Local 346, Intern. Broth. of Police Officers v. Labor Relations Com'n

• Decision Date: 14 March 1984
• Citation: 462 N.E.2d 96,391 Mass. 429
• Parties: , 117 L.R.R.M. (BNA) 2927 LOCAL 346, INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS v. LABOR RELATIONS COMMISSION et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 96

462 N.E.2d 96

391 Mass. 429, 117 L.R.R.M. (BNA) 2927

LOCAL 346, INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS v. LABOR RELATIONS COMMISSION et al. ¹

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 9, 1983.

Decided March 14, 1984.

Cynthia S. Denton, Boston, for plaintiff.

Jean Strauten Driscoll, Boston, for defendant.

Robert W. Gardner, Jr., Ayer, for intervener.

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

ABRAMS, Justice.

In Baker v. Lawrence, 379 Mass. 322, 409 N.E.2d 710 (1979), we held that G.L. c. 149, § 19B, ² permits a police department to require police officers suspected of criminal activity to submit to polygraph testing under threat of discipline. We now hold that G.L. c. 150E does not require a city or town to negotiate with the union over the police department's decision to use polygraph examinations in the investigation of criminal activity by police officers. Therefore, we affirm the decision of the Labor Relations Commission (commission), dismissing a complaint of prohibited practice filed against the town of Ayer.

The facts, as found by the commission, are not disputed and can be briefly summarized. For approximately eight months during 1979, a construction company in Ayer hired off-duty police officers to guard a manufacturing site. ³ In February, 1980, after the company had terminated its employment of police officers, the manufacturing site was broken into and extensively ransacked. Damage estimates ranged from $25,000 to $45,000. The Ayer police department began an extensive investigation of the crime but for some time was unable to identify any suspects.

In April, 1981, in the course of casual conversation with a fellow officer, an Ayer police officer stated that he and three fellow officers, identified by name, had perpetrated the vandalism as retaliation for the company's termination of their employment as private guards. ⁴ Eventually, this information was relayed to the Attorney General, who began his own investigation of the incident in July, 1981.

By the late summer of 1981, the possible involvement of the four police officers in the crime, as well as the Attorney General's decision to investigate, had become public knowledge, and spawned public distrust of the police department. ⁵ One of the suspected officers resigned. The Ayer chief of police, who was related to that officer, separated himself from the department's investigation and, subsequently, also resigned his position. In February, 1982, the Ayer selectmen appointed a new police chief. The new police chief decided to terminate the police department's official investigation of the vandalism so as not to interfere with the Attorney General's investigation, but, acting on a belief that the matter hampered the effectiveness of the police department, ⁶ pursued an internal investigation.

In early April, 1982, the police chief ordered the three officers under suspicion to take polygraph examinations. The chief scheduled the examination of one of the three officers for April 14, 1982. The chief informed the officer that the results would not be used against him in a criminal proceeding, but that, if the officer failed to take the examination, the chief would recommend discipline, including dismissal. The chief denied the officer's request for a postponement of the examination pending the officer's consultation with a lawyer.

Prior to the scheduled examination date, the officer called another of the suspects, who was the president of the union local, and informed him of the chief's ultimatum. The three suspected officers then met with union attorneys, who advised them to request a postponement of the polygraph examination in order to permit further legal consultation. The officers spoke to the police chief, who refused the request.

On April 14, 1982, the officer whose polygraph examination was scheduled for that date refused to travel to Boston, where the test was to be administered. The police chief immediately suspended the officer for five days and wrote a letter to the Ayer selectmen recommending dismissal. The letter stated that unless the officer were dismissed, the police chief's ability to investigate the vandalism incident would be eliminated. On the same date, the chief scheduled polygraph examinations of the other two officers for April 20 and April 21.

On April 16, the selectmen held a hearing regarding the suspended officer. Immediately prior to the beginning of the hearing, counsel for the union delivered a letter to the selectmen demanding that the town agree to meet and bargain in good faith with respect to the use of polygraph tests to examine police employees. ⁷ The letter also requested that the suspended officer be returned to active duty status pending the outcome of such negotiations. The selectmen denied the request to bargain. The selectmen considered the request untimely, and the subject matter nonnegotiable. ⁸ The selectmen voted an indefinite suspension of the officer.

