Town of Chatham v. Chatham Sergeants and Patrol Officers Union, M.C.O.P., Local 294. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-448
TOWN OF CHATHAM
vs.
CHATHAM SERGEANTS AND PATROL OFFICERS UNION, M.C.O.P., LOCAL
294.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, town of Chatham (town), appeals from the
denial of its motion to vacate an arbitration award and from the
allowance of the cross motion by the defendant, Chatham
Sergeants & Patrol Officers Union, M.C.O.P., Local 294 (union),
to affirm that same award. In 2016, the town, the union, and
Andrew Hutton, a Chatham police officer, entered into a
"settlement and last chance agreement" (settlement agreement)
and a last chance agreement (LCA) that was incorporated therein.
In essence, the two agreements operated to give Hutton a last
chance to avoid termination in exchange for relinquishing
certain rights. Among other things, Hutton agreed that, were he
to be terminated for violating the LCA, he and the union
relinquished the right to grieve under the collective bargaining
agreement (CBA) "except on the issue of whether . . . Hutton
engaged in conduct identified herein or in the Last Chance
Agreement." Hutton and the union also agreed to release the
town from various claims, including claims under the CBA. In
addition, the settlement agreement contained an integration
clause providing that the agreement could not be "modified,
amended, or otherwise affected except by a writing signed by all
parties hereto."
After investigating a citizen complaint about Hutton's
conduct on May 14, 2019, the town determined that Hutton had
violated the LCA and notified him of his termination. The union
grieved the termination, and the matter was heard by an
arbitrator who concluded that Hutton's conduct did not rise to
the level of a violation of the LCA. The arbitrator then
proceeded to consider whether Hutton's conduct warranted his
discharge under the "just cause" standard contained in the CBA.
The arbitrator concluded that termination was not warranted
under the just cause standard and imposed a one-week
disciplinary suspension instead.
The central issue in this appeal is whether the arbitrator
exceeded the scope of his authority. Because the arbitrator
went beyond the scope of arbitration to which the parties agreed
in the settlement agreement and the LCA, we vacate the judgment
entered in the Superior Court confirming the award in its
2
entirety pursuant to G. L. c. 150C, § 11 (d), and for the
reasons explained below, we order that a new judgment be entered
confirming the award in part.
Background. Hutton was rehired as a Chatham police officer
in 2007. 1 Thereafter, Hutton received several disciplinary
suspensions, warnings, and written reprimands, as well as
rehabilitative counseling to improve his performance. In
October 2016, the department contemplated terminating Hutton for
alleged violations of various Chatham police department
(department) rules and regulations (rules and regulations). In
lieu of termination, however, on October 11, 2016, the town,
Hutton, and the union, entered into the settlement agreement and
the LCA, under which Hutton agreed to a variety of things,
including a twelve-day disciplinary suspension. In addition,
the settlement agreement contained the following provisions:
"Last Chance: [Hutton] acknowledges that this is his
last chance and agrees not to engage in any misconduct
or conduct identified outlined [sic] in the 'Last
Chance Agreement.' A 'Last Chance Agreement' is
attached hereto and incorporated by reference
herein. . . . Hutton agrees that if he violates any
part of this Agreement, the Town shall have the right
to terminate his employment forthwith. Such
termination by the Town shall not be grievable or
arbitrable under the parties' collective bargaining
agreement except on the issue of whether or not
[Hutton] engaged in conduct identified herein or in
the Last Chance Agreement."
1 Hutton had previously been a member of the department from 2001
to 2003.
3
The LCA, which was incorporated by reference into the settlement
agreement, repeated Hutton's and the union's acknowledgement
that "this [wa]s [Hutton's] last chance" and specified that the
town was entitled to terminate Hutton should he violate any of
six specific provisions of the department's rules and
regulations. Those six provisions are set out in the margin. 2
2
"1. Rule 5.01 -- Neglect of Duty: 'Officers shall not
fail to perform, as directed, all lawful duties required by
constituted authority, notwithstanding the officer's normal
assignment of duties and responsibilities.'
"2. Rule 5.02 (c) -- Incompetence: 'No Officer shall fail
to maintain sufficient competency to perform his duties and
to assume the responsibilities of his position.
Incompetence may be demonstrated by, but not limited to,
the following[:] . . . the failure to conform to work
standards established for the officer's rank[,] grade, or
position.'
"3. Rule 6.9 -- Truthfulness: 'Officers shall speak the
truth at all times.'
"4. Rule 7.01 -- Insubordination: 'Officers shall not be
insubordinate. Insubordination shall include: any failure
or deliberate refusal to obey a lawful order (written or
oral) given by a Superior Officer.'
"5. Rule 9.17 -- Reports: 'Officers shall promptly and
accurately complete all reports and forms required by the
Department. Before leaving the station house at the end of
his tour, [an] officer shall complete all reports and forms
which pertain to events occurring during the concluded
tour.'
