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SJC-13331

CITY OF CHELSEA vs. NEW ENGLAND POLICE BENEVOLENT

ASSOCIATION, INC., LOCAL 192.

Suffolk. January 6, 2023. - March 8, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Arbitration, Arbitrable question, Confirmation of award. Public 

Employment, Collective bargaining, Termination. Labor, 

Collective bargaining, Grievance procedure, Public 

employment, Arbitration.

Civil action commenced in the Superior Court Department on 

July 26, 2021.

The case was heard by Patrick M. Haggan, J., on motions for 

judgment on the pleadings.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Strephon Treadway for the plaintiff.

Thomas E. Horgan for the defendant.

KAFKER, J. After the New England Police Benevolent 

Association, Inc., Local 192 (NEPBA), replaced the International 

Brotherhood of Teamsters, Local 25 (Local 25), as the exclusive 
2

bargaining representative for the emergency dispatchers in the 

city of Chelsea (city), the NEPBA sought to arbitrate a 

grievance regarding the termination of a dispatcher that 

occurred following the change in union representation. The 

NEPBA and the city had not yet bargained to a new contract, but 

employees had been working pursuant to the terms and conditions 

of the city's prior collective bargaining agreement with Local 

25, which contained an arbitration provision. The parties 

submitted to an arbitrator the question whether the dispute was 

arbitrable. The arbitrator ruled that it was. The city now 

appeals from a Superior Court order confirming the arbitrator's 

decision.

We determine that the dispute was arbitrable because (1)

the dispute clearly would have been covered by the broad

arbitration provision negotiated by the city and the prior 

union, if the contract with the city had remained in effect; (2)

the arbitrator, acting within her authority, found that the 

contract was extended by the city according to the terms of the 

contract, and we defer to such contractual interpretation by the 

arbitrator; and (3) we conclude that the labor relations act 

entitles a successor union to "step[] into the shoes of its 

predecessor" and enforce an arbitration provision in a 

collective bargaining agreement negotiated by its predecessor. 
3

See Watertown v. Watertown Mun. Employees Ass'n, 63 Mass. App. 

Ct. 285, 291 (2005) (Watertown).

Background. The city's emergency dispatchers had been

represented by Local 25 since 2009. On January 3, 2020, the 

NEPBA filed a petition to represent the bargaining unit. On 

January 8, 2020, Local 25 sent a letter disclaiming interest in 

representing the dispatchers. The NEPBA won the subsequent 

election unanimously; due to Local 25's disclaimer, it was the 

only union on the ballot. On April 16, 2020, the Department of 

Labor Relations certified the NEPBA as the dispatchers' 

exclusive representative.

The most recent collective bargaining agreement in effect

for the dispatchers was negotiated by Local 25. It contained 

multiple arbitration provisions. One stated that "[o]nly

matters involving questions whether the [c]ity is complying with 

its obligations under this [a]greement, including matters 

involving the meaning, application or interpretation of the 

[a]greement" are subject to the grievance and arbitration 

procedure, except that "[n]o matter shall be subject to the 

arbitration procedure of this [a]greement which is subject to 

the authority or jurisdiction of Civil Service or any Retirement 

Board." More specifically, the agreement also provided: "Any 

protest against discipline, suspension or discharge shall be 
4

handled under the grievance and arbitration procedure provided 

for in the agreement."

By its terms, the agreement also had the following 

duration:

"This [a]greement shall remain in full force and effect 

from July 1, 2016 until midnight June 30, 2019 and shall 

terminate unless extended by mutual consent of the parties, 

or unless either party hereto gives written notice to the 

other not less than sixty (60) days prior to the date of 

expiration, of a desire to change or amend the terms or 

conditions hereof."

