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

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

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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