing regular patrol or wagon duty?" ⁵ The arbitrator found that it was. The judge ruled that "decisions concerning the identity and number of officers who are to spend their tours of duty riding in marked police cars surely fall[s] well within [the] ... generous embrace" of St.1906, c. 291, as appearing in St.1962, c. 322, § 1, and vacated the award. Section 10 of c. 322 provides that the police commissioner "shall have authority to appoint, establish and organize the police of" the city. In addition, § 11 provides, that the "police commissioner shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department and shall make all needful rules and regulations for the efficiency of said police." The commissioner's authority, pursuant to this act, has been recognized to be broad. ⁶

In the past this court has held that certain subjects simply are beyond the scope of public sector collective bargaining. See, e.g., School Comm. of Boston v. Boston Teachers Union, Local 66, 378 Mass. 65, 71-72, 389 N.E.2d 970 (1979). The police commissioner's decision to assign one officer, as opposed to two, to a marked patrol vehicle is one of those subjects which constitutes management prerogative and is nondelegable and, therefore, beyond an arbitrator's authority. Chief of Police of Dracut v. Dracut, 357 Mass. 492, 502, 258 N.E.2d 531 (1970). Cf. Taunton v. Taunton Branch of the Mass. Police Ass'n, 10 Mass.App.Ct. 237, 243, 406 N.E.2d 1298 (1980); Boston v. Boston Police Superior Officers Fed'n, 9 Mass.App.Ct. 898, 402 N.E.2d 1098 (1980); Boston v. Boston Police Patrolmen's Ass'n, 8 Mass.App.Ct. 220, 226-227, 392 N.E.2d 1202 (1979). See also G.L. c. 150E, § 7(d) (1986 ed. & 1988 Supp.). Therefore, the judge properly vacated the arbitrator's award.

2. Injunction case. The association argues that the city was required to bargain over (1) the procedures by which the plan was to be implemented, and (2) the plan's impact on association members. The association seeks a declaration by this court that such "impact" bargaining was subject to the binding interest arbitration provision contained in the collective bargaining agreement. ⁷

The city correctly concedes that, if a managerial decision has impact upon or affects a mandatory topic of bargaining, negotiation over the impact is required, citing School Comm. of Newton v. Labor Relations Comm'n, 388 Mass. 557, 564-567, 447 N.E.2d 1201 (1983). See G.L. c. 150E, § 6 (1986 ed.). See also School Comm of Holbrook v. Holbrook Educ. Ass'n, 395 Mass. 651, 655, 481 N.E.2d 484 (1985); Burlington v. Labor Relations Comm'n, 390 Mass. 157, 165-166, 454 N.E.2d 465 (1983); Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197, 213, 434 N.E.2d 1258 (1982). The association does not dispute that the city has met with it in order to negotiate the impact of the plan's implementation, but argues that, since these negotiations have resulted in impasse, ⁸ the city is required to submit the matter to binding interest arbitration.

The association relies on the binding interest arbitration provision contained in Art. XVI, § 17, of the collective bargaining agreement. ⁹ However, the city argues that the arbitration provision contained in Art. XVI, § 17, only governs the procedures for creating a new or successor collective bargaining agreement and does not apply to interim disputes relative to safety, impact, or the rights of employees under an existing agreement. Thus, the scope of the arbitration provision in Art. XVI, § 17, will determine whether the city is required to proceed to binding arbitration to resolve any bargaining impasse concerning the impact of the plan's implementation.

Although the judge noted that the language of Art. XVI, § 17, could be applicable to "arbitration of every kind and description," including interim disputes, he correctly pointed out that "[t]he precise scope of the clause ... is not for the court to decide in the first instance." As we have stated previously, when "[t]he collective bargaining agreement provides that the meaning of the agreement is a 'grievance' which can be submitted to arbitration ... [t]he meaning of the agreement is for the arbitrator and not for the courts." School Comm. of Danvers v. Tyman, 372 Mass. 106, 115, 360 N.E.2d 877 (1977). See Boston Teachers Union, Local 66 v. School Comm. of Boston, 372 Mass. 617, 618-619, 363 N.E.2d 492 (1977); ...