The city solicitor wrote to representatives of Local 25 on 

January 31, 2019 (thus "not less" than sixty days before June 

30): "Our agreements expire on June 30, 2019 and I was hoping 

to schedule our initial meetings for bargaining." Although 

Local 25 and the city exchanged proposals for a new contract and 

met several times, they did not reach an agreement. A 

representative from the NEPBA reached out to start contract 

negotiations after the union was certified, but by the time of 

the dispute in question, the parties had not reached an 

agreement. The city continued to abide by all provisions in the 

contract during this period of time and apparently has done so 

to this day, with the exception of the arbitration provision.

Nearly one year after the NEPBA was certified, a dispatcher 

allegedly failed to properly dispatch a fire response, and then 

misreported the facts in a subsequent investigation. As a 

result, the city dismissed her. The union protested the 
5

discipline and invoked the grievance procedure in the collective 

bargaining agreement, which involves a multistep process that 

culminates in arbitration. The relevant contract term states:

"Grievances not settled in the [s]teps of the grievance 

procedure may be referred to an arbitrator agreed upon by 

the parties . . . [or one] designated by the American 

Arbitration Association . . . . The decision of the 

arbitrator within the scope of his authority shall be final 

and binding upon the parties."

Although the city disputed that it was required to 

arbitrate the grievance, the parties proceeded to arbitration 

and submitted to the arbitrator the question whether the dispute

was arbitrable. The arbitrator ruled that it was, because the 

agreement negotiated by Local 25 was still in effect on February 

1, 2021, by its terms. The arbitrator explained: "While [the]

letter [regarding scheduling bargaining] does not use the exact 

language of Article 25 [(the duration provision)], I find that 

it adequately satisfies Article 25, and thus extended that 

contract." She also relied on the reasoning of the Appeals 

Court decision in Watertown discussing the presumption of 

arbitrability, including when "the arbitration provision being 

interpreted involves expiring contracts and changes in union 

representation." Watertown, 63 Mass. App. Ct. at 290.

The city filed a complaint in the Superior Court to vacate 

the arbitration award, arguing that the arbitrator exceeded her 

authority because there was no agreement to arbitrate in effect
6

once Local 25 disclaimed interest. See G. L. c. 150C, § 11 (a) 

("the superior court shall vacate an award if . . . the 

arbitrators exceeded their powers"). The union moved to confirm 

the arbitration award. Both parties moved for judgment on the 

pleadings. The judge confirmed the arbitration award, allowed 

the union's motion, and denied the city's motion. The judge 

determined that the collective bargaining agreement, including 

the arbitration provision, "remained in effect when the 

arbitration occurred" because a new bargaining representative 

"'steps into the shoes of its predecessor' for purposes of the 

[agreement]" (quoting Watertown, 63 Mass. App. Ct. at 291).

The city appealed from the judgment. This court

transferred the appeal on its own motion.

Discussion. The well-settled background principles for 

resolving this case are summarized in the Appeals Court decision 

in Watertown, and we repeat them here:

"'The first principle is that "arbitration is a matter of 

contract"' and cannot therefore be imposed if it is not a 

part of the bargained-for exchange. [Local No. 1710, Int'l 

Ass'n of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417, 

420-421 (1999), quoting AT&T Techs., Inc. v. Communications 

Workers of Am., 475 U.S. 643, 648 (1986).] Courts 

recognize, however, that 'a collective bargaining agreement 

is not an ordinary contract.' [John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543, 550 (1964).] A collective 

bargaining agreement governs an entire, evolving labormanagement relationship. It is negotiated in a highly 

regulated environment that determines the certification and 

decertification of unions and establishes bargaining 

obligations of unions and employers. A collective 

bargaining agreement also promotes the equitable, 
7

efficient, and peaceful resolution of workplace disputes. 

Arbitration provisions play an important part in the entire 

process, as they provide for the expeditious resolution of 

workplace disputes by decisionmakers with expert knowledge 

of the common law of the shop. [United Steelworkers of Am.

v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580-582 

(1960).]

