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SJC-12450

 CITY OF PITTSFIELD      vs.    LOCAL 447 INTERNATIONAL BROTHERHOOD OF
                               POLICE OFFICERS.



            Berkshire.         May 7, 2018. - October 3, 2018.

   Present:     Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Municipal Corporations, Police. Police, Discharge. Public
     Employment, Police, Termination. Arbitration, Police,
     Confirmation of award. Public Policy.



     Civil action commenced in the Superior Court Department on
May 11, 2017.

    The case was heard by Daniel A. Ford, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Richard   M. Dohoney for the plaintiff.
     Timothy   M. Burke (Jared S. Burke also present) for the
defendant.
     Eric R.   Atstupenas, for Massachusetts Chiefs of Police
Association,   Inc., amicus curiae, submitted a brief.


    CYPHER, J.     Dale Eason was terminated from his position as

a police officer in the Pittsfield police department on grounds

of conduct unbecoming a police officer, untruthfulness, and
                                                                     2


falsifying records.    His union, Local 447 International

Brotherhood of Police Officers (union), filed a grievance,

pursuant to a collective bargaining agreement between the union

and the city of Pittsfield (city).    The union and city submitted

Eason's termination to arbitration with two agreed-upon issues:

(1) "Was there just cause to terminate the employment of Dale

Eason?"; and (2) "If not, what shall the remedy be?"      The

arbitrator found that there was not just cause for termination

and reinstated Eason with a three-day suspension.

    The city commenced an action pursuant to G. L. c. 150C,

§ 11, in the Superior Court to vacate the arbitrator's award,

arguing that it is contrary to public policy.     A Superior Court

judge confirmed the arbitration award, and the city appealed.

We thereafter granted the city's application for direct

appellate review.     We conclude that the arbitrator's award of

reinstatement does not violate public policy in the

circumstances of this case, where the arbitrator found that the

officer's statements were "intentionally misleading" but not

"intentionally false" and where the statements did not lead to a

wrongful arrest or prosecution, or result in any deprivation of

liberty or denial of civil rights.

    Background.     We recite the facts as found by the

arbitrator.   The case arose from a February, 2016, incident in

which Eason responded to a reported larceny at a supermarket.
                                                                      3


Eason arrested a woman, identified by supermarket security, and

placed her in the back of his police cruiser.     In his arrest

report, Eason said the suspect "began thrashing her body around

in the back seat . . . .     For her safety, I attempted to remove

the [suspect] from my vehicle and place her onto the ground to

control her body."   He additionally noted, "Also, [supermarket]

[s]ecurity wanted to get a photo as part of their process."

    The arbitrator explained that "[w]hen questioned during the

investigation, [Eason] acknowledged that he removed the

[suspect] from the back seat of his police cruiser to enable the

supermarket security to photograph her, pursuant to a practice

of photographing larceny suspects, which officers know about and

facilitate."   The city terminated Eason for "conduct unbecoming

a police officer, untruthfulness, and falsifying records, based

on the reason [he] reported for removal of the [suspect],

expressed [as]:   'for her safety.'"    The city also asserted that

there was no evidence that the suspect was thrashing in the

cruiser.   Eason "acknowledge[d] that he removed the [suspect] to

enable the store to photograph her, according to practice" and

"also assert[ed] that the [suspect] had been out of control in

the back of the car before she was removed, but not immediately

prior to her removal.     [He] denie[d] that he lied, implicitly,

because she was thrashing and they needed to photograph her,

fairly simultaneously."
                                                                      4


     The arbitrator held that Eason's misconduct did not amount

to just cause for termination, "a capital offense in the

employment context."     The arbitrator found that "the three words

at issue were untrue, intentionally misleading, and cause for

discipline, but less than intentionally false" (emphasis in

original).1   He also found that there was "persuasive evidence

that the [suspect] acted up in the back before she was removed."

The arbitrator held that the city failed to "persuade [him] that

[Eason's] misconduct was so serious that it justified

termination without prior, corrective discipline."

