City of Boston v. Boston Police Patrolmen's Association.

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

23-P-1493

CITY OF BOSTON

vs.

BOSTON POLICE PATROLMEN'S ASSOCIATION.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, the city of Boston (city), appeals from a

judgment of the Superior Court confirming, and denying a motion

to vacate, an arbitrator's 2021 decision (2021 decision)

clarifying his 2013 arbitration award (2013 award) in favor of a

Boston police officer, David Williams. On remand from the

Superior Court, the same arbitrator who had issued the 2013

award issued the 2021 decision, explaining that the language of

the 2013 award requiring the city to make Williams whole for all

lost compensation included pay for details, overtime, and

buybacks of vacation time, personal leave, and sick leave. The

city argues that (1) the Superior Court had no jurisdiction to

remand the matter to the arbitrator; (2) the defendant, the
Boston Police Patrolmen's Association (union), waived any

argument for those categories of damages; and (3) an award of

those categories of damages would be unlawful and in violation

of public policy. We affirm.

Background. Much of the history of this dispute was set

forth in Boston v. Boston Police Patrolmen's Ass'n, 477 Mass.

434, 441 (2017) (Williams I), and need not be repeated here. In

that case, the Supreme Judicial Court rejected the city's

argument that the 2013 award violated public policy by ordering

Williams's reinstatement as a Boston police officer. Id. at

447. In August 2017, judgment after rescript entered in the

Superior Court affirming the confirmation of the 2013 award.

The city reinstated Williams.

The 2013 award directed that the city was required to "make

[Williams] whole for all lost wages, benefits, compensation,

seniority and any other benefit, retroactive to the date he was

placed on administrative leave." The city paid Williams

approximately $502,225 for his base wages, holiday pay, and

shift differential retroactive to February 18, 2011, the date he

was placed on administrative leave. However, the parties

disagreed as to whether the words "compensation . . . and any

other benefit" in the 2013 award encompassed five categories:

detail pay, overtime, and buybacks of vacation time, personal

leave, and sick leave.

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On April 17, 2018, the union filed in the Superior Court

action a complaint for contempt, alleging that the city had

failed to make Williams whole as required by the 2013 award.

The city's answer asserted, among other things, that the 2013

award was not "a clear and unequivocal Court command" to pay

Williams the disputed categories of compensation. See Birchall,

petitioner, 454 Mass. 837, 852-853 (2009). At an evidentiary

hearing on assessment of damages, a Superior Court judge

(remanding judge) considered testimony from Williams and a union

official, memoranda of the parties, and argument as to the

meaning of "compensation" in the 2013 award. The remanding

judge then dismissed without prejudice the union's complaint for

contempt and remanded the matter to the arbitrator to address

the issues raised by the parties as to the compensation the city

owed to Williams under the 2013 award.1

On remand, the same arbitrator who had issued the 2013

award solicited briefs from the parties but did not take

additional evidence. The arbitrator issued the 2021 decision,

in which he clarified the meaning of the 2013 award that "[t]he

1 After judgment entered dismissing the union's contempt
complaint and remanding the matter to the arbitrator, the city
filed a notice of appeal. A panel of this court dismissed the
appeal, concluding that it was interlocutory. Boston vs. Boston
Police Patrolmen's Ass'n, Mass. App. Ct., No. 2019-P-1587, slip
op. at 1 (Jan. 19, 2021).

3
City . . . shall make [Williams] whole for all lost wages,

benefits, compensation, seniority and any other benefit . . . ."

As to each of the five disputed categories -- detail pay,

overtime, and buybacks of vacation time, personal leave, and

sick leave -- the 2021 decision required the city to determine

the average amount of each category that Williams had earned in

the three years2 before his discharge, and to compensate him for

each year of his discharge an amount equal to that average (or,

for partial years, a pro rata share of the average).3

Initiating a new Superior Court action, the city filed a

complaint seeking to vacate the award as set forth in the 2021

decision, and the union filed a counterclaim seeking to confirm

it. After a nonevidentiary hearing, a different Superior Court

judge (confirming judge) allowed the union's request to confirm

the award as clarified by the 2021 decision, and denied the

city's request to vacate it. The city appealed. After the

2When referring to the computation of averages for detail
pay, overtime, and vacation buyback, the arbitrator used
"calendar" years; when referring to the computations of averages
for personal leave buyback and sick leave buyback, he used
"fiscal" years.

3In the 2021 decision, the arbitrator denied the union's
request to require the city to compensate Williams for postaward
interest and for the possible tax consequences of his receiving
a large sum of back pay in a single tax year. The parties do
not raise those issues on appeal, and so we do not reach them.

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Supreme Judicial Court's denial of direct appellate review, the

case is now before us.

Discussion. 1. The Superior Court's remand to the

arbitrator. The city argues that the Superior Court lacked

jurisdiction because the remanding judge was without statutory

authority to remand the case to the original arbitrator for

clarification of the 2013 award.

