Dracut v. Dracut Firefighters Union, IAFF Local 2586

NOTICE: All slip opinions and orders are subject to formal

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19-P-14 Appeals Court

TOWN OF DRACUT vs. DRACUT FIREFIGHTERS UNION, IAFF LOCAL 2586.

No. 19-P-14.

Middlesex. November 7, 2019. - May 1, 2020.

Present: Agnes, Sullivan, & Blake, JJ.

Arbitration, Collective bargaining, Authority of arbitrator,

Fire fighters, Judicial review. Contract, Collective

bargaining contract, Arbitration. Labor, Arbitration,

Collective bargaining, Fire fighters. Municipal

Corporations, Collective bargaining, Fire department.

Public Employment, Collective bargaining. Fire Fighter.

Civil action commenced in the Superior Court Department on

February 6, 2017.

The was heard by Joshua I. Wall, J., on a motion for

judgment on the pleadings.

Joseph G. Donnellan for the defendant.

Stanley L. Weinberg for the plaintiff.

SULLIVAN, J. The Dracut Firefighter's Union, IAFF Local

2586 (union), appeals from a judgment entered in the Superior

Court vacating an arbitration award in favor of the town of

Dracut (town). The award arose from a grievance filed after the

2

chief of the Dracut Fire Department (fire department)

implemented a new policy preventing on-duty firefighters

assigned to the east and west fire stations from attending union

meetings at the central fire station. The arbitrator found that

the chief's decision to impose a ban on travel by on-duty

firefighters to union meetings at the central fire station from

the east and west stations violated the parties' collective

bargaining agreement (CBA). The Superior Court judge vacated

the arbitration award on the ground that it exceeded the

arbitrator's authority by infringing on the nondelegable

authority of the chief. See G. L. c. 48, § 42; G. L. c. 150C,

§ 11 (a) (3). We reverse.

Background. We summarize the facts found by the

arbitrator, which are binding on a reviewing court. See

Pittsfield v. Local 447 Int'l Bhd. of Police Officers, 480 Mass.

634, 637-638 (2018); School Comm. of Lexington v. Zagaeski, 469

Mass. 104, 105 n.3 (2014).1

The fire department is staffed twenty-four hours per day,

seven days a week. The union holds meetings on a monthly basis.

By necessity, these meetings are scheduled during a shift.

Prior to 1986, union meetings were held off-site, at bars or

1 The arbitrator summarized the witnesses' testimony in

these matters, and credited all of it. Where, as here, there

are no facts in dispute, we understand these to be the

arbitrator's findings.

3

restaurants. In 1986, the parties agreed that, in order to

ensure attendance at union meetings by members and union

officers assigned to work the shift when the meeting took place,

the union would be permitted to hold its meetings at the central

station, where the fire department's headquarters is located.

This agreement was memorialized in the parties' CBA, Article 20,

§ 2, which stated that "any meeting either special or regular

monthly meeting of [the union] will be allowed to be held at the

central station (Sta. 1). Scheduled (unless waived) at least

three days in advance with the Chief."

When the parties agreed to this language in 1986, the fire

department had two stations: the central station and the west

station. In 2000, the fire department opened a third station,

the east station. Article 20, § 2, remained in the parties'

successor CBAs, apparently unchanged, from 1986 through the

2015-2018 CBA.

From the time the parties agreed to Article 20, § 2, in

1986, until April 6, 2016, the practice of permitting

firefighters at the outlying stations (i.e., the west station

and the east station) to attend union meetings at central

station was consistent. Depending on the shift, each outlying

station had a single crew of two or three firefighters on duty.

Before leaving for the central station, these crews would call

the central station and report to the officer in charge that

4

they were ready to leave for the union meeting. The officer in

charge would then inform them if they needed to stay at their

assigned station due to "inclement weather or other public

safety considerations." If no such circumstances existed, each

crew drove the full complement of equipment to which it was

assigned to the central station for the duration of the meeting.

If any calls for service came in during the union meeting, crews

deployed from the central station. The same procedure was used

by crews at the outlying stations when they left their stations

to go to the central station for other activities, such as

inspections, memorial services, public relations activities,

training, drills, and for refueling. The chief's ban applied

only to union meetings, not the other activities.