"6. Rule 12.2 -- Falsifying Records: 'Officers shall not
knowingly or willingly enter or cause to be entered upon a
police report or police record any inaccurate, false or
improper information.'"
4
The LCA further provided that, should Hutton violate any of
those six provisions:
"Hutton and the [u]nion agree that the [t]own shall
have the right to terminate his employment forthwith.
Such termination by the [t]own shall not be grievable
or arbitrable under the parties' collective bargaining
agreement expect on the issue of whether or not
[Hutton] engaged in conduct identified herein."
The LCA was to remain in effect for five years after its
execution, after which it would expire of its own terms.
In addition to the terms and provisions we have set out
above, the settlement agreement contained a release from Hutton
running to the town and also an integration clause. As to the
former, Hutton released the town
"from any and all claims, known or unknown, arising
out of or related to the issuance of the suspension
and the Last Chance Agreement. [Hutton's] release of
claims includes, but is not limited to[,] . . . claims
under any collective bargaining agreement. [Hutton]
agrees that he will not file or participate in any
grievance under the collective bargaining agreement
based on the [t]own's enforcement of this Agreement or
the Last Chance Agreement."
The settlement agreement's integration clause provided that the
document contained the parties' entire agreement, superseding
any prior agreements or understandings. Importantly, it also
provided that the settlement agreement "may not be modified,
amended, or otherwise affected except by a writing signed by all
parties hereto."
5
On May 14, 2019 -- while the LCA was still in effect --
Hutton, who was on traffic duty, had an interaction with a
Chatham resident (resident or citizen) that prompted her to
write a letter of complaint to the department. After receiving
the citizen's letter and sending a sergeant to speak with her,
the department began an internal investigation into the
incident. As part of that investigation, Hutton submitted a
written statement containing his perception of the interaction.
Hutton's version of events largely confirmed the contours of the
citizen's account, although it differed in some respects. The
department determined that Hutton violated several department
rules, including three that were specified in the LCA. The
deputy chief in charge of the investigation recommended that
Hutton's employment be terminated "based on [Hutton's]
interaction with [the resident] that occurred on May 14, 2019,
his prior discipline, and the [LCA]."
The chief of police agreed with that recommendation, and
Hutton was notified of his termination by way of a letter dated
July 22, 2019 (termination letter). The termination letter (1)
set out the terms of the LCA, (2) recounted Hutton's history of
violating department rules and regulations, (3) detailed the May
14, 2019, incident, (4) identified the rules and the directive
of the department's strategic operating plan that were violated
by Hutton during that incident, (5) set out the history of
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remedial counseling and training Hutton had received over the
years, and (6) concluded:
"You have approximately 14 years of experience and
training as a Chatham Police officer. That is a
significant amount of time for you to develop a good
understanding of our community, an understanding of
the Department's standards and expectations, and
plenty of experience to be able to perform a simple
duty of being able to assist a citizen with getting to
her home. Yet, these basic tasks and duties continue
to be problematic for you to perform and have led to
citizens being upset, poorly serviced and shining a
negative light on both the Chatham Police Department
and the Town. It has reached the point where it
appears that no additional counseling, disciplinary
suspensions, trainings[,] or re-trainings would be
useful or productive for you as an employee.
Therefore, based on the entirety of your disciplinary
record, plus your opportunities that the department
has given you to make corrections, as well as the
'Last Chance Agreement,' you are terminated from your
employment as a Town of Chatham Police Officer
effective immediately." 3
Of significance, the termination letter did not refer to, nor
did it invoke, any provision of the CBA between the town and the
union. Nor did it state that Hutton was being terminated for
"just cause," pursuant to Article VII, § 4 of the CBA.
The union grieved Hutton's termination and demanded
arbitration on the ground that the town terminated Hutton
without just cause, in violation of the CBA, "and,
alternatively, in violation of his last chance agreement." The
3 We obtained a copy of the termination letter from the trial
court since neither party included it in the appellate record.
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parties presented their case to the arbitrator on August 11,
2020, and submitted written briefs thereafter. 4
The arbitrator issued a detailed written decision in which,
among other things, he found that the town and the union had
differing views on the scope of arbitration. The arbitrator
found that the town's position as to the scope of arbitration
was:
"Did [Hutton] engage in conduct in violation of his
Last Chance Agreement, by violating any of the Chatham
Police Department Rules and Regulations, Rule 5[.]01,
Neglect of Duty; or of Rule 5.02(c), Incompetence,
during his encounter with [the citizen] on May 14,
2019."
By contrast, the arbitrator found that the union's position as
to the scope of arbitration was:
"1. Whether [Hutton] violated the terms of the Last
Chance Agreement?
2. If not, was there just cause for the discharge of
the grievant?
