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

• Decision Date: 09 August 1979
• Citation: 8 Mass.App.Ct. 220,392 N.E.2d 1202
• Parties: CITY OF BOSTON v. BOSTON POLICE PATROLMEN'S ASSOCIATION, INC.
• Court: Appeals Court of Massachusetts

Page 1202

392 N.E.2d 1202

8 Mass.App.Ct. 220

CITY OF BOSTON v. BOSTON POLICE PATROLMEN'S ASSOCIATION, INC.

Appeals Court of Massachusetts, Suffolk.

Argued April 12, 1979.

Decided August 9, 1979.

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

Kevin P. Phillips, Marshfield, for defendant.

Before GRANT, PERRETTA and KASS, JJ.

PERRETTA, Justice.

The plaintiff, city of Boston, commenced this action pursuant to G.L. c. 150C, § 11, seeking to vacate the award of an arbitrator who had ordered the Boston police commissioner to reissue a service revolver to a police officer, a member of the defendant Boston Police Patrolmen's Association, Inc. The association moved to confirm the award in the Superior Court pursuant to G.L. c. 150C, § 10. The trial judge entered an order allowing the motion for confirmation, and the city appealed; however, because no judgment has been entered the appeal must be dismissed. Mass.R.Civ.P. 58(a), as amended, 371 Mass. 908 (1977). Tisei v. Building Inspector of Marlborough, 5 Mass.App. 328, ---, ^A 363 N.E.2d 262 (1977). Levy v. Bendetson, 6 Mass.App. ---, ---, ^B 379 N.E.2d 1121 (1978). Because the issue has been fully briefed and argued we express our views in this matter in the event the city should decide to move for a rehearing on the association's motion. Koonce v. Aldo Realty Trust, --- Mass.App. ---, 392 N.E.2d 549 (1979).

In July of 1972 the police officer threatened three civilians with his service revolver while he was intoxicated and off duty. ¹ The police commissioner suspended him for one year, followed by a one-year probationary period. This was the second suspension for the officer, who also had other disciplinary blemishes on his record. During his probationary period, however, the officer conducted himself in an exemplary manner while serving in an administrative and clerical capacity. It appeared to those associated with him that he had overcome his problem with alcohol. On the basis of his performance during his probationary period and the recovery from his illness, the officer, upon completion of his probation, requested police officials to reissue his service revolver to him so that he would be eligible for overtime assignments and paid details. It appears from the arbitrator's award and the arguments of counsel that paid private details and certain overtime duties are assigned only to armed police officers. The record presented to us provides no support for this fact, but we treat it as one proven because of our limited review of factual determinations in arbitration disputes. See Fazio v. Employers' Liab. Assur. Corp., Ltd., 347 Mass. 254, 258, 197 N.E.2d 598 (1964). A police official advised the officer that it would be in the Police Department's best interest to obtain a medical opinion concerning the officer's fitness to carry a gun, and he requested that the officer be examined by the department's physician. The officer agreed to the examination, but the physician referred him to a psychiatrist for an evaluation. The association argues that while the officer had agreed to be physically examined, he has never agreed to be interviewed by a psychiatrist. ² The officer has not been psychiatrically evaluated as requested, and the commissioner has refused to return the service revolver to the officer, asserting that it is the prerogative and responsibility of the commissioner, under St.1906, c. 291, §§ 11 and 14, as appearing in St.1962, c. 322, § 1, ³ to control the issuance of a weapon to any police officer. The association asserts that the city relied upon a promulgated special order before the arbitrator. The arbitrator makes no mention of it in his opinion, and the city does not rely upon the order in its brief; rather, its argument is based solely upon §§ 11 and 14. The association makes no mention of the statutes in its brief and relies upon the order. However, the association has neither provided us with a full text of the order, nor has it shown that the order was a matter before the arbitrator or the trial judge. Therefore, we disregard this order in our consideration. Mass.R.A.P. 16(e) and (f), 18(a) and (b), 365 Mass. 862, 864, 865 (1974). We note only in passing that to the extent it has been quoted in the association's brief it is not inconsistent with § 11 or § 14 and does not conflict in any respect with the city's position.