On April 6, 2016, the chief informed the union that he

would no longer permit on-duty firefighters from the outlying

stations to attend union meetings at the central station. He

told the union's executive board that he was concerned about

potential delays in response times if crews departed from the

central station rather than from the outlying stations.

Specifically, he stated he was concerned about meeting the fire

department's goal of reducing response times to six minutes or

less, a goal which the fire department was meeting only 45.8% of

5

the time.2 The chief further suggested that the fire department

could work with the union to use videoconferencing technology to

permit firefighters from the outlying stations to participate in

meetings remotely.3 The chief did not apply this new rule to

inspections, memorial services, public relations activities,

training, drills, refueling, or like activities at the central

station.

The union filed a grievance alleging that the chief's new

policy violated Article 20, § 2, and the parties' past practice.

The union prevailed at arbitration and the town filed a

complaint in Superior Court to vacate the arbitration award. A

judge of the Superior Court concluded that the award intruded

upon the nondelegable authority of the chief to manage the fire

2 The chief cited a report prepared by an outside consultant

on fire department response times between January, 2015 and

October, 2015. During that period, the average response time

was 6.15 minutes, and 54.2% of responses came in over six

minutes. The report did not disaggregate response times from

individual stations or note whether any delay had been caused by

the circumstances at issue here, that is, where crews from

outlying stations responded from the central station.

3 The record does not contain the Local 2586's constitution

or by-laws, which would govern whether personal attendance at

union meetings was required at the time this case arose. We

recognize that since this case was argued, a global pandemic has

altered the manner in which many segments of society do

business. Whether union meetings may be conducted by video

conference is a matter of internal union governance, however, a

matter over which the town has no direct authority. See G. L. c.

150E, § 10 (a) (2) (prohibiting employer domination,

interference, or assistance "in the formation, existence or

administration of any employee organization").

6

department, particularly with respect to matters of public

safety. This appeal followed.

Discussion. This case calls upon us to balance numerous

competing policies. The fire department performs an important

public safety function, and response time is a matter of public

safety. By the same token, the Legislature has declared a

public policy in favor of self-organization and collective

bargaining. We conclude, under the unique facts of this case,

that the public safety interest expressed by this particular

policy is not so heavy as to warrant vacating the award on

either nondelegability or public safety grounds.

Because the public policy of the Commonwealth strongly

encourages both collective bargaining and arbitration, see G. L.

c. 150E, § 6; School Comm. of Pittsfield v. United Educators of

Pittsfield, 438 Mass. 753, 758 (2003), a court may "vacate

arbitration awards only in rare, statutorily enumerated

circumstances." Pittsfield, 480 Mass. at 637. See G. L.

c. 150C, § 11. Among those circumstances are those in which

"[a]n arbitrator . . . intrudes upon decisions . . . left by

statute to the exclusive managerial control of designated public

officials." Boston v. Boston Police Patrolmen's Ass'n, 477

Mass. 434, 440 (2017), quoting Massachusetts Bd. of Higher

Educ./Holyoke Community College v. Massachusetts Teachers

7

Ass'n/Mass. Community College Council/Nat'l Educ. Ass'n, 79

Mass. App. Ct. 27, 32 (2011).4

The judge concluded that the arbitration award was not

entitled to deference because it ran afoul of G. L. c. 48, § 42,

which sets forth a fire chief's authority over the fire

department. The judge determined that the arbitrator exceeded

his authority by usurping the chief's nondelegable authority to

manage the workforce, and make decisions pertinent to matters of

public safety.5 He concluded that this dispute was one which the

4 We review the decision of the Superior Court judge de

novo. Pittsfield, 480 Mass. at 637.

5 In the course of his decision, the judge stated that the

arbitrator had "order[ed] the [t]own periodically to close two

of its fire substations so that firefighters stationed there

[could] attend union meetings." The arbitrator took care to

find that the CBA did not contain a per se rule, and that under

the parties' binding past practice, the chief retained the

authority to order firefighters to remain at the east or west

station in the event that public safety so required. Where, as

here, the parties have elected to resolve disputes through a

binding grievance and arbitration procedure, a reviewing court

may not engage in fact finding, and must be "considerably more

deferential [to an arbitrator's award] than even the abuse of

discretion or clear error standards applied to lower court

decisions." Pittsfield, 480 Mass. at 638. A reviewing court

does not review for actual or perceived errors of fact or law;

the arbitrator's findings and rulings are binding in the absence

of narrowly enumerated instances of fraud, corruption, certain

procedural irregularities, an award that exceeds the

arbitrator's powers, or a violation of a well-defined and

articulated public policy. See id. at 638-639; Boston v. Boston

Police Patrolmen's Ass'n, 443 Mass. 813, 818 (2005); School

Dist. of Beverly v. Geller, 50 Mass. App. Ct. 290, 293 (2000).

