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Department of State Police v. State Police Association of Massachusetts

2026-10-13

Authorities cited

Opinion

majority opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]

25-P-321 Appeals Court

DEPARTMENT OF STATE POLICE vs. STATE POLICE ASSOCIATION OF

MASSACHUSETTS.

No. 25-P-321.

Suffolk. June 11, 2026. - October 13, 2026.

Present: Vuono, Neyman, & Smyth, JJ.

State Police. Police, Authority of police chief, Collective

bargaining. Contract, Collective bargaining contract.

Labor, Grievance procedure. Arbitration, Collective

bargaining. Public Employment, Managerial prerogative.

Practice, Civil, Judgment on the pleadings.

Civil action commenced in the Superior Court Department on September 28, 2023.

The case was heard by Robert L. Ullmann, J., on a motion for judgment on the pleadings.

Laurel Kennedy for the defendant.

Daniel Brunelli for the plaintiff.

SMYTH, J. General Laws c. 22C, § 18 (§ 18), inserted by

St. 1991, c. 412, § 22, establishes that the colonel of the

State police (colonel) "may, in the event of any public

emergency, or of any unusual demand for the services of members

of the state police . . . or whenever he deems it in the public

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interest, require such members to work additional hours of duty

and prevent such members from taking time off." The issue in

this appeal is whether the colonel may cede authority under § 18

to a collective bargaining agreement (CBA) between the

Department of State Police (department) and the State Police

Association of Massachusetts (union). A Superior Court judge

concluded that the colonel's authority under § 18 to mandate

that department members work additional hours and prohibit time

off on Independence Day in 2022 was nondelegable because it

involved a core managerial function of the colonel that

implicated public safety. Based on this conclusion, the judge

allowed the department's motion to permanently stay arbitration

of a union grievance alleging that the department violated a

prior agreement to not strictly enforce § 18.

The union now appeals, arguing that the judge erred in

permanently staying arbitration because (1) the union and

department expressly incorporated § 18 into the CBA in 1999, and

(2) the colonel's authority under § 18 is "conditional and factspecific, requiring an arbitration record from which to render

an opinion as to its viability." Because we conclude that the

grant of authority under § 18 is essential to the colonel's

public safety mandate, and thus is nondelegable, we affirm.

Background. In 1999, the parties agreed to incorporate

into their existing CBA a side letter of agreement (side

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letter), which expressly subjected the colonel's authority under

§ 18 to collective bargaining. The side letter provided, in

pertinent part,

"The events associated with Marathon Monday/Patriot's Day1

and 4th of July holidays, in and of themselves, will not be

considered public emergencies, or unusual demands for

services, or a need in the public interest . . . .

"The provisions of this Side Letter of Agreement shall be

subject to the grievance/arbitration provisions of the

Employer/Association collective bargaining agreement, and

shall be coterminous with the duration of this Agreement

. . . ."

Beginning in 2013, the colonel issued an annual memorandum

informing department members that they could be required to work

overtime "for the July 4th Celebration on the Esplanade" in

Boston, and further, that all requests for time off on July 3

through July 5 would be denied, with limited exceptions. The

annual memorandum stated that this order was necessary "to

ensure that the Department is at full operational readiness for

July 4th." On May 10, 2022, the colonel issued one such

memorandum regarding staffing for Independence Day that year.

On July 25, 2022, the union submitted a grievance, pursuant

to article 22 of the parties' CBA, alleging that the department

violated the side letter by requiring members to work additional

hours and prohibiting time off on July 4, 2022. The grievance

1 The Boston Marathon, held annually on the third Monday in April, coincides with Patriot's Day.

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was scheduled for arbitration on February 6, 2024. However, on

September 28, 2023, the department filed a complaint and

application in the Superior Court to stay arbitration alleging,

inter alia, that the union's attempt to arbitrate the colonel's

staffing order pertaining to Independence Day interfered with

the colonel's exercise of "nondelegable, statutory authority."

The union opposed, asserting as an affirmative defense that its

grievance was subject to arbitration. The department

subsequently moved for judgment on the pleadings in July 2024.

Following a hearing, the judge allowed the department's motion

and permanently stayed arbitration after concluding that § 18

grants the colonel the nondelegable authority "to perform the

narrow and important public safety function of ensuring that

there are enough Department members to handle large crowds at

events and other gatherings, in this instance July 4th events at

the Esplanade."

