Sheriff of Suffolk County v. Jail Officers, SJC-09974

• Citation: 451 Mass. 698,888 N.E.2d 945
• Decision Date: 23 June 2008
• Docket Number: SJC-09974
• Parties: SHERIFF OF SUFFOLK COUNTY v. JAIL OFFICERS AND EMPLOYEES OF SUFFOLK COUNTY.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts

888 N.E.2d 945

451 Mass. 698

SHERIFF OF SUFFOLK COUNTY v. JAIL OFFICERS AND EMPLOYEES OF SUFFOLK COUNTY.¹

SJC-09974

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 2008.

Decided June 23, 2008.

Ellen M. Caulo for the plaintiff.

Stephen C. Pfaff, Boston, for the defendants.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

BOTSFORD, J.

This case, which concerns an appeal by the sheriff of Suffolk County (sheriff) of an arbitrator's award, presents the question whether public policy requires vacation of the award. We conclude that the ambiguous record does not permit us to answer that question, but we also conclude that a remand of the case for clarification of the record is not possible, and that in the particular circumstances presented, a remand for a new arbitration proceeding would be inappropriate. Accordingly, we affirm the judgment of the Superior Court confirming the arbitrator's award.

Background. This case has a long and tortuous procedural history. On December 29, 1999, the sheriff terminated Officer Joseph Upton from his position as a jail officer at the Nashua Street jail in Boston (jail). His discharge occurred after a disciplinary hearing within the sheriff's department, and was based on the disciplinary hearing officer's determination that Upton, while assigned to the medical unit of the jail on October 16, 1999, had witnessed an assault of an inmate—a nineteen year old man being held in custody awaiting trial—by two other jail officers; had filed untimely and then false reports concerning the October 16 assault incident; had also provided false information to the sheriff's investigative division during its investigation of that assault incident; and had failed properly to maintain the log book in the medical unit. Upton, represented by the union of which he is a member (union), grieved his termination under the provisions of the applicable collective bargaining agreement, and ultimately sought an arbitrator's review. After two days of hearings in November and December of 2000, the arbitrator issued his award on March 26, 2001. He found, inter alia, that the inmate housed in the medical unit where Upton was assigned had indeed been assaulted by other jail officers on October 16, 1999; that Upton had failed to maintain a proper log and to file an appropriate incident report about the October 16 assault; that he did not cooperate with the sheriff's investigation of the incident; and that he filed "incomplete, misleading or false reports."² The arbitrator concluded that "just cause" existed for Upton to be disciplined, but further ruled that Upton's discharge was revoked, and that Upton was to be suspended for a period of six months (without pay) and then reinstated with back pay and full benefits.³ The sheriff filed an appeal in the Superior Court pursuant to G.L c. 150C, § 11, seeking to vacate the award on the ground that the order to reinstate Upton exceeded the arbitrator's authority because it was contrary to "well-defined public policy."

On cross motions for summary judgment, a judge in the Superior Court granted the union's motion and confirmed the award. The sheriff appealed the confirmation to the Appeals Court, which affirmed the Superior Court judgment. Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 62 Mass.App.Ct. 915, 817 N.E.2d 336 (2004). Thereafter, we denied the sheriff's application for further appellate review without prejudice, and remanded the case to the Appeals Court for reconsideration in light of our decision in Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 824 N.E.2d 855 (2005) (Boston Police Patrolmen's Ass'n). On remand, the Appeals Court again affirmed the Superior Court judgment confirming the arbitrator's award. Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 68 Mass. App.Ct. 903, 860 N.E.2d 963 (2007). We granted the sheriff's application for further appellate review.

Discussion. In accordance with the strong public policy favoring the arbitration of disputes, particularly in the context of collective bargaining agreements, this court (and courts generally) follows the rule that the arbitrator's decision should be upheld. Boston Police Patrolmen's Ass'n, 443 Mass. at 818, 824 N.E.2d 855, and cases cited. At the same time, "[w]e do not permit an arbitrator to order a party to engage in an action that offends strong public policy," id., and "`the question of public policy is ultimately one for resolution by the courts' and not by arbitrators." Id., quoting Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603, 722 N.E.2d 441 (2000). There is a three-pronged test we apply to determine whether public policy requires the court to vacate an arbitrator's award that has ordered the reinstatement of a public employee: (1) the public policy at issue "must be well defined and dominant," and determined from laws and legal precedents, not general considerations of the public interest, Massachusetts Highway Dep't v. American Fed'n of State County & Mun. Employees, Council 93, 420 Mass. 13, 16, 648 N.E.2d 430 (1995) (Mass.Highway), quoting W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); (2) the "disfavored conduct" under scrutiny must be "integral to the performance of employment duties," Mass. Highway, supra at 17, 648 N.E.2d 430, quoting Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 861 F.2d 665, 671 (11th Cir.1988), cert. denied, 493 U.S. 871, 110 S.Ct. 201, 107 L.Ed.2d 154 (1989); and (3) the employee's conduct, as found by the arbitrator, would have required dismissal, and "a lesser sanction would frustrate public policy." Boston Police Patrolmen's Ass'n, supra at 819, 824 N.E.2d 855. See id. at 818-819, 824 N.E.2d 855. See also Lynn v. Thompson, 435 Mass. 54, 62-63, 754 N.E.2d 54 (2001), cert. denied, 534 U.S. 1131, 122 S.Ct. 1071, 151 L.Ed.2d 973 (2002); Bureau of Special Investigations v. Coalition of Pub. Safety, supra at 604-605, 722 N.E.2d 441.

In Boston Police Patrolmen's Ass'n, supra, we vacated an arbitrator's award that had required the city of Boston to rescind its discharge of a police officer and to suspend the officer for one year. Our decision to vacate was based on our conclusion that in light of the specific factual findings of the arbitrator concerning the officer's misconduct, dismissal of the officer was required, as any lesser sanction would "frustrate strong public policy against the kind of egregious dishonesty and abuse of official position in which [the officer] was proved to have engaged." Id. at 814, 824 N.E.2d 855. The difficulty in this case is that the arbitrator's decision and the factual findings he makes are far from a model of clarity, and he omits to make specific findings on at least two significant points. In particular, while the arbitrator finds that two jail officers, one of whom was a lieutenant and therefore a superior officer, entered a detainee's cell and assaulted the detainee, causing him injury, and that Officer Upton, under the order of the lieutenant—an order that the arbitrator concludes Upton was required to obey—opened the detainee's cell door to let the two other jail officers in, the arbitrator does not make a finding about whether Upton actually witnessed the other officers' assault.⁴ In addition, the arbitrator concluded that Upton filed reports with the sheriff's internal investigation officers that were incomplete or false or misleading, but does not attempt to distinguish among these three possibilities.⁵

In a situation where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff's custody, and then lies about this fact...