Arbitrator’s ‘Chokehold’ Opinion Upheld

As the Supreme Judicial Court of Massachusetts charmingly started off a recent opinion: In Boston on St. Patrick’s Day in 2009, three friends, Michael O’Brien, Thomas Cincotti and Eric Leverone, “having consumed some alcohol during the daytime celebrations, proceeded to a Faneuil Hall bar where O’Brien received free drinks by virtue of knowing the staff and owners.” Because Leverone had recently returned from active military duty, patrons purchased him many drinks, and he became extremely intoxicated.

From the bar, the three walked to Cincotti’s apartment. While his friends waited on the sidewalk, Cincotti moved his motor vehicle to avoid getting a parking citation the next day. In doing so, he backed across a double yellow line and into a double-parked vehicle occupied by Guy Fils-Aime. Cincotti got out of his vehicle, asked O’Brien to move it out of the street, and approached Fils-Aime. O’Brien testified that, before moving the vehicle to a legal parking space, he heard Fils-Aime say, “I am a federal agent and you are fucked.”

Fils-Aime called 911 just after midnight to report the accident. On that recorded call, he can be heard to say, “No, no, no. Don’t worry. I work for Homeland Security. I’m a Federal agent. You’re not going to get in trouble. Relax.” After describing the accident to the dispatcher, Fils-Aime added, “They’re drunk.”

Officers David Williams and Diep Nguyen arrived on scene at 12:08 a.m. O’Brien described their interaction as immediately hostile and aggressive, while the officers characterized O’Brien and his friends as drunk and uncooperative. O’Brien, who with Cincotti and Leverone is Caucasian, appeared further provoked by the officers’ friendliness with Fils-Aime, who like Williams is African-American.

A disturbance eventually erupted, and after having to use force in the process, the officers arrested O’Brien, charging him with resisting arrest, assault and battery on a police officer (Nguyen), and disturbing the peace. O’Brien filed an internal affairs complaint, and the City eventually fired Williams, concluding that he used excessive force and was subsequently untruthful.

An arbitrator rejected all the charges and ordered Williams reinstated with back pay. The Arbitrator rejected O’Brien’s account of the incident as “not truthful,” and concluded that Williams used only the amount of force reasonably necessary to overcome O’Brien’s resistance to arrest. The Arbitrator also concluded that Williams’s internal affairs interviews had been truthful.

The City challenged the Arbitrator’s opinion, and the issue wound up in the Supreme Judicial Court of Massachusetts. The City’s primary argument was that the arbitration award should be vacated because the Arbitrator exceeded his authority by intruding on the nondelegable powers of the Boston Police Commissioner to discipline officers.

The Court disagreed, concluding that “the terms of a CBA trump any authority enumerated under the State’s collective bargaining law. If a collective bargaining agreement contains a conflict between matters which are within the scope of negotiations and the regulations of a police commissioner, the terms of the collective bargaining agreement shall prevail. Accordingly, the CBA’s just cause provision permits the arbitrator to interpret regulations promulgated pursuant to the commissioner’s statute, and usurps no authority in so doing.”

The City also contended that the arbitration award was invalid because Williams’s reinstatement violated public policy. The Court observed that in determining whether the “narrow public policy exception requires the vacation of an arbitrator’s award, we apply a stringent, three-part analysis. First, the policy at issue must be well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. Second, the exception does not address disfavored conduct, in the abstract, but only disfavored conduct which is integral to the performance of employment duties. Finally, we require a showing that the arbitrator’s award reinstating the employee violates public policy to such an extent that the employee’s conduct would have required dismissal. The question in the third prong is not whether the employee’s behavior violates public policy, but whether an award reinstating him or her does so.

“The first two prongs of this test are easily satisfied in cases of alleged police misconduct toward civilians. It is inarguable that well-defined public policy condemns excessive force by police officers. Similarly, there is no question that refraining from excessive force is integral to a police officer’s duties to protect the public and keep the peace.”

It was with the third prong of the “public policy” standard that the City’s argument ran onto rocky shoals. The Court found that “to prevail, the City must demonstrate that public policy requires that Williams’s conduct, as found by the Arbitrator, is grounds for dismissal, and that a lesser sanction would frustrate public policy. Because the Arbitrator found that Williams acted reasonably and truthfully, the public policy exception cannot bar his reinstatement.

“Without doubt, a de novo analysis of whether Williams’s actions constituted excessive force in the totality of the circumstances could support a conclusion very different from the one reached by the Arbitrator. This was an arrest for disorderly conduct. Williams gave no verbal commands, and used neither of the methods of nonlethal force in which he was trained before applying a choke hold, despite his training to avoid a suspect’s neck area. Williams is significantly larger than O’Brien, who was unarmed. It is unreasonable to justify a choke hold – as the Arbitrator did – on the grounds that a suspect could always grab an officer’s service weapon, because this is true of any civilian interaction with police and would obviate any continuum of force.

“Where the City failed to recognize those dangers in any rule, however, we are not free to redefine terms the parties bargained over. Had the City prohibited choke holds as excessive force, an arbitrator who found a choke hold reasonable would have exceeded his authority. In other words, that a de novo factual analysis would permit a finding of felonious conduct does not permit us to proceed as if the Arbitrator actually made that finding.

“We are aware of no prior application of the public policy exception to vacate an award ordering reinstatement where the Arbitrator found no underlying misconduct. The question, in other words, is not whether Williams’s conduct justified termination, but whether it required termination, such that any lesser sanction would violate public policy. Because the Arbitrator found that Williams used reasonable force and was not untruthful in subsequent investigations, the award reinstating him must be upheld.”

City of Boston v. Boston Police Patrolmen’s Association, 2017 WL 2960815 (Mass. 2017).