"For these reasons, where the collective bargaining 

agreement 'contains an arbitration clause, there is a 

presumption of arbitrability in the sense that "an order to 

arbitrate the particular grievance should not be denied 

unless it may be said with positive assurance that the 

arbitration clause is not susceptible of an interpretation 

that covers the asserted dispute. Doubts should be 

resolved in favor of coverage . . . particularly . . . 

where the clause is . . . broad" (emphasis added).' [Local 

No. 1710, Int'l Ass'n of Fire Fighters, AFL-CIO, 430 Mass.

at 421, quoting AT&T Techs., Inc., 475 U.S. at 649.] In 

addition, when the arbitration provision being interpreted 

involves expiring contracts and changes in union 

representation, courts carefully consider the statutory 

context in which the agreements are negotiated. See, e.g.,

[Nolde Bros. v. Local No. 358, Bakery & Confectionery 

Workers Union, 430 U.S. 243, 254 (1977)] (discussing how 

parties drafted their arbitration clause 'against a 

backdrop of well-established federal labor policy favoring 

arbitration')."

Watertown, 63 Mass. App. Ct. at 289-290.

In the instant case, there are three interrelated 

questions. First, is the issue in dispute (the employee 

discharge) covered by the arbitration provision from the 

collective bargaining agreement? Second, did the agreement 

expire or was it extended by the parties? Third, what is the 

effect of the change in union representation? Although the 

parties, or at least the city, skip over the first two 

questions, we address them, as they inform the answer to the 
8

third. Indeed, it is the breadth of the arbitration provision 

and the extension of the contract that are the key issues for 

arbitrability of the dispute, not the change in union 

representation.

1. Employee discharge. The first question is clearly not 

disputed in the instant case. The arbitration provision states:

"Any protest against discipline, suspension or discharge shall 

be handled under the grievance and arbitration procedure 

provided for in the agreement." The termination of the 

dispatcher would fit squarely within the language of the 

arbitration provision if the collective bargaining agreement 

were still in effect.

2. Extension of agreement. The second question regarding

the extension or termination of the agreement is also not 

contested in part, as the city concedes that the contract was

extended, but contends that the extension ended upon the change 

in union representation, which took place one year before the 

employee was disciplined and sought arbitration. As the issue 

the city concedes again informs resolution of the issue the city 

contests, particularly regarding deference owed to the 

arbitrator's contractual interpretation, we briefly address it.

Although the question "whether a party has agreed to 

binding arbitration of a particular dispute is always a question 

for the court," Massachusetts Community College Council v. 
9

Massachusetts Bd. of Higher Educ./Roxbury Community College, 465 

Mass. 791, 795 (2013), threshold or subsidiary questions, such 

as whether the agreement providing for arbitration has been 

terminated or extended, are often questions for the arbitrator,

particularly under so-called "broad[ly]" drafted arbitration 

provisions, see Brotherhood of Teamsters & Auto Truck Drivers 

Local #70 v. Interstate Distrib. Co., 832 F.2d 507, 511 (9th 

Cir. 1987) (Teamsters). That is because "[t]he disagreement 

between the parties . . . is not primarily over what the 

arbitration clause provides, or what its scope is, but rather 

concerns the effect to be given a letter -- or an exchange of 

letters -- under the terms of the termination or expiration 

clause of the parties' collective bargaining agreement. In 

short, the real dispute is over the proper meaning or 

interpretation of the termination clause." Id. at 510.

In broadly worded arbitration provisions -- that is, those

"covering all disputes concerning the meaning of the terms and 

provisions of the agreement," Teamsters, 832 F.2d at 510 -- this 

interpretation is ordinarily left to arbitrators. That is 

because "[t]he issue involves the interpretation of the 

expiration or termination provision of the agreement, and 

standard arbitration clauses ordinarily provide that such 

interpretations, like all others necessary to the resolution of 

disputes over the meaning of the contract, shall be made by an 
10

arbitrator." Id. See District No. 1, Pac. Coast Dist., Marine 

Eng'rs' Beneficial Ass'n, AFL-CIO v. Liberty Maritime Corp., 815 

F.3d 834, 845 (D.C. Cir. 2016) ("If the arbitration provision is 

broad, the court presumes that the parties intended to arbitrate 

the duration dispute . . ."); Sheet Metal Workers Int'l Ass'n

Local No. 18 -- Wisc., AFL-CIO & Everbrite, LLC, 359 N.L.R.B.