General Laws c. 150C, § 8, provides:

"Upon application of a party or, if an application to the
court is pending under sections ten, eleven or twelve, on
submission to the arbitrator[] by the court under such
conditions as the court may order, the arbitrator[] . . .
may clarify or correct an award which is so indefinite or
incomplete that it cannot be performed" (emphases added).

Section 10 of G. L. c. 150C directs that the Superior Court

"shall confirm an award," unless a timely application has been

made to vacate the award under § 11, or to modify or correct it

under § 12. Sections 11 (b) and 12 (a) require that any such

application to vacate, modify, or correct an award be filed

within thirty days of a party's receipt of the award.

The city argues that, once the judgment confirming the 2013

award was affirmed by the Supreme Judicial Court in Williams I,

477 Mass. at 447, the judgment was final and no application to

vacate, modify, or correct the 2013 award was "pending" within

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the meaning of G. L. c. 150C, § 8.4 In those circumstances, the

city argues, § 8 precluded the Superior Court from remanding the

matter to the arbitrator.5 The argument is unavailing.

We disagree with the city's premise that the arbitrator's

2021 decision was a new award. We read the 2021 decision not as

modifying or correcting the 2013 award, but rather

"clarify[ing]" it because it was "so indefinite or incomplete

that it cannot be performed." G. L. c. 150C, § 8.6 The 2013

award had already been confirmed by the Superior Court pursuant

4 The confirming judge concluded that the case was "pending"
because, in dismissing the city's interlocutory appeal from the
remand order, see note 1, supra, a panel of this court
contemplated additional proceedings in the Superior Court.
Because of our interpretation of § 8, detailed below, we need
not review that conclusion.

5 In its brief, the city expressly disavows any reliance on
the doctrine of functus officio, asserting that it disputes the
authority of the Superior Court to remand to the arbitrator, but
not the authority of the arbitrator. We do not reach the
question of the viability of that doctrine, which is a subject
of some controversy. See Bank of Am., N.A. v. Casey, 474 Mass.
556, 562-563 & n.14 (2016). See also Local 2322, Int'l Bhd. of
Elec. Workers v. Verizon New England, Inc., 464 F.3d 93, 100
(1st Cir. 2006) (it "may well be a debatable issue in this
circuit [whether] the functus officio doctrine is still good
law").

6 Because we conclude that what happened here was a
clarification of the 2013 award, we do not consider the analysis
of the remanding judge that the remand was to "correct" language
in the 2013 award that was "imperfect in a matter of form, not
affecting the merits of the controversy." G. L. c. 150C,
§ 12 (a) (3).

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to § 10, and the judgment of confirmation had been affirmed by

the Supreme Judicial Court in Williams I, 477 Mass. at 447.

In G. L. c. 150C, § 8, the Legislature did not place any

time limit on a judge's remand to an arbitrator for

clarification, as it did in §§ 11 and 12 for a party's

application to vacate, modify, or correct. In commercial

arbitration cases, this court has concluded that the analogous

statutory time limit "applies only to applications of parties

for correction or modification, not to resubmission ordered by a

court." Ciampa v. Chubb Group of Ins. Cos., 26 Mass. App. Ct.

941, 942 (1988). Cf. Connecticut Valley Sanitary Waste

Disposal, Inc. v. Zielinski, 436 Mass. 263, 269 (2002) (absent

court order, arbitrators did not have authority to take

additional evidence and modify award). In Baxter Health Care,

Corp. v. Harvard Apparatus, Inc., 35 Mass. App. Ct. 204, 209-210

(1993), this court concluded that a panel of arbitrators

impermissibly had issued clarifying awards on an untimely

application of a party. This court concluded, however, that it

was appropriate to permit the parties on remand "to apply to the

Superior Court for a submission by the court to the arbitrators

for clarification of the original award," the allowance of which

would be in that court's discretion. Id. at 210. Similarly, we

conclude that the remanding judge had the authority to submit

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the matter to the arbitrator to "clarify" the 2013 award, as

contemplated by § 8.

Once the 2013 award was confirmed pursuant to § 10, the

Superior Court's authority to enforce the 2013 award was the

same as its power to enforce "any other judgment or decree."

G. L. c. 150C, § 13. See Sheriff of Suffolk County v. Jail

Officers & Employees of Suffolk County, 451 Mass. 698, 702-703 &

n.5 (2008) (Sheriff). The confirmation set the stage for the

union's enforcement of the award, see Massachusetts Correction

Officers Federated Union v. Commissioner of Correction, 63 Mass.

App. Ct. 907, 908 (2005), including by contempt proceedings, see

Milano v. Hingham Sportswear Co., 366 Mass. 376, 378 (1974).

"The purpose of an action to confirm an arbitration award is to

enable a plaintiff to collect an unsatisfied award by enforcing

the judgment that has been entered" (citation omitted). Boston

Teachers Union, Local 66 v. School Comm. of Boston, 494 Mass.

