City of Taunton v. Taunton Branch of Massachusetts Police Ass'n

• Decision Date: 11 July 1980
• Parties: , 109 L.R.R.M. (BNA) 2228 CITY OF TAUNTON v. TAUNTON BRANCH OF the MASSACHUSETTS POLICE ASSOCIATION.
• Court: Appeals Court of Massachusetts

Page 1298

406 N.E.2d 1298

10 Mass.App.Ct. 237, 109 L.R.R.M. (BNA) 2228

CITY OF TAUNTON v. TAUNTON BRANCH OF the MASSACHUSETTS POLICE ASSOCIATION.

Appeals Court of Massachusetts, Bristol.

Argued Nov. 15, 1979.

Decided July 11, 1980.

Mark G. Kaplan, Boston (Richard L. Alfred, Boston, with him), for defendant.

Ellen C. Kearns, Boston, for plaintiff.

Before BROWN, GREANEY and DREBEN, JJ.

BROWN, Justice.

Negotiations between the city of Taunton (city) and the Taunton Branch of the Massachusetts Police Association (association), the collective bargaining representative of the city's police officers, failed to produce a collective bargaining agreement for the period commencing on July 1, 1976. On July 26, 1976, the Board of Conciliation and Arbitration (board) appointed a "fact finder" to resolve the impasse. G.L. c. 150E, § 9, inserted by St. 1973, c. 1078, § 2. On December 10, 1976, the fact finder made findings and recommendations. When these failed to resolve the impasse, the association, pursuant to St. 1973, c. 1078, § 4, ¹ petitioned the board to investigate. The board's investigation led to the appointment of a three-member arbitration panel to conduct "last and best offer" arbitration.

After hearings before the panel, the city and the association submitted written statements of their last and best offers on May 27, 1977. Only three issues still separated the two sides: (1) the city's share of the premiums for the police officers' Blue Cross-Blue Shield and group life insurance coverage, (2) the hourly rate of pay for police officers serving on "extra paid details" at polling places, and (3) certain questions concerning the police chief's power to assign officers to shifts. The association, in its last, best offer, pressed its demand that the city's share of the Blue Cross-Blue Shield and group life insurance premium be increased from the fifty percent provided for in the previous collective bargaining agreement to seventy-five percent, but the association withdrew its earlier demand that the hourly rate for polling place duty be increased from $4.00 to $8.00. On the matter of shift assignments, the association continued to seek inclusion in the collective bargaining agreement of three provisions from the predecessor agreement which the city maintained conflicted with its management prerogatives. These provisions were Article VIII, § 1, of the predecessor agreement setting forth the procedure to be followed by the city when involuntarily transferring a police officer from one shift to another, ² Article VIII, § 2, prohibiting the rotation of shifts, ³ and Article IX, § 3, as amended during the life of the predecessor agreement, providing that all assignments on each shift be filled by regular officers. ⁴

The city in its last, best offer refused to pay any more than fifty percent of the Blue Cross-Blue Shield and life insurance premium in effect on July 1, 1976, but it did agree to pay sixty percent of any increase in the premium taking effect after that date. The city was also willing to pay $6.00 an hour and time and one half after eight hours to police officers on polling place duty. On the matter of shift assignments, the city contended that Article VIII, §§ 1 & 2, and Article IX, § 3, concerned matters outside the jurisdiction of the arbitration panel as defined in St. 1973, c. 1078, § 4, ⁵ and that as a result the association's entire offer, even as modified, was invalid and the panel must choose the city's.

On September 1, 1977, a majority of the panel chose the association's offer, as modified (see note 4, supra ). "This under the law became the award, 'final and binding upon the parties and upon the appropriate legislative body.' " Marlborough Firefighters, Local 1714 v. Marlborough, 375 Mass. ---, ---, ^a 378 N.E.2d 437 (1978).

The city filed in the Superior Court a "petition to vacate opinion and award of arbitration panel." The association by counterclaim sought enforcement of the arbitration panel's decision pursuant to the eighth paragraph of St. 1973, c. 1078, § 4. ⁶ The association moved for summary judgment. Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974). The judge, in a "memorandum of decision," ⁷ ruled that although Article VIII, § 2, and the material portion of Article IX, § 3 (see note 4, supra ) concerned matters within the scope of arbitration, Article VIII, § 1, dealing with the procedure by which the chief could involuntarily transfer officers from one shift to another concerned a matter outside the scope of arbitration as defined in St. 1973, c. 1078, § 4. The judge refused to sever the invalid portion of the award and ruled that the entire award must be denied enforcement. The judge also ruled that the portion of the award relating to insurance premiums was supported by material and substantive evidence. Judgment was entered deciding that the award "with respect to the City's health insurance contribution was supported by material and substantive evidence" but that the award of the panel "exceeded its jurisdiction under (St. 1973, c. 1078, § 4) for which reason, the defendant's counterclaim for Enforcement is denied, and the City's Petition to vacate is allowed." The association appeals.

