TOWN OF BROOKLINE v. AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 93 (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff town of Brookline (town) applied for a permanent stay of the arbitration of a grievance involving the discharge of a town employee -- a civil service employee and union member -- filed by the defendant American Federation of State, County and Municipal Employees (union). See G. L. c. 150C, § 2. A Superior Court judge allowed the town's application, and the union appealed. We conclude that, even though the parties’ collective bargaining agreement (agreement) contains a broad arbitration clause that gives rise to a presumption of arbitrability for disputes involving a question of interpretation or application of the agreement, that presumption is overcome by the agreement's express exclusion of disputes involving civil service employees from arbitration. Accordingly, we affirm.

Background. 1. The collective bargaining agreement. The agreement between the town and the union was in effect from July 2021 through June 2024. Several of its provisions pertain to this case.

Article II of the agreement states that “inherent management rights are not subject to arbitration.” “Among the management rights that are vested exclusively with the employer” are “the right to hire; promote; transfer; the right, for just cause, to suspend, demote or discharge; and the right to relieve employees from duty because of insufficient funds.”

Article VI provides that “the Employer and Union shall recognize and adhere to all Civil Service Rules and Regulations relative to seniority, promotions, discharges, suspensions and transfers from one job classification to another or from one department to another for all employees hired on or before May 20, 2010.”¹

Subsections (a), (c), and (d) of article XX establish a three-step process for resolving employee grievances concerning a “dispute, claim or complaint involving a question of interpretation or application of this Agreement.” Under this process, (1) the employee or union files the grievance with the employee's department head and, if it remains unresolved, with the appropriate board or commission; (2) if unresolved, the grievance is presented to the human resources board; and (3) if still unresolved, the grievance may be submitted to an arbitrator agreed upon by the parties or selected by a designated neutral third party. See G. L. c. 150E, § 8 (public employees and employers “may include in any written agreement a grievance procedure culminating in final and binding arbitration to be invoked in the event of any dispute concerning the interpretation or application of such written agreement”).

Article XX(b), however, provides a different avenue for resolving “[a]ny other disputes between an employee and his supervisors arising out of an exercise of administrative discretion by such supervisor(s).” Such disputes are to be resolved under the grievance procedure set forth in § 3.15.11 of the town's Human Resources By-Law,² “except those that would properly be under jurisdiction of the Civil Service Commission or other duly established appeal board.”

2. The employee's discharge. The employee worked for the town's department of public works (DPW). On December 10, 2024, he was notified that the DPW commissioner was contemplating terminating his employment. After conducting a hearing pursuant to G. L. c. 31, § 41, the commissioner issued a letter on December 18, 2024, stating that she had found “just cause for terminating [the employee's] employment per” G. L. c. 31. The letter included copies of relevant sections of the civil service law.³ The employee did not appeal that decision to the Civil Service Commission (commission). Instead, acting on his behalf, the union filed a step one grievance pursuant to article XX(a) of the agreement. In a letter dated January 3, 2025, the commissioner determined that the decision to terminate the employee “was made in compliance with Massachusetts General Laws Chapter 31.” The union proceeded to step two, filing a grievance with the human resources board, which also concluded that “the Town had just cause to terminate.”

On February 6, 2025, the union requested arbitration pursuant to step three. The town disputed the arbitrability of the employee's termination, arguing that articles II, VI, and XX of the agreement exempt the decision to discharge from arbitration. The town agreed to select an arbitrator “to conduct a pre-hearing conference, solely for the purpose of determining the arbitrability of this matter.” The union filed a demand for arbitration with the designated third party to preserve timely filing. The town then filed in the Superior Court an application to permanently stay arbitration pursuant to G. L. c. 150C, § 2 (b). After a hearing, the judge determined that, “to the extent that the propriety of such a discharge decision involves a question of interpretation or application of the [agreement], it may be addressed at the first two steps of the [article XX(a)] grievance procedure, but not at the third step providing for arbitration,” because “Article II expressly provides that the town's right to discharge for just cause is ‘not subject to arbitration.’ ” Accordingly, the judge concluded that the agreement, “read as a whole, plainly provides that the propriety of a discharge decision ․ is not arbitrable” and allowed the town's application.

Discussion. An arbitration proceeding may be stayed if “there is no agreement to arbitrate, or ․ the claim sought to be arbitrated does not state a controversy covered by the provision for arbitration and disputes concerning the interpretation or application of the arbitration provision are not themselves made subject to arbitration.” G. L. c. 150C, § 2 (b). Whether an agreement provides for arbitration “turns on a matter of contract interpretation which is to be resolved by reading and construing the whole contract in a reasonable and practical way, consistent with its language, background, and purpose” (quotation and citation omitted). Sheriff of Suffolk County v. AFSCME Council 93, Local 419, 75 Mass. App. Ct. 340, 342 (2009).

1. Presumption of arbitrability under article XX(a). The union contends that, because the article XX(a) grievance procedure contains a broad arbitration clause, the issue of whether there was “just cause” to discharge the employee is presumptively arbitrable and the town has failed to present evidence rebutting this presumption. See generally AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648-50 (1986); Local Union No. 1710, Int'l Ass'n of Fire Fighters, AFL-CIO v. Chicopee, 430 Mass. 417, 420-422 (1999), abrogated on other grounds by Massachusetts Highway Dep't v. Perini Corp., 444 Mass. 366, 379 (2005).