3. If the grievance is sustained, what shall be the
remedy?"
The arbitrator's findings as to the parties' positions regarding
the scope of arbitration are binding on us. See Pittsfield v.
Local 447 Int'l Bhd. of Police Officers, 487 Mass. 634, 637-638
(2018).
The arbitrator found that "[t]he Chief based his discharge
of [Hutton] on the terms of the Last Chance Agreement, as well
4 The briefs are not dated, but they have been presented to us as
"post hearing" briefs.
8
as [Hutton's] past discipline." This finding too is binding on
us. See Pittsfield, 487 Mass. at 637-638. Consistent with his
findings, the arbitrator concluded that the question before him
was whether "Hutton violated the terms of the [LCA], and if he
did not, then whether the incident of May 14, 2019, along with
[Hutton's] past discipline[,] warranted his discharge." The
arbitrator concluded that Hutton's conduct on May 14 did not
rise to the level of a violation of the LCA.
Despite his findings regarding the parties' positions as to
the scope of arbitration and the bases for the chief's decision
to terminate Hutton, the arbitrator nonetheless then proceeded
to examine whether there was "just cause" for Hutton's
termination under the CBA, and concluded that there was not. 5
The record does not show that the arbitrator considered the
relevant provisions of the settlement agreement and the LCA
concerning the agreed scope of arbitration before proceeding
with his "just cause" analysis.
The town then filed suit, pursuant to G. L. c. 150C, § 11
(a) (3), in the Superior Court, seeking to vacate the
arbitrator's decision as beyond the scope of his authority as
provided in the settlement agreement and LCA. On the town's
motion to vacate the arbitrator's decision and the union's cross
5 The arbitrator concluded that Hutton's conduct merited only a
one-week suspension.
9
motion to affirm it, the judge acknowledged that the town had
consistently framed the issue for the arbitrator as whether
Hutton "engag[ed] in conduct in violation of his Last Chance
Agreement." Nonetheless, the judge concluded that "[h]aving
found [Hutton's] conduct did not violate the LCA, it was within
the [a]rbitrator's authority to determine that discharge was not
appropriate. He did not exceed his authority on this point."
The judge also concluded that the arbitrator did not exceed his
authority by substituting his own judgment for that of the
police chief in evaluating whether there was just cause to
terminate Hutton under the CBA. The judge also found that the
town was estopped from arguing otherwise since it had asked the
arbitrator to decide that the town had just cause to terminate
Hutton. In fact, the town had not placed that issue in front of
the arbitrator, except in the alternative should the union argue
that there was no just cause. The judge concluded by affirming
the arbitrator's decision in full. Like the arbitrator, the
judge made no mention of the relevant provisions of the
settlement agreement or the LCA regarding the parties' agreed
scope of arbitration and does not appear to have factored them
into his analysis. This appeal followed.
Discussion. On appeal, the town argues that the arbitrator
should have confined himself to deciding only whether Hutton's
conduct violated the LCA. Furthermore, the town argues that the
10
arbitrator exceeded his authority by impermissibly substituting
his judgment and ignoring the terms of the CBA. We agree that
the arbitrator went beyond the scope of what these sophisticated
parties had contractually bound themselves to arbitrate. As a
result, the arbitrator's decision must be vacated with respect
to the question of whether there was "just cause" to terminate
Hutton under the CBA. Deciding as we do, we need not -- and do
not -- reach the town's second argument.
"Our role in reviewing an arbitrator's award pursuant to
G. L. c. 150C, § 11 is limited. Unlike our review of factual
findings and legal rulings made by a trial judge, we are bound
by an arbitrator's findings and legal conclusions" (citations
omitted). School Dist. of Beverly v. Geller, 435 Mass. 223, 228
(2001) (Cordy, J., concurring). "However, arbitration being the
product of an agreement, the arbitrator is without authority to
decide matters outside the scope of what the parties have agreed
shall be arbitrated." Boston Police Patrolmen's Ass'n v.
Boston, 60 Mass. App. Ct. 672, 674 (2004). "Whether an
arbitrator has acted beyond the scope of authority conveyed to
him is always open to judicial review." Local 589, Amalgamated
Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407,
410-411 (1984). The scope of an arbitrator's authority is
determined both by the parties' statement of issues and their
11
underlying contractual agreement. See, e.g., School Comm. of W.
Springfield v. Korbut, 373 Mass. 788, 792-793 (1977).
We accordingly turn first to the plain language of the
settlement agreement and of the LCA. See Mount Vernon Fire Ins.
