CITY OF WORCESTER vs. FREDERICK J. BORGHESI & others. [Note 1]

SMITH, J. The defendant Frederick J. Borghesi was appointed in January, 1974, as a permanent full-time police officer in the city of Worcester (city). On October 13, 1978, he became incapacitated for duty because of an injury sustained in the performance of his duty, without fault of his own, and hence was granted leave without loss of pay under G. L. c. 41, Section 111F. His medical status was monitored periodically by Dr. Robert Anderson, the physician designated by the city pursuant to Section 111F. On or about June 20, 1980, Dr. Anderson determined

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that Borghesi could return to his previous duties, and he was ordered back to work by the chief of police. Borghesi refused to return to work and filed a grievance in August, 1980, claiming that he was still incapacitated and contesting his removal from "leave without loss of pay" status. [Note 2] His grievance was denied, and the matter went to arbitration. [Note 3]

On November 24, 1981, prior to the arbitration hearing, Borghesi was suspended without pay because of the return of indictments against him. See G. L. c. 268A, Section 25, inserted by St. 1972, c. 257. He was convicted of several crimes and was dismissed from the police department on March 21, 1983. The arbitration hearing commenced on April 28, 1983. At the outset, the city filed a motion to dismiss the arbitration on the ground that the matter was no longer arbitrable in view of Borghesi's suspension and subsequent termination. The arbitrator denied the motion.

The hearing proceeded on the issue stipulated by the parties, namely, whether the city had violated art. 29 of the collective bargaining agreement or G. L. c. 41, Section 111F, by refusing to grant Borghesi leave without loss of pay for a period prior to November 24, 1981, the date of his suspension. After hearing testimony and receiving documentary evidence, the arbitrator ruled that Borghesi was still incapacitated at the time he was removed from "leave without loss of pay" status. He ordered the city to pay Borghesi wages for a period prior to the date of

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his suspension. [Note 4] The city brought an application in the Superior Court seeking to have the award vacated. G. L. c. 150C, Section 11. A judge denied the application and confirmed the award. On appeal, the city claims that the arbitrator exceeded his powers. In addition, the city claims that the arbitrator denied the city the right to cross-examine witnesses and allowed hearsay evidence to be employed during the hearing. We affirm.

At the outset of our analysis we note that the city in its arguments on appeal ignores the limited scope of judicial review of an arbitrator's award. Under G. L. c. 150C, Section 11, "[i]n the absence of fraud, arbitrary conduct, or procedural irregularity in the hearings, the court's determination is confined largely to whether the arbitrator's award conforms to the terms of the reference submitted to him by the parties." Greene v. Mari & Sons Flooring, 362 Mass. 560, 563 (1972). Here, the city and the union agreed on an issue and submitted it to the arbitrator. His decision addressed the question and answered it. The award was within the scope of the reference.

The city has come up with a novel twist to its argument that the arbitrator exceeded his powers. It concedes that the dispute submitted to the arbitrator was a grievance as that word is defined in the collective bargaining agreement. It contends, however, that Borghesi's criminal conduct rendered the grievance no longer subject to arbitration because by that conduct Borghesi forfeited any compensation that may be owed to him. It cites Hennessey v. Bridgewater, 388 Mass. 219 (1983), as support for its position. In that case, a probationary, nontenured police officer was injured in the line of duty and received leave without loss of pay pursuant to G. L. c. 41, Section 111F. While on that status his employment was terminated for breach of duty and illegal conduct. See now G. L. c. 31, Section 61. On the same date the town terminated all compensation that the police

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officer had been receiving under G. L. c. 41, Section 111F. He brought an action seeking a declaration of his right under G. L. c. 41, Section 111F, to receive benefits after the date of his termination. The court held that "where the unchallenged reasons for termination charge illegal conduct as well as breach of duty . . . [the police officer] has forfeited any claim to the continuation of wages which are incident to employment." Id. at 226.

Contrary to the city's contention, Hennessey v. Bridgewater, supra, does not control the situation here. In contrast to the plaintiff in the Hennessey decision, Borghesi does not claim that he is owed wages from the date of his suspension. Rather, he seeks pay under G. L. c. 41, Section 111F, for a period of time prior to his suspension. Therefore, there is nothing in that decision that either forbids arbitration of the grievance or holds that Borghesi, under the facts presented here, has forfeited any claim to wages owed to him before his suspension.

The city's argument that analogous provisions of G. L. c. 32, and provisions of G. L. c. 268A require forfeiture of any claim for wages prior to November 24, 1981, is without merit.

The city's next argument in regard to its contention that the arbitrator exceeded his powers is equally without merit. General Laws c. 41, Section 111F, states that "no . . . leave [without loss of pay] shall be granted . . . for any period after a [designated] physician . . . determines that such incapacity no longer exists." Here, Dr. Anderson, the designated physician, determined that Borghesi could return to work. The arbitrator ruled that Borghesi was still incapacitated within the meaning of G. L. c. 41, Section 111F, when he was removed from leave without loss of pay status. The city argues that the arbitrator's decision was error because the statute vests in the designated physician, and not the arbitrator, the determination when an injured police officer has recovered from his incapacity. In his decision the arbitrator agreed with the city's interpretation of G. L. c. 41, Section 111F, but ruled that the determination of the designated physician here was seriously flawed in several aspects.

The city, in effect, claims that the arbitrator misinterpreted either the evidence before him or the law. Because we are concerned here, as was the Superior Court judge, with judicial

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review of an arbitrator's decision, it is not necessary for us to determine the worth of the city's contention. While couched in terms that the arbitrator exceeded his powers, the city's objection is in fact a "contention[] that he committed a variety of errors of law and fact." Triton Regional Dist. Sch. Comm. v. Triton Teachers Assn., 7 Mass. App. Ct. 873, 874 (1979). It is well settled that, in the absence of fraud, an arbitrator's decision is binding even if he has committed an error of law or fact in arriving at his decision. Morceau v. Gould-Natl. Batteries, Inc., 344 Mass. 120, 124 (1962). Trustees of Boston & Me. Corp. v. Massachusetts Bay Transp. Authy., 363 Mass. 386, 390 (1973). Therefore, the matters raised by the city are not subject to review by us.

The city's claim that the arbitrator conducted the hearing in violation of G. L. c. 150C, Section 5(b), borders on the frivolous. Pursuant to the collective bargaining agreement, the hearing was conducted in accordance with the Voluntary Labor Arbitration Rules of the American Arbitration Association and not pursuant to the statute. [Note 5] Those rules specifically state that the conformity to legal rules of evidence is not necessary. In addition, "[o]ur function does not include ruling on the appropriateness of the arbitrator's admission of and reliance on particular evidence." Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 188 n.4 (1984).

Judgment affirmed.