8

parties could not lawfully agree to collectively bargain or

arbitrate.

1. Nondelegability. The nondelegability doctrine has

evolved over time, and it is helpful to revisit its derivation

and its current application in order to determine its proper

contours in the case before us. Statutes such as G. L. c. 41,

§ 97A, and G. L. c. 48, § 42, defining the authority of police

and fire chiefs, respectively, were adopted long before

collective bargaining became a reality for all cities and towns

in 1974.6 With the enactment of G. L. c. 150E, collective

bargaining imposed new obligations on public sector employers,

and public policy questions born of the tensions between G. L.

c. 150E and other statutes defining the authority of public

officials ensued.7 This tension was particularly acute in the

context of public safety, most notably policing. See

Massachusetts Coalition of Police, Local 165, AFL-CIO v.

Northborough, 416 Mass. 252, 255 (1993).

6 See St. 1920, c. 591, § 27 (town fire chiefs); St. 1948,

cc. 540, 595 (town police chiefs); St. 1973, c. 1078, § 7,

effective July 1, 1974 (public sector collective bargaining).

7 We have focused on police and fire department statutes in

this opinion, but the doctrine has been considered in a number

of contexts. See generally Board of Higher Education v.

Commonwealth Labor Relations Bd., 483 Mass. 310 (2019) (citing

cases).

9

The Supreme Judicial Court addressed one aspect of these

tensions by adopting the nondelegability doctrine.

"Pursuant to G. L. c. 150E, § 6, public employers must

'negotiate in good faith with respect to wages, hours,

standards or productivity and performance, and any other

terms and conditions of employment.' However, from that

expansively defined category of mandatory bargaining

subjects, we have exempted certain types of managerial

decisions that must, as a matter of policy, be reserved to

the public employer's discretion. '[I]n instances where 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 bargaining over a decision

directly affecting the employment relationship.' Local

346, Int'l Bhd. of Police Officers v. Labor Relations

Comm'n, 391 Mass. 429, 437 (1984). See Boston v. Boston

Police Patrolmen's Ass'n, 403 Mass. 680, 684 (1989);

Burlington v. Labor Relations Comm'n, 390 Mass. 157, 164

(1983); Lynn v. Labor Relations Comm'n, 43 Mass. App. Ct.

172, 178–179 (1997). '[T]he inquiry has been 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 178.

'[T]he crucial factor in determining whether a given issue

is a mandatory subject of bargaining is whether resolution

of the issue at the bargaining table is deemed to conflict

with perceived requirements of public policy.' Greenbaum,

The Scope of Mandatory Bargaining Under Massachusetts

Public Sector Labor Relations Law, 72 Mass. L. Rev. 102,

103 (1987)."

Worcester v. Labor Relations Comm'n, 438 Mass. 177, 180–181

(2002). In sum, the nondelegability doctrine is a judicially

created doctrine limiting the reach of G. L. c. 150E, §§ 6-7, in

those circumstances where public policy requires that a public

employer reserve certain personnel matters to its sole

10

discretion in order to preserve accountability to the public in

the performance of the essential functions of government.

The application of the nondelegability doctrine has most

recently been addressed in Board of Higher Educ. v. Commonwealth

Employment Relations Bd., 483 Mass. 310 (2019), in which the

Supreme Judicial Court explained and synthesized the development

of the nondelegability doctrine over the last several decades.8

That case teaches that we must balance two competing interests.

These interests are the "principle of nondelegability[, which

extends] only so far as is necessary to preserve the [pubic

employer's] discretion to carry out its statutory mandates"

(citation omitted), id. at 319, and the public policy favoring

collective bargaining. See G. L. c. 150E, § 6.