     Discussion.     A brief reminder of the history of labor

arbitration is useful to put the discussion that follows in

context.   In 1935, Congress recognized that "the refusal by some

employers to accept the procedure of collective bargaining

lead[s] to strikes and other forms of industrial strife or

unrest" and enacted the National Labor Relations Act (NLRA), 29

U.S.C. §§ 151-169.     29 U.S.C. § 151.   In pursuit of labor peace

and "the free flow of . . . commerce," Congress declared it to

be the policy of the United States to encourage collective

bargaining.   Id.   See National Labor Relations Bd. v. Allis-

Chalmers Mfg. Co., 388 U.S. 175, 180 (1967) ("National labor

policy has been built on the premise that by pooling their


     1 The arbitrator also found that the statements were
"knowingly inaccurate."
                                                                   5


economic strength and acting through a labor organization freely

chosen by the majority, the employees of an appropriate unit

have the most effective means of bargaining for improvements in

wages, hours, and working conditions").   To effectuate that

policy, Congress established a framework for representation of

private sector workers by a labor organization elected by the

majority of employees.   Once that organization, often a union,

was elected and certified as the employees' exclusive bargaining

representative, it was a violation of law for an employer to

refuse to bargain in good faith to reach a collective bargaining

agreement.   29 U.S.C. § 158.

    The NLRA, however, does not reach the bargaining

relationship between workers and their public employers at the

State and local level.   In 1973, the Legislature established an

analog to the NLRA, G. L. c. 150E, governing bargaining between

public employers and employees.   Similar to the NLRA,2 G. L. c.

150E prohibits employers from refusing to bargain in good faith

with elected employee representatives.

    The Legislature further evinces its preference for the

results of collective bargaining, including the outcome of

arbitration, in G. L. c. 150E, § 7 (d), mandating that the terms

    2  We have long recognized the relationship between
Congress's endorsed policy of collective bargaining and that of
the Legislature's as embodied in G. L. c. 150E. Trustees of
Forbes Library v. Labor Relations Comm'n, 384 Mass. 559, 562 n.2
(1981).
                                                                    6


of collective bargaining agreements shall prevail over certain

statutes governing myriad working conditions of public

employees, including regulations promulgated by a police

commissioner.   See id.; Boston v. Boston Police Patrolmen's

Ass'n, 477 Mass. 434, 441 (2017) (Williams) (noting "courts'

reluctance to allow [police commissioner's] broad discretionary

powers to subsume bargained-for provisions").

     1.   Standard of review.   The collective bargaining

agreement between the city and the union, like many of its kind,

contains a grievance procedure.    A delicate balance of both

parties' concessions and demands yielded the city's promise to

consider the union's grievances3 through a process that, if

necessary, culminates with arbitration.    In any collective

bargaining context, it is the arbitrator's expertise that the

parties bargained for.    United Steelworkers of Am. v. American

Mfg. Co., 363 U.S. 564, 568 (1960).    The Legislature has

indorsed, and we must respect, a strong public policy favoring

arbitration.    School Comm. of Pittsfield v. United Educators of

Pittsfield, 438 Mass. 753, 728 (2003) ("Public policy in the

Commonwealth strongly encourages arbitration").    "Arbitration

would have little value if it were merely an intermediate step

     3 The grievance process allows the union or, pursuant to
G. L. c. 150E, individual employees to object to an action taken
by the city that is governed by the collective bargaining
agreement. Such actions include, but are not limited to, the
termination of employment, at issue here.
                                                                    7


between a grievance and litigation in the courts."    Id.   The

Legislature has codified this priority, permitting courts to

vacate arbitration awards only in rare, statutorily enumerated

circumstances.    See G. L. c. 150C, § 11.

