Opinion
No. 97-0363C
March 23, 1998
MEMORANDUM OF DECISION AND ORDER ON THE PARTIES' MOTION FOR SUMMARY JUDGMENT
The plaintiff, the Town of Southbridge ("Town"), brings this Summary Judgement Motion seeking vacation of an arbitration award, which reinstated Denis LeBoeuf as police officer in the Town of Southbridge Police Department. The defendant, the Massachusetts Coalition of Police, Local 153, AFL-CIO ("Union"), seeks by cross motion to confirm the award. For the reasons that follow, the Town's motion is DENIED and the Union's motion is ALLOWED.
BACKGROUND
On June 23, 1996, Denis LeBoeuf ("LeBoeuf") was arrested by the Charlton police for domestic assault and battery. LeBoeuf was employed by the Town of Southbridge as a police officer. As a result of his arrest, Southbridge conducted an internal investigation of the incident. The Town obtained statements from LeBoeuf and Lorne Ide ("Ide"), the alleged victim. In addition, photographs were taken of the large bruise on Ide's neck and bruises on her arms and legs.
On June 27, 1996, Southbridge's Police Chief, Michael Stevens, conducted a suspension hearing. LeBoeuf did not give a statement at the hearing. On July 19, a Civil Service hearing was held pursuant to G.L.c. 31, § 41. Again, LeBoeuf declined to testify and instead relied on the voluntary statement which he had given to the police on the day the incident. LeBoeuf was terminated on July 23. Pursuant to the collective bargaining agreement ("CBA") in effect between the parties, the Union and LeBoeuf filed a demand for arbitration rather than a Civil Service appeal.
In October, 1996, LeBoeuf was found not guilty of domestic assault and battery in District Court. Ide did not testify at that trial.
The arbitration hearing was conducted on October 22 and November 5. The dispositive question was whether, in the words of the CBA, the Town had "just cause" to terminate LeBoeuf. The arbitrator noted that, in order to terminate LeBoeuf, the Town was required to prove its case by clear and convincing evidence. She chose to burden the Town with the more taxing "clear and convincing" standard because the discharge had been based on a criminal charge. Reasoning that a discharge founded upon criminal allegations would adversely affect not only LeBoeuf's career, but also his reputation in the community, the arbitrator concluded that the higher standard of proof was warranted. The arbitrator, applying that standard, found that the Town had established "just cause" to suspend LeBoeuf, but had failed to demonstrate "just cause" to terminate him.
The Town argues that the standard should be the less rigorous "convince the arbitrator" test. The arbitrator concluded that, even if she applied the lesser standard, the Town would prevail because the evidence did not convince her that LeBoeuf was guilty of assault and battery. The arbitrator's choice of standard is, therefore, not a controlling issue in the proceedings now at bar.
At the arbirtration hearing, LeBoeuf alleged that he was attempting to hold off Ide who was "going crazy" and attacking him in connection with an argument about LeBoeuf's children from a prior marriage. Ide supported LeBoeuf's account, recanting her prior allegations that LeBoeuf had assaulted her. The Town responded that the photographs of Ide "spoke for themselves" and demonstrated that Ide was indeed assaulted. The arbitrator concluded that the photographs were not outcome determinative because they tended to support both parties' version of events and that the Town was, accordingly, obliged to produce further credible evidence of assault before its termination of LeBoeuf could be sustained. The Town failed to adduce such further evidence sufficient to warrant termination, and the arbitrator, finding that LeBoeuf had not assaulted Ide, ordered that LeBoeuf be reinstated retroactive to October 22, 1996. That order is now at issue in the instant action.
DISCUSSION
1. The Public Policy Argument
We are instructed by Supreme Judicial Court that, "[c]ourts inquire into an arbitration award only to determine if the arbitrator has exceeded the scope of his authority, or decided the matter based on 'fraud, arbitrary conduct, or procedural irregularity in the hearings.'" Plymouth Carver Sch. Dist. v. J. Farmer Co., 407 Mass. 1006, 1007 (1990), quoting, Marino v. Tagaris, Mass. 397, 400 (1985). An arbitrator exceeds the scope of her authority if she awards "relief of a nature which offends public policy." Lawrence v. Falzarano, 380 Mass. 18, 28 (1980). In order to justify judicial departure from an arbitrator's award, the public policy offended by the award "must be well defined and dominant" and have its origins in laws and legal precedents. Massachusetts Highway Dep't v. American Fed'n of State, County Mun. Employees, 420 Mass. 13, 15 (1995). In addition, the public policy rationale for the avoidance of an award is apposite only if the "disfavored conduct is integral to the performance of employment duties." Id. at 17, quoting, Delta Air Lines, Inc. v. Air Lines Pilots Ass'n, Int'l, 861 F.2d 665, 671 (11th Cir. 1988), cert. denied, 493 U.S. 871 (1989). Application of those principles to the award at bar suggests that the award ought not to be disturbed.
