GERARD J. THIBEAULT vs. CHIEF OF POLICE OF FITCHBURG & another. [Note 1]

GOODMAN, J . Gerard J. Thibeault, a patrolman of the police department of the city of Fitchburg, brought this action for declaratory and injunctive relief to prevent the implementation of an order (General Order No. 74-24) by the chief of police establishing a system of "rotating shifts." At the time the action was brought Thibeault was also president of Local 342 of the International Brotherhood of Police Officers. [Note 2]

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The present dispute arose in May of 1974 while collective bargaining negotiations were in progress between Local 342 and the city of Fitchburg looking toward a successor agreement to a collective bargaining contract that had, by its express terms, expired on December 31, 1973, but which the parties had orally extended until such time as a new agreement might be reached. [Note 3] One of the issues on which (as alleged in the complaint and admitted by the defendants) the negotiations had reached an impasse was the city's "propos[al] that the union agree to accept a system of rotating shifts" instead of the yearly assignment by seniority based preference to fixed shifts theretofore in effect. In the midst of these negotiations the police chief issued General Order No. 74-24, which (by its terms) became effective on June 3, 1974, "establish[ing] within the Fitchburg Police Department a system whereby the First, Second and Third Reliefs [shifts] shall rotate." Under that order three of the shifts theretofore in effect -- viz. 11 P.M. to 7 A.M., to 7 A.M. to 3 P.M., and 3 P.M. to 11 P.M. -- were retained, and it was required that "[p]atrolmen of each [shift] shall rotate every three months" to another shift. The plaintiff contends that the order conflicts with the fourth paragraph of art. II, Section 16-25, of the General Ordinances of the City of Fitchburg (the shift preference clause). That clause provides that the chief of police "shall, insofar as possible, assign regular members to their preferences for reliefs of duty on the basis of seniority of service . . ." and further that "[a]ll preferences must be written, signed and submitted to the chief of police by

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December twentieth of each year and shall be in effect only for the following year." [Note 4]

The conflict seems quite apparent; it is obvious that the shifts have not changed; only the method of assigning police officers to the shifts has changed. Instead of assignment by seniority based preference which "shall be in effect only for the following year" the assignment is by preference which is effective only for three months. Thereafter the change to another shift is compulsory without regard to preference or seniority. It is true, as the defendants argue, that the ordinance (apart from such other

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statutory restraints as there may be) vests discretion in the chief of police to change the time of each shift and the number of shifts. But the seniority preference clause limits his power to assign individual police officers once the shifts have been established. The ordinance contemplates assignments of "regular members to their preferences for reliefs of duty on the basis of seniority . . ." such assignments to continue for a year. To characterize the change here effected as the establishment of "rotating shifts" rather than as reassignment to another shift without regard to seniority is word play. "The employee rights [to shift preference by seniority] . . . would be made meaningless by a change to rotating shifts. . . . With rotating shifts, the exercise of shift preference by an employee would be destroyed, because he would then be assigned to unpreferred shifts." U.S. Army Missile Command, 54 Lab. Arb. 357, 358-359 (1970) (Williams, Arb.).

The defendants argue that we should construe the qualification "insofar as possible" in the ordinance by reference to art. VI (1) of the collective bargaining agreement, which speaks of seniority preference "[i]nsofar as possible and compatible with the needs of the Department . . .." So construed, it is contended, the phrase "insofar as possible" goes beyond what seems to us its ordinary purpose -- to permit deviations from established procedures due to emergencies or the need for individual changes arising, e.g., from sickness or absence for other reasons. See G. L. c. 4, Section 6, Third. It is true that the contract may be consulted for light on the meaning of the phrase in the ordinance, but the words "compatible with the needs of the Department" may be taken not necessarily to broaden the discretion of the police chief, but to narrow his discretion so that when he does deviate from seniority preference to make necessary individual changes, they cannot be discriminatory or made on purely personal considerations. In any event, we find the previous practice of yearly assignments to fixed shifts more persuasive as an indication of the meaning of the ordinance and the contract. Cleary v. Cardullo's, Inc. 347 Mass. 337, 343 (1964). Hardware

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Specialties, Inc. v. Mishara Constr. Co. Inc. 2 Mass. App. Ct. 277, 280 (1974), citing Baccari v. B. Perini & Sons, Inc. 293 Mass. 297, 303 (1936). Compare Uniform Commercial Code, G. L. c. 106, Sections 2-202(a), 1-205. We also find significance in the admission by the defendants in their answer that during the 1974 contract negotiations they proposed that the union agree to accept a system of rotating shifts, an indication that the initiation of such a system was a departure from past practices and not permitted under the existing contract.

The construction suggested by the defendants would dilute the seniority preference clause to the point where the qualification would swallow the general rule and give the chief of police a broad discretion. This may be desirable, and the notion of rotating shifts in the police department may indeed have merit. But "[w]hile some may believe that the proper organization and operation of a police department require more flexibility than those provisions permit, that is apparently not the opinion of the [city council]. And it is to the [city council] that the Legislature has committed that decision." Chief of Police of Westford v. Westford, 365 Mass. at 532. [Note 5]

Accordingly we hold that the general order of the chief of police No. 74-24 conflicts with art. II, Section 16-25, of the General Ordinances of the City of Fitchburg; the judgment is reversed and the case is remanded to the Superior Court for the entry of judgment consistent with this opinion.

So ordered.