CITY OF TAUNTON vs. TAUNTON BRANCH OF THE MASSACHUSETTS POLICE ASSOCIATION.

BROWN, J. Negotiations between the city of Taunton (city) and the Taunton Branch of the Massachusetts Police Association (association), the collective bargaining representative

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of the city's police officers, failed to produce a collective bargaining agreement for the period commencing on July 1, 1976. On July 26, 1976, the Board of Conciliation and Arbitration (board) appointed a "fact finder" to resolve the impasse. G. L. c. 150E, Section 9, inserted by St. 1973, c. 1078, Section 2. On December 10, 1976, the fact finder made findings and recommendations. When these failed to resolve the impasse, the association, pursuant to St. 1973, c. 1078, Section 4, [Note 1] petitioned the board to investigate. The board's investigation led to the appointment of a three-member arbitration panel to conduct "last and best offer" arbitration.

After hearings before the panel, the city and the association submitted written statements of their last and best offers on May 27, 1977. Only three issues still separated the two sides: (1) the city's share of the premiums for the police officers' Blue Cross-Blue Shield and group life insurance coverage, (2) the hourly rate of pay for police officers serving on "extra paid details" at polling places, and (3) certain questions concerning the police chief's power to assign officers to shifts. The association, in its last, best offer, pressed its demand that the city's share of the Blue Cross-Blue Shield and group life insurance premium be increased from the fifty percent provided for in the previous collective bargaining agreement to seventy-five percent, but the association withdrew its earlier demand that the hourly rate for polling place duty be increased from $4.00 to $8.00. On the matter of shift assignments, the association continued to seek inclusion in the collective bargaining agreement of three provisions from the predecessor agreement which the city maintained conflicted with its management prerogatives. These provisions were Article VIII, Section 1, of the predecessor agreement setting forth the procedure to be followed by the city when involuntarily

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transferring a police officer from one shift to another, [Note 2] Article VIII, Section 2, prohibiting the rotation of shifts, [Note 3] and Article IX, Section 3, as amended during the life of the predecessor agreement, providing that all assignments on each shift be filled by regular officers. [Note 4]

The city in its last, best offer refused to pay any more than fifty percent of the Blue Cross-Blue Shield and life insurance premium in effect on July 1, 1976, but it did agree to pay sixty percent of any increase in the premium taking effect after that date. The city was also willing to pay $6.00 an hour and time and one-half after eight hours to police officers on polling place duty. On the matter of shift assignments,

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the city contended that Article VIII, Sections 1 & 2, and Article IX, Section 3, concerned matters outside the jurisdiction of the arbitration panel as defined in St. 1973, c. 1078, Section 4, [Note 5] and that as a result the association's entire offer, even as modified, was invalid and the panel must choose the city's.

On September 1, 1977, a majority of the panel chose the association's offer, as modified (see note 4, supra). "This under the law became the award, `final and binding upon the parties and upon the appropriate legislative body.'" Marlborough Firefighters, Local 1714 v. Marlborough, 375 Mass. 593, 594 (1978).

The city filed in the Superior Court a "petition to vacate opinion and award of arbitration panel." The association by counterclaim sought enforcement of the arbitration panel's decision pursuant to the eighth paragraph of St. 1973, c. 1078, Section 4. [Note 6] The association moved for summary judgment. Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974). The judge, in a "memorandum of decision," [Note 7] ruled that although Article VIII, Section 2, and the material portion of Article IX, Section 3 (see note 4, supra) concerned matters within the scope of arbitration, Article VIII, Section 1, dealing with the procedure by which the chief could involuntarily transfer officers from one shift to another concerned a matter outside the scope of arbitration as defined in St. 1973, c. 1078, Section 4. The judge refused to sever the invalid portion of the award and ruled that the entire award must be denied enforcement. The judge also ruled that the portion of the award relating to insurance premiums was supported by material and substantive evidence. Judgment was entered deciding that the award "with respect to the City's health insurance contribution

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was supported by material and substantive evidence" but that the award of the panel "exceeded its jurisdiction under [St. 1973, c. 1078, Section 4] for which reason, the defendant's counterclaim for Enforcement is denied, and the City's Petition to vacate is allowed." The association appeals.