1095, 1096 (2013) (arbitration "agreement provides for the 

resolution of contract interpretation disputes" and whether 

"agreement was automatically extended . . . by its terms" is 

such dispute).

Here, we are likewise dealing with a broadly worded 

arbitration agreement: the agreement provides that "matters 

involving questions whether the [c]ity is complying with its 

obligations under this [a]greement, including matters involving 

the meaning, application or interpretation of the [a]greement,"

are subject to the grievance and arbitration procedure.1 See 

Massachusetts Correction Officers Federated Union v. Sheriff of 

Bristol County, 55 Mass. App. Ct. 285, 288 (2002), quoting 

United Steelworkers of Am., 363 U.S. at 585 ("Supreme Court 

treated as 'broad' a clause that called for the arbitration of 

any differences 'as to the meaning and application of the . . . 

1 Matters covered by the civil service or pension laws were 

excluded.
11

Agreement'"). The termination and extension provision is a part 

of the collective bargaining agreement and was not distinguished 

from other provisions of the contract. As interpretation of the 

contract, including the extension and termination provisions, 

has been assigned to the arbitrator by the contracting parties, 

we defer to the arbitrator's interpretation, even if it 

implicates arbitrability. We distinguish this from when an

arbitrator relies on public law rather than the contract itself, 

in which case we do not defer. School Comm. of Lexington v. 

Zagaeski, 469 Mass. 104, 112 (2014), quoting School Dist. of 

Beverly v. Geller, 435 Mass. 223, 229-230 (Cordy, J., 

concurring) (although "an arbitrator may be uniquely qualified 

to interpret the 'law of the shop,'" courts are "better 

positioned to interpret the 'law of the land'"); Watertown, 63

Mass. App. Ct. at 292 ("The arbitrator's interpretation of the 

agreement was not based on any specific contractual language, 

nor has any contractual language supporting his interpretation 

been brought to our attention by the town").

Here, the arbitrator determined that the collective 

bargaining agreement had been extended and was still in effect, 

more than one year after the change in representation, on the 

date of the February 1, 2021 incident. She explained that the 

agreement contained a specific duration term with "key 

language": it would terminate on June 30, 2019, unless extended 
12

by mutual consent or if "either party hereto gives written 

notice to the other not less than sixty (60) days prior to the 

date of expiration, of a desire to change or amend the terms or 

conditions."2 The arbitrator found that this condition was 

satisfied via the city solicitor's e-mail message to the union

on January 31, 2019, not less than sixty days before the 

deadline, where she stated that she "was hoping to schedule our 

initial meetings for bargaining." The city apparently did not 

contest the determination of extension either at arbitration or 

before the Superior Court judge, except to argue that the 

extension terminated once there was a change in representation:

the arbitrator stated that "[t]he [c]ity provide[d] no answer 

. . . in its brief" to her analysis that the notice extended the 

contract; and the judge observed that "[t]he [c]ity concede[d]

that by its own terms the [agreement] was extended beyond its 

nominal termination date by the [c]ity's conduct and therefore 

2 This is a type of "evergreen" clause: language in a 

collective bargaining agreement providing that the terms will 

remain in effect while the parties negotiate a new contract. 

Because the statute limited the express term of a collective 

bargaining agreement to three years, G. L. c. 150E, § 7 (a), 

this court ruled that an agreement could not be extended beyond 

three years via an evergreen clause, see Boston Hous. Auth. v. 