The arbitrator found that the deprivation of the officer's service revolver after completion of his suspension and probationary period constituted extended punishment and that the collective bargaining agreement did not provide for sanctions based upon prior misconduct once an officer has been allowed to return to duty. Based on this rationale, the arbitrator concluded that the commissioner lacked authority to withhold the officer's revolver from him. He, therefore, ordered the commissioner to return the gun to the officer. He also found that the agreement required a fair and equitable distribution of overtime assignments and paid details among those officers within a district who requested such work. This overtime work was a source of additional income to them. Because the officer was eligible for this work as of the date his service revolver should have been returned, he ordered that the officer be paid an amount equal to that which he would have earned had he been participating in the extra work from that date. Although the city in its complaint requests that the total award of the arbitrator be vacated, its brief deals solely with the power of the arbitrator to order the commissioner to reissue a service revolver to the officer. We treat as waived any issue pertaining to the award of the overtime assignment and paid detail earnings. Mass.R.A.P. 16(a)(4), as amended 367 Mass. 921 (1975). Accordingly, we determine neither whether this aspect of the award was properly before the arbitrator as a matter encompassed by the agreement and an issue referred to him for resolution (School Comm. of Braintree v. Raymond, 369 Mass. 686, 690-691, 343 N.E.2d 145 (1976); School Comm. of West Springfield v. Korbut, 373 Mass. 788, --- ^C, 369 N.E.2d 1148 (1977)) nor whether the arbitrator's resolution of the issue was within his power to fashion a proper remedy. School Comm. of West Bridgewater v. West Bridgewater Teachers' Assn., 372 Mass. 121, --- - --- ^D, 360 N.E.2d 886 (1977).

The award before us, the return of the officer's weapon, is not one which is founded upon or fashioned as a result of the commissioner's failure to follow agreement procedures for resolution of the dispute. See School Comm. of Boston v. Boston Teachers Local 66,--- Mass. ---, --- - --- ^E, 389 N.E.2d 970 (1979). The arbitrator found that the commissioner did not follow the determination of fitness to return to duty clause of the agreement (see n. 2., Supra ); however, the officer was returned to duty by the commissioner, notwithstanding any failure to comply with the agreement. Thus, the issue for our review is whether the denial of a weapon which concommitantly resulted in the deprivation of overtime assignments and paid details was a proper dispute for arbitration. School Comm. of Hanover v. Curry, 3 Mass.App. 151, 158, 325 N.E.2d 282 (1975), S.C. 369 Mass. 683, (1976). Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers Assn., 372 Mass. 116, --- ^F, 360 N.E.2d 883 (1977). Few subjects, if any, in the realm of labor relations present themselves singly or unattached to other concerns. See e. g., Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 223, 85 S.Ct. 398, 409, 13 L.Ed.2d 233 (1964) (Stewart, J., concurring) ("In many of these areas the impact of a particular management decision upon job security may be extremely indirect and uncertain, and this alone may be sufficient reason to conclude that such decisions are not 'with respect to . . . conditions of employment' "); Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 461, 350 N.E.2d 707, 713 (1976) ("(T)he conditions of employment of school teachers and subjects within the prerogative of a school committee are not mutually exclusive.") When an arbitral award which does not involve merely issues of the employer's procedural adherence to an agreement's dispute resolution clause mandates actions by the employer and those actions encompass both subjects of arbitration and subjects of policy, then the legal effect of the award is to be determined by a balancing test. If the "ingredient of . . . policy in the issue subject to dispute is so comparatively heavy that collective bargaining . . . on the subject is, as a matter of law, to be denied effect," the award cannot stand. SCHOOL COMM. OF BOSTON V. BOSTON TEACHERS LOCAL 66, SUPRA AT --- , 389 N.E.2D AT 973.^G On balance, the policy consideration concerning the issuance of a weapon here far outweighs any other concern.

In this Commonwealth the decision as to who shall carry a firearm and under what conditions, be it a public official or a private citizen, is one which our Legislature has seen fit to leave with the heads of law enforcement agencies. See e. g., G.L. c. 8, § 12 (State superintendent of buildings may arm the capitol police); G.L. c. 21, § 6B (natural resources officers may carry weapons only as the director "may in writing authorize"); G.L. c. 41, § 98 (police officers of all cities and towns may carry weapons only as the police chiefs may determine); G.L. c. 90, § 29 (specified employees of the Registry of Motor Vehicles may carry weapons only as the registrar may determine); G.L. c. 111, § 9 (inspectors for the Department of Public Health investigating narcotic and harmful drug violations may carry firearms only at the request of the Commissioner of Public Health); G.L. c. 140, § 131 (any person wishing to carry a firearm may do so only upon receipt of license issued by the Commissioner of Public Safety or by the chief of police in the city or town where the citizen lives or has place of business); ...