1. The association attacks the judge's ruling that Article VIII, § 1, concerned a matter outside the scope of the arbitration panel's authority. The city, on the other hand, not only supports the judge's ruling concerning Article VIII, § 1; it also attacks the judge's ruling that Article VIII, § 2, and Article IX, § 3, concerned matters within the scope of the arbitration panel's authority. ⁸ This is the first case squarely presenting for decision issues concerning the scope of the authority of an arbitration panel conducting last and best offer arbitration pursuant to St. 1973, c. 1078, § 4, which has come before either the Appeals Court or the Supreme Judicial Court. See School Comm. of Boston v. Boston Teachers Union, 372 Mass. 605, 613, 363 N.E.2d 485 (1977), containing dictum concerning this issue, and Marlborough Firefighters, Local 1714 v. Marlborough, 375 Mass. at --- - ---, ^b 378 N.E.2d 437. Our analysis begins with a discussion of the context within which St. 1973, c. 1078, § 4, was enacted.

Statute 1973, c. 1078, brought about a wholesale revision of the Commonwealth's statutes concerning public employee collective bargaining. Sections 1 and 2 of c. 1078 repealed G.L. c. 149, §§ 178D & 178F-178N, and inserted c. 150E into the General Laws. Section 6 of G.L. c. 150E, as so inserted, requires public employers to negotiate with their employees (including policemen) "with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment." Obviously many questions concerning a city's assignment of its police to shifts fall within some of those categories, particularly "hours" and "conditions of employment." Indeed in Labor Relations Commn. v. Natick, 369 Mass. 431, 437-438, 442, 339 N.E.2d 900 (1976), the Supreme Judicial Court decided that certain regulations concerning work schedules and shifts issued pursuant to G.L. c. 41, § 97A, by a "strong" police chief were mandatory subjects of bargaining under c. 150E, § 6. ⁹ See also Chief of Police of Westford v. Westford, 365 Mass. 526, 531, 313 N.E.2d 443 (1974), involving the regulations of a "weak" police chief issued pursuant to G.L. c. 41, § 97. Although we need not decide the question, it may well be that G.L. c. 150E, § 6, required the city and the association to bargain collectively concerning Article VIII, §§ 1 & 2, and Article IX, § 3. However, even if this is so, it does not follow that the issue of whether those provisions should be included in the collective bargaining agreement was within the scope of the authority of the arbitration panel.

Unlike G.L. c. 150E, § 6, setting forth the mandatory subjects of collective bargaining, St. 1973, c. 1078, § 4, not only limits the scope of the arbitration panel's authority to "wages, hours and conditions of employment;" it also specifically states that the scope of arbitration in police matters "shall not include the following matters of inherent managerial policy: the right to appoint, promote, assign and transfer employees (emphasis supplied)." In this regard, it is significant that an effort to amend the bill which ultimately emerged from the legislature as St. 1973, c. 1078, so as to include a similar managerial rights clause in G.L. c. 150E, § 6, died after reference to Senate Ways and Means Committee. See 1973 Senate Journal 2329, 2368, 2382, 2403.

This refusal to include in the scope of the arbitration panel's authority all the subjects made bargainable by G.L. c. 150E, § 6, undoubtedly resulted from "an understandable attitude of wariness about arbitration forced on a party." School Comm. of Boston v. Boston Teachers Union, 372 Mass. 605, 613, 363 N.E.2d 485, 489 (1977). When a city or town is simply required to bargain collectively concerning a subject, the ultimate decision whether to accept a particular proposal of a union remains with the city or town. Thus, in Chief of Police of Westford v. Westford, the Supreme Judicial Court could observe, "While some may believe that the proper organization and operation of a police department require more flexibility than . . . (the collective bargaining agreement) permit(s), that is apparently not the opinion of the selectmen. And it is to the selectmen that the Legislature has committed that decision." 365 Mass. at 532, 313 N.E.2d at 447. However, when an impasse is resolved by last and best offer arbitration the ultimate decision whether to accept a proposal of a union is made by the arbitration panel and not by the city or town.

A police chief's authority to assign his officers to particular duties is a matter that concerns the public safety. Chief of Police of Dracut v. Dracut, 357 Mass. 492, 502, 258 N.E.2d 531 (1970). We think that the Legislature, by including a...