National Conference of Firemen & Oilers, Local 3, 458 Mass. 155, 

164 (2010). However, the Legislature subsequently amended the 

statute to expressly allow such provisions. See G. L. c. 150E, 

§ 7 (a), as amended through St. 2011, c. 198, § 1; State Police 

Ass'n of Mass. v. Alben, 97 Mass. App. Ct. 366, 372 (2020).
13

[did] not argue that the arbitration was invalid because the 

[agreement] had expired."

The arbitrator appeared to consider the change in 

representation to be of no import regarding her interpretation 

of the continuation of the contract. For support, she drew on

the Appeals Court decision in Watertown. Although we do not 

second-guess her interpretation of the agreement or the law of 

the shop, we do not defer to her additional reliance on public 

law, including the correct application of the Appeals Court 

decision in Watertown, on an issue concerning arbitrability. 

See Zagaeski, 469 Mass. at 111-112; Watertown, 63 Mass. App. Ct. 

at 289. We agree with her analysis on this issue as well, for 

the reasons discussed infra, but we nonetheless owe her no 

deference in this regard as this raises a public law issue 

regarding arbitrability, which must be decided by the court. 

See Zagaeski, supra at 112. See also John Wiley & Sons, Inc., 

376 U.S. at 546-547 (requiring court and not arbitrator to 

decide whether arbitration clause in collective bargaining 

agreement survives corporate merger).3

3 Finally, we note that the arbitrator's decision is further 

supported by the city's recognition that all the other 

provisions in the contract continued in force to this day, as 

confirmed by counsel at oral argument.
14

3. Change in union representation. Because the agreement 

negotiated by Local 25 had been extended, it was still in effect

when the NEPBA sought to arbitrate a dispatcher's termination. 

The question then becomes whether a union can enforce an

arbitration agreement against an employer, when the employer 

agreed to arbitrate with the predecessor union but not the 

successor union.4

4 This issue has not been consistently resolved under 

analogous Federal law. The National Labor Relations Board 

(NLRB) has ruled that after a change in union representation, 

"the new union may not compel the employer to arbitrate," 

because the employer did not consent to arbitrate with that 

union -- although the employer must still arbitrate with the 

predecessor union grievances that arose before the change in 

union representation. Children's Hosp. & Research Ctr. of 

Oakland & Serv. Employees Int'l Union, United Healthcare Workers

-- W., 364 N.L.R.B. 1677, 1680 (2016), citing Arizona Portland 

Cement Co. & Local 296, Indep. Workers of N. Am., 302 N.L.R.B.

36 (1991). However, Federal courts have found that a successor

union can compel the employer to arbitrate pursuant to the 

previous agreement. See Cincinnati Newspaper Guild, Local 9 v. 

Cincinnati Enquirer, Inc., 863 F.2d 439, 445-446 (6th Cir. 1988) 

(Cincinnati Newspaper) (employees' right to arbitrate "may not 

be abrogated by the employer merely because the employees 

subsequently see fit to change their agent"); Local No. 503 of 

the Graphic Communications Conference of the Int'l Bhd. of 

Teamsters vs. Cascades Containerboard Packaging, U.S. Dist. Ct., 

No. 17-cv-6605 (W.D.N.Y. Dec. 19, 2017) (following Cincinnati 

Newspaper but denying relief on other grounds); General 

Teamsters Union Local No. 439 vs. Sunrise Sanitation Servs., 

Inc., U.S. Dist. Ct., No. S-05-1208 (E.D. Cal. Apr. 25, 2006). 

The NLRB rule would create the awkward situation where the 

employees vote out a union but must still rely on it for 

arbitrations. Worse, if applied to cases like this one, where a 

grievance arises after a change in representation, employees 

would appear to lack any right to arbitrate grievances.
15

In a similar context in Watertown, the Appeals Court ruled 

that when the grievance arises before a change in union 

representation, the employer must arbitrate it with the 

successor union, because the successor union "steps into the 

shoes of its predecessor." Watertown, 63 Mass. App. Ct. at 291.