    The system of collective bargaining created and indorsed by

the Legislature necessitates deference to the bargained-for

result of an arbitrator's award.    We review the trial judge's

decision to uphold the arbitration award de novo, but our

examination of the underlying award is informed by the "strong

public policy favoring arbitration" (citation omitted).     See

Bureau of Special Investigations v. Coalition of Pub. Safety,

430 Mass. 601, 603 (2000).    However, the relationship between a

reviewing court and the result of an arbitration is unlike the

relationship between an appellate court and the outcome of a

lower court's proceedings.    Lynn v. Thompson, 435 Mass. 54, 61

(2001), cert. denied, 534 U.S. 1131 (2002).    Our review of the

underlying arbitration decision is considerably more deferential

than even the abuse of discretion or clear error standards

applied to lower court decisions.   Id.   See Williams, 477 Mass.

at 439-440.   Indeed, an arbitration award carries a presumption

of propriety because it is the arbitrator's judgment, not

necessarily an objectively correct answer, for which the parties

have bargained.   United Steelworkers of Am., 363 U.S. at 568.
                                                                   8


    We therefore "uphold an arbitrator's decision even where it

is wrong on the facts or the law, and whether it is wise or

foolish, clear or ambiguous."   Boston v. Boston Police

Patrolmen's Ass'n, 443 Mass. 813, 818 (2005) (DiSciullo).

"Because the parties have contracted to have disputes settled by

an arbitrator chosen by them rather than by a judge, it is the

arbitrator's view of the facts and of the meaning of the

contract that they have agreed to accept."    United Paperworks

Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37–38 (1987)

(Misco).   Where the arbitrator allegedly engaged in

"improvident, even silly, factfinding," we are nonetheless bound

by those facts.   Major League Baseball Players Ass'n v. Garvey,

532 U.S. 504, 509 (2001), quoting Misco, supra at 39.     See Lynn,

435 Mass. at 62, quoting Delta Air Lines, Inc. v. Air Line

Pilots Ass'n, Int'l, 861 F.2d 665, 670 (11th Cir. 1988), cert.

denied, 493 U.S. 871 (1989) ("An arbitrator's result may be

wrong; it may appear unsupported; it may appear poorly reasoned;

it may appear foolish.    Yet, it may not be subject to court

interference").   An award cannot be disturbed even if an

arbitrator's findings are so confusing or unclear that, in order

to evaluate the merits of an award, we would have to confront

conflicting inferences.   See Misco, supra at 44 ("A refusal to

enforce an award must rest on more than speculation or

assumption," and it was "inappropriate" for lower court to infer
                                                                  9


connection between arbitrator's facts and public policy at

issue); Sheriff of Suffolk County v. Jail Officers & Employees

of Suffolk County, 451 Mass. 698, 701-703 (2008) (arbitrator's

factual findings were "far from a model of clarity" but "it

would not be appropriate to vacate the arbitrator's award based

on possibly incorrect factual inferences we might draw from his

ambiguous findings").4

     2.   Public policy exception.   Bound by the facts as

explicitly found by the arbitrator, we evaluate the city's

argument that public policy prohibits the enforcement of the

arbitration award.    The city cites a public policy that requires

police officers "to be truthful in all of their official

dealings," which is necessary for "the police to gain and

preserve the public trust [and] maintain public confidence"

(citation omitted).   The city finds the root of this public




     4 Although we attempted to remand for clarification of facts
in Sheriff of Suffolk County v. Jail Officers & Employees of
Suffolk County, 451 Mass. 698, 702 n.5 (2008), remand was not
possible due to the arbitrator's death, so we were left to
wrestle with the facts as found. See United Steelworkers of Am.
v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598 (1960)
("Arbitrators have no obligation to the court to give their
reasons for an award. To require opinions free of ambiguity may
lead arbitrators to play it safe by writing no supporting
opinions. This would be undesirable for a well-reasoned opinion
tends to engender confidence in the integrity of the process and
aids in clarifying the underlying agreement" [footnote
omitted]).
                                                                   10


policy in G. L. c. 268, § 6A,5 prohibiting "false written reports

by public officers or employees."6

     "[T]he judiciary must be cautious about overruling an

arbitration award on the ground that it conflicts with public

policy" (citation omitted).   Bureau of Special Investigations,

430 Mass. at 604.   "[W]e apply a stringent, three-part analysis"

to determine whether the public policy exception applies to the

otherwise mandated enforcement of an arbitration award

(quotation and citation omitted).    Williams, 477 Mass. at 442.

