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 
2

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 
3

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.
4

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.'"
5

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."
6

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 
7

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.
8

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.
9

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.
10

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 
11

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 
12

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 
13

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."
14

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.
15

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 
16

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.