In that case, as in this one, the previously negotiated contract

had been extended by an evergreen clause. Id. at 288. As the 

agreement was in effect when the grievance occurred, the 

situation is similar: the successor union simply seeks to 

enforce an arbitration agreement negotiated with its 

predecessor.

We determine that the employer must arbitrate the 

grievance, as it has agreed to do so via the collective 

bargaining agreement, and the successor union steps into the 

shoes of its predecessor. This conclusion is supported by three 

aspects of the labor relations act. First, the statute favors 

arbitration as a means of resolving employment disputes once 

parties have agreed that the disputed matters are subject to 

arbitration. See G. L. c. 150E, § 8. At that point, the 

presumption in favor of arbitration applies and "[d]oubts should 

be resolved in favor of coverage." Local No. 1710, Int'l Ass'n 

of Fire Fighters, AFL-CIO, 430 Mass. at 421, quoting AT&T Techs. 

Inc., 475 U.S. at 649.
16

Second, the statute provides for employees' free choice in 

union representation. "[M]ajority rule is a fundamental aspect 

of American democratic government" and Massachusetts labor 

policy. Branch v. Commonwealth Employment Relations Bd., 481 

Mass. 810, 827 (2019), cert. denied, 140 S. Ct. 858 (2020). To 

preclude a successor union from arbitrating grievances would 

"penalize[] and indirectly intrude[] on the employees' right to 

select new union representation," by forcing them to choose 

between giving up their bargained-for grievance process or 

sticking with a disfavored union. Watertown, 63 Mass. App. Ct. 

at 292. The same principles apply here, even though Local 25 

sent a letter disclaiming interest rather than losing an 

election. The dispatchers unanimously selected the NEPBA as 

their bargaining agent, evidencing their desire to continue 

being represented by a union. Their right to arbitrate 

grievances cannot be revoked just because they have switched 

representatives.

Third, an employer cannot unilaterally change terms and 

conditions of employment. "[T]he public employer and the 

employee organization" must "negotiate in good faith" over 

"terms and conditions of employment." Somerville v. 

Commonwealth Employment Relations Bd., 470 Mass. 563, 569

(2015), quoting G. L. c. 150E, § 6. It is a "prohibited 

practice" under G. L. c. 150E, § 10 (a) (5), for a public 
17

employer to make a unilateral change to a mandatory subject of 

bargaining without first bargaining to impasse. See Somerville, 

supra at 570. The terms of a grievance procedure for employment 

disputes that culminates in arbitration is such a mandatory 

subject. See School Comm. of Newton v. Labor Relations Comm., 

388 Mass. 557, 563 (1983) (implementation of employee 

terminations "involved the very essence of the relationship, the 

employment itself, and not a peripheral matter"). See also 14 

Penn Plaza LLC v. Pyett, 556 U.S. 247, 256 (2009) (arbitration 

is mandatory subject under Federal labor law). Thus, until the 

successor union and the city agree to a new contract or bargain 

to impasse, all the key terms and conditions of the prior

contract must remain in effect, including the arbitration 

provision.

Conclusion. The dispute at issue was covered by the 

arbitration provision contained in the contract negotiated by 

the city and the union that previously represented the 

bargaining unit. As found by the arbitrator within her 

authority to interpret the contract and the law of the shop, the 

contract, including the grievance and arbitration provision, was 

extended and not terminated by the city. Finally, we conclude 

that the labor relations act empowers the successor union to

step into the shoes of its predecessor and enforce the

provisions of the extended contract, including its arbitration 
18

provisions. For all of these reasons, we affirm the judge's 

order granting the NEPBA's motion for judgment on the pleadings, 

denying the city's motion for judgment on the pleadings, and 

confirming the arbitration award.

So ordered.