"The scope of a governmental employer's nondelegable

authority depends on 'the explicitness of the statutory

authorization under which [that] employer acts.'" Board of

Higher Educ., quoting Lynn, 43 Mass. App. Ct. at 182. "Where

. . . the employer acts 'under the authority of a statute or law

authorizing the employer to perform a specific, narrow function

or, alternatively, acts with reference to a statute specific in

8 The motion judge did not have the benefit of Board of

Higher Educ., 483 Mass. 310, at the time he rendered his

decision.

11

purpose that would be undermined if the employer's freedom of

action were compromised by the collective bargaining process,'

we will not enforce a conflicting provision in a collective

bargaining agreement." Id. at 320, quoting Lynn, supra at 180.9

In contrast, broad "'general grants of authority . . .' must

yield to the obligation to engage in collective bargaining"

where the ingredient of public policy is not so weighty. Id. at

319, quoting School Comm. of Newton v. Labor Relations Comm'n,

388 Mass. 557, 565-566 (1983).

Like the statute in Board of Higher Educ., 483 Mass. at

320-321, G. L. c. 48, § 42, gives the fire chief authority over

his or her fire department in "broad [and] general" terms. The

fire chief "shall have charge of extinguishing fires in the town

and the protection of life and property in case of fire," has

the power to purchase and repair property and apparatus used by

the fire department subject to the approval of the select board,

shall have the powers and duties of an engineer, the authority

to appoint deputy chiefs, officers, and firefighters, and "may

remove the same at any time for cause and after a hearing."

G. L. c. 48, § 42. In addition the chief has "full and

9 One such statute is G. L. c. 32, § 16 (1) (a), which

grants fire chiefs the narrow and specific nondelegable

statutory authority to seek involuntary retirement of members of

the fire department for superannuation, disability, or

accidental disability. See Lynn, 43 Mass. App. Ct. at 184.

12

absolute authority in the administration of the department,

shall make all rules and regulations for its operation, [and]

. . . shall fix the compensation of the permanent and call

members of the fire department subject to the approval of the

selectmen." Id.

Where, as here, there is a broad grant of authority, "the

scope of exclusive management powers has been worked out 'on a

case by case basis.'" Board of Higher Educ., 483 Mass. at 319,

quoting Lynn, 43 Mass. App. Ct. at 177. "The list of factors so

fundamental to the effective operation of an enterprise as to be

exempt from mandatory bargaining requirements will of necessity

vary with the nature of the employer." Worcester, 438 Mass. at

181, quoting Local 346, Int'l Bd. of Police Officers, 391 Mass.

at 438. "[W]e ask 'whether the ingredient of public policy in

the issue subject to dispute is so comparatively heavy that

collective bargaining, and even voluntary arbitration, on the

subject is, as a matter of law, to be denied effect.'" Board of

Higher Educ., supra, quoting Lynn, supra at 178. See Burlington

v. Labor Relations Comm'n, 390 Mass. 157, 164 (1983).

In conducting a case by case analysis, we have been

particularly sensitive to issues of public safety. See notes

10-14, infra. A policy that impacted response times in a fire

department could raise an important public safety issue. But as

presented in this case, the town has not demonstrated the

13

existence of a public policy of sufficient weight, or a core

managerial function of sufficient gravity, to warrant denying

effect to collective bargaining. The town permits on-duty

firefighters to leave the east and west fire stations to attend

events at the central fire stations for a variety of events

sanctioned by the chief. The chief's policy is directed solely

to attendance at union meetings.10 A policy this selective is

not "fundamental to the effective operation of an enterprise."

Worcester, 438 Mass. at 181, quoting Local 346, Int'l Bhd. of

Police Officers, 391 Mass. at 438. Nor does a policy this

idiosyncratic contain the ingredient of public policy so heavy

as to warrant overriding the right to self-organization

guaranteed under G. L. c. 150E, as discussed infra.

The town maintains, however, that the public safety

function of the fire department is simply too critical to allow

anything other than unfettered decision-making by the fire chief

regarding the deployment of personnel. The town relies on a

number of cases involving the nondelegable authority of police

chiefs. Leaving to one side whether the contours of the

10The union asked the arbitrator to decide not only whether

the chief's decision violated Article 20, § 2, of the CBA, but

to also find that the new policy discriminated on the basis of

union activity in violation of a separate provision of the CBA.

