Opinion
10-P-2185
10-12-2011
ESSEX COUNTY SHERIFF'S DEPARTMENT v. ESSEX COUNTY CORRECTIONAL OFFICERS ASSOCIATION.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
It is a bedrock rule of labor law that the scope of judicial review of a labor arbitrator's construction of a collective bargaining agreement is exceedingly narrow. United Paperworkers Intl. Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 36 (1987). Superadio Ltd. Partnership v. Winstar Radio Prod., LLC, 446 Mass. 330, 333-334 (2006). We must defer to the arbitrator's findings of fact, regardless of how erroneous they may appear, Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass. App. Ct. 702, 705 (2006), and we must defer to the arbitrator's interpretation of the collective bargaining agreement (CBA), again without regard to its correctness, Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 187-188 (1984). The basis for this deference is the agreement by the union and the employer that all disputes about the meaning of the CBA shall be submitted to the arbitrator. See School Dist. of Beverly v. Geller, 435 Mass. 223, 229 (2001) (Cordy, J., concurring).
While acknowledging this, the Essex County sheriff's department (department) urges that the arbitrator's order construing the CBA in this case to require reinstatement must be reversed because it violates a well-defined and dominant public policy, see G. L. c. 150C, § 11(a)(3); Boston v. Boston Police Patrolmen's Assn., 443 Mass. 813, 818 (2005), and because the award exceeded the arbitrator's authority under the CBA, see G. L. c. 150C, § 11(a)(3); Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 67 Mass. App. Ct. at 705-707.
The arbitrator found that the employees were terminated by the department 'both because they themselves posted harassing, vulgar, threatening, sexist, and/or racist messages on the [union's electronic Internet] forum, because they encouraged others to post such messages, and because they failed to remove, edit, or take down such messages despite their acknowledged ability to do so.'
We express no opinion on whether this is an accurate finding of fact. The parties agree that both we and the parties are bound by the arbitrator's findings of fact regardless of their correctness. The arbitrator also found that in 1999, a correction officer was terminated for disseminating a racist, threatening electronic mail message (e-mail) while off duty, that there were a series of work rules and policies that sought to preclude discrimination and harassment on the job, that the CBA has provisions prohibiting discrimination, and that the employees had gone through harassment training.
The Essex County Correctional Officers Association argues that the quoted language does not amount to findings of fact by the arbitrator. Our close reading of the arbitrator's decision, however, shows that it does. The ensuing paragraphs of the arbitrator's decision that address whether there was adequate notice that the employees' conduct could lead to discharge primarily address the failure to remove messages from the electronic forum, but they do also address encouragement of postings. This confirms our reading that the arbitrator's language quoted in the text contains his own independent finding of fact concerning the reasons for the employees' termination.
The arbitrator was charged with determining whether the discharge of the employees was for 'just cause' within the meaning of the CBA. He concluded that the 'just cause' standard included concepts of notice and progressive discipline. And he construed the CBA to require the employees' reinstatement because 'there is insufficient evidence on the record of this case . . . upon which to conclude that Enos and Thompson either knew or should have known that their conduct -- or lack thereof -- would lead to their discharge.' The Superior Court judge concluded that this violated a well-defined and dominant public policy against sexual and racial harassment and vacated the arbitrator's award.
We will assume without deciding that the arbitrator acted within the scope of his jurisdiction, and turn first to the question whether the arbitrator's interpretation of the CBA violated a well-defined and dominant public policy. In determining whether the arbitrator's construction of the CBA can be said to violate such a public policy, 'we must treat the arbitrator's award as if it represented an agreement between [the sheriff's department] and the union as to the proper meaning of the contract's words 'just cause." Eastern Associated Coal Corp. v. United Mine Workers of America, 531 U.S. 57, 62 (2000). We must then determine whether the construction given the CBA by the arbitrator 'fall [s] within the legal exception that makes unenforceable 'a collective-bargaining agreement that is contrary to public policy." Ibid., quoting from W.R. Grace & Co. v. Local Union 759, Intl. Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766 (1983).
Three conditions must be met before a court may refuse on grounds of public policy to enforce an arbitrator's award. First, 'any such public policy must be 'explicit,' 'well defined,' and 'dominant.' It must be 'ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests."" Ibid. (Citations omitted.) See Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 604-605 (2000) (Bureau of Special Investigations). It is not for the court to determine public policy in the abstract; rather a construction of a CBA by an arbitrator will be vacated only when it violates a public policy that is embedded in independent sources of law, such as long-standing government practices, statutory enactments, or obvious ethical or moral standards. See, e.g., Muschany v. United States, 324 U.S. 49, 66-67 (1945); Bureau of Special Investigations, supra at 605. Second, the conduct at issue must be integral to the employee's performance of his or her employment duties. Bureau of Special Investigations, supra. Finally, public policy must require reversal of the arbitration award; it is not enough that public policy 'disfavor' the award. See Massachusetts Hy. Dept. v. American Fedn. of State, County & Mun. Employees, Local 93, 420 Mass. 13, 19 (1995) (Massachusetts Hy. Dept.); Bureau of Special Investigations, supra.
The arbitrator construed the CBA to mean, among other things, that an employee who had posted or encouraged the posting on an electronic forum of harassing, vulgar, threatening, sexist, and/or racist messages could not, on the facts the arbitrator found, have known, nor should he have known, that his conduct could lead to discharge. He did not construe the CBA to prohibit discharge for such conduct, but only to require additional notice that discharge might result.
The employees covered by this CBA are correction officers, members of what is in essence a quasi-military law enforcement agency in which discipline is essential. They operated under rules prohibiting discrimination, including harassment, on the basis of race and sex. They had received training designed to educate them about prohibited discriminatory conduct. Further, even leaving aside the discharge of other employees who had posted on the electronic forum, they were aware that prior to the creation of the forum, a bargaining unit member had been discharged on the basis of his use of electronic communications outside of work to send a racist message.
At least in the context of the type of law enforcement agency at issue here, and on the facts found by the arbitrator, the arbitrator's interpretation of the CBA to mean that all of this was insufficient to provide notice to other bargaining unit employees that the posting or encouraging of such communications would not be tolerated and might lead to discharge contravenes the well-defined and dominant public policy against race and sex discrimination. This public policy was articulated and codified by the Legislature in G. L. c. 151B, and reflected in the department's regulations, its employee handbook, its code of ethics, and its harassment policy. Nondiscrimination is integral to the proper performance of the duties of the employees, who were correctional officers. Finally, this is not a case where construction of the CBA is merely 'not optimal for the furtherance of public policy goals.' Massachusetts Hy. Dept., supra. Rather, the public policy against race and sex discrimination is contravened by the construction of the 'just cause' provision of the CBA to require more notice than that given here in order to alert the employees that the posting or encouraging of the discriminatory messages described by the arbitrator could lead to discharge. See ibid.
The judgment of the Superior Court therefore is affirmed. In light of our conclusion, we need not and do not express any opinion with respect to the construction of the 'just cause' provision as it relates to the requirement of additional notice before an employee who maintained an electronic forum on behalf of the union could be discharged for failure to remove harassing, vulgar, threatening, sexist, and/or racist messages from that forum. Thus, among other things, we need not and do not address any of the arguments of the parties with respect to the implications of the Communications Decency Act, 47 U.S.C. § 230 (2006), for such a discharge.
Judgment affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),