"First, the policy at issue must be well defined and dominant,

and is to be ascertained by reference to the laws and legal

precedents and not from general considerations of supposed

     5 "Whoever, being an officer or employee of the commonwealth
or of any political subdivision thereof or of any authority
created by the general court, in the course of his official
duties executes, files or publishes any false written report,
minutes or statement, knowing the same to be false in a material
matter, shall be punished by a fine of not more than one
thousand dollars or by imprisonment for not more than one year,
or by both such fine and imprisonment." G. L. c. 268, § 6A.

     6 The city also notes that in May, 2017, after Eason had
been terminated, the district attorney for the Berkshire
district sent the Pittsfield police chief a letter stating that
he would not call Eason "to testify on behalf of the
Commonwealth in any criminal matter, whether presently pending
or in the future." Although very troubling, this was not part
of the evidence considered by the city when firing Eason or by
the arbitrator when making his decision. It therefore has no
bearing on our consideration of the propriety of the
arbitrator's decision. However, although it is required to
abide by the results of this arbitration, the city is, of
course, not prohibited from pursuing any additional appropriate
discipline based on the district attorney's letter or any other
newly acquired information.
                                                                   11


public interests" (quotations and citation omitted).     Id.

Second, the exception must not merely address "disfavored

conduct, in the abstract" but must target "disfavored conduct

which is integral to the performance of employment duties"

(emphasis in original).   Id., quoting Massachusetts Highway

Dep't v. American Fed'n of State, County, & Mun. Employees,

Council 93, 420 Mass. 13, 16 (1995).     Third, we inquire whether

an award reinstating the employee violates public policy.

Williams, supra at 442-443.   The burden is on the party seeking

vacation of the award, the city, to demonstrate that the award

satisfies each of these prongs.7   DiSciullo, 443 Mass. at 819.

     We have already held that public policy supports

terminating police officers for lying and that such a public

policy satisfies the first two prongs.    Id.8   We turn our

attention to the third prong of this test, whether the award

violates public policy.   It is crucial to note that "[t]he

     7 The city erroneously argues that "the burden ought to be
on the party arguing against the mandatory termination of an
officer who lies about a material matter in a police report to
proffer some authority for that position" (emphasis in
original). We decline to shift the burden from the party
seeking judicial intervention in the arbitration process.

     8 Unlike in Boston v. Boston Police Patrolmen's Ass'n, 443
Mass. 813, 819 (2005), the union here does not concede any
element of this test. The city and the union dispute whether
Eason's alleged misconduct constituted knowingly false
statements about a "material" matter in violation of G. L.
c. 268, § 6A. Neither party cites any authority for its
contention that the disputed aspect of the report was or was not
"material."
                                                                    12


question in the third prong is not whether the employee's

behavior violates public policy," but whether the award itself

does.   Williams, 477 Mass. at 442-443.

    In the rare circumstances where Massachusetts reviewing

courts have exercised the power to vacate an arbitration award

on public policy grounds, there was no ambiguity in the material

underlying factual findings.   See Massachusetts Bay Transp.

Auth. v. Boston Carmen's Union, Local 589, Amalgamated Transit

Union, 454 Mass. 19, 24-26, 29-30 (2009) (arbitrator's award

removing seniority from employee who won settlement as result of

discrimination violated public policy); School Dist. of Beverly

v. Geller, 435 Mass. 223, 224 (2001) (vacating arbitration award

where arbitrator reinstated teacher who had used physical force

against students); Boston v. Boston Police Patrolmen's Ass'n, 74

Mass. App. Ct. 379, 380-382 (2009) (reinstatement of officer who

admitted to sufficient facts for assault by means of dangerous

weapon when off duty and whose case was continued without

finding violated public policy).