1. The association attacks the judge's ruling that Article VIII, Section 1, concerned a matter outside the scope of the arbitration panel's authority. The city, on the other hand, not only supports the judge's ruling concerning Article VIII, Section 1; it also attacks the judge's ruling that Article VIII, Section 2, and Article IX, Section 3, concerned matters within the scope of the arbitration panel's authority. [Note 8] This is the first case squarely presenting for decision issues concerning the scope of the authority of an arbitration panel conducting last and best offer arbitration pursuant to St. 1973, c. 1078, Section 4, which has come before either the Appeals Court or the Supreme Judicial Court. See School Comm. of Boston v. Boston Teachers Local 66, 372 Mass. 605, 613 (1977), containing dictum concerning this issue, and Marlborough Firefighters, Local 1714 v. Marlborough, 375 Mass. at 595-596. Our analysis begins with a discussion of the context within which St. 1973, c. 1078, Section 4, was enacted.

Statute 1973, c. 1078, brought about a wholesale revision of the Commonwealth's statutes concerning public employee collective bargaining. Sections 1 and 2 of c. 1078 repealed G. L. c. 149, Sections 178D & 178F-178N, and inserted c. 150E into the General Laws. Section 6 of G. L. c. 150E, as so inserted, requires public employers to negotiate with their employees (including policemen) "with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment." Obviously many questions concerning a city's assignment of its police to shifts fall within some of those categories, particularly

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"hours" and "conditions of employment." Indeed in Labor Relations Commn. v. Natick, 369 Mass. 431, 437-438, 442 (1976), the Supreme Judicial Court decided that certain regulations concerning work schedules and shifts issued pursuant to G. L. c. 41, Section 97A, by a "strong" police chief were mandatory subjects of bargaining under c. 150E, Section 6. [Note 9] See also Chief of Police of Westford v. Westford, 365 Mass. 526, 531 (1974), involving the regulations of a "weak" police chief issued pursuant to G. L. c. 41, Section 97. Although we need not decide the question, it may well be that G. L. c. 150E, Section 6, required the city and the association to bargain collectively concerning Article VIII, Sections 1 & 2, and Article IX, Section 3. However, even if this is so, it does not follow that the issue of whether those provisions should be included in the collective bargaining agreement was within the scope of the authority of the arbitration panel.

Unlike G. L. c. 150E, Section 6, setting forth the mandatory subjects of collective bargaining, St. 1973, c. 1078, Section 4, not only limits the scope of the arbitration panel's authority to "wages, hours and conditions of employment"; it also specifically states that the scope of arbi employees [emphasis supplied]." In this regard, it is significant that an effort to amend the bill which ultimately emerged from the legislature as St. 1973, c. 1078, so as to include a similar managerial rights clause in G. L. c. 150E, Section 6, died after reference to Senate Ways and Means Committee. See 1973 Senate Journal 2329, 2368, 2382, 2403.

This refusal to include in the scope of the arbitration panel's authority all the subjects made bargainable by G. L. c. 150E, Section 6, undoubtedly resulted from "an understandable

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able attitude of wariness about arbitration forced on a party." School Comm. of Boston v. Boston Teachers Local 66, 372 Mass. 605, 613 (1977). When a city or town is simply required to bargain collectively concerning a subject, the ultimate decision whether to accept a particular proposal of a union remains with the city or town. Thus, in Chief of Police of Westford v. Westford, the Supreme Judicial Court could observe, "While some may believe that the proper organization and operation of a police department require more flexibility than . . . [the collective bargaining agreement] permit[s], that is apparently not the opinion of the selectmen. And it is to the selectmen that the Legislature has committed that decision." 365 Mass. at 532. However, when an impasse is resolved by last and best offer arbitration the ultimate decision whether to accept a proposal of a union is made by the arbitration panel and not by the city or town.