Discussion. We review a judgment on the pleadings de novo.

See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726

(2013).

1. Colonel's authority under § 18. The union argues that

the judge erred in ruling that § 18 grants the colonel the

nondelegable authority to order department members to work

additional hours on July 4, 2022, effectively rendering the side

letter a nullity.

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General Laws c. 150E, enacted in 1973, protects the rights

of public employees to collectively bargain "with respect to

wages, hours, standards [of] productivity and performance, and

any other terms and conditions of employment." Somerville v.

Commonwealth Employment Relations Bd., 470 Mass. 563, 564

(2015). The statute imposes "significant obligations on public

employers with respect to" public employees' collective

bargaining rights, including the employer's obligation to

negotiate those rights in good faith. Board of Higher Educ. v.

Commonwealth Employment Relations Bd., 483 Mass. 310, 311

(2019). However, as our courts have long recognized, there is a

"tension between the statutory right of public employees to

bargain collectively the terms and conditions of their

employment with public employers and the Legislature's intent to

bestow upon those employers nondelegable managerial

responsibilities." Id. at 310. See Chief Justice for Admin. &

Mgt. of the Trial Court v. Commonwealth Employment Relations

Bd., 79 Mass. App. Ct. 374, 380-381 (2011). Although "there is

a strong public policy favoring collective bargaining between

public employers and employees over the conditions and terms of

employment," (quotation and citation omitted), Board of Higher

Educ., supra at 319, when "a negotiation requirement would

unduly impinge on a public employer's freedom to perform its

public functions, G. L. c. 150E, § 6, does not mandate

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bargaining over a decision directly affecting the employment

relationship" (citation omitted), Worcester v. Labor Relations

Comm'n, 438 Mass. 177, 180 (2002).

Rather, the Supreme Judicial Court has determined that

there are "certain types of managerial decisions that must, as a

matter of policy, be reserved to the public employer's

discretion," and may not be bargained away. Worcester, 438

Mass. at 180-182. The inquiry of whether a managerial decision

is exempted from mandatory bargaining is "directed towards

defining the boundary between subjects that by statute, by

tradition, or by common sense must be reserved to the sole

discretion of the public employer so as to preserve the intended

role of the governmental agency and its accountability in the

political process." Id. at 181, quoting Lynn v. Labor Relations

Comm'n, 43 Mass. App. Ct. 172, 178 (1997). In making such

determinations, the Supreme Judicial Court has adopted the

nondelegability doctrine, which limits the reach of G. L.

c. 150E, "in those circumstances where public policy requires

that a public employer reserve certain personnel matters to its

sole discretion in order to preserve accountability to the

public in the performance of the essential functions of

government." Dracut v. Dracut Firefighters Union, IAFF Local

2586, 97 Mass. App. Ct. 374, 379 (2020).

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One such managerial prerogative is that of police chiefs,

or commissioners, to make public safety decisions, which include

making determinations about staff assignments. Such core

determinations are nondelegable and thus not subject to

collective bargaining. See, e.g., Boston v. Boston Police

Superior Officers Fed'n, 466 Mass. 210, 215-216 (2013) (police

commissioner's authority to assign and transfer officers is

nondelegable statutory power); Worcester, 438 Mass. at 182-183

(city has nondelegable authority over "allocation of resources,"

assignment of officers, and law enforcement priorities);

Framingham v. Framingham Police Officers Union, 93 Mass. App.

Ct. 537, 545-546 (2018) (police chief's authority to transfer

and assign officers is "within [his] exclusive purview . . .

pursuant to G. L. c. 41, § 97A, and the doctrine of

nondelegability"); Boston v. Boston Police Superior Officers

Fed'n, 29 Mass. App. Ct. 907, 908 (1990) (police commissioner

not required to bargain over temporary assignments made to meet

"demands of public safety"). In fact, this court has recognized

that "[t]he protection of a public employer's management

prerogative is particularly strong where, as here, the

prerogative concerns policy judgments in the allocation and

deployment of law enforcement resources." Saugus v. Saugus Pub.

Safety Dispatchers Union, 65 Mass. App. Ct. 901, 901-902 (2005).

See Dracut, 97 Mass. App. Ct. at 382 n.12.