The Town argues that the instant arbitrator's decision offends public policy because the award required the Town to reinstate a police officer who allegedly assaulted his girlfriend. To reinstate a police officer in such circumstances would, asserts the Town, violate the public policy of insuring that the police are sensitive to the need to advance domestic tranquility and to respond with solicitude to incidents of domestic violence. See Massachusetts Highway Dep't., 420 Mass. at 17.
That argument is, on the facts at bar, unpersuasive. LeBoeuf had been tried in District Court on the domestic abuse charge and found not guilty. In addition, the arbitrator found, under the clear and convincing evidence standard, that LeBoeuf had not assaulted his girlfriend. Reinstatement of an officer whose guilt has been rejected by both court and arbitrator, ought not to be viewed as violative of the concededly compelling policy condemning domestic abuse. To hold otherwise would, in effect, shift the burden on the "just cause" issue from the employer to the employee, who would be tasked with the burden of proving again, after favorable court and arbitrator findings, his entitlement to retain his job. The Court is disinclined so to burden the employee. There is no surpassing public policy to be advanced by abandoning the award in the circumstances at bar.
2. The "Carney Rights" Issue
Next, the Town contends that the arbitrator exceeded her powers under G.L.c. 150C, § 11(A)(3) by concluding that the Town had violated LeBoeuf's Carney rights. The arbitrator found that the Town failed to notify LeBoeuf of the consequences of his not testifying at the suspension hearing and that the omission cast a shadow on his subsequent termination. The arbitrator concluded that, as a result of the Carney violation, the Town would not be permitted "substantially [to] rely" on LeBoeuf's refusal to testify at his suspension hearing as evidence that he assaulted his girlfriend.
In Carney v. Springfield, 403 Mass. 604, 609 (1989), the Supreme Judicial Court directed that "the employer . . . must specify to the employee the precise repercussions . . . if the employee fails to respond."
Whether or not the arbitrator's interpretation and application of Carney is correct, however, is not material to this review because errors of law by an arbitrator are not grounds for the setting aside of an arbitration award. Massachusetts Highway Dep't, 420 Mass. at 15. Thus, we need not reach the question of the appropriateness of the arbitrator's Carney ruling.
3. The Standard For the Award
Finally, the Town contends that the arbitrator exceeded his authority under G.L.c. 150C by concluding that the "just cause" provision of the CBA required the Town to prove by clear and convincing evidence that LeBoeuf assaulted his girlfriend. The arbitrator had found that, under the CBA, the clear and convincing evidence standard was applicable to terminations which originated from incidents involving criminal offenses. See fn 1, supra.
The Town now observes that the Civil Service Statute, G.L. c. 31, § 43, requires that "just cause" for termination be determined by the "preponderance of the evidence" standard, a test that is less onerous on the Town than the CBA's "clear and convincing" litmus. Relying upon the general proposition that, where there is a conflict between the provisions of a collective bargaining agreement and a statute, the statute's terms control, the Town contends that it ought to have been required to scale the foothills prescribed by the Civil Service statute rather than the Everest required by the CBA.
The Town's argument fails to take into account, however,.the reality that, when the parties entered into the CBA, they purposefully eschewed.the statutory standards that might otherwise have applied to the "just cause" determination. Sullivan v. Belmont, 7 Mass. App. Ct. 214, 218 (1979). Thus, there is no disabling conflict at bar between the standards contained in the statute and the CBA. The arbitrator's award is not vulnerable by reason of its application of the more demanding standard.
ORDER
It is hereby ORDERED that the Town of Southbridge's Motion for Summary Judgement is DENIED, the Union's cross-motion is ALLOWED, and judgment shall enter for the Defendant AFFIRMING the arbitrator's award.
_____________________________ Daniel F. Toomey Justice of the Superior Court
DATED: March 23, 1998.