Co. v. VisionAid, Inc., 477 Mass. 343, 348 (2017) ("As with any
contract, . . . we begin with the plain language"). As we have
already set out above, both the settlement agreement and the LCA
provided that termination of Hutton's employment due to a
violation of the LCA was not "grievable or arbitrable under the
parties' [CBA] except on the issue of whether or not [Hutton]
engaged in conduct identified herein." Although these
provisions permitted Hutton to grieve his termination, they
clearly and definitively restricted the scope of arbitration
stemming from any grievance. The meaning of the provision is
manifest not only from its plain language, but also from the
language of the release of claims under the CBA to which Hutton
and the union also agreed under the settlement agreement. In
short, the settlement agreement and the LCA clearly and
unambiguously limited the scope of any posttermination
arbitration to the issue of whether Hutton's conduct violated
the terms of the LCA.
We are not persuaded by the town's argument that the
settlement agreement and the LCA restricted the arbitrator to
merely making findings regarding whether Hutton's conduct
12
occurred and did not extend to determining whether his conduct
violated the LCA. The LCA provided that Hutton's termination
would not be grievable or arbitrable "except on the issue of
whether or not [Hutton] engaged in conduct identified herein."
The "conduct identified herein" was any violation of the six
enumerated provisions of the department rules and regulations
contained in paragraph 1 of the LCA. See note 2, supra. Thus,
the arbitrator was within his authority to determine not only
what conduct Hutton engaged in, but also whether that conduct
constituted a violation of the rules and regulations identified
in the LCA.
Once the arbitrator found, as he did, that the parties were
not in agreement as to the issues to be arbitrated, he should
have turned to the settlement agreement and the LCA (both of
which were before him) to determine the permissible scope of
arbitration. This he did not do. Instead, the arbitrator
attempted to synthesize the issues identified by the parties and
in doing so, proceeded to reformulate them in such a way as to
expand his authority beyond what the parties had agreed to in
the settlement agreement and the LCA. 6
6 The arbitrator stated, "[T]here are two issues raised in the
present case. The first is whether [Hutton] violated the terms
of the [LCA], and if he did not, then whether the incident of
May 14, 2019, along with [Hutton's] past discipline warranted
his discharge."
13
The fact that the union's grievance invoked both the LCA
and the CBA, is of no import. The union could not unilaterally
expand the scope of arbitration beyond what it had previously
agreed to in the settlement agreement and the LCA. This is
particularly so in light of the settlement agreement's
integration clause, which provided that the terms of the
agreement could not be "modified, amended, or otherwise
affected" except in writing signed by both parties. No such
writing appears in the record before us, and we accept (as we
must) the arbitrator's findings that the parties did not reach
agreement on the scope of arbitration.
At oral argument, the union argued that, even if the
parties did not expressly agree to arbitrate whether the town
had just cause to terminate Hutton under the CBA, the town
waived its right to argue that the issue was outside of the
arbitrator's scope of authority by failing to object at the
arbitration. Even setting aside that we need not consider an
argument first raised at oral argument, see Santos v. U.S. Bank
Nat'l Ass'n, 89 Mass. App. Ct. 687, 700 n.14 (2016), the
argument is at odds with the fundamental underpinnings of
arbitration. As we have already discussed, arbitration is a
creature of, and requires, agreement. The town was under no
obligation to do more than it did here.
14
Nor are we persuaded by the union's argument that the town
acquiesced to the expansion of arbitration to include the issue
of whether Hutton's termination was supported by just cause.
See Massachusetts Bay Transp. Auth. v. Boston Carmen's Union,
Div. 589, 17 Mass. App. Ct. 104, 111 (1983) ("An arbitration may
be extended by consent, which can be inferred from mutual
acquiescence, and we may well assume, in the absence of a
demonstration to the contrary, that the arbitrator's
decision . . . had some foundation in the hearing"). Simply
put, by agreeing to an integration clause requiring a writing
signed by all parties in order to modify, amend, or otherwise
affect the scope of arbitration, the union waived any argument
that acquiescence was instead enough.
We thus conclude that the only issue properly before the
arbitrator was whether Hutton's conduct on May 14, 2019
constituted a violation of the LCA. Once the arbitrator
concluded that Hutton's conduct on that date did "not r[ise] to
the level of 'Neglect of Duty' or 'Incompetence[,'] the specific
rules that were cited in the Last Chance Agreement," the
arbitrator should not have proceeded further.
Conclusion. The arbitrator's determination that Hutton's
conduct on May 14, 2019 did not violate the LCA was within the
scope of his authority, and must be affirmed. All other aspects
of the arbitrator's award were beyond his authority and must be
15
vacated pursuant to G. L. c. 150C, § 11 (a) (3). The Superior
Court judgment is vacated. A new judgment shall enter
confirming so much of the arbitration award that found that
Hutton did not violate the LCA, and reversing all other aspects
of the award.
So ordered.
By the Court (Wolohojian,
Neyman & Smyth, JJ. 7),
Clerk
Entered: September 15, 2023.
7 The panelists are listed in order of seniority.
16