Massachusetts Coalition of Police, Local 165, AFL-CIO v. Town of Northborough, AFL-CIO

• Decision Date: 05 October 1993
• Docket Number: AFL-CIO
• Parties: , 144 L.R.R.M. (BNA) 2869 MASSACHUSETTS COALITION OF POLICE, LOCAL 165,v. TOWN OF NORTHBOROUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 765

620 N.E.2d 765

416 Mass. 252, 144 L.R.R.M. (BNA) 2869

MASSACHUSETTS COALITION OF POLICE, LOCAL 165, AFL-CIO v. TOWN OF NORTHBOROUGH.

Supreme Judicial Court of Massachusetts,

Worcester.

Argued May 3, 1993.

Decided Oct. 5, 1993.

Alan H. Shapiro, Boston, for plaintiff.

John M. Collins, Shrewsbury, for defendant.

Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and LYNCH, JJ.

O'CONNOR, Justice.

This case presents the question whether a town's decision not to reappoint a police officer, who had previously been appointed pursuant to G.L. c. 41, § 97A (1992 ed.), is arbitrable under a collective bargaining agreement which provides in art. XXVII for "final and binding" arbitration of disputes "over the interpretation, application or enforcement of an expressed written provision of [the] agreement, or alleged inequitable or discriminatory treatment of an employee under [its] provisions." The plaintiff, Massachusetts Coalition of Police, Local 165, AFL-CIO (union), filed a complaint in the Superior Court Department seeking an order that would compel arbitration of a decision of the board of selectmen (board) of the defendant, town of Northborough (town), not to reappoint Ronald Bertrand a police officer. Bertrand had been president of the union during the latter part of his last appointed term. The town answered the complaint and counterclaimed, essentially requesting a declaration by the court that the town's decision not to reappoint Bertrand was not a proper subject for arbitration. Based on the parties' statement of agreed facts, a judge denied the union's request for an order compelling arbitration and ordered that the case be dismissed. The judge also ordered judgment on the town's counterclaim, declaring in substance that the town's decision not to reappoint Officer Bertrand could not be made subject to arbitration. The union appealed from the judgments on its complaint and the town's counterclaim. We transferred the appeal to this court on our own initiative, and we now affirm the judgments.

Since 1963, the town has appointed its police officers pursuant to G.L. c. 41, § 97A, which provides for appointments of police officers for three years or less. Ronald Bertrand was first appointed a Northborough police officer in 1981, and he was reappointed in 1983. Then, on February 11, 1985, pursuant to St.1981, c. 316, which was a special act authorizing the board to appoint police officers "for such terms of years as [the] selectmen may determine" notwithstanding the provisions of G.L. c. 41, § 97A, Bertrand was reappointed for five years. He served as president of the union during the latter part of that term.

On February 12, 1990, the board voted not to reappoint Bertrand a police officer. As a result, the union filed a grievance asserting that Bertrand had been "terminated" without just cause in violation of arts. III(A), IV(A) and XXXI of the applicable collective bargaining agreement. Article III(A) provides that the town will not discriminate against any employee in the bargaining unit on account of union activity. Article IV(A) sets forth the town's rights of management. Article XXXI states that "[n]o member of [the] bargaining unit shall be dismissed except for cause following necessary hearing procedures." The town took the position that its decision not to reappoint Bertrand was exclusively its prerogative and that the asserted grievance was neither grievable nor arbitrable. The union then requested by letter that the following issues be submitted to arbitration: "1. Is the grievance arbitrable? 2. If the grievance is arbitrable, was there just cause for the discharge of Ronald Bertrand? 3. If there was no just cause for discharge, what shall be the remedy?" The letter made no mention of arts. III(A) or IV(A) of the collective bargaining agreement. The town responded that the grievance was not arbitrable, and the union commenced the present action which resulted in the judgments that are the subject of this appeal.

General Laws c. 41, § 97A, provides in relevant part: "In any town which accepts this section there shall be a police department established by the selectmen.... The selectmen of any such town shall appoint a chief of police and such other officers as they deem necessary.... In any such town ... such appointments ... shall be made annually or for a term of years not exceeding three years ... and the selectmen may remove such chief or other officers for cause at any time after a hearing." Contrary to the union's contention, we hold that, under § 97A, a board of selectmen's decision not to reappoint a police officer is a nondelegable managerial prerogative. See Selectmen of Ayer v. Sullivan, 29 Mass.App.Ct. 931, 932, 558 N.E.2d 1 (1990), holding that the decision of the board of selectmen of Ayer not to reappoint a police officer appointed under G.L. c. 41, § 96, was nondelegable.

The union in the present case does not argue that the Selectmen of Ayer case was wrongly decided. Rather, it seeks to distinguish that case from this one on the ground that the police officer in the Selectmen of Ayer case was originally appointed under G.L. c. 41, § 96, not under § 97A as Bertrand was. Section 96 provides that "the selectmen may remove such officers for cause at any time during such appointment after a hearing" (emphasis added), while § 97A says that "the selectmen may remove such chief or other officers for cause at any time after a hearing." Section 97A does not contain the phrase "during such appointment." The union contends that, when that phrase is present, as it is in § 96, an officer's right to a just cause hearing is confined to removals that occur during the term of an appointment. Therefore, as the Appeals Court held in Selectmen of Ayer, supra, "removals" by failure to reappoint which can occur only after the term of an appointment has expired, are the nondelegable managerial prerogative of the town. However, since the phrase "during such appointment" does not appear in § 97A, the union argues the right to a just cause hearing applies not only to removals during the term of an appointment, but also to "removals" after the expiration of an appointed term. In such cases, therefore, according to the union's argument, the town does not have a nondelegable managerial prerogative to reappoint or not to reappoint.

We reject that...