Rawlston Appeal Golick

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NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the
parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale.
Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the
views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February
25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding
precedent.
COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
CITY MANAGER OF WORCESTER vs. NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, LOCAL
911.
13-P-1061
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 17, 2009, an arbitrator found that the conduct of Worcester police Officer David Rawlston during
an April, 2007, off-duty incident did not supply just cause for the termination of his employment. The
arbitrator ordered Rawlston reinstated, and the city manager of the city of Worcester (city manager)
appealed. After failing to prevail in the Superior Court, the city manager appealed further to this court. In
O'Brien v. New England Police Benevolent Assn., Local 911, 83 Mass. App. Ct. 376, 380-383 (2013), this
court affirmed the Superior Court judgment confirming the arbitration award.
Approximately one month after the arbitrator ordered Rawlston reinstated, the city manager again
terminated Rawlston, offering the following explanation: Rawlston's license to carry a firearm, pursuant to
G. L. c. 140, 131, had expired; his application for a new license had been denied; he had failed to
appeal that decision; and he could not serve in the Worcester police department without having the legal
right to carry a firearm. In addition to Rawlston's lack of a license to carry, the city manager also cited
alleged dishonesty in Rawlston's application to obtain a new license. The second termination was
arbitrated before a different arbitrator. Once again, the city manager was directed to reinstate Rawlston.
The second arbitrator's subsidiary findings included the following: the city manager, and more particularly
the police chief, had acted capriciously and in bad faith to prevent Rawlston from being reinstated; [FN1]
Rawlston had not been deceitful in his application to reinstate his license to carry; the city manager had
not demonstrated that a c. 140 license to carry was a necessary job requirement; [FN2] and even
assuming that possessing a license to carry was, indeed, a job requirement, the police chief had waived
that requirement on other occasions. The arbitrator concluded that "[j]ust cause for dismissal is not
established by the unadorned fact that a chief exercises his discretion to refuse to issue an employee a
firearm," because, if that were all that was needed to dismiss a police officer, the officer's "contractual
right not to be discharged except for just cause is meaningless." The arbitrator further concluded that the
police chief "may be free to exercise his claimed authority to refuse to permit Rawlston to carry a weapon.
But in the realm of just cause, which is the contractual standard for dismissal, the City's reliance on an
alleged 'disqualification' that the Chief himself decided to impose so as to prevent Rawlston from
reinstatement was capricious and does not meet the test of contractual fairness." Thereafter, the city
manager sought to vacate the award, and the defendant union, acting on Rawlston's behalf, sought to
confirm it. In a thorough and well-reasoned decision, a judge of the Superior Court allowed the union's
motion to confirm and denied the city manager's motion for judgment on the pleadings. The city manager
appeals, arguing as he did in the appeal from the first arbitration award, that the award violates public
policy.
We affirm, substantially for the reasons stated by the judge, and on the basis of the legal analysis
contained in our prior decision. On judicial review of an arbitrator's decision, we are strictly bound by the
arbitrator's findings and legal conclusions, whether or not they are erroneous. Lynn v. Thompson, 435
Mass. 54, 61 (2001). In this case, no less than the prior case, "the factual and legal underpinnings
necessary to the application of the public policy exception are lacking. The arbitrator did not issue an
award of reinstatement that flies in the face of factual findings of misconduct; there is no inconsistency
between the findings of the arbitrator and his award of reinstatement." O'Brien v. New England Police
Benevolent Assn., Local 911, 83 Mass. App. Ct. at 382-383.
Judgment affirmed.
By the Court (Cohen, Graham & Grainger, JJ.),
Entered: May 13, 2014.
FN1. The arbitrator relied on, for example, a statement by the police chief that was the subject of an August,
2009, news story in the Worcester Telegram and Gazette: "We will do everything we can to prevent [Rawlston]
from returning to the Worcester Police Department."
FN2. See G. L. c. 41, 98, as appearing in St. 1957, c. 688, 1, authorizing police officers of all cities and
towns to "carry within the commonwealth such weapons as the chief of police or the board or officer having
control of the police in a city or town shall determine."
END OF DOCUMENT
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COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

By the Court (Cohen, Graham & Grainger, JJ.),

Entered: May 13, 2014.

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