519, 522-523 (2024). We conclude that the broad powers of the

Superior Court to enforce the 2013 award included the power to

ask the original arbitrator to clarify the meaning of the

"compensation" in the 2013 award that would "make [Williams]

whole."

We do not accept the city's interpretation of § 8 as

meaning that, after confirmation of an award under § 10 has been

affirmed on appeal, a Superior Court judge is powerless to

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submit to the original arbitrator a request for clarification of

the award unless an application to vacate, modify, or correct

the award is pending. The union did not seek to vacate, modify,

or correct the 2013 award. Rather, the union took the position

that the language of the 2013 award requiring the city to make

Williams whole "for all lost . . . compensation . . . and any

other benefit" was correct, and should be interpreted to entitle

Williams to the five categories of benefits at issue here. We

will not interpret G. L. c. 150C to require the union to pursue

a remedy it did not want just so that the remanding judge would

have authority to submit the matter to the original arbitrator

for clarification.

It matters to our analysis that the remand to the

arbitrator was for clarification of the 2013 award. Courts have

"differentiate[d] between a second award which is fundamentally

inconsistent with the first award and one which simply flesh[es]

out the remedy announced initially" (quotations and citation

omitted). Eastern Seaboard Constr. Co. v. Gray Constr., Inc.,

553 F.3d 1, 4 (1st Cir. 2008). See Locals 2222, 2320-2327,

Int'l Bhd. of Elec. Workers, AFL-CIO v. New England Tel. & Tel.

Co., 628 F.2d 644, 651 (1st Cir. 1980) (after arbitrator ordered

reinstatement of employee, union's action to clarify amount of

back pay was action to enforce or confirm original award).

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It also matters to our analysis that the remand was to the

original arbitrator, who did not take additional evidence. The

Supreme Judicial Court has noted that it was required to

"wrestle with" ambiguous findings in arbitration awards because

the original arbitrator was no longer available to clarify them.

Pittsfield v. Local 447 Int'l Bhd. of Police Officers, 480 Mass.

634, 638 n.4 (2018), citing Sheriff, 451 Mass. at 702 n.5. When

the original arbitrator is available to explain what he meant in

the 2013 award, it would be a waste of judicial resources to

require a Superior Court judge to "reinvent the wheel," or to

require the union to initiate and arbitrate a new labor

grievance.

As the confirming judge noted, the city's interpretation of

G. L. c. 150C "would run contrary to both common sense and

Massachusetts's strong policy disfavoring judicial interference

with arbitration awards." We agree. "[O]ur reading of § 10

comports with the Commonwealth's strong public policy interest

in promoting arbitration as a means of dispute resolution."

Boston Teachers Union, Local 66, 494 Mass. at 523. See Sheriff,

451 Mass. at 702-703.

2. Whether the union waived categories of compensation.

Alternatively, the city argues that the union waived the issues

concerning Williams's entitlement to the five categories of

compensation at issue by not raising them before the Supreme

10
Judicial Court in Williams I, 477 Mass. at 440-442. We are not

persuaded. Williams I was the city's appeal from the Superior

Court judgment confirming the 2013 award. As appellant, the

city did not raise any issue with respect to the meaning of

compensation in the 2013 award; indeed, its brief did not even

use the word "compensation." In those circumstances, there was

no reason for the union as appellee to have raised an issue

about the meaning of compensation in the 2013 award, nor, from

this record, does it appear that the union could have predicted

the position that the city would take as to the scope of

compensation.

3. Public policy. Finally, the city argues that requiring

it to pay the officer for "hypothetical unused leave" would

violate public policy.

In the 2021 decision, the arbitrator interpreted the

parties' collective bargaining agreement (CBA) to entitle

Williams to be made whole for lost detail and overtime

opportunities and for buybacks of vacation, sick leave, and

personal leave, to be computed, as mentioned above, based on the

averages of each that Williams took in the three years before

his discharge. We defer to the arbitrator's interpretation of

the CBA.

We "uphold an arbitrator's decision even where it is wrong

on the facts or the law, and whether it is wise or foolish,

11
clear or ambiguous." Pittsfield, 480 Mass. at 638, quoting

Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 818

(2005). As the arbitrator explained, the city misplaces its

reliance on White v. Boston, 57 Mass. App. Ct. 356, 357-359

(2003), and Selectmen of Framingham v. Municipal Court of

Boston, 11 Mass. App. Ct. 659, 660-661 (1981), because those

cases involved courts' interpretation of statutes, not an

arbitrator's interpretation of a CBA.

Judgment dated October 2,
2023, confirming
arbitration award affirmed.

By the Court (Ditkoff,
Grant & Toone, JJ.7),

Clerk

Entered: April 8, 2025.

7 The panelists are listed in order of seniority.

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