Arbitrator Has Discretion As To Disciplinary Penalty

Leonard Gibson, a detainee housed at the medical unit of the Suffolk County, Massachusetts jail, engaged in a verbal altercation with two corrections officers and sustained physical injuries as a result of the ensuing scuffle with one of the officers. An internal investigation determined that one of the officers had assaulted Gibson. The investigation also disclosed that another corrections officer, Joseph Upton, saw some of the salient events, failed to report the matter, and lied to his investigators in an attempt to cover up the malfeasance.

The Sheriff terminated Upton for these violations. Following a grievance of the termination by Upton’s labor organization, the Jail Officers and Employees of Suffolk County, an arbitrator reversed the discharge and ordered Upton suspended for six months without pay or benefits and loss of seniority for that period. The Sheriff then sued to vacate the Arbitrator’s award, arguing that it exceeded the Arbitrator’s authority and was contrary to public policy.

The Appeals Court of Massachusetts upheld the Arbitrator’s award. The Court referred to the public policy exception to the general rule that arbitrators’ awards are final as “limited” and requiring a “stringent, three-part analysis. First, the public policy must be well-defined and dominant, and is to be ascertained by reference to the laws of legal precedence and not from general considerations of supposed public interest. Second, the conduct involved cannot be disfavored conduct, in the abstract. Rather, to implicate public policy, an arbitrator’s award must order reinstatement after an employee has engaged in disfavored conduct which is integral to the performance of duties. Third, the Arbitrator’s award reinstating the employee must violate public policy to such an extent that the employee’s conduct would have required dismissal.”

While the Court found that the first two prongs of this test might well be implicated by the arbitration award involving Upton, it viewed the key issue to be whether the Sheriff could prove the third prong – that there could be no question but for the fact that discharge had to result from Upton’s conduct. The Court concluded that “Upton’s conduct was the result of trying to cover up the misdeeds of his fellow correction officers, and not the result of trying to cover up his own misconduct. Such conduct, while condemnable and requiring substantial discipline, did not compel termination, as it did not present one of those rare instances in which an arbitrator’s award must be vacated as contrary to an explicit, well-defined, and dominant public policy.”

Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County, 816 N.E.2d 963 (Mass.App. 2007).

This article appears in the May 2007 issue