    In DiSciullo, 443 Mass. at 814, which the city argues is

controlling, we vacated an arbitrator's award reinstating an

officer who was found to have behaved with "egregious dishonesty

and abuse of [an] official position."     In that case, DiSciullo

filed an incident report and a statement of criminal charges

falsely alleging disorderly conduct, assault and battery on a
                                                                    13


police officer, and resisting arrest.    Id. at 815.   Thus, the

factual findings established a clear nexus between the officer's

dishonesty and the arrest and charges.   Our decision to vacate

the arbitrator's award in DiSciullo was based on our conclusion

that the specific factual findings of the arbitrator concerning

the officer's egregious dishonesty and abuse of official

position mandated dismissal of the officer.   Id. at 819-820.

Here, the arbitrator's findings about Eason's misconduct do not

describe conduct that rises to the level of misconduct that

necessitated termination of the officer in DiSciullo.     We

cannot, in these circumstances, substitute our judgment for that

of the arbitrator's in determining the appropriate discipline.

See W.R. Grace & Co. v. Local Union 759, Int'l Union of the

United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S.

757, 765 (1983) ("Regardless of what our view might be of the

correctness of [the arbitrator's] contractual interpretation,

the Company and the Union bargained for that interpretation.       A

. . . court may not second-guess it").

    In Sheriff of Suffolk County, 451 Mass. at 701, we

considered an arbitrator's decision where "the factual findings

. . . [were] far from a model of clarity."    There, "the

arbitrator concluded that [the jail officer] filed reports with

the sheriff's internal investigation officers that were

incomplete or false or misleading, but does not attempt to
                                                                  14


distinguish among these three possibilities" (emphasis added).

Id. at 701-702.   We stated that "[i]n 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 and files false reports that memorialize the falsity, we

have little doubt that established public policy would condemn

such conduct and would require the discharge of such an

officer."   Id. at 702.   In that case, therefore, there was a

nexus between the misconduct of the jail officer and the harm to

the prisoner.   We concluded, however, that "the arbitrator's

findings [were] not sufficiently clear on what [the officer]

witnessed, or on the character of his reports and participation

in the sheriff's investigation -- that is, did he supply false

information, or was he simply less than complete?"    Id.   In

light of the "strong public policy . . . that favors

arbitration," we determined that "it would not be appropriate to

vacate the arbitrator's award based on possibly incorrect

factual inferences we might draw from his ambiguous findings."

Id. at 702-703.

    In Williams, 477 Mass. at 436-437, 445, we were constrained

to approve the reinstatement of an officer who used a choke hold

on someone who "testified that he could not breathe and began to

lose consciousness," because the arbitrator found that the

officer did not use excessive force and was "not untruthful" in
                                                                    15


reporting the incident.    We held that it was not a violation of

public policy to reinstate an officer who, as found by the

arbitrator, did not use excessive force and did not lie.     Id. at

445.

       The distinction between a statement that is "intentionally

misleading" but not "intentionally false" is, at best, elusive.9

We need not dwell on the meaning of the arbitrator's factual

findings, however, because the arbitrator found that the officer

made a statement that was both "knowingly inaccurate" and

"intentionally misleading" -- and this finding alone is

sufficient to raise a question whether the arbitrator's award

reinstating him is contrary to public policy.   Undoubtedly, were

we to conduct a de novo analysis we would not draw the same

distinction between an "intentionally misleading" and an

"intentionally false" statement, as did the arbitrator.      See

Williams, 477 Mass. at 444.    See Misco, 484 U.S. at 38 ("an

arbitrator must find facts and a court may not reject those

findings simply because it disagrees with them").    "The question

. . . is not whether [Eason's] conduct justified termination,

but whether it required termination, such that any lesser

sanction would violate public policy" (emphasis in original).

Williams, supra at 445.    We have drawn the public policy


       Logically, if a statement is not only "untrue" but also
       9

"knowingly inaccurate" and "intentionally misleading," it must
also be "intentionally false."
                                                                 16


exception quite narrowly because "[w]e cannot purport to

encourage arbitration and yet devise ways to undermine an

arbitrator's authority."   School Dist. of Beverly, 435 Mass. at

248 (Cowin, J., dissenting).   Obligated to credit the

arbitrator's conclusion that a phrase in Eason's report was no

more than misleading and that termination was not permissible

under the collective bargaining agreement, we must uphold the

award.   See Concerned Minority Educators of Worcester v. School

Comm. of Worcester, 392 Mass. 184, 187 (1984) ("we have no

business overruling an arbitrator because we give a contract a

different interpretation").