Having found that the policy violated Article 20 of the CBA, the

arbitrator did not reach the second issue.

14

nondelegability doctrine apply in the same manner to fire

departments as police departments,11 this is not a case about the

fire chief's authority to assign12 or transfer13 personnel, to

require mandatory overtime,14 or to make other decisions deemed

11See Worcester, 438 Mass. at 180-181; Chief of Police of

Dracut v. Dracut, 357 Mass. 492, 502 (1970) ("What we have said

above may not necessarily apply to agreements covering employees

of other municipal departments").

12See Worcester, 438 Mass. at 183 (city not obligated to

bargain over assignment of police officers to enforce truancy

laws); Boston v. Boston Police Patrolmen's Ass'n, 403 Mass. at

684 (noting police commissioner's nondelegable authority to

assign one officer rather than two to marked patrol vehicle);

Burlington, 390 Mass. at 164 (exclusive managerial prerogative

to assign prosecutorial duties); Chief of Police of Dracut, 357

Mass. at 500-502 (police chief's statutory authority to assign

officers); Framingham v. Framingham Police Officers Union, 93

Mass. App. Ct. 537, 542-544 (2018) (transfer and reassignment of

police officers within exclusive managerial authority of police

chief); Boston v. Boston Police Superior Officers Fed'n, 52

Mass. App. Ct. 296, 300-301 (2001) (police commissioner not

required to bargain over temporary assignments to Boston police

department communications center); Taunton v. Taunton Branch of

the Mass. Police Ass'n, 10 Mass. App. Ct. 237, 243 (1980)

(police chief's statutory authority to assign officers to

particular duties as matter of public safety); Boston v. Boston

Police Superior Officers Fed'n, 9 Mass. App. Ct. 898, 899 (1980)

(police commissioner's nondelegable authority to make temporary

assignment).

13See Boston v. Boston Police Superior Officers Fed'n, 466

Mass. 210, 214-215 (2013) (police commissioner's nondelegable

authority to transfer officers between precincts); Framingham,

93 Mass. App. Ct. at 542-544.

14See Saugus v. Saugus Pub. Safety Dispatchers Union, 65

Mass. App. Ct. 901, 901-902 (2005) (police chief's exclusive

managerial prerogative to assign overtime shifts); Andover v.

Andover Police Patrolmen's Union, 45 Mass. App. Ct. 167, 169-170

(1998) (police chief's authority to assign mandatory overtime);

15

essential to the effective operation of a public safety

department.15 This is a case about whether union officers and

members may attend union meetings, and is therefore more akin to

Local 2071, Int'l Ass'n of Firefighters v. Bellingham, 67 Mass

App. Ct. 502 (2006), S.C., 450 Mass. 1011 (2007) ("judgment must

be affirmed, for the same reasons articulated by the Appeals

Court"). There the town moved to vacate an interest arbitration

award ordering the adoption of twenty-four hour shifts. The

town had argued that public safety would be threatened by

twenty-four hour shifts, because responding firefighters could

be sleep deprived. After reviewing the public safety arguments,

Boston v. Boston Police Patrolmen's Ass'n, 41 Mass. App. Ct.

269, 272 (1996) (police commissioner's exclusive "zone of

managerial authority" to assign mandatory overtime).

15See Massachusetts Coalition of Police, Local 165, AFL-

CIO, 416 Mass. at 257 (reappointment of police officer is

nondelegable managerial prerogative); Broderick v. Police Comm'r

of Boston, 368 Mass. 33, 41 (1975), cert. denied, 423 U.S. 1048

(1976) (police commissioner has authority to question officers

regarding some aspects of private conduct); Boston Police

Patrolmen's Ass'n v. Boston, 367 Mass. 368, 371-372 (1975)

(police commissioner has nondelegable authority to require

officers seeking elective office to take leave of absence

without pay during campaign); Selectmen of Ayer v. Sullivan, 29

Mass. App. Ct. 931, 932 (1990) (reappointment of police officer

nondelegable); Boston v. Boston Police Superior Officers Fed'n,

29 Mass. App. Ct. 907, 908 (1990) (staffing levels, assignments,

uniforms, weapons, and definition of duties are nondelegable);

Boston v. Boston Police Patrolmen's Ass'n, 8 Mass. App. Ct. 220,

226-227 (1979) (police commissioner could not bargain away

authority to control weapons).

