This article first appeared in the November 2017 issue of the Massachusetts Employment Law Letter.
One of the most common features of collective bargaining agreements is the right to have an independent arbitrator decide whether an employee was disciplined for “just cause.” That right is a “game changer” because giving a third-party arbitrator the last word on employee discipline is a considerable check on an employer’s authority to enforce its rules of conduct. In 2015, we reported on a trial court’s decision in a case involving arbitration (see “Standoff between city and cop shows downside of arbitration” on pg. 4 of our September 2015 issue). Now we have the benefit of a decision from Massachusetts’ highest court.
How we got here
Michael O’Brien was drinking with friends on March 15, 2009, at the Boston St. Patrick’s Day Parade. The police were called after a friend of O’Brien’s got into a fender bender backing out of a parking spot. O’Brien and another friend watched the incident.
Officers David Williams and Diep Nguyen responded to the call. Williams spoke with the other driver while Nguyen spoke with O’Brien and his friends. When things got heated, O’Brien began recording the scene with his cell phone camera. After O’Brien failed to satisfactorily comply with a command to move to the sidewalk, Nguyen decided to place him under arrest for disorderly conduct.
O’Brien resisted Nguyen’s efforts to place him in handcuffs. That apparently provoked Williams to immediately tackle him. Williams landed on top of O’Brien and placed his arm around his neck. O’Brien later testified that he had trouble breathing and began to black out.
O’Brien was charged with resisting arrest, assault and battery on a police officer, and disturbing the peace. All charges against him were later dropped. He then filed a civil suit against the city and the Boston Police Department (BPD).
The BPD conducted an internal investigation, during which Williams was interviewed and gave his side of the story. After much delay, the investigators concluded that Williams had used unreasonable force and was untruthful during his interview, in violation of department rules and regulations. After a trial board hearing, he was terminated on January 18, 2012. The city then settled O’Brien’s civil suit for $1.4 million.
The union filed a grievance asserting that there was no “just cause” for Williams’ termination, and the grievance went to arbitration. At the arbitration hearing, Nguyen testified that Williams had placed his arm around O’Brien’s neck in a choke hold and that officers are not trained to use choke holds when they use force on a person. Williams described it as a “semi-bear-hug hold” and demonstrated by wrapping his arms around his counsel’s body in such a way that his upper left arm and shoulder pressed against the right side of the attorney’s neck. O’Brien testified as well; not surprisingly, his story was different from Williams’ version.
The arbitrator believed Williams and reasoned that because he didn’t use excessive force, he couldn’t have lied about it during the internal investigation. He concluded that the BPD didn’t have just cause to discharge Williams and ordered the city to reinstate him and restore all benefits and compensation retroactively to the date he was placed on administrative leave.
No joy from appeals
Under certain circumstances, an arbitrator’s decision can be appealed to court. The city wasn’t happy with the arbitrator’s ruling, perhaps because it was the second time it had been forced to rehire Williams after terminating him for using excessive force. The city appealed the decision, arguing to the superior court that the arbitrator’s award should be vacated (overturned) because it violated public policy.
The city contended that Williams engaged in criminal conduct by using a choke hold on O’Brien and then lied about his use of force in an official report. However, in his 44-page opinion, the arbitrator had explicitly found that Williams used reasonable force in arresting O’Brien and therefore wasn’t untruthful during the internal investigation. Courts can overturn arbitration awards only in extremely limited circumstances (e.g., when fraud occurs). Because arbitration awards are designed to be final and binding, judges are generally required to accept an arbitrator’s factual findings and legal conclusions, even if they disagree with them.
In his written decision, the judge expressed sympathy for the city’s position that it should have the right and authority to manage and discipline the police officers in its own department. However, the judge explained that he was bound by the arbitrator’s factual determinations that Williams didn’t use a choke hold and wasn’t untruthful. The judge went on to write that “every Boston police officer—including Officer Williams— takes an oath at the time of appointment to discharge his/her duties and obey the department’s rules and regulations. The charges against Officer Williams represent a potentially serious breach of that oath and the public trust. Nonetheless, no matter how valid and poignant the police department’s concerns are, it is beyond the court’s power to grant the city’s appeal.”
Undeterred, the city of Boston appealed again. The Supreme Judicial Court (SJC), Massachusetts’ highest state court, heard the appeal and reached the same conclusion as the superior court—namely, that because the arbitrator concluded that the level of force Williams used wasn’t excessive and he didn’t lie about it, there was no basis for reversing the arbitrator’s decision on public-policy grounds. The SJC considered what Williams could have done better and discussed the dangers associated with choke holds, but it found no legal basis to overturn the decision to reinstate him.
‘Prospective guidance’
In an unusual move, perhaps to allay public concern over choke holds, the SJC issued three bits of advice to the city of Boston and its police department:
- Whether use of a choke hold is excessive force should not depend on how much damage is inflicted.
- Taking two years to investigate claims of excessive force and only doing so when a civil suit is filed undermines confidence in the system.
- Without more specific use-of-force rules, arbitrators retain considerable discretion to decide what is reasonable and what is not.
City of Boston v. Boston Police Patrolmen’s Association
(SJC 2017).
Takeaway
Although this decision involves a governmental employer, there are two lessons here for privatesector employers. Decide in advance what types of conduct you wish to prohibit. If you wait until it happens, it may be too late. Also, don’t delay your internal investigations because when you do, you leave yourself open to second-guessing about your motives, conclusions, and outcomes.
Tim Murphy is a partner at the firm of Skoler, Abbott & Presser, P.C. Tim can be reached at 413-737-4753 or tmurphy@skoler-abbott.com.