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The union argues, however, that § 18's grant of authority

is not beyond the reach of G. L. c. 150E's protection for

collective bargaining because (1) the colonel relinquished his

power to consider "Marathon Monday/Patriot's Day" and

Independence Day as public emergencies, events that cause an

unusual demand for services, or events that create a need in the

public interest, as those terms are used in § 18, by

incorporating the side letter into the CBA, and (2) § 18 is not

sufficiently "specific, clear, forceful, and unambiguous" to

allow for application of the nondelegability doctrine, and thus

should yield to the terms of the CBA. We are not persuaded.

The present case implicates the colonel's authority to

fulfill the department's public safety mandate pursuant to the

State police statute, G. L. c. 22C. As relevant here, the

colonel is, by statute, the "executive and administrative head

of the department and shall have charge of the administration

and organization thereof." G. L. c. 22C, § 3.2 In addition, the

2 Pursuant to G. L. c. 22C, § 3, the colonel is authorized "to organize such divisions, bureaus, sections and units as the colonel deems necessary for the effective management of the department and, when the colonel deems necessary for such purpose, may abolish or consolidate such divisions, bureaus, sections or units. The colonel shall, except as otherwise provided, direct all inspections and investigations. The colonel shall make all necessary rules and regulations for the government of the department, for reports to be made by employees of the department and for the performance of the duties of said employees."

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colonel is authorized to assign to each of the four divisions of

the State police "such uniformed members and other employees

. . . as he may deem necessary to carry out its duties." G. L.

c. 22C, §§ 4-8. In the context of a police chief assigning

certain officers to conduct background investigations, we

concluded that the chief's assignment decision implicated public

safety, rested in the "exclusive managerial prerogative of the

chief," and was not delegable to collective bargaining or

subject to arbitration. New Bedford v. New Bedford Police

Union, 97 Mass. App. Ct. 502, 507 (2020). Thus, the issue of

nondelegability turns on whether § 18 similarly grants the

colonel authority to make managerial decisions that are core to

the colonel's public safety mandate.

Our decision in Andover v. Andover Police Patrolmen's

Union, 45 Mass. App. Ct. 167, 170 (1998), is instructive to our

analysis. In that case, we vacated portions of an arbitration

award after concluding that a police chief's statutory authority

to order mandatory overtime on Independence Day was a core

managerial function and thus nondelegable under G. L. c. 41,

§ 97A.3 Andover, supra. Here, § 18 similarly provides the

3 General Laws c. 41, § 97A, confers on a chief of police "immediate control . . . of the police officers, whom he shall assign to their respective duties and who shall obey his orders."

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colonel with a specific managerial directive -- to mandate that

union members report to duty "in the event of any public

emergency, or of any unusual demand for the services of members

. . . or whenever he deems it in the public interest" -- which

is core to the colonel's statutory authority and implicates

public safety. The nondelegability doctrine requires that the

colonel be able to make such decisions when public safety so

requires without interference from collective bargaining. See

Department of State Police v. Massachusetts Org. of State Eng'rs

& Scientists, 456 Mass. 450, 455, 457, 462 (2010) (colonel's

exclusive and nondelegable authority under G. L. c. 22C, § 9, to

appoint, transfer, and remove civilian experts and other

department assistants would be undermined by arbitration);

Worcester, 438 Mass. at 182 (allocation of resources among

competing enforcement priorities is reserved to sole discretion

of public employer and is not proper subject of bargaining).

We disagree with the union's argument that for § 18 to be

nondelegable, it would have to specify "in no uncertain terms

that the Colonel can force Association members to work on the

Fourth of July." The doctrine of nondelegability does not

require such statutory specificity but instead applies to

statutory grants, including those that are broadly worded,

concerning authority core to the employer's mandate. See

Framingham, 93 Mass. App. Ct. at 542 ("Even in the absence of

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express legislative language, police chiefs are inherently

vested with general managerial authority over employees 'where

matters of public safety are concerned'" [citation omitted]).

In choosing not to enumerate in § 18 every permissible decision

the colonel could make in the "public interest" or in response

to an "unusual demand for services," the Legislature has left

those decisions to the province of the colonel.

Indeed, the statutory grant authorizing the colonel to

assign overtime hours and to prevent employees from taking time

off due to public safety needs or an unusual demand for services

must be reserved to the sole prerogative of the colonel in order

to preserve the colonel's ability to perform his core duties and

maintain accountability in the political process. See Lynn, 43

Mass. App. Ct. at 178. The union's argument that an arbitrator

should be allowed to determine whether the colonel met the

burden of showing that the May 10, 2022, memorandum regarding

staffing for Independence Day was supported by an unusual demand

for services is thus foreclosed by the Legislature's broad and

explicit grant of authority to the colonel as set forth in the

State police statute, G. L. c. 22C, §§ 2, 3, 18.