16

this court confirmed the interest arbitration award, holding

that shift hours were a "core" subject of collective

bargaining,16 and that "[t]o reserve to the sole discretion of

management a core subject of collective bargaining . . . on

public safety policy grounds requires a clearer showing that

public safety is being affected by the . . . proposal." Id. at

512.17 Similarly, the ability of union officers and members to

attend union meetings is at the core of the right to self-

representation. See G. L. c. 150E, §§ 2, 10 (a) (1)-(2).18 And

like Local 2071, Int'l Ass'n of Firefighters, a clearer showing

of a threat to public safety than the one made here is required

to impinge upon such a statutorily protected right. Were we to

16See Boston v. Boston Police Patrolmen's Ass'n, 477 Mass.

at 440-442 (police commissioner's agreement to arbitrate

discipline by negotiating "just cause" provision does not

intrude on commissioner's nondelegable authority).

17Although not at issue here, we note that the "means of

implementing managerial decisions . . . may be the subject of an

enforceable provision in a collective bargaining agreement" even

if the underlying decision is reserved to management. Boston v.

Boston Police Superior Officers Fed'n, 29 Mass. App. Ct. at 908,

citing School Comm. of Newton v. Labor Relations Comm'n, 388

Mass. 557, 563-564 & n.5 (1983). See generally Board of Higher

Educ., 483 Mass. at 321-322.

18 The Department of Labor Relations has concluded that "the

subject of on-duty officers' attendance at union meetings is

clearly [a] mandatory" subject of bargaining, where stations are

staffed on a twenty-four hour, seven days a week basis. Taunton

v. Taunton Branch, Mass. Police Ass'n, 7 M.L.C. 2133, 2136

(1981).

17

accept, on the record presented, that G. L. c. 48, § 42, imbues

the chief with nondelegable authority to preclude on-duty

firefighters working in fire stations staffed around the clock,

seven days a week, from attending union meetings, "we would be

hard-pressed to discern any limiting principle" to the chief's

nondelegable authority. Board of Higher Educ., 483 Mass. at

321.

2. Public safety. The town also contends that even if

collective bargaining over attendance at union meetings might be

permitted, the award violates an important public policy because

public safety would be endangered by a delay in response times.

This argument is overbroad. As the court noted in Local 2071,

Int'l Ass'n of Firefighters, 67 Mass. App. Ct. at 513-514, there

must be a clear showing that public safety will be affected.

That showing was not made in this arbitration. The new policy

does not prohibit on duty firefighters at the east and west

stations from attending inspections, memorial services, public

relations activities, training, drills, refueling, or like

activities at the central fire station. The recitation of facts

in the arbitrator's decision contained no basis for concluding

that there was a correlation between response times and

18

attending events at the central fire station.19 See id.

Additionally, under the arbitrator's award, the chief retains

his or her historical "discretion to decide based on

circumstances, on a given day, that firefighters should not

leave an outlying station to attend a [u]nion meeting." This

discretion, which the arbitrator found had previously been

exercised to keep all three stations fully staffed in instances

of "inclement weather or other public safety considerations,"

remains available to the chief or the officer in charge.

Conclusion. The fire department policy barring on-duty

union members and officers from attending union meetings at the

central fire station is not shielded from arbitrable review by

the nondelegability doctrine. The arbitrator found that the new

policy conflicted with the terms of the CBA. Resolution of

conflicts between a CBA and "the regulations of a fire chief or

other head of a fire department pursuant to chapter forty–eight"

is governed by G. L. c. 150E, § 7 (d). Where, as here, a

dispute involves mandatory subjects of bargaining under G. L.

c. 150E, § 6, "the terms of the collective bargaining agreement

shall prevail." G. L. c. 150E, § 7 (d). For the reasons

19The arbitrator's decision stated: "[The fire chief]

stated that when he compiled his reports on response times he

did not break it down by response times for each station, nor

did he know the times when a crew from [the east or west

station] was at Central Station when a call for service came

from one of the outlying stations."

19

provided, we reverse the judgment of the Superior Court. A new

judgment shall enter confirming the arbitrator's award.

So ordered.