    Our decision does nothing to limit the ability of police

chiefs to terminate officers for lying where the arbitrator

agrees that such conduct occurred.   Nor does this decision

change the public policy exception that bars the reinstatement

of officers, as was the case in DiSciullo, whose lies have

restricted other's liberty.    Even a statement which is

"intentionally misleading . . . but less than intentionally

false" that resulted in arrest, prosecution, loss of liberty, or

a violation of civil rights would justify, on public policy

grounds, the decision of a police chief to terminate an officer.

    General Laws c. 268, § 6A, which makes it a crime for a

police officer in the course of his or her official duties to

file or publish "any false written report, minutes[,] or
                                                                   17


statement, knowing the same to be false in a material matter,"

and G. L. c. 268, § 13B, which makes it a crime for anyone to

wilfully mislead another person who is a judge, prosecutor, or

police officer "with the intent to impede, obstruct, delay,

harm, punish or otherwise interfere thereby" with a criminal

investigation or any criminal, juvenile, or civil proceeding "or

do so with reckless disregard," reflect the Legislature's

embrace of the important public policy interest that our police

officers speak and act with integrity.10    Had Eason's wilfully

misleading statement constituted a crime under § 13B, meaning

that it was made with the intent to impede, obstruct, or

otherwise interfere with a criminal investigation or any

criminal, juvenile, or civil proceeding, then the third prong

would have been met and public policy would have required that

we set aside an award reinstating him.     But the suspect here was

not charged with any conduct related to her removal from the

police cruiser -- she was charged only with larceny, not with

assault and battery on a police officer or disorderly conduct.

Therefore, the officer's "knowingly inaccurate" and

"intentionally misleading" statement in his police report was

not made with the intent to impede, obstruct, or otherwise


     10In contrast with § 6A, a violation of § 13B does not
require a knowing false statement; it suffices that the
statement "directly or indirectly, willfully . . . misleads
. . . another person."
                                                                  18


interfere with any criminal investigation or proceeding; the

arbitrator's factual findings indicate instead that the officer

made this statement solely in an attempt to avoid discipline for

removing the suspect from his police cruiser for the purpose of

allowing supermarket personnel to photograph her.11

     In making these employment decisions, police chiefs who are

responsible for maintaining the integrity of their departments

and for preserving public trust in their officers need clear

lines.    It requires commitment and courage for a police chief to

terminate the employment of a police officer; it is generally

easier to avoid doing so.     Termination of an officer's

employment means that the police department almost invariably

will need to incur the expense of arbitration, including the

substantial attorney's fees from litigating such an arbitration.

And if the arbitrator disagrees with the decision to terminate,

the officer will be reinstated and the police department will be

required to make the officer whole with respect to lost benefits

under the collective bargaining agreement, including back pay,

compensation for lost income from overtime and details, and the

return of seniority rights.     If there are no clear public policy

lines supporting termination, it is extremely difficult for a

     11The arbitrator wrote, "I believe the [officer] wanted to
conceal the real reason for removing the [suspect] by falsely
reporting that it was safety-related . . . [and that] the
[officer] referred to safety to deflect the readers of his
report away from his bad judgment."
                                                                   19


police chief to risk such a decision where it might be undone by

an arbitrator whose decision cannot be reversed by a court even

when it is plainly wrong as a matter of fact or as a matter of

law.

       Where a police chief decides to terminate an officer in

circumstances in which the officer's false statements violated

G. L. c. 268, § 6A or 13B, or which otherwise resulted in an

unjustified arrest or prosecution, or in a deprivation of

liberty or denial of civil rights, an arbitration award finding

no just cause for such a dismissal and reinstating the officer

would violate public policy.    We affirm the arbitrator's award

here only because it did not cross this public policy line.

                                     Judgment affirmed.