On April 20, the second officer was taken in a police cruiser to Boston for the scheduled polygraph examination. The examiner asked the officer to sign a waiver releasing the examiner and his company from any claims which might arise from the examination and permitting the examiner to inform the police chief of the examination results. The officer agreed to the dissemination of the results but refused to sign the release of the examiner and his company. The officer asked the examiner to administer the test; the examiner refused to do so unless the officer signed the release. When it became evident that an impasse had been reached, the examiner told the officer to leave. On the next day, a similar scenario took place with respect to the third officer's examination.

Upon learning what had transpired, the police chief suspended the two officers for five days. The chief asked the selectmen to dismiss the two officers for failing to obey his order to take the polygraph examinations. The chief also emphasized the officers' failure to testify before the grand jury investigating the crime. ⁹ On April 23, 1982, the selectmen held hearings concerning the second and third officers and voted to dismiss them for their refusal to obey the chief's orders to take polygraph examinations, as well as for their noncooperation with the grand jury. The selectmen subsequently voted to dismiss the first officer (who had been indefinitely suspended) for his refusal to obey the chief's order to take the polygraph test. ¹⁰

On April 20, 1982, the union filed a charge with the commission alleging that the town engaged in a prohibited practice under G.L. c. 150E, § 10(a )(1) and (5), by unilaterally implementing the requirement that the officers submit to polygraph examinations and by refusing the union's request to bargain over that decision. After the commission issued a complaint of prohibited practice, a formal hearing was held before a hearing officer. On October 26, 1982, the commission dismissed the complaint in a decision which we discuss below. The union appealed the commission's decision to the Appeals Court pursuant to G.L. c. 150E, § 11. We transferred the case here on our own motion.

In its decision, the commission initially determined that the polygraph examinations at issue were permitted under G.L. c. 149, § 19B, as amended through St.1973, c. 620. ¹¹ That statute prohibits employers from requiring employees to submit to lie detector tests but excepts "lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations." Turning to the separate question whether G.L. c. 150E, § 6, required the town to negotiate with the union before implementing the polygraph requirement, the commission applied a balancing test articulated in a prior decision, Boston School Comm., 3 M.L.C. 1603 (1977). In measuring, for purposes of the balancing test, the importance of the town's interest in requiring that officers suspected of criminal activity submit to polygraph examination, the commission referred to this court's conclusion in Baker v. Lawrence, 379 Mass. 322, 409 N.E.2d 710 (1979), that the statutory exception "recognize[s] an evident interest of the employer in applying some pressure to assist an investigation leading to exoneration of the employee or the opposite." Id. at 327, 409 N.E.2d 710. The commission did not specify the extent of the impact upon the employment relationship of the polygraph requirement but implicitly found that the officers' interest in negotiating over that requirement, however strong, was outweighed by the town's interest in utilizing polygraph tests in such circumstances.

The commission also found support for its conclusion that G.L. c. 150E does not require a police department to negotiate over an order that police officers suspected of criminal activity undergo polygraph testing in a line of cases decided by the New York Public Employee Relations Board. Those cases require a police department to negotiate over the use of polygraphs during investigations "solely relating to ordinary employee departmental discipline," Police Benevolent Ass'n of White Plains, Inc., 12 N.Y.P.E.R.B. par. 3046 (1979); see Buffalo Police Benevolent Ass'n, 9 N.Y.P.E.R.B. par. 7020 (N.Y.S.Ct.1976), but hold that the issue of a police department's use of polygraphs while investigating "suspected and actual crimes of policemen" is outside the scope of terms and conditions of employment, and that a police department is not, therefore, required to bargain over such testing. Police Benevolent Ass'n of White Plains, Inc., supra. See Salamanca Police Unit, 12 N.Y.P.E.R.B. par. 4503 (H.O.1979).

1. The union contends that the commission relied on G.L. c. 149, § 19B, "as the decisive factor" in its determination that the town did not violate G.L. c. 150E by refusing to bargain with the union over the institution of polygraph exams. The union takes...