A police chief's authority to assign his officers to particular duties is a matter that concerns the public safety. Chief of Police of Dracut v. Dracut, 357 Mass. 492, 502 (1970). We think that the Legislature, by including a managerial rights clause in St. 1973, c. 1078, Section 4, clearly recognized as we have said in another context, that "[p]ublic safety must be left to the appropriate officials and to the political process which affects public policy." Boston v. Boston Police Patrolmen's Assn., 8 Mass. App. Ct. 220, 226 (1979). In short, although the Legislature, by enacting G. L. c. 150E, intended to require the city to bargain collectively concerning the chief's authority to assign his officers, contrary to the decision of the Supreme Judicial Court in Chief of Police of Dracut v. Dracut, 357 Mass. at 502 (see Labor Relations Commn. v. Natick, 369 Mass. at 442), the Legislature did not intend to empower the arbitration panel in making its award to deprive the chief of his authority to "exercise his own discretion and judgment as to the number, qualifications and identity of officers needed for particular situations at any given time." 357 Mass. at 502.

We think that it was beyond the authority of the arbitration panel to include the three articles involved in the present

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case in its award. While the city could agree to these provisions as it had in the previous agreements it was not required to do so. See Bradley v. School Comm. of Boston, 373 Mass. 53, 60 (1977). The city could well view such provisions as placing overly inflexible or cumbersome restrictions upon the chief's ability to assign his men to job duties. See Chief of Police of Dracut v. Dracut, 357 Mass. at 501-502. None of the articles provides for exceptions when public safety may be increased thereby. For example, suppose a reserve officer had special experience in a problem which a particular detail was likely to face over a limited period of time and the chief deemed that that experience made him uniquely qualified to serve on that detail for that period of time. Article IX, Section 3, would prevent the chief from assigning the reserve officer to the detail in preference over a regular officer. See Boston v. Boston Police Superior Officers Fedn., 9 Mass. App. Ct. 898 (1980).

As observed by the judge, Article VIII, Section 1, raises the particular problem that it attempts to prohibit transfers for disciplinary reasons. We agree with him that the fact that St. 1977, c. 347, added to St. 1973, c. 1078, Section 4, a managerial rights clause applicable to firefighters specifically providing that in firefighter matters "disciplinary and punitive transfers shall be within the scope of arbitration" but did not change the language of the managerial rights clause applicable in police matters indicates an intent that disciplinary and punitive transfers not be within the scope of arbitration in police matters.

We conclude that that portion of the arbitration panel's award which provided that Article VIII, Sections 1 & 2, and Article IX, Section 3, be included in the new collective bargaining agreement was invalid. This is not to say that it was beyond the scope of the panel's authority to include in its award any language dealing with the matters those articles concern. Less inflexible language providing for exceptions in the interests of public safety might be permissible. As we have said on another occasion, government management cannot "hide behind a curtain of public safety; what constitutes a

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legitimate `public safety' exclusion from arbitration will have to be decided on a case by case basis." Boston v. Boston Police Patrolmen's Assn., 8 Mass. App. Ct. at 226.

2. The city contends that that portion of the award dealing with health insurance is beyond the scope of the arbitration panel's authority. This contention is without merit. The city's brief implicitly concedes that the city accepted G. L. c. 32B, Section 7A, thereby giving it authority to contribute more than fifty percent of the premium. See School Comm. of Medford v. Labor Relations Commn., 8 Mass. App. Ct. 139, 140-142 (1979), S.C., 380 Mass. 932 (1980). Contrast Watertown Firefighters, Local 1347 v. Watertown, 376 Mass. 706, 710-716 (1978); School Comm. of Holyoke v. Duprey, 8 Mass. App. Ct. 58, 62-66 (1979). Not having appealed from the judgment, which specifically declared that the portion of the award dealing with health insurance was supported by material and substantive evidence, the city cannot now contend that that portion of the award was not so supported. Contrast note 8, supra.

3. The only remaining question is whether, because of the partial invalidity of the award as discussed in part 1 of this opinion, the entire award must be denied enforcement or whether the invalid portion of the award can be severed from the valid portion, and the valid portion enforced. We think it clear, in light of the fact that the arbitration panel in its award indicated its intent that the award "be deemed severable so that only the contract provisions which exceed the panel's statutory powers should be deleted and the remainder . . . be allowed to stand," and in light of the Supreme Judicial Court's decisions in Marlborough Firefighters, Local 1714 v. Marlborough, 375 Mass. at 596-600, and Watertown Firefighters, Local 1347 v. Watertown, 376 Mass. 706, 716-717 (1978), that the valid portion of the award should be enforced.

The judgment is reversed and a new judgment is to enter consistent with this opinion.

So ordered.