Moreover, the colonel cannot relinquish authority granted

under § 18 to collective bargaining. Boston Police Superior

Officers Fed'n, 466 Mass. at 216 ("a nondelegable authority may

not be delegated to an arbitrator, even with the parties'

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consent"). Boston v. Boston Police Patrolmen's Ass'n, 41 Mass.

App. Ct. 269, 270 n.3 (1996) ("The fact that the city agreed to

arbitrate the grievance is of no legal consequence if the issue

is beyond the authority of the arbitrator"). Cf. Boston

Firefighters Union, Local 718, Int'l Ass'n of Fire Fighters,

AFL-CIO v. Boston, 491 Mass. 556, 566 (2023) (city "not free to

bargain away certain elements of [its] nondelegable authority

and responsibility to act for the public health, safety, and

welfare, because the public interest . . . impose[s] a necessary

limitation upon the collective bargaining process" [quotations

and citation omitted]).4 Accordingly, the colonel may not be

bound by the side letter because it would compromise the

statutory grant of authority to allow the colonel to assign

officers to meet the demands of public safety.

We further note that "where there is a conflict between a

statute and the parties' collective bargaining agreement, the

collective bargaining agreement shall prevail if the statute is

one that is enumerated [in G. L. c. 150E, § 7 (d)]" (quotation

4 We note that the public interest in allowing the colonel to pursue the State police mandate by enforcing § 18 overrides any equitable considerations arising from the colonel unilaterally revoking the side letter agreement. See Municipal Light Co. of Ashburnham v. Commonwealth, 34 Mass. App. Ct. 162, 167 (1993) ("Generally, the principles of estoppel are not applicable against the government in connection with its exercise of public duties, particularly when the government is acting in the public interest and safety, as its duly constituted officials see that interest").

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and citation omitted). Somerville, 451 Mass. at 496. Contrary

to the union's argument, there is a conflict between the side

letter to the CBA and § 18 because the former compromises the

colonel's "freedom to perform [his] public functions" (citation

omitted). Worcester, 438 Mass. at 180. Where, as here, a

statute, not enumerated in G. L. c. 150E, § 7 (d), authorizes a

public employer to perform specific functions, the public

employer's explicit statutory authority to perform its functions

cannot be undermined by the terms of a CBA or subject to

arbitration. See Andover, 45 Mass. App. Ct. at 170 ("nothing in

§ 7 [d] purports to displace the general authority vested in a

police chief by § 97A to order his officers to a mandatory

overtime deployment when, in his judgment, the public safety so

requires").

2. Permanent stay of arbitration. The union argues that

the judge's permanent stay of arbitration was premature because

the claim sought to be arbitrated states a controversy covered

by the CBA. For the reasons articulated above, we disagree. As

relevant here, a judge may stay an arbitration proceeding after

finding "that the claim sought to be arbitrated does not state a

controversy covered by the provision for arbitration and

disputes concerning the interpretation or application of the

arbitration provision are not themselves made subject to

arbitration." G. L. c. 150C, § 2 (b). See Department of State

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Police, 456 Mass. at 455. Although the side letter incorporates

an agreement to arbitrate, "[a]n agreement to arbitrate a

dispute which lawfully cannot be the subject of arbitration [is]

equivalent to the absence of a controversy covered by the

provision for arbitration." Massachusetts Coalition of Police,

Local 165, AFL-CIO v. Northborough, 416 Mass. 252, 256 (1993),

quoting Dennis-Yarmouth Regional Sch. Comm. v. Dennis Teachers

Ass'n, 372 Mass. 116, 119 (1977). See Framingham, 93 Mass. App.

Ct. at 544, citing Massachusetts Coalition of Police, Local 165,

AFL-CIO, supra at 255 ("even if the CBA provided otherwise, it

could not abrogate the police chief's authority to transfer,

assign, and deploy officers according to the police chief's

discretion").

We thus conclude that because the colonel's authority to

order department members to work additional hours on

Independence Day could not legally be the subject of

arbitration, the judge did not err in staying arbitration of the

union's grievance.

Conclusion. The judgment allowing the department's motion

and permanently staying arbitration is affirmed.

So ordered.