We agree that article XX(a) establishes a presumption of arbitrability. “Public policy in the Commonwealth strongly encourages arbitration.” School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758 (2003). Accordingly, when an agreement contains an arbitration clause that “essentially states that ‘all disputes’ regarding the agreement are subject to arbitration,” “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” (quotation and citation omitted). Chicopee, 430 Mass. at 421-422. Here, by providing that all disputes involving “a question of interpretation or application of this Agreement” are subject to a grievance process that culminates in arbitration, article XX(a) presumptively makes such disputes arbitrable. See Lawrence v. Lawrence Patrolmen's Ass'n, 56 Mass. App. Ct. 704, 707 (2002).

2. Provisions excluding civil service disputes from arbitration. Nevertheless, because “a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit,” Chicopee, 430 Mass. at 421, quoting AT & T Techs., Inc., 475 U.S. at 648, “[e]ven a broad clause ․ does not make arbitrable questions that a statute or agreement places beyond the authority of arbitrators.” Lawrence, 56 Mass. App. Ct. at 707. A presumption of arbitration can be rebutted “if the party resisting arbitration shows either (1) the existence of an express provision excluding the grievance from arbitration or (2) the most forceful evidence of a purpose to exclude the claim from arbitration” (quotation omitted). Falmouth Police Superior Officers Ass'n v. Falmouth, 80 Mass. App. Ct. 833, 839 (2011), quoting Sheriff of Suffolk County, 75 Mass. App. Ct. at 343-344.

We conclude, “with positive assurance,” that the agreement expressly excludes the grievance at issue here. Chicopee, 430 Mass. at 421, quoting AT & T Techs., Inc., 475 U.S. at 649. In article VI, the parties agreed to be bound by civil service rules and regulations concerning employment decisions, including “suspensions” and “discharges.” While the broad arbitration provision of article XX(a) applies to questions of interpretation of the agreement, article XX(b) channels disputes between a civil service employee and the employee's supervisors to the jurisdiction of the Civil Service Commission. We agree with the judge that the dispute is “clearly exempted” under article XX(b) because “[w]hether a tenured civil service employee has been discharged for ‘just cause’ is a matter within the jurisdiction of the Civil Service Commission.”

We reject the union's argument that the dispute is arbitrable under article XX(a) because it sought an interpretation of the “just cause” provision in article II(a) as applied to the employee and thus presented an independent question regarding interpretation of the agreement. For civil service employees, whether the employee has been properly suspended or discharged for “just cause,” and the employee's rights to challenge such discipline, are specifically governed by G. L. c. 31, §§ 41-45, to which the town and the union agreed to be bound. The union's position contravenes the principle that we must consider “the agreement in its entirety” and “would result in the arbitration of any grievance merely alleging that the terms of the agreement had been violated or that the dispute concerned the interpretation of the agreement.” School Comm. of Hanover v. Hanover Teachers Ass'n, 435 Mass. 736, 740-741 (2002).

Because “a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit,” Chicopee, 430 Mass. at 420-421, quoting AT & T Techs., Inc., 475 U.S. at 648, we conclude that the agreement expressly does not authorize arbitration of the union's dispute.

3. Other redress for civil service employees. In addition, there is other “forceful evidence of a purpose to exclude the claim from arbitration” (quotation and citation omitted). Falmouth, 80 Mass. App. Ct. at 839. Although the employee was not entitled to arbitration under article XX(a) of the agreement, as a civil service member, he could have appealed his termination to the commission. General Laws c. 31 provides that, prior to discharge for just cause, a tenured civil service employee must be given a hearing by the appointing authority, and the employee may then appeal the discharge to the commission or bring a direct action in the Superior Court. See G. L. c. 31, §§ 41-44; Mello v. Mayor of Fall River, 22 Mass. App. Ct. 974, 975 (1986). There is no merit to the union's contention that the “permissive” language in G. L. c. 31, § 41, stating that a civil service employee “may appeal to the Commission” implies that the employee may appeal to an arbitrator instead. We “read the civil service law and the collective bargaining law, as well as the agreements that flow from the collective bargaining law, as a ‘harmonious whole,’ ” Fall River v. AFSCME Council 93, Local 3177, AFL-CIO, 61 Mass. App. Ct. 404, 406 (2004), quoting Dedham v. Labor Relations Comm'n, 365 Mass. 392, 402 (1974), and the agreement here clearly provides that, for civil service employees, disputes about just cause for a discharge must ultimately be decided by the commission (or the courts), not an arbitrator under the grievance process in article XX(a).⁴

Order allowing application to stay arbitration affirmed.

FOOTNOTES

1.   Article VI further provides that the civil service law does not apply to employees hired after that date. See St. 2010, c. 109 (exempting Brookline employees other than police officers and firefighters from civil service law).

2.   The judge noted in his decision that, even though neither party had provided him with the town's human resources bylaw, it was “implicit in their arguments that the grievance procedure in that by-law provides for arbitration.” The union attached a copy of § 3.15.11 of the bylaw to its motion for reconsideration. The three-step grievance procedure therein does not include arbitration.

3.   Under the civil service law, “a tenured employee shall not be discharged” “[e]xcept for just cause and except in accordance with the provisions of [G. L. c. 31, § 41, first par.].” G. L. c. 31, § 41. Before such a discharge, the employee “shall be given a written notice by the appointing authority, which shall include the action contemplated, the specific reason or reasons for such action and a copy of [G. L. c. 31, §§ 41-45].” G. L. c. 31, § 41. The employee must also be given “a full hearing concerning such reason or reasons before the appointing authority” or a designated hearing officer. Id. If the appointing authority decides that there was “just cause” for the discharge, the employee may appeal to the Civil Service Commission within ten days of receiving notice of the appointing authority's decision. G. L. c. 31, §§ 42, 43.

4.   Where a collective bargaining agreement does not include a grievance procedure culminating in final and binding arbitration, the Labor Relations Commission may order binding arbitration “upon the request of either party.” G. L. c. 150E, § 8. No such request was made here.