11 Mass. App. Ct. 269 | Mass. App. Ct. | 1981
The plaintiff (union) brought this action to obtain review under G. L. c. 30A, § 14, of a decision of the defendant commission dismissing a complaint by the union that the town of Dennis had engaged in a prohibited practice (G. L. c. 150E, § 10[o][l], [3], and [4]) when it declined at the end of 1974 to renew the appointments of four union members as police officers of the town. There
We set out facts taken from the commission’s extensive findings, indicating where appropriate any particular fact which is in dispute. For several years up to and including the period 1972 through 1973, the Dennis police department had been in a state of “extreme disorder”, a state characterized by poor administration, lack of formal personnel policies, and frequent citizen complaints. The retirement of the police chief, who had been absent roughly forty percent of the time, presented an opportunity to upgrade the department. The selectmen solicited applications for the position and considered two hundred seventy-five candidates. They appointed one Cataldo, a former director of the Barnstable County Police Academy, who assumed office on March 1, 1974. He came to the job prepared to exercise firm control over the department, having been impressed by the selectmen that he was expected to correct longstanding deficiencies and to make hard and unpleasant decisions relative to personnel.
The commission heard testimony by the selectmen that union activity was not considered by them at all in making that decision, that their decision which men not to reappoint was based solely on the four independent evaluations which had been submitted. The commissioners were entitled to believe that testimony, and they expressly did so, despite the fact that they also found that the introduction of the union in late 1972 had provoked the hostility and active opposition of the selectmen and one of the four evaluators
The trial judge also acted correctly, for the reasons which he stated, in refusing the union’s request that the case be remanded to the commission, over the opposition of the latter, for a determination whether the town’s unilateral adoption
Judgment affirmed.
The selectmen, by a separate complaint, sought judicial review under G. L. c. 30A, § 14, of the commission’s decision ordering the reinstatement of Springer. That complaint, which was heard together with the one brought by the union, resulted in a remand to the commission for further findings with respect to whether the anti-union bias and retaliation for protected activities which were found to have tainted the decision not to reappoint Springer were a “dominant” reason for the decision and whether Springer would have been reappointed if it had not been for his union-supportive activities.
In May, 1974, the Dennis town meeting, with the support of the selectmen, had accepted G. L. c. 41, §§ 126-132, which gave tenure to police officers after five years of service to the town. All officers had previously been subject to reappointment annually.
The commission found that “while an initial anti-union bias existed among the Board [of Selectmen], this bias was substantially dissipated over time” — a finding the union assails as lacking support in the evidence. There was evidence, however, that the selectmen negotiated a contract with the union in late 1972 (signed, the union points out, in the name of the patrolmen rather than the union, but executed, nevertheless, by the president of the local, who testified that he executed the contract on behalf of the union); that the terms of employment achieved by the Dennis department compared favorably with those achieved in other towns on Cape Cod; that the selectmen fulfilled their duty of sponsoring the collective bargaining agreements, resulting in their acceptance at town meeting; that the board considered grievances conscientiously; and that the selectmen tried (through town counsel) to get legislative approval for a three-year tenure plan worked out in concert with the union and, failing that, sponsored local acceptance of the five-year tenure law approved by the Legislature (see n.3). In December, 1973, following threats made by Lieutenant Kelley to Springer concerning his union membership, the members of the board of selectmen declared in writing that “no disciplinary action would be taken on the part of the Board of Selectmen against any patrolman because of any union affiliation on his or her part.” On the whole record we are unable to say that the commission was not warranted in concluding that anti-union sentiment had substantially dissipated by late 1974.
The commission surmised that Springer’s revelations hurt Kelley’s chances of being appointed chief of the department, a position for which he was a candidate. Cataldo was appointed to the position not long thereafter.
In addition, Springer was the only one of the five non-reappointees to receive a “satisfactory” rating in the last routine departmental evaluation reports made prior to the termination decisions. (The December, 1974, special, selectmen-ordered evaluations were made for the specific purpose of determining whom not to reappoint.) This fact was found by the commission in its findings on remand (see note 2, supra). The union filed a motion to supplement the record, asking that the commission’s findings on remand in Springer’s case be considered by this court in connection with the present decision. We have allowed the motion. The decision on remand tends to reinforce the view that Springer’s non-reappointment turned on factors peculiar to his case, rather than on anti-union animus generally.