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Appeals Court of Massachusetts.



Decided: April 30, 2021

By the Court (Rubin, Blake & Lemire, JJ.1)


This appeal presents a question of whether a judge of the Superior Court properly vacated an arbitrator's award on the ground that the award violated public policy. See G. L. c. 150C, § 11 (a) (3). Because public policy did not justify vacating the arbitrator's award, we reverse.

Background. The arbitrator found the following relevant facts. Anthony Matteo was employed by the plaintiff, the city of Lawrence (city) for forty years in the sanitation department and sewer department. Throughout his tenure with the city, Matteo accumulated a significant disciplinary record. His discharge stemmed from events that occurred on March 7, 2017. At approximately 8:30 a.m., Leonel Castellanos was passing in front of a city department of public works (DPW) truck operated by Matteo when he heard a “big honk.” Castellanos, who was in the crosswalk, approached the driver's side of the truck and spoke with Matteo. An expletive filled exchange of words followed. Analuz Garcia, an employee at North Essex Community College (NECC) and coworker of Castellanos, was walking nearby and heard Matteo swear at Castellanos. Upon returning to NECC, Garcia texted the city's mayor about the incident. Matteo was given a written warning about the incident at the direction of the mayor.

Matteo was concerned that his written warning “might go further,” and he went to NECC later that afternoon to explain to a supervisor of Castellanos that the incident earlier in the day had been a “misunderstanding.” While at NECC, Matteo spoke with Castellanos, and admitted that his actions earlier in the day were “not professional” and that he had honked his horn because he thought Castellanos was someone he knew. Matteo was provided the phone number of Castellanos's supervisor in order to further explain the situation.

The next day, Matteo was informed that he had been suspended without pay until further notice. Following an investigation into the incident and an appointing authority hearing, a hearing officer concluded that the city met its burden of demonstrating just cause for disciplining Matteo, up to and including termination. On August 31, 2017, the mayor adopted the hearing officer's report and discharged Matteo.

On September 1, 2017, Firemen & Oilers, Local 3, SEIU (union) filed a grievance protesting Matteo's discharge. Pursuant to the collective bargaining agreement between the city and the union, the grievance proceeded to arbitration. After a hearing, the arbitrator concluded that the morning incident in the crosswalk merited a written warning. Because there was no evidence that Matteo went to NECC to bully, threaten, or otherwise get Castellanos in trouble, the arbitrator concluded that Matteo could not be discharged on that basis.2 Accordingly, the arbitrator ordered his reinstatement and payment of lost wages and benefits.

On September 20, 2018, the city filed a complaint in the Superior Court to vacate the arbitration award because Matteo's conduct contravened “a well-defined and dominant policy against retaining employees whose misconduct is inconsistent with public service and the public interest.” See G. L. c. 150C, § 11 (a). The parties cross-moved for judgment on the pleadings and, after a hearing, the judge vacated the award and remanded the matter to the arbitrator for further findings on “the specifics of Matteo's disciplinary history ․ and the basis for the arbitrator's decision on the appropriate discipline ․ given Matteo's disciplinary history.”3 After receiving the arbitrator's response, which largely reiterated the points made in his original decision, the judge granted the city's motion for judgment on the pleadings and vacated the award. The judge concluded: “to impose any sanction less than discharge, which thereby requires the City to retain an employee who repeatedly engages in disruptive conduct detrimental to the City, clearly violates public policy.” This appeal followed.

Discussion. On appeal, the union claims that the judge erroneously vacated the arbitrator's award on the basis of a nonexistent public policy.4 We agree.

The public policy exception set forth in G. L. c. 150C, § 11 (a) (3) states that a judge of the Superior Court “shall” vacate an arbitration award where “the arbitrators exceeded their powers or rendered an award requiring a person to commit an act or engage in conduct prohibited by state or federal law.” We employ a three-part test to determine whether this narrow exception applies:

“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” (quotations and citations omitted).

Boston v. Boston Police Patrolmen's Ass'n, 477 Mass. 434, 442 (2017). We review de novo the judge's disposition of the motion for judgment on the pleadings. Frankston v. Denniston, 74 Mass. App. Ct. 366, 371 n.6 (2009).

The judge improperly concluded that the first two requirements of the public policy exception were met in this case. First, the policy defined by the judge -- the right to terminate an employee “who repeatedly engages in disruptive conduct detrimental to the employer” -- was not “well defined and dominant” under our laws. There is no well-defined public policy against retaining disruptive or impolite employees generally. Compare Boston Police Patrolmen's Ass'n, 477 Mass. at 443 (“It is inarguable that well-defined public policy condemns excessive force by police officers”); Springfield v. United Pub. Serv. Employees Union, 89 Mass. App. Ct. 255, 259 (2016) (discussing well-defined and dominant public policy against sexual harassment). Second, by finding the second requirement satisfied, the judge concluded that Matteo's initial conduct of “yelling offensive language at a member of the public occurred during work hours” and that he left work before his shift had ended to find Castellanos at NECC. As a factual matter, the city terminated Matteo for his visit to NECC, not for his verbal altercation in the crosswalk. Moreover, his afternoon visit to NECC was not “integral to the performance” of his job of “work[ing] on storm drains.” Cf. Massachusetts Highway Dep't v. American Fed'n of State, County & Mun. Employees, Council 93, 420 Mass. 13, 17 (1995) (“Where the person performs his employment duties and, in doing so, violates standards, restraints and restrictions on conduct, clearly and explicitly established by the people in their laws, a requirement that the employer suffer that malperformance and not discharge the offender does itself violate ․ public policy” [citation omitted]).

We turn our attention to the third requirement of the public policy exception.5 “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.” Boston Police Patrolmen's Ass'n, 477 Mass. at 442-443. Here, the judge parted ways with the arbitrator regarding Matteo's visit to NECC, concluding “[s]uch misconduct, particularly given Matteo's ‘appalling disciplinary record,’ warrants dismissal from employment.”

The arbitrator reasoned that Matteo's visit to NECC did not justify discharge because “nothing in the credible, direct evidence on this record supports the allegation that Matteo sought to get Castellanos in trouble or that he bullied or threatened Castellanos in the atrium of NECC.” No matter how egregious the judge found Matteo's behavior, she was bound by this finding. See United Paperworks Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38 (1987) (“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts ․ that they have agreed to accept”). See also Pittsfield v. Local 447 Int'l Bhd. Of Police Officers, 480 Mass. 634, 642 (2018). Consequently, the award reinstating Matteo did not violate public policy because his conduct at NECC, as determined by the arbitrator, did not require termination. See, e.g., Boston Police Patrolmen's Ass'n, 477 Mass. at 443-445; Massachusetts Highway Dep't, 420 Mass. at 19-20.

Conclusion. The judgment is reversed, and a new judgment shall enter confirming the arbitration award.

So ordered.



2.   The arbitrator did not find Garcia's testimony that Castellanos appeared frightened by Matteo's presence at his workplace sufficient to justify a discharge.

3.   The propriety of the remand order is not before us on appeal.

4.   The union also claims that the judge improperly disregarded the arbitrator's findings. To the extent that consideration of this issue is warranted in reaching our decision, we agree.

5.   Assuming, arguendo, that the first two requirements of the public policy exception were satisfied in this case, the union would still prevail because the third requirement of the conjunctive public policy test was not satisfied for the reasons set forth herein.

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Docket No: 20-P-588

Decided: April 30, 2021

Court: Appeals Court of Massachusetts.

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